Judge rejects man’s bid to get off sanctions list

A former Ukrainian government official who insists Canada has unjustly kept him on its sanctions list has failed in his attempt to have the Federal Court order his removal.

Andriy Portnov, a former adviser to ousted Ukrainian president Viktor Yanukovych, was added to Canada’s sanctions list in 2014 after the new Ukrainian government accused Portnov and other officials of having embezzled state funds and transferred them out of the country.

Portnov, who served as Yanukovych’s adviser from April 2010 to February 2014, has always insisted the accusation is false, and has successfully gotten himself removed from sanctions imposed by the European Union, Switzerland and Norway.

Canada, however, has refused to remove Portnov from sanctions imposed under the Freezing Assets of Corrupt Foreign Officials Act, despite seven requests sent by Portnov to the governments of both Stephen Harper and Justin Trudeau.

In his application to the Federal Court filed in November 2017, Portnov called the accusations “politically motivated, unreliable and factually incorrect.” He didn’t have any assets frozen under the sanctions, but argued his presence on the list left him “publicly humiliated” and “negatively impacted” his political, business and personal relationships.

As part of the court case, Portnov filed documents from the Ukrainian government that said he was not the subject of any criminal convictions or proceedings. This included a letter from the office of the Prosecutor General of Ukraine, dated June 26, 2017, which said the 2014 accusation against him was “unreliable.”

But Global Affairs Canada said it received four letters from Ukraine’s embassy, most recently in July 2018, that led Canada’s government to conclude there was still an “ongoing investigation” by Ukrainian authorities into Portnov. The letters weren’t filed, but were described in affidavits by Global Affairs officials and in a letter from the office of Global Affairs Minister Chrystia Freeland.

“While it would have been preferable for the Respondent to directly place the letters from the Ukrainian Embassy before this Court, this failure does not alter the conclusions reached below,” Justice Michael Manson wrote in his Federal Court decision, dated Dec. 11.

Manson concluded that Canada acted reasonably and that the court would be overstepping its bounds by ordering Portnov removed from the sanctions list. He rejected an argument from Portnov’s lawyers that instead of simply accepting a foreign government’s assertion of wrongdoing, Canada must determine whether such wrongdoing actually took place.

“The purpose of the (sanctions legislation) is to enable states faced with an uncertain political situation to ask Canada to freeze property that may have been misappropriated by certain individuals until the situation has been restored and that state can obtain evidence and carry out investigations of these persons or property,” he wrote.

Manson did decline to award costs to the government, noting it failed to consistently respond to Portnov’s inquiries.