The Canadian Centre for International Justice applauds the Government of Canada and the Canadian Parliament for unanimously consenting to the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) on October 4. The Act enables the government to take measures against foreign nationals who are responsible for or complicit in corruption and gross violations of internationally-recognized human rights and freedoms.
This long-awaited legislation fills a vacuum in Canadian law, creating sanctions and remedies. It serves as a much-needed tool against impunity for human rights violations and corruption, and for the rule of law and accountability in free and democratic societies.
CCIC also applauds the Raoul Wallenberg Centre for Human Rights and its chair, Irwin Cotler, who have shown tremendous leadership in promoting this legislative initiative in Canada.
We recognize that there are trade-offs inherent in innovative legislation of this kind, especially where they deal with extraterritorial acts and appear to target other sovereign nations.
Having said that, there are areas where the Act can be significantly improved. We look forward to working with the government to make these changes. Significant aspects of the human rights portions of the Act are ambiguous and drafted in a manner that restricts the operation of the Act. The result is a lack of internal coherence that threatens the Act’s laudable objectives.
First, the short title of the Act refers specifically to a particular individual, Sergei Magnitsky. The result is that the Act is symbolically associated with a particular country. We recognize the desire to honour Mr. Magnitsky’s legacy and have the utmost respect for his memory and what it represents. However, the focus on a particular country in a law’s name and in its preamble raises concerns. Specifically, the law is designed to ensure universal accountability but the focus on Russia may actually minimize its effectiveness and limit the public’s understanding of the objectives of the law.
Second, there are several concerns about the provisions dealing with human rights. The short title of the Act only speaks to corruption. More substantively, s. 4(2)(a) mentions only torture and extrajudicial killing as specific examples. The section goes on to refer to “other gross violations”, but the mention of the two specific violations may expose the Act to arguments that a narrower interpretation was intended by Parliament. The provision does not adopt the usual practice of referring generally to violations of international human rights and freedoms that are recognized as crimes under international law.
The Act also appears to exclude by omission reprisals against those who seek to exercise social, economic and cultural rights under international law: the words “such as” in s. 4(2)(a)(ii) may open the door to other types of rights, but if that were the intention, it is unclear why the rights that are listed in that provision are limited to civil and political rights.
It also unclear why the Act applies to foreign nationals who “have materially assisted, sponsored, or provided financial, material or technological support for, or goods or services in support of” corruption, but does not extend to foreign nationals who have similarly assisted, supported, or sponsored activities related to gross human rights violations.
The drafting would also appear to exclude reprisals against the families and associates of targeted individuals.
Third, we also note lack of consistency in legislative drafting when compared to other laws involving extraterritorial crimes of a serious nature. This lack of consistency leaves the Act susceptible to problems in interpretation and undermines overall policy coherence. For example, s. 4(2) of the Act refers to foreign nationals who are “responsible for, or complicit in” certain human rights violations, whereas other legislation, such as the Crimes against Humanity and War Crimes Act (SC 2000, s c. 24) and the Criminal Code use the more conventional term “conspires or attempts to commit” which includes all forms of complicity (see, e.g., s, 21 of the Criminal Code.) The drafting begs the issue of what, precisely, makes the foreign national legally “responsible” for a gross violation of international human rights against persons who seek to obtain, exercise, defend or promote internationally recognized rights
Similarly, the Crimes against Humanity and War Crimes Act provides for inchoate forms of commission, including conspiracy, attempt to commit, and being an accessory after the fact. In short, the notion of the word “responsibility” in the Act is vulnerable because of its lack of judicial interpretation, at least in the contexts mentioned above. While the Act is not criminal legislation, its extraterritorial application and engagement of fundamental international human rights law and principles of fundamental justice point to the need for legislative coherence.
(a) make any orders or regulations with respect to the restriction or prohibition of any of the activities referred to in subsection (4) in relation to the foreign national’s property that the Governor in Council considers necessary; and […]
(2) The circumstances referred to in subsection (1) are the following:
(a) a foreign national is responsible for, or complicit in, extrajudicial killings, torture or other gross violations of internationally recognized human rights committed against individuals in any foreign country who seek
(i) to expose illegal activity carried out by government officials, or
(ii) to obtain, exercise, defend or promote internationally recognized human rights and freedoms, such as freedom of conscience, religion, thought, belief, opinion, expression, peaceful assembly and association, and the right to a fair trial and democratic elections;