FAAE Committee Report
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GOVERNMENT RESPONSE TO THE FOURTH REPORT
OF THE The Government of Canada has carefully considered the Fourth Report of the Standing Committee on Foreign Affairs and International Development. The Government would like to thank the members of the Committee for their efforts in preparing this comprehensive and well-constructed report and welcomes their continuing interest in Ukraine and the goal of strengthened democracy and prosperity for Ukrainians. Canada shares the concerns of the SCFAID Committee regarding the recent deterioration of democracy in Ukraine. This troubling trend began shortly after President Yanukovych came to power in elections deemed to meet most international commitments in 2010, and has been characterized by the consolidation of power through constitutionally questionable means, worrisome changes to electoral law, and constraints on media freedom. The prosecution of opposition leaders in Ukraine is of particular concern due to the apparently arbitrary nature of their trials and their lack of access to full medical care in prison. With the international community, Canada has identified the upcoming Ukrainian Parliamentary Elections as a key benchmark in Ukraine’s democratic development, and will monitor events closely in the lead-up to the elections. Proceeding from this assessment of the situation in Ukraine, the Government is pleased to provide the following Response to the SCFAID Report recommendations SCFAID Report Recommendation 1 The Committee recommends that the Government of Canada pursue a long-term policy of principled engagement with Ukraine. This engagement should address the full range of issues raised in this report, including the rule of law, political and economic governance, elections, the enabling environment for civil society, media freedom, academic freedom, religious freedom, business and investment, youth mobility, and cultural exchanges. Canada and Ukraine have enjoyed close bilateral relations since Canada became the first Western nation to recognize Ukraine’s independence on December 2, 1991. These relations have moved beyond their roots in the large (1.2 million) Ukrainian-Canadian community to embrace cooperation in the political, security and commercial spheres. In the light of recent troubling trends in Ukraine, Canada has adopted a policy of principled engagement with Ukraine. In short, while the Government of Canada continues to engage bilaterally and multilaterally with Ukraine –a key European partner that plays an important role in the democratic development and regional security of Eastern Europe – this engagement is balanced by strong and repeated private and public messaging on democracy, human rights and rule of law. The SCFAID recommendation is consistent with this policy of principled engagement, which encompasses all aspects of Canada’s diverse relationship with Ukraine. Canadian engagement with Ukraine includes frequent high-level meetings. Prime Minister Harper visited Ukraine in October 2010. In March 2012, Minister Baird met with Ukrainian Foreign Minister Gryshchenko on the margins of the Nuclear Security Summit in Seoul, and former Minister Oda visited Ukraine in April 2012. Canada-Ukraine bilateral political and security consultations occur annually, the most recent having taken place in Ottawa in November 2011. Other aspects of Canadian engagement with Ukraine include the on-going negotiation of a bilateral Free Trade Agreement (FTA) and the implementation of a diverse range of programming in Ukraine. Canada is the sixth largest donor of technical assistance to Ukraine and has invested over $410 million in bilateral Official Development Assistance through the Canadian International Development Agency (CIDA). Other examples of Government of Canada programming include the Department of National Defence’s Military Training Cooperation Programme (MTCP) and DFAIT’s Global Partnership Program aimed at reducing weapons of mass destruction proliferation threats. In addition, in February 2012, Minister Baird facilitated the establishment of an international medical commission to undertake an independent assessment of Ms. Tymoshenko’s health, which took place with the participation of three Canadian physicians. These wide-reaching bilateral relations are meant to foster engagement on values and principles such as democracy, human rights, rule of law, prosperity for Canadians and Ukrainians, and security. At the same time, the Government of Canada has taken every opportunity to register its deep and on-going concerns about the deterioration of democracy in Ukraine. This messaging was conveyed by the Prime Minister during his visit to Ukraine in October 2010 and through letters to the Ukrainian Administration. Likewise, in several ministerial statements Minister Baird spoke out against the apparently politically motivated convictions of Yulia Tymoshenko, Yuri Lutsenko and Valeriy Ivashchenko, stating that such convictions run “counter to the democratic aspirations of the Ukrainian people and undermin[e] the institutions upon which a peaceful, prosperous and democratic society depends.” Similar strong messaging was delivered by Parliamentary Secretary to the Minister of Foreign Affairs Dechert during visits to Ukraine in March and May 2012 and in July 2012 as the Government of Canada’s observer of Ms. Tymoshenko’s legal appeal hearing. Former Minister of International Cooperation Oda also visited Ukraine and delivered key messages on democracy, human rights and the rule of law in April 2012. This policy of “principled engagement” will remain in place to foster positive developments with respect to democracy, human rights and rule of law in Ukraine. To this end, Canada will continue to carefully and systematically monitor the situation in Ukraine and will make adjustments as future positive or negative developments merit. SCFAID Report Recommendation 2 The Committee recommends that in the immediate term the Government of Canada should advocate forcefully for
Canada is disturbed by the apparent political motivation and bias in recent judicial proceedings against opposition figures in Ukraine, which undermines democracy and the rule of law. For this reason, the Government of Canada forcefully advocated for a fair and transparent legal process for Yulia Tymoshenko, as well as her adequate access to health care. Canada also expressed deep concern at the apparently politically motivated convictions of opposition members Yuri Lutsenko and Valeriy Ivashchenko who, like Ms Tymoshenko, were imprisoned with inadequate access to medical care. This troubling trend of apparent political bias in the prosecution of opposition members undermines the institutions upon which a peaceful, prosperous and democratic society depends and calls into question the willingness of Ukraine to hold elections that are free and fair. It is the Government of Canada’s view that the cases of all incarcerated political leaders should be examined by an independent judiciary in free and fair courts of law. a) In November 2011, the Minister of Foreign Affairs spoke of the Government of Canada’s concern about Ms. Tymoshenko’s medical condition in the House of Commons and offered Canada’s assistance. Subsequently, the Department of Foreign Affairs and International Trade facilitated the participation of three Canadian physicians in an International Medical Commission established –in part through pressure from the Government of Canada –to undertake an independent medical assessment of Ms. Tymoshenko in February 2012, which led to her treatment by German medical specialists in Ukraine. Finally, in August 2012, Minister Kenney announced his readiness to deploy a Government of Canada doctor from his department to Ukraine to assess the health of Mr. Lutsenko and Mr. Ivashchenko. Since that time, Mr. Ivashchenko’s sentence was suspended for one year and he was conditionally released from prison; Mr. Lutsenko remains in prison with limited access to medical care. b) The Minister of Foreign Affairs has issued a number of statements expressing the Government of Canada’s concern about the apparent politically-motivated prosecution of Ms. Tymoshenko, Mr. Lutsenko and Mr. Ivashchenko. c) As detailed in the response to “Recommendation One” above, the Government of Canada has consistently registered deep and on-going concerns regarding human rights, democracy and rule of law in Ukraine to foster positive progress in Ukraine, including improvements to media, religious and academic freedom. Notably, through letters and statements, Canada drew attention to Ms. Tymoshenko’s appeal process, and the fact that it should adhere to internationally-recognized norms of fairness, transparency and due process. Moreover, Minister Baird deployed Parliamentary Secretary Dechert to Ukraine to attend the appeal process in July 2012. SCFAID Report Recommendation 3 The Committee recommends that the Government of Canada take all practical action to assist in the holding of free, fair and transparent parliamentary elections in Ukraine in October 2012 that are acceptable according to international standards and to the citizens of Ukraine. In addition to other training and capacity-building support, the Government of Canada should use multilateral, bilateral and other channels to ensure a significant number of Canadians, at least equivalent to the number sent during the presidential election of 2010, participate as long and short-term observers in these critical elections. Long-term observers should be deployed at the earliest possible date. Canada’s election observation mission to Ukraine should be led by a Canadian of prominent stature. As a strong supporter of a free and independent Ukraine, Canada has a long and proud history of internationally deploying election observers to ensure that elections are consistent with international democratic standards. For Ukraine’s presidential elections in 2010, for example, Canada contributed more than 270 observers. With the international community, Canada looks toward the Ukrainian parliamentary elections in October 2012 as a key benchmark in Ukraine’s democratic development. Notably, in August 2012, Minister of Foreign Affairs John Baird stated that the apparent political bias in the prosecution of Ukrainian opposition figures calls into question the willingness of Ukraine to hold elections that are free and fair. To help monitor and assess the situation, CIDA and DFAIT have developed a $8.9 million initiative to deploy 500 observers to Ukraine in order to help support a free and fair electoral process. This deployment is to consist of 75 long-term observers and 425 short-term observers, which includes the deployment of Members of Parliament. This is an increase from 6 long-term observers and 320 short-term observers during the 2010 Presidential elections in Ukraine. The observers will be sent via both i) the Organization for Security and Cooperation in Europe’s (OSCE) multilateral electoral observation mission; ii) the OSCE Parliamentary Assembly and; iii) a bilateral Canadian election observation mission coordinated by CANADEM. The OSCE missions –including elections observers sent from other OSCE member states – are to include a Canadian contribution of 10 long-term and 60 short-term observers. The bilateral Canadian mission will deploy another 65 long-term observers and 365 short-term observers to Ukraine. Long-term observation in the months preceding election day will be crucial to the upcoming parliamentary elections given that many election process irregularities and violations are expected to occur in the lead-up to the elections and not only on election day. Short-term observers (7 days before election day) are also critical in assessing the fairness and transparency of the parliamentary elections, especially given the size of the country and the significant number of polling stations (33,540).The importance of electoral observation is heightened by the perceived deterioration of democratic freedoms and the passing of the new election law in Ukraine, which returns half of Ukraine’s electoral districts to the single mandate system (a system disproportionally subject to fraud in previous Ukrainian elections). CIDA and DFAIT expect the bilateral mission to be headed by a prominent Canadian with the requisite capacity to manage this large group of Canadian observers and coordinate their activities effectively on the ground with other elections stakeholders. CIDA and DFAIT have also developed a set of local capacity building initiatives in support of the 2012 Ukrainian parliamentary elections
These initiatives are expected to generate sustainable results that will have an impact on the upcoming parliamentary elections as well as future Ukrainian elections. They will also increase voter awareness on key electoral issues and foster governmental accountability within and well beyond the election cycle. SCFAID Report Recommendation 4 The Committee recommends that the Government of Canada continue to conduct free trade negotiations with the Government of Ukraine. However, any final agreement must contain provisions related to the rule of law and democracy in accordance with existing Canadian practice. In addition, the Government of Canada must state publicly that ratification of any free trade agreement will be contingent upon the achievement of real progress related to human rights, democracy and rule of law, and on acceptable action regarding selective and apparently politically motivated prosecutions against political leaders. In June 2010, former Minister of International Trade Van Loan announced that Canada and Ukraine had launched negotiations on a bilateral free trade agreement (FTA). Consistent with the SCFAID recommendation, Canada believes that engagement rather than isolation is the best way to support positive change in Ukraine, and Canada is committed to moving forward with FTA negotiations with Ukraine. Free trade agreements open new markets and create opportunities for businesses, which help foster economic growth, and economic growth can help to create a more prosperous, equitable and secure democracy where human rights are respected. It is Canada's practice to indeed negotiate provisions on transparency and anti-corruption in its FTAs. Standard language in the Preamble of all of Canada's FTAs affirms the Parties' commitment to respect the values of principles of democracy and to promote and protect human rights and fundamental freedoms as proclaimed in the Universal Declaration of Human Rights. The negotiation and subsequent ratification of an FTA are two distinct and lengthy undertakings. Canada remains committed to conducting with FTA negotiations with Ukraine. In order to avoid undue interference with these negotiations, it is premature for the Government of Canada to consider specific conditions for the ultimate ratification of an FTA at this time. SCFAID Report Recommendation 5 The Committee recommends that the Government of Canada continue CIDA assistance to Ukraine. At the same time, it recommends that an explicit focus be placed on activities that support the rule of law and good governance in Ukraine and improved capacity for civil engagement in governance and decision-making at all levels. Development assistance should also specifically target the strengthening of civil society organizations that are working on rule of law, human rights and governance issues. Ukrainian civil society organizations came into existence only after Ukraine's independence in 1991, and have been steadily evolving since then, largely through the support of international donors. However, since the 2010 presidential election that brought to power President Victor Yanukovych, decision-making power has been centralized and democratic principles in Ukraine have eroded, leading to public and international criticism and concern over the deterioration of human rights and democracy. Since 1991, CIDA has contributed more than $410 million in bilateral Official Development Assistance to Ukraine and is currently the sixth largest bilateral donor to Ukraine. Ukraine is one of CIDA’s twenty countries of priority. CIDA is committed to advancing fundamental democratic values and the realization of human rights by all individuals in Ukraine through international development assistance that seeks to promote prosperity and achieve sustainable development. By providing support to Ukrainian farmers, entrepreneurs and small business people, CIDA is promoting the expansion of Ukraine’s nascent middle class, thereby supporting democratic progress and stability by developing a stronger voice across the country for transparent and effective government that respects the rule of law. The Government of Canada supports the SCFAID recommendation regarding CIDA assistance and will continue to provide technical assistance to Ukraine. Further, CIDA fully agrees that rule of law and good governance are essential components in establishing a transparent and predictable environment for sustainable economic growth. For example, CIDA recently launched the Judicial Education for Economic Growth project ($6.6 million), which aims to improve the capacity of the Ukrainian judiciary to resolve commercial cases and those directly relevant to the needs of businesses and entrepreneurs. Moreover, in response to growing concerns over the centralization of decision-making power and erosion of democratic principles in Ukraine, CIDA is developing new programming specifically aimed at advancing democracy, human rights and the development of civil society in Ukraine. In terms of projects which seek to advance democracy, the main focus this year has been the development of a set of capacity building initiatives in support of the October 2012 parliamentary elections. Notably, this programming package includes the Developing Election Training Capacity and Enhancing Voter Awareness project with the OSCE, which will help ensure Ukraine’s Central Elections Commission train its election commissioners across the country and help raise the awareness of Ukrainian voters about the importance of elections, their legal rights and elections procedures. The package also includes projects to help develop the capacity of Ukrainian NGOs to monitor elections and hold the Central Election Commission and political parties accountable for their roles. CIDA spending on Ukraine is on average over $20 million per year. Over the past three years, annual disbursements have been as follows $21.65 million in fiscal year 2009-10, $28.55 million in fiscal year 2010-11, and $20.01 million in fiscal year 2011-12. SCFAID Report Recommendation 6 In order to foster development of civil society, democracy and rule of law, the Committee recommends that the importance of increasing the numbers of young Ukrainians and young Canadians participating in the Youth Mobility Agreement be recognized. The Government of Canada views International Experience Canada as an important program allowing Canadian and foreign youth to gain important economic and cultural experiences. In October 2010, Prime Minister Harper announced that Canada and Ukraine had signed an agreement on Youth Mobility to extend travel and work opportunities between our countries, in view of our deep-rooted historical and cultural ties. A memorandum of understanding on youth mobility was launched the following year, on April 4, 2011. During the first year of implementation, Canada welcomed 107 young Ukrainians, while no Canadians participated. The 2012 reciprocal quota for the number of participants from each country is 200. The Government of Canada looks forward to reviewing how young Ukrainians and Canadians have taken advantage of the program. Accordingly, the Government considers that it would be premature to expand this new program at this time. SCFAID Report Recommendation 7 The Committee recommends that the Government of Canada play a leadership role in the G8, the G20, the International Monetary Fund and other international fora to explore all of the ways in which the international community can combat money laundering in and through Ukraine. The Government of Canada recognizes the damaging effects of money laundering, both to the integrity of the financial system and in facilitating criminal activity. For this reason, and in keeping with the Committee’s recommendation, Canada has taken a leading role in efforts to combat money laundering in many international fora. Canada was a founding member of the Financial Action Task Force (FATF) and continues to be an active participant in its activities. Established in 1989 by the G7, the FATF develops and promotes global standards to combat money laundering, terrorist financing and the financing of proliferation of weapons of mass destruction. FATF standards are now recognized by more than 180 jurisdictions worldwide and all G8 and G20 members support its work. In its June 2012 Leaders' Statement, the G20 noted its strong support for the FATF's mandate. Ukraine was publicly identified by the FATF in 2010 as a risk to the international financial system due to strategic deficiencies in its anti-money laundering and counter-terrorist financing (AML/CFT) regime. The FATF then worked closely with Ukrainian officials to address identified weaknesses in its AML/CFT regime. As part of this work, Ukraine passed a number of pieces of legislation to improve its regime, and as of October 2011, Ukraine is no longer publicly identified by the FAFT as having strategic deficiencies in its AML/CFT regime. Canada continues to monitor the progress made by Ukraine to strengthen its AML/CFT regime through the established monitoring and review processes of the FATF and the global network of FAFT-style regional bodies. Secondly, the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) has a mandate to facilitate the detection, prevention and deterrence of money laundering and terrorist financing and has signed an intelligence-sharing Memorandum of Understanding with its counterpart in Ukraine, known as the State Committee for Financial Monitoring. This agreement enables FINTRAC to effectively share timely information and intelligence on money laundering and terrorist activity financing with Ukrainian authorities. Thirdly, Canada continues to support the efforts of the International Monetary Fund (IMF). In March 2010, DFAIT contributed CAD 2.3 million to the IMF's Anti-Money Laundering and Combating the Financing of Terrorism Trust Fund (TTF) to support financial sector reforms, including in Ukraine. Fourthly, the World Bank's Financial Market Integrity Program (FMI), as part of the Governance/Anti-Corruption agenda, provides client countries, such as Ukraine, with tools for increasing transparency and addressing illicit and illegal money flows. With FMI assistance, countries with limited resources have become members of the Egmont Group, an international organization representing over 130 member Financial Intelligence Units (FIUs) worldwide. The World Bank has assisted Ukraine, which has been a member of the Egmont group since 2004, in establishing its FinMonitoring Unit and has provided training to its staff. In May 2011, DFAIT’s Counter Terrorism Capacity Building Program contributed to the Tactical Analysis Course, a joint World Bank/Egmont Group project which provided tactical analysis training to Ukrainian officials. Finally, Canada is party to the European Bank for Reconstruction and Development (EBRD), which undertakes extensive due diligence and integrity checks (including an AML/CFT checklist) for all of its projects. Clients that are financial institutions are encouraged to improve due diligence procedures and “know your customer” practices. Additionally, EBRD senior bankers take a training course on integrity and due diligence, which covers AML matters. Although these measures cover all EBRD transactions, particular care is exercised in countries where the risk of money laundering may be higher, such as Ukraine. SCFAID Report Recommendation 8 The Committee recommends that the Government of Canada explore with its international partners the means by which the international travel and illicit “business” activities of corrupt oligarchs, government officials and their families could be restricted in accordance with applicable Canadian law. Canada recognizes the negative and pervasive effects of corruption, as not only a good governance issue but also a crime problem and a drag on economic, social and political development. The state of corruption in Ukraine is notably of concern given Ukraine’s rating of 152 out of 182 countries in Transparency International’s 2011 Corruption Perceptions Index, down from 134 in 2010 and 118 in 2007. In the absence of travel-related sanctions imposed against Ukraine by an international organisation to which Canada is a party (such as the United Nations), it is not possible under applicable Canadian legislation to impose a "travel ban" on certain Ukrainian "oligarchs, government official and their families." However, foreign nationals from Ukraine, like all others who seek to enter Canada, must meet the eligibility criteria set-out in the Immigration and Refugee Protection Act (IRPA). A foreign national can be ineligible to obtain a visa or to enter Canada for a number of reasons, including inadmissibility for security, human or international rights violations (e.g., war crimes, crimes against humanity and genocide), serious criminality, serious organized criminality (including transnational crime), health, financial, mis-representation, non-compliance, and inadmissible family members. Additionally, on June 20, 2012, the Minister of Citizenship and Immigration tabled Bill C43, The Faster Removal of Foreign Criminals Act, which proposed amendments to admissibility and related provisions of the IRPA. The proposed Bill contains a number of measures that, if passed, would further restrict access to Canada to corrupt foreign officials and their family members, including
These amendments would come into effect once the Bill receives royal assent and the specific provisions are brought into force. With respect to corruption, as States Parties to the United Nations Convention against Corruption (UNCAC), Canada and Ukraine have mutual legal obligations to prevent and combat corruption through domestic law enforcement and international cooperation. To this end, the Treaty between Canada and Ukraine on Mutual Assistance in Criminal Matters provides a basis for mutual legal assistance to combat corruption, including money laundering, consistent with, and complementary to, the UNCAC. Under the Corruption of Foreign Public Officials Act (CFPOA), Canada may prosecute foreign bribery offences when they are committed in whole or in part in Canada. While Canada does not have jurisdiction to deal with allegedly corrupt activities taking place in Ukraine unrelated to Canada, it may prosecute the person or corporation responsible for bribing a Ukrainian public official or a person for the benefit of the official (i.e. the middleman) if there is a “real and substantial link” between the offence and Canada. Penalties range from up to five years imprisonment for a person and fines that are imposed at the discretion of the judge with no maximum. Reflecting the priority that the Government has given to this issue, the RCMP established the International Anti-Corruption Unit in 2008, comprised of two seven-person teams based in Ottawa and Calgary. The unit is charged with investigating allegations that a Canadian person or business has bribed a foreign public official, allegations that a foreign person has bribed a Canadian public official that may have international repercussions, and allegations that a foreign public official has secreted or laundered money in, or through, Canada. There are currently thirty-four ongoing investigations under the CFPOA, and there have been two convictions under the CFPOA to date. Details regarding the nationality of the individuals and businesses currently under investigation under the CFPOA are not available, as the RCMP does not publically comment on its on-going investigations. |