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Speech in Senate Chamber: Resuming debate on motion of the Honourable Senator Andreychuk, Motion to Take Note of the Case of Sergei Magnitsky Adopted

The Senate

Motion to Take Note of the Case of Sergei Magnitsky Adopted

On the Order:

Resuming debate on the motion of the Honourable Senator Andreychuk, seconded by the Honourable Senator Greene:

That the Senate take note of the following facts:

(a) Sergei Magnitsky, a Moscow lawyer who uncovered the largest tax fraud in Russian history, was detained without trial, tortured and consequently died in a Moscow prison on November 16, 2009;

(b) No thorough, independent and objective investigation has been conducted by Russian authorities into the detention, torture and death of Sergei Magnitsky, nor have the individuals responsible been brought to justice; and

(c) The unprecedented posthumous trial and conviction of Sergei Magnitsky in Russia for the very fraud he uncovered constitute a violation of the principles of fundamental justice and the rule of law; and

That the Senate call upon the government 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.

Hon. Anne C. Cools: Honourable senators, I rise to speak to our beloved Senator Andreychuk's March 25 motion asking the Government of Canada to sanction foreign nationals, Russians, whom she said are responsible for the murder of a Russian national, an accomplished lawyer named Sergei Magnitsky. Her motion is identical to one adopted in the House of Commons that day with absolutely no debate. Neither the sponsor, Mr. Cotler, nor the Foreign Affairs Minister, Rob Nicholson, spoke to it. That same day, the Senate Deputy Government Leader Yonah Martin tried to have it adopted urgently and without debate. Learning of my concern about this improper haste on this grievous matter, she permitted me some time to prepare. I thank Senator Martin very much for that.

Colleagues, accusations of murderous actions are grave, the more when the accused country supported the Allies in World War II and has diplomatic relations with us. I note that our government has no extraterritorial powers to reach into Russia to examine their nationals residing there. This Senate ought not to call upon or even whisper to the government on this motion, which is, in my view, an affront on the Russian nation and sovereign. Diplomacy is far better and more helpful to communicate with foreign countries and should be pursued with vigour.

Honourable senators, this motion's content is deeply disturbing. It touches large, serious and complex foreign affairs questions. It is of some legal and constitutional magnitude and invades our Sovereign Queen's exclusive jurisdiction in foreign affairs, exercised in the person of the Foreign Affairs Minister, Rob Nicholson, vested by Her Majesty and so credentialed by her. It asks the Senate, absent study and examination by a Senate committee, to take a position on a foreign affairs judicial question, riddled with difficulties and presently unknown to our Constitution. It is one on which the Foreign Affairs Minister has not spoken, and he should lead on these issues. Presently, our government has no power to act against non-Canadian citizens, foreign nationals, resident in their own countries, for deeds done there.

Senator Andreychuk's motion reads, in part:

. . . That the Senate call upon the government 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.

Honourable senators, our colleague's motion seeks an extraterritorial, punitive, judicial power, simply a universal, international curial jurisdiction over a foreign country's nationals, which Canada does not now possess, however terrible and sad is the case of Sergei Magnitsky. Our good senator's motion will "condemn" and "sanction" persons who are unidentified and unavailable for our examination and investigation. The "international judicial intervention" that our good Senator seeks may possibly be outside the United Nations Charter. Her motion appears to be contrary to the charter's Article 2.7 of Chapter 1: Purposes and Principles, which states:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; . . . .

Honourable senators, clearly this international organization of nations, named the United Nations, distinguishes interventions "in matters which are essentially within the domestic jurisdiction of any state" from those that are not. The Government of Canada, the Senate and the House of Commons also uphold that distinction. It seems that the terrible events of which our dear Senator Andreychuk speaks are "matters which are essentially within the domestic jurisdiction" of Russia. If so, surely the remedies and goals sought by her motion cannot be "essentially within the domestic jurisdiction" of Canada.

Honourable senators, our good senator began her speech on March 25 and finished it the next day. Senate Deputy Opposition Leader Joan Fraser then asked her:

It's not that I think it would be a bad thing to sanction those acts, but how are we supposed to know who did those acts? Are we not, in other words, engaging here in a bit of empty rhetoric?

Senator Andreychuk replied:

No, because I think what we are still appealing for is some internal ability to find out who did what. If you look at the number of investigations that were done within Russia, the people who were responsible in the prisons, one of them was removed but no full action or proper investigation was made. The people are known; they've been identified in Russia.

The point is that it's very much like the International Criminal Court.

Our colleague seeks for Canada an "internal ability to find out who did what" in Russia. She seeks a local option, a domestic Canadian international jurisdiction, a homegrown extraterritorial power over Russian nationals. She said, ". . . it's is very much like the International Criminal Court." The International Criminal Court was established by the Statute of Rome not too many years ago. But she herself admits the absence of jurisdiction here in Canada. I want senators to listen to a very honest statement, she said:

. . . This is really exploring it.

Granted, we haven't got the measures, but no one has really stopped to assess it. So we're calling on the Canadian government to start that process of investigation to see if it leads somewhere where we can, in fact, impose sanctions against those people.

I admire Senator Andreychuk deeply, and she knows that. She herself articulates the problem.

Honourable senators, Canada has no international jurisdiction to empower the Senate, Parliament or our government to punish or sanction foreign nationals for deeds done in their own countries, people who have not hurt Canada or Canadians. We do not know the full scope of the powers that our good senator seeks and how they would be created or executed. She has presented no evidence to the Senate for the terrible evils of which she spoke. Neither do senators nor the Senate know the nature or limits of the sanctions which she seeks or why. Her sincere motion is not evidence. Sincerity is not hard evidence. Her motion is merely a strongly worded hortatory condemnation. Last year in April, Government Deputy Leader Martin asked the Senate to immediately adopt a similar motion, also against the same foreign nation, Russia. Both motions stand out for their strident tone against Russia. Both presented no evidence to the Senate on which to form an opinion. Both waded into the international arena without the express support of the minister on the floor of the House of Commons. Yet both of these Russian motions were most urgent for reasons that no one would tell us.

Honourable senators, our foreign and international affairs are really relations between sovereigns, that is, between foreign sovereigns and our sovereign, Her Majesty.

Foreign sanctions, and their enforcement, are the ken of the foreign minister, so vested by Her Majesty. Our Constitution grants our two houses no role in these decisions, other than the Parliament's control and power of the public purse. If we do not like their war, we cut off the supply of money.

Joseph Chitty, the great authority on Royal Prerogative law, wrote on the Crown's pre-eminence in foreign affairs. In his 1820 Treatise on the Law of the Prerogatives of the Crown, he wrote, at page 6:

With respect to foreign states and affairs, the whole majesty and power of his dominions are placed in the hands of the King, who as representative of his subjects possesses discretionary and unlimited powers. In this capacity his Majesty has the sole right to send ambassadors and other foreign ministers and officers abroad, to dictate their instructions, and prescribe rules of conduct and negotiation. (a) His Majesty alone can legally make treaties, leagues and alliances with foreign states; grant letters of marque and reprisals, and safe conduct; declare war or make peace. As depository of the strength of his subjects, and as manager of their wars, the King is generalissimo of all land and naval forces: his Majesty alone can levy troops, equip fleets, and build fortresses.

Honourable senators, that is the nature of those prerogative powers, and they are very great powers. Thank God our Sovereign does not invoke them too often in terms of war.

Honourable senators, foreign relations decisions are the sole purview of the foreign minister, who did not speak to this motion, nor to the one last year, in the Commons. Without doubt, his opinion matters and is exquisitely important. We have long thought that in both houses, motions or decisive matters on foreign affairs questions should be moved only by responsible Crown ministers — and I will say it again — of whom we have none in this chamber. We have no ministers in this chamber. I say again to Senator Carignan and everybody here that we must insist to the Prime Minister that Senator Carignan be made a minister. I have said that before, and I say it again.

Honourable senators, this unusual sanctions motion would give the Canadian government a punitive role against foreign nationals in their own countries. It is a very unusual thing, as I said. Black's Law Dictionary, fourth edition, defines two types of sanctions, the positive supportive and the negative coercive. On the former, Black's Law Dictionary says, at page 1507:

To assent, concur, confirm, or ratify.

That use of the term has almost fallen into disuse.

On the latter, Black's adds:

In jurisprudence, a law is said to have a sanction when there is a state which will intervene if it is disobeyed or disregarded. Therefore international law has no legal sanction. . . .

In a more general sense, a conditional evil annexed to a law to produce obedience to that law. . . .

The vindicatory part of a law, or that part which ordains or denounces a penalty for its violation.

Affirming Black's, Webster's Unabridged Dictionary, 1989, defines "sanction," at page 1265, as an:

. . . action by one or more states toward another state calculated to force it to comply with legal obligations.

Likewise, Jowitt's Dictionary of English Law, the most famous of all of those dictionaries, defines "sanction," at page 1584, as:

. . . a penalty or punishment provided as a means of enforcing obedience to a law.

Honourable senators, I do not understand Senator Andreychuk's quest to expand Canada's jurisdiction over extraterritorial Russian nationals. I am unclear about the nature of the sanctions her motion seeks against these people, whom she confidently alleges have committed these terrible crimes.

In the 2013 article, "Sanctions," in the Max Planck Encyclopedia of Public International Law, Alain Pellet and Alina Miron explain the current use of the word "sanctions," at paragraph 5:

. . . sanctions, . . . rest upon the persuasive force of coercion to bring the targeted State . . . back to legality. Indeed, the legal discourse has gradually come to reserve the use of the term "sanctions" to the measures of constraint taken either by States or by international organizations in order to restore the international legality, broken by the illicit act of an international legal subject.

I repeat that these matters are the ken of the Minister of Foreign Affairs, yet he is silent. I would love to hear what he has to say.

Honourable senators, I question this motion both substantively and procedurally as it attempts to add a new weapon, a judicial one, to our international political arsenal. It seeks to do that which is alien to our Constitution. It seeks to acquire some universal jurisdiction. It asks Canada to administer international justice in foreign lands from here in our homegrown domestic courts.

Kenneth Roth, well-known as the executive director of Human Rights Watch, quotes the former U.S. Secretary of State Henry Kissinger on the then novel concept of extraterritorial jurisdiction. This is some years back. In the September/October 2011 Foreign Affairs journal, in his article, "The Case for Universal Jurisdiction," Roth said, at page 151:

Kissinger says that the drafters of the Helsinki Accords — the basic human rights principles adopted by the Conference on Security and Cooperation in Europe in 1975 — and the U.N.'s 1948 Universal Declaration on Human Rights never intended to authorize universal jurisdiction.

These famous assemblies never intended a universal jurisdiction in judicial form. The jurisdiction for the International Criminal Court is still disputed by those who disagree that courts and judges should be deployed, that judicial processes should be deployed, for political purposes. You remember that, two years back, there was much talk of that, that once they could get their hands on Gadhafi, they would deliver him to the court.

Could I have a few more minutes?

The Hon. the Speaker: Is the chamber granting Senator Cools five more minutes?

Hon. Senators: Agreed.

Senator Cools: Honourable senators, the matters before us are serious, and I thank Senator Andreychuk for bringing them before us. But they demand deep examination and deep debate. They ought to be given the study they deserve.

Honourable senators, in closing, I state that procedurally, a motion of this type, which touches Her Majesty's prerogative in international affairs, should have been in the parliamentary form known as an address to the Governor General. Address is the manner in which the houses communicate with our sovereign, Her Majesty, or her representative. About this, Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd edition, informs at page 607:

Addresses have comprised every matter of foreign or domestic policy; the administration of justice; the expression of congratulation or condolence . . . and, in short, representations upon all points connected with the government and welfare of the country. . . .

Honourable senators, I thank Senator Andreychuk for her good work. She is known all over the world. Understandably, I know that she feels strongly about these issues, but, sadly, there are numerous instances in the world of tragic murders left unpunished, and I will cite two that deeply affected me as a child. One was the 1944 cold-blooded assassination in Cairo of Lord Moyne, the British Minister Resident in the Middle East, by the Stern Gang, a group headed by a man who later became Prime Minister of Israel, Yitzhak Shamir. The other was the 1948 assassination of the UN Mediator in Palestine, named Count Folke Bernadotte. He was of the Swedish royal family, head of their Red Cross and a great humanitarian. He rescued many Jews during World War II. He was murdered by the infamous Stern Gang, known as Lehi, which means “fighters for the freedom of Israel.” Interestingly, Yitzhak Shamir wrote in his 1994 book Summing Up: An Autobiography, about Count Bernadotte, at pageĀ75:

. . . Lehi believed that it was imperative for the plan to be shelved and Bernadotte removed from the arena. At first, he was warned: Lehi leaflets demanded that he leave his post, that he leave the country and that his Plan be publicly repudiated.

But Bernadotte was sure that with his Plan he was entering history and he paid no heed. On 17 September 1948, he was shot and killed in Jerusalem, the city he was ready to give away.

Shamir also wrote of his meeting with Shaul Avigur, the then deputy minister of defence, not long after the Bernadotte assassination. He wrote the following:

He listened, without comment, then asked me to give him the names of Count Bernadotte's assailants. Nothing would happen to them, he said, but Ben-Gurion cut through the tangle to proclaim a "general amnesty" and the Provisional Government passed a special law so that all Lehi and Irgun members be released, including those already sentenced.

Honourable senators, I have much sympathy for Senator Andreychuk's fine work with the Senate Foreign Affairs Committee. But the world is filled with sad, terrible events and murders of some very fine people that remain unpunished. There were not two human beings as great as Lord Moyne and Count Bernadotte. Lord Moyne stands out in my mind as a mighty man because he had conducted a royal commission in the West Indies, the Moyne Report. The entire Caribbean was looking to his report as the way forward for our islands. So the name Moyne echoed in my mind for years and years, as did the Moyne Report, which set the stage for independence in the region.

Senator Andreychuk, I thank you for your work. I thank you for your sensitivity. I thank you for your great contributions. But I feel quite strongly that we are having difficulty in Canada managing our own internal wrongdoings. I do not see that we can manage wrongdoings in other countries.

I would like to close by praising the nature of diplomacy. It is a wonderful tool. I would invite Senator Andreychuk and the Minister of Foreign Affairs and all interested in those issues to invest much time in diplomacy, especially our relationship with Russia. I thank you very much.

The remainder of this day's Senate Debates are available here.