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.