Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
OTTAWA, Thursday, December 8, 2016
The Standing Senate Committee on Foreign Affairs and International Trade, to which was referred Bill S-226, An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act, met this day at 10:30 a.m. to give consideration to the bill.
Senator Percy E. Downe (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, I call this meeting of the Standing Senate Committee on Foreign Affairs and International Trade to order. The chair of the committee, Senator Andreychuk, is the sponsor of the bill, so she will not chair this meeting. In my capacity as deputy chair, I will be chairing.
Today we continue our examination of Bill S-226, An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act.
We have before us two witnesses today. Appearing by video conference from London, United Kingdom, we have Mr. Bill Browder, Head of the International Justice Campaign for Sergei Magnitsky, who has also written that excellent book Red Notice, which if you haven't read yet, I would urge you to. It's a fascinating read and extremely well written.
Thank you for accepting our invitation, Mr. Browder, to appear before us once again.
In Dallas, Texas, we have Mr. Thor Halvorssen, President and Chief Executive Officer of the Human Rights Foundation.
We look forward to your presentations, and then we'll take questions from the senators. Without further delay, I ask Mr. Browder to start his presentation.
William Browder, Head of the International Justice Campaign for Sergei Magnitsky and Author of Red Notice, as an individual: Thank you very much for giving me the opportunity to appear before you today. This conversation has been going on for a number of years about the Magnitsky sanctions and the way in which Canada should be addressing this issue. I'd like to briefly summarize for the committee the story on the Magnitsky sanctions so that everyone understands where we stand now and where we should be going in the future.
As most of you know, Sergei Magnitsky was my lawyer in Russia. Sergei Magnitsky uncovered a massive government corruption scheme in Russia and exposed it; and for that he was then arrested, tortured for 358 days and killed on November 16, 2009. On November 17, when I got the news that my colleague and friend Sergei Magnitsky was killed, I made it my life's work from then until now to get justice for him and to make sure that the people who killed him didn't enjoy impunity. That's the reason why I'm here today.
In my campaign to get justice, in 2011 I ended up working together with at-the-time Member of Parliament Irwin Cotler in putting together a piece of legislation which was called the Magnitsky law. In that legislation, we asked for visa sanctions and asset freezes against the people who killed Sergei Magnitsky and the people who commit other gross human rights abuses around the world.
Over the next few years, I came to Ottawa on a number of occasions to meet with members of Parliament and to meet with the government to discuss and advocate for the Magnitsky law. On March 25, 2015, the House of Commons voted unanimously in favour of Irwin Cotler's amendments calling on the government to impose a Magnitsky law. On May 5, 2015, the Senate, your body, also voted in favour of that.
I subsequently had a meeting with the at-the-time Conservative government Minister of Foreign Affairs who assured me that the act would be implemented.
Unfortunately, the act was not implemented in time. The government changed and there was then an election campaign in which all parties, the Conservatives, the Liberals, the New Democratic Party all proposed in writing that should they be elected they would impose a Magnitsky act under their government.
I would just quote for you from the public statement made by the Liberal Party of Canada at the time:
The Liberal Party of Canada believes that, by imposing sanctions, we can impose meaningful penalties on human rights violators and deter future violations.
The letter went on to say that a Liberal government would immediately expand the list of sanctioned Russians.
As we all know, the Liberal Party then became the government, and we were expecting and enthusiastically waiting for the Magnitsky act to be imposed, and on May 12, 2016, Member of Parliament James Bezan asked the Minister of Foreign Affairs what he would do to make this happen. The Minister of Foreign Affairs, Mr. Dion, said:
I note that we are able to stop the perpetrators of this crime with the current Immigration and Refugee Protection Act, because it is checking eligibility at the border. We have this capacity.
The committee will have to review, very carefully, the Special Economic Measures Act to address this kind of problem.
It's clear to me from my own knowledge of the Canadian situation, having seen what's going on there, that there is actually no ability in the law to block human rights violators from coming into the country.
Furthermore, there is no current law available to freeze the assets of human rights violators in Canada. This was confirmed by testimony that was given by Mr. Hugh Adsett, Director General, Legal Affairs, Department of Foreign Affairs, who is quoted as saying that SEMA does not currently have the ability to block people who are guilty of human rights violations.
So I'm very pleased that we are now sitting here before you in this committee specifically to discuss Senator Andreychuk's legislation, which will fill these holes in the legislation of Canada and allow a Sergei Magnitsky act to move forward.
I will leave my prepared comments at that and look forward to answering any detailed questions that you may have. Thank you very much.
The Chair: Thank you, Mr. Browder. We'll hear from our next witness, Mr. Thor Halvorssen.
Thor Halvorssen, President and Chief Executive Officer, Human Rights Foundation: Thank you and good morning. In March 2015, President Barack Obama issued a new executive order imposing targeted sanctions, especially visa denials and asset freezes, against seven Venezuelan government officials involved in perpetrating or covering up the extrajudicial killing and torture of dozens of pro-democracy student demonstrators.
The targeted sanctions were an implementation of the Venezuelan Defense of Human Rights and Civil Society Act of 2014, which the American President signed on December 18, 2014.
In April 2013, the Obama administration had already published a list of 18 Russian individuals targeted with similar sanctions. This time the sanctions were pursuant to the Sergei Magnitsky Rule of Law Accountability Act of 2012, which had been passed in November 2012 and signed into law on December 14, 2012.
Two years after that, on December 29, 2014, U.S. Secretary of State John Kerry added four more names to that list, and he said that although going forwards there will be fewer future designations of persons tied to Mr. Magnitsky's death, the State Department is committed to continuing to administer the Magnitsky act by turning to designations of those associated with gross human rights violations.
Our organization, the Human Rights Foundation, celebrated these actions by explaining the following policy points: Authoritarian governments would be powerless if they didn't have enforcers willing to arbitrarily arrest, torture and execute innocent people. These sanctions, implemented by the U.S. government, target the individuals who have chosen to become enforcers of brutality, injustice and oppression at whatever cost to their fellow citizens. Under the reality of authoritarian governments, enforcers are seldom immoral outliers. They are instead normal people who have rationally and carefully weighed their alternatives and decided that remaining on the side of the oppressive government would give them and their families continued prestige, stability, security, maybe some extra cash and, for some, even the ability to have their children travel regularly to prosperous and democratic Western countries.
Simple, targeted sanctions like visa denials and asset freezes by democratic countries like the United States have the potential to change the mindset of government enforcers and to motivate them to abandon the oppressive political structures that they currently prop up.
As you well know, Canada currently lacks legal instruments that would allow your country to enact simple, targeted sanctions against the world's repressive regimes and the individuals, whether they are part of an authoritarian or even a dictatorial structure, that are the most notorious for enforcing torture, extrajudicial killings and forced disappearances.
In sum, Canada today lacks an explicit legal instrument allowing your nation to prevent the entrance and to freeze the assets of the worst individuals and the worst of the world's dictatorships that are perpetrating the most egregious human rights violations against innocent people.
Today, it's big time corruption and hundreds of millions of dollars that underpin these crimes. As Bill Browder, Sergei Magnitsky's colleague in whose memory he spearheaded this effort, has said before the committee previously, it has emerged recently that proceeds from a $230 million fraud in Russia were sent to Canada.
This is no surprise for us at the Human Rights Foundation, as we now have 10 years of experience exposing corruption and egregious human rights abuses in countries as diverse as Venezuela, Kazakhstan, Equatorial Guinea or Gabon that are so different culturally but so similar institutionally.
During my prior experience before the house committee on a related topic a few weeks ago, I noted the following, and I think it's rather important for me to underline this. The modern dictator, the modern authoritarian, whether elected or arriving in power through force, removed from any honest pursuit of a communist utopia or from embodying its right-wing antithesis is almost pathologically a kleptocrat. He may even justify his own enrichment as well-deserved compensation for his services keeping the nation open for business. To achieve this, they rely on significant natural resources from mines, gold and diamonds, oil and gas reserves, forests and water to secure more profit for themselves and their families.
Just as importantly, they rely on domestic cronies who operate in excellent terms domestically and through sometimes unhinged joint ventures with Western companies that are ready to take a significant share of the spoils in return for silent complicity.
The proxies and cronies of the government are free to travel to the West. They freely travel to Canada. They own luxury apartments, and they make significant investments there and elsewhere.
In order to underline the global nature of this and the use of the Canadian financial system, let me provide a different example. It is nothing to do with Russia.
A group of Venezuelan businessmen formed a criminal association, and it operates under the name Derwick Associates. The principals are in their twenties and thirties. They had no prior experience whatsoever in government contracting in Venezuela, yet in the space of one year the Government of Venezuela provided them with 12 construction and procurement contracts for power plants. The businessmen, Venezuelans who also hold second passports that include Spain, Italy and Germany, subcontracted all of the work to a second-rate American company.
They billed in excess of $2 billion and then carried out an exchange rate fraud. The total amount that they stole exceeds $4 billion. They paid kickbacks to Venezuelan government officials, and then they laundered their money. They laundered part of their money using the Royal Bank of Canada. They then invested hundreds of millions of their ill-gotten gains in numerous ventures, including two oil companies, one in Texas, from where I am giving this testimony. They also bought 20 per cent of a publicly traded Canadian company by the name of Pacific Rubiales Energy Corp. Thanks to their shenanigans, the shares of Pacific Rubiales have tumbled to historic lows causing losses in the hundreds of millions of dollars in value for Canadian and other shareholders.
In Canada, they don't operate under the name Derwick Associates. They operate under the name O'Hara Group. The names of the individuals are Leopoldo Alejandro Betancourt López, Pedro José Trebbau López, Francisco Convit, Orlando Alvarado and Francisco D'Agostino. The last one of these is the brother-in-law of the current president of the Venezuelan legislature, Henry Ramos.
Any act of corruption in conjunction with a regime is by necessity an action that empowers the government and enables it to continue to violate human rights with impunity. It is an action that entrenches dictatorships or competitive authoritarian states. In the case of this company, Derwick Associates, they have engaged in bribery, kickbacks, money laundering and racketeering. They have used their ill-gotten wealth to engage in false arrest and persecution of whistle-blowers. They carried out smear campaigns against whistle-blowers in four countries. They have corrupted the financial systems of Spain, Andorra and the United States, and they have touched on Canada.
Currently, with the Special Economic Measures Act and absent a UN Security Council resolution, your government has the authority to impose sanctions on foreign jurisdictions and people only when the government is of the opinion that ". . . a grave breach of international peace and security has occurred that is likely to result in a serious international crisis.''
In other words, you're not going the distance. What the proposed justice for victims of corrupt of foreign officials act or the Sergei Magnitsky act will do is to add gross violations of internationally recognized human rights, especially torture and extrajudicial executions, as a ground that would also trigger sanctions under SEMA against foreign states and against nationals from other countries.
Canada now has the opportunity to catch up and far exceed the United States with Russia- or Venezuela-targeted sanctions legislation. Moreover, by passing this global-focused Magnitsky legislation, Canada will not only honour a bipartisan campaign promise from 2015 but would become the world beacon for human rights accountability, while at the same time preventing gross human rights abusers from the world's worst dictatorships from being able to use the benefits of Canada's solid property rights system and your prosperous way of life.
On behalf of the human rights community that every day interacts with dissidents like Sergei Magnitsky worldwide, who would risk everything to bring democracy and basic freedoms to their own nations, I urge you to send them the message that their oppressors with their ill-gotten money are not welcome in Canada. So I urge you to pass the justice for victims of corrupt foreign officials act, or the Magnitsky act, for short. Thank you very much.
The Deputy Chair: Thank you for your presentation.
Mr. Browder, before I turn to the list of questions, you have indicated publicly that it's your understanding some of the proceeds from the fraud in Russia have ended up in Canada. I wonder if you could elaborate on that in more detail.
Mr. Browder: Thank you for the question. In our campaign for justice for Sergei Magnitsky, we've pursued two paths.
The first is a political path, in which we are advocating for laws like the one we're talking about here today in different countries.
The second path is a criminal justice path, in which we've said to ourselves, if Sergei Magnitsky was killed over the uncovering of the theft of $230 million, why don't we trace that money to find out who benefited from it and in which countries, and then get the law enforcement agencies of those countries to investigate, freeze the money, seize the money and prosecute the people?
We've been involved in this investigation for seven years now. We've been able to identify where almost all of the money has gone. Step by step we've been engaging with law enforcement agencies to freeze it. We found money that went to the United States. The Department of Justice has seized about $14 million of apartments in Manhattan coming from the Magnitsky crime. We found money that went to Switzerland, the Swiss banks. The Attorney General of Switzerland has frozen $20 million in Switzerland. We found money going to Monaco, France and Luxembourg. The French investigative judge has frozen $10 million in those countries and many other countries.
Very recently, we found money going to Canada. We found several million dollars going into Canada. We found Canadian companies and banks being used for up to $14 million of money going back into the money laundering network that laundered the money for the Magnitsky crime.
We reported this crime about a month ago to the RCMP and to the provincial law enforcement agencies in the provinces where the banks were located where the money was sent. We're waiting for a robust response from the Canadian law enforcement agencies.
I will finish off by saying that one of the questions I got at various different stages of my advocacy work in Ottawa about the Magnitsky act was, what does this have to do with Canada? The fact that we found millions of dollars from the blood money of the Magnitsky crime coming to Canada makes Canada directly involved in this thing. This is not a hypothetical or an abstract notion. This is a situation in which a man was murdered for money, and some of that money came to Canada.
The Deputy Chair: Without jeopardizing any possible police investigation, could you elaborate on how the money actually ended up in Canada? Did it come through Canadian banks or foreign banks into Canada? Did it come through construction companies? How did it work?
Mr. Browder: The way in which these people launder money is a long and tortuous path. The money starts out in Russia. In this particular case, it goes to Moldova. From Moldova, it then goes either to Cyprus or to some of the countries in the Baltics, such as Latvia, Lithuania or Estonia. I believe in Canada's case, the money went from Lithuania to Canada.
I don't have the numbers right in front of me, but it went into a number of banks and a number of different provinces for the accounts for various types of purchases. It also went into the accounts of various types of individuals.
We can draw a direct link from the crime, through these different countries, through the banks in these countries to Canada. I don't want to say much more than that until law enforcement has begun their investigation, so as not to jeopardize any law enforcement privilege.
Senator Andreychuk: Mr. Browder, you have testified here before. I think you were optimistic that there was all- party attention to the Magnitsky bill. You pointed out that election promises were made by all parties.
You've testified before the House of Commons committee. Do you think there is a collective will to put human rights into force here in Canada by way of the Magnitsky bill?
Mr. Browder: That's a great question. One of the things I've discovered in my campaign — and this is not specific to Canada or to any other country — is that it's almost impossible for any decent human being to be against what we're proposing here. What we're proposing here is pretty straightforward: Should we or should we not ban torturers and murderers from coming to Canada, and should we or should we not allow those torturers and murderers to use the Canadian banking system and own property in Canada? Any normal person hearing that question would answer in the negative — "No, we should not allow them these privileges.''
When I come to Canada and I meet with members of Parliament and the Senate, in every different party, there is nobody who can look me in the face and say, "No, we should not pass this act.'' Of course, we should pass this act.
One of the things I've discovered in my campaign is that the moment that people get into government, they change their mind. This is not a partisan statement; I've seen it in every different country. People in government basically want a quiet life. You have a quieter life when you do not stand up against human rights abusers. It's just easier not to do anything.
But the one thing that I feel very deeply in my heart every time I come to Canada is that Canada really is a country full of good, decent people. Canada has a reputation for bringing in the oppressed, for opening doors to refugees and for standing up for human rights. So, in spite of the reflexive government reaction — and, again, this is not a partisan statement but just a government reaction of not wanting to do things — this is an opportunity. We have from all different parties enough people to make something happen.
I think something will happen, but that requires, to a certain extent, the support of the people around the table here today.
Senator Andreychuk: Mr. Halvorssen, you've touched more broadly on human rights. Bill C-226, which is before us, points out and strengthens, I think, what started out as the original Magnitsky bill to talk about the fact that the gross violations have to be of internationally recognized human rights. So that it is not selective by Canada, the test will be against international standards.
Do you think that strengthens the legislation to be sure that it is not only a Canadian belief but that it has to be tested against international standards?
Mr. Halvorssen: I don't see that there's necessarily going to be a conflict.
I'd like to underline that I agree with Mr. Browder in that Canada occupies a rather special place in the human rights field. It is a government that I can only compare, quite honestly, to the governments in Scandinavia, and very specifically Norway, in terms of a culture that really puts a premium on the concept of human rights and international human rights definitions.
Of course, I am rather partial to using civil and political rights as the fundamental rights that we should unquestionably accept as universal. Issues of social, economic and cultural matters are things that can typically be decided at the ballot box. So whereas one government of Canada may view a certain level of taxation as too high, another government may view providing a certain good or service for the people as being mandated or not. What is certainly not open to question are fundamental rights such as freedom of expression, freedom from arbitrary detainment, due process, property rights and other things that are encompassed in what is known as civil and political rights.
Senator Andreychuk: I have a final question, Mr. Browder. You have updated the committee in the past on activity both in the United States and elsewhere. You live in the U.K., and I understand that there's a contemplation of a bill there. Could you update us as to the progress there and elsewhere, if there is new activity?
Mr. Browder: Sure. That's a great question. The answer is that the Magnitsky sanctions concept is snowballing around the world. Let me start with our most tangible successes: In the United States House of Representatives last week, the global Magnitsky human rights accountability act was passed with roughly 90 per cent of the vote. The U.S. Senate will be voting on the global Magnitsky human rights accountability act either today or tomorrow. It's been relayed to me as a near certainty that once it passes both houses, President Obama will sign it, and it is the closest comparable piece of legislation to what's been presented here.
I'm also very proud to have just learned, as I was in the taxi on the way to this video conferencing centre, that Estonia has just passed an Estonian Magnitsky act, which will achieve similar objectives.
Finally, to answer your question about the U.K., we have just introduced in the U.K. House of Commons the Magnitsky amendment. It's been introduced as part of the criminal finances bill. As part of that bill, the Magnitsky amendment will allow the government or private NGOs or individuals to go to the High Court with evidence of gross human rights abuse against whistle-blowers, political dissidents, political opposition members and others. If the High Court deems that evidence to be credible, the High Court will issue a Magnitsky designation that will allow the court and the government to freeze their assets in the U.K.
It's a serious sanction if it gets passed, because the U.K. is probably one of the most popular places for bad actors from many countries around the world to buy big mansions and have lots of property.
My two big projects right now are the U.K. and Canada, and I hope that both of them will come to fruition successfully.
Senator Eaton: Thank you, gentlemen. This probably seems like a very naive question. I support the bill; I will certainly support the bill. How do you pick out those people who would be responsible for gross violations of international human rights? Is it something you pick out of the newspapers? Is it something that's told to you? Is it prisoners? How do you determine who is violating human rights?
Mr. Browder: That's an excellent question. First of all, it's not me or Thor or any of us who pick those people out. The arbiter of who gets sanctioned is your government.
I have experience now, because in 2012 the United States government passed the Magnitsky act, so we've been through this now for a long time. The way they do it in the United States, and I would imagine the way it will be done in Canada, is the government will place an extremely high standard on whoever gets sanctioned. The standard will be determined on the basis of real, hard evidence. That evidence has to be presented at a criminal justice standard, which means that not that many people will end up being sanctioned. This is not something that will be used lightly or used to settle vendettas. As I pointed out, governments tend not to want to do this type of stuff. They will be presented with such overwhelming evidence that it will be clear, based on evidence they can use in court, that somebody has been a gross human rights abuser. I stress the word "gross'' because that is an identifiable legal standard.
Let me tell you, it took us a lot of effort to get those people on the U.S. Magnitsky list, and we had to supply an enormous amount of evidence. We also supplied evidence on 282 individuals, and only 32 of those 282 people ended up getting sanctioned, so it's not an easy thing to do. You shouldn't be worried that it will be used lightly, and you should understand it's based on an objective, third-party-documented, evidence-based process.
Senator Ngo: This question is for both of you.
This bill, as you said, will expand the list of foreign nationals that can be targeted by sanctions and have their assets in Canada frozen. Do you foresee any impact on bilateral Canadian trade relations as a result of this bill? We see examples all the time of economic interests overruling the protection of human rights. Do you believe that the same consideration of economic interests could be at odds with this bill?
Mr. Browder: Can I take this first and you take the second, Thor?
Mr. Halvorssen: Sure.
Mr. Browder: People often hear the word "sanctions'' and think of trade sanctions, trade wars and trade being cut off, et cetera. That's not what this bill does. What this bill does is say that if the Canadian government identifies a person who is specifically involved in torture, extrajudicial killing or other types of gross human rights abuses in a country, then that official will be sanctioned — not the government and not the country.
When the Magnitsky act was passed in America in 2012, no trade wars followed that. The Russians were extremely unhappy about it, but it didn't lead to any change in trade whatsoever.
I can't say there won't be a situation where a sanction might upset a government so much that it will affect trade, but that depends on who is being sanctioned. If you sanction a head of state, that might very well do it. If you sanction somebody who is the head of a prison, then why should the government of the other country upset trade when it's in their interest as well?
There's no hard and fast answer, but the most important thing you should understand is that this is extremely targeted. I would describe it like a modern-day cancer drug: In the old days, when you had cancer, they would give you something that would kill the cancer and nearly kill the patient, but nowadays, a modern-day drug goes after the specific cancer cells. That's what targeted sanctions do: They go after specific individuals, not mess up the whole bilateral relationship.
Maybe Thor has some other thoughts.
Mr. Halvorssen: I do, and I'd like to address it slightly differently.
I think this provides Canada the ability to maintain realpolitik. Obviously, those of us in the human rights field would like to see a lot more action with regard to certain governments that are major trading partners of Canada that engage in gross human rights violations as a matter of state policy — like China, for instance.
However, what this bill does isn't to meet the things we would like to see. Rather, with almost laser beam, surgical precision, it points out that certain people don't have the privilege of entering Canada anymore. If you do these things, you're not coming into Canada any longer.
If I can give you an analogy, one of my colleagues has repeatedly said that if we really want to see from Latin America a dramatic shift away from certain human rights violations, preventing certain people from having visas to go to the United States is going to mean that their families will not be able to visit Disney World or Disney Land. If certain families could not visit those places, we would see corrective action.
I'm not trying to be trivial or flip, but for some of these people, the privilege of visiting and of seeing Canada and feeling like they're also members of the rest of the world is enough to cause shaming for some of them and to stop other people from engaging in similar activities because they don't wish to be on the same list.
We're not asking you to sanction a country; we're asking you to sanction specific individuals for whom a certain bar has been met as far as their crimes go. Of course these individuals undoubtedly can establish a system whereby they can challenge being on this list and provide exculpatory evidence. But, essentially, we're not asking you to imprison them; we're asking you to stop them from having the privilege of entering your country or using your financial system.
Senator Ngo: I would like to follow up, because you mentioned China. As you know, in China, Vietnam, or any of the countries under the communist regime, officially, dictators are controlled by the government. How did you apply focus on these human rights violators in China or other countries?
Mr. Halvorssen: This bill is not focused on the entire government. You already have all sorts of measures. Your foreign policy already addresses some of this by talking to these countries or pointing out certain corrective measures that they can take.
This bill points out and identifies specific people engaged in gross human rights violations across the world. Whether it's Belarus or Cuba, Angola or Azerbaijan, this is something that has already been adopted in the United States with great success, and as a matter of principle, Canada should do the same by amending SEMA legislation for that purpose.
We're essentially requiring that when a certain threshold is met, it should trigger action by Canada to stop certain people from having the privilege to enter Canada. We're asking you to combat a culture of impunity.
Senator Cordy: Thank you both very much for your comments.
Mr. Browder, you've been before the committee before speaking about human rights violations, so thank you very much for coming back.
You both spoke about other legislation: You spoke about the U.S. legislation, proposed legislation in Estonia and in the U.K. Are there things in those that perhaps should be included in the Canadian legislation, or is it fine as is?
Mr. Browder: The Canadian legislation is an excellent piece of legislation. I've read it on a number of occasions over the course of a number of years as it has evolved and been discussed, debated and legally analyzed.
There's only one thing that came out of the U.K. experience that might be useful. In the U.K., we've had a very unfortunate example in the money laundering sphere where we've addressed the police authorities on five different occasions about large amounts of money — much larger even than came into Canada from the Magnitsky crime — and they've refused to open a criminal investigation.
From that experience, we said to ourselves the one thing we don't have here in the U.K. is the ability to count on the government to do their job. So we opened up the legislation, should it be passed — I should stress that it's still in a place where it has to be voted on. We've opened up this legislation to allow private parties to apply to the courts to have people sanctioned if the government chooses to be inactive. I don't want to muddy up the waters in Canada, but that's the one thing that really makes it perhaps much stronger than any place else in the world because we don't have to rely on a two-step process.
Here we're trying to get a law passed. Once it's passed, I know I will be back in Ottawa urging, cajoling, embarrassing the government into implementing the law.
Senator Cordy: Thank you. That would be a suggestion we could look at to see how it would be implemented.
Page 5, clause 4(3) of the bill says, "The Governor in Council may take into account information obtained by other countries and non-governmental organizations that monitor violations of human rights.''
Are there sufficient agreements among countries who are implementing bills or others that are not implementing bills? Are there sufficient agreements in place that would allow this free flow of information, or would we need new agreements?
Mr. Browder: I think the current state of international cooperation in this type of area is extremely informal and haphazard, and I don't believe there's anything formally in place to allow this to happen. From time to time at organizations like the OFCE — and I know Canada is an observer at the Council of Europe — there are opportunities to share information through these parliamentary and intergovernmental processes. But there's no formal process where, if the United States has analyzed and come up with a human rights violator, they're going to share their evidence package with any other country. They'll share the names but not necessarily how they got comfortable with those names.
Each country at the moment has to analyze the crimes and the evidence on the merits and on the prerequisites of each individual country.
Senator Cordy: It's going to basically depend on the individuals in the various countries as to whether or not they're going to have discussions with one another. Is that something that should be more formalized, or is the informal way just the way it's going to be?
Mr. Browder: I would say that we should crawl before we walk and we should walk before we run. I'd rather get something in place that works, and then we can figure out how to make it work better. Let's not let "excellent'' get in the way of "good'' here.
Having said that, the answer is yes, there could be better ways for countries to communicate, but I'd hate to see anything get bogged down by trying to make this perfect when we need to get something.
Senator Cordy: Let's get the process in place, and then we'll worry about those details. Thank you.
Senator Cools: I thank Senator Andreychuk for bringing forth this bill, and I also thank the witnesses for their high- minded, just — I would say noble — and righteous approach.
I'm approaching this with a bit of caution. I've had the privilege of serving on the National Parole Board of Canada, and I can tell you that I saw many inmates being arrested in Canada for wrong things. They were foreigners, and the system was quite fierce with them. My concern here is that however noble, however righteous, and however terrible these people are, I am not convinced that this institution, the Parliament of Canada, has jurisdiction in respect of making laws. Our "bad things'' our government may call the Criminal Code of Canada, but Parliament's jurisdiction is not in foreign affairs; Canada's jurisdiction is purely domestic.
The two of you are very learned in these matters. Why is it we're not seeking to look to our Criminal Code of Canada to see to what extent that can be used to encompass crimes that are bad but somehow or the other involve Canada or involve people being in Canada or financial transactions in Canada?
For example, I remember one time on the Parole Board having an inmate before me who actually was a young woman. She worked hard to convince us that she was unaware that the suitcase of money that she used to deposit once a week on a particular day was money that was criminally obtained.
I think Senator Andreychuk's intentions are so fine and so good, and I think the moral issues are so big and so large that perhaps we should look at a more certain way of succeeding, because I don't see how this bill will be accepted by the government. I could be wrong, and that would be great. That would help your cause in a very magnanimous way, but I have this suspicion that you have to narrow your scope a bit and allow Canada to define certain things as crimes in Canada in accordance with the Criminal Code. I may be wrong. I'm supportive of the idea because I've seen first- hand some of these transactions, so my heart goes out to you. But making laws is a business, and it would be nice if we could succeed.
Mr. Browder: Thank you for your comments. I should point out a couple of distinctions between your experience and what we're proposing here.
You're absolutely right that when it comes to the sanctions of taking away somebody's liberty by putting them in jail, that's a very serious thing to do, and it requires a very serious legal analysis of why their liberty should be taken away. I'm not suggesting this isn't a serious analysis, but what we're taking away is not liberty. What we're proposing taking away is a privilege and not a right. People don't have the right to come to Canada, and they don't really have the right to use the Canadian banking system. These are both privileges.
What we're suggesting is that at a very high standard, perhaps even higher than the criminal justice standard of Canada, which is the international standard of what's defined and a very high threshold, which is gross human rights abuses, we're taking away those people's privileges, not their rights. That's a very important distinction. Canada could never have jurisdiction over a murder that took place in Russia or Angola, but Canada absolutely has the right and the jurisdiction not to give a privilege to somebody who has done something bad where it can be proven and that thing has been very bad.
I hear what you're saying, I respect what you're saying, but I think it's slightly different than the reaction to how you'd see people incarcerated in the justice system in Canada.
Senator Cools: I posed that example to you to let you know that Canada has a pretty efficient police force that has been very successful at bringing bad people to justice.
My real intention is that this bill is seeking an international jurisdiction, which most statutes do not grant. That is where I see problems for this bill. That was my concern.
In other words, any prosecutions, actions here in Canada by any of our government people have to conform with the law of Canada, and the law that usually governs these kinds of atrocities — I hope the language isn't too strong — is usually contained in one form or another as criminal activity.
Mr. Browder: I think what we're trying to do here is change the law of Canada.
Senator Cools: I agree, but we have to change it in accordance with Canadian standards and practices. I'm very sympathetic to that.
The Deputy Chair: These are very good questions, but I think they're better pursued with the next panel, with officials from Global Affairs Canada.
Senator Cools: Canada has a wide network of people working on these issues. I don't think we should underestimate for a moment the work Canada is already doing on some of these matters.
The Deputy Chair: I will put you on the list for the next panel.
Senator Cools: Certainly. That is my concern, that this bill is seeking its own international jurisdiction.
The Deputy Chair: Thank you. On behalf of the committee, I'd like to thank the witnesses for taking their precious time to appear before us today. We very much appreciate not only your participation and opening statements but also the responses to the many questions you had. Hopefully we'll look forward to seeing you before the committee once again. Thank you.
For the second part of our meeting, we are continuing our examination of Bill S-226, An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act.
We have appearing before us a panel from what is now called Global Affairs Canada, but many Canadians would recognize it as the former Department of Foreign Affairs. I'll ask them to introduce themselves in a moment.
I would like to advise the committee that I have to leave for a short period of time, and a third member of the steering committee, Senator Ngo, will chair the meeting at that point.
I would ask the panel to introduce themselves, and I assume there will be one person making the presentation. I will start with Mr. Rex and go down.
Kevin Rex, Acting Director General, Eastern Europe Relations, Global Affairs Canada: Thank you, senator. Nice to see you again. I'm Kevin Rex, and I'm Director General for Circumpolar Affairs, Eastern Europe and Eurasia.
[Translation]
Marc-Yves Bertin, Director General, International Economic Policy, Global Affairs Canada: Hello, I'm Marc-Yves Bertin, Director General of International Economic Policy.
[English]
Carolyn Knobel, Acting Director General, Legal Affairs, Global Affairs Canada: Hi. Carolyn Knobel, Director, UN, Human Rights and Economic Law Section.
Richard Arbeiter, Director General, Office of Human Rights, Freedoms and Inclusion, Global Affairs Canada: Hello. My name is Richard Arbeiter, and I'm the Director General of the Office of Human Rights, Freedoms and Inclusion.
The Deputy Chair: Wonderful. Thank you. We'll hear your presentation now and have questions afterwards.
[Translation]
Mr. Bertin: My colleagues and I are pleased to be here to support the committee's study of private member's bill S- 226. The study of Bill S-226 comes at an opportune moment. As you know, the Special Economic Measures Act and the Freezing Assets of Corrupt Foreign Officials Act are undergoing a legislative review by the House of Commons Standing Committee on Foreign Affairs and International Development.
Concurrently, the Canadian government is revisiting its policies and programs to ensure Canada's international efforts are adapted to current global realities. This includes a number of policy reviews pursuant to the ministerial mandate letters.
In this context, and before addressing questions the committee may have, allow me to briefly touch upon the key elements of the Special Economic Measures Act and how it pertains to your deliberations, specifically on human rights.
As you may know, the act specifically allows Canada to impose economic sanctions through regulations in two situations. The first is when an international organization or association, of which Canada is a member, calls on its members to take economic measures against a foreign state. The second is when the Governor in Council determines that a grave breach of international peace and security has occurred that has resulted or is likely to result in a serious international crisis.
Canada typically imposes sanctions under the act to complement existing UN-mandated sanctions or when the United Nations Security Council is unable to reach a consensus, such as the case of sanctions against Russia for its actions in Crimea.
With respect to human rights violations, the act may be invoked against a state if one of the two existing triggers is met. This was the case to address situations involving human rights violations in Burma, Zimbabwe and Syria, where the Governor in Council found that the grave breach trigger was met.
Once Canada has sanctioned a foreign state, the act allows Canada to restrict or control the activities of Canadians and persons in Canada by prohibiting their engagement in what would otherwise be lawful business or economic activities with the foreign states or with persons or entities associated with that state.
For example, asset freezing, or the prohibition from dealing in any property held by a designated person, is one of the targeted tools that can be used to impose economic measures once one of the two triggers in the act has been met. Identifying the individuals and entities to designate for asset freezing is usually done in coordination with like-minded countries and following interdepartmental consultations.
[English]
Bill S-226 also raises important questions about how best to respond to acts of foreign corruption and the illicit wealth they generate, a matter that goes beyond sanctions.
Canada subscribes to internationally agreed approaches to addressing foreign corruption. To give effect to these approaches, Canada has a number of legislative instruments under the responsibility of Global Affairs Canada and other key departments for dealing with this matter. This includes the Freezing Assets of Corrupt Foreign Officials Act, or FACFOA, in our department. FACFOA allows us to temporarily freeze the assets of allegedly corrupt foreign officials at the request of a state where there is internal turmoil or an uncertain political situation.
It's also worth noting the existence of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, which falls under the responsibility of the Minister of Finance and the Minister of Public Safety. This act assists law enforcement and national security agencies in combatting money laundering, terrorist financing and threats to the security of Canada.
As I mentioned, the House Standing Committee on Foreign Affairs and International Development has begun its comprehensive review of the provisions and operations of SEMA and FACFOA. In the course of its discussions, the committee has given due regard to a broad range of questions related to sanctions, including the circumstances surrounding Mr. Magnitsky, and to consider potential measures to respond to violations of internationally recognized human rights.
We look forward to the report of its findings that will be presented by the committee and also the deliberations and work of this committee. These findings and deliberations will help inform the government's ongoing work with respect to its sanctions regime as well as broader work on human rights and the pursuit of our human rights objectives.
With these considerations in mind, my colleagues and I look forward to your questions.
Perhaps as a means of scene setting, to give you a sense of how we will be fielding some of the questions, the way we're organized as a department is we have policy and legal sectors that serve as a backbone to sanction policy and human rights issues, but the ultimate decision as to when to invoke or use sanctions to define them, including the timing, is managed by our geographic bureaus within the context of the management of a bilateral relationship.
To my left are what I would call those core functionaries, and to my right an executioner, if I can put it that way.
The Deputy Chair: Thank you for your presentation, and thank you all for being here this morning. We very much appreciate it.
Senator Eaton: Will this law be retroactive? How many people do you estimate now live in Canada who have created gross human rights violations?
Ms. Knobel: I guess I will try to respond to the question of retroactivity. It presupposes it will be adopted to the extent that it is. I don't understand that it would be retroactive in scope. Traditionally it would be on the day of its entry into force.
Mr. Bertin: On the issue of the number of individuals who are human rights violators in Canada, the simple answer is I'm not aware of whether or not we have that information. It falls outside my remit. That said, issues surrounding criminal activity would be a matter for the RCMP.
Senator Eaton: Excuse me. I'm stunned that we've got this law on the books, and it's been on the books for quite a few years. As I understand, it came from the previous government as well. You are honestly looking at me — I'm not asking you for names or for provinces — but you don't think as far as you know there are any human rights violators living in Canada?
Mr. Bertin: I wouldn't want to speculate, but I would want to add that my ministry is not an enforcement agency. We're not a police agency. Matters surrounding criminal investigation around human rights abuses or potential abuses are matters that would fall under the remit of the RCMP.
Senator Eaton: Nobody has brought to your attention anybody living next door or down the street that they think might be a human rights violator. If something like that were to happen to me, they would go to the police and not contact their embassy or go to Global Affairs?
Mr. Bertin: If such a matter were brought to our attention, we'd obviously take it very seriously and refer the matter to the RCMP.
Senator Eaton: You're not going to answer my question. Thank you. I can't believe you don't have some idea of the number of people living in Canada.
Senator Ngo: Basically, what you answered is not what I am going to ask you. I would like to ask you what kind of human rights facts and information would the government base its decision on to establish sanctions. How will this bill change your evaluation of human rights violations?
Mr. Bertin: I'll ask my colleague to illustrate an example of how we operate.
Mr. Rex: I won't speak to the legal aspects of the bill, if it were to change our evaluation. The question I think was asked to the earlier witnesses. In the case, just an illustrative example, using current individuals who have been sanctioned in Russia and in Ukraine as a result of the conflict there, in one case, they can be identified by the current government, which was the case following the change in government in Ukraine. In other cases, we use our embassies; we use information that we have here. We use information that we share amongst the Five Eyes community. We have a close working relationship with the Americans, obviously. And at the end of the day, as was noted earlier, it's up to the government to decide if certain individuals meet the specifications that we deem necessary to be sanctioned currently under the SEMA or FACFOA regulations.
Ms. Knobel: Under the current framework, under the Special Economic Measures Act, or SEMA, as you will have heard, there are currently two triggers for the introduction of sanctions. The first is if there's a call from an international organization or association of states to which Canada is a member calling for sanctions. That trigger has been used in the past twice, in the case of the former Yugoslavia and in Haiti.
The second trigger is the finding by the Governor-in-Council that a situation amounts to a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis. Currently, we have sanctions imposed under that second trigger in, if I remember the math correctly, nine instances.
To the extent that a situation in a country, in the estimation of the Governor-in-Council, leads to a grave breach of international peace and security, then measures can be imposed against that foreign state, including targeting individuals for asset freezes who find themselves in that foreign state or nationals of that foreign state.
As my colleague has spoken about, there are a variety of sources of information for the mechanisms we would use to identify those individuals, and I would just say that the standard of imposition right now is that they have to rise to the basis of reasonable grounds to believe that those individuals fall within the criteria for listing for measures for sanctions. Traditionally, in each instance, we set out a category of individuals who can be the subject of sanctions.
Senator Ngo: The U.S. Congress, in accordance with their Foreign
Assistance Act in 1961 and the Trade Act of 1974, is obligated to submit yearly reports on human rights practices with other countries with whom they have bilateral relationships. This allows everyone to act in concert with the same information and towards the same human rights objectives.
Are we moving in the same direction?
Mr. Bertin: Perhaps if I can add a point of clarification. Are you asking what our approach is to monitoring human rights abroad and how do we factor that into government decision making, or are you talking about the issue of coherence across departments?
Senator Ngo: I am talking about issuing yearly human rights reports so that everyone in other countries that we have bilateral relationships with knows. That's what I'm asking.
Mr. Arbeiter: To date, no Canadian government has decided to issue annual reports on the human rights situation in countries in the world. We make our views known through other mechanisms, including multilaterally and publicly. The most visible one is the Universal Periodic Review, which meets in Geneva and through which every country in the world participates.
Canada, as a matter of policy, makes recommendations to every country going before the Universal Periodic Review. Those recommendations include the government's view on how country X can improve the situation of human rights in that country.
Senator Ngo: In case this bill passes, are we obligated to have yearly reports with the countries we have bilateral arrangements with or with our assistance and so on so that we can share the same information and the same concerns if we would like to impose sanctions with the officials in those countries?
Mr. Bertin: Obviously, I think you're aware this is not a government-sponsored bill. It may be a question that's more appropriate — and I see the senator nodding — it may be more appropriate for the senator to respond to the question.
The Deputy Chair: Senator Andreychuk is on her way, so we'll get to her in a couple of minutes.
Senator Oh: Thank you, chair. I want to follow up on a question similar to Senator Eaton's question.
In your experience handling human rights issues in Canada, are we the first choice or the first pick for the human rights violators to come here?
Mr. Arbeiter: I'm sorry. I'm not trying to evade the question, but I won't speculate as to the travel desires of human rights abusers around the world. I'm not sure that I can necessarily speak to their preferences and what it is they seek to do, but I can certainly assure you that we are committed to improving the situation of human rights globally, internationally, and to ensuring there is an end to impunity.
Senator Oh: Certainly they are not going to Cuba, Vietnam, China or Afghanistan. Are you handling many cases of human rights violations here in Canada compared to the U.S., the U.K. or any other country? Do you know?
Mr. Arbeiter: Perhaps can you clarify your question. Are you speaking to violations of human rights here in Canada?
Senator Oh: Yes. Violators who live here.
Mr. Arbeiter: The government has been clear that no country is perfect. Ensuring protection for human rights is an absolutely essential component of the government's agenda. The government has spoken to a series of efforts to improve the situation of human rights in Canada. I can speak from my department's perspective. That includes ensuring that Canada is open to scrutiny by international observers who can provide us with a sense from their expert perspectives of the kinds of improvements that can be made here in Canada.
I'll give you a couple of examples of that. This past October, the UN Working Group of Experts on People of African Descent visited Canada. They were in Montreal, Toronto, Ottawa and Halifax. They compiled a report on how Canada could improve the situation for peoples of African descent in this country, with specific and targeted recommendations for all levels of government to consider.
Canada also participates in all of the international human rights treaty bodies for the treaties that we have ratified. This means that periodically we need to report to these international treaty bodies on the implementation of our international human rights obligations. We recently appeared before the committee responsible for civil and political rights, economic, social and cultural rights and the committee responsible for the elimination of discrimination against women. We take those responsibilities extremely seriously.
Those are not exclusively the mandate of the Department of Global Affairs because they involve domestic implementation of our international obligations. Depending on the specific issue, our partners at the Department of Justice, Status of Women and the Department of Public Safety will appear before international committees to speak to Canada's efforts to improve the situation, depending on the thematic issue that's being discussed, and also to hear, importantly, the recommendations and observations the treaty bodies have for Canada to continue to try to improve the situation confronting that particular community or the situation here in Canada.
Senator Cools: I have a couple of questions, if I may. I thank the witnesses for coming before us. I have to confess, I'm still stuck calling it the Department of Foreign Affairs. Forgive me if I slip from time to time. Quite frankly, I think "foreign affairs'' and "external affairs'' are much more appropriate and more precisely describe the role of the minister. I don't think our foreign affairs minister is in charge of the globe, but he's definitely in charge of our relations with foreign countries. Anyway, that's just a passing thing.
Senator Ngo mentioned these reports were presented to Congress and to the Senate of the United States of America on human rights. Some years back, quite a while back, the Americans took a run at Canada in respect of something that Canadians had done in some foreign country. I haven't thought about that for a few years. It just came to me right now, because we're not always together with the U.S. When the U.S. feels like it, they like to give us a few slaps just to remind us they are the bigger brother or the bigger sister, and we just sort of shrug it off because we know better.
Would you, by any chance, remember that report? I remember there was a lot of angst here in Canada. I don't remember if it was on the Somalian situation, but there was a lot of reaction. If you don't remember, you may be too young. I am a lot older than you, so I would understand that quite well. Then I have another question. Go ahead.
Mr. Arbeiter: Very quickly, I'm not sure specifically what you're referring to, but I will say that we certainly comment on the human rights situation in the United States and did so when they appeared before the Universal Periodic Review, which was in Geneva last year. As I said earlier, we comment on the situation in every country through that mechanism.
Senator Cools: I think that's desirable, openness and all of that.
I have always understood that our Canadian embassies abroad, some specified ones, not all, I don't think, have RCMP posted as part of the staff, and the purpose of their being posted at the embassies is to investigate crime, wrongdoing and everything else that would fall under the category of policing and crime in many of these countries. Do you know anything about this? I've talked to some of these individuals, so I know they do exist.
Ms. Knobel: I'll try and answer that, although I think colleagues at RCMP might be better placed than am I, and others can correct me.
My understanding is the RCMP officers who are assigned to some missions abroad, not all, are liaison officers. A key part of their role is liaising with the host states' law enforcement entities. Earlier there were questions about Canada's ability to exercise jurisdiction extraterritorially, and I would again probably defer to colleagues at the Department of Justice about what the Criminal Code permits and doesn't permit. I would be able to say that certainly there are limits on Canada's ability to exercise criminal jurisdiction extraterritorially.
Senator Cools: That's part of my point. I do know that these people are around, and their ears are to the ground at all times and they're able to provide some excellent information as required.
Mr. Arbeiter: I would also just add, in addition to those who are posted on our missions abroad, a large number of members of the RCMP and municipal police forces participate in training and capacity building in different places around the world. Large contingents have been in Afghanistan and in Haiti as part of our efforts.
Senator Cools: For training and sharing there.
Mr. Arbeiter: Training them, in certain cases, on sensitivity to different kinds of issues, on gender awareness and how to investigate and document situations of human rights violations. That is one of the instruments in the tool kit to try to improve respect for human rights.
Senator Cools: I'm very aware of the good work they do in policing. Sometimes it's not just the RCMP; it's local police, municipal police.
Anyway, I was just attempting to let the committee know that the Canadian government is quite vigilant on a number of issues. Quite often they do not broadcast this enough. I don't think those kinds of things should be broadcast too strongly, but I think that our Department of Foreign Affairs is more alive and alert to many things that we really do not know. Maybe that's a good thing.
I'm just wondering, some years ago there was a series of trials of Nazi war criminals in Canada. I believe they used to take place in the Federal Court. Do you have any recollection of those? There were several of them.
There was one situation where a particular departmental staff suffered because the cases weren't moving. He approached the chief justice, and the then Minister of Justice made an issue of it, which hurt the staff from the Department of Justice and the then Chief Justice of the Federal Court. Obviously these things are in the mists of time. It's only 10 years or so.
In any event, as I said, I think this bill is very well intentioned and very high-minded, but that jurisdictional question is still very much at issue here.
I am of the opinion that such a bill should move with the support of the Minister of Foreign Affairs and should actually move as a government bill, with the weight of government support behind it.
Thank you so much. I've been here for 32 years, so forgive me.
Senator Andreychuk: Perhaps Senator Cools and I will have many discussions shortly.
SEMA does not touch criminal law; am I correct?
Ms. Knobel: To the extent that there is a violation of the Special Economic Measures Act, there are penalties up to and including jail time under the SEMA.
Senator Andreychuk: But it's not charging people in Canada. It's an assessment that you make according to certain standards to determine whether you will impose sanctions or not.
Ms. Knobel: The Special Economic Measures Act imposes obligations on persons in Canada and generally Canadians abroad to adhere to the regulations promulgated under it. To the extent that someone falls into either of those two categories, a person in Canada or a Canadian abroad who is in violation of the Special Economic Measures Act, they would be subject to RCMP investigation and, to the extent that the Public Prosecution Service so deems it important, will be prosecuted.
Senator Andreychuk: Within the four corners of the SEMA?
Ms. Knobel: Under the SEMA, yes.
Senator Andreychuk: With the standards set in the SEMA. Reasonable grounds to believe is the test, I believe someone said.
Ms. Knobel: The test I referred to earlier about reasonable grounds to believe was the standard for listing an individual. That's separate and apart from the offence provisions under the Special Economic Measures Act.
Senator Andreychuk: There's been some confusion about charging a criminal violation under the Criminal Code. But this is under the SEMA, and what we're saying is that the test here is not the criminal test. It would be whether it is — I'm trying to find my own section now — gross violations of human rights according to internationally accepted standards.
That would be the test. That would be the application. I just want that on the record.
Right now, a person in another country who is supporting international standards and is either tortured, brutalized or killed, surely Canada has some responsibility internationally, and you get requests every day to look into issues elsewhere pursuant to international standards.
We have a whole host of NGOs that bring issues to you; is that not correct?
I'm looking at Mr. Arbeiter.
Mr. Arbeiter: Unfortunately, human rights abuses and violations take place every day. There are civil society organizations, both in Canada and internationally, that provide an essential function globally about bringing these causes and these specific cases to the attention of both local and international partners.
So, yes, we do receive information about instances of alleged abuses or alleged violations frequently, from both Canadian and international stakeholders.
Senator Andreychuk: The minister has to determine, on your advice or from other sources, what to do about it. Does Canada stay silent? Do we make a statement? Do we try to exercise our influence on the international stage? Do we do something internally about it?
Mr. Arbeiter: It is correct that the exercise of judgment is applied on a case-by-case basis. That judgment is informed by a series of very important considerations.
Number one is local context, what is happening in that particular environment. Therefore, with that knowledge, what is the most appropriate tool for that environment?
Principle number two is do no harm. In many cases, the tool that you use to apply could inadvertently aggravate the situation, could make it worse either for the individual, the organization that they represent or the community that they're in. A lot of thought is given to how to avoid unnecessarily compounding that particular challenge.
I should also say that the tools that are available are broad and wide. Sanctions are the last resort, and a whole series of other tools is available to the government to consider in a particular situation before coming to the bluntest of instruments, and those also need to be taken into account from the perspective of local context and of doing no harm.
Mr. Bertin: If I can add, just to build on one of the comments that Richard just made about sanctions being part of the tool kit, a complement to a broader array of activities that the government can undertake in a bilateral relationship, I think it's important to note that under the current statute, SEMA, you can use SEMA for human rights abuses. In fact, it's been used three times in the cases of Zimbabwe, Burma and Syria more recently.
I think this is the question at hand in relation to Bill S-226 and other deliberations in the house committee: Should we be giving specific consideration to a new trigger, a human rights trigger? Within that context, there are a number of issues that this committee would probably want to explore further. I would note perhaps three areas of activities in these matters that the committee might want to explore.
First, what might warrant a new sanction? What is the objective specifically? Are we trying to effect and are we clear about what we're trying to effect in terms of political change or bringing justice, or is it something other, and is that scope therefore appropriately aligned? Are we looking at human rights generally, or are we looking at human rights selectively? Public rights defenders or public rights victims?
The other issue that's an extension of that consideration is, is the proposed course of measure salient or efficient to pursuing a policy objective? If you're looking at exercising certain instruments, will they actually bring about the change that you're actually trying to bring about? These are types of considerations, obviously, that, when we think about applying sanctions, we're thinking about. If we're talking about a new statute, I think it's important to put the issue on the table.
Third, what are the implications of such a mechanism? If we were to use it and create it, are the implications well understood, and do they align with the objective that we're trying to pursue?
For example, diplomatically, Richard was pointing out that there are always negative consequences when you take sanctions against another country. That's why it's a last resort. It's also one of the reasons why we do that in harmony with other countries insofar as the negative consequences are not only for the targeted state, but there are negative consequences for Canadian enterprise and Canadian workers in that they could be placed at a competitive disadvantage if Canada were to act alone or without a significant cohort of countries.
It raises a number of issues, both the implications for us and also what it does to the bilateral relationship. What does it do to the domestic power dynamics in that country? Does it offer the recipient country, if I can call it that, the targeted country, an opportunity to rally public opinion around the flag, so to speak?
I spoke to retaliation. I spoke to the broader negative consequences, including what you might be trying to do on human rights.
Interestingly enough, when I look at examples such as the United States, where some of the statutes that they have on the books, the Magnitsky act, have actually delinked the state and the individual. Under SEMA, we target a state, and then we can go after individuals and entities within that context.
It delinks, if you will, the concept of state responsibility for human rights.
Without speaking to the effectiveness of the U.S. sanctions regime under the Magnitsky act, one thing that's notable is that the Russians have retaliated in a novel manner insofar as they've gone after individuals seeking to adopt children. So they've created a degree of unpredictability or introduced a degree of unpredictability in the manner that they have retaliated. In many respects, they have somewhat either delinked or relinked everything.
I won't speak to legal considerations. My colleague might want to speak to some of those. From an operational perspective, there are also some issues that are of ongoing consideration in the life of sanctions. Is there sufficient clarity around what it is you're going after and how it is you're going after it for Canadians? At the end of the day, banks in particular but also importers, exporters and regular Canadians have a duty to comply.
Is the approach, the measure and the instrument that you're trying to invoke sufficiently clear, such that these Canadian citizens and entities actually understand their obligations to disclose that they're holding property or that they may potentially be needing to revert a transaction with property or assets? Under such a regulation, they would not be allowed to do so. Do we understand the operational implications of that insofar as Canadians and Canadian companies may be looking for clarity from the government as to just how to interpret some of these issues? There are a number of issues that need to be thought through, and I just put that out there for the committee's consideration.
Sanctions are more than just a political declaration. They're quite an important instrument. They're a last resort. They're less than an act of war, but they're severe. If you take a look at the context of the United Nations, sanctions are actually under the chapters that deal with war and violence.
So it's just to speak to the importance of these. Obviously, as you struggle with these issues, we will be attentive to them because they will inform our own thinking in terms of where we go with sanctions policy.
Senator Andreychuk: That was an interesting approach to human rights. It's the first time I've heard a rebuttal based on putting human rights, I think, secondary. What this bill was trying to do — and I don't want to put words in Mr. Cotler's mouth — is to put human rights on the same plane as other issues that you have put out fully, to have the same weight in our foreign policy. It is true that there are sometimes consequences, sometimes unintended, but either we are committed to human rights as a key pillar of our foreign policy or we're not. I think that's the first question.
This bill says that human rights, not just any abuse of human rights, not just a particular country, that gross violations of human rights have to have their place in the discourse on foreign policy. So that's the essence of that.
To say that sanctions are a blunt instrument is the terminology we used to use when we blanketed countries. We no longer talk about blunt instruments. We talk about targeted instruments. I think the refinement of how and where we use them — the previous witnesses I think were much more articulate on that than I can be — is where we're going as an international community.
The dilemma comes in that the world is changing, and we've spent decades building international orders and tried to get as many people as possible within them. We see today a totally different dynamic, and a lot of people are questioning the international order, especially in the human rights field.
So this act was intended to reinforce international standards that Canada has spent decades trying to build, right from the Universal Declaration of Human Rights, and say that it is one more tool for the government to discover.
It isn't intended to be a blunt instrument. It isn't intended to be used all the time. It's intended to give the government one more tool to exercise when it decides: Does it speak out? Does it stay silent? Does it make a declaration? Does it join with others? We have to ensure that we have as many tools as possible. Targeting gross violators who may have put their assets into Canada — and there's a test to have to prove an international standard — I would hope that the department would find ways and means to accomplish that rather than put out the issues that may be negatives. I appreciate negatives, but I think you need to put out our positives if you're working with the Canadian community, which wants to ensure that human rights adherence is at the maximum, as and when we speak, that we have truly done all we can.
Mr. Magnitsky died not because he was doing anything wrong. He was defending his country's right to the money that he thought belonged to the people. He was not a human rights advocate before that. He happened to be a lawyer, but he took it so seriously that he risked his life and then lost his life.
So many other human rights activists come forward. Do we not want Canada to have as many tools as possible to consider when we have the kind of proof so that a minister can say, "Okay, I have proof according to international standards, and I could use this device?'' Just having it might be the second thought of people coming in here with their resources that have been ill-gotten under gross violations of human rights.
I don't want you to answer that. I know that you're not setting the public policy, but I urge you, in your responses, whether it's on the house side or here, to reflect on how Canada can do better as well as the impediments. If a minister says, "Look, we're going to sacrifice other things; we may put that community into jeopardy. We may trigger negatives,'' I don't want the minister to do it, but I want him to have the tools. And I want him to go through the process to determine whether he has done all he can. I think the Magnitsky act is saying that he hasn't done all he can; there's one more.
That's not my point of view. It was the collective political parties who speak for Canada that said, "Pass the Magnitsky act.''
Mr. Arbeiter: I know you're not looking for an answer, but just a point of clarification. I wasn't intending to be positive or negative. Sanctions might be a positive instrument. What I was referring to is the spectrum between interventionist and less interventionist. The imposition of an asset freeze or travel bans are more interventionist than other elements of the tool kit, but, certainly, there was not a qualification of positivity or negativity on the merits of certain instruments within that tool kit. In fact, I think the government should have available to it, as it does now, a broad spectrum of choices to make on how best and most effectively to address the human rights situation in a given country. If you allow me, thank you. That's my clarification on that.
Senator Andreychuk: I appreciate that, and I appreciate the dialogue on that.
I guess the question that the political parties have had to address and that I've had to address is whether Canadians want to be part of facilitating international gross violations by allowing their assets to be moved here. We become enablers rather than defenders of those who should be protected. That's the issue and the framing of the bill, and I hope you take that into account as you give your advice to the government.
The Acting Chair: Thank you, Senator Andreychuk. On behalf of the Standing Senate Committee on Foreign Affairs and International Trade, we thank you for being here this morning, and we also thank you for your input. The meeting is adjourned.
(The committee adjourned.) |
