Foreign Affairs Committee on March 30th, 2023

[The Chair, Liberal, Ali Ehsassi]

Welcome back, everyone. I call the meeting back to order.

We will now resume our consideration of Bill C-281, as was agreed to by the members. This panel we will hear from until 1:15.

We have three great panellists with us here today. First, we have Mr. Earl Turcotte, who is appearing as an individual. Second, we have Mr. William Browder, who is the founder, chief executive officer and head of the Global Magnitsky Justice Campaign. He is here on behalf of Hermitage Capital Management. Last but certainly not least, we have Ms. Farida Deif, who's here from Human Rights Watch Canada.

We're very much looking forward to your testimony.

Please only speak when you're recognized by the chair.

We will go to Mr. Turcotte first for his opening remarks of five minutes.

[Earl Turcotte, As an Individual]

Thank you, Mr. Chair.

Mr. Chair, ladies and gentlemen, I'll restrict my comments to the only area of Bill C-281 on which I am competent to speak, and that is regarding cluster munitions.

First I'd like to congratulate Mr. Lawrence and the parliamentary colleagues who worked with him to develop these proposed amendments. Certainly with respect to cluster munitions, what these amendments would do is to make explicit in Canada's law what some would maintain is implicit in the prohibition on assistance in the development or use or in any other way advancing of the use of cluster munitions. I will, as you'll see very soon, be recommending that amendments go further than this provision, however.

Very quickly, for those who may not be that familiar with cluster munitions, they were first developed in World War II. They have been used most extensively in the carpet bombing campaigns in southeast Asia and the Vietnam war, and used more recently in Afghanistan, Yemen and Syria and, as I'm sure most of you know, very extensively in Ukraine, mostly by Russia, although there have been reports in a few instances of use by Ukrainian troops.

These are the polar opposite of a precision weapon. They have been described as conventional weapons of mass destruction. They are by design area-wide weapons. When a cluster bomb is dropped, either at ground level or from the air, think of it as a large, hollow casing within which there are typically hundreds of submunitions, extremely deadly submunitions, far deadlier, actually, than land mines on average. One cluster bomb can cover an area roughly the size of three football fields. Russia today is using many of them, multiple-launch rocket systems that can launch 12 rocket rounds in very quick succession. Essentially they are weapons that saturate a given area. They make no distinction, of course, between combatants and non-combatants, especially when deliberately used in civilian areas, as appears to be the case in Ukraine.

According to the International Committee of the Red Cross and civil society experts, roughly 97% of all known victims worldwide have been civilians, 66% of whom have been children, who are often drawn to the bright colours of the submunitions. Many maintain that they've been designed that way quite intentionally.

It was no mistake, then, that the international community in the mid-2000s decided that cluster munitions had to be banned as most of the world had already banned anti-personnel land mines, an initiative led by Canada in the late 1990s, and had also banned chemical and biological weapons, and blinding laser weapons among others.

I was a public servant for 29 years, and I had the honour of leading the Canadian delegation throughout the 15-month negotiations of the Convention on Cluster Munitions. Within that negotiation, the most contentious issue related to interoperability with non-party states; that is to say, our capacity, in our case as a member of NATO, to continue to work effectively alongside countries like the United States that chose not to participate in negotiations. At least 85% of the countries were absolutely opposed to any provision for interoperability in the convention, for fear that this would provide a legal loophole that would, in some respects, contribute to the continued use of cluster munitions.

I, as head of delegation, and 21 NATO colleague countries and a few non-NATO countries, insisted that we had to have within the convention itself provision for interoperability, while making it very clear at the same time that this in no way would allow our troops to advance the use of cluster munitions. In fact, we went further and said we would put right in the article itself the fact that we were legally obligated to make best efforts to discourage the use of cluster munitions by any actor under any circumstances.

That is exactly the way, in my view and the view of 110 other state parties, this article within the convention should be interpreted.

No sooner did we return to Canada in 2008 than colleagues at the Department of National Defence insisted on including in Canada's act exceptions that would apply during combined operations with non-party states that, in my view and in the view of many others, are absolutely contrary to the convention itself. Those exceptions would allow for a Canadian commander of a multinational force to order the use of cluster munitions by non-party states, for Canada to transport them on Canadian carriers and, in many other substantive ways, to aid and abet in the use of cluster munitions.

I would urge this committee to please consider amending section 11 of Canada's act to absolutely remove all these exceptions, which are not consistent with the commitment Canada, as a state party, has made.

Thank you.

[The Chair, Liberal, Ali Ehsassi]

Thank you very much, Mr. Turcotte.

We now go to Mr. Browder.

Mr. Browder, you have five minutes.

[William Browder, Head of the Global Magnitsky Justice Campaign, Author, and Founder and Chief Executive Officer, Hermitage Capital Management Ltd]

Thank you very much for this opportunity to discuss the Magnitsky act in Canada and the ways in which we can amend and improve it.

As many members of the committee know, I was one of the original advocates of the Canadian Magnitsky act. Sergei Magnitsky was my lawyer in Russia. He was murdered for uncovering a massive corruption scheme in 2009. Canada passed the Canadian version of the Magnitsky act in 2017.

We're now in a situation where 35 countries have Magnitsky acts and use them against human rights abusers and kleptocrats around the world. It's been a remarkable, and I would say viral, legislative initiative that has done a huge amount of good and created a counterbalance to dictators and bad actors in the world. It's something that gives the victims some hope for the future. I'm very proud to have been involved in this, but there are things we can do to improve it. That's what I am here to talk about today.

The first thing I want to say is that, as many of you know, Canada rarely uses the Magnitsky act. Canada often uses the Special Economic Measures Act when there are human rights abuses. Of course, it's good that a sanction uses whatever it has to punish human rights abusers, but part of the beauty of the Magnitsky act is that it is multilateral. In other words, other countries have it. Part of the benefit and part of the objective of the Magnitsky act is that we have sanctions imposed on bad actors not just by Canada but by other countries as well.

One of the problems with the Special Economic Measures Act, which is used instead of the Magnitsky act, is that it causes confusion. To the extent that we want to get other countries to act in unison, which is a very important objective, that gets lost by this misnaming of something that is pretty much the same thing. I would argue emphatically that either the Magnitsky act should be used, or, as I understand it, there is some type of proposal for an amendment to the Special Economic Measures Act to call it the Magnitsky act, so that when Canada is sanctioning human rights abusers, everybody knows that you're using the Magnitsky act and other people who have a Magnitsky act are signalled to use it as well.

My first proposal for an amendment is to either rename the Special Economic Measures Act or use the Magnitsky act when it comes to human rights abusers.

This leads me to the second proposal, which is that harmonization between countries is crucial. We now have a situation where Canada might sanction someone and the U.K. wouldn't.

I am very aware of a very specific situation that I am involved in right now. A friend of mine, one of the people who advocated for the Canadian Magnitsky act, is a Russian opposition dissident named Vladimir Kara-Murza. He has been put in Russian prison and is facing 24 years in prison for calling out Putin's war in Ukraine. Canada, very rightly, and as a first country, has sanctioned a number of people involved in his false arrest. Unfortunately, we're still now working on other countries to do the same thing.

To the extent that there can be some type of formal provision in the Canadian Magnitsky act to actively work with other countries to harmonize sanctions, it would have a much greater effect. I can absolutely tell you, since I've been to all the countries, that Canada is not necessarily talking to the U.K. Perhaps they're talking to the U.S., but there should be something formalized in the law to say that there's a responsibility to try to get other countries to do this.

The third thing I would propose is that it's confusing for victims of human rights abuses to approach the government and to know how to share evidence in order to get people sanctioned. There should be a single point of contact. There should be widespread education on how the process works among NGOs and human rights groups and victims groups so that everybody knows how to go about doing this. There's no mystery. You don't need a law firm. You don't need a specialist. Anyone can go online and figure out how to present and propose evidence and know how to do it in the best possible way.

The final thing I would say is that at the moment there is no responsibility for the government to report back to Parliament about what it's done or what it hasn't done with Magnitsky sanctions. It's Parliament's job to oversee the government, and the government often doesn't have any good excuse for why it hasn't gone forward on Magnitsky sanctions. I've been involved in a number of situations where submissions have been made, and it's like going into a black hole. After they make the submissions, nobody knows what's going to happen next.

I believe there should be some type of parliamentary review. There should be some type of responsibility for the government to say, here are all the submissions we have and here are the ones we've acted on, so that there is some type of transparency and some type of accountability of the government to do this.

It's a—

[The Chair, Liberal, Ali Ehsassi]

Mr. Browder, I'm afraid you are considerably over your time limit. Perhaps we'll get back to the other concerns you have during the questions by members. Thank you.

We will now go to Ms. Deif from Human Rights Watch.

You have five minutes for your opening remarks. Once I hold this up, that means you really should be wrapping up, please.

Ms. Deif, the floor is yours for five minutes.

[Farida Deif, Canada Director, Human Rights Watch Canada]

Thank you, Mr. Chair and honourable members of Parliament, for inviting me to appear before this committee.

My name is Farida Deif. I'm the Canada director at Human Rights Watch. Human Rights Watch, as you know, is an independent international human rights organization that monitors human rights abuses in nearly 100 countries, including here in Canada.

I am delighted to have this opportunity to share thoughts on Bill C-281. In the nearly seven years that I've been in this role, I've engaged extensively with Global Affairs Canada colleagues, both in Ottawa and at Canadian missions around the world. I've also worked on a range of policy files with relevant staff in the offices of five different foreign ministers appointed during this period.

While I've heard more times than I can count that a certain human rights crisis or the case of a prisoner detained in violation of international law was “top of mind”, as civil society we're often not privy to much tangible or concrete information in terms of the specific actions taken by the government on their behalf. I certainly welcome the proposed amendment to the Department of Foreign Affairs, Trade and Development Act to include reporting requirements relating to international human rights. With enough concrete detail, these annual reports could be an incredibly useful tool for Canadian civil society and the human rights sector writ large.

These reports could also create a yardstick to measure the implementation of GAC's own “Voices at Risk: Canada's Guidelines on Supporting Human Rights Defenders”. As noted in the guidelines, Canadian government officials should request to attend trials and visit detainees in prison even when the detaining authority is unlikely to approve the request, in order to demonstrate that there is “continued international interest in the case.”

These guidelines further note that attendance by Canadian officials at trials or hearings—“a clear and visible expression of Canada's concern”—can be helpful by “allowing for detailed tracking of legal proceedings, observing whether due process is respected, and ensuring up-to-date information on cases of particular interest”. Seeking to visit a detainee imprisoned in violation of international human rights law can also be a meaningful way of showing support to the individual, assessing their treatment in detention and registering condemnation with the detaining authority.

This is why the current amendment on human rights reporting should include detailed information not only on those prisoners for whom the government is actively advocating for their release but also on any efforts to attend trials and hearings, the number of requests for prison visits made by Canadian missions and authorities and the response of detaining authorities. Of course, in some cases, it would be important to anonymize the names of prisoners to mitigate security risks and possible retaliation.

I'd like to turn now to the bill's proposed amendments to the cluster munitions act. Human Rights Watch has played a leading role in documenting the harm to civilians caused by cluster munitions, including most recently in the Ukraine conflict. Our research and analysis has informed the negotiation and implementation of the Convention on Cluster Munitions.

In 2012, my colleagues in the arms division testified before the Senate foreign affairs and international trade committee on the then Bill S-10, the Prohibiting Cluster Munitions Act. We also submitted written testimony to the House of Commons standing committee highlighting several key provisions that would benefit from revision or clarification, including the need to explicitly prohibit investment in cluster munitions.

As you know, the preamble of the Convention on Cluster Munitions articulates its goal to eliminate cluster munitions and to bring an end to the suffering they cause. The current bill would advance that objective by reducing funding for the production of cluster munitions. It could also help Canada meet its obligations under article 9 to “take all appropriate legal, administrative and other measures to implement this Convention”. Article 1(1)(c) of the convention makes it unlawful for state parties to assist anyone with any activity prohibited by the convention, and investment in cluster munition production is a form of assistance. The funding of entities that develop and produce cluster munitions and their components allows them and encourages them to keep doing so.

The amendment proposed in Bill C-281 thus moves Canada one step closer to ensuring that it implements the convention in accordance with the letter and spirit of the law. In the process, it also provides much-needed clarity to financial and other institutions relating to the prohibition on assistance with production of cluster munitions. The amendment is also in line with measures taken by Canada's allies.

Since 2007, 11 states parties to the convention have enacted legislation that explicitly prohibits investment in these weapons. Nearly 40 states have stated that they regard investments in cluster munitions production as a form of assistance prohibited by the convention. It is also important to note that like-minded governments have worked to close any remaining indirect investment loopholes. For example, government pension funds in Australia, France, Ireland, Luxembourg, New Zealand, Norway and Sweden have either fully or partially withdrawn investments, or banned investments, in cluster munitions producers.

We strongly support these efforts to explicitly prohibit investment in the production of cluster munitions. We also support any efforts, as mentioned by others, to close remaining loopholes in the existing law that will undercut Canada's ability to fulfill the humanitarian potential of the Convention on Cluster Munitions.

Thank you for your attention to these urgent matters and your efforts to advance Canada's leadership on these critical fronts.

[The Chair, Liberal, Ali Ehsassi]

Thank you very much, Ms. Deif.

We'll now go to the members for their questions. For the first round, they will each get three minutes.

For the responses.... If I put this up, please wrap up your remarks within 15 seconds.

We'll first go to Mr. Chong.

You have three minutes, sir.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Last weekend, The New York Times had a headline for an article that said, “Canada is such an attractive place for money laundering that there's even a special name to describe the activity here: 'snow washing'.” One way sanctions are evaded is through the laundering of money, whether it's money for the proceeds of terrorism or money from the proceeds of corruption.

My question is for Ms. Deif and Mr. Browder.

Mr. Browder, you wrote a piece, recently, with Brandon Silver and Irwin Cotler. It listed a number of recommendations, one of which was that Canada's targeted sanctions must be more effectively enforced. You referenced glaring loopholes in Canada's sanctions enforcement.

Could you elaborate on what those glaring loopholes are?

[William Browder]

Should I go first?

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Yes, please. Time is brief. If you could provide a brief answer, we can also hear from Ms. Deif.

[William Browder]

Yes.

Canada, from my perspective, doesn't have an infrastructure in which to prosecute high-level financial crimes. We've seen it with our own eyes in relation to the Magnitsky case. We brought evidence to the RCMP about dirty money from the Magnitsky murder coming to Canada. That information was not acted on properly, in spite of law enforcement agencies in many other countries acting on the same evidence decisively. I think there is a serious lack of capability within the law enforcement agencies.

As far as I'm aware, the amount of money frozen in Canada from these current Russian sanctions is quite small—a lot smaller than the amount of money that is in Canada. I think Canada needs to step up to the plate and get a lot more aggressive in terms of law enforcement and government actions regarding sanctioning individuals.

Thank you.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Go ahead, Ms. Deif.

[Farida Deif]

Thank you.

We don't actively research money-laundering issues in Canada, but we certainly share many of the concerns that were raised by Mr. Browder, earlier, around the lack of transparency and accountability in the current sanctions system in place in Canada, and the challenges we face, as civil society and others, in formulating submissions to relevant officials in order to propose individuals to sanction.

There isn't really a clear system to do that. It remains an outstanding challenge we hope to rectify.

[The Chair, Liberal, Ali Ehsassi]

Thank you.

We'll now go to MP McKay.

You have three minutes.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you, Mr. Chair.

I want to commend Mr. Lawrence for putting this bill forward. Regrettably, there are four subject matters here that deserve to be bills, themselves. It's very difficult to focus. I'm going to focus on the section with respect to foreign officials.

Of course, it's delightful to see Mr. Browder again. I appreciate his relentless efforts.

I think, however, I would be remiss if I didn't give Mr. Browder a minute to give us an update on the health and status of Mr. Vladimir Kara-Murza.

[William Browder]

Thank you, Mr. McKay.

This is really an important issue. Vladimir Kara-Murza, as I mentioned, is facing 24 years in prison for standing up to the Putin regime. As many of you will know, he was poisoned twice, in 2015 and 2017, by the Russian government and nearly died in both cases. He is now in prison. The effects of the poison have plagued him throughout his time, and he's lost the feeling in his feet from the nerve damage that the poison has done.

The situation is so extreme that they suspended the politically motivated show trial they put him on, which is very unusual. It shows how concerned the Russians are to not have him basically perish in the middle of the trial. This has reached a level of what I would say is an extremely urgent situation.

I understand that there is a motion in Parliament to make him an honorary Canadian citizen so that the Canadian government can advocate more effectively on his behalf. I hope that you and others will support that because he's a friend of Canada. He's a friend of this Parliament. He's a person who's very effective in doing all of the things that we're talking about today and making it all happen. He deserves our support.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I couldn't agree with you more. It puts flesh and blood on what we are talking about. We all hope that Vladimir is able to rejoin us.

Thank you, sir, for your relentless advocacy.

I have a dozen questions, and I have no time. I just want to say that it does puzzle me why the government prefers to use the SEMA provisions as opposed to Magnitsky sanctions, so I phoned the contact this morning and asked him why, because he's the one who writes the packages. He didn't know. I think that, if this committee does anything, it'd be useful to sort out why Magnitsky sanctions are not preferred over SEMA sanctions, since the preparation of the package, the presentation to the lawyers, the presentation to the minister, the presentation to the cabinet and the ultimate order in council are all the same.

I don't know if you have any insight into that, Mr. Browder, but it does puzzle me.

[William Browder]

Do I have time to answer this?

[The Chair, Liberal, Ali Ehsassi]

You have 15 seconds, please.

[William Browder]

I think that this is a historical view that was taken by previous governments that didn't want to offend Putin. Putin is very offended by the word “Magnitsky”. In the past, different foreign ministers didn't want to offend Putin when we were in the world of appeasement. We're not in a world of appeasement anymore. Nobody wants to appease Putin. We should always call it Magnitsky both because it's the right thing to do—it's now a verb pretty much around the world—and it also has the added benefit of upsetting Putin every time he hears the word.

[The Chair, Liberal, Ali Ehsassi]

We now move to Ms. Normandin.

You have three minutes.

[Christine Normandin, Bloc, Saint-Jean, QC]

I thank all the witnesses.

Ms. Deif and Mr. Turcotte, I have some questions about cluster munitions.

According to some discussions, extending the application to pecuniary interests would bring a risk of criminalizing investors who are unaware that their investments, often indirect, are being placed in companies making cluster munitions, for example. It was suggested that “knowledge” be added to the wording of the provision, as New Zealand has done.

I would like to hear from both of you on this. Would this be a good way to avoid penalizing people who are not aware of the situation or, on the contrary, is it already covered by the act?

Another possibility would be an addition that would make it possible to circumvent the effect of the act. For example, a person who was unaware of the situation could place the burden on the opposing party to prove that he or she was aware of the situation, thus creating a loophole.

I would like a general comment on this.

[Earl Turcotte]

I was able to watch a videotape of previous discussions this committee had on that very issue. I have to say that I agree completely that intent is germane to the actions that are taken indirectly.

In my view, I am sure my former colleagues at the Department of Justice can provide language in any amendment that would make it very clear that if Canadians, through no fault of their own and through no willful negligence in this case, indirectly invest in cluster munitions, they will not be held accountable, while at the same time holding those institutions and individuals accountable who are very much aware of their actions.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you, Mr. Turcotte.

Ms. Deif, what do you think?

[Farida Deif]

Our position has always been the same from the time we testified around the cluster munitions bill when it was being drafted nine years ago to today. Our belief is that Canada should ensure that there is a clear, categorical prohibition on assistance, foreign stockpiling, transit and investment in cluster munitions.

How that becomes operationalized, how to ensure that individuals who are potentially inadvertently investing...and how those types of issues should be mitigated, I leave up to members of this committee.

Certainly our position is very clear in terms of ensuring that Canada remove any obstacles that are in the way of achieving the cluster munitions convention's goals or that are running counter to the goals of the convention.