Study on the Provisions and Operation of the Sergei Magnitsky Law and the Special Economic Measures Act
Tenth Report of Foreign Affairs and International Trade Committee and Request for Government Response--Debate Adjourned
May 18, 2023
Moved:
That the tenth report of the Standing Senate Committee on Foreign Affairs and International Trade, entitled Strengthening Canada’s Autonomous Sanctions Architecture: Five-Year Legislative Review of the Sergei Magnitsky Law and the Special Economic Measures Act, tabled in the Senate on Tuesday, May 16, 2023, be adopted and that, pursuant to rule 12-24(1), the Senate request a complete and detailed response from the government, with the Minister of Foreign Affairs being identified as the minister responsible for responding to the report, in consultation with the Minister of Public Safety.
He said: Honourable senators, I rise today to speak to the tenth report of the Standing Committee on Foreign Affairs and International Trade, entitled Strengthening Canada’s Autonomous Sanctions Architecture: Five-Year Legislative Review of the Sergei Magnitsky Law and the Special Economic Measures Act.
This comprehensive report is the culmination of eight meetings between October 26, 2022, and February 15 of this year. Over the course of the committee’s study, it heard from 26 expert witnesses, including officials from Global Affairs Canada, the Canada Border Services Agency and the Royal Canadian Mounted Police, legal and banking experts, renowned academics, sanctions advocates and members of civil society. I will highlight three particularly high-profile witnesses from whom the committee was honoured to hear.
Bill Browder is an author and head of the Global Magnitsky Justice Campaign. His lawyer, Sergei Magnitsky, was, of course, the inspiration for Canada’s Justice for Victims of Corrupt Foreign Officials Act, also known as the Sergei Magnitsky Law.
Evgenia Kara-Murza is Advocacy Coordinator of the Free Russia Foundation. Her husband, Russian political activist and opposition leader Vladimir Kara-Murza, is imprisoned in Russia on charges of treason, partly for speaking out against the war in Ukraine. Like her husband, Ms. Kara-Murza is an unwavering and courageous long-time advocate for introducing Magnitsky laws around the world and targeting Russia in particular with Magnitsky-style sanctions.
Finally, we heard from our dear former Senate colleague and my predecessor as chair of the committee, the Honourable Raynell Andreychuk. It was former Senator Andreychuk who spearheaded Canada’s Sergei Magnitsky Law by sponsoring then Bill S-226, which received Royal Assent on October 18, 2017.
Senator Andreychuk’s bill and the date it became law provided the impetus for the committee’s study. The Justice for Victims of Corrupt Foreign Officials Act prescribes a report and review requirement under section 16. Section 16(1) states:
Within five years after the day on which this section comes into force, a comprehensive review of the provisions and operation of this Act and of the Special Economic Measures Act must be undertaken by the committees of the Senate and of the House of Commons that are designated or established by each House for that purpose.
This is the procedural answer to why the committee undertook this study and when, but it was not thrust upon us either. The committee actively sought authorization from the Senate to conduct this study, which was granted on October 17 of last year. In my completely unbiased opinion, the Senate Foreign Affairs and International Trade Committee was best placed between the two houses of Parliament to take this on, given both the Senate’s strong reputation for committee work and the Senate’s less partisan nature.
Section 16(2) states:
The committees referred to in subsection (1) must, within a year after a review is undertaken under that subsection or within any further time that may be authorized by the Senate or the House of Commons, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committees recommend.
Well in advance of the one-year mark, that is what the committee has done, colleagues, and I’m expanding on that a little bit today.
Part of the reason I as chair was so keen on the committee undertaking the first comprehensive review of the provisions and operation of the Sergei Magnitsky Law and of the Special Economic Measures Act, or SEMA, was because, as we all know, sanctions have been one of the most used diplomatic tools and one of the most debated issues of the past 15 months since Russia invaded Ukraine on February 24, 2022.
Also, these legislative instruments have become increasingly important in the government’s tool kit, particularly as the United Nations Act is used less frequently given the gridlock at the United Nations Security Council on sanctions issues — and so many others. In other words, colleagues, both procedurally and topically, this was the right time for this study.
As the report states, over the course of the study, witnesses highlighted various improvements made to the sanctions regime over the past five years, including the creation of the Consolidated Canadian Autonomous Sanctions List. However, witnesses also said that the Government of Canada must improve how it communicates information on autonomous sanctions to the public and called on the government to develop clear guidance on the interpretation of sanctions regulations.
After hearing from the 26 expert witnesses, the committee concluded that Canada must outline the goals it wishes to achieve through the imposition of sanctions and must analyze the results regularly.
It was clear in our deliberations that the committee believes in the usefulness of the Sergei Magnitsky Law and the Special Economic Measures Act. However, as is outlined in the report, the committee is making 19 recommendations to improve the coherence and operation of Canada’s sanctions regime. I wish to highlight a few of the more consequential recommendations.
Recommendation 19 calls on the government to:
. . . amend the Special Economic Measures Act and the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) to require that new regulations made under either Act include a sunset clause that would prescribe a date for the termination of the sanctions regime unless renewed prior to the expiry of the term.
As the committee heard, there is a fair bit of precedent in the use of sunset clauses and sanctions laws around the world, including by the European Union and the United Nations.
Dr. Meredith Lilly, a professor at Carleton University’s Norman Paterson School of International Affairs, summarized the need for sunset clauses during the committee’s meeting on November 2, 2022. Dr. Lilly said these measures could “. . . ensure that outdated and unnecessary sanctions are removed, and it can also decrease the politicization of the sanctions.” She further argued that automatic sunsetting clauses:
. . . force a discipline on the public service to continuously monitor and stay abreast of the developments to inform any renewal decisions.
Basically, the committee is advocating for sunset clauses to amendments to Canada’s sanctions regimes to ensure that the laws always serve their intended purposes and are, without politicization, consistently reviewed by well-informed policy‑makers.
In recommendation 18, the committee recommends that committees of the Senate and the House of Commons conduct a comprehensive review of the two acts every 10 years to ensure that Canada’s autonomous sanctions regimes remain fit for purpose. This recommendation is deliberately non-prescriptive to give the government of the day flexibility in determining how to amend the Sergei Magnitsky Law in this regard.
What this could look like, in my opinion, is that to ensure ongoing review, the designated committees in the Senate and the House of Commons could alternate five-year periods so that, in effect, the Sergei Magnitsky Law and SEMA would each be reviewed every five years, and by each committee every ten years.
For example, the Senate Foreign Affairs and International Trade Committee reviewed the laws in 2023; the House committee could do so in 2028; then it would be back to the Senate in 2033, et cetera.
Other fundamental recommendations include those on communication; interdepartmental cooperation; administration and enforcement; collaboration with allies, civil society and the academic and research communities; and delisting.
With regard to interdepartmental cooperation, the committee noted the establishment of a sanctions bureau at Global Affairs Canada and the need to ensure that officials engaged in sanctions work — especially in the RCMP, CBSA, FINTRAC, CSIS and CSE — are well versed. Increased cooperation among domestic departments and agencies also requires closer collaboration with similar units in jurisdictions with which Canada is allied.
On communication, I was struck by the extent to which a more effective sanctions regime comes down to better communication with the public regarding the effects and implementation of autonomous sanctions. That is why recommendation 10 calls on the government to:
. . . provide more detailed identifying information on sanctioned individuals and entities in the regulations made pursuant to the Special Economic Measures Act and the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
The committee further recommends:
The government should also include detailed identifying information in the Consolidated Canadian Autonomous Sanctions List, along with the justifications for listing individuals and entities.
Colleagues, I will not recite every recommendation. I simply wished to highlight a few that I feel are particularly important.
I encourage those of you who are interested to read the report, as it is, I think, an exceptional piece of work, of which I am proud as chair, on a subject that is both crucial and timely, especially given the significant increase in the use, by Canada and our allies, of autonomous sanctions since Russia invaded Ukraine.
I wish to thank committee members and other colleagues who participated in these meetings, the staff — in particular, the committee analysts who drafted the report — and the expert witnesses, without whose time and commentary this study would not have happened and this report would not exist.
Colleagues, there may be other senators who wish to speak on this report. I very much look forward to more debate on this important topic. It is my hope that this motion, and thus the report, will be adopted very soon — as in very, very soon — so that we can maintain momentum and start the clock on the 150 days the government will have to provide a full and detailed response. Thank you very much.
Honourable senators, given Senator Boehm’s admonition, I’ve decided to speak now rather than next week. As a result, my comments may be less organized than I would like them to be.
I have no disagreement with the chair’s summary and I want to thank him, Deputy Chair Senator Harder and all my colleagues for the excellent work that we did on this report.
Colleagues, the report was very much about the machinery and mechanics of our sanctions regime and how we could make it better. It included questions of administration, clarity of sanctions tools, coordination with allies, reporting, as well as consideration of unintended consequences.
We spent much less time, though, on the question of efficacy, which is to say, “Do sanctions work?” On this, the closest that we came to a conclusion is, “It’s difficult to say.” That is in the official press statement.
When it comes to the traditional criteria for measuring the success of sanctions — i.e., change of behaviour or deterrence of such bad behaviour in the future — I did not hear a single witness say unequivocally that sanctions have been successful. On the other hand, we did hear that sanctions may be considered successful based on a number of other criteria that are non‑traditional. These include the desire to punish, the need to show solidarity with allies and the need to appeal to public sentiment.
Unfortunately, these other criteria are not the ones that we officially cite as reasons to have sanctions in the first place. Perhaps these new criteria are, in fact, the reasons for Canada to have sanctions — but if that is the case, let’s be honest in saying so.
The reason I raise this issue is because, of late, we have become the world champions in autonomous sanctions and perhaps have forgotten, as Senator Boehm has rightly pointed out, that sanctions are one among a number of diplomatic tools that we have to address difficult international problems and, indeed, that sanctions may not even be the best tool for a particular problem.
You know the old saying about the tendency to use the tool you have in front of you to deal with a problem. If you have a sledgehammer, that is what you will use; however, it’s not clear that a sledgehammer is the best tool, indeed.
Ultimately, sanctions are a form of economic coercion, and we take great umbrage, of course, when economic coercion is directed at us.
The proliferation of the use of sanctions, the widespread use of sanctions, the increasing tendency and preference to use sanctions, the finessing and the extension of different types of sanctions, while possibly necessary, is ultimately a statement on the failure of diplomacy. I’m not sure this is a gold medal situation.
This is a real concern because we’re actually going around the world talking about how we are the world champion in autonomous sanctions. When we say this, I don’t know which of the new criteria we’re using to give ourselves this award. Is it that we get a gold medal because of our solidarity with allies in imposing sanctions? Is it that we get a gold medal because we are the best at punishing people? Is it that we get a gold medal because we are the best at the political appeal of sanctions, the populist instinct for wanting to do something about a difficult situation? I don’t know, but I am pretty sure that we do not yet have the evidence that the traditional criteria — change of behaviour and deterrence — have been met in awarding ourselves any top prize.
Honourable senators, this problem is compounded by the issue of inconsistency in the application of autonomous sanctions, which, by the way, is one of the findings in our report but probably one that will not be given very much attention. It is important, though, because inconsistency in the application of autonomous sanctions is not just a trivial case of “whataboutism,” but it fundamentally undermines the slender moral authority on which we have to impose sanctions in the first place. It is a recommendation, and I do hope we pay attention to it.
Sanctions have real and long-term consequences for affected countries, even when they are attempts at targeting just the bad guys. They are difficult to unwind once they are applied, which is why I so much agree with one of the recommendations around the sunset clause for autonomous sanctions. This too is an important finding of the report, and I hope it gets serious attention.
To conclude, honourable senators, this report was a very useful exercise in our statutory review of the Sergei Magnitsky Law. I hope the government will take it seriously. When we come around to the next five-year review or — in the case of Senator Boehm’s suggestion — the next ten-year review, I hope that we will be able to say with some satisfaction that we’ve actually reduced our use of sanctions and that we’ve become smarter in the use of ongoing sanctions, not because we are turning our backs on injustices in the world but because we have found a better way to address them. Thank you.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and report adopted.)
