Special Economic Measures Act

Honourable senators, I rise today to speak in support of Bill S-278, An Act to amend the Special Economic Measures Act (disposal of foreign state assets).

I’m not an economist and definitely not a lawyer, but as someone who has worn the uniform and has been fortunate enough to be appointed to this place, I certainly know the difference between right and wrong. And passing this bill at second reading is the right thing to do.

I will not repeat the facts and figures so eloquently presented by the bill’s sponsor, Senator Omidvar, nor will I present to you the extremely important global picture of geopolitics, as Senator Housakos did. My goal today is to address a common critique of this bill and its remedy, namely, state immunity, and to perhaps remind all of us of the moral imperatives as I see them at work here.

The modern concept of sovereignty and immunity of the state can be traced back to the Treaty of Westphalia in 1648. As Senator Omidvar pointed out, foreign states are immune from court jurisdictions in Canada. Inversely, Canada as a sovereign state is similarly immune in foreign courts. That means that judicial proceedings or orders cannot be used against states to seize and redistribute their assets.

But that does not mean foreign states should escape accountability for their actions. Russia can be held accountable for its brutal, unprovoked, destructive and deadly criminal invasion of Ukraine. We know this is a serious violation of international law.

It should be noted that Russia continues to deny any wrongdoing or culpability.

Presently, those in Russia who are helping bankroll Putin’s war via their commercial activities are subject to asset seizure and disposal, whereas Russian state-owned assets are merely frozen to be dealt with at the conclusion of hostilities. Frozen assets and asset seizures are not an exception to international law, but the very core and centralized institutions do have an ability to do this.

I say “merely frozen” because this bill would create a mechanism of confiscation for the Canadian government to seize and dispose of foreign state assets involved in these grave breaches of international peace and security. This, colleagues, is where the primary critique of this bill comes into play — the concept of state immunity.

Under the current law, foreign assets seized and slated for disposal are those of foreign national individuals, and that seizure order is subject to judicial review, which allows the individuals to defend themselves and their actions in a court of law. As I pointed out, foreign states are immune from jurisdictions in Canada.

There is a way to address this, and Bill S-278 does exactly that by granting the seizure power exclusively to the Crown, apart from our courts, allowing the Crown to seize and dispose of foreign-held assets located in Canada in those cases of grave breaches.

Foreign policy and foreign affairs exist as a prerogative of the Crown in Canada. It is in the name of the King that the Minister of Foreign Affairs is appointed, and it is by borrowing a portion of the Royal Prerogative that the King and the minister conduct themselves in relations with other states. So it makes eminent sense, even to someone like me, that the relationship as it relates to seizure of foreign state assets should be at a state-to-state level and, therefore, in line with international law.

Earlier this year, the United States Congress passed the Rebuilding Economic Prosperity and Opportunity for Ukrainians Act, authorizing:

. . . various actions related to the confiscation and disposition of Russian sovereign assets, which include funds and other property of Russia’s central bank, direct investment fund, or ministry of finance. . . .

I took this quote from an article I read by Senator Omidvar, so thank you for that.

Though the U.S. President has yet to use this new law, it will hold Russia accountable now by making them pay for their crimes, rather than waiting until hostilities are over.

I mentioned the Treaty of Westphalia earlier, and I want to circle back to that. It was that same treaty that formalized the notion that relations between states act as a guide for their agreement or violation of international accords and norms. The treaty also confirmed that states are sovereign and should feel free within their own territory.

Colleagues, Russia has chosen to ignore international agreements such as the United Nations Charter and has thumbed its nose at the postwar international rules-based order and norms. Russian President Vladimir Putin and his regime have been found guilty of war crimes and crimes against humanity by the International Criminal Court.

All the while, Ukraine has had its sovereignty violated, the security of its people threatened indiscriminately, along with constant destruction of its infrastructure, pollution of its environment and its freedom to exist as a state being called into question because of their actions.

Russia, therefore, must be held accountable, and Ukraine cannot wait for some future date for war reparations, as one senator put it. Simply put, Ukraine needs to continue the fight because if it cannot, it will cease to exist.

Some might say, “What can Canada do against a more powerful Russia in a state-to-state contest?” My answer is: Canada can be a leader in partnership with its allies.

We must move forward and adopt Bill S-278 to permit the Crown to seize and dispose of Russian state-held assets located in Canada and use the proceeds of those seizures for the reparations and rebuilding efforts in Ukraine and to support its fight for survival now.

However, I want to reinforce that there is nothing in Bill S-278 that forfeits the right to due process for individuals or non-state actors and entities. This bill will give the Crown in Canada the power to move decisively against foreign states involved in grave breaches of international peace and security, and Bill S-278 is aligned with international laws and norms.

With that, I fully support Bill S-278 and urge you all to do so at second reading.

Thank you, honourable senators.