Thank you very much, Mr. Chairman and honourable members of the committee, for your invitation to appear before this committee today.

I'd like to give you an idea of the perspective I'm bringing to the examination of Bill C-353. I'm a retired Canadian diplomat and an international law practitioner. My areas of past practice and expertise include international peace and security, UN charter law, the law of armed conflict and atrocity crimes, terrorism and transnational crime, human rights, economic sanctions, disarmament and non-proliferation.

Since my retirement, I've published on more effective implementation of the UN Convention against Corruption through the tracking, tracing, seizure and repurposing of assets. I've also carried out a number of projects for Global Affairs Canada on a consultancy basis. These include framing the mandate of an independent panel of experts to address the issue of arbitrary detention in state-to-state relations in international law; a study on the legal framework in which Canada carries out its consular activities, including in emergency and crisis situations; and a discussion paper on strengthening Canada's operational response capacity with respect to international hostage-taking.

I believe that's how my name came to the attention of the committee, but I'm not currently employed by Global Affairs. I'm speaking entirely in my personal capacity.

In the interest of maximizing time for questions, let me give you a brief rundown of my views.

Bill C-353 is a well-intentioned effort to address the operationally complex and sensitive issue of individual Canadians who fall victim, at times tragically, to forces beyond the control of the Canadian government. In practice, however, I believe the bill to be both unnecessary and possibly counterproductive. It seeks to emulate part of the U.S. Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, but without taking into account important differences in the legal, contextual and operational frameworks between the U.S. and Canada.

In Canadian law, as confirmed by this committee in its report on Canada's consular services in 2018, issues relating to national and international security and foreign relations fall under the Crown prerogative rather than under the control of Parliament. In November 2023, the Federal Court of Appeal summarized the proper exercise of this power as the “responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada's broader interests.” Hostage-taking clearly falls under that, as does arbitrary detention in state-to-state relations.

Bill C-353, while intended to strengthen the government's tool kit in responding to hostage-taking and arbitrary detentions, has the effect of legislating in areas of national security and foreign relations. The decision to apply economic sanctions under the bill is correctly left to the Governor in Council, as it is, for example, in the Special Economic Measures Act. Creating a specific legal framework for the imposition of sanctions in response to hostage-taking could exponentially increase domestic pressure on this government and future governments to do so in practice. This risks handing hostage-takers and foreign states precisely the leverage they want and driving up the stakes for victims by boxing in the government's response. I agree with previous speakers on that particular issue.

In the case of arbitrary detention by foreign states for political purposes, Canada already has the power to impose sanctions, if they are considered useful, under subsection 4(1.1) of the Special Economic Measures Act. For terrorist hostage-taking, financial dealings with listed terrorist groups and their members are already subject to prohibitions under the Criminal Code. In other words, we already have access to the tools that Bill C-353 purports to provide.

There are other concerns I have about the bill. It conflates terrorist hostage-taking and arbitrary detention in state-to-state relations and criminal kidnappings. That point has already been made. De facto, it mandates the government’s response to hostage-takings to include permanent residents, in respect of whom Canada has no standing under international law to exercise consular or diplomatic functions. Also, the statutory requirement to extensively share information with families could compromise operational or national security, although I certainly agree with others that we need to do more to deal with families appropriately.

The compensation of individual victims from seized state assets is potentially fraught. Canada is currently subject to a complaint on this very issue before the International Court of Justice in respect of the Justice for Victims of Terrorism Act.

The specific requirement for parliamentary reporting is redundant. This committee and NSICOP already have broad mandates to review government actions in this field. I would note that in 2022, NSICOP made recommendations on how Global Affairs could strengthen its response to hostage-takings. Legislative action was not among those recommendations.

In conclusion, there are clearly multiple areas at the operational level in which Canada's response to terrorist hostage-takings and arbitrary detention by foreign states could well be strengthened, streamlined, made more coherent and, particularly, better funded, but Bill C-353, however well-intentioned, is not the answer, in my view.

Thank you.

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