Evidence of meeting #35 for Foreign Affairs and International Development in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was banks.
A recording is available from Parliament.
Liberal
Liberal
Raj Saini Liberal Kitchener Centre, ON
Good evening, Ms. Prost. Thank you very much for appearing.
I want to ask you about the work you did at the UN as an ombudsperson, because I think judicial review is very important. When you arrived there, one of the public comments you made was that there was no test, or that you made it up as you went along. I want to ask you what test or standard you utilized to determine whether someone should be on a sanctions list in any capacity.
As an Individual
I had many problems when I arrived—actually, the whole time I was there, but that's part of the job.
One of the two particular problems I had was that the Security Council had not been specific about what kind of review it expected from the ombudsperson, so the choice was either to do a post-review, as you would in judicial review classically, where you ask if the original decision to list this person was justified based on the information available at the time the person was listed, or to do more of a de novo consideration of the case now, asking if there is a sufficient basis to maintain this listing now, when the person has asked to be de-listed.
I think I chose wisely, in retrospect, because I might have been unemployed very quickly if I had gone the other way. I chose the present-day test. Basically, I was never asking about the original decision to list; I was asking, based on all the information we had now, whether this person should be on the list or not, today.
There was a real advantage to that, in the sanctions context. I had several cases—which was a bit of a surprise—of individuals who were actually prepared to admit their involvement or their links to al Qaeda, but had changed circumstances. Traditional judicial review would never have allowed me to look at those cases properly, and the approach of taking a de novo look, at the present time, did work. That's now been accepted by the committee. It's in the resolution.
The second issue was—sorry; did you want to...?
Liberal
Raj Saini Liberal Kitchener Centre, ON
No, it's okay. You can finish.
I wanted to ask you about the de novo process, but you go ahead.
As an Individual
Okay.
The second issue, which is the one I find a bit puzzling in the legislation, is if you're going to objectively review listings, you need to know by what standard you are going to look at this person's conduct. That was where the council had given me no indication, other than saying it's not a criminal process. I had to look for a standard, and that's why I looked at a lot of other sanctions regimes and domestic legislation. That's how I chose the standard of sufficient information to provide a reasonable and credible basis for the listing.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Just to follow up on your comment on the de novo assessment, when you're doing a de novo assessment, you may not have information that may be sensitive, that a government utilized to put someone on a sanctions list. The information you have is independent, as you've stated, and it's de novo, so you may not have that sensitive information. I also know that you had certain agreements with other countries to access that sensitive information.
Did you have high-level security to do that? How did that process work?
As an Individual
One big challenge was that there was often, in these cases, confidential information that was justifying a listing, even sometimes presently.
I did two things. One was that because I had worked for the Canadian government for many years, Canada very nicely gave me high-level security clearance, which was then going to give me access to some information already under some of the sharing arrangements that the security clearance would carry. It also gave me credibility for certain states, which was very important. Then what I was able to work out with individual states was to just build up the trust: you share the information with me, and I share it with no one—not my staff, not the committee, not the individual. I can then take it into account in assessing the sufficiency of the listing.
That's what I did, and I managed to get a number of agreements.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Another point I wanted to raise is that during your time at the UN you went from having observational powers to having powers whereby you could make recommendations.
I'm going to lead into another, final question, but can you explain and elaborate on the difference that made in the conduct of your work?
As an Individual
It was huge, and it was very important. It was the first renewal, and the reason it was so important was that if I could only make an observation, then it was up to the committee, and one committee member could simply say, “I don't agree with delisting this person”, and that would end it and would mean all of the work was for nothing.
The resolution change did two things. One was that they gave me a recommendation power. Quite frankly, my “observations” were recommendations; I just called them observations. Secondly and more importantly, they changed the burden and the trigger to provide that if I recommended delisting, the person would come off the list in 60 days unless the whole committee disagreed with me—and that never happened—or unless it went to the council for a vote, and that never happened. That was critical, because it meant it was consensus over term.
Liberal
Raj Saini Liberal Kitchener Centre, ON
I have one final question. We're reviewing SEMA and we're reviewing the sanctions regime. Obviously it's going to be a little bit different, because we're talking about the United Nations as compared with an individual state, but do you believe that the system or regime you created—the ombudsperson regime at the United Nations—could also work well in Canada, maybe with some variations? Do you think this is possible, and do you recommend it?
As an Individual
I'm a very strong believer in the system now. At the beginning I had doubts, but now I think it's a really practical way to deal with the problems that arise in sanctions, particularly with confidential information, and it's very beneficial to the individual because it's swift and it's not costly, since you don't have to have a lawyer. It has lots of advantages over using traditional judicial review.
I've been a strong proponent of it for the European Union, as I know Maya is as well. Yes, I think domestically it could be a very good mechanism, rather than something such as ministerial review, which doesn't have the objectivity.
Liberal
Marc Miller Liberal Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC
Thank you.
Ms. Prost, I want to focus a little more intensively on the standard that you came up with. You raised concerns which we echo concerning the rule of law, due process, whatever you want to call it. As a democratic country we don't have the luxury that some other countries may have of putting people on our list and doing certain things to them that we might want to do, but we can't, because we respect the rule of law.
I may be overstating the case as well, because there is a tendency immediately to jump to a more criminal standard and burden of proof, which may not be necessary in cases.
To back up, what we're examining is the potential holes in SEMA or FACFOA or concurrent criminal legislation with respect to gross violations of human rights and the ability to put someone who may have committed these gross and indecent acts on a list and freeze their assets in Canada, whether they're ill-gotten or not.
Some of the legislative tools that we have exist in Canada already, and they're subject to the standard review, more often than not by the courts. In SEMA that may not be the case; in FACFOA it may not be the case, and you have rightly highlighted that. As well, there is the UN act that is implemented here. The standard of administrative review through administrative action, on the other hand, might be too low a threshold.
I'd like to put this kind of tension in your hands and see what you think is a proper venue for a piece of legislation that would contemplate freezing the assets of someone who, on the balance of probabilities, has in fact committed such acts and whose assets are situated in Canada, and what sort of safeguards would be desirable.
As an Individual
It's an interesting question.
My challenge was that I wanted to use a standard that wasn't attributable to one legal system or another. I had the big challenge of not wanting to take a common law standard or a civil law standard. What I researched were the different standards, and then I tried to draw concepts out of them to make a standard that wasn't specific to either system. That's where I got the idea of sufficient information to provide a basis that's reasonable and credible. Those are some of the components of all the standards.
If I were doing it in Canada, knowing the standards that are applicable in Canada, I'd probably use the search warrant standard of reasonable grounds to believe. Certainly, the criminal standard is not appropriate for sanctions, because you're not employing the kinds of measures that you are criminally.
I agree with you; I don't think the JR standard of reasonableness alone is sufficient. I think it's something in between. I think the search warrant standard is probably pretty good.
Also, I like what I came up with, but as I said, that was very much to mix the two legal systems. I think that's very important.
On the protections side, you just have to provide that remedy and the basics. You have to notify them and you have to give them reasons so they know what the case is against them. That's all pretty straightforward to do in the situations you're talking about. Then you have to give them, if they choose to pursue it, a means of accessing some kind of review—ombudsperson, JR, or whatever it may be. That should be up front in the legislation. It gives it credibility.
Liberal
Marc Miller Liberal Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC
To be clear, the freezing of assets can obviously have a chilling effect on these people, who may be at large, in their ability to perpetrate further actions that are undesirable.
On the other hand, the challenge at a domestic level is the ability of those people who, as foreign nationals, obviously don't have the same charter protections that we have as Canadian citizens, but who may have some form of protection they can use. Trying to build that in from the get-go, I believe, is a challenge. As you mentioned earlier with respect to the legislation that's in place, it's already in the Criminal Code with respect to proceeds of crime, or terrorism. There is obviously a built-in protection.
The other tension that exists has to do with the operational level. What do you present to a bank in terms of evidence or documents to have them freeze an account, or to prevent a security from being transacted?
I don't know if you have any experience with that, but I'd love to hear from you on it.
As an Individual
Yes, we had these challenges when I was heading the mutual assistance section at the Department of Justice. You would have these requests come in with information that was maybe not sufficient to get a freezing order.
Internationally, this is a very well-known practice. The banks are a lot more sensitive, especially these days. Sometimes if you just disclose that information to them, you're going to have a pretty good chance of their freezing the money under the money-laundering requirements if it's money in the bank, even if you don't think you have enough to get the search warrant. I know that sounds a bit tricky, but it's certainly common practice, because the banks are much more sensitive about money laundering today, as we know.
Sometimes methods like that can at least buy you some time, and then you can try to gather more information, if that's what you need. Certainly notifying the banks is useful when you have suspicions. The Swiss do it all the time. That's how they get a lot of things frozen. I think it works.
Liberal
Marc Miller Liberal Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC
Money laundering is actually an important distinction, because what it prevents.... It's not so much the freezing but the effect of freezing, insofar as the bank that is holding the account or the security or whatever it is can't then transfer it out, because it does not have the proper assurances that it is going to the right place or is duly held by the person wanting to transfer it. I think that's an important distinction to make.
That's it for my questions. I will pass on the rest of my time.
Liberal
Michael Levitt Liberal York Centre, ON
We spent a lot of time in this committee discussing the notion of gross human rights violations. I want to reflect on that a little bit.
In your opening remarks, you addressed using the UN and multilaterals as a more effective way of being able to gain effective sanctions with more teeth globally. You also have a background in the International Criminal Court. Can you comment more generally?
We're seeing a diminishing of power in some of those institutions. Lately we've seen a number of countries step away from the ICC, or at least threaten to step away from the ICC. We're seeing problems at the UN, certainly at the Security Council level. Let's take Syria and Russia as illustrative examples.
If there was agreement and we were able to work with like-minded allies through existing multilaterals, that would be an easier and potentially more effective way of not having to deal with it singularly or singularly with like-minded allies, who might have similar legislation.
Can you think ahead or look ahead or maybe gaze into the crystal ball a little? How do you see this happening? Are these complexities, and the withdrawal from some of the multilaterals, likely to impact this moving forward? If so, is it incumbent on countries like Canada, countries that want to be able to oppose things like gross human rights abuses, to be looking to have more informal groupings of countries that share these sorts of values and have their own domestic sanctions regimes?
As an Individual
Just on the general atmosphere, I think the context of whether Canada should take that kind of approach is.... Personally, I was in Rome when the Rome Statute was adopted, creating the International Criminal Court. I remember the great enthusiasm, and we saw ratification in a shockingly short period of time. We've had great highs with the ICC. Now we're going through a patch where there's been some withdrawals, but we look at it as being very long term. It's a permanent institution.
International criminal justice is always going to have its ups and downs. That's the general perspective. I think that's the same with multilateralism in the area of human rights as well: you're going to have people pulling back, people going forward, states changing.
For me, it's all about Canada having the policy in place and having the flexibility to be able to do it when the situation arises. I think it's really good policy to have legislation, sound legislation. Then it becomes a choice of using it when the situations are good, and maybe you can get an alliance in certain circumstances.
I think it's all about having it in place. Then we ride through the bad times and get to the better times, and we can use the legislation in that manner.
Liberal
The Chair Liberal Bob Nault
Colleagues, that wraps up our first hour of witnesses.
On behalf of the committee, I want to thank Ms. Prost for taking time to give us her wisdom as it relates to her background and to some of the challenges that she's had at the Security Council.
Ms. Prost, if there is anything else that you would like the committee to be aware of, please feel free to correspond with us through the clerk, and we will certainly have a look at it.
One issue in particular that you did speak to that we didn't have a chance to talk about is the FACFOA part of our work. It is intended to be a review based on a piece of legislation that's been here for roughly five years, and after five years had a review clause in it.
One of the questions I've been asking whenever I get a chance is whether this piece of legislation is worth keeping on the books. Nobody seems to think that highly of it, at least from a witness point of view. You yourself didn't seem to think it was all that necessary. I'd be very interested in that, because one of the things we will recommend to the government, through the House, is whether we renew it, whether we put another review clause in it, or whether we just suggest that it should be removed off the books if it's not of any relevance to the government and the process of sanctions of some kind.
Those are the questions we have to ask ourselves when we report back to the House, so I'd be very interested in your views. I know we don't have enough time today, but I'm sure that you have a strong view of that as well.
On behalf of the committee, thank you very much for appearing this afternoon.
