Evidence of meeting #72 for Foreign Affairs and International Development in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was countries.
A recording is available from Parliament.
Liberal
Liberal
Rob Oliphant Liberal Don Valley West, ON
It's a happier one.
I have habit of having interns from various missions around the world in Ottawa join me for a day to see how we do as parliamentarians. I just want to introduce to the committee Ines Serghini from the Moroccan embassy, who is with me today watching each of us. We have a wonderful bilateral relationship with Morocco, and we should be on our best behaviour, because she is.
Liberal
The Chair Liberal Ali Ehsassi
Welcome. It's very good to have you here.
Mr. Oliphant, let me thank you for your mentorship as well.
Now we will revert back to—
Conservative
Randy Hoback Conservative Prince Albert, SK
Back to this press conference on Monday, then, are you going to give us a script of what will be said at the press conference beforehand, or a speaker lineup?
Liberal
The Chair Liberal Ali Ehsassi
There is going to be a press release, which is being done by the clerk.
Conservative
Randy Hoback Conservative Prince Albert, SK
Okay, but as far as the press conference goes, what is that going to consist of?
Conservative
Randy Hoback Conservative Prince Albert, SK
What are the requirements that all the members can expect?
Liberal
The Chair Liberal Ali Ehsassi
There's no set script, I assure you, Mr. Hoback, but there can only be 10 people in the room, so I propose that every party put one person forward, or perhaps a maximum of two people. The capacity of that room is for 10 only, no more than 10.
Conservative
Randy Hoback Conservative Prince Albert, SK
Okay, then, do you have a layout of who's going to speak, the speaking order and things like that?
Conservative
Liberal
Conservative
Randy Hoback Conservative Prince Albert, SK
Okay, so are we all going to speak for a minute, two minutes, five minutes or 20 minutes?
Conservative
Randy Hoback Conservative Prince Albert, SK
Okay, so if there's a scrum, who's going to take the questions in the scrum?
Liberal
The Chair Liberal Ali Ehsassi
It will be five minutes per party, and then we'll open it up for 30 minutes of questions by the media.
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
If the last press conference is a precedent, there will be robust and chaotic debate, which is why these things seem to have gone out of fashion, but it is what it is.
Conservative
Liberal
The Chair Liberal Ali Ehsassi
That's not up to us; we're in the hands of the press gallery.
Now we go back to the second hour of our study on the sanctions regime.
My apologies to our two witnesses, who are joining us via Zoom. We're very grateful to have with us Professor Michael Nesbitt from the University of Calgary, as well as Ms. Amanda Strayer, who is a supervising staff attorney with Human Rights First.
Thank you very much for joining us today. You will each be provided five minutes for your opening remarks, after which we will open it up to questions from the members.
Please keep your eyes on the screen. Once you're very close to the time limit with respect to your opening remarks or with respect to the questions that are asked of you from the various members, I will hold up a card, and that means you should be wrapping it up within 10 seconds. Please do pay attention to the monitor.
That having been said, Mr. Nesbitt, you will go first. You have five minutes for your opening remarks. The floor is now yours. Thank you.
Professor Michael Nesbitt Professor of Law, University of Calgary, As an Individual
Thank you so much.
Thank you to everyone here. It's such a pleasure to be here. It's always an honour to be before a standing committee of the House of Commons.
Thank you also to those working behind the scenes to make this happen. I know there's a lot of hard work going on with Zoom and making all these meetings happen. It's greatly appreciated from everyone's end, I'm sure.
I'll start by saying that I'm an academic in the field of criminal and national security law, where I also study autonomous sanctions, but I have had an opportunity to work in the field as a former diplomat for Global Affairs Canada on the legal side and have worked on sanctions on both Iran and Syria. Given my background, the bulk of my commentary today is really going to focus on the relevant sanctions regimes from a practical, legal and, particularly, criminal law enforcement perspective.
With that, let me tell you briefly the story of autonomous sanctions enforcement in Canada. In Canada, good and responsible large private actors like big financial institutions are primarily, indeed almost exclusively, responsible for our autonomous sanctions enforcement, the corollary being that there is little transparency as to how this is taking place. On the government side, enforcement and punishment are almost entirely absent.
How do I know that? How do we know that? We know publicly that we have never charged an individual under the Magnitsky act with a sanctions violation. In now over 30 years since SEMA, the Special Economic Measures Act, was first introduced, by my count we have charged one individual and one company for violations. The charge against the individual fell apart almost before it began. The charge against the company resulted in a plea agreement, which I would suggest exhibited some misunderstanding of the regime as a whole almost across the board.
Under the United Nations Act, the regulations pertaining to Libya and Mr. Gaddafi are now making headlines in The Globe and Mail, of course. We likewise have, by my count, a single prosecution in decades and decades of various country-specific regimes.
Keep in mind that we have had tens of thousands of sanctions on the books under SEMA, the Magnitsky act and the various UN Act regimes. There are hundreds of millions or more in frozen assets. There is criticism from U.S. agencies about a lack of enforcement, and similar criticism from respected international organizations speaking to Canada's failures to stem the tide of money-laundering and sanctions-busting activity.
I'll add to that that every once in a while, what feels to me like every six months or so, we see a Canadian arrested in the U.S. for sanctions evasions, the details of which often appear to indicate that Canada, too, might have enforced it under our laws had we been doing so. Right now, the U.S. seems to be doing more enforcement of sanctions-busting activities happening in our jurisdiction than we are.
This failure to enforce is a rule of law failing. It sends a message to would-be sanctions busters that we are open for business at little expense, and it sends a message to allies like the U.S. that we are not a serious partner on the file.
As a starting point, I'll give you three really practical recommendations for how to begin to remedy our enforcement problem.
First, we need a comprehensive review of the legislative regime pertaining to autonomous sanctions, with domestic law and domestic enforcement as the focus. In the past, this file has been led by Global Affairs with a view to international law. I do not deny an albeit small role for international law to play nowadays, particularly with respect to enforcement, but this is primarily a domestic Canadian law enforcement problem, a domestic criminal or civil law problem, I would suggest, and it should and will play out in domestic courts applying domestic law.
As but one example of a possible legal change we could see here, to my mind, there is no legal reason, domestic or international, that would prevent us from changing SEMA and the Magnitsky act, and perhaps the UN Act, to provide for the power to list known transshippers and the like. To be really clear, we are already able to capture transshippers in our regime, so this would not be a change in terms of enforcement. It would be a change just in terms of whom we're listing. If we do not have the courage to go after known transshippers for targeted countries, that is and must be a political decision but one that should be made consciously.
Second, we need a civil law enforcement sanctions regime with significantly higher fines available to coincide with the freezing and seizing provisions we've seen recently. Under a strict criminal regime, as exists, we will run into what we call in the national security space the “intelligence to evidence dilemma”, if we have not already done so, and I suggest that it is a possible and probable reason for the collapse of our last sanctions case.
Criminal enforcement against companies, as we saw from our one enforcement action against a company in the history of any of these files, is already dealt with through fines, but small ones. A civil regime would allow for greater fines, which would have more of a deterrent effect and provide benefits associated with avoiding some of the troublesome aspects of our criminal disclosure regime and the elevated standard of proof in criminal trials.
Third and finally, I think we need to think differently about how the autonomous sanctions regime file is managed within government. Right now, our reviews of autonomous sanctions seem limited by assuming that GAC, Global Affairs, should continue to be the sole lead on the file and the money should, in general, follow. It is time to question that assumption. CBSA needs money and the opportunity to renovate its work on sanctions. The same is true of the RCMP. CSIS and FINTRAC need heavier involvement and information-sharing powers. The same may be true of CSE and the Treasury Board.
Similarly, it's often overlooked that the Public Prosecution Service of Canada will ultimately prosecute these offences, and yet, bluntly speaking, they have no internal expertise. We have seen no monetary or human resource commitments—
Liberal