Selling Russian-owned assets to pay for Ukraine’s reconstruction may sound like a logical approach to restitution, but as the Canadian government gains new powers to begin this process, questions remain about how it will work, and whether some issues are headed to court.
C-19, the budget implementation bill, received Royal Assent last Thursday. Among its many measures are new powers to seize and sell off assets owned by individuals and entities on Canada’s sanctions list. While the new powers could be used in any international conflict, the Liberal government’s current priority is helping victims of the Russian invasion of Ukraine.
Canada’s stepped-up sanctions powers were discussed with U.S. Treasury Secretary Janet Yellen during her visit to Toronto last week.
“We think it’s really important to extend our legal authorities because it’s going to be really, really important to find the money to rebuild Ukraine,” Finance Minister Chrystia Freeland told Canadian and American reporters. “I can think of no more appropriate source of that funding than confiscated Russian assets.”
That sentiment was shared by Ontario Sen. Ratna Omidvar who proposed her own Senate legislation to enable similar asset seizures two years ago. At the time she was motivated to help the displaced Rohingya population by sanctioning corrupt generals in Myanmar.
“Kleptocrats must pay for their crimes, not through simply being sanctioned and their assets being frozen, but by their assets being repurposed and confiscated,” said Omidvar.
Although C-19 will work a bit differently than her bill, Omidvar still calls it a “good start” and supports the government’s move.
“The question no longer is ‘if we should confiscate,'” the senator said. “The question is: ‘How should we repurpose? … Who’s involved? How do we provide accountability? How do we protect ourselves?'”
Test cases expected
Although some jurisdictions, notably Switzerland, already confiscate and return certain illicit assets, this move by Canada — and potentially other G7 countries meeting in Germany this week — is unprecedented.
Allies agree on the imperative of cranking up more economic pressure on Russian President Vladimir Putin, but it’s still a risky play. Other hostile governments could seize Canadian-owned assets abroad in retaliation. It also may violate customary international law, such as the UN Articles on states responsibility.
The new powers target assets in Canada owned by an individual or entity on the federal government’s sanctions list. Previously, authorities could seize the proceeds of crime. With C-19, they can confiscate the assets of sanctioned individuals whether they’re acquired legally or illegally.
Is that fair? Omidvar anticipates the new powers being challenged in Canadian court. “I keep thinking we need a couple of test cases,” she said.
I’m very excited that Bill <a href=”https://twitter.com/hashtag/C19?src=hash&ref_src=twsrc%5Etfw”>#C19</a>, which includes the essence of the Frozen Assets Repurposing Act, has passed: <a href=”https://t.co/iR1O2oGSCA”>https://t.co/iR1O2oGSCA</a> Thank you to <a href=”https://twitter.com/wrmcouncil?ref_src=twsrc%5Etfw”>@wrmcouncil</a> <a href=”https://twitter.com/lloydaxworthy?ref_src=twsrc%5Etfw”>@lloydaxworthy</a> <a href=”https://twitter.com/AllanMRock?ref_src=twsrc%5Etfw”>@AllanMRock</a> & <a href=”https://twitter.com/fenhampson?ref_src=twsrc%5Etfw”>@fenhampson</a> for helping make this possible! <a href=”https://twitter.com/hashtag/S217?src=hash&ref_src=twsrc%5Etfw”>#S217</a> <a href=”https://twitter.com/hashtag/cdnpoli?src=hash&ref_src=twsrc%5Etfw”>#cdnpoli</a> <a href=”https://twitter.com/hashtag/SenCA?src=hash&ref_src=twsrc%5Etfw”>#SenCA</a> <a href=”https://twitter.com/SenLucieMoncion?ref_src=twsrc%5Etfw”>@SenLucieMoncion</a> <a href=”https://t.co/fCGgPpQR9c”>pic.twitter.com/fCGgPpQR9c</a>
The senator’s original bill proposed seizing and redistributing assets by court order, with a judge adjudicating concerns.
C-19 puts more power in ministerial hands, something that is “faster and nimbler,” Omidvar acknowledges, but also less transparent.
During debate in the Senate, Omidvar called on the government to take “politics out of the equation” so Canada would not be accused of inappropriate distribution of funds, “or worse, appropriation of funds for its own use.”
When asked about the legality of these new powers earlier this month, Justice Minister David Lametti said “you don’t have an absolute right to own private property in Canada,” and compared it to other processes of government expropriation.
Adrien Blanchard, a spokesperson for Foreign Affairs Minister Melanie Joly, told CBC News that “necessary checks and balances” are provided in C-19, including a formal judicial process to forfeit any asset.
“Procedural fairness was a key consideration in the development of these measures, and forfeiture proceedings before a judge are not automatic,” Joly’s spokesperson said.
Privacy rules limit disclosure
Omidvar’s bill would have created a registry with the name of any person or entity associated with a seized asset and its value. There’s no such disclosure requirement in C-19, so this could be a difficult process to track once it starts.
One or more court cases could trigger more public disclosure.
When the RCMP reported earlier this month that Canadian authorities have frozen the equivalent of $124 million in assets so far, it was unable to reveal what these assets are — cash, bonds, cryptocurrency, corporate shares, real estate or other property — because of the Privacy Act.
The minister of foreign affairs may issue permits on a case-by-case basis to authorize activities or transactions that would otherwise be prohibited, but only to people in Canada or Canadians abroad. When asked if any such permits have been issued related to Canada’s sanctions against Russia, Global Affairs Canada would not comment, again citing privacy concerns.
One of the prominent Russian oligarchs on Canada’s sanctions list, Roman Abramovich, holds around 30 per cent of the shares of Evraz, a global steel manufacturer that employs over 1,800 people at its facilities in Western Canada.
CBC News asked Evraz North America whether any of its shares or business properties were among assets frozen by Canada so far, but the company did not respond.
Separate from its powers to seize assets, the budget implementation bill also implements a publicly accessible beneficial ownership registry to make it easier to trace the ownership of anonymous shell companies. That could reveal more about Russian assets in Canada.
However, a business that’s registered provincially instead of incorporated federally would only appear in the national registry if provinces and territories agree to participate — if they don’t agree, there is a potential loophole, Omidvar warned her Senate colleagues during debate.
Who gets the proceeds?
Omidvar’s original bill would have required the recipient of redistributed funds to report back to a court on its use.
C-19 puts the minister of foreign affairs in charge of who gets the money and what happens to it.
“Operationalizing this is going to be a little bit of a challenge,” said fellow senator and former G7 sherpa Peter Boehm. “This is all very, very new.”
The former senior Global Affairs official suggests the government needs to get safeguards in place.
“What is the mechanism? To whom should these assets go? Do they go to individuals? Do they go to state actors?” Boehm said, noting that Canada may want to coordinate with other like-minded countries and UN agencies, like the World Food Program. “There are a lot of questions there… we need to know and the Canadian people would want to know where this money is going and if it’s being properly spent.”
The G7 considered asset seizures previously, Boehm said. He expects they could feature in at least behind-the-scenes conversations this week, if not the final communiqué.
“The leaders meetings internationally are timed, I think, very well,” he said.
“Ukraine, historically… has struggled with corruption issues,” said Rachel Ziemba, an adjunct senior fellow with the Centre for a New American Security who advises companies and countries on sanctions policy. “There have been a lot of strides made… but it’s still not at the level of a developed economy.”
Working through the International Monetary Fund, or setting up a trust fund that would vet recipients and add more reporting to the process could add more certainty, she suggested.
Russian central bank has reserves in Canada
Taxpayers in Canada, the U.S. or other countries don’t want to bear the full cost of this war, Ziemba said, but as governments embark on asset seizures they also have to be concerned about the message it sends on what jurisdictions are safe for foreign investment.
“There are a lot of legal questions ahead,” she said.
According to recent reporting on Russian Central Bank reserves, about $20 billion might be held in Canada — a far more significant sum in the context of Ukrainian reconstruction than the $124 million in frozen assets disclosed so far.
“The Russian Central Bank and some of its investment funds over the last decade [were] really focused on trying to reduce its exposure to U.S. dollars,” Ziemba explains. Canadian reserve assets and government bonds were attractive because they were both stable and got more yield than comparable investments in Japan or the European Union.
In other words: a small slice of Canada’s debt is held by Russia. “The only saving grace is that the amount they have is not so much they can hold much leverage,” Ziemba said.
Russia’s central bank is on Canada’s sanctions list. Should these reserves be seized and handed over to Ukraine too?
Yellen’s argued against doing this in the U.S., even though it could provide more funds to rebuild Ukraine.
“That might send a message to other countries that are investing in [international currency and bond] markets,” Ziemba said — think of China’s buying power, for example. “That, I think, is why the [U.S.] treasury department and even the [U.S. federal reserve] are wary of these moves.”
Are asset sales imminent?
Earlier this month, CBC News asked Prime Minister Justin Trudeau whether Canada intended to sell the full amount of assets frozen so far. He declined to answer, saying “there are lots of conversations going on” and Canada was “a long way” from deciding how proceeds would be spent.
But when the Senate foreign affairs committee pre-studied C-19 in May, officials said the government will move quickly.
“The intent is definitely to start identifying assets to pursue and to freeze and forfeit them shortly after Royal Assent is received for Bill C-19,” said Alexandre Lévêque, the assistant deputy minister for strategic policy at Global Affairs Canada.
In its report, that Senate committee said the government needs “to monitor on an ongoing basis the ways in which repurposed funds are used and to learn from the early examples of the new powers being implemented.”