Ladies and gentlemen, thank you for inviting me to appear before your committee. It is a pleasure to be here today.
The presentation that I'm making today is based on my experience working with Canadian sanctions legislation and policy instruments as a former foreign affairs adviser in the Prime Minister's Office, as well as my current work as a professor in the Norman Paterson School of International Affairs at Carleton University.
My presentation is based on the brief that I submitted to the committee which outlined four recommendations for amending SEMA, the Special Economic Measures Act. As the committee considers whether Canadian legislation should encompass gross violations of human rights, I would note that the United Nations has long considered gross violations of internationally accepted human rights as an acceptable rationale for imposing economic sanctions, as have the United States and the European Union.
In considering potential amendments to SEMA to also address these violations, I offer several suggestions. First, as the committee is aware, subsection 4(1) of SEMA allows Canada to act unilaterally to impose sanctions in the absence of actions by the UN Security Council. This section of the act allows Canada to introduce economic sanctions in two ways, either as a member of an international organization of states, of which the Commonwealth would be an example, that has called upon its members to impose economic sanctions against a foreign state, or unilaterally, provided that the Governor in Council is satisfied that “a grave breach of international peace and security has occurred that has resulted or is likely to result in a serious international crisis”.
In 2014-15, that unilateral provision allowed Canada to act via an informal coalition of willing states, namely the United States and the European Union, to impose sanctions against Russia and pro-Russia forces over the crisis in Ukraine. Since the UN could not respond to that crisis due to Russia's veto at the Security Council, and given that Canada was not a member of an organization of states that was willing to act, Canada would not have had the legislative authority to act without the SEMA provisions as they're written. Through this example, we can see how SEMA provisions enabling Canada to act unilaterally have been usefully applied, even though Canada acted multilaterally in practice.
In considering now whether to add “gross violations of internationally recognized human rights” to the rationale for SEMA, it's my sincere hope that a similar logic would be applied before invoking its provisions. To be clear, while broadening the legislation in this way would give Canada the authority to act unilaterally, I hope that Canada would still follow previous practice and would seek to join a coalition of willing states to do so and would do so only in the absence of a recognized forum such as the UN, NATO, or the Commonwealth.
Canada has never acted in a truly unilateral fashion to invoke sanctions under SEMA. It's my view that adding human rights violations to the legislation should not be used as a rationale for doing so now.
My second recommendation relates to the implications that adding human rights provisions to this legislation will have for the test of when Canada will act unilaterally against another state. What I mean by this is that the existing SEMA legislation allows Canada to act unilaterally only when a serious breach of international peace and security has occurred and when a serious international crisis is likely to result. Therefore, by definition, the purpose of adding gross violations of human rights as a rationale for invoking SEMA must be to allow Canada to act when a grave breach of international peace and security has not occurred and when an international crisis is not likely to result, since gross human rights violations that could result in a serious international crisis such as genocide are already captured under the existing legislation. Adding the specific provisions to the act would necessarily lower the threshold for Canadian intervention against foreign states.
Therefore, if this new human rights justification for imposing sanctions is included in the act, then the act must also define what the new threshold for Canada's intervention would be. It could be, for instance, as broad as indicating that these violations have shocked the international community, or they could be much more prescriptive. For instance, the act could adopt elements from Bill C-267, a private member's bill introduced by the member for Selkirk—Interlake—Eastman. That bill seeks to invoke SEMA sanctions for those who have committed gross violations against individuals who are either seeking to expose illegal activity carried out by government officials or who are seeking to promote human rights, democratic and other freedoms, people who we would generally think of as human rights and democracy activists.
Whether the committee supports that kind of rationale or something else, it will be necessary to identify a trigger for Canadian intervention, if Parliament decides to add gross violations of human rights to the rationale for SEMA.
A third issue I wish to raise stems directly from my experience working with SEMA generally as it pertains to the use of travel bans. I know that you heard from folks on this the other day. Changes made to the Immigration and Refugee Protection Act, or IRPA, several years ago allow the Minister of Immigration to use public policy considerations to deny entry to Canada by foreign nationals who have been subject to economic sanctions by Canada. The minister can also ban individuals identified under the Freezing Assets of Corrupt Foreign Officials Act, FACFOA, which I know you're also studying.
Separately and unrelated to economic sanctions, these public policy considerations also give that minister the authority to ban individuals who promote terrorism, violence, criminal activity, hate speech proponents, for instance, or those who pose a public health risk to Canada. While I'm not an expert on our immigration legislation, I suspect that the minister's authority to issue travel bans remains discretionary, due to this other set of considerations.
What this means in practice is that the immigration minister must individually approve each travel ban exercise under these provisions regardless of the rationale. When we come back to economic sanctions, this discretionary authority could result in inconsistent implementation of Canadian policy if the Minister of Foreign Affairs lists a foreign national for economic sanctions but the immigration minister either declines to do so or declines to do it in a prompt fashion.
Despite this potential for inconsistency, the two ministers and the respective departments can in practice coordinate their activities to ensure that travel bans and sanctions are implemented concurrently. Nevertheless, in my mind, given that there's no convincing rationale that the Canadian government would want to impose economic sanctions against an individual yet still allow that person to come to Canada, the government may wish to strengthen the language under IRPA to remove the Minister of Immigration's discretion in this area. I recommend that the government make travel bans automatic for individuals listed under SEMA.
Finally, returning to the issue of human rights violations, I want to highlight for the committee that travel bans on their own are already a foreign policy tool available to demonstrate Canadian action and displeasure with human rights abusers overseas even if the committee declines to recommend that the government take further action on human rights via SEMA.
Under section 35 of IRPA, persons can already be found inadmissible to Canada who have engaged in gross human rights violations. The Minister of Immigration can certainly apply these provisions more liberally in the future if he wishes. While I recognize that travel bans on their own represent a relatively weaker diplomatic response than economic sanctions, Canada may wish to issue travel bans early as part of a broader diplomatic strategy to gradually escalate pressure against a foreign state.
It would also be very straightforward to prompt Canada to issue travel bans alone unlike economic sanctions, which I believe Canada should impose in concert with other willing states.
This concludes my presentation. I'd be happy to answer any questions.