Foreign Affairs Committee on Nov. 21st, 2016

[Marc-Yves Bertin]

We'll come back to you in writing, Chair, but if memory serves there was a significant human rights dimension in the form of internally displaced and internationally displaced people.

[The Chair, Liberal, Bob Nault]

Go ahead.

[Michael Levitt, Liberal, York Centre, ON]

We studied it in our Subcommittee on International Human Rights. It was the treatment of the Rohingya in Burma.

[Marc-Yves Bertin]

Thank you.

[The Chair, Liberal, Bob Nault]

Maybe what would be useful for the committee, from a hypothetical point of view, is this. If we were to sanction an individual for human rights violations in Russia, how would we go about it procedurally under SEMA as it's currently structured? This is so we can better understand the laws we have. There is a strong sense by the committee that we do not have, as a government, the power to sanction individuals for gross human rights violations under SEMA. Obviously, FACFOA is not part of that. We do understand the United Nations Act, and how it functions.

But if that's not correct, it would be very important for you to correct the record for all of us here.

[Hugh Adsett]

I will do my best to assist.

Again, without trying to be too specific, as Marc-Yves was saying, the tool that is available to the government under the Special Economic Measures Act essentially has the two different.... We call them triggers, the two different triggers. One is the association of states, of which we're a member, and that really is quite broad. That could potentially be used in a number of different circumstances, as long as it's an association, which Canada is a part of, that has agreed that it's appropriate to impose sanctions. As I was saying, that was the case with the former Yugoslavia. That was a G7 statement or resolution that was made at the time.

The second trigger is the one that most are probably familiar with, and that is the grave breach of international peace and security. There can be situations of gross violations of human rights that might be such that they would be considered by the Governor in Council to be a grave breach of international peace and security. That was the case in Burma. It was the case with Syria, as well, and Zimbabwe was the other situation.

I guess it's very much a contextual analysis. It depends on the circumstances that the Governor in Council views as being sufficient to be considered a grave breach of international peace and security. But under that second trigger, if you meet that threshold, it could very well be a situation of gross violations of human rights that might lead you to that particular conclusion. It's contextual. It's going to depend on the situation.

[Marc-Yves Bertin]

I'm trying to think why you're asking this question in the way you're asking it. It may be, to my mind, a point of confusion insofar as what you may be asking is, can we target individuals—and that is only individuals—as opposed to targeting a state and then individuals?

The current legal construct is that you identify the state as well as individuals.

[The Chair, Liberal, Bob Nault]

That's right. Then to simplify it even further, the U.S. has brought in the Magnitsky act with the objective of dealing with individuals, not the states and/or with the UN and the Security Council structure we are very familiar with.

The question we're asking is that if we broaden it to individuals, does the legislation allow us to do that now? If not, then obviously there is a need to rethink whether we are going to recommend that or change that as a government. We're trying to get a sense of how we would do that under the present structure.

I'll leave it at that for now, and we'll let some of the other committee members ask some questions. I was just trying to get to the point of.... A little earlier, you made it sound as if, in fact, we do have the legislative structure in place to do it. That certainly has not been the case of anyone who has come to the committee so far.

I'll turn it over to Mr. Allison for the continuation.

[Dean Allison, Conservative, Niagara West, ON]

Thank you, Mr. Chair.

As a matter of fact, I was going to continue along this line anyway. You asked half my question, so I'll simply keep going from there.

What is it that we could do? Do we need to try to broaden it out, if that were the case, because it would seem, instead of.... The recommendation isn't a whole new piece of legislation that stands alone and we have to fit in somewhere; it's that we broaden the recommendations under SEMA. My question would be, is there a way, then, that instead of looking at the countries or the gross...we could look at something from an individual point of view? Would that make some sense? SEMA, it would seem, would be the most logical place for it to stand, if that were the case.

[Marc-Yves Bertin]

You're basically asking us for advice as to how we should amend the act, and I don't know that we're in a position to do that. Given our roles as public servants, we're here to explain the facts as they exist, in terms of what they currently are.

As I mentioned a moment ago, individuals are listed under the current SEMA. That is done only once the country that is deemed to be an offending state, if I can put it that way, has been identified, as well, under the act. That's what our current statutes enable us to do.

Has that been used in the context of human rights violations? Absolutely. I mentioned three.

[Dean Allison, Conservative, Niagara West, ON]

One of the other things that was said in testimony is that maybe we should look at that from a global perspective, not just targeting certain countries, as we might do. I guess what I'm hearing you say is that although it does provide the opportunity, maybe it's sufficiently vague and it's hard to do at this point in time. Maybe one suggestion is to look at a way to make it more definitive. Would that be helpful, then, if we were to make some recommendations in terms of trying to be more definitive under SEMA?

[Marc-Yves Bertin]

Perhaps I'll make an observation on what has gone on south of the border. Obviously, you're talking about a Magnitsky act, which they have in the United States. What's interesting in its application is that it has been met with retaliation that you might characterize as being of a surprising nature. The Russians went after, of all things, a class of individuals in the United States, parents trying to adopt young children. They basically retaliated in what I would call a delinked and surprising manner. There are implications to that.

The other observation I would make is that there are statutes in play in the U.S. Congress to modify the Magnitsky act. Without characterizing what they feel to be their experience with that statute, clearly there's action being taken south of the border to evolve that statute. Where that ends up remains to be seen.

[Dean Allison, Conservative, Niagara West, ON]

One of the things we did hear was that we should at least make it global in nature, versus trying to target specific countries that may have that issue.

I have one last question. You indicated and we understand there could be RCMP or other charges. We've seen that there's been only one successful charge under SEMA since 1992. In terms of how to enforce any of these things—we're also looking for recommendations—it always seems that.... I understand silos, and that certain departments have certain responsibilities. One of the things that was said to us is that this may not have any effect, because people aren't really going to put money in Canada, etc. Nothing's happened; there have been no charges.

There was article written by Mr. Leblanc about the fact that, with some investigation going on.... Does this go back to resources again, in terms of looking at how we can find out if people are abusing, or not doing what they're supposed to do if we don't tie in resources? If that's one of the recommendations as well, maybe it's something we also need to look at. It seems that when we introduce legislation it's for a moment in time, and then we don't go back to it again unless it's relevant. We seem to forget about it.

My question to you is whether the resource piece—and it was talked about before—is also one of the missing elements in how we can try to make some of these sanctions more effective, or have them stick or have meaning.

[Marc-Yves Bertin]

You mentioned that other departments and agencies have key roles to play on the enforcement side, the RCMP, CBSA, and so forth. I don't know that we're in the best place to comment or that it would be appropriate for us to comment in terms of their resourcing levels. The expenditure management system, being what it is in Canada, involves a number of players. That said, we obviously have faith in our colleagues in these other organizations to prioritize resources as appropriate to meet the priorities and the challenges this country faces.

[The Chair, Liberal, Bob Nault]

Thank you very much, Mr. Allison.

We'll go to Mr. Fragiskatos, please.

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

Thank you very much, Mr. Chair.

Ms. LeClaire, you said something earlier that I found quite striking. You were talking about the states. You said that whenever you do something, you can certainly expect a response. So if state A takes an action towards state B, state B is going to respond. I think of that and I think of regime types. I think of authoritarian states and how they might respond. The way they'll respond will be dictated by the nature of the regime, the nature of the political culture in that regime, the nature of the leadership.

This committee has heard testimony from a number of experts. Last week I mentioned Kim Richard Nossal, who's one of the foremost experts in Canada on sanctions legislation. This week I want to talk about Daniel Drezner, who's based in the United States, at Tufts University. He's a widely recognized expert. He told this committee that when sanctions are imposed, “usually the authoritarian state becomes even more authoritarian in nature in response to any sort of external acts of economic coercion”, “economic coercion” meaning, of course, sanctions.

I read that quote and I think of the proposed Magnitsky act that has been tabled as a private member's bill and has been the subject of much debate. If Canada were to enact a Magnitsky act of the type that's been suggested, doesn't that give carte blanche...or if not carte blanche, doesn't that open up the door to a very difficult response, from a human rights perspective? Doesn't that allow Russia to take actions that would go contrary to very basic democratic principles and lead to human rights abuses getting even worse in a state like Russia?

[Alison LeClaire]

Thank you for that question, which ended in a different place than I was expecting.

When I referred to a response, I was referring to one directed at the country imposing the sanction. If we impose sanctions on Russia, there is a response directed at Canada. Marc-Yves gave the example of what happened in the U.S. with their Magnitsky act, what happened with the—

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

Whether the response is directed at Canada or at Russian citizens, there will be a response either way. I want to ask you and any members of your department who are testifying with knowledge of Russia, if Canada were to enact a Magnitsky act, wouldn't Russia respond, simply because of the nature of the regime, in a way that goes contrary to what we would hope for? Wouldn't the human rights situation get even worse?

[Marc-Yves Bertin]

Let me field this one, perhaps.

We're well aware, as you are, that there is legislation moving through Parliament that mirrors a lot of the attributes of the U.S. Magnitsky act. The government has yet to pronounce itself publicly on statutes such as those. I'm thinking in particular of Bill S-226, where the government continues to consider its position. It would be perhaps prejudicial for us to comment and speculate in a context of this nature.

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

Okay. I'm just trying to take advantage of your expertise. I think if Canada were to put in place a Magnitsky act, based on the testimony we've heard from a number of academics, namely Kim Nossal, Canada's leading expert, and Mr. Drezner, one of the leading experts in the United States, if not the leading expert when it comes to sanctions, that those who are concerned about human rights violations in Russia would be even more concerned because Russia would respond by violating human rights even further as a retaliatory measure to the international community—in this case, Canada. At least that's plausible. That's what the evidence would suggest.

I have another question here. The targeted sanctions consortium has found that sanctions achieve their stated goal less than 30% of the time. With that in mind, I think it's fair to say, at least from my perspective, that sanctions are at best a tool, one tool in the tool kit, so to speak. What other tools do we have to address activities of concern, human rights violations or other issues of concern, the development of ballistic missile technology, or to encourage even changes in behaviour, having a state withdraw from a particular area that it shouldn't have been in, in the first place? I think you know what I'm talking about there.

Speak to that, please, because while sanctions are an important mechanism to enact, I think there is a great deal of faith placed in their ability to suddenly, with a magic wand, change a situation. Sanctions are not magic wands, as this committee has heard.

[Hugh Adsett]

Perhaps that's a question on which several colleagues would wish to share, but certainly there are a number of different tools available to a state to express its displeasure. They include the usual diplomatic tools. I think the Iran resolution was mentioned today, for example, the resolution that Canada has led at the United Nations for a number of years to condemn the human rights situation in Iran. They can include Security Council resolutions, if you can get consensus at least amongst the permanent members of the council.

I will turn to my colleagues to add to that list as well.

[Mark Glauser]

I have just a couple of other quick points. One of the things we haven't touched on today is the import-export control system in place, which the Minister of Foreign Affairs obviously has authority over. There are a variety of other international fora, for lack of a better term, where there are conversations among like-minded states about proliferation-related activities—the missile technology control regime and the Australia group, among others—all of which are designed for like-minded states to get together to look at the problems they see in the world and to identify ways in which they can help reduce those problems through things such as coordination on how we deal with exports of sensitive goods or other forms of diplomatic pressure, which can be placed to address the international peace and security issues we are looking at.

There are constant conversations about how to improve those processes to achieve better ends, but there's a lot of time spent on those processes as well.

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

I have one last question, and it actually picks up on a point the chair originally raised.

Can you tell the committee what measures are in place to deal with—take a specific situation—the abuse, torment, even murder of a human rights and democracy advocate? If that happens, what measures are in place for Canada to respond? How can Canada respond to that? For example, if the abuser, and ultimately the murderer, wishes to come to Canada, what can Canada do? If that abuser and murderer has assets in Canada, what can Canada do? Tell the committee. Surely there is existing legislation in place that allows us to address those concerns.

[Hugh Adsett]

I'm going to start at the very beginning with the question of the person coming to Canada.

I think one of the most immediate tools is the Immigration and Refugee Protection Act, that is, the ability to prevent individuals from coming to Canada. Again, it's another department that would need to speak in detail to this, but there are provisions in the act to prevent people from coming to Canada, to render them inadmissible because of violations of “human or international rights”. I think that's the language. That's, I think, one of the first aspects of the legislative framework.

Depending on the circumstances, if you were talking about an individual, and it's a situation where the country is already under sanctions under the Special Economic Measures Act.... Again, we've talked about listings. Listings of individuals are possible under the Special Economic Measures Act as long as you've reached that threshold of it being a situation of a grave breach of international peace and security.

For individuals who are responsible for wrongdoing in some manner or another, the usual processes of law are available as long as you can make the necessary connections to Canadian jurisdiction. That would be a question, I think, better put to the Department of Justice. As I said, I know that one of the questions that came from the chair was to get a sense from the Department of Justice of the range of legal instruments that might be available.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Fragiskatos.

Monsieur Kmiec, you're up.