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.