Foreign Affairs Committee on Nov. 5th, 2009

[The Chair, Conservative, Kevin Sorenson]

Another minute.

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

Just quickly, Mr. Neve, when you talked about meaningful protection during detention, you said that we need to develop some new innovative strategies. You kind of glossed over it, but I think you gave an answer, too. Do you have some more?

[Alex Neve]

I think one of the things we have often come across--and this goes back years in our work on these cases--is that there's often a lack of imagination as to ways in which other countries can be drawn into assisting Canadian efforts on a case. I'm not saying it never happens, but it doesn't happen anywhere near as much as we think it should.

Also, rarely, imaginative thinking about ways in which UN or other settings and other bodies within the human rights system or elsewhere could be used as well. This is all the more reason, perhaps, to create the ombudsman or citizens' advocate or some body that, among other things, would be charged with ensuring that some of those strategies are really given priority attention.

[The Chair, Conservative, Kevin Sorenson]

Madame Lalonde.

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

Thank you very much to all four of you.

I will speak briefly about this, but myself and my office are dealing with the case of a woman. In certain countries in particular, being a woman changes everything you may have said, because women must deal with additional negative conditions. We have devoted a great deal of time to this case. Even when one is a member of Parliament and has an assistant looking after a case, it is not easy. My assistant was even told that she should stop calling the embassy of a given country and that I had to stop calling the ambassador. It's a good thing I was not told this directly.

This point has not been raised, but embassies, when visited for reasons other than speaking about detainees, have major responsibilities with regard to the economic ties with the country in which they are located. The same persons who would be best suited to defend detainees with regard to the locals find themselves in a type of conflict of interest and may fear not being able to defend those interests properly.

I would like to speak to Mr. Beaulac. I found his presentation very clear and encouraging. It is based on the duty to protect under recent legislation. However, it seems to me that even though everything is set out in the charter to ensure that someone may state that he is using that charter as an action guide in his relationships with his nationals and foreign countries, we have not quite reached that point. I wish we had, but for now, that is not the case. We must recall that, until these rulings came down concerning these people, they were not treated in that fashion at all.

I am not saying that people who work for the government and in the embassies do not have good intentions. I know many of them, and I agree that it is not easy.

I would like to hear more from you about that. How can we succeed in changing things? Even if a law was created, it would come down to the same thing because it would have to be adopted.

[Stéphane Beaulac]

Thank you for the question and your intervention, Ms. Lalonde.

Unfortunately, I am forced to agree with you that we will not be seeing any kind of prescriptive change any time soon that would accelerate the process and lead to a happy ending, whether it be in terms of a legislation or rulings in current cases.

In the history of Canadian law, it would not be the first time that work must be done over the medium and the long term to obtain changes and clear indications that already exist in Canadian law, but having this shown and confirmed by the courts is new.

Allow me to draw a parallel with equality rights without discrimination. Politically speaking, we have been working to promote and concretely enforce equality rights without discrimination since the late 1960s. It took a very long time, some 15 years, before we had the means to do so. Obviously, the last big piece was the adoption of the charter in 1982 and section 15 on equality rights, which came into force in 1985. That is not very long ago. It takes time. For people who are currently going through unfortunate situations, this is a disappointing response, but the case that is currently before the Supreme Court of Canada, that is, Mr. Khadr's appeal, will be heard in November. I hope that a ruling will be handed down quickly. That would be an important step towards moving Canadian law in the right direction, toward better protection and better treatment of Canadians abroad.

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

To demand the repatriation of children detained in a country that has not signed The Hague Convention, according to what you say, there is no longer the requirement to agree to start from the conditions that exist in a non-signatory country.

[Stéphane Beaulac]

That is right. Allow me to explain it as follows. We cannot be criticized for not having done so because strictly speaking, there is no obligation, under international law, to respect a treaty in a country that has not signed it.

Let's be more concrete. If Canada must deal with a file in Saudi Arabia, which has not signed The Hague Convention, then it is not obliged to fulfil its international obligations. It may wish to do so. Many of my colleagues would argue that this is an erga omnes obligation, that is, that it exists with regard to all of the international community. Concretely, before an international authority, we cannot be criticized for not having respected The Hague Convention in our decisions concerning a given file in a country that has not signed this convention.

[The Chair, Conservative, Kevin Sorenson]

Thank you. Your time is up.

Mr. Goldring.

[Peter Goldring, Conservative, Edmonton East, AB]

Thank you, Mr. Chairman.

And thank you for appearing here today, gentlemen.

Certainly with close to 50 million international trips over the years and the challenges of intervening in some of the cases that have happened—it's always a challenge—it's good to have a discussion on what we can do to help the situation.

Mr. Neve, you suggested that we allow the courts of Canada to particularly address cases of suing foreign countries for people who are aggrieved or have problems in a country. With the number of people we do have in these circumstances, you could be into the thousands of people who might want to apprise themselves of that. What are the chances that foreign countries will ever respond to that kind of challenge?

Mr. Beaulac, you mentioned that the right for Canada to apply the charter in a foreign country is under subsection 6(1) of the Charter of Rights and Freedoms. Subsection 6(1) does say that every citizen of Canada has the right to enter and to leave, but subsection 6(2) follows, saying that every citizen of Canada and every person has the right to move to any province. Then subsection 6(3) says the rights in (2) are subject to any laws or practices of general application in force in the province. Would that not also extend to any laws in foreign countries?

Is there not a question of how many other countries have laws that apply in Canada, superseding Canadian law? In other words, was the charter not meant to apply for the jurisdictions in Canada? Certainly it's highly questionable whether it applies internationally or not. Could you comment on that?

[Alex Neve]

With respect to the proposal about amendments to the State Immunity Act, I should clarify that the proposed amendments would limit the possibility for lawsuits against foreign governments to instances of particularly egregious human rights cases. It's human rights violations that are often called “crimes of universal jurisdiction”, instances where someone has been subjected to torture, for instance, or has suffered crimes against humanity or war crimes in a foreign country. Those are crimes that within international law are now recognized to be the business of all courts in all lands, no matter where they happened.

[Peter Goldring, Conservative, Edmonton East, AB]

So you're qualifying it to a very narrow section—

[Alex Neve]

But a very important section.

[Peter Goldring, Conservative, Edmonton East, AB]

It didn't come through in your original comments.

[Alex Neve]

I realize I was very brief in my reference there.

The other thing is that the recommendations Amnesty International and others are putting forward also acknowledge that it would be important to put a safeguard in place to ensure that if it would be possible to pursue that lawsuit in the country where the harm happened, and if that country has a functioning, fair justice system, then that will more often than not be the best forum to pursue. So if the lawsuit could happen in the foreign country, fairly and with regard for human rights, that's probably where it should happen.

[Peter Goldring, Conservative, Edmonton East, AB]

That's more under international law, is it not? It's not formulated on the basis of the charter proviso under subsection 6(1).

[Alex Neve]

This isn't linked to subsection 6(1). This is absolutely an international law concern.

[Peter Goldring, Conservative, Edmonton East, AB]

It's really not clear when it addresses foreign countries. It's clear domestically, but it is certainly not clear in foreign countries.

[Alex Neve]

That's right.

[Peter Goldring, Conservative, Edmonton East, AB]

Mr. Beaulac, would you comment on that?

[Stéphane Beaulac]

Yes. Actually I should start by apologizing; maybe I didn't make myself sufficiently clear. The gist of my argument had nothing to do with whether or not in situations of diplomatic protection the Canadian charter applies abroad. Some files may involve this aspect, and Mr. Champ was involved in one of them.

The argument I was making this morning was that this is not an issue of whether the Canadian charter applies extraterritorially. With regard to the Canadian charter, there's no lawyer in this country who would contest that this proposition applies to Canadian territory. The decisions with regard to diplomatic protection are made by the Government of Canada in this country. In deciding as to the validity and the charter conformity of those decisions, the Charter of Rights, particularly section 7—the right to life, security, and liberty of the person—should be the guiding principle in deciding how to address those issues.

[Peter Goldring, Conservative, Edmonton East, AB]

But you had stressed in your comments that you were seeking it under subsection 6(1) for applying internationally.

[Stéphane Beaulac]

No.

[Raoul Boulakia]

I was speaking about subsection 6(1).

[Peter Goldring, Conservative, Edmonton East, AB]

Thank you very much for clarifying that it was not subsection 6(1) you were referencing.