Foreign Affairs Committee on March 7th, 2011

[The Chair, Conservative, Dean Allison]

You have 30 seconds.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

Okay. I just want to know from Minister Nicholson, did you request an opinion from the Canadian or Quebec bar associations on this issue?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I did not personally, no.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

Thank you.

[The Chair, Conservative, Dean Allison]

Thank you.

We're now going to move to Mr. Dorion.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Minister, as you know, over the last month and a half, we have been asking the government to take action on an almost daily basis. Our main concern is that the assets in question, especially those belonging to the Trabelsi family, will be liquidated and that the profits will be invested in tax havens.

You said that you do not have the means necessary to take action and comply with this request. However, we believe that section 354 and part XXII of the Criminal Code, as well as section 54 of the United Nations Convention Against Corruption, provide Canada with the necessary means. Earlier, you said that Canada does not have this kind of authority. Perhaps the experts can explain to us why that is.

[Erin McKey, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada]

The United Nations Convention against Corruption provides, in article 54, an obligation on states to assist. But the obligation is to assist in compliance with your domestic laws. The domestic law that allows us to implement the obligation under the United Nations Convention against Corruption is the Mutual Legal Assistance in Criminal Matters Act. This was described in some detail by Minister Nicholson in his opening remarks about the requirements to restrain. This also requires that charges have been laid in the foreign state and that we have a restraint order we can file with the Canadian court to have the order enforced.

Similarly, section 354 of the Criminal Code, which establishes the offence of possession of the proceeds of crime, allows for restraint to be taken under part XII.2 of the Criminal Code. But there needs to be evidence of criminality, identification of assets. Minister Nicholson ran through the pre-conditions of the code requirements that would govern restraint, and this evidence is necessary in order for our domestic legal mechanisms to take effect, whether they be pursuant to the Mutual Legal Assistance in Criminal Matters Act or the Criminal Code regime. We require the evidence of criminality to be produced before the court.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Sometimes the details aren't available at the time these come to our attention. On the asset side, there may be no identification of assets. The state in question may not be in a position to produce the kind of criminal documentation that we expect in the ordinary case. This is why it was necessary to produce a bill like this that will fill in those other situations where a state may not be able to get that kind of information to Canada in time to make sure that those assets aren't dissipated or moved elsewhere.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Once the Tunisian government has issued through Interpol international arrest warrants against some Ben Ali family members living in Canada, does the Canadian government not then consider their assets to come from questionable sources? Does the Criminal Code of Canada not enable the government to seize or freeze those assets in order to make sure that they cannot be sold and so on?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's not just a question of being suspicious. We have to be exact. This could affect businesses, or it could affect innocent bystanders. You want to be as specific as possible about what we're taking action on. You have legislation introduced by the Minster of Foreign Affairs last week that will give us the flexibility to freeze those assets so that the paperwork and the investigations can continue and action can be taken.

But this will complement. It doesn't supplant or take over any other area. This is in addition to the tools that are already there, whether they be under the Special Economic Measures Act or the Mutual Legal Assistance in Criminal Matters Act. This will be another tool to make sure that individuals who misappropriate or steal money aren't going to be able to get away with it.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Mr. Nicholson, you talked about innocent people who could be affected by the application of the current legislation. To my knowledge, the bill does not contain any mechanisms that enable those whose assets are frozen to request a decision review. Is there such a mechanism?

[Rob Nicholson, Conservative, Niagara Falls, ON]

In answer to one of the earlier questions, it was indicated that the review of the courts is possible on these. There's a flexibility given to the minister to make sure that innocent people aren't inadvertently caught up and do not find, for instance, that their wages are not being paid. So I think there's flexibility within the legislation. Again, there are safeguards. Among others, it's not a permanent freeze; it's up to five years. These are all safeguards that I think are appropriate.

[Lawrence Cannon, Conservative, Pontiac, QC]

Mr. Dorion, I do not have the French version with me, but section 5 enables anyone to question or to...

Do we have it in French?

We only have it in English.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

It begins as follows: “The Minister may issue to any person in Canada [...]” Is that what you are talking about?

[Lawrence Cannon, Conservative, Pontiac, QC]

Yes, and there is also clause 13, Mr. Dorion.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Yes. It states the following:13. (1) A person who is the subject of an order or regulation made under section 4 may apply in writing to the Minister to cease being the subject of the order or regulation on the grounds that the person is not a politically exposed foreign person.

[Lawrence Cannon, Conservative, Pontiac, QC]

Subclause (2) also relates to this.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

How are we protected from the possibility of a foreign state abusing this legislation to make life difficult for people living here—people opposed to the regime and perhaps campaigning for democracy—to complain to the Canadian government and to create problems for those people in terms of their assets?

[Sabine Nölke]

The criteria set out in clause 4, which provides that the Governor in Council must determine that “the making of the order or regulation is in the interest of international relations”, is a fairly widely cast provision that allows the government to make the assessment, for example, of whether the request was improperly made, was made for purely political purposes or for vindictive purposes, or was otherwise improperly made. In this case, clearly, it would not be in the interest of foreign relations to accede to such a request.

[Alan H. Kessel]

I would just add that if you take a look at the way the legislation is drafted, there's a delicate balance between the value systems we have as Canadians, which were built over many centuries and which basically prevent governments from arbitrarily removing, without substantial evidence, assets that belong to citizens, meaning that you would go to a judge and that independent authority would sanction that removal, and the need to act quickly in an environment where we have a world that is in turmoil.

The delicate balance was created by only freezing those assets rather than seizing those assets--seeing the difference is a really major point--and also by having provisions in the act to allow those who feel hard done by to approach the courts for review. Also, the period of time for which the government may freeze is five years. Clearly, it could be renewable, but it's five years. In other countries, such as Switzerland, it's 10 years. Still others have different periods of time.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

In the bill, you use the wording “politically exposed foreign person” and you list people covered by that definition. Then, you state the following: “If a foreign state, in writing, asserts to the Government of Canada that a person has misappropriated property [...]” You talk about a foreign state, and I am wondering who can ask the government to freeze assets. Can a diplomat do so?

[Alan H. Kessel]

The state can speak through its diplomats. Usually that's done through a diplomatic note to Canada. We would in fact be speaking with that foreign state once they had provided us with a note indicating their wish to have the assistance of Canada. Usually in that note they will indicate the individuals. And if we're fortunate, they will also provide some direction as to where the assets may be.

[The Chair, Conservative, Dean Allison]

Thank you very much.

We're now going to move over to Mr. Obhrai.

Sir, you have 10 minutes.

[Deepak Obhrai, Conservative, Calgary East, AB]

Thank you very much, Mr. Chair.

Thank you, Ministers, for coming. Your coming here indicates how important this bill is and that we should take timely action as quickly as possible.

Mr. Chair, I'll be sharing my time with my colleagues here.

I have a question of clarification, Mr. Chair. After the ministers leave, we go to clause-by-clause. As my Liberal colleague has said, he wants to put in a sunset clause, while the NDP colleague stated during the briefing that he wanted to put in a review clause. There is a difference between a review clause and a sunset clause. Therefore, I am asking my question.

I am not asking you; I'm asking them.

Could you clarify what having a sunset clause would do to this bill, as distinct from having the NDP amendment, which says “a review after five years”? Could we have clarification on that, so that when we go through clause-by-clause consideration we have a clear understanding of what the amendments coming forward are?

[Rob Nicholson, Conservative, Niagara Falls, ON]

A sunset clause, Mr. Obhrai, means that it basically would disappear in the absence of legislation extending it a little bit, as the Anti-terrorism Act provisions were extended with respect to recognizance and special investigations.

I think this is solid legislation. If you decide that you have to have a review within five years, that will be a decision of the committee, but I think your examination of this, and certainly ours, is that this is an important addition to the tools Canada needs to make sure that people who misappropriate or steal money, people who are in the business of corrupt activities, don't find a safe haven here in Canada.

It has been demonstrated, I believe, by the minister and the government that there is a gap. We're suggesting that this will close that gap and make sure that the tools are available to the minister to act and to act quickly. This is what we want.

In the end, we want to get this legislation because of the turmoil that exists in various parts of the world; we want to have the tools on hand. I don't think it's necessary to start sunsetting these. I don't try to kick work over to some future set of parliamentarians. I feel sorry for people like you, Mr. Obhrai, and Mr. Wallace and Mr. Goldring and others, looking at it again in five years. I suppose it would just confirm what you know today, that this is important legislation. But again, that would be a decision of the committee to make.

But this is solid legislation that I think is an important tool for Canada to have.