Hon. Michael L. MacDonald: Honourable senators, I rise today to speak to Bill S-8, An Act to amend the Immigration and Refugee Protection Act, or IRPA.

When I first spoke to this bill at second reading, I highlighted the very objectives that the government has declared that it wishes to achieve with this bill. First, the government has said that it wishes to reorganize existing inadmissibility provisions related to sanctions in order to establish a distinct ground of inadmissibility based on sanctions that Canada may impose in response to an act of aggression. Second, it proposes to expand the scope of inadmissibility based on such sanctions to include not only sanctions imposed on a country but also those imposed on an entity or a person. Third, the bill expands the scope of inadmissibility based on sanctions to include all orders and regulations made under section 4 of the Special Economic Measures Act. Finally, the bill amends the regulations to provide that the Minister of Public Safety will have the authority to issue a removal order on grounds of inadmissibility based on sanctions under new paragraph 35.‍1(1)‍(a) of the Immigration and Refugee Protection Act.

These measures appear in some respects to be quite broad. They are said to close a gap in the law, in this case, primarily to ensure that Russians who are supporters of the current regime are inadmissible to Canada. Obviously, we all want to ensure that.

However, as I noted in my remarks at second reading, sometimes our supposed strong measures may be less strong and less necessary than they actually are being made to appear. Some of the witness testimony we heard on this bill at committee confirms this.

When Dr. Andrea Charron, director of the Centre for Defence and Security Studies at the University of Manitoba, appeared before our committee, she said this bill “. . . repeats a pattern whereby Canada tinkers on the margins of legislation without addressing core policy and process issues.”

This critique of government bills is becoming all too commonplace of late. Many of the bills that the government is introducing are increasingly reactive measures, usually quick responses to external events. They are hasty measures designed to be symbolic, and it shows.

When Professor Charron spoke about Bill S-8 in committee, she lamented that the government often seems to introduce a legislative solution to a problem when that problem is really one of process and policy.

We have a government that tries to look good while avoiding consultations, as well as the more comprehensive and difficult policy work. In relation to Bill S-8, the government has said that the bill is necessary to avoid a gap in the law where a sanctioned individual might otherwise be admissible to Canada despite being sanctioned. But, as Professor Charron asked, was there a case of a foreign national under sanctions who was inadmissible but gained access to Canada? She noted that this does not seem to have ever occurred.

Indeed, when Richard St Marseille, Director General of Immigration and External Review Policy at the Canada Border Services Agency, appeared before our committee, he informed us that no sanctioned individual appears to have entered Canada in the past five years. There have been refusals abroad, evidently; 5 under the Special Economic Measures Act and 10 under the Magnitsky Law. But even those refusals are out of 1,858 individuals sanctioned under the Special Economic Measures Act and roughly 2,200 individuals listed under various sanction grounds.

None of these individuals appear to have entered Canada, and evidently fewer than 1% ever even attempted to apply abroad to do so. Dr. Charron argued that the main shortcoming in Canada’s approach relates not to legislative gaps around the sanctioning regime but due to the fact “. . . that Canada is not always clear about the reasons for sanctioning or the conditions to be met for their lifting.” In other words, Dr. Charron argues that the main problems are a lack of policy clarity and policy inconsistency.

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I cannot help but think about Dr. Charron’s words this past weekend when we learned that a senior official from Global Affairs Canada attended national day celebrations at the Russian embassy. The government claims this was a mistake, but, honestly, how would such a mistake occur?

If an error such as that is possible in the current international climate, it is scarcely surprising that there may be a lack of policy clarity and policy consistency when it comes to the effective coordination of our sanctions policy, or indeed, when it relates to the effective coordination and implementation of any dimension of our international policy.

Unfortunately, Bill S-8 has the feel of an initiative that is designed to give the appearance of something being done rather than actually doing very much at all. That said, it could be that some of the measures incorporated in Bill S-8 may, in fact, be useful. Perhaps there is a need, at least a theoretical need, to close legal gaps between our sanctions regime and inadmissibility provisions in the Immigration and Refugee Protection Act. But I must say that I’m not supremely confident given the lack of clarity that the government has provided on the need for this bill.

Mr. Mario Bellissimo also appeared before our committee and warned that, in his view, Bill S-8 both expands and contracts inadmissibility provisions. He argues that the bill actually incorporates considerable ambiguity, and some of that ambiguity may simply be due to a lack of planning and thought.

Mr. Bellissimo argued that this ambiguity may create new unattended issues, including ambiguity as to whether foreign nationals may be treated as violators of human rights, regardless of whether or not the sanctioned person has been involved in personal wrongdoing themselves. Regrettably, the testimony by Mr. Bellissimo also speaks to a likely lack of policy attention being paid to policy issues that surround the crafting of such legislation.

All this leads me to conclude the bill we have before us today is largely a reactive measure. However, I can support it for the minor issues it purports to address. I do, however, wish that we had a government that was a little more thoughtfully proactive, a government that actually consulted and listened to these individuals, such as the informed witnesses who appeared before our committee. If we had such a government, we might actually begin to see more thoughtful and comprehensive policy approaches being adopted.

Canadians should be served better in this regard. We would have fewer bills that soak up legislative time but actually end up achieving very little. However, in spite of these legitimate concerns, what little this bill contributes is hopefully better than doing nothing at all, and I encourage honourable senators to support this bill. Thank you.

Hon. Michael L. MacDonald: Honourable senators, I rise today to address Bill S-8, An Act to amend the Immigration and Refugee Protection Act.

The bill we have before us seeks to amend the Immigration and Refugee Protection Act, or IRPA, in order to do several things.

First, the bill seeks to reorganize existing inadmissibility provisions relating to sanctions in order to establish a distinct ground of inadmissibility based on sanctions that Canada may impose in response to an act of aggression.

Second, it proposes to expand the scope of inadmissibility based on such sanctions to include not only sanctions imposed on a country, but also those imposed on an entity or a person.

Third, it expands the scope of inadmissibility based on sanctions to include all orders and regulations made under section 4 of SEMA, the Special Economic Measures Act.

Lastly, it amends the Immigration and Refugee Protection Regulations to provide that the ministers of Public Safety and Emergency Preparedness, instead of the Immigration Division, will have the authority to issue a removal order on grounds of inadmissibility based on sanctions under new paragraph 35.1(1)(a) of the Immigration and Refugee Protection Act.

The government has introduced these measures, among others, to respond to Russia’s bloody invasion of Ukraine. We are now entering the third month of that invasion, and we have all witnessed the horrifying scenes of Ukrainian cities and towns being destroyed and innocent Ukrainians being targeted by the Russian military.

Honourable senators, Russia’s invasion of Ukraine has forced nearly 8 million people from their homes, with nearly 7 million of them now having been forced to leave Ukraine itself. Unfortunately, that number continues to grow.

I certainly agree that this humanitarian catastrophe is something that we cannot ignore.

We have also all viewed the disturbing reports of the atrocities committed by the Russian military against civilians. I know that the images associated with these actions have shocked every senator in this chamber who have seen them.

In the face of these accounts, I agree completely with the government that those who actively support the Putin regime cannot be permitted to remain immune to the consequences of their actions.

I agree that since Canada has imposed sanctions against individuals who are part of or are supporting the Russian regime, it is logical to expand the provisions of IRPA in order to incorporate all the grounds of the Special Economic Measures Act in order to ensure that the foreign nationals who are sanctioned are inadmissible to Canada. That is to say they will be inadmissible as long as they do not claim refugee protection under the provisions of IRPA.

In this respect, I note that the Minister of Public Safety has been careful to note that:

Foreign nationals who are inadmissible to Canada due to sanctions will still be eligible to have a refugee claim considered by the Refugee Protection Division of the Immigration and Refugee Board, and will have access to a full pre-removal risk assessment.

One can readily agree that in circumstances where sanctioned individuals may have, for example, turned on the Putin regime and then arrived at a Canadian port of entry, it is wise to have some flexibility regarding their inadmissibility. However, I am concerned that, as is often the case, the supposed strong measures that the government is introducing in a piece of legislation may, in fact, not be quite as strong as they appear.

I recognize that there is jurisprudence that permits literally anyone to make a refugee claim at a Canadian port of entry, but I remain concerned that there are those who will inevitably abuse this, using it as a loophole to gain entry into Canada. Such individuals can then potentially use the slow pace of our judicial system against us in order to remain in Canada for an extended period of time.

This cautionary note aside, I nevertheless agree that the bill we have before us is at least another tool in our toolbox that we can use to sanction those who are supporters of the Putin regime and who effectively underwrite its despicable actions.

I am very heartened by the scope of measures that we are finally passing through the parliamentary process.

Just a few weeks ago, for example, I had the privilege of speaking to Senator Omidvar’s bill, Bill S-217, which would permit the repurposing of the assets of individuals and entities that have been sanctioned in connection with crimes — such as Russia’s premeditated, unjust and unprovoked invasion of Ukraine — in order, potentially, to assist the victims of such acts.

I do believe that these sorts of measures, if correctly applied — with loopholes minimized — can have an important impact. They will be particularly impactful if applied in conjunction with similar actions taken by like-minded states.

In this respect, Professor Brooke Harrington recently wrote in The Atlantic that some of Russia’s best-known oligarchs — persons Professor Harrington describes as “business figures who have built up huge fortunes, in most cases through their connections to the state” — are now calling for an end to the war.

Professor Harrington noted that the billionaire industrialist Oleg Deripaska, and Mikhail Fridman, a founder of Russia’s largest private bank, have both urged an end to Putin’s war.

She argues that such calls were directly related to the fact that oligarchs themselves have been targeted for the support they provide to the current Russian regime.

I think we have to hope that, in the long term, such emerging divisions within Russia’s elite class will start to have an impact.

What I only wish is that, collectively, the West had been more effective and proactive before the current phase of the conflict between Russia and Ukraine erupted this past February.

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What I lament in relation to Ukraine is that our responses have really been behind the curve. We need to remember that Vladimir Putin’s invasion of Ukraine really began in 2014, when Crimea was seized from Ukraine in complete violation of international law.

While I think the previous government did its best to respond decisively to that invasion — for instance, by leading the charge on expelling Russia from the G8 — the West’s collective response was less than effective, and herein lies the problem.

We are often reluctant to respond strongly to events that do not remain front and centre in the news. When such events fade from the headlines, so too does our interest. We can see that today through our completely ineffective response to the genocide in the Xinjiang region of China and to the Chinese government regime’s repeated threats to invade Taiwan. But neither of these events are front and centre in the news. We have few images of Chinese concentration camps, so our response peters away to ineffectiveness.

On the question of China, of its threats against Taiwan, its genocide and its continued support for Russia, our government remains far behind our allies in responding decisively to this growing threat. I want us, as a country, to be able to move beyond simple virtue signalling when a crisis suddenly erupts and when it is already too late. As a country, we must have a more strategic, decisive and effective international policy.

The bill we have before us today is a reactive measure. Given the threat that we all face in Ukraine, I support this measure for what it is, and I agree that it is needed. But, going forward, I do call on the government — and all of us in this chamber — to do better.

I believe that in today’s more threatening global environment, doing better is now an imperative for everyone’s national security. I encourage honourable senators to get this bill to committee as soon as possible so Parliament can expedite passage of this legislation.

I’m not sure if Senator Harder and I have been sanctioned by the Russians yet, but I suspect we will be now.

Thank you, colleagues, and let’s get this bill to committee.

Senator MacDonald: And now, the timing of this legislation could not be more significant. The difference now, of course, is the invasion of Ukraine by the authoritarian dictator Vladimir Putin, supported by his oligarchs. That has focused the Senate’s mind wonderfully on the issues that this bill addresses. So, we find ourselves in a little bit more of a hurry to get this bill passed at third reading and sent on to the House. In this circumstance, it has been around long enough for our hurry to not appear in any way unseemly, especially now that the government has shown its willingness to support this bill.

In short, honourable senators, in my opinion, Bill S-217 is a bill whose time has come. I can describe the reason for that no better than did the sponsor in her remarks this past March before the Senate Standing Committee on Foreign Affairs, when she said:

In the past month, we have seen the world change. The brutality of the Russian invasion of Ukraine has called for swift and severe action by the world. And we have seen sanction regimes, such as taking Russia out of the SWIFT banking system, which no one would have thought conceivable a few weeks ago.

Recently, the government announced that Canada will join an international task force with the U.S., the U.K. and others to:

. . . commit to . . . working together to take all available legal steps to find, restrain, freeze, seize, and, where appropriate, confiscate or forfeit the assets of those individuals and entities that have been sanctioned in connection with Russia’s premeditated, unjust, and unprovoked invasion of Ukraine and the continuing aggression of the Russian regime.

As Senator Omidvar has explained:

The frozen assets repurposing act, or FARA, as proposed in Bill S-217, would provide that legal basis and that legal tool to help hold dictators, human-rights abusers and kleptocrats accountable for their actions.

But while the invasion of Ukraine by Russia has certainly given this bill much-needed impetus, moral outrage, as we heard from professor Fen Hampson at the Foreign Affairs Committee, “. . . is not necessarily the basis of sound public policy.”

So, Senator Omidvar, while you may view with some chagrin the length of time it has taken your bill to be accepted, the rest of us who support this bill can at least console ourselves that it is not simply a product of this latest moral outrage, but in fact long precedes it.

Punishing Russian oligarchs by seizing and repurposing their ill-gotten gains would certainly be a satisfying outcome of this bill becoming law, but the current situation in Ukraine was neither the specific impetus for the bill nor were Russian oligarchs the particular targets, though they would clearly have been among them.

I think it is worth remembering that while this bill would be useful in addressing the Ukraine crisis, it also transcends it. Its genesis, as Senator Omidvar reminded us when she spoke to Bill S-259 in 2019, was sparked by what she called the most significant crisis in the world today, the crisis of the forcibly displaced — 70 million of them around the world, at that time, half of them children, who had to flee their homes because of armed conflict.

Honourable senators, Russia’s invasion of Ukraine has added more than a million refugees to that number and, unfortunately, the number continues to grow.

I was struck at the time when Senator Omidvar said that her bill was inspired by the World Refugee Council’s report entitled A Call to Action: Transforming the Global Refugee System, that had been released earlier that year at the UN. In her second reading speech on Bill S-259, she said:

It urges nation states, regional organizations and multinational institutions to do more than just talk; it urges them to take action. This bill is a direct response to the call for action.

However, I am reminded, and disturbed, by the amount of virtue signalling that the current government is still engaging in. For instance, it loudly proclaimed a few weeks ago that it is sending RCMP officers to Europe to probe war crimes being committed in Ukraine. This may sound good, but it is almost certainly an empty gesture given the basic reality that it will likely not be possible to arrest soldiers from a nuclear-armed state for war crimes. We can pretend that Russian generals will be arrested and tried, but how that would actually be operationalized is very difficult to imagine.

When we were considering this bill at committee, I also could not help but notice that former foreign affairs minister Lloyd Axworthy — when he appeared before our committee — took time to laud the anti-personnel land mines treaty that he spearheaded a quarter-century ago. It was certainly a worthwhile initiative. However, this was surprising since the invasion of Ukraine demonstrates exactly how that treaty is not working, since Russia is busy using exactly these weapons in Ukraine.

I really wish that the Government of Canada would stop pretending and virtue signalling. As a country, we need to begin to be honest with ourselves. And as the Parliament of the country, we must be honest with Canadians about the stark threat that we face.

I would like our government to initiate measures that can really make a difference. This bill can contribute to that if we work tirelessly with our allies on a joint approach. But then we need to be clear-headed and frank about the difficult road we have ahead of us and to avoid simply focusing on empty gestures that are part of pretending about the great difference we want to believe we are making.

To quote Professor Hampson again:

FARA levels the playing field when our country is forced to deal with bad actors and corrupt regimes. Our government needs the ability to fire back at those who are not constrained by the rule of law . . . .

It is action — not just more talk and not just pulpit diplomacy.

Honourable senators, I don’t want to leave you with the impression that all the witnesses or even all the senators on the committee supported the bill. During the Foreign Affairs Committee’s study of Bill S-217, Transparency International was particularly critical of three aspects: that the focus was solely on displaced persons as victims; that the government has done such a poor job of seizing assets that there would not be enough to be repurposed; and that judges lacking knowledge in foreign affairs will be sufficiently knowledgeable of the context of the country or group that might receive these funds, such that the repurposed assets might end up back in the wrong hands.

Brandon Silver of the Raoul Wallenberg Center was a strong supporter of the legislation but also offered what he called three proposed refinements to the bill to strengthen it. That included broadening it beyond its application solely to displaced persons.

Many of these proposals informed our deliberations as we approached clause-by-clause consideration of the bill, leading to several amendments being proposed. In the end, only two of the amendments were adopted by the committee, both of which were, more or less, technical in nature in order to bring the bill in line with current government practice under the Special Economic Measures Act. Therefore, some of the substantive concerns remain unaddressed.

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Perhaps this reality will provide the government with an opportunity to further examine how the bill might be improved. I urge the government and members of the House of Commons to undertake a serious effort in that regard if it were to help make this bill more substantive.

I would be remiss if I didn’t mention that I had reservations about one of the amendments that will now broaden the reasons for the repurposing of seized assets to include:

a grave breach of international peace and security has occurred that has resulted in or is likely to result in a serious international crisis.

I realize that it simply aligns the language in Bill S-217 with that used in the Special Economic Measures Act, as Senator Coyle said in proposing the amendment, but I am concerned that this language is both too broad and possibly too limiting at the same time.

It could be too broad in the sense that, as Senator Richards pointed out in committee, it could be applied subjectively and used for almost any purpose. For instance, how will one define a “breach of international security” leading to a “serious international crisis?” Could Israel have been targeted for its defensive strikes in 1967, which certainly led to an international crisis?

On the other hand, I fear the language could also be too limiting in the sense of what might constitute a “serious international crisis.” Would Vladamir Putin’s relatively bloodless seizure of Crimea in 2014 have met this definition, or would his 2008 seizure of Georgian territory have met the definition?

Regrettably, it is far from clear.

Senators noted at committee that, ultimately, the question of what constitutes “a breach of international security” leading to a “serious international crisis” will be defined by the Government of Canada. But in all scenarios, leaving this solely to the government of the day may not be entirely reassuring.

I can only say that, fortunately, this will only be one of the conditions that would trigger action under the bill.

As we so often hear in this place, let us not let the search for perfection be the enemy of finding the good. On the whole, I do believe that this is a good bill. It is the right bill for our time. I urge all senators to unanimously support this bill and vote for it at third reading.

Thank you.