Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue No. 14 - Evidence - Meeting of November 30, 2016
OTTAWA, Wednesday, November 30, 2016
The Standing Senate Committee on Foreign Affairs and International Trade, to which was referred Bill S-226, An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act, met this day at 4:18 p.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: We're ready to start the Standing Senate Committee on Foreign Affairs and International Trade.
Before I get to the item that we will be dealing with today directly, there are a number of issues that I wanted to bring to your attention. Last week, because of the difficulties, if you recall, we made our trip and visitation to Argentina, and one of the activities was to visit ESMA, which is the museum to honour those who were killed when the coup took over and the people were rounded up and put in a huge naval academy, which is right downtown in Buenos Aires. They were interrogated, hived off into different groups, and some were sent to jails. But many of them were rounded up, processed and taken out by plane and dropped into the ocean.
If you recall, all of that was known, but no one would come forward to testify about it because they were still afraid when the military was there, and it took years. What happened is some women who were in the facility were pregnant, delivered children, and these children then were taken away and adopted. The grandmothers tried to find out where their children were and then where their grandchildren were.
The grandmothers' issue was quite well known in Canada, if you recall. They were certainly nominated many times for the Nobel Prize. They also received the Parliamentarians for Global Action award that I was involved with.
They've now set up a museum, that whole naval academy, that part, and we as a committee split up into two groups and went through the museum. It is, as you can understand, very moving for the thousands of people.
As they progressed to democracy, more people came forward with the grandmothers to start to investigate, and one good thing that happened was DNA because they were then able to trace bones, et cetera.
Also, two pilots out of the many myriad came forward to admit what had happened, and they're somewhat folk heroes now, not because of what they were doing but because they had the courage to come and defy. So there was a cone of silence, as they said, and that was broken, and we went through the museum.
I reported that when we had a previous meeting some time ago, and I suggested that we would do a fact-finding sheet. We had it translated, and I will have that distributed now for your information.
I also at that time suggested that since we have Senator Ataullahjan, Senator Ngo and myself on the Human Rights Committee we should file that fact-finding note with the Human Rights Committee because it's a significant human rights issue, and I think it should be brought to their attention. So you are getting that report, and hopefully it will be reflected in our report.
Next, we have not heard in any way about the CETA agreement, which is the massive Canada-Europe tree trade agreement. The committee on the house side is still discussing that bill. Rumour has it that they may deal with it next week, and it will go into third reading in the house. What will happen there, no one even seems to want to posit rumours about.
That's one of the bills that we have been awaiting for quite some time. I think it was timely that we had Bill C-13 that we disposed of today, and I want to thank the members again. Senator Downe and I have made very strong points about the fact that we need adequate time to study bills and that we do it according to our rules, not because somebody tells us.
Now, I didn't quite say it that way on the floor. I hope I was a little more delicate, but I don't know how we would handle CETA if it comes next week, say, and what the rules are. No one has advised us fully; that's still in the background. That's a major bill, so we have to deal with that.
We have two reports being written. We are closer to the trade report. The steering committee has seen the report, and we just worked on the recommendations.
Senator Downe, did you receive a copy of the proposed recommendations?
Senator Downe: I believe I did. They're in my office, but I haven't had a chance to look at them.
The Chair: It's in translation and will be coming out, I understand, perhaps this week or early next week, and then we can deal with the trade report. It's timely to have that before we have CETA.
The other is the Argentinian report. That may get stuck in translation. I haven't seen the whole report but parts of it. I can only say that it's Natalie's usual good work. I've told her to keep going in the direction she's going and we'll discuss the recommendations. She's got some suggestions. Hopefully in the near future the steering committee will be able to deal with it. Those were the two issues that are still pending.
We have two private members' bills. One was Senator Tkachuk's, Bill S-219, and it was proposed that we could proceed with his bill. It came here first. However, Senator Tkachuk is away for personal issues and won't be here all week. That is why we are dealing with Bill S-226.
I've consulted with everyone, and I could continue in the chair, but I would prefer not to, and Senator Downe and I have agreed that he will chair whenever Bill S-226 is dealt with. I will not be in the chair, and Senator Downe will take the chair.
At this point, unless there are issues or questions, I will move and we can proceed.
Senator Percy E. Downe (Deputy Chair) in the chair.
The Deputy Chair: Honourable senators, we now begin our examination of Bill S-226, An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act.
Senator Andreychuk is the sponsor of the bill, and we've asked her to appear here today. The floor is yours.
Hon. A. Raynell Andreychuk, sponsor of the bill: I want to thank the committee. We've been seized with some of the issues surrounding Bill S-226. It is in the domain of the Parliament, and I do want to put on the record that some years ago Irwin Cotler, someone I worked with very closely on many international human rights issues, proposed motions and bills, as I recall, in the House of Commons that did not proceed to full completion.
As he has retired from Parliament, there were many, and I must say from all parties, very interested in the initiative to put human rights on the same plane as other foreign issues, whether it is terrorism or the security of Canada, et cetera.
It seemed to me that given that we are a country that values human rights as much as we do and how we've entrenched it in our own laws and the leadership we have played around the world on international human rights issues, it would be timely that we have a lever with regard to sanctions that is equal to the other levers that we have developed over the years.
Basically, Bill S-226 says that if there are gross and persistent human rights violations, and I'll get into it a little more, they could lead to sanctions against those foreign nationals who have perpetrated those persistent and gross violations.
Many countries have some form of this in their laws, and much of the discussion in the international human rights field is that if human rights is a pillar in your foreign policy, then what is the consequence? For terrorism we put trade sanctions in place, but we don't have that last pillar of human rights leading to some sanctions.
It is not prescriptive in Bill S-226 that the government is obliged to. It says that we have something in our law, the Special Economic Measures Act, which was developed to lead to sanctions, and it would be put in there.
The intention of my bill is to say that if there are gross, persistent human rights violations, then the government would be able to put sanctions on the foreign official who has committed those atrocities. That could lead to specific sanctions. It is not to be used against a country, per se, and it is not targeted to a population. It is targeted to those who have committed those acts.
I want to refer to some of the comments I made on the floor of the Senate. The bill, in summary, is to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights. It is not intended that Canada would develop, stand alone and say, "These are the human rights that will lead to sanctions.'' The test is whether they meet the standards that we have as a community and the international community that wishes to adhere to standards and international rights.
The test is to say that we're looking at the international order as we know it and as we wish it to continue. We know there are some people who either disrespect the international order or do not follow the human rights standards. We will put in levers in Canada, first of all, to take the issue of human rights onto an international stage as an important fundamental issue in our foreign policy.
Bill S-226 proposes related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act.
We know that Canada and its citizens have, in various ways, strengthened human rights both nationally and internationally, but what we have not done is deal with foreign nationals who may have some assets and activity in Canada. This is to have a lever to deal with this in Canada.
We had in the Senate committee — and I will refer to the testimony we've already had under our general reference — Mr. Kara-Murza, who is in the opposition in Russia. He was attacked and lived through it. When he testified before our committee, he said something very compelling to me. He said that the difference between the Soviet system and Russia now is that under the Soviet system it was a closed society. Those who were perpetrators stayed within that ambit and only came out for international meetings, et cetera. Their assets, by and large, were somewhere but not in that country.
He said that the difference now, in his opinion, is that those perpetrators in Russia have taken government assets and have moved them through, I think, corrupt means to house them in Western countries, if I may use that phrase, because I'm not going to say just Canada at the moment. Those assets are houses, education and vacations in our country. If it can be proven according to international standards that those assets are corrupt officials' assets, we should be able to seize them, we should be able to deal with them, and that's what this act is about.
I won't go into further details on that.
I want to remind senators that the Human Rights Committee put in a study on international human rights machinery. The report in December 2001, as it was tabled in the Senate, was called Promises to Keep: Implementing Canada's Human Rights Obligations. If we adhere to these international standards, we want to move one step further and say that we will implement redress, to the best of our ability in Canada, of any violations.
So we studied the strengths and weaknesses. I would respectfully say that this bill moves Canada in the right direction, as we have in others. This is one gap that we want to fill.
There are many examples of human rights violations around the world. This bill is not targeted to any particular country, although the genesis of this bill was Sergei Magnitsky.
Bill S-226 would strengthen the Canadian government's capacity in the protection and promotion of internationally recognized human rights. Threats of illegal detention, torture and death are often used to silence dissidents and human rights activists in their own countries and elsewhere. Moreover, impunity counters the effectiveness of our human rights protections. Increasingly, we see certain countries disregarding international standards, treaties and agreements.
In Canada, we must continue our efforts through international treaty bodies, the United Nations, regional groupings and every other possible means to ensure that human rights are not violated but adhered to and strengthened for a modern society today.
Therefore, I think it's urgent and apparent to, first of all, renew our effort to protect our international human rights system that is under attack at the moment. All of the work that we have done over decades seems not to resonate with some countries and their leaders. I believe this legislation, Bill S-226, marks a step in the accountability gap that exists internationally.
I will quote the preamble of the bill:
Whereas adding gross violations of internationally recognized human rights as a ground on which sanctions may be imposed against foreign states and nationals would further Canada's support for human rights and advance its responsibility to protect activists who fight for human rights . . . .
At present, the Special Economic Measures Act states, and again I will quote from the preamble of the bill:
. . . authorizes the Government of Canada to take economic measures against a foreign state or national for the purpose of implementing a decision, resolution or recommendation of an international organization or association of states, or in cases of a grave breach of international peace and security that resulted or is likely to result in a serious international crisis . . . .
Subsection 4(1) of the Special Economic Measures Act states:
(b) by order, cause to be seized, frozen or sequestrated in the manner set out in the order any property situated in Canada that is held by or on behalf of
(i) a foreign state,
(ii) any person in that foreign state, or
(iii) a national of that foreign state who does not ordinarily reside in Canada.
That is why there is a subsequent amendment also to the Immigration and Refugee Protection Act to ensure that we are talking about not permanent residents within Canada but foreign nationals with activity in Canada.
This bill is not mandatory for the government. We can go into more detail of the bill at a later day. I just wanted to put out the framework. It does not oblige the government to take action; it allows the government to do so. It's one more tool for the government. It is for the government to put in place regulations and to assess within the fullness of foreign policy whether those levers this bill would allow it by discretion in here should be used. That is, I think, what is missing.
I've been involved before when we were working on bills and responding to crises. I point to when assets of the former regime in Tunisia were found to be in great quantity in Canada. We didn't have the levers to work with that properly. We had to cobble together a bill. This is anticipating where perhaps international issues are going, and it will be a tool for the government to use. I think it is one that others are contemplating. Some have, and I believe we should have it in our law.
To have the tool ready and available at the discretion of the government to utilize with the prescriptive conditions sends the right signal internationally and equips Canada to take action positively against perpetrators of gross violations of internationally recognized human rights.
It would also allow Canada to exercise, defend and promote recognized human rights and freedoms in one more valuable measure internationally.
To senators as we go through and we call officials to talk about the Special Economic Measures Act and how the regulations would be put in place, I wanted simply to start with indicating the reason and the rationale. That's why I put out what it might do, but really, I want to remind senators of the tragic case of Sergei Magnitsky, whom this bill is honouring, which is in the preamble. He is but one of many others, but this is a gentleman who inspired Bill S-226 in its original form and now.
Sergei Magnitsky was a lawyer living and practising in Moscow. While working for an American investment firm based in Moscow in 2008, Mr. Magnitsky uncovered a $230 million corruption scheme implicating numerous Russian Interior Ministry officials. Following his testimony against these officials, Mr. Magnitsky was arrested on comparable accusations of tax fraud. He spent the next years imprisoned, suffering in unsanitary and deplorable conditions, denied a proper trial. His arrest and subsequent conviction were marred by a lack of transparency and due process.
Despite having medical conditions, he was repeatedly denied proper and adequate medical treatment. One evening in December 2009, several armed guards entered his cell as he lay on the cold, damp floor in pain, and he was brutally beaten. The injuries he sustained from this beating, coupled with his failing health, proved too much. On December 16, at the age of 37, Sergei Magnitsky succumbed to his injuries and died in pretrial custody. He was survived by two young children, his wife and his mother.
This cause has been taken up by many people around the world and many parliamentarians. His case was unique due to his meticulous documentation. For many people in that situation, no trail is left. But in his case, being the lawyer he was, he unearthed this. He was not particularly known as a human rights activist, but I think caring for his own country led him to stand up and to pay the price.
He was imprisoned for 358 days and he produced 450 criminal complaints. That trail has been helpful in justifying his case in many international fora.
Despite his evidence, not one of Mr. Magnitsky's abusers has been brought to proper justice. Rather, he was posthumously tried and convicted by a Russian court on July 11, 2013, a method that has been used recently in Russia to turn the tables, if I may say.
Mr. Magnitsky's sacrifice reflects the plight of countless other activists and dissenters all over the world. His case exemplifies the challenges facing international human rights machinery. In part, this bill would start to address this gap. But this bill moves beyond Mr. Magnitsky. It would enable Canada to take a leadership role towards strengthening accountability for violations and crimes under international law.
The bill takes into account the need to target gross human rights violations, wherever they or their assets may be hiding. It seeks to utilize internationally recognized standards, not just Canadian standards.
So why now the bill? Well, I think it's compelling that the world is now more interconnected; mobility and cyberspace allow negative activity to penetrate our borders, as well as positive activity. Therefore, if this tool would be given to the government, it could be one more measure to prevent, thwart or act to be sure that we are not the enablers who disregard basic human rights.
I have already quoted Mr. Kara-Murza, who was very, very compelling in his testimony, that times have changed and Canada is sequestering some of this activity. This tool would help them ferret it out, along with the other tools that we have.
I did speak in the Senate, and I won't take your time here; I just ask you to read it. Action has been taken on Magnitsky-like bills, such as by the United States; the European Parliament has passed resolutions, the assembly of the Organization for Security and Co-operation in Europe, and I could go on. I think Canada should be in the leadership. This bill would do so.
I have to pay tribute to Mr. William Browder. He has been a driving force as Mr. Magnitsky was in fact looking into Mr. Browder's case when he unearthed what was going on. We had him testify before. I propose to bring these witnesses before the committee.
Mr. Browder has indicated that Canada, through its leadership on human rights, is a country that should lead, and I believe that's what led to Irwin Cotler to meet with Mr. Browder and start this process.
I do want to say that this bill has a counter in the House of Commons, a private bill there. I'm not sure when it will be dealt with. But I think it is important. We have the resources here, and we have this opportunity to lead in the Senate. I believe we have done it in the past, and we should continue to do so. In the Senate, we can bring forward witnesses, but I think the case is rather well known.
I must put on the record that all the parties during the election and previously were committed to a form of the Magnitsky bill. There are individual parliamentarians in both houses who have supported this bill and continue to support it. I believe it is facilitating to the government. I do not think that it is a bill that in any way hamstrings the government. I think it encourages the government to find one more lever to live up to the standards that we have set for ourselves.
I would ask that we begin a study here in the Senate on this bill. Hopefully, you will find your way to supporting it. I would be pleased to answer any questions that I can, and if I can't answer them, I will take them and come back to you.
The Deputy Chair: Thank you, Senator Andreychuk, for your presentation.
Senator Ngo: Thank you very much for advancing this bill, Senator Andreychuk. It addresses a very important and timely issue. I think it's time for Parliament to adopt this legislation.
This bill expands the list of foreign nations that can be targeted by sanctions and have their assets in Canada frozen. Could you elaborate a little more on how the government would gather the information it needs in order to impose sanctions against human rights violators in other countries? I give the examples of Vietnam, China and other countries like that. How will this bill be applied to the human right violators?
Do you see any impact on Canada's trade relations with the countries involved?
Senator Andreychuk: You have given me three questions in there; I hope I can answer them all.
We have legislation now, for example, governing the transferring of monies that dictates there has to be an accounting. The Special Economic Measures Act already takes into account certain measures that we have in place to monitor flows of money here. We are plugged into international and regional organizations, like Interpol.
There are many ways that we can look at it. It is not to be addressing directly issues within another country and their assets. It is addressing international human rights violations wherever they occur, and being assured that we have a lever within our own country to deal with the perpetrators and any assets or our activity here. That answers it.
What I'm hoping the bill will be — and I think I can speak for those who are supporting it — is a standard so that we can encourage others to pass similar legislation who haven't. This is not to address directly the violations in another country; it is to use international standards.
If I were the government, I would want to know that we weren't sort of selectively picking country A, B or C. What we are doing is saying there are international agreements, they should be adhered to, and we want to ensure we are not found wanting without a measure when, in fact, they are not adhered to and we find there may be activity in Canada.
I would contemplate regulations that would talk about how they go about assessing that standard, and they would then see whether there is any activity in Canada that needs to be dealt with.
There is the question of how they would find it. They can find it in many ways. We have a very active human rights community and a lot of legislation that crosses borders where we may find information. I do not see one way or the other. It is not prescriptive in that sense. It is a tool that says if we want to apply sanctions in a specific way, these will be finely outlined in regulation where a government could use them. It's not prescriptive; it is a tool.
I could use my imagination for how it could be done, but I'm resisting because what I really want is for the government to say, before Canadians and others, that we worry about trade. We worry about our international relations and our diplomacy. But we are worried about human rights and we are going to find tools so that we do the best job we can to protect, particularly, with this bill, all those human rights defenders who stand up and pay a price.
Senator Eaton: Senator Ngo asked my first question, which was how would we know if somebody is guilty. Obviously they are not going through a court of law, or certainly not one we would very often recognize. Are there other countries that have signed similar laws? If we put this law in place, for instance, could we count on the U.S. or our partners in the Five Eyes to do something equal so that it really has an impact, as opposed to us just restricting someone's entry into Canada or their ability to do business here or freezing their funds?
Senator Andreychuk: The United States has passed a Magnitsky law.
Senator Eaton: So this would go hand in hand?
Senator Andreychuk: Well, it's the same intent, but of course we're not the same country, so how they go about it fits their —
Senator Eaton: They passed it and we passed it. Yes, okay.
Senator Andreychuk: The initiative is that Canada should be a leader in law. Many others have it embedded in different ways, so I think that is encouragement. It's a gap that was identified in Canadian situations. It is a tool, then, and we can ask others if they have a similar gap and accountability.
There is a growing coalition to deal with sanctions tied to human rights. If we really believe in it, we put them in for security reasons and terrorism, et cetera. Do we not believe that human rights should be of the same value in our assessments in our foreign relations? We do not want to be harbouring these people and their assets.
Senator Eaton: I couldn't agree with you more, but looking at it from the other point of view, you know better than I that politics change, and one's perception of certain figures changes along with that. If you look at where people have been put on no-fly lists and have trouble getting off them, are there safeguards, or a way of clearing one's name, so to speak?
Senator Andreychuk: Yes. It's built into the bill.
Senator Eaton: It's built into the bill.
Senator Andreychuk: The minister can remove, as we have with all others in sanctions, if there is some compelling reason not to be there, but these are very targeted. I would think the government would move very cautiously to exercise this. I don't think it's as broad as a no-fly list because we're really targeting. First, you have to prove the gross violations. It's not a quick fix.
Senator Eaton: It's not for a court of law to do that.
Senator Andreychuk: No. But we have international standards and tribunals, and it might be a court of law. I'm not precluding that. This is what I'm saying.
I should give credit to our legal officers here, who helped draft this bill. Personally, I'm not wedded to the wording. What I am very intent on is getting the message and the intent of the bill across. I hope we will have some evidence on specifics as they come up. This is just an opening statement.
Senator Ataullahjan: Thank you, Senator Andreychuk.
Who should we target — the high-level officials who are complicit and the ones who want these things done, or the people who are actually carrying out the violations?
Would we need new agreements to share information with other countries, or do we have existing agreements under which we share that information?
Senator Andreychuk: I can answer in two ways. These are all just my opinions. We have a lot of agreements. But are they being implemented? We can sign with a government, but then individuals change, so this is to get at the perpetrators who are, in fact, committing the gross violations.
You're asking me whether it is the man who did it or the man who gave the order. It could be both. This is the thing. In Sergei Magnitsky's case, there were tax officials who were the ones who actually carried out the acts against him. But that was within a regime that has been rather non-responsive to human rights and allowing for free speech and freedom in their country, so can you contemplate a particular figure? You might.
I think that both are possible, but they have to be measurable against international standards. That's the struggle, if you look at what the International Criminal Court is doing, and other fora that we're involved in. You have to prove your case against the individual or perpetrator, and I don't think you can finitely say you can exclude either one, the one who carried out or not.
That has been a debate in human rights forever: "I was only following the order or I gave the order.'' Or what I have dealt with in many countries is it is not an order given by somebody, but it is an implied order: "Clean up the mess.''
I think we are struggling to get at the perpetrators and trying to get adherence to international standards. From a personal point of view, I don't start by saying "Canadian standards.'' If we're going to talk about foreign policy, I always talk about international standards. I think we have some pride of place in those international standards, and that's what I'm looking forward to.
It's no easier to try to put on trade sanctions because there's always the reverberation of what comes back, or in the sections that we put under security, there is always that tension, if you do it, what will be the consequences. Yes, there may be some consequences to our relationships elsewhere, but is it the price we want to pay?
What I've heard from three parties, or maybe four, is that human rights count and there should be consequences, and they should be equal to the other areas where we impose, and those would be targeted sanctions.
I leave it to the fine experts within the government to develop the regulations. So it is a work-in-progress, and this is why the bill is an encouragement to stand up for human rights and say, "Yes, sanctions could be possible.'' Then I think the fine minds that work in this field can develop those regulations to ensure that they are, in fact, targeted, and targeted to the right people, and there is within the bill the contemplation to remove if they are unjustly put there.
Senator Ataullahjan: We both sit on the Human Rights Committee, and there has been a great deal of discussion there about human rights and trade and sanctions. I don't know if you want to answer this, but I'd like to put this question to you: Do you think that our trade should be linked to human rights violations? It's a question that we put forward to various government officials. I know it's a difficult question. You might not want to answer, but I feel compelled to ask you this.
Senator Andreychuk: I am not sure that it is trade related to human rights. We're linking human rights violations by certain people, and therefore should we trade? That's what I'm saying. That struggle is going on right now, because we can impose sanctions for trade violations. What I'm saying is let's take in human rights.
This would be what I call the accountability gap being closed, where a government would sit down and weigh all of its relationships and determine whether this would be the appropriate use. That's why it's not mandatory.
I'll take it one step further. If a government says that this will inhibit our relationships with the government, that's fair. They can take that into account, but human rights have to be one of the issues taken into account as trade is now.
We've had this struggle for a long time. I remember the apartheid days in South Africa. Should we blanket a country? Do trade sanctions hurt those least able to cope with them? Iran is another example. Human rights activists will say there is a price to pay, but they're paying a bigger price if we don't get involved and use whatever levers we have. We spent a lot of time on issues in South Africa. There are some people who thought we shouldn't have, but most have come up from the country to say they worked.
What we are doing these days is targeting more specifically. The debate in the 1960s was sanctions or no sanctions. Now it is specific sanctions targeted to the individuals, and those hit the pocketbooks as well as the leadership concepts. People have the levers, so they're more specific and less blanketed. The feeling is that they work better now, but they have difficulties. That's why we need to constantly have something in regulations that would review and allow them to be lifted.
No international situation is static. It is constantly evolving, and that's why I think we need tools ready to move when they're appropriate, and that is a judgment of the government. I think we have an oversight role in that.
Senator Lankin: I have many short questions, so you might have to cut me off at some point and put me on the second round. These are just seeking to understand some of the concepts. Let me say I'm generally supportive of the intent of what you want to do in this bill.
The section that gives regulation-making power has a test in it of reliable and appropriate evidence. Is that the test that currently exists in SEMA with respect to foreign states, or is this a new test with respect to foreign nationals?
Senator Andreychuk: I think the tests are different. I will have to get back to you. I haven't looked at that for a while.
Senator Lankin: I haven't looked at SEMA.
Senator Andreychuk: I think the test is somewhat different, but I'm going on recollection now, because human rights are subjective in places, and the bill is intended to reach to international standards.
Senator Lankin: That would be an area as we explore the bill, but I would like to understand some more.
If I understand the amendments to SEMA, basically it is about applying what exists in SEMA to foreign nationals. These amendments don't expand, do they, the powers within SEMA in terms of sanctions, seizure, any of that? That is already there?
Senator Andreychuk: No. It's intended to include human rights as one factor.
Senator Lankin: Duty to determination, so banks, credit unions, insurance companies, various corporate entities. Is that the same list that exists in SEMA, and this is the responsibility they're used to? Will there be more or less? I know it's going to be selective choice by the government to take action on this, but is there any concern from these institutions about the duty to determine and a burden with respect to that?
Senator Andreychuk: The bill is not intended to put any more duty. It's simply when they have a duty to report. What I'm saying is the government can then use it for the test of human rights. That's what it's intended to do. If it hasn't, then it will make sure it does.
I do know banks and others, originally when SEMA was proposed and certainly when it was expanded before — it is onerous, but it's necessary. Most of the institutions are very responsible.
What I understand, and we can have officials come and talk to us, is that they want to be sure they're acting responsibly, and sometimes it's difficult. So this is a work-in-progress also.
Senator Lankin: I appreciate what you're saying, it's onerous but necessary. I'm trying to understand whether we expect this is going to be a whole new area of activity that they have to take on or whether it is incremental.
Senator Andreychuk: I don't think it's incremental. The object would be that the information that is being gathered about money crossing borders, et cetera, and the duty to disclose could be applied for the human rights standard as it is for something else. That's the intent.
Senator Lankin: I was interested in the parliamentary review and a little concerned about the language that says that in both houses you could review annually who is on the list and make recommendations to add other people to the list.
How would a parliamentary committee have reliable and appropriate evidence? It feels to me like it's almost anecdotal. I shouldn't have used that word. It could be reports from human rights activists in other countries that might alert us to a situation. However, how would a parliamentary committee have the same access to meet that test of evidence in order to recommend to government that someone be put on a list?
Senator Andreychuk: We put a lot of international sanctions and people on lists, and they were first after the terrorist attack, 9/11, et cetera. The United Nations has lists, and they are reviewed. That's where this idea has come for everyone, that there needs to be more transparency. It's very difficult to find out.
I shouldn't think that we, as committees, would be getting involved in the cases, unless somebody brought a specific case. We would want to know if the government has applied the rules correctly, so you're overseeing the process as much as you are individuals.
Senator Lankin: Maybe I would ask you to take a look at the language and see if you think that is what it accomplishes as opposed to opening the door for committee review and adding names, just wanting to think at what level we want the committees to operate.
I heard you clearly talk about the political unanimity of support for this. Are there voices of opposition domestically in Canada, and where would they come from?
Senator Andreychuk: I have not heard any voice against the bill. I've heard anecdotally and inferentially that the bill hasn't been taken up by the government, and I am not going to speculate as to why not at this point.
Is there one someone who has the ear of the government? I wish the government would tell me or tell Mr. Cotler or tell Mr. Bezan, who has a bill over there, or the committee now that is reviewing all kinds of sanctions and levers over on the house side.
I hear of people who want more and are really heightening the awareness of human rights and the consequences if you violate them. So why has the government not? The government has been asked by many people, and I would say parliamentarians of all stripes, to proceed with the bill.
I would be delighted if this bill doesn't go anywhere because the government just introduced their own bill. That would be my fondest hope, that that's how they respond to us.
Senator Lankin: The study that's going on in committee in the house, I think you indicated it was a private member's bill.
Senator Andreychuk: I'm sorry; I should have brought that. I can provide it to the committee. Perhaps our analysts could tell us what terms of reference the house committee is studying, because it's broader than that bill, although they may look at this bill. It's being brought up in their questions; that much I know.
The Deputy Chair: I think rather than get into that we'll just have that information provided.
Senator Andreychuk: Thank you.
Senator Oh: Thank you, Senator Andreychuk. Do we have any idea what the latest developments are in Russia regarding the Magnitsky case? How effective has the U.S. Magnitsky Act been in pressuring the Russian authorities to bring to justice those individuals who are responsible for his death?
Senator Andreychuk: I can tell you anecdotally. I don't have direct access to that, but we may have a witness that can tell us more. The Government of Russia has not been responsive to the Magnitsky bill or any other moves.
I can't answer it because my bill is supposed to be a generic bill. The Magnitsky case is what inspired it, but I have not traced it. I do know there hasn't been justice sufficient for the international Human Rights Committee, for the opposition in Russia, nor the Council of Europe, nor the European Parliament. They feel justice has not been brought in this case. That's all I can say. Regarding the internal dynamics, I don't think I want to go any further than what I've said.
I think this bill is a lever for any violation anywhere, as our other laws are. It is inspired by Mr. Magnitsky and his case, but the intent of the bill is to be a generic bill for the government to use.
Senator Cordy: Thank you, Senator Andreychuk, for the work that you've done on this. I think we're all in agreement with the intent of the bill. It's always that the devil is in the detail, as they say.
As Senator Lankin said earlier, I totally agree that committees of the Senate and the house should review legislation to see whether or not it's working properly, whether parts should be deleted or added; but the idea that they would add or delete foreign nationals to the list makes me a little bit nervous.
Also, I'm just wondering about the factors on page 5 of the bill. The Governor-in-Council may take into account information obtained by other countries and non-governmental organizations that monitor violations of human rights. I'm all in favour of cooperating and sharing information with friendly countries. I think that's extremely important and is basically the way of the world now. We would not be able to handle these things without information sharing.
On the other hand, then I think of Maher Arar and get nervous about information sharing that can cause harm to people. Once you're on the list, whether your name comes off or not, it causes harm to your reputation and your name.
How do we ensure that the information we're getting from other countries and non-governmental organizations is, in fact, accurate and would indeed mean that somebody's name should be added to the list?
Senator Andreychuk: This is what would go into the regulations. I don't think it is a fair parallel to draw with the terrorism situation that you just pointed out. You have to go through many hoops to get to this one, and we're talking about somebody who has already been identified by international human rights standards, not by countries talking to each other.
There are many levels of safeguards built in, if and when you get to an actual case, different from that.
I'm hoping that we have before us Irwin Cotler who does deal in this, and the genesis of the bill follows his expertise and understanding of how to proceed. I think we need to wrestle with this, and perhaps the answers would come with more witnesses. I would be pleased to get any witnesses.
I caution you that it is not terrorism. We had specific legislation in Canada, and it's a totally different movement. We're not talking about locking up anyone here.
Senator Cordy: I understand that it's not terrorism. I understand that.
Senator Andreychuk: We're talking about assets.
Senator Cordy: I'm saying that if your name is on the list, it's harmful to your name, whether the name comes off six months later or not. I just want to feel comforted that the information we're getting would be coming from what I will refer to as friendly countries and that it would be accurate and that we would ensure that it's correct.
Senator Andreychuk: That's why there has to be the international test before we would act on it. There has been some scrutiny and identification that these assets are subject to this bill, and that's why it's not prescriptive; it's discretionary. I would think any government would think twice before they move on it. They would be reasonably certain and could justify it. That's really the intent here.
If you look at terrorism, you're going to yield to the safety and security of Canadians first before you go into it.
Senator Cordy: Totally.
Senator Andreychuk: So the identity of the people is well known. They've been the subject of debate elsewhere. There will have been the scrutiny. We're not talking about deprivation the way we would in torture, so they are two different things.
Senator Housakos: Thank you, Senator Andreychuk. I have to say that when you look at a bill that you yourself refer to as "generic'' and that gives wide-ranging discretionary, yet important, powers to government, we have to be very careful in looking at the details. Human rights is a fantastic issue, and we're all in favour of human rights, until we start dissecting what rights you're in favour of and what rights I consider to be more fundamentally important than others.
Of all the workshops that I've participated in in international fora, the one that seems to be the broadest and have the least amount of consensus on narrowing down what human rights are is human rights because, as you know, one person's tyrant is another person's hero.
Now we're getting into a situation where we are going to be relying on, in some cases, anecdotal evidence, because historically it's very difficult in an international forum to judge and get human rights decisions taken even by an international court of human rights; and it's even harder to pursue those decisions to be able to execute those judgments.
The other question I have here is there are a number of nations in the world — and I don't want to give specific examples — that we do business with, and forget about where we have Canadian companies that are doing significant business with some of these nations. Then when we have cases like we have in this particular bill, what are the actions that we're going to take if we find that there's been corruption, an infringement of fundamental human rights by Russia, by officials in the Russian government? How far are we going to pursue justice in the name of human rights? That's my concern with this bill.
I get a sense of where do you draw the line with this bill? You can interpret this bill in a very vast or narrow way if you're a government official, I feel. I don't have a problem interpreting it widely.
Senator Andreychuk: I think the term "human rights'' is used very widely, but if you look at the international norms and instruments, they're very specific. Like everything else, they're subject to interpretation, of course. I'm not talking about something like the Human Rights Council that can pronounce on issues. We are talking about actual cases and determinations that have been made. We either stand up for the values with that risk, as you pointed out, or we don't.
Do we really believe that human rights have a place? Do we really believe that money taken from the state is something we should look the other way on? At least what this bill is saying is we have to weigh it, and it has put in the impediments. Maybe we need to put more in there before Canada would exercise.
Remember, this is not the judgment about them. It's the judgment about what they're doing within Canada. Where do we weigh that we're the enablers for that activity? It's one thing to have value judgments about other countries and use terms like "tyrant.'' I don't use those terms; I go back to the legal phraseology. It's one thing to say someone has been condemned or found wanting under a particular instrument and another to say he's a tyrant. Those are those political value judgments.
To go back to the legal instruments and the norms that are set, and that we have bound ourselves to — and this bill doesn't talk about what we say or shouldn't do. What it says is if the assets are found here, and we allow it to happen knowingly, at what point do we become the enablers? That's really the issue in the bill.
Senator Housakos: I understand that. Once you have a clear definition of somebody who has been indicted under an offence, and there are assets that you, as a government, can pursue, I understand. But it goes back to the question, how do you define a human rights abuse?
We have particular standards in Canada that are very different than those in the Middle East or South Asia. The standards vary from place to place when you talk about human rights. When those standards are so broad, how will we be able — and I'm playing the devil's advocate here —
Senator Andreychuk: You're doing it well.
Senator Housakos: — because I don't know of any parliamentarian who would be opposed to the bill, but I'm saying from the perspective of the executive branch of our government, they're going to need some immense resources to execute this bill, and they would need cooperation from international bodies, and I'm not so sure the mechanisms internationally and even in terms of our federal government are there to support this bill.
Senator Andreychuk: I would beg to differ that interpretations of human rights are different. There are people who misuse the term "human rights.'' We start with the Universal Declaration of Human Rights, and we go into the specific agreements and our own laws and interpretations. Yes, there is a value judgment for Canada. I hope we continue to have that. I want the highest standards.
But this bill does not say we are going to do it willy-nilly. It's about gross and persistent human rights violations, and that terminology has been used in many fora, and I think that many international human rights activists and workers know exactly what that means. When you see it, you know it. But that's not to say there can't be other interpretations. It's a judgment about what you can do within Canada.
Senator Housakos: Would you agree that the government would need broader instruments to be able to execute?
Senator Andreychuk: No.
Senator Housakos: You don't think so? They can do it within the confines of what they have?
Senator Andreychuk: Yes. I would say one thing: We had witnesses already on this topic, and I propose to introduce a motion — I don't know if we have one ready — to apply the evidence that we had before so that senators who have not been part of this committee can read that, and for some of us who have been here, to remind us of what that testimony was. Should I be moving that?
The Deputy Chair: No. We have to wait for the next meeting, or you will have to leave. A witness can't move a motion for a committee, but you can come back in the chair and move the motion, or do it at the next meeting.
Senator Andreychuk: I can vacate the witness chair and become a member.
The Deputy Chair: Yes, apparently you now can do it, I've been advised. And if that's wrong, it's the clerk, not me.
Senator Andreychuk: I want to thank senators. I'm not always articulate on this topic, because I sometimes see the minutia of everything, and I encourage everyone to get briefings, and I would like to have more witnesses who are going to be more articulate and passionate than I am on this topic. I think it will be helpful.
Your questions are the ones that will be dealt with as we go through the testimony.
Senator Housakos: I think you're pretty articulate.
Senator Andreychuk: That's a judgment call, and you said we shouldn't have judgment calls.
The Deputy Chair: We're going to distribute the motion. We have it in both languages.
Senator Andreychuk: I move:
That the list of witnesses who appeared before the committee on March 10, 2016, and May 18, 2016, along with a list of all briefs, documents and testimony received for those meeting days by the Standing Senate Committee on Foreign Affairs and International Trade, be appended to the official minutes of this committee proceeding.
The Deputy Chair: Is it the pleasure of senators to adopt the motion?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
(The committee adjourned.)