Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (S.C. 2017, c. 21)
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Assented to 2017-10-18
Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law)
S.C. 2017, c. 21
Assented to 2017-10-18
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
SUMMARY
This enactment enacts the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights. It also proposes related amendments to the Special Economic Measures Act and to the Immigration and Refugee Protection Act.
Preamble
Whereas human rights and the rule of law are integral to international law and Canada has repeatedly asserted its commitment to promoting international justice and respect for human rights;
Whereas signatory States to international human rights agreements have committed themselves to the obligations and responsibilities set out in those agreements;
Whereas 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;
Whereas 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;
Whereas 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;
Whereas legislation and motions adopted by legislative assemblies in the United States, the European Parliament, the United Kingdom, the Netherlands, Italy, Poland and Canada have condemned the mistreatment of Sergei Magnitsky as “a violation of the principles of fundamental justice and the rule of law” and called for sanctions 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;
Whereas the Litvinenko Inquiry report, presented to the United Kingdom Parliament on January 21, 2016, found that two Russian agents, Andrei Lugovoi and Dmitry Kovtun, were responsible for the assassination of Alexander Litvinenko and that there was a “strong possibility” that they were acting on behalf of the Russian Federal Security Service;
Whereas Russian opposition politician Boris Nemtsov was assassinated outside the Kremlin on February 27, 2015, and to this day no thorough, independent and objective investigation has been conducted by Russian authorities;
Whereas the Senate, on May 5, 2015, and the House of Commons, on March 25, 2015, by unanimous resolutions called upon the Government of Canada to explore and encourage sanctions against any foreign nationals responsible for the detention, torture and death of Sergei Magnitsky and 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;
Whereas member of the Ukrainian Parliament Lieutenant Nadiya Savchenko and other Ukrainians were illegally convicted and imprisoned in Russia in violation of international norms and fundamental justice;
Whereas the Special Economic Measures Act authorizes the Government of Canada to take economic measures against a foreign state or national for the purpose of implementing a decision, resolution or recommendation 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;
Whereas adding gross violations of internationally recognized human rights as a ground on which sanctions may be imposed against foreign states and nationals would further Canada’s support for human rights and advance its responsibility to protect activists who fight for human rights;
Whereas it is important to acknowledge and remember Sergei Magnitsky’s sacrifice, as well as the sacrifice of other victims of gross violations of internationally recognized human rights;
And whereas all violators of internationally recognized human rights should be treated and sanctioned equally throughout the world,
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short Title
Marginal note:Short Title
1 This Act may be cited as the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
Interpretation
Marginal note:Definitions
2 The following definitions apply in this Act.
- Canadian
Canadian means a person who is a citizen within the meaning of the Citizenship Act or a corporation incorporated or continued by or under the laws of Canada or of a province. (Canadien)
- entity
entity means a corporation, trust, partnership, fund, an unincorporated association or organization or a foreign state. (entité)
- foreign national
foreign national means an individual who is not
(a) a Canadian citizen; or
(b) a permanent resident under the Immigration and Refugee Protection Act. (étranger)
- foreign public official
foreign public official has the same meaning as in section 2 of the Corruption of Foreign Public Officials Act. (agent public étranger)
- foreign state
foreign state means a country other than Canada, and includes
- Minister
Minister means the Minister of Foreign Affairs. (ministre)
- person
person means an individual or an entity. (personne)
- prescribed
prescribed means prescribed by regulation. (version anglaise seulement)
Her Majesty
Marginal note:Binding on Her Majesty
3 This Act is binding on Her Majesty in right of Canada or a province.
Orders and Regulations
Marginal note:Orders and Regulations
4 (1) The Governor in Council may, if the Governor in Council is of the opinion that any of the circumstances described in subsection (2) has occurred,
(a) make any orders or regulations with respect to the restriction or prohibition of any of the activities referred to in subsection (3) in relation to a foreign national that the Governor in Council considers necessary; and
(b) by order, cause to be seized, frozen or sequestrated in the manner set out in the order any of the foreign national’s property situated in Canada.
Marginal note:Circumstances
(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 state who seek
(i) to expose illegal activity carried out by foreign public 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;
(b) a foreign national acts as an agent of or on behalf of a foreign state in a matter relating to an activity described in paragraph (a);
(c) a foreign national, who is a foreign public official or an associate of such an official, is 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, the transfer of the proceeds of corruption to foreign states or any act of corruption related to expropriation, government contracts or the extraction of natural resources — which amount to acts of significant corruption when taking into consideration, among other things, their impact, the amounts involved, the foreign national’s influence or position of authority or the complicity of the government of the foreign state in question in the acts; or
(d) a foreign national has materially assisted, sponsored, or provided financial, material or technological support for, or goods or services in support of, an activity described in paragraph (c).
Marginal note:Restricted or prohibited activities
(3) Orders and regulations may be made under paragraph (1)(a) with respect to the restriction or prohibition of any of the following activities, whether carried out in or outside Canada:
(a) the dealing, directly or indirectly, by any person in Canada or Canadian outside Canada in any property, wherever situated, of the foreign national;
(b) the entering into or facilitating, directly or indirectly, by any person in Canada or Canadian outside Canada, of any financial transaction related to a dealing referred to in paragraph (a); and
(c) the provision by any person in Canada or Canadian outside Canada of financial services or any other services to, for the benefit of or on the direction or order of the foreign national;
(d) the acquisition by any person in Canada or Canadian outside Canada of financial services or any other services for the benefit of or on the direction or order of the foreign national; and
(e) the making available by any person in Canada or Canadian outside Canada of any property, wherever situated, to the foreign national or to a person acting on behalf of the foreign national.
Marginal note:Order authorizing Minister
(4) The Governor in Council may, by order, authorize the Minister to
(a) issue to any person in Canada or Canadian outside Canada a permit to carry out a specified activity or transaction, or class of activity or transaction, that is restricted or prohibited under this Act or any order or regulations made under this Act; or
(b) issue a general permit allowing any person in Canada or Canadian outside Canada to carry out a class of activity or transaction that is restricted or prohibited under this Act or any order or regulations made under this Act.
Marginal note:Ministerial permit
(5) The Minister may issue a permit or general permit, subject to any terms and conditions that are, in the opinion of the Minister, consistent with this Act and any order or regulations made under this Act.
Marginal note:Revocation, etc.
(6) The Minister may amend, suspend, revoke or reinstate any permit or general permit issued by the Minister.
Marginal note:Tabling of order
5 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. It may be sent to the Clerk of the House if the House is not sitting.
Duty to Determine
Marginal note:Determination
6 Each of the following entities must determine on a continuing basis whether it is in possession or control of property that it has reason to believe is the property of a foreign national who is the subject of an order or regulation made under section 4:
(a) authorized foreign banks, as defined in section 2 of the Bank Act, in respect of their business in Canada or banks to which that Act applies;
(b) cooperative credit societies, savings and credit unions and caisses populaires regulated by a provincial Act and associations regulated by the Cooperative Credit Associations Act;
(c) foreign companies, as defined in subsection 2(1) of the Insurance Companies Act, in respect of their insurance business in Canada;
(d) companies, provincial companies and societies, as those terms are defined in subsection 2(1) of the Insurance Companies Act;
(e) fraternal benefit societies regulated by a provincial Act in respect of their insurance activities and insurance companies and other entities engaged in the business of insuring risks that are regulated by a provincial Act;
(f) companies to which the Trust and Loan Companies Act applies;
(g) trust companies regulated by a provincial Act;
(h) loan companies regulated by a provincial Act;
(i) entities that engage in any activity described in paragraph 5(h) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act if the activity involves the opening of an account for a client;
(j) entities authorized under provincial legislation to engage in the business of dealing in securities or to provide portfolio management or investment counselling services; and
(k) other entities of a prescribed class of entities.
Disclosure
Marginal note:Duty to disclose — supervising and regulating agencies
7 (1) Every entity referred to in section 6 must disclose, every month, to the principal agency or body that supervises or regulates it under federal or provincial law, whether it is in possession or control of any property referred to in that section and, if so, the number of persons or dealings involved and the total value of the property.
Marginal note:Duty to disclose — RCMP or CSIS
(2) Every person in Canada and every Canadian outside Canada must disclose without delay to the Commissioner of the Royal Canadian Mounted Police or the Director of the Canadian Security Intelligence Service
(a) that they have reason to believe that property in their possession or control is owned, held or controlled by or on behalf of a foreign national who is the subject of an order or regulation made under section 4; and
(b) any information about a transaction or proposed transaction in respect of property referred to in paragraph (a).
Marginal note:Immunity
(3) No proceedings under this Act and no civil proceedings lie against a person for a disclosure made in good faith under subsection (1) or (2).
Rights of Foreign Nationals Who are the Subject of an Order or Regulation
Marginal note:Application
8 (1) A foreign national who is the subject of an order or regulation made under section 4 may apply in writing to the Minister to cease being the subject of the order or regulation.
Marginal note:Recommendation
(2) On receipt of the application, the Minister must decide whether there are reasonable grounds to recommend to the Governor in Council that the order or regulation be amended or repealed, as the case may be, so that the applicant ceases to be the subject of it.
Marginal note:Time limit
(3) The Minister must make a decision on the application within 90 days after the day on which the application is received.
Marginal note:Notice if application rejected
(4) The Minister must give notice without delay to the applicant of any decision to reject the application.
Marginal note:New application
(5) If there has been a material change in the applicant’s circumstances since their last application under subsection (1) was submitted, he or she may submit another application.
Application for a Certificate
Marginal note:Mistaken identity
9 (1) Any person in Canada or any Canadian outside Canada whose name is the same as or similar to the name of a foreign national who is the subject of an order or regulation made under section 4 may, if they claim not to be that foreign national, apply to the Minister in writing for a certificate stating that they are not that foreign national.
Marginal note:Determination by Minister
(2) Within 45 days after the day on which the application was received, the Minister must,
Marginal note:Reasonable expenses
10 (1) A foreign national who is the subject of an order or regulation made under section 4 may apply to the Minister in writing for a certificate to exempt property from the application of the order or regulation if the property is necessary to meet the reasonable expenses of the person and their dependents.
Marginal note:Certificate
(2) If the Minister determines that the property is necessary to meet the reasonable expenses of the applicant and their dependents, the Minister must issue a certificate to the applicant.
Marginal note:Time limit
(3) The Minister must make a decision on the application and, if applicable, issue a certificate within 90 days after the day on which the application is received.
Offences
Marginal note:Offence and punishment
11 Every person who knowingly contravenes or fails to comply with an order or regulation made under section 4
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years; or
(b) is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or to both.
General
Marginal note:No civil liability
12 A person who, in relation to any property that is the subject of an order or regulation made under section 4, acts reasonably in taking, or omitting to take, measures to comply with the order or regulation is not liable in any civil action arising from having taken or omitted to take the measures if they took all reasonable steps to satisfy themselves that the property was property that is the subject of the order or regulation.
Marginal note:Existing equities maintained
13 All secured and unsecured rights and interests in any property that is the subject of an order or regulation made under section 4 that are held by a person, other than the foreign national who is the subject of the order or regulation, are entitled to the same ranking that they would have been entitled to had the order or regulation not been made.
Marginal note:Proceedings not precluded
14 The making of an order or regulation under section 4 does not preclude the commencement of proceedings under any Act of Parliament other than this Act, or any civil proceedings, in respect of any property that is the subject of the order or regulation.
Marginal note:Regulations
15 The Governor in Council may make regulations for carrying out the purposes and provisions of this Act.
Review and Report
Marginal note:Review
16 (1) Within five years after the day on which this section comes into force, a comprehensive review of the provisions and operation of this Act and of the Special Economic Measures Act must be undertaken by the committees of the Senate and of the House of Commons that are designated or established by each House for that purpose.
Marginal note:Report
(2) The committees referred to in subsection (1) must, within a year after a review is undertaken under that subsection or within any further time that may be authorized by the Senate or the House of Commons, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committees recommend.
Marginal note:Review
(3) Committees of the Senate and the House of Commons that are designated or established by each House for that purpose may conduct a review concerning the foreign nationals who are the subject of an order or regulation made under this Act and submit a report to the appropriate House together with their recommendations as to whether those foreign nationals should remain, or no longer be, the subject of that order or regulation.
Related Amendments
1992, c. 17Special Economic Measures Act
17 (1) The portion of subsection 4(1) of the Special Economic Measures Act before paragraph (a) is replaced by the following:
Marginal note:Orders and regulations
4 (1) The Governor in Council may, if the Governor in Council is of the opinion that any of the circumstances described in subsection (1.1) has occurred,
(2) Section 4 of the Act is amended by adding the following after subsection (1):
Marginal note:Circumstances
(1.1) The circumstances referred to in subsection (1) are the following:
(a) an international organization of states or association of states, of which Canada is a member, has made a decision or a recommendation or adopted a resolution calling on its members to take economic measures against a foreign state;
(b) a grave breach of international peace and security has occurred that has resulted in or is likely to result in a serious international crisis;
(c) gross and systematic human rights violations have been committed in a foreign state; or
(d) a national of a foreign state who is either a foreign public official, within the meaning of section 2 of the Corruption of Foreign Public Officials Act, or an associate of such an official, is 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, the transfer of the proceeds of corruption to foreign states or any act of corruption related to expropriation, government contracts or the extraction of natural resources — which amount to acts of significant corruption when taking into consideration, among other things, their impact, the amounts involved, the foreign national’s influence or position of authority or the complicity of the government of the foreign state in question in the acts.
2001, c. 27Immigration and Refugee Protection Act
18 (1) Subsection 35(1) of the Immigration and Refugee Protection Act is amended by striking out “or” at the end of paragraph (b), and by adding the following after paragraph (c):
(d) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Special Economic Measures Act on the grounds that any of the circumstances described in paragraph 4(1.1)(c) or (d) of that Act has occurred; or
(e) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
(2) Section 35 of the Act is amended by adding the following after subsection (1):
Marginal note:Clarification
(2) For greater certainty, despite section 33, a person who ceases being the subject of an order or regulation referred to in paragraph (1)(d) or (e) is no longer inadmissible under that paragraph.
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