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RIDR - Standing Committee

Human Rights

 

Proceedings of the Standing Senate Committee on
Human Rights

Issue No. 8 - Evidence - June 15, 2016


OTTAWA, Wednesday, June 15, 2016

The Standing Senate Committee on Human Rights met this day at 11:31 a.m., in public, to monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations (topic: available economic levers to enhance respect for human rights, including the Export and Import Permits Act); and in camera for the consideration of a draft report on the human rights situation and defections from North Korea.

Senator Jim Munson (Chair) in the chair.

[English]

The Chair: Welcome, again, to the Senate Human Rights Committee. We have been conducting a rather fascinating and intricate study dealing with Canada's international and national human rights obligations as those issues relate to human rights. We're here to review the machinery of government dealing with Canada's human rights obligations.

As the witness will know, the topic has been the available economic levers to enhance respect for human rights, including the Export and Import Permits Act.

Our witness today, from the Foundation for Defense of Democracies, is Sheryl Saperia, Director of Policy (Canada). Welcome to our committee. Just before we begin, the senators will introduce themselves, starting with the deputy chair.

Senator Ataullahjan: Salma Ataullahjan, Ontario.

Senator Martin: Yonah Martin, British Columbia.

Senator Hubley: Elizabeth Hubley, Prince Edward Island.

Senator Ngo: Senator Ngo, from Ontario.

Senator Gagné: Raymonde Gagné, Manitoba.

Senator Omidvar: Ratna Omidvar, Ontario.

The Chair: I am Senator Munson from Ontario.

The floor is yours. Thank you very much for being with us.

Sheryl Saperia, Director of Policy (Canada), Foundation for Defense of Democracies: Thank you, chair and honourable senators, for inviting me here today.

I commend this subcommittee for turning its attention to the promotion of human rights abroad. Multiculturalism, which, according to many national polls, is one of the seminal elements of Canadian pride and identity, is rooted in a respect for all individuals regardless of personal backgrounds. This is precisely what human rights violators are lacking: a respect or even a basic tolerance for those who are different from them. Ahmed Shaheed, the UN's Special Rapporteur on Human Rights in Iran, recommends that every state keep urging that steps be taken to strengthen the promotion and protection of human rights.

At the same time, we must be aware of the hazards of engaging in the discourse of human rights when it comes to foreign states. Authoritarian governments love nothing more than to accuse liberal democratic countries of themselves being the human rights abusers and to threaten retaliatory action.

While I firmly reject equating Saudi human rights abuses against women, children and non-Sunnis with, for instance, modern day Canadians' treatment of indigenous peoples, where recent governments have made genuine efforts to rectify past wrongs, we nonetheless should approach the discussion of human rights with caution.

One of the motivations behind this committee's inquiry may have been the $15 billion LAV trade deal with Saudi Arabia. I join many Canadians in feeling a discomfort in exporting military assets to one of the worst human rights violators, but I feel compelled to highlight the greyness and complexity of international politics. As reprehensible as Saudi Arabia is when it comes to human rights violations, we cannot ignore that it acts as a regional counterweight to an equally atrocious or even worse human rights violator, the Islamic Republic of Iran.

To be clear, I'm not defending Saudi Arabia. But as Iran gets stronger economically due to nuclear sanctions relief, even as it wrongly imprisons Canadians, sponsors terrorism, illegally tests ballistic missiles inscribed with "death to Israel'' messages, financially and militarily props up the Assad regime in Syria, and brutally abuses the rights of various minorities, the West simply cannot abandon Saudi Arabia in that nasty neighbourhood.

I understand that the Export and Import Permits Act, or EIPA, is of particular interest to the committee. While human rights are not expressly mentioned in the act, they are a relevant consideration. Section 7 allows the minister, in deciding whether to issue a permit, to take into account whether the goods or technology are prejudicial to the peace, security or stability in any region or country.

Certainly, severe human rights violations could meet this criterion. And the Export Controls Handbook states that exports from Canada are not to be used to commit human rights violations. If Parliament were to decide to make explicit reference to human rights in the act itself, I have preliminarily identified a few places where this could happen.

A new paragraph in section 3(1), section 7(1.01)(b), in the regulations under the Act and in a very egregious case, section 4, which covers Area Control Lists, could also be impacted by a human rights assessment.

Besides amending the act, we must also ask if the enforcement of existing export restrictions and other sanctions is adequate. In 2014, I wrote an article flagging a report by David Albright, a physicist who founded the Institute for Science and International Security, ISIS, in Washington, D.C. This report, written at the height of Canadian and international sanctions against Iran, noted the widespread suspicion that Iran exploits Canada as a source of sanctioned goods. Albright further asserted that Canada's export control efforts and laws against sanctioned countries such as Iran are rudimentarily enforced at best. The country is ripe for exploitation by illicit procurement networks and agents seeking to take advantage of a lack of knowledge and seriousness by industry concerning these regulations.

In April 2014, Lee Specialties Ltd. of Alberta pled guilty to charges and was fined $90,000 for unlawful exports of dual-use goods to Iran. This was one of only a handful of export compliance cases prosecuted by Canada.

Albright recommended that authorities make examples of companies with fines higher than $90,000 and include significant incarceration in relevant laws as a penalty for these types of crimes. In 2014, Lee Specialties had an estimated annual revenue of nearly $29 million. The comparably low penalty was unlikely to deter other companies from similar wrongdoing.

In EIPA, under section 19, a person who contravenes the act and is guilty of an offence punishable on summary conviction is liable to a fine not exceeding $25,000 or to no more than 12 months in prison. An indictable offence leads to a fine at the discretion of the court or to a term of imprisonment not exceeding ten years.

It would be useful to review the number of prosecutions that have taken place under EIPA and the amounts of fines levied in order to determine whether effective enforcement is taking place.

Setting aside enforcement and getting back to the law itself, I would like to draw your attention to U.S. policy on exports and human rights. In the context of the export administration regulations, which are promulgated under the authority of the Export Administration Act, there is a section on items related to crime control and detection. It begins with these words:

In support of U.S. foreign policy to promote the observance of human rights throughout the world, a license is required to export and reexport crime control and detection equipment, related technology and software . . .

The regulations specifically state that the judicious use of export controls is intended to deter the development of a consistent pattern of human rights abuses, distance the United States from such abuses and avoid contributing to civil disorder in a country or region.

Another facet of the American system to note for this committee, as greater transparency and clearer standards in the Canadian decision-making process may be desirable, is that the Department of State annually compiles country reports on human rights practices for submission to congress. The factual information presented in these reports is a significant element in export licensing recommends made by the Department of State.

I will also note the U.S. International Religious Freedom Act of 1998, which calls on the President to take diplomatic or other appropriate action with respect to any country engaged in systematic, egregious violations of religious freedom accompanied by flagrant denials of the rights to life, liberty or the security of persons. For such countries, IRFA provides that the Department of Commerce must restrict export of items on the Commerce Control List for reasons of crime control and detection and require export licences for items that are being used or intended to be used to carry out particularly severe violations of religious freedom.

Looking beyond the Export and Import Permits Act, Canada has and could have in place other measures to enhance respect for human rights in foreign countries.

Currently, sanctions under the Special Economic Measures Act can be imposed by Canada for two purposes: to implement an international resolution to take economic action against a foreign state, and to respond to a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis. SEMA has already been used to penalize the Governments of Syria, Zimbabwe and Burma for their human rights abuses. Nonetheless, it may be worthwhile to amend SEMA to include severe human rights abuses as explicit additional grounds for sanctions. I realize that the Justice for Victims of Corrupt Foreign Officials Bill, the proposed Sergei Magnitsky law, proposes just such a change in SEMA.

As my colleague, Mark Dubowitz, suggested to you recently, under SEMA Ottawa could impose human rights sanctions on the state organs responsible for institutionalized human rights abuses in a particular country as well as the individuals who work for these state organs. In Iran, for instance, Canada should single out those institutions, such as prisons or military bases, at which abuses like torture and arbitrary detention occur, including Evin Prison, where Canadian Zahra Kazemi was held and tortured and ultimately killed, and where Concordia Professor, Homa Hoodfar, is currently being detained without access to legal or consular services.

Both Canada and the United States should consider legislation targeting corruption in all state sponsors of terrorism. The link between the funds generated from corruption and the sponsorship of terrorism by these regimes is well documented. The Magnitsky law is one mechanism that could be used to target corruption. That legislation authorizes sanctions not only against human rights violators but also against government officials and their associates responsible for or complicit in significant corruption.

Focusing on corruption is important because authoritarian leaders paint civil society groups as foreign agents, pass laws to regulate these groups and cast themselves as defenders of traditional values against a decadent and deviant West. They have a more difficult time, however, using ideological, cultural or nationalist arguments to justify thievery.

Lastly, to the extent that the safety and security of the person is a fundamental human right and is threatened by terrorist violence, the government's ability to designate states as sponsors of terror, and groups or individuals as listed entities, is also relevant. By designating a state as a sponsor of terror, its immunity in a Canadian court is lifted, and private citizens can use civil suits as economic levers to encourage a change in the state's behaviour. Once an entity is listed under the Criminal Code, Canadians are prohibited from having any financial dealings with them.

Thank you again for the opportunity to appear before you today. I look forward to your questions.

The Chair: Thank you very much for this informative testimony.

We will go to questions with Senator Ataullahjan, Deputy Chair of the Committee,

Senator Ataullahjan: On June 8, a witness before the committee testified that while human rights are an important consideration in the implementation of sanctions, there are often other competing factors or conflicting interests to consider that can be difficult to balance in the decision-making process. He went on to say that circumstances may sometimes force us to make common cause with governments that we might have issues with, especially in respect of their stance on human rights.

To what extent should human rights be a determining factor for Canada in the application of sanctions and where should human rights stand in the hierarchy of competing interests?

Ms. Saperia: That's a very good but difficult question. It depends on which act we're talking about to determine how much considerations of human rights should weigh in any particular assessment. I articulated the difficulty and the competing interest, for instance, with regard to Saudi Arabia. This is not for an instant to forgive their absolutely terrible human rights violations, but to recognize that they actually might need our help in remaining that regional counter-balance to an equally bad human rights violator in the form of Iran.

Again, different pieces of legislation will be more applicable at different times. Human rights abuses — egregious and systematic human rights violations — should play a greater role in the application of SEMA sanctions on various countries. When it comes to the Export and Import Permits Act, there should be quite a bit of flexibility in the hands of government, our government, to determine, even in the case of a human rights violating country, which items are still appropriate to export to them and which ones are not. It's a little bit more sensitive. But SEMA is a really useful piece of legislation to deal with human rights abuses.

I'm very interested in the Magnitsky law and truly look forward to that bill being studied in the House of Commons and the Senate. I saw a recent article, I think it was today, that the house Foreign Affairs Committee is becoming more open to looking at this law, and I welcome that news.

Senator Ataullahjan: My understanding of the $15 billion trade deal with Saudi Arabia is that once we supply them, we don't have a say in how the arms are used or how the LAVs are used. They can use them against their own people and they can use them in Yemen.

I understand that once a contract is done, we really have no say and no control.

Ms. Saperia: There is a certain amount of say. I actually found the testimony of some departmental officials in one of your previous hearings to be quite enlightening in that regard because the end use and the end-user are critical elements of the decision-making process. I believe they highlighted the fact that a contract can be cancelled or suspended if their word is not kept and that certain certificates need to be signed.

I am not in favour of this deal, per se. I feel like I'm walking this very fine line because I carry such a fundamental discomfort about it on the one hand. But again, who is Saudi Arabia fighting in Yemen? In large part it's Iran. All of these examples are different manifestations of a larger conflict playing out there.

No, I don't want to send exports to Saudi Arabia. But at the same time, one of my colleagues recently discovered that U.S. taxpayers are inadvertently funding $1.7 billion to Iran's military. This had to do with a certain payout that just took place, but it was not intended to go to Iran's military. If that is happening, then how can the West leave Saudi Arabia, which is more of an ally, alone in that neighbourhood?

It's all ugly and nasty. And I am not taking sides, I am only highlighting the realpolitik of it all.

Senator Ngo: I want to follow up before I ask my questions.

If what you say is the case, do you think there is enough restriction or transparency in the authorization process to prevent a Canadian company from cooperating with a repressive government known for its human rights violations?

Ms. Saperia: Are you referring specifically to the Export and Import Permits Act?

Senator Ngo: That's right.

Ms. Saperia: We both know that in the EIPA there is no reference to human rights violations. The question is: Does the system contain enough guidance when it comes to human rights violations? I think some would say that the very fact that this deal with Saudi Arabia went through demonstrates that there isn't enough by way of restriction when it comes to human rights considerations.

For your benefit, I identified a number of places where, if Parliament did feel that human rights should be more explicitly referenced, I thought the amendments would go. I mentioned those in my remarks. I can go through them with you or you can have us follow up at any time.

Again, I don't have a problem with including greater reference to human rights considerations, but I also want to ensure that there is flexibility in the decision-making process. Decisions should still be made on a case-by-case basis, but perhaps it should be more deeply codified that human rights considerations must take place.

I do like, in the United States, that they have those annual reports on the human rights in a particular country because I think part of our issue is we don't know what information is being shared with the Minister of Foreign Affairs in these decisions being made. When these reports are public and are contributed to by NGOs, by diplomatic missions, at least we're all working from the same framework. I wonder if Canada could benefit from an annual reporting mechanism that might be similar.

Senator Ngo: If that's the case, then how should the 1986 export control guidelines change so that we can do a better job in assessing the possibility of the misuse of exported goods that are purchased by authoritarian regimes? How do we change it? It's outdated; it's 30 years ago.

Ms. Saperia: Right. You're referring to the cabinet policy.

Senator Ngo: Yes.

Ms. Saperia: Again, I think that, instead of doing it through policy, it could be done through explicit regulations under the act because, of course, the act does provide for the possibility of regulations being created. I think that might be a more useful and more public way of updating the system, and I think that there are provisions within the act itself that could also be amended to explicitly mention human rights.

I would do it less on the cabinet policy side and more within the public realm so that everybody is working on the same page.

Senator Omidvar: I find your report fascinating. I want to draw your attention to the section in your report relating to the U.S. regulations and processes. We, in Canada, as you can imagine, have a certain idea of ourselves — it's maybe outdated — that we are at the forefront of protection. We are a little smug about comparisons with the United States in particular.

I know you are suggesting that we borrow from some of the robustness that's embedded in the U.S. regulations. I want to ask you whether the sale that we have completed with Saudi Arabia of the LAVs would have gone through in the United States, given these current regulations.

Ms. Saperia: That's a really interesting question. I don't know the answer to it. Certainly, the fact that Saudi Arabia would have been listed as a top human rights violator would surely have figured into the decision making, but I'm sure that it did in Canada too.

The government has, at no time, denied the fact that Saudi Arabia has a problem with human rights violations. It proceeded anyway. And so the question is: What factors were taken into account in that decision?

I'm Canadian. I work on Canadian policy. I don't know what the United States would have decided. But, again, given politics, given the ugliness of politics, I wonder if the decision would have been the same.

Senator Omidvar: Well, the United States does export arms to Saudi Arabia, regardless of the —

Ms. Saperia: Exactly. And they are more official allies. With the nuclear deal that was reached with Iran, there were a lot of assurances the U.S. made to Saudi Arabia that "we are not going to abandon you.'' It is possible that the deal would have proceeded, but I can't speak for the U.S. government on this issue obviously. I think it highlights the very real difficulties in making these decisions.

Senator Omidvar: So rules and regulations and annual reports can only go so far.

Ms. Saperia: They can only go so far. It says that they would figure heavily in the decision-making process. Then, there are certain items. For instance, one of the things I made special note of were the items related to crime control and detection. That really has to do with what a government is using against its own people, how a government responds to its criminals, right, and whether they're real criminals or criminals by a very different standard than our own.

So I think that, when it comes to exporting items that have no other application but to repress its citizens, then they would surely be much more restricted, for sure, in the U.S. about what they would be sending, but, when it comes to a regional fight, maybe it's a little bit more complicated.

Senator Martin: Thank you for your presentation.

I was listening to your presentation and the fact that the trade deal with Saudi Arabia is $15 billion in value and the penalty that you refer to in April 2014 to Lee Specialties Ltd. was $90,000, compared to their annual revenue of $29 million. This is quite a contrast.

Ms. Saperia: Correct.

Senator Martin: You do talk about the penalties, but, when we're talking about $15 billion or such large numbers, it seems that, as to the penalties, no matter how high, unless they're really high, which then runs the risk of capturing too much, it is quite a challenge to determine how to balance penalties with flexibility. Can you talk a little bit more about that, please?

Ms. Saperia: Sure, with pleasure.

To be clear, in the Lee Specialties case, they were prosecuted under SEMA, not under the Export and Import Permits Act. Nonetheless, it did have to do with export compliance, so I felt that it was still quite relevant here. And there are still only a handful of these types of export compliance cases.

But, yes, the fine was very low compared to their revenue. Then it becomes just a cost of doing business, that it's more economical to breach Canadian law than to cancel a business deal.

When the math runs that way, again, when it comes to sanctions, we want to make sure that Canadian companies, Canadian private citizens, are buying into the system.

I am not sure what the numbers are with regard to EIPA, but I think that this would be something that perhaps the Library of Parliament could look into. I think it would be a really useful exercise because, if there are only a handful of cases, then we know that it's not necessarily the law that's the problem; it's the enforcement of it.

I believe that, in the last budget, the government actually set aside more money for the enforcement of export and imports, and I think that's really important. Whether it's enough, whether it's doing its job, remains to be seen, but I do think that that's a big issue.

In terms of the $15 billion, again, money talks. I'm worried because, as I'm speaking, I feel like I'm defending this deal, and I don't want to be the person doing that at all. But, for many Canadians, the economy still remains a number one priority issue. Again, that may be one of the factors that the government took into account when making their decision, rightly or wrongly.

Senator Martin: This is the great challenge of doing what is in the best interests of Canada, as well as upholding our principles and valuing human rights, but I was also noticing that, for the Area Control List, now there's one country.

Ms. Saperia: Right, because the government has indicated that Belarus had been taken off.

Senator Martin: We are actually, interestingly, going to be looking at a report that we undertook recently, looking at the human rights situation in North Korea and the defectors, but I'm just wondering about this. I can think of various other regions and places in the world where there are some very clear violations of human rights, and I understand that, once we'd have a country on the Area Control List, nothing can happen.

Ms. Saperia: Right.

Senator Martin: But it seems to be a pretty high bar to have a country listed, and so I'm questioning the world and including Canada's tolerance of such human rights violations around the world.

We can take certain measures, but at this time these infractions continue. So I'm wondering what we should be doing as Canadians. There is also what the world should be doing. We can't be an outlier and be the only country to be imposing greater sanctions.

I see this as a very big and growing issue. It's not so much a question but perhaps you could share your insights.

Ms. Saperia: You're right. It's such a difficult line to walk because, on the one hand, we want to stand up for our values, and on the other hand, we want to exist in the world. We cannot be completely isolated.

So the area control list is a really neat tool that we have. It has to be reserved for only the most egregious cases because, to a certain extent, we're negatively impacted by it, too. Canada relies so much on exporting for its economy not to be able to send anything to a particular country has a toll on us as well, so we want to make sure it's saved for the worst countries. I think North Korea deserves to be on that list.

The area control list is a very blunt instrument. It doesn't allow us to pick and choose or to be strategic. It does not say that we'll send items for this because that could help further our interests, but we won't send items for this because we think you're going to use them for abusive purposes. As a strong mechanism, the area control list could work.

Again, I go back to SEMA because it allows for the most specific of sanctions. Each time the Governor-in-Council can choose what those sanctions will look like, and each time they will be different, and the list of which individuals or which entities would be impacted by them is tailor-made to the issue at hand. That's probably the most useful piece of legislation that we have now when it comes to addressing human rights in a particular country.

Overall, I am in favour of amending SEMA to be clearer that egregious, systematic human rights abuses could qualify as grounds because right now we have this strong language that it needs to be a grave breach of international peace and security, which human rights could be, but that's an interpretation. SEMA is probably our best tool, and I think that the Magnitsky law could be an interesting addition to our arsenal.

Senator Ataullahjan: Do you know if being on the area control list was in any way a catalyst for the progress that Belarus has made with regard to human rights, and should we be adding more countries to that list? What are the potential negative consequences for Canadian businesses when a country is added to the area control list?

Ms. Saperia: I don't know if our placing Belarus on the area control list had an impact. I believe several other countries imposed sanctions on Belarus at the same time for its improper dealings with regard to an election. So I imagine international pressure played a role. Whether it was Canada alone I cannot say.

I like SEMA because it allows Canada to impose sanctions autonomously. We don't have to rely on anybody else, but when we can we like to work in concert with our allies, and we know that the United Nations Act allows us to impose the sanctions based on United Nations' recommendations or instructions. I believe that Belarus was penalized by a number of countries.

I find the case of Libya to be fascinating. This was many years ago when Libya was found to be responsible for a huge terrorist act and everyone sanctioned Libya, particularly the U.S. and the UN. The sanctions were very strong and painful.

Eventually Libya couldn't survive economically, and they asked for the sanctions to be removed if they were to pay out the damages from the civil suit initiated by the victims of the terrorist attack, and they did and the sanctions were removed. I think they paid out billions of dollars.

It was an interesting illustration of how civil suits are a different type of sanction, but they are an economic lever. Libya wanted to get rid of the sanctions, and so they paid out the suit. Again, international pressure does have an impact.

In terms of which other countries ought to be on the area control list would require careful study because it is such a blunt instrument. I don't want to be repetitive, but I would sooner create tailor-made sanctions under SEMA to go after particular human rights abuses in a particular country than I would put them on an area control list where we can't send them anything, but does that make enough of a statement? I'm not sure.

It might be more useful to say under SEMA that we're going after government X or government state organizations X, Y and Z because you were involved specifically in doing this, and that really bothered Canadian sensibilities.

Senator Hubley: Thank you for your great presentation this morning.

I noted that SEMA has already been used to penalize the governments of Syria, Zimbabwe and Burma for their human rights abuses, but you feel it may be worthwhile to consider an amendment to include severe human rights.

I've asked these questions before. In your opinion, are sanctions an effective way to produce changes in behaviour or policies to address human rights violations? Are there systems to ensure and to quantify if Canadian sanctions on imports and exports are effective? And are you familiar with any countries where sanctions have been imposed where they eventually have been lifted?

Ms. Saperia: First of all, yes, Canada and other western countries have imposed sanctions on countries and have lifted those sanctions. For instance, a lot of our sanctions have been lifted against Iran as a result of the nuclear deal that was reached. Europe and the United States are in the midst of giving Iran tremendous sanctions relief in the aftermath of that nuclear rights deal.

In terms of whether sanctions are effective, I believe they can be extremely effective. I don't think they're a silver bullet or solve every problem. Unfortunately, most of the issues that are live for us today can't be solved by a single piece of legislation or regulation.

What I try to do in my own work is to put together different legislative responses that make it harder for bad actors to operate, but nothing will ever in itself be sufficient.

There is the issue of whether sanctions hurt the vulnerable people as opposed to the government in question, and it is a useful question to be asking. First of all, I think that the West has gotten smarter in its sanctions. I think we've learned how to make them specific enough and directed enough that they cause more pain to the people that are intended to suffer. Nonetheless, it is somewhat unavoidable that the most vulnerable people will be affected.

I note that most of the anti-apartheid activists in South Africa still recognized that even though sanctions were most painful for Black South Africa, they were still in favour of them as a peaceful way to precipitate the fall of apartheid and to encourage peaceful change in the country. Again, are sanctions a perfect instrument? They are not. But I think they are nonetheless extremely useful and important.

The Chair: Thank you very much.

Before we go to round two, I have two questions. First, on a point of clarification, when a country is added to the area control list, are all exports prohibited or is a permit required for all exports?

Ms. Saperia: I believe that all exports are automatically prohibited.

The Chair: This question is related to our study but it also relates to your statement. I've been looking at your impressive bio here and the work you have done on victims of terrorism which I think I led to the Justice for Victims of Terrorism Act in 2012. You have done extensive work there and you also wrote The real roadblock to better relations is Tehran and Canada must not cave to Iranian demands.

In light of our study about economic levers to enhance respect for human rights, a reality check just happened to us. That reality check is what you talked about in your statement with the Concordia professor. Today she is in Evin Prison. I have been to Evin Prison. I didn't stay very long.

Ms. Saperia: You were lucky, then.

The Chair: Yes. It was outside, basically. It was a pretty tough time but nothing has changed. Of course, Zahra Kazemi was held and tortured there as well.

You say that Homa Hoodfar is currently being detained there without access to legal or consular affairs. The present government is sending out signals that it is looking to pick up its relationship with Iran. The past government did not want to have any relationship. What would you say to us in terms of how we deal with her human rights and getting her released? Do economic levers come into play here? Iran is now playing hardball again and talking about somebody in Toronto who left the country with a whole whack of money, allegedly, and that sort of thing. Again we go back to these questions. How do we work this thing out responsibly as a nation? There is a woman's life at stake here from my perspective.

Ms. Saperia: When I heard the news that she was incarcerated in Evin Prison, my heart sank because we know how the story goes. We have to hope that her outcome is very different from that of Zahra Kazemi's.

When it comes to Iran — and this is only my opinion; I do not understand the psychology — the more that an arm is outstretched, the more they respond with a closed fist. One would have predicted, in the aftermath of the nuclear deal that was reached, that you would have seen a more amicable Iran. Instead, however, they have continued to be deliberately provocative. The ballistic missile testing should be a huge concern for Canada and for the world.

I've also noted — and there have been a number of articles on this in the last few days — that Iran's listing as a state sponsor of terror under Canadian law is now being framed by Iran as an obstacle to renewing diplomatic ties. I think it is absolutely essential that Canada not delist Iran. It is really important that we stay strong and principled. Iran can be removed from the list of state sponsors of terror as soon as it stops sponsoring terrorism.

I note with interest Senator Tkachuk's Bill S-219 in the Senate that would actually prevent further lifting of current sanctions against Iran. The current sanctions relate to Iran's nuclear activity. Those sanctions would not be lifted until Iran also demonstrates improvement on its human rights abuses, its incitement to hatred and its terror sponsorship.

In terms of how to get Ms. Hoodfar out of prison, I wish I knew the answer. I do not. I am very concerned about that situation. Perhaps if we gave Iran everything they asked for we might be able to get her back, but at what cost? I think Canada really has to stay very principled here.

I'd like to think a little bit more about how to get her out.

The Chair: I appreciate that. I thought that since we have you here, we could put this on the record.

Ms. Saperia: If you read my bio you would know that Iran figures prominently in my research.

Senator Martin: I would be remiss not to talk about Reverend Lim, a Canadian in North Korea. When we talk about egregious human rights violations, Iran and Saudi Arabia are both guilty of that. They are enjoying some benefits of relationships with Canada, whereas there are no economic levers at all with North Korea.

These are very serious matters. We don't expect you to have that answer about how to retrieve and bring back our Canadians safely, but these are great concerns, chair. When there are no economic levers, then what? It is a very blunt instrument. Yet there are other countries that should be on that list. However, once we do that there are no levers.

I'm just expressing my frustration as I'm listening to my colleagues and your response because we're talking about human lives that are in grave danger.

Ms. Saperia: Absolutely, and I think North Korea presents a unique problem because it is so closed to the world — much more closed than Iran or Saudi Arabia. There is little interaction with the world and that's one of the reasons why Canada could put North Korea on that area control list. I don't mean to sound cavalier about it, but what's the difference? It almost has no relationship with Canada anyway, so to prohibit all exports from going to them is a way for us to publicly rebuke them without there being much of a cost to us.

Since they ask for nothing from the world, it makes it much more difficult to apply pressure. However, when it comes to negotiating nuclear deals, I think that Iran learned a lot from the U.S. interacting with North Korea when it came to nuclear weapons. I think that mistakes were made and other nefarious actors are watching very carefully.

Senator Ngo: I would just like to go back to the topic of the LAVs. Should Canada consider certain kinds of human rights conditions imposed on export permits with regard to the use of goods? Once they leave the country and our borders we have no control. Should we have some mechanism related to human right conditions in there?

Ms. Saperia: Do you mind repeating that question?

Senator Ngo: Should Canada consider imposing certain kinds of human rights conditions on export permits with regard to the use of the goods we export? I know once the goods go outside of the country, we have no control. We heard testimony from representatives from Human Rights Watch, who said that the LAVs have been used in Yemen. We have no control over their use. What can we do?

Ms. Saperia: Right. It really is a problem and I can see that this is really dominating your thinking, senator, on this issue specifically.

With regard to the Export and Import Permits Act, or EIPA, how can we incorporate human rights into this, and how could the deal with Saudi Arabia be stopped? If we send to them, then who wouldn't we send to when it comes to human rights? I think that's what you've been getting at with your questions.

When I read through the testimony of the department officials, it was my understanding that human rights considerations were nonetheless playing a role in their decision-making and that end-use certificates needed to be signed to commit that the LAVs would not be used to perpetrate human rights abuses. It is hard to imagine that scenario actually playing out given what we know Saudi Arabia is doing in Yemen and in other places.

We know that the government does have the ability to cancel or suspend deals and exports. Perhaps there should be a stronger mechanism for the public to be able to apply pressure on government, perhaps, to give more feedback about whether Canadian exports are being used improperly and whether a contract ought to be cancelled. Again, as I've said, there are opportunities within the bill itself to be much more explicit that human rights considerations need to be taken into account and that the Saudi deal should not have proceeded based on those considerations.

I'm not really sure what more I can say on this particular issue. I think the bill could be amended and I think that regulations could be further created to address this particular issue. I drew attention to what the U.S. was doing on this because I think that part of the issue is the lack of transparency and objectivity in determining when a deal should go through for a human rights violator and when it should not.

Perhaps there should be a clearer rule that if you are designated in Canada — and this doesn't exist right now — as a human rights abuser then certain implications follow automatically and then it would be up to Parliament to determine what those should be. Perhaps it should be all exports or perhaps it should be, again, what the U.S. did, which was the crime control and detection to identify particular items that could be used to abuse its own citizens or the citizens of another country.

I think there are things that could be done. Without amending EIPA at all you could use SEMA right now to impose sanctions on Saudi Arabia for human rights violations. Politically, do you want to do that? I don't know, but that tool exists right now.

The Chair: Thank you very much.

Senator Omidvar: I want to stay on Iran for a bit. I know Tehran really well — I lived there for five years — and I know Evin Prison very well, and just for the record I would like to state that Evin Prison has been a place of oppression and brutality, whether it was imperialist Iran or fundamentalist Iran. It has always been so. I do remember driving by and shuddering.

Now, unfortunately, we have Ms. Homa Hoodfar in Evin Prison. I have heard our Minister of Global Affairs say that in terms of our relationship with Iran, engagement is better than isolation. And so we come to your comment that as long as Iran is guilty of state-sponsored terrorism it should stay on that list.

Does that get in the way? I wonder if it's better to keep talking or shut the door. Is there a middle ground? Can we do a bit of both, through a carrot and stick kind of approach?

Ms. Saperia: I think both are important. I don't think the previous government was wrong when it cut off diplomatic contact with Iran. At the time, I think there were good reasons to. Now, under this government they made it clear that re-engaging, generally, is a priority and I respect that.

I think that maintaining Iran on the list of state sponsors of terror is not prohibitive to engagement unless Iran makes it so, but otherwise there is no reason why other modes of engagement cannot take place, and you'll see that in the United States as well. We know that President Obama was, arguably, the most determined world leader to reach a nuclear deal with Iran. There will be billions of dollars of sanctions relief for Iran, and yet Iran remains a state sponsor of terror under American law.

We know that the two can exist simultaneously and Canada has different instruments it can use. There is no reason why, if Canada determines that it's safe to do so, it cannot open up an embassy in Tehran. What should we be using our embassy for, though? It shouldn't just be used to help further more business deals between Canada and Iran. Our embassy should be used, in large part, to emphasize to Iran that we want to see a change in their behaviour when it comes to human rights. That has been the position of government: We're going to voice our concerns, as opposed to not saying anything at all. If that's the way we want to do it, that's fine, but that's what the embassy should be used for.

It should also be used to make sure that when we do have Canadians imprisoned in Iran that there are Canadian officials who can go there and demand access to our imprisoned Canadians.

I feel very strongly that we can have both. If Iran is keeping its word with regard to its nuclear commitments, we can relax some of those nuclear sanctions. It has nothing to do with Iran's support of terrorism, which has continued completely unchanged, and we absolutely should not be delisting them as a state sponsor of terror until their terrorism sponsorship ceases. We can still engage with Iran but we need to be very principled.

Senator Ataullahjan: Talking about Iran being a sponsor of terrorism, Iran also has, in recent history, interfered in the affairs of its neighbours, Pakistan — specifically in the province of Balochistan — and in Afghanistan, pitting the Persian-speaking population against the Pashtuns. And there is also the element of Iran's history with Iraq. So where does it end? To me it does not seem that Iran is getting any better.

Ms. Saperia: Right. Again, I think that is the concern of many critics of the Iran nuclear deal, which is that we did not tie nuclear sanctions relief to a demand that other elements of its behaviour be changed. When the world was negotiating with the U.S.S.R., human rights, economics and other considerations were tied together. That would have been a better way to negotiate with Iran for its nuclear program. Don't deal with it in isolation, but tie a number of problematic elements into one and say, "Here are the things at a minimum we need from you, and here is how much money we'll give you in sanctions relief. If you do X, Y, and Z more, we will give you this much more.'' It should have been in terms of its interference in its neighbors' affairs, its terrorist sponsorship, its human rights violations and its incitement to hatred and genocide against Israel.

Senator Ngo: I come back to the questions you answered earlier. How should our export regime monitor the end use and the end user of the goods or technology exported? Does it include software as well?

Ms. Saperia: Yes, I am quite certain that software is included in the Dual-Use Goods List under Canadian export laws.

In terms of monitoring, I've thought about that, too. How much monitoring is there after the fact? After a deal is done, how much is the government paying attention to how those things are used? That is actually a really useful question. Now, part of it goes to what I was saying before: The enforcement of existing rules should be looked at carefully because if we see only a handful of cases being prosecuted, we know that proper enforcement is not taking place. Inevitably, in every country, people are trying to break the rules. So if there are only three cases, I would say that more effort needs to go to enforcement. There should be a proper monitoring of the use of Canadian exports after the fact — follow them and track them — and for that to be a deciding factor in any future exports to that particular country.

I'm trying to think of what mechanism we'd want to create. I'm not sure that would be legislative. Perhaps in the regulations there could be something where the end use is followed, not just immediately but for several years, for example to if see our Canadian LAVs are showing up somewhere else. We send them to Saudi Arabia, but here they are in Yemen. Why? If Saudi Arabia said, "Yes, we want to buy so-and-so from you,'' we could say, "We noted what happened to our LAVs. We cannot in good conscience send you the following items.''

That might be a really interesting way to hold the end users accountable.

The Chair: That's a very good note to end on. You've given us food for thought. We're going to pursue some of your ideas. It was very enlightening. We need this to have a thorough study of the situation. We thank you very much, Ms. Saperia, for being here.

Ms. Saperia: Thank you for having me.

The Chair: Senators, we will suspend for a few moments and continue in camera.

(The committee continued in camera.)

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