Foreign Affairs Committee on Dec. 8th, 2009

[The Chair, Conservative, Kevin Sorenson]

Good morning, colleagues. This is meeting 45 of the Standing Committee on Foreign Affairs and International Development on Tuesday, December 8, 2009.

We welcome you here. Today we're going right to committee business.

When we left off during committee business at the last meeting, Mr. Goldring had the floor, so we'll turn it back to Mr. Goldring.

[Peter Goldring, Conservative, Edmonton East, AB]

Thank you very much, Mr. Chairman.

As it's been a little bit of time since we had that meeting and discussion, I just wish to reiterate some of my comments to bring us up to date. This is relevant to the motion put forward by Mr. Dewar.

I'll just read that motion so that we have clarity on the issue:

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 Canadians 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 also want to reiterate my concerns for this motion. My concerns for this motion are on multiple levels.

First and foremost, to the first point, “to recognize its constitutional duty”, I disagree. I do not believe there is any reference in the Constitution of Canada, from its latest to its most primary elements--the capitulations of Montreal to the capitulations of Quebec City to the Treaty of Paris, furthermore, taking it all the way back to its basic, core roots. I intend to demonstrate that as best I can.

Also, on the “constitutional duty to protect Canadians abroad”, once again, I find no reference, from the information that I have, in the written Constitution or the implied Constitution, going back and channelling all the way back through all the written documentation. I'm going to be presenting and reviewing quite a bit of this.

The other concern I have is that on the basis of what I believe is misinformation, it also calls for “ordering the Minister of Foreign Affairs to give protection”. I take great umbrage to the idea and the concept of ordering constitutional application when it is not there and ordering the Minister of Foreign Affairs to somehow subscribe to something that is not there.

I believe, in the context of this motion, that my concern is for the greater good. And I hope that people don't feel that I'm making an objection to this and raising this as a frivolous and vexatious factor. I'm taking that wording, of course, from the other bill we're working on, Bill C-300. But I do want to draw the parallel with that. The parallel is that as a government, and certainly one in a minority government position, we are vulnerable to motions and bills that have serious problems. Of course, being in a minority government situation, I hope people can understand that we have a duty to the citizens of Canada to stand up and speak out and try to effect change as best we can in a minority position. With that, I want to be at least very thorough in the discussion and in the discussion about my concerns with this motion.

There is an object lesson here, too, for Bill C-300 as well as for some of the other bills, frankly, that are in front of Parliament. They are bills that under a majority government would never see the light of day. But in a minority government situation, they might be forced through by an overly eager cabal of opposition parties in an attempt to embarrass the government more than to bring forward good legislation. We certainly have been witness to and have been talking to many witnesses on Bill C-300. here in committee. We're hearing not only from witnesses from the major mining sector but also from people who represent the major mining sector and were very prominent politicians in their own right.

I refer, of course, to the ambassador to the United States, a Liberal, and Pattison, who was a Liberal minister. They abhor what is happening in the opposition party's ranks in trying to bring through Bill C-300., which is so flawed as to be dangerous to--

[Paul Dewar, NDP, Ottawa Centre, ON]

On a point of order: relevance, Chair.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Mr. Goldring, we try to give as much leeway as possible, but try to keep it specific to the...fairly to the motion; I know you are trying to bridge, or to...

[An hon. member]

Filibuster.

[The Chair, Conservative, Kevin Sorenson]

It is a point well taken. It is a point taken.

[Peter Goldring, Conservative, Edmonton East, AB]

Well, thank you very much. I appreciate drawing attention to the relevancy. I certainly would draw the relevancy to the issue that is right here with this motion.

This motion is written in a fashion that impinges and implies...or it doesn't imply; it calls for the government to do things that are not in the Constitution. And, of course, in other bills that we have seen before us here, too, they also imply, and instruct the government to do things that are extremely difficult to do and can imperil certain segments of society.

This motion here, in particular, I think, because of its written wording, certainly would not just imply; it would impact the Constitution and probably add to the unwritten constitutionality of our country.

So I take objection to it. I think that we as parliamentarians have a greater responsibility here to speak out when we do see things that are written in a fashion that could impinge on our constitutional rights at some time in the future, without having that full debate and discourse that constitutional change should have, involving all of the provinces and all of the territories of Canada to make the Constitution formal.

I would certainly say to Mr. Dewar that if he wished to change the Constitution, there is a written structure in order to be able to do so. I certainly do invite him to put forward the proposals to make those written changes in accordance with how the Constitution is written and its formulas for amending that Constitution.

So I would say from the onset that this motion is so grievously written that it seriously has to be spoken against. In the past session I actually was working my way through the charter to see what was in the charter that might be relative to this, just to give Mr. Dewar the benefit of the doubt that perhaps maybe there was some wording in here that might actually substantiate the wording of his motion. At that time I had gone through the charter paragraphs and I was up to article 6. I believe I completed number 6.

But I'm going to return again here, first of all, to reiterate the 1982 charter from its beginning, so that we have an understanding of how important this document is. It begins:

Canadian Charter of Rights and Freedoms

Constitution Act, 1982

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Of course, then it goes into the guarantee of rights and freedoms. I will begin my discussion on article 7, because I had left off with number 6.

Article 7 begins with the following:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Once again, I want to emphasize that this article very clearly is talking about in Canada. It is not talking about in Cuba, in Mexico. It's not talking about in other countries of the world. It's talking about the rights and freedoms that we hold close here in Canada.

As I said, this Constitution is the result of hundreds of years of other constitutional beginnings, and certainly the 1867 British North America Act. So this right here is very clearly and expressly for people living in Canada.

Once again, article 8 reads as follows:

Everyone has the right to be secure against unreasonable search or seizure.

Well, once again, it is in Canada and it draws out the question: What is unreasonable search and seizure? And of course, we go through these things every time we go through an airport and so on. There are certain provisos that make it reasonable to have a search--i.e., if we want to board a plane.

Of course, if we're looking at other countries...and who knows, we can look at... My friend Mr. Deepak has far more experience than I do. He has 180 countries on his resumé. He could be speaking about the various peculiarities of various countries and how their rules and laws are enacted.

But certainly, of the 35 to 40 countries that I have visited, I certainly am very much aware that every country has their peculiarities and their individual laws. And so should they. Every country should have their own individual charter of rights and freedoms, their own individual constitution, and we would hope that would be a constitution and charter rights that would be human-friendly, that would be friendly to their citizenry. That's why our forefathers spent so much time crafting our own constitution and bringing about this wonderful Charter of Rights and Freedoms, because it is important.

It goes on that everyone has a right not to be arbitrarily detained or imprisoned. Well that, to me, is very friendly and it certainly is a sensible thing to do--

[Paul Dewar, NDP, Ottawa Centre, ON]

On a point of order, Chair, Mr. Goldring seems to think that the charter was implemented in 1867. It was actually in 1982 we repatriated the constitution. He referenced--

[Peter Goldring, Conservative, Edmonton East, AB]

No, no--

[An hon. member]

It's a point of debate, and not a point of order.

[The Chair, Conservative, Kevin Sorenson]

I'll take that as a point of order.

[Paul Dewar, NDP, Ottawa Centre, ON]

Well, no, it's inaccurate. It's 1867; he's referring to our forefathers--

[The Chair, Conservative, Kevin Sorenson]

Order on both, okay?

I understand your correction there.

Continue, Mr. Goldring.

[Peter Goldring, Conservative, Edmonton East, AB]

I'm very sorry, I thought I was very clear from the first that I'm speaking about the charter, but I also referenced the 1867 Constitution.

[Paul Dewar, NDP, Ottawa Centre, ON]

You said our forefathers.

[Peter Goldring, Conservative, Edmonton East, AB]

So I would hope that we would take both as meaning that both form part of our Constitution, as they do. I will be going into the 1867 part of the Constitution after I continue and after I've spent some time here on the charter.

I suppose Mr. Dewar is right; I'm approaching this kind of backwards. I'm starting with the Charter of Rights of 1982 expressly because his motion is calling for rights, rights to protect. I am kind of working on this backwards because I am going to start with the Constitution or the Charter of Rights of 1982, but once I'm completed with that I'm certainly prepared to go into the 1867 Constitution to see what is there.

Furthermore, another one that perhaps should be gone through is the Canadian Bill of Rights of 1960 that was signed by the Right Honourable John Diefenbaker. I would certainly want to review that too, to see if there's any referencing in there that might have clarified Mr. Dewar's motion where he's suggesting that it's somewhere in the Constitution. Of course, I will want to be reviewing that in due time.

For Mr. Dewar's benefit here, I hope that you take the Charter of Rights of 1982, the 1867 Constitution, and indeed the Canadian Bill of Rights of 1962 all in the same kind of context and the same discussion.

Where was I?

Everyone has the right not to be arbitrarily detained or imprisoned. Once again, that to me is a Canadian right. If we look at some of the countries—I go back again to my colleague here in visiting some of the countries that are struggling in their democratic development—they don't have the luxury of some of these issues that we have here in Canada.

I refer to a visit I made to one of the countries. I'm not going to name the country; it would be unfair. Thirty years ago I visited one country, and the right to be detained, the right to justice, the right to trial were explained to me. It was explained to me how they meted out their justice. How they meted out their justice for somebody who committed a crime—maybe it was an assault, or some type of a civil crime—was that the police in fact would pick that person up, beat that person up, throw them in jail, and throw them out on the street in the morning.

You say, “Well, that's pretty brutal. Why would they do it that way? Why don't they have and subscribe to a charter of rights?” In a very poor country, they have no money. It serves no purpose to fine somebody, because that person cannot pay a fine. They cannot afford to keep a person in jail, because they have to feed that person in the jail. Consequently, their laws, their sense of justice, because they have no other means, involve doing something that we would consider extremely harsh, meting our their justice. But what else do they do? Do they fine a person as we do and send them home? Well, no, there would be no retribution, there would be no control on their crime, so they handle it in different ways.

We would hope that many of these countries, too, once they attain a certain sense of economy and as they start to improve their lifestyle, could participate in wonderful documents such as we have here with the Charter of Rights and Freedoms. So it is something where, while we have the discussion here in this room, it is certainly relative that many countries around the world do not have the luxury of this, or even, dare I say, the luxury to be able to sit here and talk about this wonderful charter.

Under article 10 of the Constitution, everyone has the right on arrest or detention to be informed promptly of the reasons therefor. Again, I've visited countries where people do not have that luxury. When I visited, for example, Haiti and we visited the prison there—we visited with other members here—we saw there were some people who had been in detention for a year and a half and had never been charged. I'm sure there are many other countries around the world, too, that have the same difficulties.

So it's rather a luxury that we have here. I think we should appreciate this luxury and be cognizant that we can't expect other countries to support Canadian law. The idea that our government can ask other countries to give Canadians preference over their own citizens, in their own countries, is another reason I believe this motion to be totally unworkable and wrongly written.

Article 10 in the Charter of Rights says that everyone has the right on arrest or detention to “retain and instruct counsel without delay and to be informed of that right”.

Once again, we can go around the world and ask what countries have subscribed to charters and rights such as this. Of the 200 countries my colleague has visited, how many have a charter similar to this? Even if some countries have enlightened laws, do all countries? Of course not. But this motion isn't saying “some countries”, it's saying “all countries”.

We have a situation that it is unworkable. It orders the minister to give protection. You may be ordering a minister to give protection in countries that have virtually no laws, lawless societies. And what form of protection? Are we to send in the Snowbirds? What form of protection is it that you're ordering the minister to give to Canadians who are in distress in foreign countries? There is great difficulty in defining what should be happening, and how it should be happening.

Also under article 10 we find it said that everyone has the right on arrest or detention to “have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful”.

But what's considered timeliness in Canada does not hold throughout the world. How are we going to interpret what is timeliness in the 200 nations of the world? Who is going to interpret that? Is there going to be an instruction to the Minister of Foreign Affairs because some other jurisdiction has a timeliness problem? Is that what we're saying here? That's impossible to do.

Then there is article 11, which says that any person charged with an offence has the right “to be informed without unreasonable delay of the specific offence”.

I want to reiterate my concern that we're talking about every country on earth. We're talking about 200 countries, 200 institutions, 200 judicial systems, a whole gaggle of ways of looking at things. You're also talking about Sharia law, which is recognized in many countries. We find problems with that system here in Canada. So whose laws are going to take precedence? Why? How can the Canadian officials, and particularly the Minister of Foreign Affairs, impose our law on the rest of the world? How is he going to do that?

Article 11 goes on to say that any person charged with an offence has the right “to be tried within a reasonable time”.

We have an opinion here in Canada of what a reasonable time should be. I wonder what the reasonable time would be in Cuba. What about Mexico? What would a reasonable time be in some of the countries that my colleague has visited? There are 200 countries and every one of them would have a different opinion on what a reasonable time would be. So it becomes an impossible and unworkable affair.

As well, any person charged with an offence has the right “not to be compelled to be a witness in proceedings against that person in respect of the offence”.

Once again, this is the Canadian charter. It's not international. It's an opinion put forward that Canadians subscribe to. It's not, nor can we ever expect this to be, an opinion put forward by Mexico and how their charter would be.

It might be of interest to look at other countries' charters--if they have them--to see how they read, how they're worded, and how they're described. I would dare say that there might be a lot of similarities, but I would also be very concerned that there would not be. They probably would be quite different than this because they have different circumstances.

We have to be cognizant of the fact that asking simplistically that not only the Constitution of Canada be applied internationally, but also, simplistically, that the Minister of Foreign Affairs enter into those countries and protect Canadians to the level of the Canadian Constitution in a foreign country, is a very big concern.

Again, any person charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.

That might be the case, once again, in Canada, but I can see different scenarios in other countries where it could be different. There could be military law. As I said, there could be Sharia law. There could be other forms of governing. They have different systems in different countries.

I can see where it's a nice sentiment to be able to say that other countries should be subscribing to these types of sentiments, but perhaps they have some reasoning why they cannot. Maybe their culture is different and they have different ways of looking at issues. Certainly it's a sentiment that other countries should be following, but do they? I don't know. But to expect that from the Canadian foreign affairs minister, to protect Canadians to that, is awfully presumptuous.

Also, any person charged with an offence has the right “not to be denied reasonable bail without just cause”.

Well, what's reasonable? And what are we talking about? Are we talking about Canadians in a foreign country? You're expecting the foreign affairs minister to fly into that country and protect that Canadian because somebody--some other Canadian--has decided that it's unreasonable bail and it's without just cause? Is that what we expect Canadians to do? Is that the job of the foreign affairs minister to fly into a country and argue the fact that the bail is a little high, the bail is a tad high here? Is that the job of a foreign affairs minister? Maybe it's not in the right currency. Who knows? Maybe it's problematic. Maybe the bail is unreasonably low. That would be an interesting case for the foreign affairs minister to fly into a country to say that the bail is unreasonably low.

I'll carry on. Any person charged with an offence has the right, and I quote,

except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.

Once again, we go into the basics here. That's why I have a problem with this motion. I mean, I can go through this, and I will. I will be going through article after article.

It's not just that this motion is an affront to the Constitution, it affronts practically every article in it, because, once again, we're saying “except in the case of an offence under military law”. This is the Canadian Constitution. How could you possibly apply that in the 200 countries of the world? How can you possibly?

How can you order the Minister of Foreign Affairs to give protection under these articles in foreign countries? It's an impossible situation, but this is calling on Parliament to order the Minister of Foreign Affairs to do so.

Now, we also have this:

Any person charged with an offence has the right (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.

If anything gets close to this motion, it might be this one, but it's speaking of accepted international law. It's speaking of Canadian or international law. It is not speaking of the laws of Cuba, the laws of China specifically; maybe it's speaking about the United Nations' understanding. It's not speaking about the laws of 200 nations of the world. It's speaking about international law, not another nation's law. That's where it becomes very problematic. If we're trying to direct protection for any Canadian citizen who enters another country, and not just protect that Canadian citizen, but simply order the foreign affairs minister to provide that protection, it goes beyond all comprehension on how that could ever possibly be done.

I'm wondering, Mr. Chairman, what people in other countries would think if we sent a foreign affairs minister into that country under the express order of government to protect that Canadian citizen under Canadian law, the fact that we're usurping their sovereignty, their laws, and we're trying to say that our laws of the charter of 1982, our laws under the Constitution of 1867 supplant laws that China maybe has had for 2,000 years. How can our laws of 150 years take precedence over those of other countries that may have had their laws instituted and in place for billions of people? China has over one billion, and they've had laws and understanding. I'm sure their constitution goes back thousands of years.

Once again, it's awfully presumptuous that Canadian law and constitutional law would take precedence over any other country's laws. I wonder what these other countries would think about that. Certainly, sending in a foreign affairs minister to one of these countries to enforce Canadian law, what on earth is that saying about our foreign affairs? How is that going to impact other countries around the world? I would say that most countries would be very resentful of that type of action.

Again, I'll read this:

Any person charged with an offence has the right, if finally acquitted of the offence, not to be tried for it again, and if finally found guilty and punished for the offence, not to be tried or punished for it again.

We're looking at a sophisticated society with our courts and judicial system and policing and investigation techniques that are well developed. Certainly in Canada, under provisos like that, we expect to have thorough investigations, scientific work done, before we bring somebody before a court of justice, and a relative understanding that we have all the facts in place before we charge somebody.

Of the 200-odd countries around the world, how many of them have that type of a developed system? How many of them have the sophistication, the money, the wherewithal to do extensive and exhaustive studies before and during trying a person, while having the relative understanding and confidence that the judicial system has worked for the person and that the person has been rendered every aspect of consideration possible, and that science is behind that consideration? I dare say there are many countries around the world that wouldn't have that kind of confidence in their judicial system.

Even in the case of this article, which may sound very favourable to the Canadian justice system, they might want to take another look at it, if something came up that positively proved that their previous decision was wrong.

Once again, we have here a Canadian system, maybe a western ideal of a system, that might not be applicable under certain circumstances of nations and countries very much still in the development stage. They may have their own opinions on this, and they might like to have that second thought on a particular crime of a person.

For us to say that they should do this—and not only do this, but that they should never retry that Canadian in a foreign country, and to send in your foreign affairs minister to protect that aspect of it.... Once again, I think that many countries might not even allow that foreign affairs minister in—and maybe rightly so. They have their own sovereignty issues. Why should they allow somebody in to insist on protecting somebody when they would prefer to have their own judicial system deal with the issue?

Then, still under article 11, we read that any person charged with an offence has the right

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Once again, in Canadian law and Canadian justice that's probably a fair and reasonable thing to do, and probably in most western countries or most modern countries that type of commentary is relative, and probably fair. Once again, I go into the issue that in the Canadian justice system the person will have gone through a very in-depth study of and very in-depth deliberations on the offence that they've gone through. Chances are that they've gone through the process on it. It's only fair and reasonable, then, that if during that time of lengthy judiciary process the laws of punishment change, they be given the right to take the lesser punishment for it, if the judicial process is still ongoing.

But once again, if we go into other countries, to insist upon that from other countries is awfully presumptuous. I can't imagine the differing scenarios surrounding it, but different countries have different levels of sentencing and feelings about how it should be done.

We have once again the problematic area here that article by article, point by point so far, this motion—and I return to the motion again for a minute—which calls for a constitutional duty to protect, ordering the Minister of Foreign Affairs to go into the country and insist on this point by point, demands a thing that is impossible to do. To call upon the government to enact this motion—and I return again to the concern I have with a minority government here, that it's just too easy for the opposition parties to cobble together and agree to something that sounds reasonable on the surface but is in reality, article after article, point after point in the Constitution, from one end of it to other, an impossible thing to call upon—

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Chair, just on a point...

[The Chair, Conservative, Kevin Sorenson]

Is it a point of order?

[Paul Dewar, NDP, Ottawa Centre, ON]

Well, no. Mr. Goldring is suggesting that we're passing a binding motion here. It's a non-binding motion. Anything that's passed here is non-binding. This is just to clarify; I'm sure he's not suggesting that.

In your comments, you were suggesting that a minority government--

[The Chair, Conservative, Kevin Sorenson]

I was trying to listen as carefully as I could, and I think what he was trying to say is that the motion calls for the response of the Minister of Foreign Affairs...to act in a way that would get Canadians in distress—

[Paul Dewar, NDP, Ottawa Centre, ON]

Some support. Right.

[The Chair, Conservative, Kevin Sorenson]

—in a timely manner.

[Paul Dewar, NDP, Ottawa Centre, ON]

But the motion itself is non-binding, just to clarify.

Is that what you meant, Mr. Goldring?

[Peter Goldring, Conservative, Edmonton East, AB]

What I'm reading here is that your motion refers to a constitutional duty—the premise of the motion is in error—to protect Canadian citizens abroad. And it's calling upon the Minister of Foreign Affairs—in fact, it's ordering the Minister of Foreign Affairs—to give protection. And I find that just simply impossible to do.

[Paul Dewar, NDP, Ottawa Centre, ON]

But it's non-binding.