Foreign Affairs Committee on Nov. 5th, 2009

[The Chair, Conservative, Kevin Sorenson]

Order.

Good morning, committee, and welcome back. This is the 38th meeting of the Standing Committee on Foreign Affairs and International Development. It is Thursday, November 5, 2009. Today we are going to continue our study on the treatment of Canadians abroad by the Government of Canada.

From Amnesty International we have Alex Neve, the secretary general. Welcome back.

From the University of Montreal we have Stéphane Beaulac, professor of international law.

Appearing as individuals are Raoul Boulakia, lawyer, and Paul Champ, lawyer, with Champ and Associates. We look forward to your comments.

Before we begin, I believe Madame Lalonde has a point of order or something to say.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Mr. Chair, you will not be surprised to hear me say that I would like us to set aside 15 minutes at the end of the meeting to finally adopt my motion, which we have considered at the end of two other committee meetings.

[The Chair, Conservative, Kevin Sorenson]

Madame Lalonde, I'm going to give you 20 minutes.

[Some hon. members]

Oh, oh!

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Finally! Thank you.

[A voice]

You are generous.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Everyone will read about that in the papers...

[Some voices]

Oh, oh!

[The Chair, Conservative, Kevin Sorenson]

In Montreal, I'm sure.

Seeing how everybody seems to be getting along well here this morning, I'll see Mr. Obhrai--

[Deepak Obhrai, Conservative, Calgary East, AB]

Are we moving into committee business?

[The Chair, Conservative, Kevin Sorenson]

No, we aren't. Madame Lalonde asked that at the end we make sure we have committee business.

I will welcome your opening statements, and then please be prepared to take questions from members of our committee. This is a study that has gripped our committee somewhat since the summer. We were called back to discuss this issue. In addition to that, as a committee we asked to study it for four more hours. You are the last segment of what we're going to study, unless we decide to go into more studies later.

Welcome. We all look forward to your opening statements.

Mr. Neve.

[Alex Neve, Secretary General, Amnesty International]

Thank you very much, Mr. Sorenson, and good morning, committee members.

It's a pleasure to be in front of you again. It's particularly a pleasure to have an opportunity to share concerns and recommendations regarding an issue that Amnesty International has followed closely for quite a number of years now. Over many years there has been a growing number of high-profile cases that have highlighted many ways in which Canadians imprisoned in foreign countries face serious human rights violations.

The cases have also demonstrated that the responsibility for the violations lies not only with the country where the individual is detained, but may often involve the complicity or negligence of Canadian officials or the direct involvement of officials from third countries. Some of the cases have been quite complex in that regard. They've arisen in a variety of different contexts, including national security investigations, criminal charges, commercial disputes, and allegations of passport fraud.

The human rights at stake are serious, and the violations experienced by a growing number of Canadians have been severe: torture, mistreatment, arbitrary arrest, discrimination, unlawful imprisonment, the possibility of the death penalty, denial of consular rights, access to legal representation, contact with family, and others. The range of countries is also considerable: Syria, Bulgaria, Egypt, Saudi Arabia, Ethiopia, Jordan, China, Iran, the United States, Kenya, Sudan, and others.

Many Canadians who have found themselves in such situations have eventually been released from imprisonment, sometimes after many long years, and have been able to return to Canada. That's often come about only after considerable and sustained public pressure and media attention.

Some of their cases have been examined in depth, including through two high-profile judicial inquiries, various court cases that are under way in Canada and abroad, media coverage that at times has been extensive, documentaries, and now a number of books.

Their names and tragic stories have become all too well known to Canadians: Maher Arar, Abdullah Almalki, Ahmad El Maati, Maziar Bahari, William Sampson, Abousfian Abdelrazik, Arwad Al-Boushi, Kunlun Zhang, Michael Kapustin, Suaad Mohamud, and others.

There are also those who did not come home. I recall the tragic death of Canadian-Iranian photojournalist Zahra Kazemi in Iran in 2003 after she was brutally tortured and raped in Iran's notorious Evin prison.

Other Canadians still languish in foreign prisons where they face ongoing serious human rights violations and where at the moment there appears to be little prospect of release. I very much want to remind the committee today of Huseyin Celil, sentenced to a life term in China; Bashir Makhtal, sentenced to a life term in Ethiopia; Mohamed and Sultan Kohail, facing the possibility of execution in Saudi Arabia; and Omar Khadr, facing ongoing legal limbo and injustice at Guantanamo Bay. All have experienced torture or ill treatment, all have faced profoundly unfair trials, and all have raised concerns about the inadequacies of Canadian government efforts to defend their rights.

What has become abundantly clear over many years now is that Canadian laws, policies, and institutional arrangements do not adequately safeguard the rights of Canadians who find themselves in these circumstances.

I'd like to quickly highlight three key areas where Amnesty International believes change is sorely needed: complicity before detention, meaningful protection during detention, and access to justice after detention.

Let me begin with concerns about complicity before detention. There have been frequent and very disturbing recent revelations about the ways in which the actions of Canadian officials, including the RCMP, CSIS, and Foreign Affairs, have directly contributed to the human rights violations Canadians have experienced in other countries. Those concerns have been confirmed through two judicial inquiries, various court proceedings, and information that is now clearly on the public record.

It is not enough to condemn or regret complicity. Legal and institutional changes should be put in place to guard against such complicity in the future.

One of the most significant proposals in that respect is Justice Dennis O'Connor's recommendation for a comprehensive new model for ensuring proper review and oversight of Canadian agencies involved in national security cases--an area where concerns about complicity are commonplace.

Justice O'Connor laid out the proposed new model in a major report released in December 2006 as part of the Maher Arar inquiry. But close to three years later there have been no steps taken to implement the new model, and the government has not yet indicated its plans in that regard.

Amnesty International's first recommendation is that the model for a comprehensive review of agencies involved in national security activities should be implemented without any further delay.

Justice O'Connor had a wider set of recommendations as well, all directed toward minimizing the likelihood of Canadian complicity in human rights violations of Canadians detained abroad and strengthening the quality of consular assistance provided to detained Canadians. Three years later, however, there has been no public reporting as to the progress and details of implementation of those recommendations. A public progress report is urgently required.

Let me move on to the second phase: concerns about meaningful protection during detention. Whether or not there has been Canadian complicity in the circumstances leading to their imprisonment, Canadians detained abroad often find that Canadian officials are unable or unwilling to offer them meaningful protection once they are detained. Canadian officials will often weigh the pleas for forceful intervention in the case against other foreign policy considerations Canada faces with the country concerned, including trade, investment, and security cooperation.

In some cases, the fact that the Canadian involved has dual nationality constrains Canadian diplomacy. Sometimes Canadian officials exert considerable effort to no avail, because the foreign government is indifferent or even hostile to Canadian overtures. Other times officials turn their backs, even when it is clear that minimal effort would almost certainly make a difference. Far too often officials fail to consider innovative strategies, such as calling on other governments to assist in Canada's efforts or making greater use of multilateral bodies to raise the case.

Responsibility for overseeing the Canadian government's efforts on behalf of Canadians detained abroad lies with the consular services division of the Department of Foreign Affairs. It is not an independent body and is therefore subject to various political considerations that may occasionally limit or shape their efforts. We believe it is time for reform that makes it clear in Canadian law that consular assistance is a right and that will guard against the possibility of consular assistance being withheld or minimized because of other considerations.

We first recommend, therefore, that Canadian law be amended to establish that all citizens of Canada who are imprisoned or face human rights violations in other countries have a right to receive consular services and protection from the Canadian government.

Second, we recommend that an expert ombudsman or other independent office be established to which Canadians detained or facing human rights violations abroad may appeal when they do not receive sufficient support or protection from the Canadian government.

Last, what about after detention? Even once Canadians detained abroad have been released and returned to Canada, the violations of their human rights often continue. This very much includes an inability to seek and obtain a remedy for the violations they have experienced. The right to a remedy for serious human rights violations such as torture is itself an internationally recognized right. For Canadians who have experienced violations in other countries, this means they should be able to seek redress and compensation from those foreign countries and, when there is Canadian complicity, from Canadian officials as well.

In most cases, because of the nature of the justice system in the country concerned, the prospect of turning to foreign courts for compensation is an illusion at best. Understandably, therefore, Canadians need to be able to make use of the Canadian court system to pursue redress from foreign governments. Canadian law, however, generally makes that impossible. Canada's State Immunity Act shields foreign governments from lawsuits in Canadian courts unless the case involves a commercial dispute. This is not defensible. It should not only be open to Canadians to sue foreign governments for breach of contract; they should also be able to pursue compensation when something as serious as torture is on the line.

There are a number of court cases challenging this law, but this shouldn't be left to the courts. There is a role for Parliament to step in and make sure that act is amended.

There have also proven to be great difficulties in ensuring accountability for the role that Canadian officials have played in the human rights violations experienced by some Canadians detained abroad. Maher Arar's case is a welcome exception because he received compensation and an apology. Others are left to labour and struggle through complicated and lengthy court proceedings in an effort to possibly one day obtain some sort of compensation. We need a new approach to that as well.

I'll wrap it up here with that three-part agenda, which I urge the committee to think about very carefully in its deliberations. Action is needed before detention, during detention, and after detention to better protect the rights of Canadians who find themselves in these circumstances.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Neve.

Maybe I'll just remind everyone--and I think that was very good--that our committee has been very clear that we don't want to look specifically at individual cases; we want to be more broad about consular services. Naming various cases may be all right, but don't dwell on them specifically.

And you didn't, Mr. Neve, so thank you.

Mr. Beaulac.

[Stéphane Beaulac, Professor of International Law, University of Montreal]

Good morning. I am very pleased to have this opportunity to speak to you today. In the time that is allocated to me, in the next 12 or 15 minutes, I would like to do two things: first, talk about the Hague Convention on International Child Abduction; and second, address the issue of diplomatic protection within international law and Canadian law, along with the present day notion of duty to protect.

First of all, let me speak to the Hague Convention. Last Tuesday, one of the witnesses gave a good overview, and in particular spoke about his basic idea of the status quo and the reinstatement of the status quo with regard to child abduction. For my part, I would like to make three brief comments this morning concerning The Hague Convention.

First—this is an issue of general public international law—there is what is called the principle of reciprocity concerning international treaties in general. Here is what that means. In principle, since Canada is a participant in The Hague Convention, we have requirements with regard to other participants in the international treaty. However, Canada is not, strictly speaking, obligated to meet obligations under The Hague Convention regarding countries that are not participants in the treaty, including a number of Islamic countries such as Saudi Arabia.

With regard to non-member states, Canada might want to respect the obligations contained in the Hague Convention, whether out of goodness of heart or based on an erga omnes obligation, as this is known in international law jargon. However, Canada is not obliged to do so and insist on respecting the Hague Convention to justify a lack of action in a case involving children abroad. Simply put, that often appears to be an excuse, a smoke screen.

That brings me to my second point concerning The Hague Convention, i.e., the explicit exception to the status quo principle contained in article 13 of the convention, which states the following:

Notwithstanding the provisions of the preceding article, [...] is not bound to order the return of the child if [...] b) [...] there is a grave risk that his or her return [maintaining the status quo] would expose the child to physical or psychological harm [...]

Essentially, that means that the principle of status quo is not absolute. In a case involving children abroad, it is all very well for Canadian officials to invoke The Hague Convention out of the goodness of their hearts, but they should do so properly, by alluding to the general principle of status quo, but also—and this to me is crucial—by referring to that major exception that is in article 13 concerning the risks to the child.

This brings me to my third point with regard to The Hague Convention. To make it as simple as possible, I would say that treaties in international law, like provisions in domestic law, are not used or interpreted in a vacuum; they must be used within a given context. For us, that means that The Hague Convention must be interpreted, if we choose to do so, in light of the International Convention on the Rights of the Child—the most important piece of legislation in international law on the protection of children. Its guiding principle is the notion of a child's best interest. Consequently, all decisions affecting children should be made by keeping in mind their best interest. In concrete terms, I would suggest that the basic principle of The Hague Convention on the status quo is adequate, but it must be understood and applied together with the notion of the child's best interest. In my opinion, that means that the article 13 exception concerning the risks to the child should be taken into account.

The issue should be taken with the utmost seriousness. You will agree with me that the best interest of children depends on it.

Obviously I'll be glad to come back to all three points during the discussion.

The second part of my presentation deals with diplomatic protection. At the outset, I would like to point out that diplomatic protection is a concept of international public law that applies when states have to deal with the files of their citizens abroad. Diplomatic protection has long been enshrined in international law. It was first articulated in 1924, in the Mavromatis case.

Does international law contain a right to diplomatic protection? The answer is yes. To whom does that right belong? It belongs to the state, and not to its individual citizens. In other words, it is a traditional position in international law. A state's own nationals are not entitled to an enforceable diplomatic protection before an international judicial body. However, if that right does not exist in international law, could a Canadian citizen still invoke the right to diplomatic protection? That is where things get a bit complicated. The answer is yes, in accordance with the sovereign state's domestic laws, in this instance, Canadian domestic law.

Here is how, in the Barcelona Traction case, the International Court of Justice explained the situation:

The municipal legislator may lay upon the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand the performance of that obligation, and clothe the right with corresponding sanctions.

In other words, a national from a sovereign state can claim the right to diplomatic protection before a national tribunal, pursuant to domestic law, not international law. In the case of Canada, that would be pursuant to Canadian law and the Canadian Charter of Rights and Freedoms.

With regard to Canadian domestic law, as was explained to you last Tuesday, diplomatic protection and issues of international relations in general fall within the royal prerogatives of the Crown. Generally speaking, the government has full leeway in the matter. Nevertheless, do Canadian citizens have the right to diplomatic protection? That was perhaps not the case in the past, but it certainly is today. That is the position that I and others defend, in light of the Canadian Charter of Rights and Freedoms and recent judicial decisions, particularly in the cases of Abdelrazik, Ronald Smith and Omar Khadr. Canada is not the only country to defend that position. Germany and, more recently, South Africa have recognized the national right to diplomatic protection.

Canada—and this will certainly be confirmed by the Supreme Court in the second phase of the Khadr case— has the duty, no less, to protect its citizens abroad, and therefore to grant diplomatic protection. Obviously, certain conditions have to be met, in particular having exhausted all local recourse. The duty to protect is based on the Canadian Charter of Rights and Freedoms. Under those conditions, the government does not have carte blanche within those proceedings. It must respect its minimal obligations to protect its citizens abroad.

Unlike my colleague from the University of Ottawa, Amir Attaran, I do not think it necessary to adopt a new law on the protection of Canadians abroad. As was confirmed this morning, that is also the position defended by Amnesty International. That could be done, but it is not necessary. How come? Because we have the Canadian Charter of Rights and Freedoms, an act that is above all other legislation and that already includes the duty to protect. It needs to be articulated. The Supreme Court will certainly help us clarify that duty to protect those Canadian citizens abroad whose lives, security or freedom are endangered. Those terms are an obvious reference to section 7 of the Canadian Charter of Rights and Freedoms.

Is the duty of diplomatic protection an obligation of means or an obligation of result? Given the legal foundation that is the Canadian Charter of Rights and Freedoms, many of us think that the duty to protect is today an obligation of result. It is more than doing one's best: the appropriate recourse has to be obtained under the circumstances. The result is often quite simple. It is a question at the very least of making a request and deploying all efforts possible to repatriate the Canadian citizen facing problems abroad.

I would like to clarify the following: I am not claiming that the Canadian Charter, as the legal foundation for Canadians' right to diplomatic protection, is applicable on foreign soil. It can be, but under exceptional circumstances. There is no doubt that the Canadian Charter applies on Canadian soil. The decisions of the federal government concerning cases dealing with the treatment of Canadian citizens abroad are made in Canada, in Ottawa. According to that logic, there is absolutely nothing that justifies the government's exemption from the application of the Canadian Charter of Rights and Freedoms as part of its decision-making. In my opinion, it is therefore not an issue of extraterritorial application of the Canadian Charter of Rights and Freedoms. The charter applies in Canada to people who make decisions regarding diplomatic protection in Canada.

Lastly, when I say that there is a duty to protect Canadian citizens abroad under the Canadian Charter, and that that dictates the measures to take to ensure the well-being of our citizens and that there is an obligation to achieve results, this causes no conflict with foreign law. It is basically a question of national law that concerns our federal government, that is the decisions and measures taken by Canadian authorities under Canadian law and not under foreign law.

Allow me to conclude on this point. I would say unreservedly that invoking foreign law to justify the inaction and insufficient action of Canadian authorities in cases of diplomatic protection is too often used as a pretext. This is a dilatory measure, as one would say in the legal field, and it should be denounced as such.

Thank you for your attention. I will be pleased to answer all your questions during this discussion.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Merci beaucoup, monsieur Beaulac.

Mr. Boulakia.

[Raoul Boulakia, Lawyer, As an Individual]

Thank you for the opportunity to speak to you.

I think all Canadians are gripped by and very concerned with the whole question of how we can improve consular services to Canadians abroad. What I'm trying to do today is propose some simple and practical measures that would be useful to avoid problems in the future and to resolve problems quickly or effectively.

While these measures could be incorporated within and protected by legislation—and I do believe legislation would be helpful—implementation of the following measures can be done as a matter of policy. So in a sense I agree with Professor Beaulac that you can do a lot without legislation. You can do a lot immediately. Ultimately what we do really reflects our will to try to make things better, and we should all work together for that.

The first point I would make as a matter of policy is that we need clear authority in one ministry for dealing with Canadians or alleged Canadians who are overseas. One ministry must be in charge of assuring the positive rights flowing from the charter, which include a citizen's right of return to Canada, under subsection 6(1); the right not to be unjustly deprived of liberty or security of a person, under section 7; and the right not to be subject to cruel or unusual treatment.

Foreign Affairs has authority over Passport Canada, and it also has an important authority to give diplomatic assurances to foreign governments, which is often necessary to ensure or negotiate for a fair trial, for a release from detention, or for guarantees of evacuation from a country. Foreign Affairs should be in charge of all efforts to assist Canadians abroad and must have greater authority and the lead over the Ministry of Citizenship and Immigration and the Ministry of Public Safety.

Neither of those two latter ministries in practice work together on files, and neither of them has the clear mandate of assuring the positive rights of a citizen. Very specifically, the mandate of Public Safety is primarily detection of impropriety or abuse, but not assistance in resolving the person's situation. So you have to have one ministry that takes the lead, where the buck stops with them and they're in charge, to make sure we focus on seeing whether there is a way to resolve a problem for a person.

Sanctity of diplomatic assurances is very important. Diplomatic assurances must be protected from negative comments in disputes with respect to an individual. When Canadians require consular assistance in the future, they will be undermined if comments made publicly imply that past diplomatic assurances made in order to evacuate a Canadian were false or are questioned.

It's important that when Foreign Affairs makes an assurance to a foreign government—for instance, that we have evidence that this person is not guilty of an infraction under your law, or we believe this person is a citizen and should be evacuated—the assurance made by Canada has to be treated as impossible to violate. Even if you could violate it or subvert it in a privileged context like discussion and litigation, it actually undermines the security of future Canadians, because why should governments believe Canada if we make assurances and then question them later?

We require independent perspective and advocacy to be inserted early on in the process. Groupthink takes hold when officials have a negative perception of an individual, and that can take hold for a variety of reasons because the function of the officials is primarily to detect abuse, or it can be simply because once the negative suggestion is made that this person is questionable, people can fear sticking out within the group as the one who's taking the risk of advocating for the individual.

That doesn't only extend to bureaucracy; it also extends to politics and to media. As a member of Parliament, if you go to bat for somebody who turns out to have been questionable, that can be a risk for your own political career.

Even within the media, many people are convinced that they shouldn't advocate for someone or talk about someone, because they think that if they knew the real story, they might realize that this person has some terrible cloud over them.

Once groupthink takes hold, even people who are well qualified within a department, very knowledgeable, feel intimidated about suggesting good ideas. For example, a law professor suggested DNA testing early on in the Mohamud case, and that was shot down as expensive or not worth it. When you're in a group and there's a current perception or decision that has to be justified, it's hard to stick out in that group and be the one person who asks why something else can't be done.

So in many group efforts, common sense just doesn't take hold quickly. I would suggest a citizen's advocate bureau that would be independent of the group. It could suggest positive rights and measures, and it could fearlessly advocate for the person concerned. The intake office could be located in Ottawa. In major metropolitan areas, counsel would be able to liaise with families or communities. This office would have to have access to privileged information, similar to the access given to the special advocate's office in the security certificate cases. It is possible for counsel to have a combination of independence and access.

One of the problems with special advocate work is that people have to go to what's unflatteringly described as “the bunker”, a closed office in Ottawa, to view privileged information. In the electronic age, there is no real reason why information shouldn't also be accessible in offices outside Ottawa. I would suggest a hub in Ottawa with intake officers where officials from a foreign government, Canadian government officials, or persons who are simply concerned about an individual can call in and report a problem that needs resolving. Lower-ranking intake officers could often resolve problems in-house. It would actually be a combination of independent and in-house. There are a lot of problems that could get resolved quickly and cheaply without turning into bigger problems. And that's better for everybody. But when a matter can't get resolved easily, you may require greater advocacy. You may even require access to the Federal Court for remedies, or you may have to deal with foreign or international law bodies.

Intervention would begin regardless of whether there was action or inaction. It begins based on need. The intake office would have to be staffed around the clock. Right now, Foreign Affairs is able to take calls in Ottawa at all times. In the Mohamud case, that did happen. But the catch is that if the people taking the calls at the consulate report a cloud of doubt or a problem, the supervisor immediately takes the word of the person he or she is supervising. So you just don't get out of a groupthink problem.

With respect to accessibility to the Federal Court, it must be possible to seek orders of mandamus and emergency remedies promptly. Now here is where legislative amendment would be needed, but the court should have the power of habeas corpus, which it does not have right now.

One of the reasons the Federal Court has to be involved or accessible to an advocate is that it's where you can get the remedies. It's also where privileged information can be reviewed. It's the chief justice of the Federal Court who can designate a judge to decide whether documents are privileged. There should also be a quick modality to get all the records on a person to the court right away so the court can review what should and shouldn't be privileged. Right now it's extremely slow getting anything released.

I would sum it up by proposing first, that Foreign Affairs and International Trade have a clear leadership role; second, that we have a sanctity to diplomatic assurance that gets greater respect in Canada; and, third, that there be a citizen's advocate bureau.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Boulakia.

I'd also like to remind those appearing here that if you want to submit something later, please do. I tried to write out the points you made. I thank you for bringing up the points about clear authority in one ministry and a citizen's advocacy bureau. If there are others we kind of missed or that you skipped over, please forward them.

Last, but certainly not least, is Mr. Champ, please.

[Paul Champ, Lawyer, Champ and Associates]

Thank you, Mr. Chair.

Mr. Chair, I want to thank you and the members of the committee for this invitation and the opportunity to provide you with some thoughts of the experience I have had with this issue of Canadians detained or imprisoned abroad. I've represented a few Canadians abroad, some well known and some less well known, and have come across similar experiences in those cases.

In my presentation, I'll try not to repeat some of the excellent points made by the other witnesses, and I will make a few points where I perhaps disagree a little.

Imagine your office gets a frantic call from a mother who says her son is working for a company abroad. He called her--and it was a 30-second call--saying he was arrested in this foreign country, and she doesn't know what to do. She called Foreign Affairs, and they said they'd let her know when they could. That call was six hours ago, and she's really concerned. This country doesn't have a great reputation for respect for human rights. Her son has medical conditions, and she's not sure if he has access to medication. She asks us what we can do.

This might not be fictional for some of you. The kinds of problems that are presented to your offices often have to do with federal legislation, employment insurance, CPP, or those kinds of things. I'm sure all of you have excellent assistants who know what do in those situations. They know how to assist constituents.

In this kind of a case, though, what do they do? I'm sure all of you get lost. You will ask yourselves who you know. Maybe some of you are fortunate to know Mr. Cannon personally and can make a call that way, or maybe you know the director general of consular affairs and you can make a call that way. There's nothing necessarily wrong with that. Unfortunately, the uncertainty and arbitrariness of the rights of Canadians detained abroad to some protection or consular assistance is very ad hoc, it's very arbitrary, and, at worst in many cases, it has been viewed as discriminatory.

The reason for that, it seems, is there are no specific laws or guidelines or standards governing the rights of Canadians abroad. I know Foreign Affairs has a manual, and it's probably been submitted to the committee. It's not always implemented quite that way, and it also doesn't seem to have any mechanism for overview or oversight or accountability to ensure it's being respected.

To go back to that fictional example, you're trying to help this mother, your constituent. She calls you the next day and says she has spoken to Foreign Affairs, that they are aware. They have confirmation from this foreign government that her son is detained, but they won't tell her anything because of the Privacy Act. They won't disclose information because they say it would violate her son's personal information.

Again, that's not fictional; that's the experience of a client. Foreign Affairs officials told her they couldn't tell her anything because that would be disclosing her son's personal information. I'll say right now I think that's just a way to deflect the responsibility of taking action. Because there are no other laws or mechanisms for oversight, those families have nowhere to go.

The next question is what should those rights be. The duty to protect is a great notion, but the way it stands in Canadian law is just a notion. I can't tell you how many times I've had Department of Justice lawyers tell me and tell the courts before me that there is a right; Canada has a right to intervene to assist Canadians imprisoned abroad, but there is no enforceable duty. That means it's discretionary, without any sort of standard whatsoever, and that's when we get into arbitrary and ad hoc responses to those situations where Canadians are imprisoned abroad and are at risk of serious human rights abuses.

Professor Beaulac, in his submission, suggested that the charter can protect Canadians in those situations. I can just tell committee members I wish that were the case. I represented one individual, Abousfian Abdelrazik, where we were successful in relying on the charter to obtain some relief, but it was on a very narrow issue about being able to facilitate his return to Canada. The right to return to Canada is very express in the charter. But on protecting Canadians who are in prison abroad and protecting them from perhaps violations of fundamental human rights abuses, I can tell you that the Government of Canada's position is that the charter does not apply in those situations, right now anyway.

So there has to be something else. There has to be some kind of codification, either in law or regulation, that requires Canadian government officials to take specific actions. The suggestion of an advocate who has access to confidential information is a sound one--or an ombudsman; I've heard that suggestion. That would be very helpful.

Another point I would like to make in my brief time is about what I've seen in some cases: the consular function sometimes is influenced or overridden by the concerns or priorities of other government departments or agencies. That was a concern noted by Justice O'Connor in the Arar inquiry. That is a concern I have seen in one of my cases where the consular officials were at times being misled by other government agencies or at other times were being influenced by other government agencies not to take action.

Mr. Chair, I know you were saying let's not dwell on specific cases, and I'll refer to one of my client's cases just to illustrate the point. When Abousfian Abdelrazik was arrested by the Sudanese secret police in September 2003, his family members were aware. They believed he had been arrested and they went to Foreign Affairs. Consular officials were telling them they had no confirmation from the Sudanese officials that he had been arrested. They continued to tell his family—both in Canada, where he had a wife and children, and in Sudan—that they had no information. While consular officials in Foreign Affairs were telling his family that, the documents show that at the very same time another branch in Foreign Affairs called ISI, or security intelligence branch, that deals with CSIS.... ISI and CSIS were in very close contact, and CSIS had told ISI, on the day Mr. Abdelrazik had been detained, that they were aware he had been detained and they were carrying on communications. In fact, Mr. Abdelrazik was interrogated in Sudan by CSIS officials, while at the very same time—in October 2003—consular officials were telling his family that the Canadian government had no idea where he was.

In my view, Mr. Chair and members, that is totally unacceptable. I think we can all agree that is totally unacceptable, but the question is what laws are there to prevent that from happening. Obviously, these government officials didn't think there was anything restraining them from acting in that fashion. There have to be laws that give guidance to those government officials that it is not right and that it is wrong, laws that provide protection to Canadians.

The other fundamental point has to be that all Canadians have the right to protection from abuses and mistreatment, fundamental human rights abuses. These aren't Canadians who are arrested in normal legal proceedings where the Canadian officials take a look at the situation—for example, when someone is caught perhaps with drugs on them and so forth. Obviously, Canadian officials will monitor that. But I'm talking about the more exceptional situations where a Canadian is imprisoned in a country that, for a variety of reasons, doesn't have the institutional capacity to have a properly functioning justice system and where human rights abuses are common just because the country can't stop them, or in other cases—such as Iran and, I would suggest, Syria as well—where fundamental human rights abuses are used systemically, and systematically by the states.

In those cases, the Government of Canada must intervene in a very strong fashion, I would suggest, and the level of intervention should be proportionate to the risk involving that Canadian. If it requires an intervention at the ministerial level, if consular officials on the ground assess or believe that a Canadian is maybe at risk of torture or is at serious risk of torture, I suggest there should be protocols, if not laws, in place that require the minister to intervene.

We are familiar with the Arar case. It took some time before the foreign affairs minister finally did intervene. Again, that was an ad hoc sort of situation where, as a result of public pressure, he took that action.

In Mr. Abdelrazik's case, again to illustrate a point rather than to dwell on the case--and I'm respectful of the time--we knew as well...I cross-examined the head of the mission, who told me that during Mr. Abdelrazik's second period of detention, in 2004 and 2005, Sudanese officials at that time completely stopped all visits. No one could visit him--consular officials couldn't visit him and his family couldn't visit him--for a period of six months. The head of the mission told me he believed at the time that Mr. Abdelrazik was likely being tortured. He told me under oath that's what he believed, but the question is, what did he do about it? He couldn't take any other actions.

Those are some of the considerations I wanted to raise to the committee, some suggestions, obviously not in the same systematic fashion as Mr. Neve and Professor Beaulac, but I do think it's an issue of concern to many Canadians. I hope the committee takes these concerns very seriously and makes recommendations to the government.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Champ, and indeed to all our witnesses.

We'll move into our first round, and we'll split between Mr. Patry and Mr. Pearson, please.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

Thank you very much, Mr. Chair. I would also like to thank our guests.

Mr. Neve, in the conclusion to your presentation, you set out three recommendations, including the right of all Canadians to receive quality consular services. You also mentioned the creation of an ombudsman position and you then spoke of detention.

I would like to come back to the creation of an ombudsman position. This is an interesting idea, but the applicable context of such a position is still very vague in my mind. In what circumstances do you believe it would be useful to have an ombudsman? What would his or her role be? Would there not be a danger that this person would interfere in the role of the Department of Foreign Affairs and in that of our courts? Is there another country that has an ombudsman in such circumstances?

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Patry.

Mr. Neve.

[Alex Neve]

Thank you for the question.

We're not wedded to the notion of an ombudsman per se. I think what we're recommending is that there needs to be an office of independent authority and independent powers. It could be along the lines of what you heard from Mr. Boulakia as well. I think he called it a citizens' advocate commission. I've heard it described in a number of ways--the office of the commissioner for Canadians detained abroad.

I think what we're looking for is someone or an office that has some authority, independent of the Department of Foreign Affairs, independent of consular affairs, because of the concerns you've heard from all of us about the ways in which other kinds of considerations, different strategies that other ministries may have with respect to a particular case, or even concerns about the ways in which other foreign policy considerations may interfere with government action on a case.

It's necessary that there be an independent body to whom individuals and/or their families can turn to enforce what you're hearing from all of us about the importance of recognizing this notion. Whether the charter does or does not adequately protect it already, I guess, is a debate, but a body that would be charged with enforcing this notion that there is a right to obtain meaningful consular assistance when you find yourself in this situation, and a duty on the part of the government to provide it, and that such a body would be imbued with powers to make sure that happens....

[The Chair, Conservative, Kevin Sorenson]

Mr. Pearson.

[Glen Pearson, Liberal, London North Centre, ON]

Mr. Patry was also asking about what other countries were doing, and that's where my question was going.

I know that Mr. Paradis, the former head of consular services, has suggested that not only an ombudsman might be part of the solution, but also an act that would protect Canadians abroad. Then he went on to talk about the Vienna convention for consular relations as a way in which...because obviously as a country we are changing as more and more of our people are travelling. I presume that's being faced by many different countries around the world. They also need a forum, not just Canadian services but consular relations with other countries must have a forum whereby they talk about these things.

I wonder if you could answer Mr. Patry's part about what other nations are doing. Also, what do you think about the idea of its being a convention and trying to establish something more credible?

[Alex Neve]

Off the top of my head, I don't know of another country that has an office or a body like what we're describing. I'm not saying that it doesn't exist. I'm not familiar with it. Maybe others are.

We totally agree that there is need for work at the multilateral level as well. A whole variety of international legal issues that arise in these cases are problematic. International law is by no means clear enough when it comes to issues around multiple nationalities, for instance, which very often arise in these kinds of cases. Sometimes it's put forward as more of an imagined obstacle than it is, but there are instances where dual nationality is a real concern. When you are dealing with someone with dual nationality, international law isn't clear enough with respect to the obligations and duties that arise in the consular area. That's sort of a bigger and longer-term strategy, I think.

Obviously, revisiting issues around consular relations at the international level and revising and amending international treaties is long-term and sometimes quite contentious work, but we certainly agree that there is a need on that level as well.