WRMC President Fen Hampson testified before the Senate of Canada’s Standing Senate Committee on Foreign Affairs and International Trade about Bill S-217, An Act respecting the repurposing of certain seized, frozen or sequestrated assets, also known as the Frozen Assets Repurposing Act. What follows is the testimony as prepared. A video recording of the testimony as delivered, including responses to questions from Canadian Senators, is available here.
There can be little doubt that FARA is highly relevant to the situation we face today in Ukraine. In an act of unprovoked aggression, a brutal dictator has invaded a neighbouring country, precipitating the greatest refugee crisis and humanitarian disaster in Europe since the Second World War.
We need to look no further than the stunning revelations of the anti-corruption activist, Alexei Navalny, to see how Russia’s top-ranking officials and robber barons have enriched themselves by exploiting their government connections to acquire lucrative contracts or state property. In the words of the British writer Oliver Bullough, the Russian legal system “has waved through this monstrous spate of theft” and allowed kleptocrats to move more than “half their wealth outside of Russia” to many countries, including Canada.
The world of sanctions has clearly changed and profoundly so.
But moral outrage, though entirely justified in this case, is not necessarily the basis of sound public policy. So, let me put seven propositions on the table to explain why I think FARA is good public policy.
Proposition 1. FARA is based on the concept that it is well within the proper role of Government of Canada to conduct our country’s foreign policy. That same authority was used to enact Magnitsky and FARA is the logical extension of that authority.
FARA therefore is not building a completely new legal bridge. The bridge was already built when Canada enacted the Justice for Victims of Corrupt Foreign Officials Act (Magnitsky Law), and earlier the Special Economic Measures Act (SEMA), which gives the Government the authority to take restrictive measures against “foreign nationals responsible for gross violations of internationally recognized human rights.”
Freezing assets under Magnitsky was meant to be a means to an end. FARA provides that destination.
If passed, FARA will be the toll booth at the end of the Magnitsky bridge because those who crossed it are already deemed under Magnitsky to be S.2(a) “responsible for, or complicit in, extrajudicial killings, torture or other gross violations of internationally recognized human rights committed against individuals in any foreign state” and/or S.2 (c) “responsible for or complicit in ordering, controlling or otherwise directing acts of corruption — including bribery, the misappropriation of private or public assets for personal gain..”
Proposition 2. FARA introduces political accountability and legal due process in the disposition of assets for those complicit in gross human rights violations and/or corruption.
If passed, FARA would give the government the additional authority to reach a carefully defined group of assets held by that individual and initiate proceedings to confiscate and repurpose them upon application to the Court.
FARA provides a transparent legal process by giving notice to both the owner of the assets and potential claimants that the assets have been seized. It also allows the owner of such assets to make representation before the Court to argue why they should not be confiscated.
Identifying such assets would be helped by fast-tracking the establishment of a national beneficial ownership registry, as some have proposed.
Proposition 3. Canada has the sovereign right to enact such legislation. When an individual chooses to invest or acquire assets in Canada, it is axiomatic in international law that those assets are subject to local laws and jurisdiction.
Proposition 4. FARA will reduce the costs to taxpayers and other holders of frozen assets. When an entity holds a frozen or sequestered asset, there are still costs associated with managing it. This is true of yachts, real estate, and other tangibles, the value of which diminishes over time if not properly maintained. It is also true of financial holdings, which are dead weight on the ledgers of banks and other financial institutions.
FARA relieves that burden if the court eventually disposes of those assets.
Proposition 5. 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. As we now see with Russia, it is hard to fight its leadership and corrupt enablers because they have extraordinary power and consider themselves above the law.
Unlike the Emergencies Powers Act, which gives the government extensive confiscatory powers in an international emergency, including situations short of all-out war, FARA is a scalpel and not a chainsaw. FARA is highly selective about the authority it gives the government to repurpose sequestered foreign assets, and it is, above all, guided by clear principles of fairness and judicial due process.
FARA puts another instrument in the sanctions toolbox, which, if needed, can be deployed.
Proposition 6. FARA will have significant deterrent effects against bad actors who want to park their money and ill-gotten gains in Canada.
We all know that Canada has some catching up to do because of our lax laws and weak enforcement, which have allowed rich kleptocrats and shady individuals to “snow wash” their ill-gotten gains. If the government has confiscatory powers, as it would have under FARA, those individuals may think twice about hiding their wealth here, which is a good thing.
Proposition 7. Some believe that frozen assets should only be returned to the government of the asset holder’s country of origin. That might come, for example, when there is regime change. FARA in no way constrains the ability of our government and its officials to do just that.
However, if there is no regime change in the country or little prospect that it will come any time soon, the assets remain frozen. FARA gives our government the additional option to apply to repurpose those assets to help the victims of that state’s actions if there is no regime change.
It is difficult to understand why our government would not want to have the flexibility to address different contingencies, like the one we are seeing now in Ukraine. If a state attacks another country and forces its people to flee in massive numbers, surely its leaders and those complicit in the regime’s actions have forfeited their right to repossess their ill-gotten gains. Repurposing those assets to help the victims of their heinous crimes is the kind of down payment on future reparations we can enact now.
Finally, I would like to suggest that FARA be officially named the Volodymyr Zelensky Act to honour and celebrate the courageous leader of Ukraine. If passed, FARA would allow Canada—and hopefully, other countries will follow our lead—to seize the ill-gotten gains of those Russian oligarchs who are complicit in Vladimir Putin’s crimes and redirect them to the people of Ukraine.