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Results: 1 - 30 of 88
View Marc Miller Profile
Lib. (QC)
I'd like you to speak briefly regarding your concerns with the drug trade in the northern triangle states, and the effect it's having geopolitically, particularly on a society level with respect to those states, and your organization's ability to further the human rights agenda.
View Marc Miller Profile
Lib. (QC)
Thank you both. It's great to have Canada's foremost human rights defender in front us, together with the world's greatest chess player. It's a true honour to be able to ask questions to you about this extremely compelling case and the bodies of legislation that we are studying.
For your benefit, there's no conclusion yet. We haven't finished our report and we haven't completed the witness testimony, but what we have been able to identify clearly is a gap in the ability to freeze assets of foreign nationals who have committed gross human rights violations. Now, proceeding from that premise or conclusion to putting that into effect is a lot more difficult than it seems at the outset. There are grave concerns in a pluralistic democracy with respect to the rule of law as understood in many facets, one of the facets being gathering evidence of those gross human rights violations. In the case at hand that you've mentioned, obviously there was a sufficient determination that those occurred. I'm not contesting that.
What I'm trying to ask, I guess, is about placing those into a body of law. We're concerned, obviously, with the rule of law, the ability of someone who is accused of these acts to appear and be able to plead their case. You are asking us to freeze assets of someone, assets that may be ill-gotten, in which case there's already a law in our Criminal Code that deals with that, or they may simply be assets that were acquired in a different manner. There are valuable arguments for freezing them as a deterrent, or as a moral imperative.
Mr. Cotler, you're a jurist and a pre-eminent lawyer. Essentially, what I would like to hear are your concerns for the rule of law.
Then Mr. Kasparov, what do you think the effect...? You mentioned earlier, when you responded to Mr. Kent, about the impact on Russia of this type of sanction by a country such as Canada, and the countermeasures that we need to be aware of if we're to enact this legislation vis-à-vis such a country, or indeed other countries.
View Marc Miller Profile
Lib. (QC)
Thank you both for coming. This study has gone off on a bit of a tangent. If we were purists about the bodies of legislation we are studying, you wouldn't be here, although I think, Ms. Fenner, you raised an extremely important point. The relevancy of your presence here today is that corruption causes the behaviour that we are, at the basis, examining today, whether it's violations of international law or human rights violations or different reprehensible practices by governments, or by corporations in this case. It hits on an extremely important point, which is that corruption is at the root of a lot of behaviour.
The question I had generally was on deferred prosecution agreements and what their impact is on recovering the assets. The U.S. has them. It has gone after a number of corporations. Those corporations are listed on a website. Their guilt, their culpability, is clearly stated. The idea behind it is that once a corporation makes a payment, that money is gone to the official in question. However, in prosecuting the corporation in question, at the end of the day, more often than not it isn't so much the shareholders or the beneficiaries who will pay, but the employees, because business will be lost.
I'd like your view on that as it applies to Canada with respect to deferred prosecution agreements.
Perhaps Professor Ferguson can go first.
View Marc Miller Profile
Lib. (QC)
Ms. Fenner, do you have a couple of words? I don't want you to miss your flight.
View Marc Miller Profile
Lib. (QC)
Thank you, gentlemen, for coming today.
I want to continue on the human rights path, although on a different tack. Richard, perhaps the first question is for you.
Generally, the realm of sanctions, whether unilateral or multilateral, has been reserved for areas of high politics, nuclear interests, interests where the behaviour of an actor in question to be sanctioned has threatened international peace and security. The migration towards sanctioning individuals and not states on the basis of a level of human rights violation that is deemed to be intolerable generally answers to a call to condemn based on a moral imperative, as Mr. Levitt alluded to.
I'm wondering what the limits to that approach are intellectually, and even from an idealist perspective. We have disagreements with our closest ally as to the death penalty. We have disagreements with the way certain European countries behave. I'm not talking about a relativist moral slippery slope. I'm simply talking about where we draw the line. Effectiveness is one argument, but it doesn't necessarily counter the moral imperative.
There is also a beauty in freezing someone's assets that are situated here where they have committed a gross indecent act. It would be reprehensible to let them derive gain from those assets.
I'd like you to take a few minutes to reflect on that sort of tension that we're facing, from a geopolitical and trade perspective.
Thanks.
View Marc Miller Profile
Lib. (QC)
Thank you.
Mr. Juneau, you said that closing the consulate and our sanctions against Iran have hurt us a great deal, particularly with respect to trade with that country. You said that we are practically behind the wall.
Can you elaborate on this with examples of the negative impact this has had on Canada?
I would also add that you can sign up for a membership on our party's site at liberal.ca, and it is free. Just joking, of course.
I will let you answer my question.
View Marc Miller Profile
Lib. (QC)
The North Korean sanctions regime, in terms of sanction regimes writ large, is probably the most closed system we have compared to any other ongoing regime. Yet, you've identified a number of holes, and principally I guess they deal with workarounds in the system.
Could you speak briefly to what you see the North Koreans doing, and where they're trending in terms of trying to work around these things?
View Marc Miller Profile
Lib. (QC)
This may not be in your realm of expertise, but I would like to hear some of your reflections on the impact of the North Korean people. Obviously, news is sporadic and probably unreliable, but you do hear of periodic famines and crop shortages.
There's that, and if you do have time, could you touch on consular relations? Obviously Canada has none. Most countries do not have any. I believe the Swedes have an embassy, and that's pretty much about it, with a few more exceptions.
What is your view on limited openness and engagement with the North Korean people?
View Marc Miller Profile
Lib. (QC)
Thank you.
Ms. Prost, I want to focus a little more intensively on the standard that you came up with. You raised concerns which we echo concerning the rule of law, due process, whatever you want to call it. As a democratic country we don't have the luxury that some other countries may have of putting people on our list and doing certain things to them that we might want to do, but we can't, because we respect the rule of law.
I may be overstating the case as well, because there is a tendency immediately to jump to a more criminal standard and burden of proof, which may not be necessary in cases.
To back up, what we're examining is the potential holes in SEMA or FACFOA or concurrent criminal legislation with respect to gross violations of human rights and the ability to put someone who may have committed these gross and indecent acts on a list and freeze their assets in Canada, whether they're ill-gotten or not.
Some of the legislative tools that we have exist in Canada already, and they're subject to the standard review, more often than not by the courts. In SEMA that may not be the case; in FACFOA it may not be the case, and you have rightly highlighted that. As well, there is the UN act that is implemented here. The standard of administrative review through administrative action, on the other hand, might be too low a threshold.
I'd like to put this kind of tension in your hands and see what you think is a proper venue for a piece of legislation that would contemplate freezing the assets of someone who, on the balance of probabilities, has in fact committed such acts and whose assets are situated in Canada, and what sort of safeguards would be desirable.
View Marc Miller Profile
Lib. (QC)
To be clear, the freezing of assets can obviously have a chilling effect on these people, who may be at large, in their ability to perpetrate further actions that are undesirable.
On the other hand, the challenge at a domestic level is the ability of those people who, as foreign nationals, obviously don't have the same charter protections that we have as Canadian citizens, but who may have some form of protection they can use. Trying to build that in from the get-go, I believe, is a challenge. As you mentioned earlier with respect to the legislation that's in place, it's already in the Criminal Code with respect to proceeds of crime, or terrorism. There is obviously a built-in protection.
The other tension that exists has to do with the operational level. What do you present to a bank in terms of evidence or documents to have them freeze an account, or to prevent a security from being transacted?
I don't know if you have any experience with that, but I'd love to hear from you on it.
View Marc Miller Profile
Lib. (QC)
Money laundering is actually an important distinction, because what it prevents.... It's not so much the freezing but the effect of freezing, insofar as the bank that is holding the account or the security or whatever it is can't then transfer it out, because it does not have the proper assurances that it is going to the right place or is duly held by the person wanting to transfer it. I think that's an important distinction to make.
That's it for my questions. I will pass on the rest of my time.
View Marc Miller Profile
Lib. (QC)
Thank you for coming in.
I have a quick question as to the logistics of tagging a bank account or freezing a bank account or a securities account. You're talking to a former mergers and acquisitions lawyer who knows how conservative you are and has spent many Friday afternoons wondering why funds weren't wired, so I get it, and I get that you're conservative.
I'm now wondering about the rights of your custodian of funds or securities. I'm wondering about the people who have entrusted their funds to you, and what they expect their institution to be doing, and how there can be overcompliance and you're faced with this perhaps bureaucratic or logistical nightmare.
What happens when a law enforcement official or a public administration official comes and says an account is suspicious and you should freeze it? I'm being silly, but do you ask where the warrant is or ask where the proof is? What does your legal team ask at the outset?
View Marc Miller Profile
Lib. (QC)
There is a range of thought processes that you go through. I understand if we're talking about SEMA or FACFOA, your frustration is finding out in the first place, and then it's pretty easy to freeze, as opposed to more of a money-laundering situation.
View Marc Miller Profile
Lib. (QC)
Thank you.
Mr. Adsett, previously when you met with us, we discussed the holes that may exist in the current legislation, particularly with respect to gross violations of human rights. It's a topic that flows throughout the discussion we've been having at committee.
You mentioned that there is no perfect fit, obviously, whether it's in SEMA, FACFOA, or the current legislation that exists in the Criminal Code, and there seems, again, to be some confusion as to where the holes are.
A lot of people discuss the ability to freeze assets that are the product of crime, or proceeds of crime, and that legislation exists. Then in the context of a threat against international peace, obviously, the instruments under SEMA exist. Some of the concerns that have been raised are more in the nature of law enforcement. That is probably something, unless I'm mistaking the roles, you couldn't answer.
The question, then, is on the hole that does exist with respect to freezing legitimate assets or the proceeds of crime, but let's focus on legitimate assets that may exist within Canada with respect to gross human rights violators.
There are a number of concerns with plugging that hole, namely, due process, the ability to seize those assets—again, more in the realm of law enforcement—and also the nature of unintended consequences and repercussions of the state that may be involved that is backing the people who are violating human rights in a gross fashion.
I want to focus on more of a legal question. If you can't answer it, I'll submit it to you and perhaps you could submit a written response to the committee. What prevents, right now, the minister, by order in council or otherwise, from finding that a person abroad has violated human rights in a gross indecent fashion and freezing their assets in Canada? Again, I'm not talking about a Canadian national. I'm talking about a foreign national.
View Marc Miller Profile
Lib. (QC)
Again, I can't afford your billable rate on my salary—
View Marc Miller Profile
Lib. (QC)
—so I'm glad you're now providing legal advice.
Let me ask how that is or is not precluded by an order in council, simply the minister deciding that this event has occurred and that action needs to be taken.
View Marc Miller Profile
Lib. (QC)
I want to continue on another related notion we're examining as part of the consideration of expanding this legislation with respect to gross human rights violations, but it isn't limited to that. It's limited to the individuals who find themselves on a list, often against their will, and it has to do with due process. It's the elements of due process that we don't necessarily think of.
Obviously, we think of the ability of a person to appear in front of a court and get proper judicial review. I'm sure you would like a lot of these people who come to Canada to stand in front of a court so that you could actually get your hands on them.
One of the things has to do with the judiciousness of imposing these sanctions on individuals in the first place. That is in the nature of reliable evidence gathering, the ability, as my colleagues mentioned, of a company, let's say, doing business somewhere, to access a list that is maybe cohesive, coherent, or up to date, and then challenging it in a court of law.
Hugh, perhaps you're the best person to answer this. What are your thoughts on that process as we look to expanding or at least reviewing the current legislative scheme?
View Marc Miller Profile
Lib. (QC)
I had not realized that Mr. Bertin was here with us.
Mr. Bertin, perhaps you are not the person I should be putting this question to, but I would like to know what measures the countries affected by this law can take against us and how effective they could be. What is the effectiveness of the measures we could take against these countries, especially when this is done unilaterally?
View Marc Miller Profile
Lib. (QC)
Mr. Halvorssen, I truly appreciate the emphasis in your advocacy. I think it moves forward a point that we are trying to study, at least when we break it down.
With great respect, where I do see quite a large disservice in your advocacy is the tendency to mix up the issues with the facts at hand. We are studying a legislative scheme. It's FACFOA and SEMA, which deal with the sanctions Canada may impose on states or actors at the request of states, and the potential holes, which you identified specifically in the area of gross human rights violations and in corruption.
What I tend to hear from advocates such as you and others, for which you are obviously not responsible, is a tendency to commit this confusion of proceeds of crime with the opposite of ill-gotten assets, assets that are not tainted by criminality, and say that there is a hole somehow in Canadian legislation.
I don't like doing this, but let me read from the Criminal Code, which states quite clearly that, in Canada:
Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of(a) the commission in Canada of a designated offence; or(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
Clearly, this, along with our well-documented money-laundering legislation, provides a pretty important net to catch people who are trying to hide assets in Canada that are derived from or are the proceeds of crime.
You may have legitimate arguments about the ability to seize assets. We have our own questions with respect to our own officials. You may have legitimate arguments with respect to people elsewhere who have committed gross human rights violations—quite disgusting ones, and we've heard a lot of evidence of that—but when it comes to ill-gotten gains, Canada has quite a tight regime. When it comes to SEMA and threats against international peace, it is quite a tight regime. It's the same thing with FACFOA, although the hole you identified was designated by the nature of the legislative scheme.
I think that when you are trying to address a very important point, there is a very important disservice done by mixing apples and oranges.
Obviously, you are cognizant of the fact that we are a pluralistic democratic country. We are often dealing with state actors or non-state actors who live under a regime that isn't the same as ours. We don't necessarily have the same tools at our disposal that a so-called kleptocracy may have, and we do have to follow the rule of law. What are your concerns with people or institutions that we may consider putting on lists, freezing their assets, which may have been gotten by legitimate means in Canada, and their ability to use our judicial system to abide by a very important rule in Canada, which they have in the United States as well, and in Britain, which is the rule of law and due process?
Thank you.
View Marc Miller Profile
Lib. (QC)
Thanks for the testimony today. I'll match your “callow” professor with a number of callow politicians around this table any day.
In your 1994 book on sanctions, which focused on Canadian and Australian foreign policy, you noted that Canada in particular lacked the economic capability to “give the sanctions of major powers their bite”, thus essentially saying that the sanctions were symbolic.
If we go back to what my colleague MP Kent was saying with respect to a sanctions regime that would condemn or seize assets of gross human rights violators, the initial act of seizing the assets has some beauty to it, because it is smart, at least at first glance, in the sense that you're grabbing an asset on Canadian territory of a person who has manifestly committed these gross human rights violations, but the unintended consequence is what I'd like to focus on, or at least a countermeasure that could be enacted against Canada and could have on Canadians perverse consequences that were never intended in the first place.
It seems to me that there's a distinction to draw between the easiness of freezing an asset that belongs to someone if it's properly identified and then focusing on the countermeasure, which may have perverse consequences, vis-à-vis a broader regime that simply doesn't work because Canada lacks the heft to put bite into its actions. I do think we need to examine at what point our actions have consequences for other Canadians that weren't intended in the first place. The initial ability to freeze those assets, if you can actually do it, is interesting as a policy measure and, properly, to send a message to the person who has committed those acts that they can't hide their assets in Canada.
View Marc Miller Profile
Lib. (QC)
Mr. Goldman, perhaps you could speak more at length on the actions of the Russian government. Essentially, we're talking about state actors or quasi-state actors, and it is immediately perceived as an act against the state. Whether you freeze a person's assets or just say you're freezing that person's assets, they were acting on behalf of the state in question, so it's immediately perceived as such.
Perhaps you could speak to what happened in the Magnitsky case.
View Marc Miller Profile
Lib. (QC)
At the very end of your testimony today, Mr. Goldman, you mentioned that sanctions, whether they were effective or ineffective, were still a very interesting and important tool. I was hoping you could develop that a bit.
View Marc Miller Profile
Lib. (QC)
Ms. Lilly and gentlemen, thank you for appearing and thank you for taking what is a broad approach to this panel and the examination at hand. What has become evident in a number of the appearances of witnesses before us with respect to the legislation and its operationalization is that we started out thinking about where the holes are in this legislation and where we can fill them and how it can be put in place in the most desirable way as part of Canadian policy and effective enforcement of these legislative tools, and quickly we've gotten into a few observations that are rather surprising. One is the inability to impose them in an effective way, and another is the potentially perverse effects that imposing them has, absent a broad multilateral approach.
I'm glad you've raised that point, because as we look at potentially putting in place something that would address gross violations of human rights, the issues you raise today are particularly important in making sure that this legislative tool, if deemed desirable by Parliament, actually works.
The current legislation, which is supposed to deal with something equally if not more grave, you've said either doesn't work, is very difficult to put into place, or creates disincentives or perverse effects on Canadian business, as Mr. Boscariol stated. It's particularly intriguing—and it won't be part of my intervention, but as we start to engage more with Iran—that what you've seemed to suggest is that Canadian business is at a disadvantage compared with partners who can react more quickly.
The question I have is with respect to gross violations of human rights and what we need to do; with where you see an opportunity for Canada to act, and—any one of you can answer this—with a focus on the potential countermeasures facing a country that is much more powerful than us both on an economic level and a political level and potentially a partner, whether acting unilaterally for a country like ours.... One, is such an approach desirable from a legal and political perspective? Two, would it actually work? Three, one of you gentlemen raised the rule of law—condemning people essentially before they're judged—but also the perverse effect that it can have on Canadian citizens as a result.
I know that's a long statement, but go at it as you see fit.
View Marc Miller Profile
Lib. (QC)
Thank you.
Thank you for your testimony.
You've heard today that we're examining potential holes in the current legislative scheme, including what may be missing, what's desirable, and what's needed to fix it. There has been some focus on human rights violations. It sounds as though in the legislative scheme you operate under there isn't a hole and that it's just a question of being able to do your job.
The issue I want to focus on—and it has to do with what Mr. Levitt brought up—is precisely the ability to do your job and to effectively capture an item, a good, or a person that would otherwise get out or get in, particularly in the area of dual-use equipment. Just walk me through—I have a very simplistic approach to this—the difference between a washing machine and a centrifuge that might end up, depending on how it's used, being used for cleaning clothes or for refining something.
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