Foreign Affairs Committee on Oct. 17th, 2016

[Peter Fragiskatos, Liberal, London North Centre, ON]

That would include abuses perpetrated against whistle-blowers, for example, given that those kinds of violations usually take place within the context of mass human rights violations?

[Hugh Adsett]

Essentially, it goes back to what the test is in the legislation itself. It could be human rights abuses. It could be violations of international humanitarian law. It could be a number of different elements that allow you to reach that point of it being a “grave breach of international peace and security”. I wouldn't want to say that there's any one specific element that will necessarily trigger that, whether it's your example of abuses against whistle-blowers or something else. It really depends on that entire context. It's very hard to take one specific aspect out.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Okay. Thank you.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Fragiskatos.

Ms. Laverdière, go ahead.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Thank you, Mr. Chair.

Thank you to the two witnesses for being here today. I hope you'll show a little tolerance because we're only just beginning this study.

I'm trying to sort out how everything works. My colleagues have asked the questions I wanted to ask.

I want to go back to the issue of the sanctions' effectiveness. The issue has been thoroughly debated. When we introduce sanctions, we must avoid harming the people in a country.

Have comprehensive analyses been conducted? Has the United Nations conducted an analysis of the sanctions' effectiveness that could shed light on the matter?

[Marc-Yves Bertin]

Yes, indeed. I see Mr. Adsett nodding.

Analyses have been conducted. There's no shortage of them. A number of good analyses in the public domain have been conducted by firms, academics or international organizations such as the United Nations. In general, the research and findings vary greatly, of course, depending on the information base used, meaning the cases examined. As I said before when speaking about effectiveness and impact, it's very difficult to determine whether sanctions, as a whole, have been effective or less effective.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Thank you.

I'll be asking questions about who does what, about what Global Affairs Canada does and about everyone's responsibilities. You're welcome to make comments or provide information to help us understand.

I have a more specific question about the freezing and seizing of assets. I'm thinking in particular of the brother-in-law of former Tunisian president Ben Ali. The man fled to Canada and his assets were then seized. Tunisia asked for the assets back. I think only a tiny fraction of those assets have been returned.

How does the process work?

[Marc-Yves Bertin]

I could start by describing the roles and responsibilities, then let Mr. Adsett speak about asset freezing.

Regarding our role, I could give you an overview of who does what, or, at least, who we work with and in what context.

Our role is to provide advice and recommendations to the Minister of Global Affairs, who is responsible, under the act, for making decisions and for recommending to the Governor in Council the establishment of sanctions. We work, of course, with the Department of Finance agencies. Representatives from some of those agencies will be here today to talk a little about their role regarding information for financial institutions, with the understanding that we alone, as a department, have the statutory duty of working under the act. Obviously, we also work with the RCMP and Canada Border Services Agency on enforcing and implementing the act. Our coordination role also has an international dimension, meaning we work with other countries that share our perspectives and with international organizations in the context of the United Nations. We therefore play an important role in terms of coordination. We also still work with the Department of Finance, especially when establishing proposed regulations that affect restrictions as part of a collective decision.

I'll stop here and turn the floor over to Mr. Adsett.

[Hugh Adsett]

Thank you, Mr. Bertin. Thank you, Ms. Laverdière, for the questions.

The Freezing Assets of Corrupt Foreign Officials Act of course does provide for asset freezes. In the specific case of Tunisia, something in the order of 123 different individuals were identified as politically exposed foreign persons whose assets could be frozen in Canada. I'm not in a position to be able to speak to specific individuals or specific cases. However, I would note that what happens under the act is that the assets are frozen. If the foreign state wishes to have the return of those assets, they need to take a further step to be able to have the assets returned. That usually will be in the nature of a mutual legal assistance request in order to have assets returned.

As suggested, the Freezing Assets of Corrupt Foreign Officials Act is very much in the spirit of a temporary measure in a very particular set of circumstances to allow for that temporary freezing of assets.

[The Chair, Liberal, Bob Nault]

Just to make it a little easier for the committee, one of the objectives of the exercise is to connect the dots vis-à-vis the machinery of government. As you know, a number of acts are attached to the work we're doing.

I think Madame Laverdière's question relates to a little more in-depth interest by the committee on matters like export permits, which are connected matters that deal with the decision-making process through the order in council; matters that relate to the United Nations Act; and why we would prefer to use these pieces of legislation versus what's being recommended at the UN. There are a number of connecting pieces.

If you can, or if it's possible, try to inform the committee as much as you can about how the machinery operates to connect the dots. If you can't, and someone else needs to be at the table, we'd very much like you to let us know that, because it's our intention to go through the exercise. As you might imagine, at some point we will be going clause by clause through this legislation. A number of pieces in this legislation we could ask you about today, but it's a little early. That's not to say that the committee won't do it, but it's the objective to get a better understanding of that. For example, in this section dealing with the Freezing Assets of Corrupt Foreign Officials Act, it talks about the fact that we are asked by another country to put this in place, and they would ask for it to continue after five years. The obvious question to ask is at what point we do our own review and say that it might not be appropriate. Those are the kinds of machinery-of-government issues that I think we want to make sure the Government of Canada can deal with in the legislation. I just wanted to bring you back to that larger discussion that we need to have early on. The machinery of government seems to be a big part of how we'll deal with this.

There's a second part that you may not be aware of. We are aware that some other countries, such as the U.S., arrive at this decision from a different machinery-of-government structure. We will be looking at how the U.S. does it and how Britain does it just to compare and contrast, to see whether theirs is more effective than ours. That's part and parcel of the process.

That's just to give the witnesses a sense of what I think the committee is looking for.

I'll go to Mr. Levitt now.

[Michael Levitt, Liberal, York Centre, ON]

Thank you.

I'm going to forward on from there a bit. How does the government coordinate and co-operate with like-minded states and international organizations in the design, application, and enforcement of sanction measures? Maybe you can use the two examples of Myanmar and Russia, which are currently quite active files for this committee and others.

[Hugh Adsett]

In a very high level and a very broad sense, the government uses particularly its diplomatic channels, its diplomatic missions, in order to coordinate our activities with like-minded states. We actually do work on sanctions quite closely with like-minded partners, whether it's the United States, the European Union, Australia, or others that we often work together with on a lot of international issues.

There are different networks depending on the specific sanctions regime, and different groupings of diplomats who might come together in some manner to discuss sanctions. Those can unfold depending on the circumstances, really.

That's I think probably one of our principal ways of coordinating: through our missions abroad and our diplomatic network.

[Michael Levitt, Liberal, York Centre, ON]

In terms of Russia and Myanmar, can you give us a bit of an insight into how those sorts of sanctions would come about with our allies?

[Marc-Yves Bertin]

As Hugh was pointing out, I think we tend to work in various offices, in various points on the map, so to speak. If we're talking about a rapidly unfolding event that is the concern of the international community, there will be a lot of attention paid to this in New York City. The UN and our mission on the ground would work with other countries to identify and influence the course of action on how things are materializing.

Once the UN acts, for example—and perhaps to tie the knot on a question the chair was pointing out—and once the UN decides that there are going to be sanctions, if they can agree, then we, under the UN act, are compelled to do so, and then we implement. The discussions at the UN will tend to be at a sufficiently high level in terms of the breadth with which they'll identify the types of actions that should be taken. We will work interdepartmentally to identify just what makes the most sense within a Canadian context in terms of the types of sanctions or the elements of the sanctions that we'd like to pursue.

At the same time, there may be instances where an area or an issue of concern isn't playing out at the UN because, for example, one of the Security Council members won't agree with the others. Within that context, the conversation will be pursued in different venues. It could be in the Commonwealth. It can be in other such venues where the international community will come together, so there's a degree of like-mindedness that often characterizes the way we behave with others and how we behave among others, and that is in trying to pursue a harmonized approach.

Invariably, what that means is that it takes a degree of entrepreneurial spirit on the part of Canada's diplomatic corps and the diplomatic corps of other countries in the way that they'll make their arguments and have positions brought forward—that is, the arguments and positions of their governments.

[Michael Levitt, Liberal, York Centre, ON]

In terms of a bit of a follow-up on that, obviously sanctions are dynamic, in that things are changing all the time within the countries that we're dealing with. How often are our sanctions reviewed once they're in place? Using Russia as an example, maybe, how are the lists of individuals and entities that are subject to the sanctions measured and derived? How often are those updated?

[Marc-Yves Bertin]

Sanctions, once applied, are monitored on an ongoing basis. Because they're part of a broader bilateral response in terms of.... Sorry, let me define that. Insofar as the sanctions are often taken within the context of a number of other discussions and activities that are going on, we will, in our missions in particular, play a front-line role in terms of assessing just how things are being met and the implications on the ground. They'll get feedback from the public, including, for example, the private sector, which might have views in terms of trying to do business in a given context or market. We do that, and we do that on an ongoing basis.

That said, the act, SEMA, actually has, under its administration and enforcement section, a requirement for the Governor in Council to issue a report within 60 days of the lifting of a regulatory measure, i.e., sanctions. Once they're fully lifted, we'll issue a report. We have to issue a report. Thus far, we've applied SEMA in 11 instances. Twice, it has been lifted completely—Haiti and Yugoslavia—and in both instances we've issued a report within the 60 days—so there's tactical and then there's strategic.

[The Chair, Liberal, Bob Nault]

You have one minute.

[Michael Levitt, Liberal, York Centre, ON]

Going on to fact four, for a second, you mentioned Ukraine and Tunisia. Have any requests from foreign states requesting sanctions under fact four been denied?

[Hugh Adsett]

I'm not aware of any having been denied.

[The Chair, Liberal, Bob Nault]

Thank you very much, Mr. Levitt.

Just on that matter, with regard to Canada's regulations for the freezing of the assets, you said something in your comments that some 200 have been applied at one point. Is that right?

[Marc-Yves Bertin]

Sorry?

[The Chair, Liberal, Bob Nault]

How many politically exposed persons have been put on the list versus how many are right at this moment still in effect?

[Hugh Adsett]

I'm just going to look at my own notes.

We had adopted regulations under the Freezing Assets of Corrupt Foreign Officials Act in the cases of Tunisia, Egypt, and Ukraine. The total number of listed persons was 289, and currently there are eight individuals listed under Tunisia, and 18 under Ukraine. Those are the current numbers.

[The Chair, Liberal, Bob Nault]

So eight and 18?

[Hugh Adsett]

That's correct.