Foreign Affairs Committee on Nov. 5th, 2009

[The Chair, Conservative, Kevin Sorenson]

Thank you.

You have another minute, Mr. Lunney or Mr. Goldring.

[Peter Goldring, Conservative, Edmonton East, AB]

How many minutes do we have?

[James Lunney, Conservative, Nanaimo—Alberni, BC]

I have a number of questions, but I'll start with a short one, just to clarify something.

I've heard the term “diplomatic protection” used a few times, and, Mr. Beaulac, you just used that again. Are we referring to consular services being available?

I thought I heard you refer to diplomatic protection of citizens abroad. You're not equating that with diplomatic immunity, which applies to a country's representatives; you're referring to consular services abroad. Is that correct?

[Stéphane Beaulac]

I believe there are two points in your question. The concept of diplomatic protection, as part of the jargon in international law, includes consular protection.

The second point you're making is a separate issue in terms of the whole issue of diplomatic protection. A file can involve both aspects, but in my representations this morning I was speaking to the concept of diplomatic protection, which includes consular services.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Mr. Chair, and I thank our guests. I actually found this very informative.

I concur with you, Mr. Chair, that we request from them some of their prescriptive points, and I'm sure they will want to provide us with that.

We had an interesting presentation at the last committee meeting. One of the things that was established was that we don't have a law in place that obligates our officials to provide consular services. We've heard today that there is a need to ensure clarity. There is a need to coordinate services. There's a need to have some sort of understanding for Canadians when they are in those situations that Mr. Champ underlined and Mr. Neve certainly referenced in terms of the work that his organization has done, and that is really what has to happen here. We don't want to have at this committee wave upon wave of cases when we know there are prescriptions for these problems.

I'm just going to thank our guests for what they've done and look forward to any follow-up they have, because I think it is time that we do something, and I certainly mentioned that in the summer.

I'm going to take the opportunity, Mr. Chair, to move a motion. The notice of motion was provided to the clerk. It reads:

That, in the context of its study on the treatment of Canadians abroad, the Committee report the following recommendations to the House of Commons calling on the government to:

Recognize its constitutional duty to protect Canadian citizens abroad;

Enact legislation to ensure the consistent and non-discriminatory provision of consular services to all Canadians in distress; and

Create an independent ombudsperson's office responsible for monitoring the government's performance and ordering the Minister of Foreign Affairs to give protection to a Canadian in distress if the Minister has failed to act in a timely manner.

I would like to move that motion, Mr. Chair, and thank our guests for their interventions today.

[The Chair, Conservative, Kevin Sorenson]

Mr. Obhrai, on a point of order.

[Deepak Obhrai, Conservative, Calgary East, AB]

Just for clarification, if Mr. Dewar is moving this motion within this debate, does it mean we now immediately move into discussing his motion?

[The Chair, Conservative, Kevin Sorenson]

That's exactly correct.

[Deepak Obhrai, Conservative, Calgary East, AB]

So we now have witnesses sitting here and we are going to discuss a motion that they cannot speak to.

[The Chair, Conservative, Kevin Sorenson]

That's correct.

[Deepak Obhrai, Conservative, Calgary East, AB]

Am I right?

[The Chair, Conservative, Kevin Sorenson]

Yes.

[Deepak Obhrai, Conservative, Calgary East, AB]

So he's basically telling those witnesses to go home.

[Paul Dewar, NDP, Ottawa Centre, ON]

No, they can stay.

[The Chair, Conservative, Kevin Sorenson]

All right. According to our Standing Orders, any motion that comes out of the testimony of the witnesses is in order. This certainly does come out of what our witnesses have talked about today. You've heard the motion. Mr. Dewar has moved this motion. We now will allow Mr. Dewar to speak to the motion and we will debate the motion.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Chair, I won't take much time. I also want to ensure we get to other business.

After hearing our interventions today, after what we heard in the summer, after what we heard most recently, after we've had royal commissions, books written, etc., I think it is time for our government to act.

I want to say this directly to government members. I don't think there is anyone in government presently, or certainly on this committee from the government side, who would see this motion as any assessment of them, as a government, personally. I have said consistently at this committee that there needs to be something done when it comes to this issue, and without prejudice. Some of the cases that we've dealt with, some of the cases that have been in the media, some of the cases that have been studied, reported upon, go back to previous governments. So I implore members of this committee to recognize that. This is not about us as personalities. This is not about us as political agents, other than that we have an opportunity, as members of Parliament, to actually do something. The spirit of this motion is to ensure that we actually are able to take out the concerns that people had around perceptions of prejudice and the notion that we can do something.

I think what we heard today gave us some ideas on how we can enhance and support Canadians abroad. This motion's spirit, then—and I implore government members to understand this—is actually about a positive way forward; this is not about gotcha politics.

I hear Mr. Obhrai chuckling. I've talked to him personally about this, about the need to change things so that we can help Canadians abroad so that government is not put in this awkward position. And when you look at the scenarios we've seen, the structural problems that are there, there needs to be something done. That's what this motion is trying to provide in a positive way. It's a proposition motion; it's not an opposition motion, in the sense of, let's corner someone, let's try to make them look bad. There's nothing in this motion other than to propose something positive, to get something done on this issue, so that we don't have more people coming in front of this committee saying, we have problems getting services; we don't see our government supporting us.

That's the spirit of this motion. I look for all of your support, and I think this committee would be well served by having a motion like this supported by all members.

Thank you, Chair.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Dewar.

Mr. Abbott.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair.

First, I think it's really important that we put on the record some facts before we discuss this motion.

It's important to note that in 2008, Canadians made over 53 million visits abroad. For a country of 33 million to have 53 million visits abroad gives you an idea of how many of our fellow citizens are moving around the world. An estimated 2.5 million Canadians reside outside Canada.

This is another statistic that's really important to remember: every minute of every day, the consular service receives three requests for assistance at one of its points of service. Every 20 seconds, around the world, there is a Canadian asking for consular service. In 2008-09, over 1.3 million Canadians received assistance while abroad.

I'm making the point that we are dealing in this motion with some pretty rare exceptions in the service performed by the government--I'm referring to the previous government as well as to our present government--and the civil service. These numbers are very, very big.

First, I'll talk about my difficulty with the motion. It appears to be based on the false premise that there's a constitutional duty to protect Canadians abroad. There is not. There is a right of return found in section 6 of the charter. However, all citizens, including Canadians, are subject to local laws outside Canada. The provision of consular service is done exclusively in foreign jurisdictions, and the international framework governing those services is the 1963 Vienna Convention on Consular Relations. In the implementation of consular policies and the development of new policies, such as those that approach issues of citizenship, which is the basic determinate of consular service, our government compares notes with a number of key western partners. Those services would be broadly similar to our own.

Our Department of Foreign Affairs has a cadre of trained professionals in the field, with support from headquarters, who already work with local authorities in providing consular services. There are mechanisms in place to respond to Canadian citizens who are dissatisfied with the level of consular service they receive while abroad. Our government has implemented a 24-hour, seven-day-a-week emergency hotline. People can contact their members of Parliament or the Department of Foreign Affairs, or they're welcome to contact the mission on the ground.

Our government has improved resources for Canadians abroad. Resources are available to them if they feel dissatisfied with the level of service when they return home and want an investigation relative to their dissatisfaction.

I did a little bit of research on this, and I understand there is one country, Germany, that obliges its government to provide consular services. This is contained in the Law on Consular Officers, their functions and powers (Consular Law), 1974. The law is general on many points, as circumstances and the capacity to deliver would vary from country to country. For example, article 5 of their law provides that “Consular officers shall help Germans in their consular district requiring assistance if the state of this distress cannot be resolved in any other way.”

The obligation does not extend to Germans or dual nationals habitually resident in a foreign state. Assistance may be refused if the person has abused such assistance in the past. Paragraph 5 provides that the “nature, form and degree of assistance shall depend on the conditions prevailing in the receiving State.”

To the best of my knowledge on the research that has been provided to me, this is the only law of a nation that would have many of the same standards as ours, that actually would oblige the German state to provide consular services. But in fact,when you read through it, you see that it doesn't really oblige Germany to do that. It fundamentally would be equivalent to our current Canadian status quo.

What about the U.S.? There are references to an obligation under U.S. law for the government to provide consular assistance. This is far from straightforward. Section 1732 of chapter 23, “Protection of Citizens Abroad”, of title 22, “Foreign Relations and Intercourse”, of the United States code provides that the President is to demand the release of any U.S. citizen wrongfully imprisoned abroad and take measures short of war to affect the release of the citizen. The law dates, by the way, all the way back to 1868.

However, the U.S. Department of State Foreign Affairs Manual, volume 7, which is akin to our manual of consular operations, does not refer to any obligation under the U.S. law to provide assistance. Rather, it cites authority to provide such assistance. Part 7(1) of Title 22 of the consolidated federal regulations sets out the authorities for the consular protections of Americans abroad.

There are references in some commentaries to obligations to provide consular services contained in various provisions in U.S. law, but the initial research yielded only what is cited above.

Basically, this motion would go into realms that no other nation has gone to, save Germany. As I say, we've already seen that the status quo that we have in Canada does not differ, with any significance, to what currently exists in the great country of Germany.

So, Mr. Chair, I think this motion is based on a false premise. I can't see any way in which it would be workable. I have difficulty understanding how it would be of any great value. In some of the testimony that I heard earlier today--with the greatest respect to our presenters, who are people with good knowledge and experience--some of the actions that it seems to me were implied would be for Canada, in the case of Sudan, to send a force in and invade when there is a suspicion of torture, or issues like that.

How else could Canada have acted or reacted in a situation like that? I realize that is taking it to the absurd, but that is where we end up when we say we demand that this is going to happen or that is going to happen. We have to recognize that in the same way that Canada is a sovereign nation, we must respect the sovereignty of other nations, short of absolute force.

As a consequence, Mr. Chair, as I say, this proposal, this motion, is one that absolutely cannot be supported by the government.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Abbott.

Mr. Goldring, then Ms. Brown.

[Peter Goldring, Conservative, Edmonton East, AB]

Thank you very much, Mr. Chairman.

I too have a serious problem with the way the motion is worded. The implication here seems to be to do something, and I agree with my colleague: what would that be? Would that be to take the issue of concern to court and receive a judgment? Chances are there would be no representation in that foreign court. So what do you do?

I have concerns with the motion's wording “to recognize the constitutional duty”. Well, that is just completely in error. There is nothing in the Constitution to suggest that the Constitution applies. There's nothing to recognize. A better form of wording would be to “institute a constitutional duty”, but then that would be rewriting the Constitution, and I suppose that could be set aside for another day.

One of the witnesses here has referenced section 6, in particular subsection 6(1), which states that “Every citizen of Canada has the right to enter”--not return, but enter. Of course, it means they have the right to enter, but if they are being prohibited from leaving a foreign country by that country's national law, they will have the right to enter Canada only after that national law has been dealt with. There's no constitutional duty here for Canada to take its charter of rights internationally and somehow have this charter of rights supercede the laws of every country on earth.

Also, for the follow-up section in here--

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Chair, on a point of information, if we could establish--

[The Chair, Conservative, Kevin Sorenson]

Mr. Dewar, is this on a point of information or--

[Paul Dewar, NDP, Ottawa Centre, ON]

Yes. We're floating around the fact that the Constitution is being read a certain way in this motion, and I think it's a slam-dunk. We have lawyers here who could tell us what the actual--

Pardon me?

[James Lunney, Conservative, Nanaimo—Alberni, BC]

You took away their time already, Mr. Dewar, by putting your motion.