Frozen Assets Repurposing Bill
Second Reading--Debate Adjourned
December 7, 2021
Honourable senators, I sadly lost the challenge to the dinner clock, but I hope I have moved your hearts and minds. We were at the spot where I was talking about Charter challenges and constitutionality. Let me pick it up from there to briefly reconfirm what I have said, because my memory is frail, and if you’re like me, your memory is frail too.
My bill will seek to seize frozen assets and repurpose them back through court order to victims of corruption, in particular, victims of mass human rights violations and forced displacement. So the question really is: Is this Charter-proof?
Let me quote from a policy paper published on this particular question by the World Refugee & Migration Council, which was prepared by a noted lawyer, no less than former Attorney General of Canada and former Canadian ambassador to the United Nations Allan Rock. He says:
The section of the Charter that could potentially be invoked to attack asset freezes and confiscation is section 7 — the right to life, liberty and security of the person. . . . Although this section has been held by the courts to be very broad, the jurisprudence has also made clear that section 7 generally does not protect and apply to the economic rights of the applicant.
This is further underlined by Justice Gagné, who ruled in the case involving the freezing of the assets of former President Ben-Ali of Tunisia. She noted, “. . . generally, neither the right to hold employment nor the economic interests of the applicants are protected by the Charter.”
The paper concludes on this point:
. . . it is unlikely that an applicant would be successful in challenging Canadian legislation providing for the freezing and confiscation of the assets of corrupt foreign officials on the ground that it contravenes the Charter.
I would like to point out another very important aspect of this bill. Currently, we do not know the value of the assets that have been frozen in Canada. We know the names of the individuals, but we actually do not know whether they have any assets in Canada. There is no public transparency, since the government is not yet obliged to provide this information. This bill will raise the curtain, make it less opaque and compel the government to list not only corrupt foreign officials but also provide the value of their assets. In the absence of this information, Canadians are not able to advocate for confiscation and opportunities to achieve the benefits that I’m talking about.
Finally — and I’m glad I have the time to talk about this a little bit more — this legislation is not unique. We are following best practice from where? Switzerland, the original home of all assets held by all kinds of people in secrecy forever.
In 2015, Switzerland, to clean up its reputation, enacted the Foreign Illicit Assets Act. Under that law, the Swiss government can apply to their federal court to confiscate foreign assets. If granted, Switzerland can send the assets to the country of origin or another entity for the purpose of improving the lives and conditions of the inhabitants of the country and supporting the rule of law in the country, thus contributing to the fight against corruption.
In fact, I think they repurposed stolen assets back to Kazakhstan by court order and used a foundation to provide education for children in Kazakhstan. Both the United Kingdom and France are currently looking at similar legislation. The EU, which recently enacted Magnitsky, is also looking at this legislation as the next step in their fight against corruption.
This brings me to the final reason I believe this legislation is important. If Canada succeeds in passing it, I believe that others will follow. We followed the example of the U.S. in calling the Magnitsky Act into life, and former Senator Andreychuk improved on the U.S. version once it came to Canada.
The same narrative may well follow this act. This bill, I believe, will ignite the imagination of other jurisdictions by providing a concrete example of how individual jurisdictions can act. Others will pick it up and improve on it, and Canada will be the transformative leader.
In conclusion, colleagues, for far too along corrupt foreign officials have acted with impunity. They have not only stolen mass wealth but have created significant hardship for their people. Their actions have contributed to the displacement and misery of millions of people. Calling them out is simply not enough. We have to make them pay, and FARA will accomplish precisely that.
Thank you, honourable senators.
Honourable senator, will you take a question?
Of course.
If I understood what you said, you proposed we deal with these assets the same way we deal with what we call the Proceeds of Crime Act in Canada, not in a criminal proceeding but in a civil proceeding where it’s the balance of probability and not the higher level of evidence that is required, and where we confiscate, and the judiciary will give an opportunity to everybody to speak. Then the assets will be handed over to an organization that the court will decide based on whatever the Crown or the Attorney General will propose.
As a judge, I’ve been involved in cases where we had seized money. It’s often more effective than criminal actions, because we take the money; we take the property; we take the gold, the jewellery and so on, and that hurts.
I certainly support your bill. It’s a great opportunity to go after criminals who are living beyond our jurisdiction but have assets here. As you said, if it’s corruption, it’s a crime. If a crime was committed, it’s the proceeds of a crime.
If I understand well, you will propose civil proceedings similar to what we have for criminal money. I certainly support that. Thank you.
Thank you, Senator Dalphond. I always dread questions from the lawyers in the room, because I’m not a lawyer. This one I’m grateful for, because you got it completely right. It is not a criminal court proceeding but an administrative court proceeding.
Thank you for your support. I hope you will help me pass this and get it to the Foreign Affairs Committee so we can very quickly get witnesses, discuss this and bring it back to the chamber. Thank you.
