Foreign Affairs Committee on Feb. 13th, 2018

[The Chair (Hon. Robert Nault (Kenora, Lib.)), Liberal, Bob Nault]

Colleagues, we'll bring this meeting to order, please. Pursuant to Standing Order 108(2), we have a study of provision of assistance to Canadians in difficulty abroad, consular affairs.

Before us today is Alex Neve, secretary general of Amnesty International. Welcome, Alex, to the committee, and to Mohamed Fahmy, co-founder of the Fahmy Foundation, who's on video.

I understand, Alex, you're going to kick it off, and then we're going to go over to Mohamed, and back and forth, and then we'll get into Q and A.

I apologize for being late. There were a number of votes today. We'll try to accommodate by using up as much time as we can for the two witnesses, and then make up a little bit of time at the back end.

With that, I just want to turn the floor over to you. Welcome to the committee.

[Alex Neve, Secretary General, Amnesty International Canada]

Thank you very much, Mr. Chair. Good afternoon, committee members. It's always a pleasure to be in front of this committee. I very much welcome the opportunity to address you on this issue.

I want to begin by highlighting to you that in the course of my 18 years now—I'm getting to be an old-timer—as secretary general of Amnesty International Canada, the number of Canadian citizens, permanent residents, and other individuals with close Canadian connections who are imprisoned abroad in circumstances where there are very serious human rights concerns has grown exponentially. From perhaps one or two cases per year, it is now common for us to be monitoring 20 to 25 such cases at any one time, something I once rarely imagined would arise in my human rights work. Canadians held as Amnesty International prisoners of conscience, political prisoners facing unfair trials, prisoners at risk of torture and executions—these people have now, unfortunately, become relatively commonplace and a significant part of our human rights program.

What accounts for that dramatic increase? First of all, the world is a much smaller place and business, work, studies, humanitarian work, journalism, family visits, and personal travel take more Canadians to more corners, including dangerous corners of the world, more frequently. Second, there are growing numbers of Canadians who hold multiple nationalities and many governments that refuse to recognize their Canadian nationality. Finally, in a post-September 11 world, we find that many governments have felt increasingly emboldened to disregard fundamental due process and human rights safeguards for prisoners when they invoke allegations, spurious or well-founded, on grounds of national security. Mohamed Fahmy's experience is one such example. You will hear from him in a moment.

When Mohamed returned to Canada he was passionate about wanting to pursue a reform agenda—reforms on many fronts, including Egypt, which is no small challenge. He very much wanted to draw from his experience, and the similar cases taken up by Amnesty International over the years, to formulate an agenda for reform in Canada as well, to strengthen consular laws, policies, and practices so as to ensure that Canadian officials are doing all they can to protect Canadians imprisoned abroad in circumstances involving serious human rights violations.

That is why we launched the protection charter in January 2016, two years ago. We welcome this opportunity to be here to highlight some of the charter's key recommendations to you. There are 12. I'll just refer to each of them without going into detail.

One, enshrine the right to consular assistance and equal treatment in Canadian law. Two, develop transparent criteria regarding such matters as support to families, issues around medical treatment, and collaboration with civil society and lawyers. Three, do more to protect Canadian journalists abroad. Four, actively defend Canadian nationality in cases involving dual or multiple nationalities. Five, do not allow unjust foreign laws or practices to deter or limit Canadian action. Six, establish an independent office for review of consular assistance. Seven, provide consistent support for death penalty clemency. Eight, institute review and oversight of Canadian national security agencies. Nine, address post-release concerns such as access to justice and freedom of movement. Ten, ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Eleven, develop a network of governments ready to assist each other with consular cases. Finally, twelve, establish guidelines regarding government action on behalf of detained permanent residents and other prisoners with close Canadian connections.

Two years later, we have welcomed significant progress in four of these areas: death penalty clemency is restored; review of Canadian national security agencies is part of Bill C-59; consultations regarding ratification of the Optional Protocol to the Convention against Torture are under way with provinces and territories; and there is a developing intergovernmental network through the Global Consular Forum.

Mohamed and I would like to highlight five of the eight remaining recommendations, which we continue to urge the government to adopt.

Before we turn to Mohamed and then back to me, I want to also begin, though, by reminding us all why this matters so very much: Ronald Smith, Canadian citizen on death row in Montana since 1983; Wang Bing Zhang, one of the first Chinese post-graduate university students to study in Canada, with numerous family members who are Canadian citizens, including his daughter, imprisoned in China since 2002; Huseyin Celil, citizen, imprisoned in China since 2006; Bashir Makhtal, citizen, imprisoned in Ethiopia since 2007; Mohamed el-Atar, citizen, imprisoned in Egypt since 2007; Saeed Malekpour, permanent resident, imprisoned in Iran since 2008; Raif Badawi, whose wife and three children are Canadian permanent residents, imprisoned and sentenced to flogging in Saudi Arabia in 2012; and Li Xiaobo, whose son is a Canadian citizen, imprisoned in China since 2014 immediately following an earlier eight-year term of imprisonment.

Those are some of the most entrenched cases of concern for us at this time. We're also following other cases in China, Iran, Saudi Arabia, Turkey, and Syria. These are the individuals and the families for whom your study and proposals for consular reform have real consequences for life, liberty, safety, and justice.

I will now turn things over to Mohamed.

[Mohamed Fahmy, Co-Founder, Fahmy Foundation]

Thank you, Alex.

Good afternoon, everyone. I am thankful and privileged that I have been given the chance to share my first-hand experience with you, and I would have preferred to be there in person.

I started drafting parts of the protection charter in prison after a careful, constructive assessment of the situation. I'm honoured to present you with the first-hand experience that led me to pursue this call for reform and, most specifically, an urgent call to enshrine a law that obligates the right to consular assistance and equal treatment in Canadian law.

As a journalist, I was caught up in a security sweep at a very turbulent time in Egypt, in 2013, when the government was in a violent conflict with the Muslim Brotherhood, a group designated as terrorist by Saudi Arabia, Egypt, the United Arab Emirates, Bahrain, Syria, and Russia. I faced trumped-up charges of belonging to the Muslim Brotherhood and accusations of fabricating news to serve their agenda.

I spent over a month in solitary with a broken shoulder, in a maximum security prison, and was incarcerated with terrorists and Islamic extremists who were considered enemies of the state. I am very grateful for the intervention of the Canadian consular team at the time, who visited me in my place of detention and communicated with my family.

Unfortunately, it became quickly evident that the case was of a complicated political nature and based on geopolitical score-settling between regional powers. The intervention of the embassy to move me to a hospital to get the proper medical care for my broken shoulder was not successful. There was a malunion in my shoulder bone, as I continued to sleep on the floor in solitary confinement and was transported in handcuffs many times in uncomfortable positions in police vehicles while my shoulder was broken.

I was only transferred to the hospital seven months later, where I underwent surgery, after my unjust seven-year sentence, and today I continue to live with a permanent disability, a fate I've accepted. I consider myself lucky as I watch other journalists and Canadian citizens beheaded at the hands of Islamic extremists in many parts of the world.

I understand that there is a protocol in place, but I am also convinced that our previous prime minister could have alleviated and improved my treatment in prison had the highest order of the government been obligated to intervene effectively and swiftly from the start and to communicate with the highest order in Egypt.

Through my experience as a journalist, a human rights defender with the International Committee of the Red Cross, and a former political prisoner, I know that an immediate and effective intervention from the government when a Canadian is detained abroad could really mean life or death. Torture and disappearance of prisoners usually happens in the first hours and days of the incarceration. A swift and powerful intervention from the highest order of the government, without political, trade, or other considerations, could save a life.

Let us not forget the case of Canadian photographer Zahra Kazemi, who was raped and killed in Evin prison in Iran, and the case of the academic Kavous Emami, who died a questionable death this week, also in an Iranian prison.

Many observers were critical of the intervention process during my case, because some felt there was discrimination in the level of consular support I received in comparison to other cases in the past. Right or wrong, I believe that this perception and uncertainty—and the fear I faced—which surely many of the hundreds of Canadians detained abroad experience today, can be eliminated when there is a law set in stone: legislation that obligates the government to follow specific guidelines of intervention so that it is not left to the discretion of the Minister of Foreign Affairs.

Uncertainty and fear are every prisoner's nightmare. Is the government going to bat for me hard enough? Am I on the agenda on the next trip? Legislation would end this dilemma and allow every Canadian leader to operate relieved of red tape and any political concerns of the case at hand.

During the course of my multiple-decade career in the field, I have not witnessed such an unprecedented attack on journalists and human rights defenders as we are seeing today, with more than 250 journalists behind bars worldwide.

Some Canadians have lost their lives and/or remain behind bars due to this increasing danger. That is why article 4 of the protection charter calls on Canada to put new mechanisms in place to better protect journalists abroad.

Finally, I will always remember a conversation with my former lawyer, Amal Clooney, during the course of the two-year battle for freedom, and how frustrated I was. I was anxious to receive more information from the government in Ottawa about their efforts, and had to worry about access to information and privacy laws, or about the government being simply too busy. She would say that there was no obligation, and then continue her mission to free me.

In this age of terrorism and the vague laws that I experienced during my trial, as well as increasing threats to Canadians travelling abroad, I believe that establishing the position of an independent officer of Parliament, through the Minister of Foreign Affairs, is extremely essential to providing equal consular assistance and advocacy on behalf of fellow citizens.

I have joined dozens of human rights advocates and NGOs in a recent campaign calling on the United Nations to appoint a special representative who deals specifically with the safety of journalists because of similar concerns that the attack and jailing of innocent journalists doing their job is unprecedented and requires more attention and a specific office that will virtually save lives. I believe this is the same case, when we call for the appointment of a special representative to deal with consular affairs, an independent officer.

Once again, I am privileged enough to speak worldwide about my experiences as a journalist and former prisoner through many lectures in Canadian universities. Specifically, students always ask me the same question—why do the United States, Brazil, Mexico, and many countries in the EU have some sort of legislation that obligates the government to intervene while Canada doesn't? I can't answer that. But I always tell them that Canada remains a model to the world when it comes to education, democracy, inclusion, and diversity. So I am extremely excited to continue to pursue this call for reform and, hopefully, provide better protection for fellow Canadians abroad.

Thank you very much.

[Alex Neve]

I will just wrap up by referring to two other recommendation in the protection charter, each of which deals with issues that often get a bit overlooked when we consider the consular realm. The first is justice after release. Once freed and back to family and safety in Canada, understandably many individuals think of justice, accountability, and redress. It's important personally. The desire for an apology, for the truth to be acknowledged, for compensation for terrible violations, is an essential part of healing. It is also important more broadly, as part of tackling impunity. Many released prisoners—Mohamed certainly did—talk of how important it is to seek justice as a means of preventing others from experiencing the same injustice. But once back in Canada one key avenue of justice is closed off. It is not possible for a released prisoner to turn to the Canadian courts and launch a lawsuit against the foreign government officials responsible for the torture and other violations they have endured because those officials are shielded by the State Immunity Act, which protects foreign governments from being sued in Canadian courts for actions outside Canada. There is an exception for commercial activities, but not for grave human rights violations. A foreign government can be sued for a breach of contract that occurs outside of Canada, but not for a brutal act of torture. It's time to open up this avenue of justice.

Finally, it's also important to turn our attention to permanent residents and other individuals with strong connections to Canada, usually because they have close family members who are citizens or permanent residents. They are not citizens, and thus, of course, do not legally under international or national law constitute consular cases. But very often these individuals have no closer connection to any other government aside from Canada. Their spouses, children, parents, siblings call Canada home. Understandably they look to Canada for assistance.

Going back decades, government's standard responses have been that in such cases generally there's not much that can be done because the individual is not a citizen. However, some of these cases do nonetheless still get taken up by government in various ways. I know for instance the government at this time, rightly so, is engaged in the cases of Saeed Malekpour, a permanent resident in Iran, and Raif Badawi, the husband and father of permanent residents in Saudi Arabia. What is lacking, though, is predictability and consistency. There is a need for guidelines that will clearly establish when and in what ways the Canadian government will take up cases of non-citizens with close Canadian connections facing serious human rights violations.

Let me end by highlighting how important it is to be innovative and imaginative in advocacy with respect to what are often termed “complex consular cases”. Years ago Prime Minister Jean Chrétien sent Senator De Bané to Syria with a personal letter from the Prime Minister, and Maher Arar was free several weeks later. Canada recently turned to the Government of Oman, an unlikely partner perhaps, for assistance with the case of Homa Hoodfar, and she was released soon after. The Prime Minister's national security adviser leads a mission to North Korea and Pastor Hyeon Soo Lim is freed from imprisonment in that country.

Appointing special envoys, finding help from unexpected allies, exploring new avenues by leveraging trade, business, and investment channels, more can be done to draw on the experience, insights, and connections of family members, relevant diaspora communities, and civil society groups, who often have “out of the box” strategies to share that may help move difficult cases forward.

Thank you. Those are our comments, and we look forward to the exchange.

[The Chair, Liberal, Bob Nault]

Thank you very much to both witnesses.

We're going to move along quickly and go to Mr. O'Toole, please.

[Erin O'Toole, Conservative, Durham, ON]

I'd like to thank both witnesses for being here today.

It's nice to see you again, Mr. Neve. I know we always don't see eye to eye on everything, but I admire your many years of work highlighting the cases of many Canadians in difficult circumstances.

We've seen one of the most horrific examples just in the last few days. Iran came up in both of your commentaries today. We have the case of Professor Seyed-Emami, who died in Evin prison. That prison in particular was referenced in commentary today. In Amnesty's experience, is it known that prisoners there are tortured, mistreated, and in some cases killed?

[Alex Neve]

There's absolutely no question of that. We have documented that going back decades and decades, in fact, going way back to the time of the Shah. Evin Prison has always been notorious as a place of rampant torture. As Mohamed reminded us, it has previously claimed a Canadian victim, Zahra Kazemi, who died after rape and torture in 2003. Again, in the last couple of months, notoriously so, Dr. Emami's case is obviously a very tragic instance. His is the third case in just six weeks now of prisoners held at Evin who suddenly and mysteriously committed suicide, apparently, but in circumstances where the government refuses to allow any investigation or independent autopsy.

[Erin O'Toole, Conservative, Durham, ON]

Absolutely, and I think all members of the House and this committee offer our condolences to the family, and we all want to get to the bottom of it.

This is, as you said, the third case in similar circumstances. In your network of contacts, how many people have been detained, with no charge in the aftermath, in the last two months of the Iranian protests? Is there a number of detentions? I've seen deaths in the two dozen range, with three to five being in custody or detention, and the rest being on the streets. Are those numbers accurate? What is Amnesty hearing?

[Alex Neve]

We don't have a number that we're confident to put out there publicly yet, because one of the things that was different from this wave of protests compared to earlier waves of protests we've often seen in Iran is that it was truly nationwide, including in a lot of small towns and villages where it's very difficult to get real information, where we, for instance, an organization that's not allowed to come into Iran and do work on the ground, don't have established contacts. We do know that it was thousands who were taken into prison. At one point, I believe, we were generally using the reported figure of 3,000, but the true number is probably much higher. We hope, at a certain point, to come out with something a bit more authoritative, but the crackdown was widespread.

[Erin O'Toole, Conservative, Durham, ON]

Canada has been silent. The Prime Minister and the Minister of Foreign Affairs are virtually silent in the face of the protest. We're looking at the consular case in this tragic death. As a human rights organization, do you think countries like Canada should remain silent when we know this is going on, or should there be an active statement in light of thousands detained, deaths, and clearly a struggle for democratic rights and freedom?

[Alex Neve]

We're certainly looking for governments, including the Canadian government, to be forceful and outspoken, and importantly, I would say, to do so in concert. We know that Iran is an example of a country where bilateral, one-on-one efforts by a particular state are, perhaps, not going to be all that successful, but by banding together, then perhaps we can see some progress. I think, in particular, what has happened now is that obviously Canada has grave concern about Dr. Seyed-Emami's death, but as I say, it is part of a wider pattern, so that points to the advisability of Canada perhaps joining with EU partners and others to raise the cases as a pattern and try to get some progress in that way.

[Erin O'Toole, Conservative, Durham, ON]

I know some organizations like Freedom House and others have rankings of countries with human rights problems. Where do you view Iran? I heard Iran mentioned several times in the presentations here this morning with respect to consular cases, but with respect to suppression of human rights, unlawful detention, and torture, is it the worst offender or one of the worst? Where does Amnesty view Iran?

[Alex Neve]

We don't do a numeric ranking because it's impossible to do so. Academics have tried to see if there's a way you can take all the data and come up with a ranking, but it's impossible. We don't do so, so I won't say that it is the worst, that it's in the bottom 10 or the bottom 20, but I will say that year upon year, for decades now, it has featured prominently in Amnesty International reports across the entire range of human rights concerns: civil and political rights, economic, social, and cultural rights, women's equality, and the protection of minorities.

It's just about the only country left in the world now that will execute juvenile offenders. We're in the midst of two cases of concern right now of individuals on death row who face imminent execution for crimes they committed when they were children. It's a country that I think we can safely say, in every way possible, shows contempt for human rights.

[Erin O'Toole, Conservative, Durham, ON]

My final question—I think I'm almost out of time—is, in the situation of a Canadian who's abroad who commits a crime or is involved in a terrorist act.... We're not talking about wrongfully detained people or people who are political prisoners; we're talking about someone who has been involved in something nefarious, and they're detained in another country. What do you view as Canada's role, if we don't have full trust in the judicial system there? What do you think Canada's role is for that Canadian while they're detained for malicious acts elsewhere?

[Alex Neve]

It's important to recognize that the international human rights system is not about guilt or innocence. There are many human rights provisions that apply universally to all people in all circumstances. Even when there is every reason to think someone has committed a crime—and there may be questions, depending on the nature of the justice system in that country as to how reliable the allegations and conviction are, and we always have to hold that lightly—the rights to a fair trial, to have access to Canadian consular assistance, to have legal representation, family visits, and all of those due process rights are fundamental. They're not just icing on the cake; they go to the very heart of what it is to have justice done. Canada needs to champion that through consular efforts.

With respect to many of those exact cases you're talking about, especially if there are terrorism and national security allegations, we know that in many countries torture is almost certainly a very real possibility. Again, that has nothing to do with guilt and innocence. International law is very clear there.

Canada needs to be prepared. As Mohamed reminded us earlier, torture is in particular one of those things that happens almost always in the early days, so that's the kind of case that points to the importance, as he was highlighting, of an immediate and urgent intervention.

[The Chair, Liberal, Bob Nault]

Thank you.

We will now go to Mr. Wrzesnewskyj, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Let me begin by thanking both of our witnesses, but in particular Mr. Fahmy, for appearing before the committee. You've taken your horrific personal experience of torture, maltreatment, and are trying to transform it into a positive to make sure that in the future, no Canadian under any government would end up languishing, injured in a prison cell, while a government decides whether or not to use its discretion to come to their aid. So thank you.

[Mohamed Fahmy]

Thank you very much.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I'd like to just clarify something that was referenced.

Our government has been clear, and our minister has been clear and unequivocal, in condemning the crackdown in Iran. In fact, the minister put out a statement in which she expressed her deep trouble by the recent deaths and detentions and once again called on the Iranian government to allow freedom of assembly and speech without a risk of facing violence or imprisonment.

I think the record should be clarified when it comes to that particular point.

Mr. Neve, a parliamentary colleague, the Honourable Judy Sgro, has been championing the cases of five Canadians of Turkish descent who have been detained in Turkey because of alleged ties to the Gülen movement, three of whom have been convicted in trials without due process.

I think it's important to name them. They are: Davud Hanci, Ilhan Erdem, Ahmed Basoglu, Nadir Bakiçi, and Mete Bagdat.

I know that Amnesty has championed these cases. Would you like to make some comments as to how the Turkish and Canadian governments have interacted in these particular cases?

[Alex Neve]

The opening comment is that I'm sure everyone is aware of how disastrous the state of human rights protection is in Turkey at this time, following the attempted coup in the summer of 2016. There's been a massive crackdown that has affected all sectors, including my own Amnesty International colleagues, two of whom have been arrested and imprisoned on absurd charges of terrorism—one, the chair of our Turkish section, is still behind bars eight months later—and their trials continue. That sets the frame for the situation that's unfolding.

We are very much aware of those five cases. I was approached by many of those family members very early on. I've had opportunities to have a fair bit of engagement back and forth with the Canadian government and have welcomed the fact that Canada was very forcefully seeking consular access, which was being denied, which is very problematic, distressing, and outrageous given that Turkey is a NATO ally.

It wasn't specific to Canada. Turkey was denying access to all dual nationals imprisoned in the crackdown.

We remain concerned, in particular about due process issues related to the cases. While some have been convicted—although we have concerns about the fairness of the proceedings and we're looking into some of those concerns—others still have not been brought to trial and are simply brought to court on an occasional basis, only to have the matter adjourned and set over to a future date.

That too is not specific to Canada; it's symptomatic of what we're seeing with respect to all of the ways in which the thousands of prisoners who have been ensnared in the crackdown following 2016 are being treated.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

In this protection charter, one of the basic principles is that every Canadian deserves equal treatment by our government. I would think most Canadians travelling would have assumed that was not discretionary. However, there's one part to this that you reference in your charter, which is special considerations for journalists. We all understand and are very supportive of the incredible work of journalists, especially in parts of the world that don't subscribe to the rule of law or democratic principles, but there's an inconsistency. You can't have one set of protections for journalists and a different set for everyone else.

My question has, perhaps, two parts. The questions on the charter are the first. The second is how and at what points do your charter and the private member's bill of my former colleague Irwin Cotler agree and, perhaps, not coincide?

[Alex Neve]

I'll certainly leave it to Mohamed to answer the question about journalists. I would just point out that we're not saying that journalists deserve more protection. I think what we're saying is that journalists, because of their particular situation, deserve specific kinds of protection that respond to the kinds of risks they face. It's not that they should be treated more specially or anything, just uniquely and particularly.

I actually have to admit it's been a while since I've looked at Irwin's private member's bill, and I, therefore, am foggy on the details, but I can certainly undertake to do that kind of a comparison and to provide that information to the committee if it would be of interest.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I think that undertaking would be.

[Alex Neve]

Okay.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Fahmy.