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Bill S-226

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First Session, Forty-second Parliament,

64-65-66 Elizabeth II, 2015-2016-2017

SENATE OF CANADA

BILL S-226
An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act
AS PASSED
BY THE SENATE
April 11, 2017
4211612


SUMMARY

This enactment enacts the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights. It also proposes related amendments to the Special Economic Measures Act and to the Immigration and Refugee Protection Act.

Available on the Senate of Canada website at the following address:
www.sencanada.ca/en


1st Session, 42nd Parliament,

64-65-66 Elizabeth II, 2015-2016-2017

SENATE OF CANADA

BILL S-226

An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act

Preamble

Whereas human rights and the rule of law are integral to international law and Canada has repeatedly asserted its commitment to promoting international justice and respect for human rights;

Whereas signatory States to international human rights agreements have committed themselves to the obligations and responsibilities set out in those agreements;

Whereas Sergei Magnitsky, a Moscow lawyer who uncovered the largest tax fraud in Russian history, was detained without trial, tortured and consequently died in a Moscow prison on November 16, 2009;

Whereas no thorough, independent and objective investigation has been conducted by Russian authorities into the detention, torture and death of Sergei Magnitsky, nor have the individuals responsible been brought to justice;

Whereas the unprecedented posthumous trial and conviction of Sergei Magnitsky in Russia for the very fraud he uncovered constitute a violation of the principles of fundamental justice and the rule of law;

Whereas legislation and motions adopted by legislative assemblies in the United States, the European Parliament, the United Kingdom, the Netherlands, Italy, Poland and Canada have condemned the mistreatment of Sergei Magnitsky as "a violation of the principles of fundamental justice and the rule of law" and called for sanctions against any foreign nationals responsible for violations of internationally recognized human rights in a foreign country when authorities in that country are unable or unwilling to conduct a thorough, independent and objective investigation of the violations;

Whereas the Litvinenko Inquiry report, presented to the United Kingdom Parliament on January 21, 2016, found that two Russian agents, Andrei Lugovoi and Dmitry Kovtun, were responsible for the assassination of Alexander Litvinenko and that there was a "strong possibility" that they were acting on behalf of the Russian Federal Security Service;

Whereas Russian opposition politician Boris Nemtsov was assassinated outside the Kremlin on February 27, 2015, and to this day no thorough, independent and objective investigation has been conducted by Russian authorities;

Whereas the Senate, on May 5, 2015, and the House of Commons, on March 25, 2015, by unanimous resolutions called upon the Government of Canada to explore and encourage sanctions against any foreign nationals responsible for the detention, torture and death of Sergei Magnitsky and to explore sanctions as appropriate against any foreign nationals responsible for violations of internationally recognized human rights in a foreign country, when authorities in that country are unable or unwilling to conduct a thorough, independent and objective investigation of the violations;

Whereas member of the Ukrainian Parliament Lieutenant Nadiya Savchenko and other Ukrainians were illegally convicted and imprisoned in Russia in violation of international norms and fundamental justice;

Whereas the Special Economic Measures Act authorizes the Government of Canada to take economic measures against a foreign state or national for the purpose of implementing a decision, resolution or recommendation of an international organization or association of states, or in cases of a grave breach of international peace and security that resulted or is likely to result in a serious international crisis;

Whereas adding gross violations of internationally recognized human rights as a ground on which sanctions may be imposed against foreign states and nationals would further Canada’s support for human rights and advance its responsibility to protect activists who fight for human rights;

Whereas it is important to acknowledge and remember Sergei Magnitsky’s sacrifice, as well as the sacrifice of other victims of gross violations of internationally recognized human rights;

And whereas all violators of internationally recognized human rights should be treated and sanctioned equally throughout the world,

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

Short Title

1 This Act may be cited as the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).

Interpretation

Definition

2 (1) The following definitions apply in this Act.

Canadian means a person who is a citizen within the meaning of the Citizenship Act or a corporation incorporated or continued by or under the laws of Canada or of a province. (Canadien)

entity means a corporation, trust, partnership, fund, an unincorporated association or organization or a foreign state. (entité )

foreign national means an individual who is not

  • (a) a Canadian citizen; or

  • (b) a permanent resident under the Immigration and Refugee Protection Act. (étranger )

foreign state means a country other than Canada, and includes

  • (a) any of its political subdivisions;

  • (b) its government and any of its departments, or the government or any department of any of its political subdivisions; and

  • (c) any of its agencies or any agency of any of its political subdivisions. (État étranger)

Minister means the Minister of Foreign Affairs. (ministre)

person means an individual or an entity. (personne)

prescribed means prescribed by regulation. (version anglaise seulement)

property means any real, personal, movable or immovable property. (bien)

Property of a person

(2) For the purposes of this Act, the property of a person includes property controlled, directly or indirectly, by the person.

Her Majesty

Binding on Her Majesty

3 This Act is binding on Her Majesty in right of Canada or a province.

Orders and Regulations

Orders and Regulations

4 (1) The Governor in Council may, if satisfied based on reliable and appropriate evidence that the circumstances described in subsection (2) have occurred,

  • (a) make any orders or regulations with respect to the restriction or prohibition of any of the activities referred to in subsection (4) in relation to the foreign national’s property that the Governor in Council considers necessary; and

  • (b) by order, cause to be seized, frozen or sequestrated in the manner set out in the order any of the foreign national’s property situated in Canada.

Circumstances

(2) The circumstances referred to in subsection (1) are the following:

  • (a) a foreign national is responsible for, or complicit in, extrajudicial killings, torture or other gross violations of internationally recognized human rights committed against individuals in any foreign country who seek

    • (i) to expose illegal activity carried out by government officials, or

    • (ii) to obtain, exercise, defend or promote internationally recognized human rights and freedoms, such as freedom of conscience, religion, thought, belief, opinion, expression, peaceful assembly and association, and the right to a fair trial and democratic elections;

  • (b) a foreign national acts as an agent of or on behalf of a foreign state in a matter relating to an activity described in paragraph (a);

  • (c) a foreign national who is a government official of a foreign state, or a senior associate of such an official, is responsible for, or complicit in, ordering, controlling, or otherwise directing, acts of significant corruption, including the expropriation of private or public assets for personal gain, corruption related to government contracts or the extraction of natural resources, bribery or the facilitation or transfer of the proceeds of corruption to foreign jurisdictions; or

  • (d) a foreign national has materially assisted, sponsored, or provided financial, material or technological support for, or goods or services in support of, an activity described in paragraph (c).

Factors

(3) The Governor in Council may take into account information obtained by other countries and non-governmental organizations that monitor violations of human rights.

Restricted or prohibited activities

(4) Orders and regulations may be made under paragraph (1)‍(a) with respect to the restriction or prohibition of any of the following activities, whether carried out in or outside Canada:

  • (a) the dealing, directly or indirectly, by any person in Canada or Canadian outside Canada in any property, wherever situated, of the foreign national;

  • (b)  the entering into or facilitating, directly or indirectly, by any person in Canada or Canadian outside Canada, of any financial transaction related to a dealing referred to in paragraph (a); and

  • (c) the provision by any person in Canada or Canadian outside Canada of financial services or related services in respect of property of the foreign national.

Duration

5 An order or regulation made under section 4 in respect of a foreign national ceases to have effect on the day that is five years after the day on which it comes into force unless the Governor in Council, by order, extends it for the period specified in the order. It may be extended more than once.

Tabling of order

6 A copy of each order or regulation made under section 4 must be tabled in each House of Parliament within 15 days after it is made. It may be sent to the Clerk of the House if the House is not sitting.

Duty to Determine

Determination

7  Each of the following entities must determine on a continuing basis whether it is in possession or control of property that it has reason to believe is the property of a foreign national who is the subject of an order or regulation made under section 4:

  • (a) authorized foreign banks, as defined in section 2 of the Bank Act, in respect of their business in Canada or banks to which that Act applies;

  • (b) cooperative credit societies, savings and credit unions and caisses populaires regulated by a provincial Act and associations regulated by the Cooperative Credit Associations Act;

  • (c) foreign companies, as defined in subsection 2(1) of the Insurance Companies Act, in respect of their insurance business in Canada;

  • (d) companies, provincial companies and societies, as those terms are defined in subsection 2(1) of the Insurance Companies Act;

  • (e)  fraternal benefit societies regulated by a provincial Act in respect of their insurance activities and insurance companies and other entities engaged in the business of insuring risks that are regulated by a provincial Act;

  • (f) companies to which the Trust and Loan Companies Act applies;

  • (g) trust companies regulated by a provincial Act;

  • (h) loan companies regulated by a provincial Act;

  • (i) entities that engage in any activity described in paragraph 5(h) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act if the activity involves the opening of an account for a client;

  • (j) entities authorized under provincial legislation to engage in the business of dealing in securities or to provide portfolio management or investment counselling services; and

  • (k) other entities of a prescribed class of entities.

Rights of Persons who are Subject to an Order or Regulation

Application

8 (1) A person who is the subject of an order or regulation made under section 4 may apply in writing to the Minister to cease being the subject of the order or regulation on the grounds that the person is not a foreign national.

Recommendation

(2) If the Minister has reasonable grounds to believe that the applicant is not a foreign national, the Minister must recommend to the Governor in Council that the order or regulation be amended or repealed, as the case may be, so that the applicant is no longer the subject of the order or regulation.

Notice if application rejected

(3) The Minister must give notice without delay to the applicant of any decision to reject the application.

Application for a Certificate

Mistaken identity

9 (1) A person claiming not to be a foreign national may apply to the Minister in writing for a certificate stating that they are not a foreign national who is the subject of an order or regulation made under section 4.

Certificate — time frame

(2) If the Minister determines that the person is not a foreign national, the Minister must issue a certificate to the applicant as soon as feasible.

Reasonable expenses

10 (1) A person who is the subject of an order or regulation made under section 4 may apply to the Minister in writing for a certificate to exempt property from the application of the order or regulation if the property is necessary to meet the reasonable expenses of the person and their dependents.

Certificate — time frame

(2) If the Minister determines that the property is necessary to meet the reasonable expenses of the applicant and their dependents, the Minister must issue a certificate to the applicant as soon as feasible.

General

No civil liability

11 A person who, in relation to any property that is the subject of an order or regulation made under section 4, acts reasonably in taking, or omitting to take, measures to comply with the order or regulation is not liable in any civil action arising from having taken or omitted to take the measures if they took all reasonable steps to satisfy themselves that the property was property that is the subject of the order or regulation.

Existing equities maintained

12 All secured and unsecured rights and interests in any property that is the subject of an order or regulation made under section 4 that are held by a person, other than the foreign national who is the subject of the order or regulation, are entitled to the same ranking that they would have been entitled to had the order or regulation not been made.

Proceedings not precluded

13 The making of an order or regulation under section 4 does not preclude the commencement of proceedings under any Act of Parliament other than this Act, or any civil proceedings, in respect of any property that is the subject of the order or regulation.

Regulations

14 The Governor in Council may make regulations for carrying out the purposes and provisions of this Act.

Review and Report

Review

15 (1) 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.

Report

(2) 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.

Review of the list

(3) Each year, the committees of the Senate and the House of Commons that are designated or established by each House for that purpose conduct a review of the list of foreign nationals who are the subject of an order or regulation made under this Act and submit a report to Parliament together with their recommendations with regard to the addition of foreign nationals to the list or their deletion from the list.

Related Amendments

1992, c. 17

Special Economic Measures Act

16 (1) The portion of subsection 4(1) of the Special Economic Measures Act before paragraph (a) is replaced by the following:

Orders and regulations

4 (1) The Governor in Council may, if satisfied based on reliable and appropriate evidence that the circumstances described in subsection (1.‍1) have occurred,

(2) Section 4 of the Act is amended by adding the following after subsection (1):

Circumstances

(1.‍1) The circumstances referred to in subsection (1) are the following:

  • (a) an international organization of states or association of states, of which Canada is a member, has made a decision or a recommendation or adopted a resolution calling on its members to take economic measures against a foreign state;

  • (b) a grave breach of international peace and security has occurred that has resulted in or is likely to result in a serious international crisis;

  • (c) a foreign state is responsible for extrajudicial killings, torture or other gross violations of internationally recognized human rights committed against individuals in any foreign country who seek

    • (i) to expose illegal activity carried out by government officials, or

    • (ii) to obtain, exercise, defend or promote internationally recognized human rights and freedoms, such as freedom of conscience, religion, thought, belief, opinion, expression, peaceful assembly and association, and the right to a fair trial and democratic elections;

  • (d) a person acts as an agent or on behalf of a foreign state in a matter relating to an activity described in paragraph (c);

  • (e) a government official of a foreign state, or a senior associate of such an official, is responsible for, or complicit in, ordering, controlling, or otherwise directing, acts of significant corruption, including the expropriation of private or public assets for personal gain, corruption related to government contracts or the extraction of natural resources, bribery or the facilitation or transfer of the proceeds of corruption to foreign jurisdictions; or

  • (f) a foreign state has materially assisted, sponsored, or provided financial, material or technological support for, or goods or services in support of, an activity described in paragraph (e).

2001, c. 27

Immigration and Refugee Protection Act

17 Subsection 35(1) of the Immigration and Refugee Protection Act is amended by striking out “or” at the end of paragraph (b), and by adding the following after paragraph (c):

  • (d) engaging in or instigating an act described in paragraphs 4(1.‍1)‍(c) to (e) of the Special Economic Measures Act; or

  • (e) being a foreign national who is subject to an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).

Published under authority of the Senate of Canada

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