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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue No. 45 - Evidence - December 13, 2018

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OTTAWA, Thursday, December 13, 2018

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of Statutory Instruments.

Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.

[English]

The Joint Chair (Mr. Albrecht): We have a number of agenda items. The first is “Committee Business,” under which there are three items. The first one is the appointment of new counsel. I will look to our general counsel for input on that.

Cynthia Kirkby, Acting General Counsel to the Committee: We have with us in the room right now two successful candidates as a result of the competition the Library of Parliament held, Geneviève Pilon and Geoffrey Ross Hilton. We need the committee’s approval for them to become actual counsel to the committee.

The Joint Chair (Mr. Albrecht): Moved and seconded. Any questions? Discussion? All in favour?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): So ordered.

Welcome to the committee. We look forward to you working with us. We know we have a large volume of material to go through, and I know our other counsel will be more than happy to welcome your input as well. All the best in your journey.

The spring schedule for 2019 is the second matter under Item No. 1 on our agenda. You have the schedule before you. There has been one suggestion for change. I look to our counsel again to outline that.

Ms. Kirkby: We did have a proposed date of February 7, but as the Senate will not be sitting at that point, the suggestion is to move that to February 21 instead. Other than that, the schedule would remain the same.

The Joint Chair (Mr. Albrecht): We will still have the same number of meetings but just move them back a couple of weeks.

All in favour of that change to accommodate the Senate?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): So ordered.

Number 3 is with regard to supplementary information for the appearance of witnesses from Global Affairs Canada. I think we have new information.

Ms. Kirkby: We do. Evidently, a letter has been prepared and is being printed for distribution at the moment.

The Joint Chair (Mr. Albrecht): I think we’ll wait until those letters are prepared in both official languages. In the interim, are we all comfortable with moving to Item No. 2 on our agenda, the appearance of the witnesses from Global Affairs Canada?

Ms. Kirkby: I should mention that we did have a copy of the letter in English sent yesterday. Mr. Abel had a chance to analyze it and has some comments if those would be of assistance to members.

The Joint Chair (Mr. Albrecht): One of the considerations the committee will need to take into account is that it’s a fairly long letter, so it will not be easy for us to digest the information in the letter today and make decisions.

In the interests of time, we’ll look to our witnesses for their input and opening statements, and then proceed to questions. Hopefully by that time, we’ll have the letter. We have to make a decision on where we go from there.

APPEARANCE OF WITNESSES FROM THE DEPARTMENT OF GLOBAL AFFAIRS CANADA

SOR/2006-164 — REGULATIONS AMENDING THE UNITED NATIONS AFGHANISTAN REGULATIONS

SOR/2014-212 — REGULATIONS AMENDING THE UNITED NATIONS AL-QAÏDA AND TALIBAN REGULATIONS

SOR/2007-44 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON IRAN

SOR/2007-204 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON LEBANON

SOR/2007-285 — SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS

SOR/2012-85 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS

SOR/2008-248 — SPECIAL ECONOMIC MEASURES (ZIMBABWE) REGULATIONS

SOR/2009-92 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA

SOR/2012-121 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA

SOR/2010-84 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON ERITREA

SOR/2011-114 — SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-220 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-330 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2014-163 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON THE CENTRAL AFRICAN REPUBLIC

SOR/2014-213 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON YEMEN

(For text of documents, see Appendix A, p. 45A:1.)

The Joint Chair (Mr. Albrecht): In the interests of time, we’ll look to our witnesses for their input and opening statements, and then proceed to questions. Hopefully by that time, we’ll have the letter. We have to make a decision on where we go from there.

I welcome our witnesses, Cory Anderson and Elissa Golberg. Ms. Golberg, I understand you’ll make the opening statement. Welcome to our committee.

[Translation]

Elissa Golberg, Assistant Deputy Minister, Strategic Policy, Global Affairs Canada: Thank you very much, Mr. Chair.

I want to thank all of you for having invited me to represent Global Affairs Canada. I am the Assistant Deputy Minister for Strategic Policy at Global Affairs Canada, which includes policy responsibility for coordinating Canada’s sanctions design and implementation. My team and I work with a variety of partner departments, including Justice, Finance, Canada Border Services Agency and Immigration, Refugees and Citizenship Canada.

I am here today to follow up on the issues outlined in the correspondence between the committee and the department with a view to hopefully providing additional policy clarity on certain provisions aimed at improving Canada’s sanctions regulations.

I should begin by noting that we are actively reviewing and updating the regulations, and welcome the opportunity to discuss some of the issues you have raised. It is also important to note that yesterday the department sent you a written reply which should provide additional details on the elements you raised in your June 18 correspondence.

The letter was not sent in both official languages, and I apologize for that, but we did submit an urgent translation request. The letter discusses two issues in particular, most notably the requirement to disclose information to the RCMP and the use of the terms “democratization” and “stabilization.”

Before proceeding further, I will add that if certain questions touch on confidential information such as advice provided to the minister or solicitor-client privilege, in these cases, I may be constrained in my response or seek further advice before replying in writing to the committee.

As you know, Canada now has at its disposal three different sanctions laws that can be used in a complementary manner — the United Nations Act, the Special Economic Measures Act and the Justice for Victims of Corrupt Foreign Officials Act. These three acts enable Canada to add sanctions imposed by the United Nations Security Council to Canadian law, to impose autonomous sanctions against states or to target particular individuals that support behaviour that is contrary to recognized international norms with respect to human rights.

[English]

By way of context, I always find it useful to recall that sanctions are an important foreign policy tool to facilitate compliance with a rules-based international order. We’ve spent many decades building up a series of norms, principles and policies, and sanctions are meant to try to help us maintain, for the most part, international focus on ensuring comportment with those.

But it’s just one component of Canada’s broader foreign policy toolkit, which also includes things like diplomatic engagement, dialogue, cooperation programs, capacity building, among many other things. In this regard, sanctions as an element of diplomacy can support a number of objectives, such as modifying the behaviour of states or individuals who we believe are acting outside agreed international practice. It can also encourage parties to a conflict to move toward a peace process.

When a decision is taken by Canada to impose sanctions, all efforts are undertaken to try to ensure they’re imposed judiciously — we try to make sure is it’s a measure of last resort — and that it targets those states, individuals and entities that meet the thresholds identified under our laws. We work hard to mitigate unintended humanitarian consequences, for instance, and we’ve been a strong international advocate for the use of targeted sanctions, when appropriate, to hold specific individuals and actors to account while also limiting any impact on the broader population. This is based on lessons learned from practice over the last several decades.

More broadly, I would also say that as shifts in the global environment have led to a more proactive use of sanctions, Canada has also had to enhance its collaboration and cooperation with allies. For instance, we have close cooperation with our partners in the U.K., the U.S., the European Union and in forums such as the UN and the G7 so that we can foster coordination so that sanctions can have the maximum impact in order to encourage that change of policy or change of behaviour we’re looking for.

As many of you are aware, the House of Commons Standing Committee on Foreign Affairs and International Development issued a report in April 2017 that underlined the imperative that Canada’s sanctions system function in a more coherent manner, and provided recommendations to improve the effectiveness of our implementation of these kinds of actions. The committee proposed that the government properly resource and reform the current structures responsible for its sanctions regimes. It also called for more comprehensive and publicly available written guidance regarding the interpretation of sanctions regulations in order to maximize compliance.

Furthermore, the committee’s report emphasized that:

. . . it is imperative that Canada’s sanctions system, and the legislative and other structures that underpin it, function in a coherent manner. Regulations must create a set of clear and understandable measures and they must be administered and enforced in a consistent fashion.

The government agreed with this assessment and is committed to working towards it, but my colleagues and I acknowledge that this is a work in progress. While differences in legislation, regime and rationale are inevitable in order to reflect the specific context that we’re responding to with a given sanctions regime, the sanctions regulations that allow us to impose measures on individuals and entities date back decades, in some cases, which can have an impact on their consistency both in development and in the application given the evolution of legislative drafting practice.

In this context, this committee’s serious and important review of existing sanctions regulations, specifically those that underpin the United Nations Act and the Special Economic Measures Act, or SEMA, has provided Global Affairs with really valuable information to help us in the department to try to improve Canada’s sanctions regulations.

I was mentioning to Senator Day that we really do value the insights that the committee has been offering. And while you may not always see progress as quickly as I’m sure that you would like, I do want you to know that we appreciate the guidance and insights that you’re providing to us.

The recent investments in Canada’s sanctions capacity and oversight, as were announced in Budget 2018, should have a measurable positive impact in helping us to continue to improve in this regard, including by devoting specific resources towards actions that would render existing and future regulations clear, concise and effective.

I’m aware that one key issue highlighted by this committee is the disclosure of information to the RCMP pursuant to three regulations that were made under SEMA. The requirement to disclose provides for the collection of information about the existence of, or a transaction involving, the property of a listed person. From the government’s perspective, knowledge of what property, if any, has been affected by the regulations is an important element of the administration and enforcement of Canada’s sanctions, and therefore we see the disclosure requirement as being particularly important for helping to us ensure effective sanctions enforcement and execution.

Mr. Chair, I hope I can beg your indulgence to quickly, but broadly, address a few other outstanding issues that have been highlighted in the committee’s past correspondence to Global Affairs.

First are certificates related to regulations made under the United Nations Act. These are an important element of the sanctions regime as they provide clarity for activities that aren’t necessarily meant to be prohibited by the sanctions, and they offer the possibility to exempt property from the application of sanctions if it’s deemed necessary for basic or extraordinary expenses. They also allow for prohibited acts to be exempt if the UN Security Council sanctions committee agrees.

In order for the minister to make an informed decision on the issuance of a certificate, the department has to consult with the relevant Security Council sanctions committee to seek a determination on their part about whether it approves of the activity or whether they may not have initially intended to prohibit the activity in the first place.

The challenge in this respect is that the procedures and time frames for using certain certificates are therefore dependent on a determination by the UN Security Council committee, each of which has its own steps and its own timelines for taking these decisions. For this reason, Canada has included general language in the regulations in order to try to reflect these differences.

Second, with respect to the use of association of states for the Special Economic Measures (Venezuela) Regulations, the department took careful note of the committee’s comments. But we continue to believe that SEMA does not require that the association of states be a given number of members or more than two members. I thought, in this respect, I would share that the association formed between Canada and the United States to respond to the situation in Venezuela is a coordination mechanism that engages on substantive issues and on an ongoing basis with an aim to discuss and recommend measures to respond to the situation in that country, which, as you know, is increasingly challenging.

The association has met formally four times since it was established in 2017, and there are regular informal discussions between its members and with other entities and states, including actors such as the European Union.

Finally, regarding the use of the terms “democratization” and “stabilization,” the department has streamlined the specific exemption and removed these two terms. Going forward, the streamlined formulation for the exemption will be used. That being said, and as someone who used to lead Canada’s Stabilization and Reconstruction Task Force and has been deployed to a number of challenging environments, I would say that democratization and stabilization are common concepts for those who are active in international conflicts and instability and who would most likely be involved in the activities that meet those exemptions.

For example, with respect to the UN Stabilization Mission in Haiti, the UN Security Council included a series of resolutions to address the need for the international community to support reconstruction and stability efforts in that country. This has included the types of activities that would be described as part of stabilization work. Nevertheless, we won’t be using the terminology going forward in the documents.

[Translation]

As I conclude, I would like to note that Global Affairs Canada continues to work towards improving regulations, and a number of the committee’s concerns with respect to the drafting of regulations made under the SEMA and the UNA may be addressed by those efforts.

For example, work is ongoing to harmonize terms, remove obsolete elements, corrects errors, and add clarity and consistency across regulations. We have made efforts to integrate the committee’s recommendations in recent regulations and will continue to do so as further regulatory actions are undertaken.

If I may, in conclusion, I will say that a shared objective between this committee and the department is to identify and implement horizontal changes across regulations to improve the effectiveness of and add clarity to the drafting.

Our department, along with the Department of Justice and other agencies, also continues to seek efficiencies that could help to implement the recommendations you have made, and to seek to pursue other improvements proposed by stakeholders, including those proposed by this committee.

With these brief considerations, I thank you again for having invited us. I look forward to your questions.

[English]

The Joint Chair (Mr. Albrecht): Thank you very much, Ms. Golberg. I want to thank you for your written statement and I noted a number of phrases and words that you used in your presentation. You value our input and you say that progress has not been efficient, or something to that effect. I just want to say, before we get into the six items on the agenda, that I believe you’ve addressed one of them conclusively, that being the democratization and stabilization question.

My concern, as chair of this committee, is that we and our counsel put a lot of effort into trying to finalize these issues. We met on June 7. We wrote a letter on June 18 and received a reply that we could probably expect some action by the end of the summer. Another letter followed requesting action and a letter by November 10.

Again, here we are today and we receive a letter that hasn’t even been translated into both official languages.

As a committee — I’m going to speak for the committee but let members also chime in — it’s concerning that we spend this many hours going over and over these files. Our counsel has diligently worked at them, as have our committee members. We, as joint chairs of this committee, decided to meet, whether or the house was sitting today, because we felt we needed to move on with this. It’s very disappointing, quite frankly, that we’re in this situation at this late hour. We have a 10- or 11-page letter that we haven’t even had a chance to scrutinize.

I just wanted to say that at the outset as a committee chair. I’ll let committee members now ask specific questions. There are a number of questioners on the list.

[Translation]

Senator Mégie: I’ve been looking at all of this, and listening to Ms. Golberg talk about the requirement to disclose information to the RCMP. Can ordinary citizens make such disclosures? Who is responsible for this? Are you not concerned about reprisals or reactions on the part of those who are worried about the disclosure of dubious activities?

Ms. Golberg: Thank you for your question. This is very important. The regulations are drafted in such a way that any Canadian man or woman who has information that meets the description in the sanctions may transmit that information to the RCMP.

[English]

They’re also written in such a way that — individuals have to hold the property. That’s kind of what we’re getting at. We don’t want them to necessarily be releasing it.

From a policy perspective, the goal is to identify the property that a listed person may have or a transaction involving that property in order to facilitate the effective enforcement of the sanctions.

Specifically with respect to your concern about whether an individual may face a reprisal or be incriminating themselves in some way, the regulations include specific protections for individuals or entities when they’re making good-faith disclosures about the property that might be in their possession or control. That should mitigate against them inadvertently facing any reprisals in that respect.

[Translation]

Mr. Dusseault: Thank you for being here with us today.

I agree with the chair’s comments. Among the documents we received were the minutes of a meeting held on October 6, 1994. This feels like we are in the movie Groundhog Day. On that October 6 day, Global Affairs Canada was criticized for having sent a letter at the last minute that had not been translated. The chair at that time was quite angry about it. I am somewhat surprised that we are dealing with the same situation with Global Affairs, after so many years.

I have a policy question regarding the disclosure requirement. I believe you said that the obligation was connected to the ownership of goods or to transactions related to property. According to the analysis we received, with respect to disclosure, the law would only authorize making regulations about transactions and operations, and not about possession as such.

Do we have the same interpretation, or do you believe that the law requires disclosure for the simple possession of property?

Ms. Golberg: First, to respond to the question about the letter, I can only apologize. I am very sorry the letter was not sent sooner. I sincerely hope that it will answer several of your questions. We are at your disposal to answer your questions once you have had the opportunity to read it.

With regard to the matter you raised, in my opinion, a clarification needs to be made, as to whether the property exists and whether there was a transaction in respect of that property. That is my understanding.

Those questions could be submitted to counsel for follow-up if you would like a more detailed reply on the regulations as such.

Mr. Dusseault: Indeed, one of the first criteria we look at is whether the regulations comply with the enabling legislation. In this case, we probably have a difference of opinion. We do not think the enabling legislation allows regulations to be made with respect to mere possession, because the legislator’s intent was to convey information on operations and transactions.

It would be useful if you could obtain more information from the lawyers regarding the interpretation of the law that in your opinion allows you to make regulations of that sort.

With respect to what might be called “facilitating a financial operation” in the regulations, there may also be some differences of opinion, with regard to the meaning of the expression “facilitating a financial transaction’’ and the term “knowingly.” Can you give the committee more details about your interpretation of the term “knowingly’ and the expression “facilitating a financial transaction,’’ which act would be in breach of the law and the regulations? Can you provide us with an explanation this morning?

Ms. Golberg: No, I am sorry, I cannot. That is a very technical question that would be better put to our colleagues from the Department of Justice.

Mr. Dusseault: Was that the purpose of the 10- or 11-page letter we received?

[English]

The Joint Chair (Mr. Albrecht): Mr. Dusseault is getting to the heart of the matter. It’s disappointing to hear that both of these issues were addressed in the letter and I haven’t seen the new letter. However, I would expect these issues would have been either explained as to why you’re taking your position, which is fine, or why not. Yet here we have two key issues: the issue of authorizing transactions or disclosing actual property. Those are key issues that were addressed in our letter. And there is the issue of “knowingly.” To have us come back again for another meeting after having seen this new letter is, to me, a waste of our time. It should have been addressed earlier.

But I think those go to the heart of Mr. Dusseault’s question. If you could quickly respond to those two issues, and then I want to go to Mr. Miller.

Ms. Golberg: Sir, as I noted, as we’ve indicated with respect to the disclosure of information, from the government’s perspective, that information enables us to ensure the effective enforcement of sanction regimes. As I also mentioned earlier, we believe that because the regulations also include explicit protections for individuals or entities making good-faith disclosures, this addresses the intention of individuals and should then protect them.

Fundamentally, from a policy perspective, at least, the information is needed in order to make sure we’re ensuring the sanctions can be enforced and also that we’re identifying and mitigating any circumvention that may happen, which was the intention when they were put into place in the first instance.

The Joint Chair (Mr. Albrecht): You haven’t answered the question Mr. Dusseault asked, which is whether the enabling legislation authorizes the disclosure of property — not the transactions, but the disclosing of property. That’s the key issue we’re trying to get to the heart of. Do you take a position on that? It’s your decision. We’re not saying you need to tell us that you agree with us, but we need to know where you stand. Does the enabling legislation authorize it or not?

Ms. Golberg: The department believes it’s valid under SEMA.

The Joint Chair (Mr. Albrecht): Okay. Thank you.

Mr. Miller: I want to echo both of your interjections, your opening comments and your last ones.

I wasn’t here on June 7, but my late father always had a saying: Say what you mean and mean what you say. Being sorry for not having this doesn’t cut it with me.

The last day of summer was September 21, and a week from tomorrow is the last day of fall, followed by the first day of winter. To compare it, by this letter not having been here, and being a businessman in my former life, wasting time isn’t just time; it’s money. For us to have to come back and deal with this is totally unacceptable.

I think the part that really bugs me, and why I don’t have a lot of time and respect for bureaucracy, is because it’s so disrespectful to this committee not to have this back in due time. I can go on about it, but I think you know my feelings.

What really emphasizes this is that I’ve known the chair for a long time, and there isn’t a more patient person out there. I can sense his frustration and totally agree with it and understand it. That’s all I’m going to say.

The Joint Chair (Mr. Albrecht): Thank you, Mr. Miller.

We have to get to the heart of these questions. Again, we’re at a disadvantage because we don’t have the letter. I’m confident that the letter will address many of our concerns, but we don’t have it before us, so it looks like we’re spinning our wheels until we have that letter. But I look to the committee. If the committee wants to take further action at this point, I’m certainly open to that.

I’ll ask general counsel for input and wisdom as to how we should proceed given the fact that we haven’t had time to study the letter. What is your recommendation? What’s the best way we can facilitate forward movement on this matter and finally bring it to a conclusion?

Ms. Kirkby: Do we have an update on where the letters are?

The Joint Chair (Mr. Albrecht): They will be here by —

François Michaud, Joint Clerk of the Committee: A quarter past 9:00.

Ms. Kirkby: That’s 13 minutes from now. We did get the English version of the letter yesterday by email and Mr. Abel did an analysis of it. It seemed to respond to some issues but not to others. One possible way to proceed is if Mr. Abel were to present his analysis of the letter.

The Joint Chair (Mr. Albrecht): I’m open to that. My concern is that I like to have things in front of me so I can follow along. If the committee is willing to spend 10 or 15 minutes to have Mr. Abel do an initial analysis and then we will see the letter, even then, we still haven’t had time to study the letter.

Committee, what’s the general feeling?

Mr. Shields: Mr. Chair, to not have the letter in both official languages is wrong, and I do not think we can proceed unless we have it in both official languages. It’s wrong.

Mr. Dusseault: Mr. Chair, I thought our witness today would have been able to explain the content of the letter at least. I don’t know why our counsel is needed to do that. I thought the witnesses are here for that exact reason.

The Joint Chair (Mr. Albrecht): To go over the content of the letter?

Mr. Dusseault: Well, I thought so.

The Joint Chair (Mr. Albrecht): We can do that, but again, it’s a 10- or 12-page letter, as I understand. I haven’t seen it. I’m not sure of the value of having witnesses basically tell us what the letter says until we have it in front of us.

Mr. Badawey: I suggest we suspend until we receive the letter, and then the witness as well as counsel can take us through it and hopefully address some of our concerns.

The Joint Chair (Mr. Albrecht): Simply suspend this meeting for 15 minutes.

Mr. Badawey: That’s right.

The Joint Chair (Mr. Albrecht): Seeing nodding of heads. I see shaking of heads.

The Joint Chair (Senator Day): What’s our option?

The Joint Chair (Mr. Albrecht): We have two options. We can suspend for 15 minutes and look at the letter, but the question is: Have we had time to digest the letter? Or we can adjourn and call another meeting. That’s really up to the wisdom of the committee. I’m not going to make that call.

How many feel we should suspend for 15 minutes and wait for the letter?

How many feel we should adjourn and have another meeting, unfortunately, in the new year?

Do we have the letter now?

Mr. Michaud: No. It’s not the letter. It’s the thing you wanted to have distributed. Do you want to do that now?

The Joint Chair (Mr. Albrecht): We can do that. That’s simply information.

Mr. Michaud: It’s information.

The Joint Chair (Mr. Albrecht): Does anyone else have any comments?

Mr. Badawey: Mr. Chair, this would be more productive with respect to our time. I’ll look to members of the committee for their advice. Do you just want to adjourn until we have had time to actually digest the letter and come back in the new year, fresh, having digested the letter? Obviously, if we need witnesses to come back to go through it and/or counsel to go through it, I can count on both joint chairs to make that decision.

Mr. Miller: To answer Mr. Badawey, I want time to digest the letter.

Mr. Ehsassi: So we can ensure it’s fruitful when we come back next year, could I ask for counsel’s analysis? Our witnesses have the benefit of hearing from this committee as to the gaps, and when they come back, they can be more responsive on why those gaps exist.

The Joint Chair (Mr. Albrecht): Just a summary?

Mr. Ehsassi: Yes. And adjourn after that. That would provide the witnesses —

Mr. Scarpaleggia: I concur with everything that has been said.

The Joint Chair (Mr. Albrecht): Let’s have our counsel give a quick summary of what they see as the major concerns with the responses in the letter. Then once we have the letter, we can digest it and have further analysis.

Shawn Abel, Counsel to the Committee: The minister’s letter breaks down into several points. It addresses more or less the same five points that are set out in the note prepared for members.

As to the sixth point in the note, when amendments will be made, the committee decided in June it wanted a new time frame from the department; that isn’t addressed in the letter.

The Joint Chair (Mr. Albrecht): Number 6 is not addressed in the letter?

Mr. Abel: It’s not.

The Joint Chair (Mr. Albrecht): Even though they were promised in June of 2018?

Mr. Abel: With regard to five points in the letter, the letter appears to indicate that there’s an agreement now to make amendments addressing points 3 to 5, which is a lack of procedure for issuing certain certificates, mandatory time frames for the issuance of certain certificates, and the meaning of “democratization” and “stabilization.” I think members might want to clarify and get a confirmation, because the language in the letter is maybe not as clear as I would like it.

The Joint Chair (Mr. Albrecht): Your understanding is that 3, 4 and 5 are basically addressed, but we’ll leave that up to the committee.

Mr. Abel: In terms of promised amendments, Ms. Golberg did discuss the use of terms “democratization” and “stabilization,” and the letter does state that they won’t be used in the future. However, it’s unclear whether they will be removed from the existing regulations. I’m not sure if you would be able to clarify that today for us.

That leaves the first two points, which is the disclosure requirement to the RCMP and the possible vagueness and over-breadth of this long concatenation of prohibitions. I would suggest the letter is perhaps a little insufficient in that regard.

With regard to the disclosure requirement, the department has in the past argued that it can be authorized by necessary implication, which is to say that the words aren’t there in the act, but one can read between the lines to authorize these things.

The committee has already rejected that argument as considered. For reasons set out in the chairs’ letter of June 18, that is not satisfactory. The minister’s letter gives more practical reasons and more reasons about how the sanctions regime functions to flesh out that argument, but I would say there’s no new legal argument.

With regard to the question of over-breadth and vagueness, again, the minister’s letter provides more information on how the sanctions regime is supposed to function, but I did note a few passages that were troubling to me.

The minister’s letter states that if a person reveals an inadvertent breach of a prohibition that falls short of the “knowingly” qualifier, that enforcing agencies, in this case not Global Affairs Canada but other governmental departments, would be unlikely to pursue the matter via prosecution. “Unlikely” indicates that it would be possible if officials were so inclined nonetheless to pursue a prosecution and a conviction.

The letter also states that the high mental requirement of the “knowingly” qualifier minimizes the risk of investigation, prosecution and conviction for an unintentional breach of the regulations. I think the choice of words must be noted — minimizes does not eliminate the risk of someone being prosecuted or convicted for an unintentional breach.

In a later portion of the letter, when discussing an example using a brokerage service, the letter notes that persons violating the sanctions may cause Canadian suppliers, financial institutions and freight forwarders to unwittingly facilitate prohibited transactions. The letter is unclear as to whether that unwitting facilitation would amount to a contravention of the regulations.

I think those statements are problematic. They appear to indicate that persons who unwittingly or inadvertently aid a prohibited act do commit an offence and could be prosecuted or convicted. I would suspect perhaps that’s to be left to prosecutorial discretion, and I don’t think the committee would find that acceptable.

Those are the comments I have about the letter.

The Joint Chair (Mr. Albrecht): I have a quick question related to your analysis of item 1 in terms of the Special Economic Measures Act not authorizing specific action, but possibly one could read between the lines. Would it be difficult for the department to seek an amendment to the act itself to clarify that?

Mr. Abel: In 2016, Parliament enacted a new statute, which was referenced this morning, commonly referred to as the Magnitsky Law. It allows for the imposition of sanctions on individuals in a slightly different way than the Special Economic Measures Act, but more or less it’s the same idea. That act sets out the disclosure requirements directly in the act. In that case there’s no question of authority.

Given that Parliament has taken that approach, which recognizes the modern way of effecting sanctions on the international stage, I don’t have a lot of doubt that Parliament would be open to amending the Special Economic Measures Act to clarify these powers or to put things directly in the act at this point. It would be up to Parliament as to the approach it would want to take. But that is the obvious solution. It’s what the joint chairs’ letter of June 18 has already suggested.

The Joint Chair (Mr. Albrecht): Thank you for that initial analysis.

I wonder if our witnesses want to respond to that brief synopsis of some of the concerns. Having had our counsel read the letter, do you wish to respond or do you want to hold comment until a further committee meeting?

Ms. Golberg: I’ll address the specific question put to me with respect to “stabilization” and “democratization.” I won’t comment on the other elements. It’s the counsel’s opinion, so I would also like to benefit from being able to have that in front of me and in writing. I wouldn’t necessarily concur with the way that everything was characterized, but that’s why we’re here, and open to have that discussion with you.

The question was whether or not “stabilization” and “democratization” will be removed from previous regulations. As I mentioned in my opening statement, we’re in the process of looking horizontally across all the various regulations with the idea of trying to clean things up. That’s part of the plan and the strategy.

The Joint Chair (Mr. Albrecht): A few questions of either the witnesses or counsel.

Mr. Badawey: In 2018, the budget identified new funding for a division within your department to solely deal with sanctions. How effective is that division within your department, and is it helping to catch up on a lot of the regulations where there’s a backlog?

Ms. Golberg: Thank you for asking. As I mentioned, the report that had come from the standing committee identified a number of ways in which the government needed to enhance Canada’s overall approach to sanctions design, development, execution and follow-up. Budget 2018 identified approximately $22 million that would be devoted towards increasing the capacity that exists within Global Affairs and also the Canada Border Services Agency so we would be better positioned to address the range of things. In part, as I was trying to outline in my opening statement, the volume has significantly increased in terms of the use of sanctions as a tool. The way it’s being done has meant that we need to adapt to contemporary circumstances.

Certainly, our hope and expectation is that as the resources come on board they will enable us to be much better positioned to address a number of issues the committee has raised specifically on regulations. More broadly, there’s a whole bunch of other things I would like to be addressing as well.

The team has stood itself up as of September, so we have a skeleton team in place. Subject to a number of other things, that team will grow over time.

The things we’re hoping to do, for instance, would be to be more responsive and agile to these kinds of reflections that emerge, and provide better guidance to Canadians on sanctions, regulations and implementation. One of the things we haven’t been in a position to do is to be more directly engaging, for instance, with the financial sector, with the exporting community or Canadian CSOs that may find themselves running afoul.

The additional resources will help us to be more proactive, not just responsive to questions that come to us, but to enable us to reach out to them. We’ve already started doing that over the course of the fall.

That team will also be able to do research and analysis. One of the issues that comes up regularly is the impact of sanctions and whether they are achieving their desired end state. That’s something we’d like to devote more attention to in terms of being able to pull up the data and see whether or not it is achieving its ends.

There are blind spots. The international community doesn’t necessarily have a good sense around gender differentiated implications of sanctions. How are sanctions in a given country affecting women and men, girls and boys differently? Intuitively we think that’s the case, but there has actually not been any research done on the subject. That’s something this team could do in addition to reviewing existing regimes and working to improve the processes so they achieve the desired impact. That’s certainly something these new resources should enable us to do.

I’ve already mentioned a couple of actions we’ve taken to date, one of which is outreach. We also now have a hotline in place as of September, which is 24-7. People can contact us if they have a concern or consideration. That’s in addition to the existing website and the email address. We’ve expanded the website’s “frequently asked questions.” If they can’t, for whatever reason, reach one of us, they can access that information. We also consolidated a Canadian autonomous sanctions list. It’s one-stop shopping so people don’t have to surf through different sites to try to figure out who is listed.

That’s the beginning and we hope to be able to take that forward.

The last thing, as I mentioned, is we are in the process of undertaking a horizontal review of the various regulations in order to address many of the issues the committee has raised before.

Mr. Badawey: The obvious question, based on those comments and with respect to the comments made by legal counsel and the concerns by the committee, is that “enable,” as you referred to it, would help you streamline and/or get to the end result of what we’re looking for?

Ms. Golberg: Correct.

Mr. Badawey: Thank you.

[Translation]

Mr. Dusseault: Since we have the letter in hand, we can see that the minister suggests, on the first point concerning the requirement that information be disclosed to the RCMP, that an assistant deputy minister appear before the committee to explain the perspective of Global Affairs Canada on this issue. I am pleased that you are here to explain your interpretation of point 1.

Earlier we heard explanations from our legal counsel, who provided a quick analysis. He mentioned that according to your department’s interpretation, we had to read between the lines of the law. Would you agree with that characterization? In your opinion, do we need to read between the lines of the law to justify the regulations we are examining?

Ms. Golberg: I’m not sure I understood the question.

Mr. Dusseault: Regarding point 1, which concerns the disclosure requirement, I’d like to go back to the point raised earlier about the difference between disclosing the ownership of property and disclosing operations related to a property. In most of its paragraphs the law talks about operations, and in section 4, it talks mainly about transfer operations. The word used is “operations,’’ and not “ownership.’’ The issue is whether the regulations were permitted under the enabling legislation.

Do you believe we must, as suggested by our counsel, read between the lines of the law to justify making such regulations, which refer to property ownership and not simply to operations?

Ms. Golberg: I believe counsel has already set out the department’s position. We believe we have the right to do so under the Special Economic Measures Act.

Mr. Dusseault: By reading between the lines of the law?

Ms. Golberg: That is your interpretation. In our opinion, this is included under SEMA.

[English]

The Joint Chair (Mr. Albrecht): Could you point out the exact wording, where it is actually authorized by SEMA? This is the debate we’re having. Is it or isn’t it? I guess that’s the question.

Ms. Golberg: The department’s interpretation is that it is.

The Joint Chair (Mr. Albrecht): It comes back to interpretation.

Mr. Shields: I appreciate the witnesses being here today. I understand what you have explained. You’re busy with your team and you’re doing a lot of things and we’re this irritant on the side. We would work with you and help get it done, but when you see the litany, we’re the irritant and it’s not getting there.

You mentioned the two terms “democratization” and “stabilization.” In your first answer, you referenced cleaning up the language and updating it. When you went through this, you believed it was being eliminated. But when I heard your second answer, I think that may have been more your opinion because you weren’t declarative in saying that they will be gone. I think you’re working through updating and clarifying, but you weren’t declarative the second time. You’re working through a process? Not everybody is in the same place as you are as you look at this? Just some clarification, please.

Ms. Golberg: I will begin by saying this committee should know that in no way do I view you as an irritant. I see you as a partner. As I said at the outset, the analysis that you provide and the engagement we’ve had is very helpful to my team. As I’ve mentioned a few times already, we have been using some of your suggestions as we’ve been developing new regulations and have been cleaning things up, which goes directly to the question you’ve asked me.

It’s actually both. For new regulations going forward, that language will not be used. We addressed that in the 2017 SEMA regulations on Venezuela. New language was utilized, and that’s the language we’ll use going forward.

In terms of addressing where it would have been used previously and cleaning it up, that’s part of our bigger horizontal review of things we need to address.

Mr. Shields: In fact, it’s still there in some places?

Ms. Golberg: From previous regulations, and as we’re cleaning those up, we’ll be addressing that particular issue. Any new sanctions going forward will not have that terminology.

Mr. Shields: So we’re in a stage where it is still in effect and those definitions still are part of your working world.

Ms. Golberg: For those sanctions that are already in place, that’s correct. But as I already mentioned, those individuals working for the UN, for the International Red Cross Movement and international non-governmental organizations that are working in places where democratization or stabilization issues are at play, they’re very familiar with that terminology and those issues. It’s also language used in Security Council resolutions themselves.

We feel that in addressing it, we won’t be using that terminology going forward. We’ve simplified the language. Even for those places where it’s still in place, the people impacted by it know what that terminology means. In addition, they can always contact us, notably, now that we have the hotline, the website and the team, so there’s the ability to regularly interface with us in the department.

Mr. Shields: It leaves us in a grey area, though, when we’re operating in two different definitions, one that doesn’t exist and one that does. It leaves us in a no-man’s land at times.

Ms. Golberg: We feel this issue has been addressed effectively through the new Venezuela sanctions. As I mentioned, we’ll be cleaning things up as we update regulations, but those terms are terms of art.

Mr. Shields: Thank you.

Mr. Scarpaleggia: I think this is helpful, but are we adjourning?

The Joint Chair (Mr. Albrecht): Unless the committee wishes to continue the discussion, I don’t think we can take any definitive action at this point. We have not had time to digest the letter.

Mr. Scarpaleggia: I agree. That’s why I’m wondering.

The Joint Chair (Mr. Albrecht): Today, we’re seeking answers of clarification.

Mr. Scarpaleggia: Okay, that’s fine.

The Joint Chair (Mr. Albrecht): We’re not going to make a definitive —

Mr. Scarpaleggia: But the witnesses will come back?

The Joint Chair (Mr. Albrecht): I’m not saying that. I’m saying we’ll look at the letter. If we’re satisfied with the letter, we can close the file; if not, we may have the witnesses come back. We can’t make a decision until we’ve had time. At least that’s my position.

Mr. Badawey: Before we adjourn, I appreciate the comments by Ms. Golberg with respect to working together. I think if we do more of that with all departments, it would be a lot more productive. We often see letters going back and forth and calling witnesses in and decisions are being made, but quite frankly, from my experience on this committee, many times the decisions have loose ends attached to them. So I appreciate the comment as well as the intent to work with the committee to get deeper into some of the things we need to do.

I do recognize that you folks are living this every day and that we’re not. However, at the same time, we have a job to do and we appreciate the fact that you’re willing to work with us to ensure the job gets completed.

I do support adjourning, but moving forward, Mr. Abel made some comments regarding a few areas that — correct me if I’m interpreting this wrong — were not satisfactory and/or a bit loose with respect to the response. If the department can possibly come back with responses to those concerns instead of us firing off another letter or bringing you folks back here again, giving attention to those comments would help streamline this process to get to an end. As well, the committee can look at this and pass along any other comments we might have so that we can have a response to those as well.

The Joint Chair (Mr. Albrecht): Thank you, Mr. Badawey.

I would go one step further and suggest that, in the interest of time, it would be good if counsel and yourself or your representatives could actually meet face-to-face, discuss the disagreement here and see if we can’t get a better understanding of why we have differing opinions on whether SEMA actually authorizes property ownership or simply the property transactions. I think those are important decisions.

Mr. Miller: I’m certainly in support of that, if Mr. Abel and his team can work with Ms. Golberg and her team to get this resolved and report back to the committee by email in the meantime. After we’ve digested the letter and heard Mr. Abel’s comments, we can decide whether we need ask the witnesses to come back or we’re ready to go ahead. We can do that by email.

In the event we do need another meeting, Mr. Chair, would it be the first meeting back in the new year? What’s the thought there?

The Joint Chair (Mr. Albrecht): With respect to counsel’s work, I think there are already some agenda items identified for the first meeting back, but we can possibly make changes. I’m looking to counsel.

Ms. Kirkby: I don’t know that we have anything specific set up for the first meeting. I would point out that we already have at least two sets of witnesses for the next session.

The Joint Chair (Mr. Albrecht): We have witnesses booked for the next session already. I do think it’s important that we get clarification on these issues as much as we can in the interim. We can all study this letter and have analysis from our counsel in writing.

Mr. Badawey: I have one short comment. I think it’s a great idea. I think we should be doing more of that, whereby instead of having things go back and forth, we allow counsel to have those discussions with departments, and on other issues. That way we can streamline the process so that when an issue comes back to us, we know those discussions have happened. Many times, the committee is dealing with things we can’t get resolved. We would be able to take action beyond that, with the mechanisms we have available to us.

The Joint Chair (Mr. Albrecht): Ms. Golberg has a comment, and then I know our joint chair will want to wish us all a Merry Christmas.

Ms. Golberg: Thank you very much. I certainly appreciate the kind invitation to sit down with counsel. We can certainly sit down and listen to what counsel has to say. We wouldn’t necessarily be negotiating with counsel, though; we would provide our views and advice to committee members.

It would be helpful to us to receive the reflections in writing so we can have a look at them. Then we can see what more there might be to say. On some issues, we may ultimately agree to disagree, but we can see where that might lead us.

To be clear on what kind of meeting that would be, it wouldn’t necessarily be the department negotiating with the counsel of the committee.

The Joint Chair (Mr. Albrecht): We look to counsel for suggestions.

Ms. Kirkby: Part of the reason this meeting has proceeded as it has is because the letter was not provided in a timely manner, and so we weren’t able to analyze it. There was also the translation issue, et cetera. The committee had asked for it over the summer. It wasn’t provided. The committee had established November 10 as the firm deadline, and it still wasn’t provided. It arrived yesterday, in English.

To ensure that things proceed at a sufficiently rapid pace, we could have them back on one of the dates in the new session, unless it’s resolved as satisfied, just to make sure we don’t have the same situation where it’s June 13 and finally we have an answer.

Is there a date the committee would like to suggest they return?

The Joint Chair (Mr. Albrecht): Is it realistic for us to expect this to be 99 per cent resolved, at least in terms of recommendations, by February 21? If it is, I’m happy to schedule it for February 21.

Ms. Kirkby: It’s doubtful we would be able to.

The Joint Chair (Mr. Albrecht): Give us a suggestion.

Ms. Kirkby: May 9.

The Joint Chair (Mr. Albrecht): I think there are groans that May 9 is too late.

The Joint Chair (Senator Day): We’ll lose all the value of having studied this today.

Ms. Kirkby: Right. Analysis takes some amount of time. There would need to be analysis on our side and their side, and they would presumably need to prepare materials for signature. I want to recognize that that takes some time.

The dates we have are February 21 and 28, March 21, April 11, May 9 and May 16.

The Joint Chair (Mr. Albrecht): March 21. I can almost feel committee members saying that. Our goal is to shoot for March 21.

Witnesses, I think you’ve sensed a level of frustration around this table. It’s not directed at you, personally. It’s directed at the bureaucratic inertia, as we see it. It’s important that these messages get back not just to your department but to other departments we’re struggling with as well. It’s a common experience.

I believe we take our job seriously, and I know our counsel does. We want to move these forward as expeditiously as possible.

With that, I will say Merry Christmas.

The Joint Chair (Senator Day): Colleagues, we want to thank our counsel and staff for the hard work they do throughout the year. You thought we would probably have a nice, relaxing time, but it’s pretty clear there is lots still to be done. On behalf of all the members of this committee, thank you very much.

On behalf of Mr. Albrecht and me, to you and your families, Merry Christmas and happy new year.

(The committee adjourned.)