Library of Parliament Research Publications
42nd Parliament, 1st Session
Legislative Summary of 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 *
Karine Azoulay, Economics, Resources and International Affairs Division
Robin MacKay, Legal and Social Affairs Division
10 July 2017
Publication Number 42-1-S226-E PDF 371 kB, 19 pages
Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
- 1 Background
- 1.1 The Sergei Magnitsky Case
- 1.2 Response to the Sergei Magnitsky Case
- 1.3 Current Canadian Sanctions Legislation
- 2 Description and Analysis
- 2.1 Sergei Magnitsky Law
- 2.2 Amendments to the Special Economic Measures Act (Clause 16)
- 2.3 Amendment to the Immigration and Refugee Protection Act (Clause 17)
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 (short title: Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law)),1 was introduced in the Senate by Senator Raynell Andreychuk on 4 May 2016. It was passed by the Senate, unamended, on 11 April 2017 and received first reading in the House of Commons on 13 April 2017. Following second reading in the House of Commons on 13 June 2017, the bill was referred to the House of Commons Standing Committee on Foreign Affairs and International Development.
Bill S-226 creates a “Sergei Magnitsky Law” and makes related amendments to the Special Economic Measures Act (SEMA)2 and the Immigration and Refugee Protection Act (IRPA).3 The purpose of the bill is to provide for measures that can be taken against foreign nationals who have committed gross violations of internationally recognized human rights. The bill takes its name from Russian lawyer and whistle-blower Sergei Magnitsky, whose 2009 death in custody prompted widespread outrage internationally. Though the bill’s preamble focuses on the case of Sergei Magnitsky, it includes references to the murders of Alexander Litvinenko and Boris Nemtsov, as well as the illegal imprisonment of Nadiya Savchenko, as motivating factors.4 The preamble alleges that Russian officials are responsible for these acts, but also states that “all violators of internationally recognized human rights should be treated and sanctioned equally throughout the world.”
The bill’s amendments to the SEMA add gross violations of internationally recognized human rights and “significant acts of corruption” to the circumstances in which the Governor in Council can impose sanctions, which are currently limited to decisions of international organizations in which Canada is a member, such as the Organization of American States, or crises threatening international peace and security.5 The preamble states that this new justification for the imposition of sanctions against foreign states and nationals “furthers Canada’s support for human rights and better enables it to protect activists who fight for human rights.” Moreover, both Houses of Parliament have unanimously adopted resolutions calling on the Government of Canada 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.
Efforts within and outside Canada to create sanctions regimes that specifically target human rights violators and corrupt public officials have been motivated in large part by reaction to the case of Russian lawyer Sergei Magnitsky and the advocacy on his behalf of his former client, Mr. William Browder, Founder and CEO of Hermitage Capital Management Ltd. Prior to his death, Sergei Magnitsky represented the firm, a British-based investment fund with significant Russian assets, in the context of a corruption investigation.
In 2007, Hermitage Capital Management’s Moscow offices were raided, as were the offices of the company’s law firm, Firestone Duncan, in what has been described as an officially sanctioned theft and tax fraud.6 Hermitage Capital hired Firestone Duncan, the law firm for which Sergei Magnitsky worked as a tax lawyer, to investigate the theft. Through its counsel, Hermitage Capital filed criminal complaints with Russian law enforcement agencies.
In his November 2010 appearance before the House of Commons Subcommittee on International Human Rights, Mr. Browder explained that
instead of doing an investigation into the police officers involved in the crime, the police opened an investigation – criminal cases – against all seven of our lawyers from four different law firms.7
Six of the seven lawyers charged left Russia for the United Kingdom. According to Mr. Browder, Mr. Magnitsky refused to leave because he believed that he had committed no crime and because he wished to see the perpetrators of the tax fraud brought to justice.
In 2008, Mr. Magnitsky testified “that he had uncovered a huge scam by top police officials to embezzle $230 million in taxes from money that Hermitage Fund companies had paid in 2006.”8 Following his testimony, three subordinates of one of the individuals who Mr. Magnitsky alleged to have been involved in the fraud against Hermitage Capital and the Russian Treasury were appointed to conduct a criminal investigation into charges against Mr. Magnitsky himself. Mr. Magnitsky was subsequently arrested on charges involving millions in dollars in tax fraud and held without bail.9
According to Mr. Browder, Russian police officials arrested Mr. Magnitsky in October 2008, one month after his testimony, and “then tried to get him to withdraw his testimony against the police officers. In order to do that, they tortured him.”10 As a result of poor prison conditions and his treatment in prison, Mr. Magnitsky became ill and prison doctors prescribed surgery. Shortly before his operation was scheduled to occur, Mr. Magnitsky was transferred to a maximum security prison with no medical facilities. Mr. Magnitsky’s condition worsened and he was eventually transferred to another prison that had a hospital; however, on arrival, he was denied treatment, placed in a straitjacket in an isolation cell, and left for over an hour until he died.11
In July 2011, the Investigative Committee of the Russian Federation12 found that Mr. Magnitsky had received inadequate medical care in prison. However, the Committee also found that the lead investigator in Mr. Magnitsky’s case had not committed any wrongdoing by ordering Mr. Magnitsky’s transfer to a prison with minimal medical facilities or by refusing to permit medically prescribed follow-up treatment, despite repeated requests.13
On the other hand, then President Dmitry Medvedev (now Prime Minister) ordered the Presidential Council for Civil Society and Human Rights to investigate the case. The Council’s July 2011 findings reportedly describe not only “the appalling conditions Mr. Magnitsky was subjected to but also names several prison officials and medical authorities who allegedly colluded in the abuse.”14 Media reports indicate that the Council also concluded that Mr. Magnitsky’s initial arrest was unlawful.15
Further, according to the Council, at the time of his death in custody, Mr. Magnitsky “had suffered from pancreatitis and gallstones, and had been found with broken fingers and bruising to his body. … There were, it said, grounds to suspect that he had died as the result of a beating.”16
In February 2012, the criminal investigation of Sergei Magnitsky was reopened, and on 29 November 2012, a Russian prosecutor took additional steps to initiate posthumous criminal proceedings against Magnitsky and proceedings in absentia against William Browder.17 Sergei Magnitsky was posthumously convicted of tax fraud (“qualified swindling”) by a Russian court on 11 July 2013.
The death of Sergei Magnitsky provoked an international outcry, including in Canada, where Parliament has responded with a number of measures. These include private members’ bills, motions, and studies by committees of both the Senate and the House of Commons.
In October 2011, the Honourable Irwin Cotler, MP, introduced Bill C-339 in the House of Commons.18 This bill was subsequently reintroduced in the next session of Parliament as Bill C-689,19 but neither bill was adopted. The preamble to Bill C-339 denounced Russia’s “disregard for the rule of law” and “corruption-related crimes” and listed the international obligations that Russia had failed to meet, namely, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and the United Nations Convention Against Corruption. While that bill dealt exclusively with Russia, Bill S-226 deals with human rights violations in all countries.
On 25 March 2015, Mr. Cotler presented a motion in the House of Commons calling for the substance of Bill C-339 to be implemented. The motion was adopted with unanimous consent.20 The same motion was introduced by Senator Andreychuk on the same day in the Senate Chamber and it was adopted there on 5 May 2015.
The motion called upon the Government of Canada to:
- (a) Condemn any foreign nationals who were responsible for the detention, torture or death of Sergei Magnitsky, or who have been involved in covering up the crimes he exposed;
- (b) Explore and encourage sanctions against any foreign nationals who were responsible for the detention, torture or death of Sergei Magnitsky or who have been involved in covering up the crimes he exposed; and
- (c) 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.21
The House of Commons Subcommittee on International Human Rights studied the case of Sergei Magnitsky during the 3rd Session of the 40th Parliament and during the 1st Session of the 41st Parliament.22 The Subcommittee received an update during the 2nd Session of the 41st Parliament.23
In addition to introducing Bill S-226, Parliament took a number of actions related to the Magnitsky case in the 1st Session of the 42nd Parliament.
On 24 March 2016, the Standing Senate Committee on Foreign Affairs and International Trade tabled a report entitled Taking Action Against Human Rights Violators in Russia.24 The report is based on testimony the Committee heard on 10 March 2016 from three advocates for democracy in Russia:
- William Browder, now Head of the International Justice Campaign for Sergei Magnitsky and author of the book Red Notice;25
- Zhanna Nemtsova, daughter of the late Boris Nemtsov; and
- Vladimir Kara-Murza, Coordinator, Open Russia and Deputy Leader of the People’s Freedom Party.26
The Senate Committee’s report highlighted the failure of Russian authorities to investigate and to bring to justice those individuals implicated in the deaths of Sergei Magnitsky and Boris Nemtsov, as well as the intimidation and suspected poisoning of Mr. Kara-Murza. The report confirmed the ongoing validity and increased urgency of the motion adopted by the Senate in May 2015 on the issue of human rights and rule of law concerns in Russia. It reiterated its call for the Government of Canada to take action against human rights violators in Russia, including the imposition of sanctions. The three individuals also appeared before the House of Commons Standing Committee on Foreign Affairs and International Development on 10 March 2016.27
On 5 May 2016, Member of Parliament James Bezan introduced a bill similar to Bill S-226 in the House of Commons.28 This bill – C-267 – has not progressed beyond the first reading stage.
In April 2017, the House of Commons Standing Committee on Foreign Affairs and International Development presented the results of its legislative review of the SEMA and Freezing Assets of Corrupt Foreign Officials Act (FACFOA)29 to Parliament. Entitled A Coherent and Effective Approach to Canada’s Sanctions Regimes: Sergei Magnitsky and Beyond,30 the Committee’s report called for the expansion of the government’s authority to impose sanctions under the SEMA to include gross violations of international human rights.
In December 2012, President Obama signed into law the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (U.S. Magnitsky Act).31 The U.S. Magnitsky Act imposes visa bans or revocations32 on persons on a designated list and requires the President to exercise his powers under the U.S. International Emergency Economic Powers Act to freeze and prohibit all transactions in all property of the said designated persons.33
The list of persons affected by the U.S. Magnitsky Act includes persons who
- are responsible for, or who benefitted financially from, the detention, abuse, or death of Sergei Magnitsky;
- participated in related liability concealment efforts; or
- were involved in the criminal conspiracy uncovered by Sergei Magnitsky,34 either in their own capacity or as an agent.35
Designations, made by the President, are to be based on credible information,36 including from Congress, non-governmental organizations and other countries.37 The U.S. Magnitsky Act applies the same measures to anyone who committed human rights violations, including extrajudicial killings or torture, against human rights advocates or whistle-blowers in Russia.38 There are currently 44 individuals sanctioned pursuant to this Act.39
More recently in the United States, the Global Magnitsky Human Rights Accountability Act was passed by Congress in December 2016.40 This legislation enables economic sanctions and travel bans to be imposed on individuals anywhere in the world who are deemed to have engaged in acts that violate certain international human rights standards or that constitute significant corruption. In making its decisions, the U.S. administration is required to consider “credible information obtained by other countries and nongovernmental organizations that monitor violations of human rights,” as well as information provided by certain committees of Congress.
In October 2012, recognizing the imminent passage of the U.S. Magnitsky Act, the European Parliament recommended to the Council of the European Union (Council) that measures similar to those contained in the U.S. legislation be implemented. The Parliament urged the Council to establish a common European Union (EU) list of officials responsible for the death of Sergei Magnitsky, and the subsequent judicial cover-up, as well as the ongoing harassment of Magnitsky’s family. It was further recommended that an EU-wide visa ban on listed officials be implemented. The Parliament also recommended a freeze of the financial assets held within the EU by the Russian officials and their immediate families.41 On 2 April 2014, the European Parliament reiterated its recommendation and specifically mandated that the list include 32 names, some identified by the U.S. Magnitsky Act,42 and others identified as the result of an “independent investigation.”43 The Council has not yet adopted legislation pursuant to the European Parliament’s resolution.
On 8 December 2016, Estonia passed a law to forbid entry to people if “there is information or good reason to believe” that they took part in activities that resulted in the “death or serious damage to health of a person” or their “unfounded conviction for criminal offence on political motives.” Estonian President Kersti Kaljulaid said that this amendment to Estonia’s 1998 Obligation to Leave and Prohibition on Entry Act
was elaborated to consider the recommendations of the European Parliament and the OSCE [Organization for Security and Co-operation in Europe] Parliamentary Assembly regarding the refusal of a visa to those persons who are guilty of violating the human rights of Sergei Magnitsky and causing his death, which could be imposed in future similar situations.44
On 27 April 2017, Royal Assent was given to the Criminal Finances Act 201745 in the United Kingdom. Part 1, Chapter 3 of this Act (“Civil Recovery”) adds to the definition of “unlawful conduct” contained in Part 5 (“Civil recovery of the proceeds etc. of unlawful conduct”) of the Proceeds of Crime Act 2002.46 Unlawful conduct now includes conduct that occurs in a country or territory outside the United Kingdom and constitutes, or is connected with, the commission of a gross human rights abuse or violation. Conduct constitutes the commission of a gross human rights abuse or violation if a number of conditions are met. These conditions include elements similar to those found in Bill S-226. The addition of these definitions is important as they expand the scope of the Proceeds of Crime Act 2002, which enabled “the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct” (Part 5, Chapter 1). The Proceeds of Crime Act 2002 now allows the government to apply to the High Court to freeze United Kingdom assets belonging to those involved in gross human rights abuses in any country. This includes those who have targeted whistle-blowers or human rights activists for retaliatory action after they have uncovered corruption.
In Canada, the Special Economic Measures Act came into force in 1992 to permit Canada to impose sanctions, even where there is no United Nations Security Council resolution. The Act allows Canada to impose economic sanctions in either of the following situations:
- where an international organization to which Canada belongs calls on its members to take economic measures against a foreign state; or
- where a grave breach of international peace and security has occurred and is likely to result in a serious international crisis.
The SEMA thus authorizes the Governor in Council to make orders or regulations imposing sanctions against a foreign state. These may include restricting or prohibiting persons in Canada or Canadians outside Canada from exporting, selling or shipping goods to that foreign state, and from importing or acquiring goods from that state. An order may also cause to be seized, frozen or sequestrated any property situated in Canada that is held by or on behalf of a foreign state, any person in that foreign state, or a national of that foreign state who does not ordinarily reside in Canada.
Section 7 of the SEMA requires all orders and regulations to be tabled in both Houses of Parliament within five sitting days after they are made, and allows for debate on the measures taken. A motion to amend or revoke an order or regulation laid before Parliament can be introduced in either House, but must be adopted by both Houses to enter into force.
Under section 8 of the SEMA, any person contravening an order or regulation under the Act is guilty of an offence and, upon indictment, liable to imprisonment for up to five years. Any prosecution under the Act may only be commenced with the consent of the Attorney General of Canada.
When sanctions are imposed under the Act, the names of listed persons are published in a schedule to the relevant regulation. In general, all prohibitions described in a regulation apply to all individuals or entities named in its schedule. Where a regulation includes more than one schedule, the prohibitions may apply selectively. Names may be added to or removed from a list by an amending regulation.47
Under the Freezing Assets of Corrupt Foreign Officials Act, which came into force in 2011, Canada may acquiesce to a demand by a state that it make orders directing that the property in Canada of a politically exposed foreign person (PEFP)48 be seized, frozen or sequestered when there is internal political turmoil in that foreign state. The foreign state must assert that the PEFP has misappropriated property or acquired property inappropriately by virtue of his or her office, and Canada must be satisfied that the order is in the interest of international relations. The Act also allows the Government of Canada to make orders restricting the dealings with designated PEFPs. The orders expire after five years but can be extended. Unlike sanctions, which are generally punitive, the FACFOA restrictions are a form of assistance that Canada provides to the requesting state. The restrictions under the FACFOA are in addition to those regulating the provision of financial and other services to PEFPs under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.49 Currently, regulations have been enacted under the FACFOA in respect of individuals associated with the former regimes in Ukraine50 and Tunisia.51
Under section 7 of the FACFOA, a copy of each order or regulation made under the Act must be tabled in each House of Parliament within 15 days after it is made.
Section 8 of the FACFOA imposes a screening obligation on regulated financial institutions, including banks, credit unions, trust and loan companies, insurance companies, securities dealers and certain money services businesses. These institutions are required to determine, on a continuing basis, whether they are in possession or control of property owned or controlled by, or on behalf of, any person designated under the Act. For federally regulated financial institutions, the Office of the Superintendent of Financial Institutions has published an instruction guide52 that sets out expectations with respect to this screening obligation. At present, there is no consolidated list of all names designated under Canada’s sanctions statutes, which can make compliance with the screening obligation difficult.
Under section 9 of the FACFOA, there is an obligation to report to the Royal Canadian Mounted Police any property in a person’s possession or control that is the property of a PEFP subject to a FACFOA order, along with information about transactions in respect of this property. Under section 10 of the FACFOA, it is a criminal offence to wilfully contravene an order made under the FACFOA or to contravene the obligation to screen transactions and report suspicious property. Upon indictment, the maximum sentence for these offences is five years’ imprisonment. Prosecutions may only be commenced with the approval of the Attorney General of Canada.
Clause 4 of Bill S-226 enables the Governor in Council to issue a number of orders relating to the property of a designated foreign national. Such orders may be made if the foreign national is responsible for, or complicit in, extrajudicial killings, torture or other gross violations of internationally recognized human rights against whistle-blowers or human rights defenders.
The Governor in Council can also issue orders relating to the property of a foreign national who is a government official of a foreign state and who is responsible for, or complicit in, ordering, controlling or otherwise directing “acts of significant corruption.” Examples of such corruption include the expropriation of private or public assets for personal gain, corruption related to government contracts or the extraction of natural resources.
The Governor in Council can restrict or prohibit dealing in any property of a designated foreign national by any person or entity in Canada, or by any Canadian citizen or corporation outside Canada. This includes prohibiting individuals and entities in Canada, or any Canadian citizen or corporation outside Canada, from entering into or facilitating financial transactions related to property held by the foreign national. The Governor in Council can also restrict or prohibit individuals and entities in Canada, or a Canadian citizen or corporation outside Canada, from providing financial or related services to a designated foreign national. These restrictions mirror those found in regulations and orders promulgated pursuant to the SEMA.53
Before promulgating a regulation or order, or adding a name to a list of foreign nationals, the Governor in Council may take into account “information obtained by other countries and non-governmental organizations that monitor violations of human rights” (clause 4(3)).
Orders and regulations made under the Sergei Magnitsky Law are effective for five years and can be extended more than once (clause 5). Clause 6 states that 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.
Clause 7 of the bill imposes a duty on certain types of businesses, both federally and provincially regulated, to determine on a continuing basis whether the business is in possession or control of property “it has reason to believe” is subject to an order or regulation. These businesses include banks, credit unions, insurance companies, fraternal societies offering insurance, trust and loan companies, as well as investment managers or consultants. The clause also enables the Governor in Council to prescribe (i.e., create) additional classes of entities. Clause 7(i) requires that persons and entities dealing in foreign exchange, transmitting or remitting funds (including electronic), or issuing or redeeming money orders determine whether they are in control of property subject to an order or regulation when accounts are opened.54
Unlike the SEMA,55 the Sergei Magnitsky Law does not enable the Minister of Foreign Affairs to issue permits exempting specific activities prohibited or restricted by order or regulation.
Clause 8 of the bill provides an avenue for persons to request that they no longer be the subject of an order or regulation on the grounds that they are not a foreign national (i.e., they are either a Canadian citizen or permanent resident). Clause 9 allows the Minister, in cases of mistaken identity, to issue certificates to persons claiming not to be a foreign national stating that they are not a foreign national subject to an order or regulation. Clause 10 of Bill S-226 accords individuals who are subject to an order or regulation under clause 4 the right to apply for a certificate exempting property that is “necessary to meet the reasonable expenses of the person and their dependents.”
Clause 11 limits the liability of individuals and entities facing civil actions arising from taking or omitting to take measures related to property subject to an order or regulation, so long as they can show that they took all reasonable steps to determine whether the property in question was subject to an order or regulation.
Clauses 12 and 13 serve to minimize the impact of orders or regulations on the rights of others. Clause 12 maintains the ranking of secured and unsecured interests or rights (e.g., a mortgage on a house) in property that are held by a person other than the foreign national who is the subject of an order or regulation. Clause 13 provides that regulations or orders do not preclude the commencement of legal proceedings in which the property might be implicated.
Clauses 15(1) and 15(2) establish a deadline of five years from the coming into force of the Sergei Magnitsky Law for a parliamentary review of both the law and the SEMA, and require that a report be submitted to Parliament with recommendations. In addition, clause 15(3) requires an annual parliamentary review of the list of foreign nationals designated under the Sergei Magnitsky Law by both a Senate and a House of Commons committee that are designated for that purpose. These committees must submit a report to Parliament together with their recommendations pertaining to the addition or deletion of names of foreign nationals on the list. This adds a continuing monitoring function for Parliament not found in either the SEMA or the FACFOA.
Clause 16 of Bill S-226 amends the SEMA by expanding the grounds upon which the Governor in Council may cause to be seized, frozen or sequestrated any property in Canada that is held by or on behalf of a foreign state, any person in that foreign state, or a national of that foreign state who does not ordinarily reside in Canada. The grounds include those that can apply against a foreign national under the Sergei Magnitsky Law. An order of seizure can be made where a foreign state is responsible for or is complicit in extrajudicial killings, torture or other gross violations of internationally recognized human rights against whistle-blowers, human rights advocates or anyone seeking to obtain, exercise or defend an internationally recognized human right, including freedom of conscience, religion, thought, belief, opinion, expression, peaceful assembly and association, and the right to a fair trial and democratic elections (new section 4(1.1)(c)).
The Governor in Council can also cause to be seized, frozen or sequestrated any property of a foreign state where a government official of that state, or a senior associate of such an official, is responsible for, or complicit in, ordering 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 (new section 4(1.1)(e)).
This represents a notable expansion from the current regime governed by the SEMA, which only authorizes the Governor in Council to take economic measures against a foreign state or national to implement a decision 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.
Section 6 of the Canadian Charter of Rights and Freedoms56 grants Canadian citizens the right to enter, remain in and leave Canada. Such a right is not extended to non-citizens. Canada already has in place measures that permit a minister to prohibit entry into Canada, either by providing ministerial or administrative discretion or listing grounds of inadmissibility. Thus, section 22.1(1) of the IRPA permits a minister, at his or her own initiative, to declare that a foreign national may not become a temporary resident or visit Canada if the minister is of the opinion that it is justified by public policy considerations.57
Division 4 of Part 1 of the IRPA lists a number of grounds of inadmissibility to Canada. Persons may be inadmissible to Canada for any of the following reasons:
- they pose a security threat;
- they have violated human or international rights;
- they have been convicted of a criminal offence (unless they have obtained a record suspension or are deemed to be rehabilitated);
- they are engaged in organized crime;
- they are likely to be a danger to public health or safety;
- they are unable or unwilling to support themselves financially; or
- they have withheld or misrepresented material facts that could induce an error in the administration of the Act.
Furthermore, section 35(1) of the IRPA currently provides that a permanent resident or foreign national is inadmissible to Canada on the grounds of violating human or international rights for committing or being tied to acts of terrorism, crimes against humanity or war crimes abroad. Section 35(1) also allows the Minister of Immigration, Refugees and Citizenship to exclude persons who are not permanent residents and whose entry into Canada is restricted if an international organization of states or association of states of which Canada is a member has agreed, pursuant to a decision, resolution or measure, to impose sanctions against a particular country.
Clause 17 adds two new grounds of inadmissibility for human rights violations to section 35(1). One of these grounds refers to the additions made to the SEMA. Thus, a person will be inadmissible due to gross violations of internationally recognized human rights and acts of significant corruption. Second, a foreign national who is subject to an order or regulation made under clause 4 of the Sergei Magnitsky Law will also be inadmissible to Canada.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
- 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, 1st Session, 42nd Parliament (as passed by the Senate, 11 April 2017). [ Return to text ]
- Special Economic Measures Act [SEMA], S.C. 1992, c. 17. [ Return to text ]
- Immigration and Refugee Protection Act [IRPA], S.C. 2001, c. 27. [ Return to text ]
- Alexander Litvinenko was a former Russian spy turned Russian government critic, whose 2006 poisoning death has been linked to the Russian government. (See “Alexander Litvinenko: Profile of murdered Russian spy,” BBC News, 21 January 2016.) Boris Nemtsov was a government critic murdered in 2015, the day before he was scheduled to lead an anti-government rally. (See “Boris Nemtsov’s murder investigated by group that answers to Putin,” CBC News, 1 March 2015.) Nadiya Savchenko is a Ukrainian member of parliament and former pilot who was charged in Russia for killing two journalists while she participated in fighting against rebels in eastern Ukraine. She was later transferred back to Ukraine as part of a prisoner exchange. (See Damien Sharkov, “Ukraine’s Nadiya Savchenko Returns to Russia After Pardon,” Newsweek, 26 October 2016.) [ Return to text ]
- SEMA, s. 4(1). Resolutions of the United Nations Security Council imposing economic or other restrictions or prohibitions may be implemented in Canadian law through regulations under the United Nations Act, R.S.C. 1985, c. U-2. [ Return to text ]
Jerome Taylor and Cahal Milmo, “Alexander Perepilichnyy: Supergrass who held key to huge Russian fraud is found dead in Surrey,” The Independent [United Kingdom], 28 November 2012. The facts of the case are summarized as follows:
Hermitage Capital was once one of the largest foreign investors inside Russia until it became the victim of a $230m (£144m) tax fraud scheme. Corrupt officials from Russia’s powerful Interior Ministry conspired with tax officers to steal corporate seals from Hermitage Capital following a police raid and apply for a series of tax rebates using those seals. Complicit courts and tax offices signed off on the deal and the money was transferred into a bank which was liquidated shortly afterwards.Mr. Browder provided a more detailed account of events in his testimony before the subcommittee in November 2010. See House of Commons, Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development [SDIR], Evidence, 3rd Session, 40th Parliament, 2 November 2010 (Mr. William Browder, Founder and CEO, Hermitage Capital Management). [ Return to text ]
- SDIR, Evidence (2010) (Browder). [ Return to text ]
- Adam Taylor, “Sergei Magnitsky uncovered Russia-to-Cyprus money laundering, and look what happened to him,” Financial Post, 22 March 2013. [ Return to text ]
- Ellen Barry, “Poor Care Led to Death of Lawyer, Russia Says,” The New York Times, 4 July 2011. [ Return to text ]
- SDIR, Evidence (2010) (Browder). [ Return to text ]
- Ibid. [ Return to text ]
- The Investigative Committee of the Russian Federation appears to be an umbrella body unifying various criminal investigative services. The information provided on the Committee’s website is scarce, but its list of activities seems to indicate an interest in investigations involving corruption. [ Return to text ]
- Barry (2011). [ Return to text ]
- Fred Weir, “Russia’s Medvedev sides with human rights activists on Sergei Magnitsky killing,” The Christian Science Monitor, 6 July 2011. [ Return to text ]
- Ibid.; and Philip Aldrick, “Crusading Russian lawyer Sergei Magnitsky ‘beaten to death’,” The Telegraph [United Kingdom], 7 July 2011. [ Return to text ]
- “Magnitsky affair: Mystery over Russian’s death in UK,” BBC News, 28 November 2012. In November 2012, following the departure of a number of vocal critics, new members were appointed to the Presidential Council for Civil Society and Human Rights by President Vladimir Putin. The Council is described as a consultative body established to assist the President in the exercise of his constitutional responsibilities to guarantee and protect human rights and freedoms, keep the President informed on the situation in this area, facilitate development of civil society institutions in Russia, and draft proposals for the President on matters within its mandate. See President of Russia, “Council for Civil Society and Human Rights,” Presidential Councils. [ Return to text ]
- “Court Approves Posthumous Inquiry into Magnitsky,” Sputnik International, 27 February 2012; and Law and Order in Russia, “Russia Moves Forward with the First Posthumous Trial in Russian History in the Magnitsky Case,” News release, 29 November 2012. [ Return to text ]
- Bill C-339, An Act to condemn corruption and impunity in Russia in the case and death of Sergei Magnitsky, 1st Session, 41st Parliament. [ Return to text ]
- Bill C-689, An Act to enact the Global Human Rights Accountability Act and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act, 2nd Session, 41st Parliament. [ Return to text ]
- House of Commons, Debates, 2nd Session, 41st Parliament, 25 March 2015 (Hon. Irwin Cotler, MP). [ Return to text ]
- Senate, Journals, 2nd Session, 41st Parliament, 25 March 2015 (Sen. Andreychuk); and Senate, Journals, 2nd Session, 41st Parliament, 5 May 2015. [ Return to text ]
- SDIR, Evidence, 1st Session, 41st Parliament, 11 December 2012 (Browder); and SDIR, Evidence (2010) (Browder). [ Return to text ]
- SDIR, Evidence, 2nd Session, 41st Parliament, 29 April 2014 (Browder). [ Return to text ]
- Senate, Standing Committee on Foreign Affairs and International Trade [AEFA], Taking Action Against Human Rights Violators in Russia (261 kB, 6 pages), March 2016. [ Return to text ]
- Bill Browder, Red Notice: A True Story of High Finance, Murder, and One Man’s Fight for Justice, Simon & Schuster, New York, 2015. [ Return to text ]
- AEFA, Evidence, 1st Session, 42nd Parliament, 10 March 2016. [ Return to text ]
- House of Commons, Standing Committee on Foreign Affairs and International Development [FAAE], Evidence, 1st Session, 42nd Parliament, 10 March 2016. [ Return to text ]
- Bill C-267, 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, 1st Session, 42nd Parliament. [ Return to text ]
- Freezing Assets of Corrupt Foreign Officials Act [FACFOA], S.C. 2011, c. 10. [ Return to text ]
- FAAE, A Coherent and Effective Approach to Canada’s Sanctions Regimes: Sergei Magnitsky and Beyond – Report of the Standing Committee on Foreign Affairs and International Development, April 2017. [ Return to text ]
- United States, Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (233 kB, 15 pages), Public Law 112-208, 112th Congress, 126 Stat. 1496, 14 December 2012. [ Return to text ]
- Ibid, ss. 405(a) and 405(b). [ Return to text ]
- Ibid., s. 406(a). [ Return to text ]
- Ibid., s. 404(a)(1). [ Return to text ]
- Ibid., s. 404(a)(3). [ Return to text ]
- Ibid., s. 404(a). [ Return to text ]
- Ibid., s. 404(c)(3). [ Return to text ]
- Ibid., s. 404(a)(2). [ Return to text ]
- United States, Office of Foreign Assets Control (OFAC), Sanctions List Search, accessed 25 May 2017. [ Return to text ]
- United States, Global Magnitsky Human Rights Accountability Act, Subtitle F, Public Law 114-328, 2nd Session, 114th Congress. [ Return to text ]
- European Parliament, European Parliament recommendation of 23 October 2012 to the Council on establishing common visa restrictions for Russian officials involved in the Sergei Magnitsky case (2012/2142(INI)), 23 October 2012. [ Return to text ]
- European Parliament, European Parliament recommendation to the Council of 2 April 2014 on establishing common visa restrictions for Russian officials involved in the Sergei Magnitsky case (2014/2016(INI)), 2 April 2014. [ Return to text ]
- European Parliament, “‘Magnitsky list’: MEPs call for EU sanctions against 32 Russian officials,” News release, 2 April 2014. [ Return to text ]
- Kacper Piotrowski, “Estonia becomes first European nation to introduce a ‘Magnitsky law’,” EU-OCS [European Observatory of Crime and Security], 12 December 2016. [ Return to text ]
- United Kingdom, Criminal Finances Act 2017, 2017, c. 22. [ Return to text ]
- United Kingdom, Proceeds of Crime Act 2002, 2002, c. 29. [ Return to text ]
- For current sanctions under the Act and related regulations, see “Table of Contents,” SEMA. [ Return to text ]
The term “politically exposed foreign person” [PEFP] is defined in section 2 of FACFOA as a person who holds or has held one of the following offices or positions in or on behalf of a foreign state:
- head of state or head of government;
- member of the executive council of government or member of a legislature;
- deputy minister or equivalent rank;
- ambassador or attaché or counsellor of an ambassador;
- military officer with a rank of general or above;
- president of a state-owned company or a state-owned bank;
- head of a government agency;
- leader or president of a political party represented in a legislature; or
- holder of any prescribed office or position.
It includes any person who, for personal or business reasons, is or was closely associated with such a person, including a family member. PEFPs are also defined under section 9.3(3) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. [ Return to text ]
- Proceeds of Crime (Money Laundering) and Terrorist Financing Act [PCMLTFA], S.C. 2000, c. 17. [ Return to text ]
- Freezing Assets of Corrupt Foreign Officials (Ukraine) Regulations, SOR/2014-44. [ Return to text ]
- Freezing Assets of Corrupt Foreign Officials (Tunisia) Regulations, SOR/2011-78. [ Return to text ]
- Office of the Superintendent of Financial Institutions Canada, Instruction Guide: Designated Persons Listings and Sanctions Laws, June 2010. [ Return to text ]
- See, for example, Special Economic Measures (Zimbabwe) Regulations, SOR/2008-248, s. 6. [ Return to text ]
- See section 5(h) of the PCMLTFA. [ Return to text ]
- SEMA, ss. 4(4) and 4(5). For an example of a Permit Authorization Order, see Special Economic Measures (Russia) Permit Authorization Order, SOR/2014-59. [ Return to text ]
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [ Return to text ]
- This section must be read in conjunction with section 29(1) of the IRPA to cover visits to Canada. [ Return to text ]