Thank you very much.
Good afternoon to everyone. As indicated, I will provide some comments based on my experience as Ombudsperson for the Security Council Al-Qaida Sanctions Committee for five years. I note that while that was an international role, I believe it had a lot of important lessons in terms of sanctions in a national context.
I will comment on both pieces of legislation that were referred to me. I'll start with some brief comments directly on the Freezing Assets of Corrupt Foreign Officials Act before I make some more general comments on the Special Economic Measures Act and the sanctions issue more generally. I do that because in addition to my background in sanctions, I did serve as Canada's head of the international assistance group at the Department of Justice for 10 years, working on mutual legal assistance and extradition, including assistance with asset freezing.
I've been away from Canada for several years, and I have to say that I was, and remain, a bit puzzled by the Freezing Assets of Corrupt Foreign Officials Act. I suppose my puzzlement is with regard to why, in Canada, we would need legislation of this nature when we have such a robust system for the restraint and forfeiture of assets, of proceeds of crime, and where we have a mutual legal assistance regime and a scheme of mutual assistance treaties.
I understand, because I practised in the area for many years, that dealing with the proceeds of crimes committed outside the country and dealing with freezing assets in the context of foreign officials who have corruptly taken assets is very challenging and can be very frustrating, but that's because the legislative scheme that's in place has checks and balances that even out the quest for the restraint and forfeiture of assets with the protection of individual rights. It seems to me, to address the frustrations, it would make more sense to work on amendments within the existing regimes, which have all these protections, rather than through a piece of legislation that, to me, just presents parts of restraint and forfeiture legislation and parts of mutual assistance but does not contain in any way a scheme of protections.
I would specifically note three things that struck me about the legislation: the very surprising absence of any requirement for the request from the foreign state to provide any information, if not evidence, as to the basis for the assertion that the funds were misappropriated or inappropriately obtained; the absence of any details, then, as to what the individual is said to have done in terms of misappropriation or inappropriate obtaining of the assets; and finally, the absence of the ability to challenge on the merits, as opposed to challenging status.
Those were just comments specific to that act. Now I will speak more broadly to the Special Economic Measures Act and the approach to sanctions.
As the first of two caveats, my comments will focus very much on the use of SEMA and the use of sanctions in a targeted fashion when they are directed at individuals, because that is the area where the question of rights arises. It's not in the context of state or sector sanctions, which of course bring into play political issues but not the same question of rights.
Second, I would emphasize that in principle—particularly today, with the very fractured, divided Security Council that is operating in New York—it is very useful and very appropriate for a country like Canada to have a power whereby it has the flexibility, as part of an international organization, collectively by agreement or even individually, to use a sanction power to address threats to international peace and security.
However, there are some very specific lessons I learned from working as the ombudsperson as to how that power can very much be called into question in terms of its credibility and its strength. There are three principles that certainly the Security Council has been criticized for, in terms of its sanction regimes. I think some of them have resonance in relation to this legislation and the current approach.
The first point I would make is that there are very specific purposes and policy reasons that underlie the use of sanctions, particularly in the context of international peace and security. I've looked at some of the previous testimonies. You've heard from some of the leading specialists in the area of sanctions, so I'm sure you've heard it repeated that the three basic aims of sanctions are to prevent, of course, the threat from materializing; to stigmatize the individuals; and perhaps most significantly, to change the conduct at which the sanctions are directed. Those are the policy reasons that sanctions legislation must be designed to address and must be used to address.
Unfortunately, sometimes sanctions are instead used as a replacement or a substitute for criminal investigations or criminal prosecutions, or for asset restraint and confiscation, by virtue of the fact that the restraint lasts for so long. The sanction regimes, quite simply, are not accompanied by the standards, the evidence, or the procedural protections that are central to those criminal and asset restraint processes and that provide a protection for rights.
The second and very related question is that when you're using a sanction power, it needs to be very carefully crafted, and that's particularly the case when you're targeting individuals. You need to be addressing a specific defined threat, using objective criteria that are predefined, in particular, when you're going to target individuals. It's not just about having a threat in place; there must be criteria that define when the individual becomes a part of or responsible for that threat, in whole or in part. You need to be able, then, to measure the individual's conduct against those criteria to a defined standard. That was the whole aim of the ombudsperson position. It was what I had to implement effectively in practice, and it was critically important.
The third point, of course, is that while it is at a much lower standard than in criminal proceedings, there must be very clear procedures that ensure fair process is given to those targeted individuals and entities, those listed. That includes the fundamentals of fair process: notice, although it can be after the freezing or the action is taken or the economic measure is taken; specific reasons that the individual has been listed: an opportunity to address those reasons and to be heard by the decision-maker; and, most importantly, an independent review by a body that can provide an effective remedy.
It's very challenging to try to achieve those principles at the international level, but it should not be in Canada, where there is a fully functioning legal and judicial system.
On applying those principles, I will just give a few brief comments on some of the concerns I see in SEMA and what it reflects in terms of the.... It's also applicable in many ways to the Freezing Assets of Corrupt Foreign Officials Act.
The first of the concerns is with the criteria on which the sanctions could be imposed, which are extremely broad and vague—the references to “grave breach” and “serious international crisis”, and in the other context, these concepts of misappropriation.
If you want to have this kind of broad reach, then at the very least, the orders and regulations underneath the legislation, and specific orders, must explain how the specific situation addresses or falls within the overall threat to international peace and security. I don't see any requirement for that in the legislation, and I don't see the orders doing that or explaining that connection.
Far more gravely, there are simply no criteria set out as to how the individuals then end up on the list. What are the criteria against which their conduct is measured, and, most significantly, what are the specific facts in either piece of legislation as to why that person is listed?
The second concern, and it's very related, is that if this is really sanction legislation with sanctions, aims, and purposes, you need to be demonstrating that in the legislation. I don't think this legislation does that. I put it this way—and it's something I said often when I was dealing with the AQ system—it's very difficult to use sanctions to get people to change their conduct if you don't tell them what the conduct is that you want them to change. I find that to be a glaring issue here.
Finally, on the third issue, the one that I've highlighted, the fair process requirements, I have to give a caveat. I've been out of Canada for many years, and I didn't refresh my administrative law. I suspect there is a judicial review path from a ministerial decision, because there is a ministerial review provided for. If there is not, then this legislation is worse than what I found when I got to New York in 2010 and looked at the al Qaeda regime, because it would have no objective review or effective remedy.
Even if it is available, what is very surprising is that none of the other aspects of fair process—notice, reasons, and things of that nature—are specified in the legislation, Also, you're taking actions and economic measures against individuals in foreign countries. It is appropriate to set out very clearly in the legislation, on the face of it, what the fair process protections are and what course of action that individual can take. I emphasize that a ministerial review is not going to meet the criteria of an objective and independent review as contemplated in fair process.
I'm going to leave it there because I'd much rather address whatever questions you might have. I know you've been working on this for a while and you've heard from many people. Having struggled for five years to protect these principles in an atmosphere not at all conducive to or equipped for fairness, I would simply urge this committee and the government, my government, to ensure a scheme of effective sanctions and sanction policy across both these pieces of legislation that can achieve the important policy aims while still safeguarding individual rights.