Foreign Affairs Committee on Nov. 21st, 2016

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

Briefly, I would like to add for Mr. Adsett's benefit, that the Canada Border Services Agency is certainly a recourse, but in the case of the Streit Group, for instance, these were weapons produced outside of Canada and sold to South Sudan and Libya and other countries. I presume that Global Affairs Canada has a potential role to play in this regard, since we have a presence abroad and the border agencies and even the RCMP do not.

You will note that I am referring to Global Affairs Canada.

[Hugh Adsett]

Perhaps I could use this as an additional point to make. Again, without speaking about specific cases, when we're talking about United Nations sanctions, for example, there's a role not only for Canada but a role for all member states of the United Nations. When you're talking about complex situations and complex sanctions, there is a role for other partners to play as well.

[The Chair, Liberal, Bob Nault]

Thank you.

We'll go to Mr. Miller, please.

[Marc Miller, Liberal, Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC]

I want to continue on another related notion we're examining as part of the consideration of expanding this legislation with respect to gross human rights violations, but it isn't limited to that. It's limited to the individuals who find themselves on a list, often against their will, and it has to do with due process. It's the elements of due process that we don't necessarily think of.

Obviously, we think of the ability of a person to appear in front of a court and get proper judicial review. I'm sure you would like a lot of these people who come to Canada to stand in front of a court so that you could actually get your hands on them.

One of the things has to do with the judiciousness of imposing these sanctions on individuals in the first place. That is in the nature of reliable evidence gathering, the ability, as my colleagues mentioned, of a company, let's say, doing business somewhere, to access a list that is maybe cohesive, coherent, or up to date, and then challenging it in a court of law.

Hugh, perhaps you're the best person to answer this. What are your thoughts on that process as we look to expanding or at least reviewing the current legislative scheme?

[Hugh Adsett]

I think the due process question is an important one. I would say it has been central to the way we have approached sanctions in our own existing legislation to date. I think you have probably heard from some witnesses who have spoken already about the United Nations process and the role of the UN ombudsperson in the sanctions delisting process in the case of the United Nations Security Council sanctions.

I think we have established means by which individuals who are on the list or on a list under the Special Economic Measures Act, for example, can apply to be removed from the list. They may have grounds for doing so. They may argue, for example, that they don't belong to one of the categories that the list was established for.

Maybe I'll give you an example. In the case of the SEMA regulations for Iran, the category of persons who are listed include persons engaged in “proliferation-sensitive nuclear activities, or to Iran’s activities related to the development of chemical, biological or nuclear weapons”, etc.

Certainly, there is the possibility in Canadian law that individuals who believe they are not properly on the list would apply. If the individuals are not satisfied with the reply they get or the decision of the minister on that application, they can always potentially seek a judicial review as well.

The due process elements are important. In any efforts to establish legislation along these lines, it's very important that it contain those due process elements as well.

[Marc Miller, Liberal, Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC]

I had not realized that Mr. Bertin was here with us.

Mr. Bertin, perhaps you are not the person I should be putting this question to, but I would like to know what measures the countries affected by this law can take against us and how effective they could be. What is the effectiveness of the measures we could take against these countries, especially when this is done unilaterally?

[Marc-Yves Bertin]

If I understood what you said, you are wondering about the negative impact that could result from applying restrictions?

[Marc Miller, Liberal, Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC]

Precisely.

Moreover, what analysis do you do prior to making the decision?

[Marc-Yves Bertin]

Sanctions entail some obvious consequences for the target state, but also for the sending state, the state that's using these sanctions. From the target state perspective, obviously there's loss of commerce. There's adverse effect on civilians, in terms of lost jobs and economic hardship.

But in terms of the implications for Canada, and for any country imposing sanctions, there are foregone business opportunities for our firms. That can have lasting effects, insofar as a target state could implement import substitution measures. This creates restrictions on what Canadians can do in terms of remittances, and we know that remittances are important flows between Canada and other countries, and of course, there's exposure to retaliation by the other country.

With respect to the private sector, obviously the more their economic ties are deep, the greater the potential for lost business and investment. In addition to that, you could say that navigating compliance has a higher implication for them.

As the committee heard from a number of witnesses, there is some evidence out there, in academic journals, of the chilling effects on trade and investment. That's because firms, banks in particular, might take a more cautious approach to compliance. From that perspective, when it comes to using this measure, these are reasons why we look at this as a last resort, that we use it as a complement to a series of other diplomatic measures that would be deployed at the same time.

To the second part of your question, which is how do we balance the issue of the implications for Canada, we'll look at a range of information. As you heard, whether that's open source or classified information, that enables us to balance the foreign policy objectives associated with the use of the sanctions, with the implications for Canadian stakeholders, Canadian businesses, and Canadians more generally.

These include the actions of our allies, of the UN; the scope and severity of the offending state's actions; the impact of other diplomatic engagement actions to persuade a change in behaviour; and the possible impact sanctions would have on Canadian firms and citizens. In doing so, we'll take a look at not only what our people say on the ground and what our allies say, but obviously, also, what other departments would say, and how they might inform our decision-making.

That's a very theoretical, high-level answer. In the end, all of these instances—and I think the open remarks and some of the answers speak to this—depend on who you're targeting and the context within which you're targeting them. Generally speaking, though, we stay at a fairly high level. We tend to not get into the details of how we would do that, because we'd like to preserve the integrity of the details of our approach and very much deal with these issues behind closed doors.

[The Chair, Liberal, Bob Nault]

We'll go now to Mr. Levitt, please.

[Michael Levitt, Liberal, York Centre, ON]

We're seeing in multilateral organizations like the UN a lack of ability to implement sanctions. We can use Russia as a prime example around what's going on in Syria.

Do you feel that given the new realities—and we see it with the ICC as well—of a weakening of some of these institutions, in terms of being able to build consensus and implement things in a kind of global way, Canada needs to shift its sanctions regime? We've heard testimony that the bulk of our sanctions have come in through the UN. Does this point to a need to work maybe more individually with like-minded countries outside of some of the multilaterals?

Does anybody want to maybe take a stab at that?

[Mark Glauser]

Let me make a couple of preliminary points, before handing it over.

Obviously, the sanctions that are passed by the UN Security Council have the agreement of the members of the Security Council, including the permanent members. That happens in a context. Those are then implemented under the UN Act. If the situation under consideration involves one of the UN Security Council's permanent members, obviously we're in a different political context. I think that's where the government has other instruments available to it to take action, and that's where, as Hugh had set out before, SEMA has been used in those kinds of contexts. That's where we look at the suite of tools that have been used to deal with a particular context.

[Marc-Yves Bertin]

Canada, similar to all of our allies, has autonomous sanctions regimes. We work through the UN system, and when, for various reasons, there's a gridlock, there's an inability to pass a sanction through that fora, each of us has instruments to do that. SEMA is the Canadian version.

In all of these cases, we can collectively impose sanctions in response to threats to international peace and security. We do that either in other countries or in Canada through the statutes or through regulations. When I take a look at what other countries have on the books in their practice, the approach is highly congruent with ours. In fact, their practice reinforces a lot of what you've heard in terms of witnesses, including from us and experts from around the world, which is that the harmonized approach to using these sanctions is key. Taking a universal approach is essential because the weak links in the chain create the dilemma of the effectiveness of those sanctions.

Within that context and because of the severity of the measure, absent war, this is putting restrictions on what are very legitimate activities. That's why we collectively, Canada and allies, tend to look at these as last resorts with high thresholds, and generally speaking, judicially reviewable measures as well.

I think Canadian practice is highly congruent with that of our allies.

[Sarah Taylor]

There's North Korea. That's an interesting example of the use of both UN Security Council sanctions and SEMA sanctions because of differing circumstances.

Obviously, as colleagues said, the ideal is a situation, as we have with the various UN Security Council resolutions, where the international community as a whole all comes together in a unified way because of the very deep level of concern around North Korean nuclear tests.

Then we had the situation with the sinking of the Cheonan, where it was more difficult to get universal agreement on the outcome of that study. There was a situation where a number of countries, including Canada, felt that there had been a very grave breach, but we weren't able to get that consolidated view within a UN Security Council setting. In that instance, it was very useful to have SEMA as a way to implement further sanctions.

[Michael Levitt, Liberal, York Centre, ON]

Let's move to Iran for a second.

In your brief you mention the P5+1 and the compliance level that's been attained and the resulting elimination of a number of sanctions.

Minister Dion said that our eyes are wide open to the situation in Iran beyond just the nuclear issue to issues of human rights abuses and things like execution rates, treatment of LBGT, state sponsorship of terror, etc.

Do you feel that within our current sanctions regime we have the tools available to deal with some of those gross human rights abuses? What's your feeling on where we're positioned now in this delicate balance of having a country that to some extent is meeting its requirements as stipulated by the P5+1 but also where, as a country, as a government, we've identified some core concerns as to how they behave in the international arena?

[Mark Glauser]

There are a couple of parts to that question.

First, with respect to the implementation of the JCPOA, obviously the IAEA, headquartered in Vienna, is working very hard on this. The Canadian delegation there is among those keeping a very close watch on what's happening in that context. I addressed some of that in my opening statement. There's a very tight review of the implementation of the JCPOA.

With respect to other reasons why we are keeping a close watch on Iranian activity, there are other vehicles through which the government pursues its policy. With respect to human rights, the committee will no doubt be familiar with the resolution at the UN General Assembly on human rights that Canada led, which passed last week through the committee stage. This is another vehicle that reflects Canadian and the international community's views on the Iranian human rights record. There are other legislative provisions as well that bear on this. IRPA. the Immigration and Refugee Protection Act provides vehicles for admissibility of certain individuals, of certain backgrounds into Canada. Those kinds of things also come into play in this context when you're looking at the suite of tools that the government has available to it to deal with this issue.

[Marc-Yves Bertin]

I might add that it's important to note that SEMA, the current legislation, can allow sanctions in relation to human rights violations. As we've mentioned previously, that's either where one of the organizations or associations of states that we're party to calls upon its membership to take action or where the Governor in Council deems there's a serious breach of international peace and security that has or may result in an international crisis. It's not a theoretical construct. We've done so in the case of Burma, Zimbabwe, and Syria. Canada also imposes UN sanctions to the UN Act, which may include sanctions for violations relating to human rights.

Should consideration be given to amending SEMA to include an explicit human rights justification, a number of considerations would need to be examined, for example, what specific circumstances would warrant a sanction in response to human rights violations, and what the implications of such a mechanism would be if it were to be used, whether that's, from a diplomatic, an operational, legal, or other...including for the public. Human rights is a broad concept.

[Michael Levitt, Liberal, York Centre, ON]

Thank you.

[The Chair, Liberal, Bob Nault]

Thank you very much, Mr. Levitt.

Before we go to Mr. Allison, we may as well get to the question in a formal way.

Does the order in council allow for individual sanctions as it relates to gross human rights violations?

[Marc-Yves Bertin]

As I just mentioned, I think the short answer is that SEMA, as currently structured, does enable sanctions to be taken, when the two tests, if you will, the thresholds, have been met. Under those conditions sanctions can be taken for human rights-related situations. As I mentioned, that existed in the case of Zimbabwe, Burma, and Syria more recently.

[The Chair, Liberal, Bob Nault]

But again, go back to the question. Those are entities. They are states and those are easily defined. They could and should be considered a security...and that would make some sense. But to have an individual sanctioned, from whatever country, based on a human rights violation, would not meet the test of that particular definition under SEMA. Correct?

[Marc-Yves Bertin]

What SEMA currently enables you to do—“you” being the Government of Canada—is to identify states. As mentioned in some of the examples, you can identify individuals under those regulations. There's nothing in the current legal construct precluding you from identifying individuals, whether because of the actions they play as agents of a foreign state or because of their associated nature to some form of violation that the Governor in Council has deemed to meet the tests.

[The Chair, Liberal, Bob Nault]

In the sense of getting to this issue a little more in-depth, what were the human rights violations that brought in the sanctions for Burma?

[Marc-Yves Bertin]

That is a very good question, and I'm looking at Hugh to see whether or not he might....

[Hugh Adsett]

I'll have to look at my notes, Chair. It's a while since they were put in place in Burma, but at the time there would have been a concern that the situation was of such magnitude that it was a grave breach of international peace and security. That would have been the rationale for imposing sanctions.