Thank you for the opportunity to present my recommendations.
I have three immediate ones that have been outlined in numerous reports, including the latest report published by the Senate in May 2023. I note that this current review is limited to Canada’s autonomous sanctions legislation, but a review of the machinery and architecture of all of Canada’s sanctions legislation and procedures—for multilateral situations, autonomous sanctions and the Freezing Assets of Corrupt Foreign Officials Act, which applies to Ukraine and Tunisia—is recommended for the future.
The three priorities are to better coordinate with our legislatively closest allies, the EU and U.K.; to report publicly on measures of effect and effectiveness in a yearly report to Parliament; and to develop Canadian-specific training and proactive guidance.
First, the EU and the U.K. have autonomous legislation similar to Canada's. They do not have extraterritorial reach, as does the U.S., and they sanction for reasons similar Canada's, but there are differences. The EU has matched nine of the 11 SEMA regimes, the Special Economic Measures Act regimes, and has also sanctioned states that Canada has not, such as Bosnia-Herzegovina, but it no longer has sanctions against Sri Lanka and it sanctions China differently from Canada.
Canada recently adopted a 50% ownership rule, but the rule matches the U.S. for 50% or more and not the over 50% rule in the EU and the U.K. The EU and the U.K. provide public reports on sanctioning activity and publish far more information on targets, and the information is more easily searchable than the information in Canada.
While variation among the sanctions regimes is expected, particular attention should be paid to targets listed by some states and not by others. This encourages sanctions-busting shopping, whereby targets seek to export, import or store assets in the non-sanctioning states, delegitimizing western resolve and coordination. A recent study by me, Dr. Tilahun and Ms. Cherpako in 2021 found that only eight individuals and one entity out of over 2,000 listings, or a 0.4% congruence rate, were the same in both Canada and the EU for human rights abusers.
Next, Canada needs to publish and review measures of effect against the target and effectiveness for the sender on a regular and consistent basis. For too long, Canada has sought to improve the efficacy of sanctions by creating more legislation and adding new requirements, such as a mandatory inadmissibility clause, in sanctioning thousands of targets, but the government cannot answer the question: Are its sanctions effective?
Easily attained measures of effect can include import and export changes with the target state; the gender of targets; the type of entity sanctioned, whether state-based or private; what types of goods or services they produce; the number of delisting requests versus success rate or denial rate; and the number and type of retaliatory sanctions against Canadians.
Effectiveness measures include but are not limited to objectives: Are they to protest undemocratic changes to government or decry human rights abuses? What's the purpose? Is it to coerce, constrain, signal or stigmatize? Are the targets elites or state-owned entities?
Another measure is the number of permits sought and issued by Global Affairs Canada to authorize activities otherwise prohibited and requested. By whom are they requested? Categories could include individuals, businesses or NGOs, and the activity.
Finally, what about the number of court proceedings vs. prosecutions or dismissals?
Finally, as part of establishing a specialized sanctions bureau, it is incumbent upon the Government of Canada to ensure that the officials involved in administering Canada’s sanctions receive training on the specifics of Canada’s sanctions regimes and sanctions research generally.
I agree with Lawrence Herman that Canadians and Canadian businesses need proactive written guidance on sanctions application. After all, they are the first enforcers. Training and guidance will improve policy-making and enforcement. A number of academics are ready to assist and provide such curricula in their law, business and public affairs courses.
Thank you.