THE STANDING SENATE COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
EVIDENCE
OTTAWA, Friday, June 3, 2022
The Standing Senate Committee on Foreign Affairs and International Trade met with videoconference this day at 10:30 a.m. [ET] to study Bill S-8, An Act to amend the Immigration and Refugee Protection Act, to make consequential amendments to other acts and to amend the Immigration and Refugee Protection Regulations.
Senator Peter M. Boehm (Chair) in the chair.
[Translation]
The Chair: My name is Peter Boehm. I am a senator from Ontario and Chair of the Standing Senate Committee on Foreign Affairs and International Trade.
Before we begin, I would like to introduce the members of the committee participating in today’s meeting: Senator Gwen Boniface from Ontario; Senator Mary Coyle from Nova Scotia; Senator Marty Deacon from Ontario; Senator Amina Gerba from Quebec; Senator Peter Harder from Ontario, Deputy Chair of the committee; Senator Victor Oh from Ontario; Senator Ratna Omidvar from Ontario; Senator David Richards from New Brunswick; Senator Yuen Pau Woo from British Columbia.
[English]
I wish to welcome all of you as well as people across Canada who may be watching. We are conducting a hybrid meeting. I’d like to remind senators and witnesses taking part by video conference to please keep your microphones muted at all times unless recognized by the chair. I will ask senators to use the “raise hand” feature to be recognized. Those present here in the committee room can signal to the clerk their desire to ask questions or to comment.
Today, we begin our consideration of Bill S-8, An Act to amend the Immigration and Refugee Protection Act, to make consequential amendments to other Acts and to amend the Immigration and Refugee Protection Regulations. Bill S-8 was referred to our committee by the Senate on May 19.
To discuss the matter during the first hour, we have before us a number of government officials from various departments and agencies. From Canada Border Services Agency, the CBSA, we welcome Mr. Richard St Marseille, Director General, Immigration and External Review Policy, and Mr. Scott Nesbitt, General Counsel, Department of Justice. From Immigration, Refugees and Citizenship Canada, we welcome Helen Robertson, Director, Admissibility; Sean McNair, Director, Integrity Risk Management; and Mark Henry, Acting Director, Refugee Affairs. We also have representatives from the Immigration and Refugee Board of Canada: Gregory Kipling, Deputy Chairperson, Immigration Division, and Julie Wellington, Senior General Counsel. From Global Affairs Canada, we have with us Andrew Turner, Director, Eastern Europe and Eurasia Bilateral Relations, and Stephen Burridge, Director, Sanctions Policy and Operations Coordination.
Welcome, everyone. Thank you for being with us. My understanding is that Mr. St Marseille will be giving the opening remarks. These will be, of course, followed by questions from senators.
Mr. St Marseille, the floor is yours.
Richard St Marseille, Director General, Immigration and External Review Policy, Canada Border Services Agency: Good morning, chair and members of the committee. Thank you for inviting me to participate in this important discussion today.
As you are aware, on February 24, 2022, Russian forces initiated an unprovoked and unjustifiable invasion of Ukraine. Since the invasion of Ukraine commenced in February, the Government of Canada has imposed sanctions under the Special Economic Measures Act, or SEMA, on over 900 individuals in Russia, Ukraine and Belarus.
The basis for issuing these sanctions pursuant to the SEMA is that a grave breach of international peace and security has occurred, which has resulted in the serious situation that we see today.
The proposed legislative amendments to the Immigration and Refugee Protection Act, or IRPA, in Bill S-8 will provide Canada with much-needed abilities to better link government sanctions with authorities related to immigration enforcement.
As the IRPA is currently written, its inadmissibility provisions do not align with the basis for imposing the majority of SEMA sanctions issued against Russia. This means that most individuals sanctioned pursuant to the SEMA may nevertheless have unfettered access to travel to, enter or remain in Canada if they are not otherwise inadmissible. Legislative amendments are required to align the IRPA sanctions inadmissibility regime with that of SEMA.
Today I have the privilege of speaking to you about Bill S-8, An Act to amend the Immigration and Refugee Protection Act, which will, among other things, align the IRPA with the SEMA, to ensure that all foreign nationals subject to sanctions under the SEMA will also be inadmissible to Canada.
This means that not only will foreign nationals sanctioned due to the invasion of Ukraine be inadmissible to Canada but also all previously sanctioned individuals from Iran, Myanmar, South Sudan, Syria, Venezuela and Zimbabwe.
These amendments will also modernize the sanctions inadmissibility framework set out in the IRPA. The amendments in this bill will allow for all sanctions-related inadmissibility to be treated in a cohesive and coherent manner; strengthen inadmissibility legislation that we have in place, rendering persons subject to sanctions inadmissible to Canada; and ensure that the sanctions imposed by the Government of Canada will have direct consequences in terms of immigration and access to Canada. They will allow Immigration, Refugees and Citizenship Canada officials to refuse temporary and permanent resident visas overseas, and they will authorize Canada Border Services Agency officials to deny entry to and remove from Canada individuals subject to sanctions.
This approach also aligns with and builds upon recent legislative and parliamentary activity such as the 2017 report by the Standing Committee on Foreign Affairs and International Development entitled A Coherent and Effective Approach to Canada’s Sanctions Regimes: Sergei Magnitsky and Beyond.
The committee recommended that IRPA ought to be amended to designate all individuals sanctioned under SEMA as inadmissible to Canada. This was partially achieved in 2017 when the Justice for Victims of Corrupt Foreign Officials Act, also known as the Sergei Magnitsky Law, or Bill S-226, came into force. Bill S-226 created two new sanctions-related provisions that resulted in inadmissibility under the IRPA; however, these amendments did not fully align with the standing committee’s recommendation. Bill S-8 will ensure that recommendation is fully addressed.
There are additional complementary and consequential amendments in Bill S-8 that are required to align the inadmissibility provisions with sanctions provisions while maintaining the integrity of both frameworks. This includes, for instance, adding a temporal element to sanctions inadmissibility provisions, which means that a person would only be inadmissible for as long as they’re subjected to a sanction.
In addition, Bill S-8 will provide delegated CBSA officers with the authority to issue removal orders at ports of entry to all individuals inadmissible for sanctions, should a foreign national arrive at a Canadian border.
Both of these components already apply to inadmissibility for unilaterally imposed sanctions. Bill S-8 will bring the multilateral sanctions inadmissibility in line to ensure a cohesive sanctions inadmissibility framework. Moving forward with this bill will ensure that the Government of Canada’s comprehensive sanctions framework has meaningful consequences not only from an economic perspective but from an immigration and access to Canada perspective as well. Thank you. This concludes my opening remarks, and I would be happy to take any questions from committee members, Mr. Chair.
The Chair: Thank you very much, Mr. St Marseille.
Colleagues, the floor is open.
Senator Omidvar: Thank you to our witnesses for being with us today. I have a question of clarification.
SEMA sanctions not just individuals but also entities. How does this inadmissibility play out with, let’s say, an entity that has shareholders? How does that work?
The Chair: Mr. St Marseille, I’d ask you to respond, or if you want to delegate to one of your colleagues, please do so and indicate who it’s going to be. Whoever answers, please indicate who you are. Thank you.
Mr. St Marseille: Thank you for the question. With respect to sanctions against entities, the Immigration and Refugee Protection Act nevertheless would require an individual to be named. It’s only in the event that a sanction is issued against an entity and also against an individual that the inadmissibility would apply.
Senator Omidvar: Thank you so much for that answer. I understand that.
I have a question about — and I guess you’ve answered it — the individual who was inadmissible must be named in the sanctions. I was wondering about family members of sanctioned individuals and whether inadmissibility applies to them as well.
Mr. St Marseille: With respect to family members, there are already provisions in the Immigration and Refugee Protection Act related to inadmissible family members. We’re proposing, or Bill S-8 proposes, to align how sanctions inadmissibility is treated with what already exists in the Immigration and Refugee Protection Act relative to inadmissible family members.
With that, I would invite my colleague Ms. Helen Robertson from Immigration, Refugees and Citizenship Canada, or IRCC, to give a bit more colour in terms of how the provisions regarding inadmissible family members work in the Immigration and Refugee Protection Act today.
Helen Robertson, Director, Admissibility, Immigration, Refugees and Citizenship Canada: Thank you. As Mr. St Marseille said, there’s an existing provision for inadmissibility of family members. In this situation, under the regulations, family members are defined as a spouse or a common-law partner, a dependent child or a dependent grandchild. The act already provides that a family member travelling together with an inadmissible person, such as a sanctioned individual, would also be inadmissible to Canada. In some circumstances, if the person is travelling by themselves but they are a family member of a sanctioned individual, they would also be inadmissible to Canada.
Senator Omidvar: Thank you very much.
Ms. Robertson: All that’s happening now is a reflection of renumbering. There’s no change in policy there.
Senator Omidvar: Thank you. I’d like to know how many sanctioned individuals under Special Economic Measures Act, or SEMA, or the Sergei Magnitsky Law have actually been admitted into Canada. Do we have any evidence?
Mr. St Marseille: With respect to the Special Economic Measures Act, the current volume of individuals who have been sanctioned, and this is data as of May of this year, is 1,858. Of those, because the SEMA inadmissibility grounds don’t perfectly align with IRPA inadmissibility, we don’t have data to indicate how many have been admitted, because if Bill S-8 does not reach Royal Assent, they would not be inadmissible. We haven’t tracked that level of information.
What I can tell you is that, generally, with respect to the sanctions that exist and that do apply to inadmissibility, every case we are aware of, save one, has been identified abroad by our Immigration, Refugees and Citizenship colleagues, and they’ve been denied visas overseas. With respect to the inadmissibility framework that exists today vis-à-vis sanctions — that’s Sergei Magnitsky Law sanctions and the existing multilateral sanctions — they’ve proved quite effective in denying access to Canada abroad, before anyone ever arrives at the border.
The Chair: Thank you.
I had neglected to offer the usual guidelines in my preliminary remarks about the length of questions and answers, and we’re at our usual four minutes, including both the question and the answer. I ask both colleague questioners and, indeed, our witnesses to be as concise as possible.
Senator Boniface: If this has been answered, I apologize. For some reason, the sound cut out on my end when you were speaking.
This is to the Immigration and Refugee Board. Can you clarify the transitional provision in Bill S-8 of sanctions made before coming into force? Does this clause mean that sanctions under subsection 35.1(1) are applicable before the act receives Royal Assent?
Gregory Kipling, Deputy Chairperson, Immigration Division, Immigration and Refugee Board of Canada: I can respond to that. With respect to any cases that have been referred to the Immigration and Refugee Board prior to Royal Assent, those cases remain under the jurisdiction of the Immigration and Refugee Board to finalize.
Senator Boniface: Thank you for that. Have any of Canada’s partner countries implemented measures similar to those found in Bill S-8? If so, which countries, and what was their timing on these issues?
The Chair: Mr. Kipling, are you comfortable with that as well?
Mr. Kipling: Mr. St Marseille would be the best person to respond to that question.
Mr. St Marseille: Thank you for the question. With respect to other countries, they have very different inadmissibility frameworks. For instance, in the United States, there’s more of a declaratory authority from the Secretary of State, where they can declare inadmissibility. We don’t have a similar type of authority in the Immigration and Refugee Protection Act. That would be the closest comparison, but with respect to other countries, I’m not aware of whether they are pursuing inadmissibility changes like this.
Senator Coyle: Thank you to our witnesses today. We’re talking about preventing people from coming into Canada who are sanctioned, but we’re also talking about removing people who are already here. I’m interested in the aspect of the removals.
Have we got much experience prior to this with removals of people who have been sanctioned previously? What are we anticipating in terms of removals when this comes into law, if this does come into law?
Mr. St Marseille: At Canada Border Services Agency, or CBSA, we have extensive experience in the removals line of business. However, with respect to sanctions inadmissibility cases to date, there have been no actual removals because the system has been quite effective in terms of stopping people from arriving in the first place. We expect this trend to continue under Bill S-8, and we expect that the provisions would result in visa refusals and the inability to travel to Canada in the first place rather than removals from Canada.
Senator Coyle: Thank you. I had assumed that might be the case, but this, at least, gives that power if such a case were to arise.
This question might be for Ms. Robertson. I’m interested in this issue about the family members of those who are sanctioned. Is there any provision if, for instance, family members of those who are sanctioned have Canadian citizenship or some immigration or citizenship status in Canada?
Ms. Robertson: If that were to be the case, the family member would be unaffected by the inadmissibility. Are you asking whether the connection to a citizen would change the inadmissibility of the individual?
Senator Coyle: Yes, in particular when it has to do with children.
Ms. Robertson: A child who is a Canadian citizen would not be inadmissible. If the sanctioned individual were a Canadian citizen, then there would be no inadmissibility either. Does that answer your question, or have I not quite gotten there for you?
Senator Coyle: Yes. I’m trying to look at all the permutations of this. That makes sense. Thank you for helping me think it through.
Senator M. Deacon: Thank you to our witnesses for being here today. I appreciate it.
My question is a bit hypothetical, an example, perhaps, of the world we live in. Say, there’s the possibility of an illicit individual from Russia, for instance, who is being sanctioned and who arrives on our shores, denounces the Putin regime and claims asylum. What would the process be then? Would they still be removed and sent back in a case like that, or is there some discretion on the part of the border official in enforcing this type of law?
Mr. St Marseille: Thank you for the question.
In the circumstance that you’ve identified, Bill S-8 would change the framework to align both unilateral and multilateral sanctions so that any person who is sanctioned would still be eligible to make a claim for refugee protection. They would still have access to a full pre-removal risk assessment.
So in the circumstance that you’ve identified, if the person arrived and made a refugee claim, it would have to be determined whether they were eligible or ineligible to make that claim per the existing procedures at the border.
If they were eligible — and unless there’s another reason besides sanctions, they would be eligible — then they would be authorized entry to Canada for the purpose of completing that refugee claim.
Senator M. Deacon: Thank you. I will take it in another vein on this.
Before I ask this question, I would like to say that I do support this legislation, but for my own understanding, I do want to understand this: Is this change that we’re looking at in Bill S-8 largely a symbolic one? For instance, an individual is sanctioned so we, of course, don’t want them to be here, or is there a strategic aspect to this that perhaps I’m overlooking?
Mr. St Marseille: Yes. So the proposed legislation does have a very tangible, material impact on a person’s inadmissibility or admissibility to Canada. Today, if Bill S-8 were not to pass, unless they’re inadmissible for another reason, all of the individuals who were sanctioned for grounds that aren’t currently listed in the Immigration and Refugee Protection Act would be admitted to Canada.
So we’re expecting that the area of impact here is roughly 2,200 individuals that are currently listed under various sanctions grounds that would become inadmissible if Bill S-8 were to pass.
Senator M. Deacon: Thank you. I heard that 2,200. I had a hard time hearing the response to Senator Omidvar. Could you clarify again how many times sanctioned individuals have tried to enter Canada?
Mr. St Marseille: I have data from 2017 to present. Under the current multilateral sanctions inadmissibility provision, there’s been 10 visa refusals overseas.
For the current Special Economic Measures Act sanctions that trigger inadmissibility, there have been five visa refusals since 2017.
Then for the Magnitsky Law sanctions there have been 10 visa refusals since 2017.
The Chair: Thank you for that precision.
[Translation]
Senator Gerba: My question is for Mr. St Marseille and concerns clause 13 of Bill S-8.
Since the beginning of the war in Ukraine, more than 1,000 Russian and Belarusian individuals have been targeted by Canadian sanctions. Here is what I would like to know. Will those individuals all automatically be denied entry to Canada or expelled, if they are already here?
[English]
Mr. St Marseille: Thank you for the question.
With respect to individuals who are currently sanctioned who will become inadmissible when the bill comes into force, those individuals will become inadmissible as of the coming into force; they could be denied visas and also removed from Canada should they arrive at a Canadian port of entry after the bill comes into force.
If I understand your question correctly, in clause 13 of Bill S-8, that transitional provision only determines who can issue the removal order should one of these people arrive.
Today, for multilateral sanctions, it’s a member of the Immigration and Refugee Board. Under Bill S-8, it would change to become an officer of the Canada Border Services Agency. So the transitional provision only changes who issues the removal order and that’s so that we could have a more effective enforcement capacity at the border, at a port of entry, by issuing the removal order directly there, instead of in Canada at an admissibility hearing.
Senator Woo: Would it make a difference if a sanctioned individual seeks entry to this country as a formal representative of that person’s country, say as a diplomat or as a party in a delegation to negotiate anti-corruption, peace talks or something that gets at the underlying issue for which the person was sanctioned in the first place?
Somewhat hypothetical, but my point here is whether an individual having diplomatic-type credentials would obviate this prohibition on admission.
Mr. St Marseille: Thank you.
As currently drafted in Bill S-8, there is no specific exemption for diplomatic status. So were there a desire for the Government of Canada to facilitate the entry of those individuals, there are other provisions that exist in the Immigration and Refugee Protection Act to facilitate that, should there be a desire to do that.
Senator Woo: If I could follow up, would these other provisions to facilitate the entry of sanctioned individuals, could they be done relatively quickly or would it be a long application process with appeals and so on and so forth?
Mr. St Marseille: I believe they could be quite efficient. But I would turn that question over to my colleague Ms. Helen Robertson at the IRCC.
Ms. Robertson: Thank you.
The main facilitation option that we would have is only used in exceptional circumstances. It would be a temporary resident permit, which would allow a person to enter Canada when it’s justified in all the circumstances.
The temporary resident permit does not remove the inadmissibility. And the decision-making for that permit is reserved to a very senior official at the level of the assistant deputy minister or above given the importance of balancing whether it’s in the interest of Canada to allow a sanctioned or an inadmissible person to enter Canada.
Senator Woo: Thank you. That’s very helpful.
The Chair: We will move to the second round.
Senator Omidvar: My question is to the officials from Immigration, Refugees and Citizenship Canada, and it has to do with the new provision in this bill that sanctioned individuals under SEMA or Magnitsky will be able to claim asylum in Canada and the other processes that are attached to seeking asylum in Canada.
I don’t know if you have this information, but can you tell me if sanctioned individuals have previously applied for asylum; and, if so, how many?
Mark Henry, Acting Director, Refugee Affairs, Immigration, Refugees and Citizenship Canada: Thank you for the question. Unfortunately, I don’t have that information at hand.
If I understand, you’re asking if someone who is subject to sanctions has previously come to Canada and sought asylum?
Senator Omidvar: No. It does say in our briefing note that individuals sanctioned under the multilateral regime with the UN are able to come to Canada and claim refugee status, and now under SEMA and Magnitsky they would be able to.
I’m curious if there has been a demand or you’ve had some experience here, or is there something you’d like to share with us based on evidence?
Mr. Henry: Thank you for the clarification. I’m not aware of how many or of the extent to which certain individuals may have sought protection in those circumstances. I can say the intention is to allow anyone subject to sanctions the opportunity to claim asylum, whether they are multilateral or unilateral sanctions. The intent is to clarify what has been acknowledged as a bit of an inconsistency. Some sanctions allow it; others don’t. This would create a uniform allowance for that.
Senator Omidvar: Thank you.
Senator Richards: I’m wondering about the refugees coming now, and I’m very glad they are. I want to state that. It’s great that Canada is doing this, and I hope we take more. Are they being investigated through any channels for their participation or lack of participation in any kind of activity that might not grant them asylum? Are they given a fast junction through our immigration ports?
Mr. Henry: Could you repeat the question?
Senator Richards: I’m asking if the refugees coming now have been investigated for any untoward activities.
Mr. Henry: Yes. Anyone coming to Canada now and claiming asylum, even though subject to sanctions, would go through the same process to assess their eligibility to make a claim. That includes an assessment of serious criminality, human rights violations and organized criminality. That happens now, and that would continue should Bill S-8 come into force.
The Chair: Thank you very much. We have a small conundrum. We have Senator MacDonald who would like to ask a question, but Senator MacDonald is in his car and our rules do not permit that. It has to be from a stationary place. If you can hear me, Senator MacDonald, are you prepared to put your question into the chat, and we can read it out and someone can respond?
Senator MacDonald: I will do — [Technical difficulties]
The Chair: We cannot hear you at this point. In the meantime, I will use my prerogative as chair to ask a question. I know we have representatives from Global Affairs Canada here. The science, if I can call it that, of sanctions and sanctions policy is relatively new in many countries, as it is in ours. In fact, both SEMA and Magnitsky are coming up for parliamentary review as per the original legislation.
Since there is so much discussion going on now, particularly with respect to the war in Ukraine, is this issue top of mind, not just at the technical level? In other words, when the leaders are conversing, when foreign ministers are meeting, it seems to me this is a transversal issue.
Andrew Turner, Director, Eastern Europe and Eurasia Bilateral Relations, Global Affairs Canada: As a former Senate page, it’s wonderful to be here. The program was the start of my career in public service, and I always take the opportunity to commend the Senate for the remarkable opportunity it provides to young people.
The issue is very much top of mind at the high-level discussions because the goal of our sanctions policy is to increase pressure on, in this particular case, the Russian regime by whatever means possible, including by targeting the elite who are able to profit from their access to travel to other countries. This ability provides them with an outlet. However, making them inadmissible and restricting their travel puts more pressure on them and hopefully leads to more dissent and more challenging of the regime’s policies. It is not only something that has been discussed, but it is an explicit request we have had at times from our Ukrainian counterparts to make sure that inadmissibility is included for all of the provisions under SEMA, as opposed to only some of them. Particularly right now, the “grave breach of international peace and security” is the primary mechanism that we are sanctioning Russian individuals under, and that does not currently trigger the inadmissibility provisions.
The Chair: Thank you for your service in the Senate. It seems that legislative instruments are obviously different in different countries and different zones. In Europe you, have the Schengen area as well. Is there an effort being made to exchange best practices with respect to listing and identification? Because the lists tend to be different and individuals are identified differently in some countries, including our own.
Mr. Turner: Certainly we have regular exchanges with our like-minded colleagues on sanctions so we are exchanging information about our plans for listing and about discussions about changes to our frameworks to take new steps; so there are active and regular exchanges.
As you say, because things cannot line up perfectly, the lists that are put out are never identical, but we try to take whatever measures we can to ensure a broad alignment of approaches.
In some cases, we have already listed some individuals going back to 2014 that our like-minded are only listing now. In some cases, they have authority to list people we don’t, but we exchange so we can try to be as coordinated as possible.
Stephen Burridge, Director, Sanctions Policy and Operations Coordination, Global Affairs Canada: Mr. Turner covered it very well. I would add that, from a broader sanctions perspective, all of those sentiments ring true in terms of coordination and collaboration with our like-minded. There are differences in the way and the authorities that each country has to list individuals or to impose certain prohibitions. While there can be variants, exactly as Mr. Turner indicated, we certainly strive towards to be as closely aligned as possible to increase that pressure, whether it is in the case of Russia or elsewhere.
The Chair: Thank you very much. I’m pleased to read Senator MacDonald’s question into the record and see if we can get a response:
When he spoke on Bill S-8, Senator Harder stated that Bill S-8 would “align IRPA with SEMA to ensure all foreign nationals subject to sanctions under SEMA will also be inadmissible to Canada.” I would like to better understand what this actually means. Is it accurate to say just because one is legally inadmissible to Canada, that does not necessarily mean that they been removed from Canada? Is that correct?
Mr. St Marseille: With respect to that, there are actually three material changes that are happening to align the SEMA with the IRPA. The multilateral sanctions inadmissibility that exists today only applies when a sanction is imposed on a country and an individual. One change is to remove that requirement that a country be sanctioned and add a person or an entity. That would align with the SEMA triggers.
The other one, as our colleagues from Global Affairs mentioned, is the “grave breach of international peace and security” trigger. That is the trigger upon which the majority of sanctions have been issued, particularly with respect to the situation in Ukraine.
Those two changes are material changes that will align the SEMA and the IRPA framework to ensure when a sanction is issued, it results in inadmissibility.
When we talk about inadmissibility, it doesn’t always mean removal from Canada. Inadmissibility is applied abroad by IRCC officers in the visa-screening process. It could mean refusal to get a visa to travel to Canada. At the border, it would mean refusal to be admitted. If a person doesn’t voluntarily withdraw, for instance, then they could be issued a removal order and removed from Canada upon that basis.
The Chair: I have the first of Senator MacDonald’s two follow-up questions:
Do witnesses from CBSA and Immigration Canada know how many foreign nationals are currently in Canada who have been deemed inadmissible but actually still remain in Canada? That is a variant on an earlier question.
Mr. St Marseille: With respect to sanctions inadmissibility in particular, we are not aware of any person inadmissible on the basis of sanctions who is in Canada today. Everyone who has been identified and declared as inadmissible has been refused abroad.
The Chair: Senator MacDonald follows up here on that point to ask this:
One potential example, Khaled Barakat, a highly placed operative for the Popular Front for the Liberation of Palestine, resides in Canada and easily and casually splits his time between Vancouver and Montreal. Barakat has lived in Canada off and on for nearly 20 years, currently residing in Vancouver, even though he has been deported from the United States.
Would someone respond to that rather specific case, please?
Mr. St Marseille: I’m unable to give particulars with respect to a specific individual. I’m not aware of that particular case and whether there is a sanction issued against that individual. I’m not sure if my colleagues from Global Affairs have any information with respect to sanctions imposed.
The Chair: While you are thinking about that, I have the rest of the question: Even though he has been deported from the United States and Germany, the Government Representative in the Senate, Senator Gold, made the following comment on that case a few weeks ago:
The CBSA has a legal obligation to remove inadmissible individuals as soon as possible when that determination has been made. . . . everyone who may be ordered removed remains entitled under our system of justice to due process and is subject to many levels of review and appeal.
“As soon as possible” in this case evidently means 20 years and counting.
Does anyone want to respond or comment?
Mr. St Marseille: If I may, with respect to that, the CBSA, of course, has a statutory obligation to remove any inadmissible person as soon as possible. In that context, the qualifier for “as soon as possible” applies to after the person has been found inadmissible and issued a removal order and the removal order comes into force and related mechanisms of appeal have been exhausted. Within the confines of the law, the CBSA does administer the removals program in conformity with that commitment.
The Chair: Thank you very much for that. I would like to thank our witnesses for appearing today. That was very useful. I wish you well as you log off into your respective weekends.
For our second panel we welcome Mario D. Bellissimo, lawyer from the Bellissimo Law Group and Professor Andrea Charron, Director of the Centre for Defence and Security Studies at the University of Manitoba. Each of our witnesses has a brief statement to make. I would like to thank them for being here.
Mario D. Bellissimo, Lawyer, Bellissimo Law Group, as an individual: Good morning. Thank you for the invitation to discuss and explore Bill S-8. In our brief, based upon a limited time to review, we make five recommendations we hope will advance the study and decision making surrounding the bill.
So why the recommendations? Well, the result of expanded sanctions encompassing countries, entities and persons on new economic, geographic grounds, et cetera, perhaps even in the absence of any personal wrongdoing, adds to an unease regarding the equivocality, scope and practical application and administration of the bill.
Our first recommendation is the requirement for legislative clarity regarding the definition and legal scope of sanctions. As we heard earlier today, the international or multilateral sanction has been in place in the IRPA for 20 years and, for the Special Economic Measures Act, SEMA, and the Justice for Victims of Corrupt Foreign Officials Act, for about 5 years. Make no mistake, the current law is very robust and restricts access to most any immigration and refugee status for foreign nationals and their families, but there remain limited remedial rights under the act.
Bill S-8, based on our reading, expands and contracts the inadmissibility provisions. It separates the word “sanctions” as a standalone, divorced from “grounds of violating human or international rights.” It further expands the grounds for inadmissibility pursuant to all of section 4 of the SEMA in two material ways: one, it includes economic measures against a foreign state; two, and I am paraphrasing, as a result or potential result of a grave breach of international peace and security.
It also eliminates all access to the immigration division and/or ministerial relief. There would be no hearing permitted, which is now permitted for those subject to international sanctions. At the same time, the bill permits full eligibility to make a refugee claim and ceases inadmissibility if sanctions, et cetera, are rescinded.
We endorse these final two amendments. Still, though, a number of questions flow. I will mention a few. We set out many in our brief but just a few. Will the word “sanctions” and the word “entity” be defined for the purposes of the IRPA and the regulations? It is unclear why the bill’s new proposed section 35.1(1) of the IRPA cannot simply be aligned with the current wording, which should read, “sanctions for human or international rights violations.” Will the human or international rights violations still be a requirement? And should the same legal consequences under the IRPA result, regardless of personal wrongdoing?
This is all very important because subject-matter experts in the Canadian sanctions regime, like my esteemed co-panellist Dr. Charron, and the prior Senate study that was referenced today raise a number of acute issues with the sanctions regime. There are too many to recite here, but they include the need for parliamentary oversight, better coherence and compliance, timely and independent redress avenues, accountability, transparency and other practical challenges.
Put plainly, if even a few of these concerns persist, moving forward on this sanctions foundation could negatively impact many individuals whom the law was not intending to capture, including children. Equally troubling, though, it may not exclude the bad actors because the law becomes immersed in legislative ambiguity and applicatory limitations, resulting in procedural and fairness concerns and potentially even rising to the level of constitutional concerns.
Given all this, we recommend the same legislative clarity under recommendation 2 for the Citizenship Act and the Emergencies Act. As for recommendation 3, given the legal and practical challenges at play, we recommend timely access to ministerial relief and that access to the immigration division remain in place, perhaps even the exploration of safety valves to the Immigration Appeal Division.
It is a complex spider web. As just one example, Canada continued to leave sanctions in place against a foreign state like Liberia long after the United Nations lifted them. What happens to a Canadian citizen, permanent resident, foreign national or dependent family member under that scenario under citizenship and immigration law? In recommendation 4, we underscore the need to resolve the potential unintended consequences for dependents. If recommendation 3 is adopted, it would assist at minimizing concerns regarding potential overbreadth. Finally, in recommendation 5, we rely on David Matas’s brief, which I understand is before the Senate. Granting of refugee status should result in immediately listing, and access to refugee status should be uniform both in and outside of Canada. These recommendations, in our view, would better facilitate the harmonious intersection of Bill S-8 with other domestic and international legislation so that the context, the object of the acts and the clear intention of Parliament are ultimately realized. Thank you.
The Chair: Thank you very much, Mr. Bellissimo.
Andrea Charron, Director, Centre for Defence and Security Studies, University of Manitoba, as an individual: Thank you very much for the privilege of providing my thoughts.
The trend in Canada has been to create new legislation to fix sanctions issues, but the issues are often not a problem of legislation but of process and policy. First, what is the problem these changes are trying to fix? Was there a case of a foreign national under sanctions who was inadmissible who gained access to Canada? Based on the testimony today, this seems not to be the case. If it were, it would be appropriate to ask if this was the fault of legislation, enforcement or some other factor. The Immigration and Refugee Protection Act, IRPA, could accommodate inadmissibility due to sanctions before these proposed changes, so this legislative change, I suggest, would benefit from a requisite policy review.
Second, does Canada want every foreign national targeted under SEMA to be inadmissible automatically, or does the Canadian government want the continued ability to layer sanctions and to delist in stages too? What is more, SEMA is usually used to stigmatize whole states — these are called geographic sanctions. In the absence of naming individuals — which we may not wish to do for a variety of reasons or Canada may be slow to produce a list — it is not clear to me what inadmissibility means in this context and if this would make it more or less likely that Canada’s sanctions would align with our allies.
The main policy and process problems are that Canada is not always clear about the reasons for sanctioning or the conditions to be met for their lifting. This is because the triggers for imposing regulations versus the reasons for listing individuals under the SEMA do not need to correspond. This means that the value of sanctions, i.e., communicating to the target the transgression and desired outcome, are fuzzy. For example, while a regulation may be implemented due to gross and systematic human rights violations in a country, an individual may be listed for being a senior official in the governing regime in which a grave breach of international peace and security has occurred and has resulted in or is likely to result in a serious international crisis, which is the case for many listed under the SEMA under the Russian regulations.
On the one hand, the changes proposed make it clearer that a foreign national can be inadmissible if under sanctions. On the other, it does not change the fact that the communication and coordination of sanctions still need strengthening. The problem is the reason to sanction is not clearly articulated. Further, there is still no icon on the Global Affairs website to indicate to look for inadmissibility other than to know to look for the IRPA. Canada does not inform targets that they are sanctioned, and Canada still cannot sanction entities under the Justice for Victims of Corrupt Foreign Officials Act, also known as the JVCFOA or the Magnitsky Law.
Rather than making piecemeal changes to legislation, and given the fact that autonomous measures shall be applied more and more in the future given paralysis at the UN Security Council, I have six suggestions.
First, a comprehensive review of the SEMA and JVCFOA as is noted in section 16 of the JVCFOA given the 5-year anniversary of changes to both, with particular focus on the progress from the Standing Committee on Foreign Affairs and International Development’s report, which had 13 recommendations to improve the effectiveness of Canada’s sanctions, is needed. Second, tell targets they are sanctioned, as our allies like the EU do. Third, a review of the quality of evidence used to name targets and entities is needed. It is publicly sourced evidence, yet we do not list birthdates or passport numbers as the UK and EU do, even if our names are the same. Fourth, Canada’s consolidated list is still too cumbersome to search and Canada does not provide any push notifications of changes as do our allies. Fifth, we need to signal in SEMA under section 4(2) and in the JVCFOA under section 3, under restricted prohibited activities, that inadmissibility is a possible measure. Last, while the Freezing Assets of Corrupt Foreign Officials Act, or FACFOA, is not considered to impose sanctions per se, if one can be inadmissible for corruption via the SEMA and the Magnitsky Act, why not for the FACFOA?
While there is nothing wrong with highlighting in the Immigration and Refugee Act that inadmissibility due to sanctions is possible, this repeats a pattern whereby Canada tinkers on the margins of legislation without addressing core policy and process issues. If we are to continue to sanction autonomously with allies, we need to fix fundamental issues of policy and process. Thank you.
The Chair: Thank you for your comments. I would like to thank you both for very useful statements.
[Translation]
Senator Gerba: I thank our witnesses. My question is for Mario D. Bellissimo. Clause 6 of Bill S-8, which adds new subsection 35.1(2) to the Immigration and Refugee Protection Act, specifies that someone who is no longer targeted by sanctions ceases to be inadmissible. Do you think this provision is sufficient to ensure the reversibility of inadmissibility once the individual is no longer subject to sanctions?
[English]
Mr. Bellissimo: Thank you for the question, senator. It’s helpful that inadmissibility ceases upon a sanction being removed, but the problem that occurs in that scenario is where that sanction has to be removed. We just heard from Dr. Charron about the difficulties related to push notifications. Is the sanction removed by the United Nations or by Canada in concert? And how long does this process take?
Our concerns, by infusing this entire regime in the immigration and inadmissibility scheme, as it currently reads, it just infuses incredible uncertainty as to who and why people are affected by it and how long the delisting process will occur when someone is tied up in that. As it is now, with ministerial discretion under IRPA, it can take three, four or five years. If we are talking about putting people’s lives on hold — children, dependents — for that long, we need legislative clarity to understand what happens and when. Right now, in our reading of the act, it’s skeletal. It gives us some indications. The main question we need answered is: Are we divorcing sanctions from international and human rights violations? If that divorce is intentional, what does it mean in law? Does it mean that anyone from a certain geographic region is going to be sanctioned regardless of personal wrongdoing? We heard today an individual and an entity would be listed. That’s helpful, but clearly a dependent wouldn’t be listed, so what about them?
I can go on and on. We get into a snakes and ladders scenario. I think, given the importance of this legislation and given the challenges we are facing, we need to be a little more refined and clear so we don’t get caught into a legislative battle and interpretive challenges over the years. Thank you.
[Translation]
Senator Gerba: I just wanted to know whether sanctions that limit those mobility rights are a truly effective method to make people change their behaviour.
[English]
Ms. Charron: Thank you. It potentially can be, but there is no one magic sanction that is going to make anybody, least of all the Putin regime, sit up and think, “I need to change my foreign policy.” It’s usually the layering of sanctions and doing it in concert with allies, but it takes time.
Certainly, travel sanctions in the past, for example, when Charles Taylor, the President of Liberia, and his family were sanctioned, that did change his calculus. But it’s all about having those targeted sanctions. So they need to be different for each regime and each change in behaviour that we’re trying to achieve.
Senator Woo: My question is in the spirit of trying to get our witnesses to say a bit more to help us understand the problems that they see in this bill.
As I understand it, they’re telling us that this bill is a solution to a problem that doesn’t exist, and yet there are problems in the sanctions regime, prior to the question of inadmissibility, that need to be addressed. These problems have to do with imprecise explanations of why the sanctions were imposed in the first place.
I’m offering a précis that may be inaccurate. I do it partly as a question but mostly to get you to talk a bit more about what we need to be thinking about, not only in regard to this bill but also more broadly about challenges and difficulties in the sanctions regime.
Ms. Charron: Thanks very much. I have been asking for a review of our sanctions machinery and architecture for years, because we just keep layering on more legislation. Yet, for example, the Magnitsky Law hasn’t been used in three years now. We cannot target entities under the Magnitsky Law. There’s still confusion about what exactly “property” means. There is also the fact that the penalty is $25,000 for the SEMA and the JVCFOA but $100,000 for the UN act.
There are so many questions, especially because sanctions are given effect by third parties. It’s banks, real estate agents, individuals and university administrations that have to be aware of how sanctions work and know when to raise the red flag to say, “I think perhaps there’s somebody who should be looked at a second time,” or not.
That’s why rather than, again, changing the legislation — and I note there’s another change being advocated by another senator to the JVCFOA — I think we need to pause and think in terms of how we can make our legislation work with our allies. In this age of geopolitical strategic competition and the UN no longer being the primary sanctioning authority, these autonomous measures have to be done in concert. We know there are very different pieces of legislation at work, but there are ways — through policy, process and coordination — that we can make the sanctions more effective.
Finally, for sanctions, the goal should never be quantity; it should be about the quality. Whom are we sanctioning and with what measures? We need to be very clear about what we need them to do to lift the sanctions — not just, as is the case, say, “We’re sanctioning because you’re doing bad things.” That gives them no direction in terms of what they need to change.
Mr. Bellissimo: Senator Woo, at its core, the key issue is that, as the law reads right now, someone who commits gross international human rights violations is being treated the same way, potentially, as someone who has engaged in no wrongdoing at all — through the immigration lens. That, to me, is unacceptable, and it’s something that could plague someone for years and years, and their children.
We talk about there not necessarily being a policy change. Perhaps, but there are tangible changes here. We’re not even allowing these individuals to access the Immigration Division any longer. We’re not allowing these individuals to access ministerial relief. So at the same time as we ratchet up a blanket consequence, we take away procedural fairness rights, thereby creating the potential for the refoulement for refugees and even, under the Emergencies Act, potential immediate removal.
These are serious considerations. You need nuance, scope and scale when you’re trying to implement. I am not a sanctions expert like Dr. Charron, but looking at this and thinking about how it’s going to apply day to day, on the ground, with individuals trying to navigate, the consequences are incredible.
So I urge all lawmakers to think about the unintended consequences, because there are many and they are far-reaching.
Senator Omidvar: Professor Charron, I appreciate the need for some kind of review and alignment. I’m not a member of this committee on a permanent basis, but I think you’ve just given the chair of this committee a proposal for a study. We can always work harder.
My question is to Mr. Bellissimo. You have pointed out your concerns about the bill. What amendments would you propose to address your concerns?
Mr. Bellissimo: Thank you for the question, senator. We tried to set them out in our brief. The proposals are clear. We need a specific definition of “sanctions entities” that is not driven by the complex web of domestic legislation but is specific to immigration. We need the same for the term “entity.” We need the same clarity under the Citizenship Act and the Emergencies Act. There’s no reference at all to what any of these mean now under those acts. We’re dealing with revocation of citizenship. This is at the highest level. We’re also talking about potentially stopping citizens from sponsoring because of this. So it affects a lot of people.
We’d also look at the effects on dependants and make an amendment such that dependants would have access to remedial options under the act, be it the Immigration Division, the Immigration Appeal Division or ministerial discretion.
That ties into our other recommendation. Why are we taking away procedural protections at the same time as we’re infusing so much more in terms of consequence?
As we mentioned with respect to refugees, as soon as you’re found to be a refugee, as soon as you’re found to have some sort of status in Canada, you should be delisted immediately. You should not be required to go through another process and be further delayed when you’ve been recognized by Canada.
Senator Omidvar: Thank you. I didn’t see the brief, so I apologize. Maybe I didn’t get it. I’m sorry for having asked you to repeat what you already said, but I think it was worth repeating. Thank you very much.
The Chair: Senator, the brief is online, so I think you should be able to see it on the committees page.
Senator Richards: Mr. Bellissimo, I know this is a different kind of policy, but my son was on the no-fly list when he was 9 years old, and it took a while. They realized their mistake as soon as they saw this little kid with blond hair who wanted to travel to Toronto, but still, he was on the no-fly list.
I’m wondering if the same kind of egregious complication could arise with these sanctions.
Mr. Bellissimo: Thank you, senator, for the question. Absolutely. It goes beyond what we’re discussing today, but the department is also moving to increasing use of artificial intelligence and a lot of technological assistance. A lot of these now will be triaged on a certain basis. We’re still sometimes getting requests for driver’s licenses for 7-year-olds.
In my practice over 25 years, what is initially intended by legislation and what the application ends up being can be worlds apart and take years to reverse through jurisprudential changes or battling on the ground. Absolutely, senator, those are the exact types of consequences we should be avoiding.
Let’s remember the principle of all this is we don’t want to allow bad actors to skim through the system or not be caught because the entire scheme is so complex or it’s challenged or it collapses. I urge, again, senators to think about that, because the more complexity, the more wild interpretation you can engage in with legislation. And the less nuanced it is, the easier it is to challenge. Thank you.
Senator Richards: Thank you very much, sir. I do agree. I don’t want the bad actors to be able to slip through the system either. But there has to be some kind of guarantee that a kid of 9 years old is not on a no-fly list. I thank you for that.
Ms. Charron: I agree completely with Mr. Bellissimo. Further, I think we need to think through the process whereby the information goes from a list created under the jurisdiction of the Minister of Foreign Affairs through now to the CBSA and how that actually works in practice. Because it’s not clear to me, based on the public evidence, how that’s happening and why it is that we get so little information on our websites. There may be some very good reasons, but given, again, that for most of the sanctions, the onus lies on those other than government officials to make sure that we’re all compliant. I think we need to think through that process.
The Chair: Thank you very much. Colleagues, we’ve come to the end of the list. Are there any others who would like to ask questions? Now is the time. If not, I’d like to thank our witnesses for their very forthright comments. Thank you for joining us.
Our next meeting will take place next Thursday, June 9. We will have one panel of witnesses, the four deputy ministers of Global Affairs Canada, on our study on the Foreign Service. For those of you who know how difficult it is to get deputy ministers together, let alone all of them, I hope this holds and we will have indeed all four.
After that, we plan to move to clause-by-clause consideration of this bill, Bill S-8.
I’d like to remind you, colleagues, that if you want to propose any amendments to this bill, I would really encourage you to consult the office of the Senate law clerk as soon as possible to ensure that any amendments are drafted in the proper format and in both official languages. Our clerk, Ms. Lemay, will circulate a memo to this effect later today.
Senator Coyle: Thank you, Mr. Chair. I’m wondering, at the beginning of that review of the clause-by-clause process next week, if there might be a moment for us to have a little discussion.
The Chair: Of course.
Senator Coyle: Okay. I think that might be a helpful thing to do before we get right into the clause-by-clause.
The Chair: Yes, of course. Happy to do that, Senator Coyle. Thank you for the suggestion.
As there is no other business, the meeting is now adjourned. Thank you.
(The committee adjourned.)