Foreign Affairs Committee on Sept. 25th, 2023

[Randy Hoback, Conservative, Prince Albert, SK]

I'm just curious, Mr. Chair. You're going to run into a deadline here, with the break week the week after, in getting in a proper submission for travel. When do you need to have that submission in place?

[The Chair, Liberal, Ali Ehsassi]

The submission is not due until late October. November 10 is the deadline. We will have ample opportunity to discuss that on Wednesday as well.

With all the housekeeping issues out of the way, it is now my great privilege to welcome before our committee two very distinguished witnesses.

First, we have Mr. Lawrence Herman here virtually. He is counsel at Herman & Associates and is likely well known to the members of this committee. Welcome, Mr. Herman.

We also have Ms. Katpana Nagendra, who is here in person on behalf of the Tamil Rights Group.

You will each be provided five minutes for your opening remarks, after which we will open it up to questions from the members. We usually go first to the witness who is present, so we will begin with Ms. Nagendra.

The floor is yours, Ms. Nagendra. You have five minutes.

[Katpana Nagendra, General Secretary, Tamil Rights Group]

Thank you.

Mr. Chair and honourable members of the committee, thank you for the opportunity to testify as part of a panel of witnesses in this study of Canada's sanctions regime.

Tamil Rights Group is a not-for-profit human rights organization acting globally to support Eelam Tamils. We relentlessly pursue means to uphold human rights through global diplomacy, together with legal avenues under international law and human rights principles. In November 2021, TRG submitted a major communication under article 15 of the Rome Statute to the International Criminal Court requesting a preliminary examination into crimes against humanity committed again Eelam Tamils within territories of states parties to the ICC.

Canada recently imposed sanctions related to Sri Lanka under the Special Economic Measures Act “in response to the gross and systematic violations of human rights occurring in the country.” Sanctioned under SEMA were four Sri Lankan state officials who were responsible for gross human rights violations that occurred from 1983 to 2009 and afterwards. This was a great step in exposing the atrocity crimes, including genocide, that Tamils have been facing at least since 1948, including the anti-Tamil pogrom of 1983 and, most recently, the 2009 Mullivaikaal massacre. Numerous Tamils, including women, children and surrendered and unarmed militants, were brutally murdered in the massacre. Death toll estimates range anywhere from 40,000 to 150,000. I am here today not only as a representative of Tamil Rights Group but also as a victim of the 1983 riots, which forced my family to migrate to Canada in 1985.

Today I would like to highlight TRG's view on Canada's sanctions regime and provide recommendations on how Canada can further strengthen the current regime. These recommendations are made in consultation with our legal advisers David Matas and Sarah Teich.

Our first recommendation centres around greater transparency and more involvement from civil society and NGOs. We feel that there should be a clear and formalized pathway for NGOs to communicate requests to implement sanctions. NGOs can also access a wide variety of evidence that can help outline chain of command and identify perpetrators of gross human rights violations. Global Affairs should be working more closely with our group and others in the identification of evidence and perpetrators to be sanctioned.

Second, more needs to be done to support justice efforts of Tamils, both in the form of additional sanctions and additional accountability efforts through various international justice mechanisms. This need is evident from realities on the ground. Sri Lankan officials continue to arbitrarily detain individuals under the draconian Prevention of Terrorism Act. There is a continued military presence in the north and east of Sri Lanka. Individuals are prevented from participating in peaceful demonstrations and acts of memorialization. Most recently, in the wake of alarming discoveries of multiple mass graves, the Sri Lankan government refuses to allow independent and international investigations and is wilfully destroying evidence.

These continued abuses highlight the need to expand the current sanctions. The vast majority of Sri Lankan officials with responsibility for gross human rights violations are still not held to account. Pervasive impunity encourages continued abuses. To combat this, sanctions must be extended to numerous additional personnel with responsibility for human rights violations.

Any assets held by sanctioned individuals in Canada should be repurposed to compensate victims. Canada should also engage multilaterally to press for sanctions to be implemented in further jurisdictions. Canada should be investigating how it may be inadvertently undermining its own sanctions regime by still providing funds to the Sri Lankan military through agencies like the IMF and World Bank.

Further, targeted sanctions on their own are not enough. The utilization of the Magnitsky act or SEMA is one tool among many that, when used in concert, may provide meaningful measures of justice and accountability.

The utilization of international justice mechanisms is important. Sri Lanka and Canada are both state parties to numerous treaties, including the genocide convention and the Convention against Torture, which enable the International Court of Justice to settle disputes. The International Criminal Court may open a preliminary examination into crimes against humanity committed against Tamils on the territories of state parties. Canada should work to support these and other initiatives.

We look forward to building on these engagements with this committee. We would like to emphasize that the sanctions regime should be the first step in holding individuals accountable for gross violations. Canada needs to explore and implement additional measures, as this was also the recommendation of the United Nations high commissioner's comprehensive report in 2022, which cited TRG’s ICC submission.

On behalf of Tamil Rights Group, thank you. I look forward to your questions.

[The Chair, Liberal, Ali Ehsassi]

Thank you very much, Ms. Nagendra.

We will now go to Mr. Herman.

Mr. Herman, you have five minutes for your opening remarks. Please proceed.

[Lawrence Herman, Counsel, Herman & Associates, Cassidy Levy Kent, As an Individual]

Thank you very much, Mr. Chair.

I'm very pleased to be with you today to comment on the study you are conducting.

First of all, Mr. Chairman, I want to say that it's a pleasure to be appearing before you. Members may not know this, but before Chairman Ehsassi entered the world of politics, he was a well-known trade lawyer himself. He and I had a lot to do in the old days, when we were dealing with various trade law matters, so it's a double pleasure for me to be appearing today.

I'm going to address one issue. We can discuss it further during the question period. My understanding is that the committee is looking at the government's implementation of the 2017 recommendations by this committee regarding Canada's sanctions regime. The standing order talks about the committee reviewing the government's implementation of the recommendations in the 2017 report.

There's one recommendation that I want to address, because I don't think the government has done anything in implementing that recommendation. That recommendation in the 2017 report, recommendation 4, states that the government “should provide comprehensive, publically available, written guidance to the public and private sectors regarding the interpretation of sanctions regulations in order to maximize compliance”.

If you stand back and think about sanctions, they have emerged, in the last number of years, as a major element in our international relations, affecting business relations and commercial transactions in a major way. The private sector, the business community, is in need of greater transparency and greater guidance from the government itself.

In the comments that I've provided to the committee—I believe they've been translated and circulated—I've made a number of recommendations. Those are, I might say, very close to the recommendations I made to the Senate committee when it was looking at this very issue earlier in the year. I set out a number of points that the government could address in making the sanctions regime more transparent and more understandable and in providing some necessary guidance to the business community, who are often dealing with this very tricky and increasingly complex area of sanctions. I won't read them, because they're before the committee, but there is a need for a follow-up to the 2017 report. The same recommendations were made in the Senate committee report in May of this year.

As far as I can tell through my own research, nothing has been done to improve or enhance guidance and transparency on how the government implements the sanctions regime. That includes sanctions of the Magnitsky act as well as the United Nations Act, and of course the Special Economic Measures Act, which is the principal vehicle for Canada's sanctions regime.

Let me leave it at that. We can come back during the questions from committee members.

I would also like to say that I'm prepared to answer questions about the recommendations I made in my brief, which has already been submitted to the committee.

Thank you.

[The Chair, Liberal, Ali Ehsassi]

Thank you very much, Mr. Herman.

We will now go to questions from the members. Each member will be provided five minutes in this round.

Mr. Chong, you have five minutes.

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

Thank you, Mr. Chair.

I'd like to direct my questions to Mr. Herman.

Mr. Herman, it's nice to finally meet you, albeit virtually and not in person. I have your brief in front of me.

I'd like to focus on what you talked about, which is enforcement. We can enact all the sanctions we want, but if they're not being enforced, they are of little effect. As you pointed out, the 2017 report of this committee provided a recommendation to the government.

When I look at the Canada Revenue Agency, they have a whole directorate set up for tax rulings and technical interpretations that you can access in order to get complex questions answered that will help guide your tax planning, whether it's for individuals or corporations or trusts. I think something like that needs to be set up within Global Affairs Canada to do exactly the same thing. Do you agree?

[Lawrence Herman]

I certainly do agree. I think to some extent it's a question of resources, but within the existing resources in the department, much more could be done to do the same kinds of things that, as you mentioned, Mr. Chong, are done by the CRA.

I should also say that the Canada Border Services Agency, in terms of enforcing customs laws and regulations, provides detailed guidance. They don't provide legal interpretations, because the government doesn't provide legal advice, and shouldn't.

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

Right.

[Lawrence Herman]

Certainly, Global Affairs could do much more to approximate the same sorts of things done by the Canada Border Services Agency or Finance Canada in terms of some policy guidance. I have to emphasize that these are matters of Canada's interests in international business. If the business community has problems in finding its way through these very tricky sanctions issues, it behooves the government to provide some policy guidance, as the U.S. administration, the British administration and the Australian government do. They provide the kind of guidance I'm talking about, which, regrettably, Canada does not.

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

You mentioned that the Canada Border Services Agency is closely related to sanctions or our obligations under domestic and international law when it comes to preventing the importation of goods that are produced using forced labour. I'm wondering if you, being a trade expert, could comment on why CBSA, the Canada Border Services Agency, has been unable to interdict and seize and block shipments that are produced using Uyghur forced labour.

As you know, article 23.6 of CUSMA, which came into force in the summer of 2020, bans under Canadian law the importation of those goods, but to date only one shipment has been seized, and it was later released to go into Canada. The Department of U.S. Customs and Border Protection has interdicted and seized and blocked some 2,500 shipments since the USMCA came into force in that country. Why are we unable to match their enforcement levels?

[Lawrence Herman]

You know, Mr. Chong, ultimately it comes down to money and resources. I think the CBSA does a very good job within their existing resources of trying to look at, examine, interdict and capture goods coming into the country, but hundreds of thousands of containers land in Vancouver. It is very difficult, even physically very difficult, for the Canada Border Services Agency to check all those and to look at all the documentation related to those importations.

Look, it's a question of resources. What do we want to do? How much is the government prepared to allocate to ensure that we can enforce those kinds of sanctions? I agree with you that it is somewhat embarrassing to see how aggressively the United States—they're the most aggressive when it comes to border matters—manages to enforce sanctions and to see how rather tepid our apparent enforcement is.

I think it's a question of resources.

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

Thank you, Mr. Chair.

[The Chair, Liberal, Ali Ehsassi]

Thank you, Mr. Chong.

Mr. Zuberi, you have five minutes.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Thank you, Mr. Chair.

Welcome to all the new committee members.

I'd like to thank the witnesses for being here today and for taking the time to do so.

I'd like to reset what we're talking about with respect to sanctions regimes. It's been a long time, a whole summer, since we actually discussed this issue. I'm happy we're coming to a conclusion with respect to this study.

When it comes to SEMA, it is a sanctions regime that applies to individuals, entities and states. It includes an asset freeze. Imports and exports are also implicated. They can be seized and stopped. Also, Magnitsky is essentially a kind of layer on top of that. It applies to individuals who have committed gross and serious human rights abuses. It is basically SEMA but with a specific application through a human rights lens to really target individuals.

That was just to reset the room and frame what we're talking about with respect to the study.

I'd like to focus my questions to your organization. I'm happy that we as a government have actually imposed four important sanctions on prominent individuals who were involved in the Tamil genocide, including two previous leaders of Sri Lanka. That was a very important moment for Canada but also for justice, human rights, dignity and respect for the Tamil people.

What are your thoughts on focusing, in addition to sanctions, on moving beyond that? Some organizations, such as the People for Equality and Relief in Lanka, or PEARL, have said that beyond or in addition to sanctions, we should move to supporting victim-centric international justice mechanisms.

Do you have any thoughts on that?

[Katpana Nagendra]

We share that same thought as well. As I mentioned in my remarks, sanctions are only the beginning in that process for victims and for justice and accountability. I believe it is important that the sanctions help strengthen these international justice mechanisms for victims to receive justice and accountability.

When the Tamil Rights Group is filing a case under universal jurisdiction, and the particular individual has already been sanctioned in Canada in regard to the Trincomalee 11 murders, it really helps us in our case to say that Canada has already sanctioned this individual and we'd like to bring him to a criminal proceeding under universal jurisdiction in another case. This is why we feel that sanctions go hand in hand with international justice mechanisms.

Yes, we can't have everybody on that sanctions list. It's not a reasonable request. I understand that. But there are other individuals, significant individuals, who should be on that list. That's the role that NGOs and civil society play, to help identify who those individuals are.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

We've heard at this committee already on this study that civil society organizations play an important role in terms of helping us as a government and as a country identify potential names to be sanctioned. Your point echoes what we've already heard in testimony thus far.

You touched on a crime in your testimony just now. Can you elaborate upon that a bit more?

[Katpana Nagendra]

Was that in regard to the individual?

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

I forget the term you used. You talked about a particular crime a moment ago with respect to the Tamil people.

[Katpana Nagendra]

There are four people currently sanctioned under SEMA. One of the individuals was an army general who was involved in the murder of 11 individuals in a town called Trincomalee. That's what I was referring to in that particular situation.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Thank you.

I'd like to touch on field research. Can you shed any light on what has been shown thus far on the crimes toward the Tamil people? What has the field research shown thus far from all the information you have?

[Katpana Nagendra]

Our field research and our connections with civil society on the ground in Sri Lanka have shown that since the sanctions were placed in January, the culture of impunity has not changed in Sri Lanka. As I mentioned, as recently as last week there was a memorialization event of an individual who died in a hunger strike 36 years ago. That memorial event was attacked with rocks. The actual member of Parliament in Sri Lanka was also attacked. The police and army officials were just standing around watching. There's continuous land grabbing that's happening. Traditional Tamil homeland and Hindu temples are being erased with Buddhist temples.

This is a structural genocide that's continuing to occur. It hasn't helped the situation, and it's continuing to grow. There is concern from civil society on the ground that this could continue to escalate further.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

That's a very important point. I would just like to—

[The Chair, Liberal, Ali Ehsassi]

Thank you, Mr. Zuberi. You're considerably over time—40 seconds.

We now go to Mr. Bergeron.

Mr. Bergeron, you have five minutes.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair.

Mr. Herman, I would like to pick up on the questions put to you by my colleague, Michael Chong.

One of the difficulties we've had so far with sanctions against Ukraine and Belarus is that it's hard for us to get a clear picture of what has been sanctioned, what assets have been frozen and what can be seized. We don't even know if the federal government itself has a clear and accurate understanding. What's clear is that the federal government still doesn't know how to go about seizing assets in a way that would contribute to the reconstruction of Ukraine. It looks like a total mess.

I think a big part of the problem is that the federal government is literally delegating its responsibility to enforce sanctions to the banking sector and private companies. However, what we learned from the 2017 study and from what you presented to the Senate committee is that companies don't know exactly what they're supposed to do. When they ask Global Affairs Canada, they don't get answers.

In your opinion, does this situation exacerbate uncertainty around the effectiveness of Canadian sanctions?

Why is Global Affairs Canada stubbornly refusing to provide instructions and answer questions when we know that, on the one hand, this seems to have an impact on the effectiveness of the sanctions regime and, on the other hand, as you pointed out in your brief to the Senate committee, many of Canada's allies, including the United States, European Union countries, Australia and the United Kingdom, are providing these kinds of instructions?