Foreign Affairs Committee on Feb. 8th, 2018

[Raj Saini, Liberal, Kitchener Centre, ON]

Mr. Pardy, first of all, thank you very much for being here.

I want to follow up on the issue of crown prerogative, which you also highlight in the paper that you referred to.

In your conclusion in that report, you disavow the idea of crown prerogative. Usually, as you know, the government uses crown prerogative to give itself some flexibility in certain types of cases. If you were going to replace the concept of the crown prerogative, let's say maybe in legislation, how would you draft it? As you know, no two cases are the same, so how would you give the government flexibility to be able to deal with certain cases? What kind of framework would you see?

[Gar Pardy]

I would see the need for it not so much in how individual cases are dealt with, but to guarantee that all Canadians receive consular services. That's the important element, because I think what has occurred in recent years is that decisions were made as to whether some Canadians would get the level of consular services that were required by their condition. It's up at that level that we're talking about here.

I can see why the government wants to retain crown prerogative in the area of foreign policy and foreign affairs generally, but consular affairs is a slightly different animal in this area. I think you can remove the element of crown prerogative from consular services but still see it retained in foreign policy generally. I think that's the trouble here: that consular services are confused with foreign policy. They're not necessarily foreign policy. There's a separate international treaty, as you know. The Vienna Convention on Consular Relations is separate from the Vienna Convention on Diplomatic Relations, so even in the international community there is a distinction made between the two types of foreign activities.

[Raj Saini, Liberal, Kitchener Centre, ON]

The other thing you mention is the necessity to update article 5 of the Vienna convention. You highlight that since 1954, Canada, the United States, New Zealand, and England meet annually. You talk about a global consular forum that has met twice. What I read from the paper was that you feel that it should now become internationalized, maybe through the UN, to update that kind of need because of changes in technology and in other ways that states may interact with each other. Can you give some highlights of where you think the changes may...?

[Gar Pardy]

I think the key one is the obligation of another state to provide support to the country's nationals in difficulty in that country. The most serious part of all of this, of course, is the people who are arrested and in jail, and some sort of a judicial process is under way for them. It is in that area where I think there is the biggest need for change.

Right now one of the few elements in the Vienna convention that I think is good is limited. The person detained has to be told by the arresting state that they can contact their consular authorities, but too much flexibility is left to the arresting state as to whether or not, in effect, a Canadian who is arrested—even in Texas or Arizona, for that matter—is informed of his or her right. Back a few years ago, we went to the Supreme Court of the United States with an amicus brief because a Canadian was executed in Texas, and that Canadian was not advised of the fact that he could contact the Canadian authorities.

It's in that area that I see most of the changes that I think would be important to most Canadians.

[Raj Saini, Liberal, Kitchener Centre, ON]

How much time do I have?

[The Chair, Liberal, Bob Nault]

You have time for another question.

[Raj Saini, Liberal, Kitchener Centre, ON]

Just to talk about the situation in Texas, if we give it a broad overview, when you talk about clemency or the death penalty, would it be ideal to suggest that if a citizen of any country is in another country where there is the death penalty, maybe that citizen should be recused if he or she is not a citizen of that state?

[Gar Pardy]

Could you just...? I missed a couple of words.

[Raj Saini, Liberal, Kitchener Centre, ON]

You talked about clemency for the death penalty, no matter where any Canadian is. Just to take that to an international level, would you suggest that maybe one of the things that should be looked at internationally is that if a citizen is caught in another state where there is the death penalty, then maybe that citizen or that person should be recused from the death penalty of that state?

[Gar Pardy]

I think that would be asking the international system for a large give.

Going back 10 or 15 years, there was an international movement to basically do away with the death penalty in any number of countries, but in the last 10 to 15 years, more countries have added the death penalty as an element in their judicial system.

This was the issue that came up during the previous government. It set out a series of conditions under which it would seek clemency for Canadians in certain situations, and it came up with regard to a case down in Montana. The new government, I think, has changed that now and has reverted to the previous policy, which is that the Canadian government will support any Canadian who is sentenced to death in a foreign jurisdiction.

Most countries, basically, are receptive to those kinds of bilateral approaches. I'm a little skeptical about whether you could get something at the larger level in this area. Given the role of Canada, as far as the death penalty is concerned, I think we made it almost an article of faith that we would try to protect Canadians from the death penalty regardless of what country the death penalty was imposed in.

[Raj Saini, Liberal, Kitchener Centre, ON]

Thank you.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Saini.

Madam Laverdière, s'il vous plait.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Thank you very much, Mr. Chair.

I would first like to apologise for missing the presentation, but following the Minister's presentation, a number of reporters wanted to talk to us outside. So, all my apologies.

I would like to know a bit more about the cooperation among departments, be it Global Affairs Canada, Royal Canadian Mounted Police, or the RCMP, Canadian Security Intelligence Service, the Department of Justice, the Canada Border Services Agency, and so on. I would like to know how cooperation usually takes place and more specifically in difficult situations, such as hostage takings. How has that changed? I feel that, especially in hostage takings, the role played by Global Affairs Canada is different from the one played by the RCMP when it comes to negotiating with actors on the ground.

Can you tell us more about that and about whether improvements are desirable?

[Gar Pardy]

I guess the starting point here should always be that the consular service represents the Canadian in difficulty overseas. That's our function. That's our responsibility in government, and no one else in government has that responsibility.

The RCMP or CSIS or the Canada Border Services Agency all have their own mandates, and those mandates drive them in certain directions, which could be very inimicable to the kinds of things we try to achieve. Sometimes within government that coordination doesn't take place, and there is a need for that coordination to take place.

Some of the cases we've recently gone through were resolved through civil cases in which the courts agreed that the RCMP or CSIS were contributors to the detention and the imprisonment of Canadians abroad without any sort of due process. It's in those kinds of cases that I think the great difficulty occurs. I think both the O'Connor inquiry and the Iacobucci inquiry had a lot to say in this area. I'm not sure whether or not their reports have necessarily found acceptance throughout the government, so I think the possibility of those kinds of cases still arriving is still there.

In the area of kidnapping, which I think you alluded to as well, it is your ability to reach into another country, and more often than not you're limited in dealing with the other government. What you're looking for is an intermediary who's going to add some validity as far as the kidnappers are concerned.

Before I retired, the vast majority of kidnappings that I dealt with were in Colombia. In Colombia there is even a law that prevented us from doing any sort of direct negotiations. However, the Catholic Church in Colombia was exceptional and willing to accept the mandate. Their mandate in such cases was the same as ours, and that was to try to save the life of the individual involved. The Catholic Church was exceptional.

Also, in some of these countries the International Committee of the Red Cross has a bit of a mandate in this area, and it's been willing in some cases to act. It's been quite active, I think, as far as Syria and Iraq are concerned. The point is that you've got to go out and find an intermediary.

In the case of Mr. Fowler and Mr. Guay, who were kidnapped in West Africa, I suppose it's fair to say the local government took a very active interest in this area, and there have even been suggestions that it was the local government that actually paid the ransom ultimately for their release.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Thank you very much.

We talked about another problem, which I witnessed during the hurricane season last fall. Many people complained about services, and we are still hearing about complaints in kidnapping cases or other situations. A good number of complaints is received because communications with families that are here, in Canada, are both insufficient and inadequate. Is there a way to change that?

[Gar Pardy]

You touched on what I consider to be one of the great weaknesses in our consular services. I don't think it's by design or anything like that. It's, first of all, the size of the country. Sometimes a telephone call just will not do it the way sitting down and talking face to face will with somebody who's going through a traumatic event involving members of their family.

As with all things in government, of course, it's a question of money, and this is why I tend to emphasize how the money is spent, money that is already paid by Canadians to get this service. This is very important. There is no career consular service as such. In effect, we all come out of essentially other parts of the department.

You're smiling at all of this. I'm sure that in your past you've done the same kind of work.

The ability to have people who are willing to take on this kind of work is not something that comes readily to political officers, nor do they have the training or background or even, in some cases, the inclination to do so. I'm sure you've run across these, as far as the department is concerned, in many of these cases.

I don't have an easy answer. Every government I've ever spoken to around the world says the same thing. There used to be something called the “consular service”, but over time they all disappeared. The service itself is rolled into all of the other services. In Canada we've had any number of structural changes with regard to who is responsible for consular services. It's been stable, I think it's fair to say, for well over 10 years now.

I follow the press reporting in this area. I talk to reporters assiduously. One thing I've noticed is that I have heard as many compliments about the work of consular affairs in this area as I've heard complaints. I can't say, during the time I was working there, that this balance ever crossed my desk.

Obviously, people are working on this, but it is always a struggle to get the right people doing the work. We always used to say, “Oh, God, it's Monday morning”, because on Monday morning, when you're doing this work, right off the top at least 10 people have died overseas. One of your first jobs is to contact the families. For anybody who does that kind of work, it is a difficult job. That's why a lot of people don't stay there for very long. They find the work very difficult.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Pardy and Madame Laverdière.

We'll go to Madam Vandenbeld, please.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you very much.

Thank you, Mr. Pardy, for sharing your vast expertise and experience with us. I'd like to pick up on a question that Mr. Saini posed about the crown prerogative.

You mentioned that right now the crown prerogative gives the right for discrimination, in that the government can essentially pick and choose which citizens to help and which ones not to help. Can you give examples of what that would look like, the kinds of things that have happened?

[Gar Pardy]

Three or four of the cases I mentioned there.... A still current case involves a man by the name of Abdelrazik, who went out to Sudan to visit family there. From what I've seen reported and detailed as far as the court case is concerned, in effect he was detained by the Sudanese authorities at the request of the Government of Canada. That's what the case before the court hinges upon.

It got to the point where the Sudanese said they didn't know why they'd arrested this guy, and we wouldn't do anything about getting the man repatriated back to Canada. The result was that he ended up staying well over a year in the Canadian embassy in Khartoum. The embassy looked after him, yet the policy that came out of Ottawa was that they were not going to give him a passport to get him back to Canada. They used what I think most people would regard as a specious argument, because he was on one of the lists, but this was a UN list, and the UN has made it very clear that if somebody on the list wants to get back to their own country, then they're allowed to travel. There was a great deal of difficulty in getting a ticket for this man and getting him on an aircraft so he could come back to Canada. I think it took almost five years for this to happen.

This is at the centre of a court case right now. I think it's before one of the Ontario courts. I don't think it's the Federal Court necessarily, but we'll see.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

This is not a case outstanding right now; this was from previous years.

[Gar Pardy]

This started back in 2010, I think. This case has been around for a long time.

The case before the courts is at least three, if not four years.... I'm on the list of being an expert witness for this particular case, if it ends up in the court.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Have there been any new ones in the past couple of years?

[Gar Pardy]

That's the only one I know is current right now, but, as you know, I'm not on the inside of any of these sorts of things. There could be other cases there. I follow the press pretty assiduously in these areas, but....

Well, there is one going on that involves a man by the name of Jack Letts, who is in jail in northern Syria. He is being held by one of the Kurdish groups, and there are discussions going on to get him repatriated to Canada. He also has British citizenship in addition to Canadian citizenship. The CBC is going to do an article tonight on this case, but there are elements of this particular case....

The Prime Minister has spoken about the case, and I think the government has been active in getting that person returned to Canada as quickly as possible. There is no government involved on the other side. It's one of the revolutionary groups, and I think they just want to say hasta la vista.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Yes, and I think we've heard our Prime Minister say that a Canadian is a Canadian, so if you are a Canadian citizen you deserve to be treated equally when it comes to consular services.

[Gar Pardy]

That's under law. There is no ambiguity about this whatsoever, and that's what's ironic about some of these things. That's why they end up being in the courts. The courts basically agree to the large settlements that have been made in these cases because it is contrary to the charter.