Evidence of meeting #86 for Foreign Affairs and International Development in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was case.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Alex Neve  Secretary General, Amnesty International Canada
Mohamed Fahmy  Co-Founder, Fahmy Foundation
Mark Warren  Human Rights Researcher, As an Individual

4:25 p.m.

Co-Founder, Fahmy Foundation

Mohamed Fahmy

There is definitely a real issue at the moment with how journalists are being treated. Also, governments in the Middle East and other autocratic governments that are clamping down on journalists are very fragile, so the rhetoric that comes out of the Canadian government is something that is extremely important and it's disseminated in the Arabic press. In my own experience, for example, in my trial, the American government issued a statement by Mr. John Kerry who said it was a draconian sentence, while the Canadian government said it was very disappointed. These nuances and these minor details and language make a huge difference, and they show how a government is dealing with the situation.

To go back to your question about journalists, indeed because journalists are on the front line and we are now facing an unprecedented attack, not only in regions in the Middle East where there are war zones and conflicts but also in the United States, it has become highlighted more than ever how important it is to implement a more transparent approach to the handling of journalists and human rights defenders.

If I had written a protection charter a couple of months ago, I would have added something about human rights defenders, because there is extreme unprecedented targeting, which has prompted many Canadian NGOs to call on Mr. Trudeau, through a letter that we at the Fahmy Foundation participated in, to lobby the United Nations to appoint a special envoy to deal from within the United Nations with issues related to the safety of journalists.

Again, with these fragile governments, when they see that the Canadian government is focusing on journalists on the ground and that the consular team is very dedicated to protecting its Canadian journalists in many countries in the region, they will think twice before throwing a Canadian journalist in prison. They will think twice before torturing a Canadian journalist, let alone a Canadian citizen.

I'm very dedicated to the issue of better protection of journalists and human rights defenders, at least providing more transparent rhetoric and being more protective of their rights to do their job.

4:30 p.m.

Liberal

Borys Wrzesnewskyj Liberal Etobicoke Centre, ON

Thank you.

4:30 p.m.

Liberal

The Chair Liberal Bob Nault

We'll go to Madame Laverdière.

4:30 p.m.

NDP

Hélène Laverdière NDP Laurier—Sainte-Marie, QC

Thank you, Mr. Chair.

Thank you all for coming today and for your presentations.

I would like to start with a few comments.

Firstly, I am pleased that the case of the five Canadians detained in Turkey was brought up. I wrote to the Minister of Foreign Affairs on this issue a year ago. I finally received an answer last week. I hope any future answers will arrive more promptly. That would be useful.

Moreover, you spoke of collaborating with the Government of Oman and certain partners through a network. Gar Pardy, whom you may know, testified here last week. He spoke about the work done in co-operation with the Red Cross and local churches. In that kind of situation, you realize that having a good network on the ground is essential to deal with problems.

It is indeed true that in the past, some people had the impression that unequal treatment was given to certain prisoners. It is still perhaps the case. Those decisions remain the prerogative of the Crown.

I like the idea of being entitled to consular services. I would like a bit more information, however. Would consular services be solely offered to persons detained or victims of human rights abuses, or would everyone have the right to consular assistance?

4:30 p.m.

Secretary General, Amnesty International Canada

Alex Neve

I'll start, and Mohamed may have something he wants to add.

This is one of those areas where the Amnesty International response would be that our area of concern is with respect to human rights cases, which isn't necessarily only about imprisonment obviously. Canadian find themselves in situations of human rights violations in former countries through other avenues as well.

That said, that would not suggest we are closing off the possibility that it should be pitched more broadly than that and made clear. I think Gar Pardy in particular made the point that Canadians pay for this, and have paid...I think he's tallied it's hundreds of millions of dollars over the years for consular services, through the fee we pay in our passport applications. I think what he probably said to you is there should be a right to get something back for that money and that it should be enshrined in law.

I think also, given that it's sometimes maybe a little hard to very precisely define the cases where there are human rights concerns and the cases where there aren't—it might be too difficult to draw that line—it should be described more widely.

Do you want to add anything, Mohamed?

4:30 p.m.

Co-Founder, Fahmy Foundation

Mohamed Fahmy

As a former Red Cross employee, ICRC, my job was to visit prisons, and I visited many prisons. The first law or rule that we applied is to never really look much into the actual case of the person, whether it's political or common law, because they all have rights.

Unfortunately, in my experience with most of the prisoners—and I visited hundreds of prisoners and interviewed hundreds of prisoners before becoming a prisoner myself—there's almost always a lack of full guaranteed rights in the prison. I won't even use human rights violations. There are rights that they do not receive that would not even be imagined in Canada for us. That is why I strongly believe that by having it as legislation, not only does it relieve the family and the Canadian citizen, but it also sends a clear message to the jailer, the dictator, and the torturer that it will not be unseen. Anything they do will be monitored, and the government, regardless of politics or trade or money, will come after them, come to protect that person, and that's what it's all about.

4:35 p.m.

NDP

Hélène Laverdière NDP Laurier—Sainte-Marie, QC

Mr. Fahmy talked about legislation. He spoke of legislation in Brazil, the United States and other countries, which is obviously stronger than ours, because our legislation does not amount to much.

Could you tell us more about this and perhaps also send some information to our clerk, who could then forward it to committee members?

4:35 p.m.

Secretary General, Amnesty International Canada

Alex Neve

Most certainly we would be pleased to provide some of that to you.

I don't know if Mohamed has some of that information at his fingertips but we can certainly compile some examples of how other jurisdictions have dealt with this and provide it to the committee.

4:35 p.m.

NDP

Hélène Laverdière NDP Laurier—Sainte-Marie, QC

Thank you.

4:35 p.m.

Liberal

The Chair Liberal Bob Nault

We'll move to Anita Vandenbeld please.

February 13th, 2018 / 4:35 p.m.

Liberal

Anita Vandenbeld Liberal Ottawa West—Nepean, ON

Thank you very much to both of you for being here with your very compelling testimony. Putting a face to this issue is...of course Mr. Fahmy is always very compelling. Those of us who have had to talk to the families of those like Bashir Makhtal who has been gone for so many years...they have worries about his health. Particularly as members of Parliament we often feel what more can we do? I think everyone around this table would like to do more.

What you've done in this protection charter is extremely helpful because it gives us tangible things we can look at, analyze, and see what can be done. I appreciate, Mr. Neve, that you talked about the areas where there has been progress. I think you mentioned death penalty cases, national security oversight, the work toward the optional protocol and intergovernmental networks, and the treatment of dual citizens.

I think our government has been very clear that a Canadian is a Canadian and in trying to minimize the inconsistencies. At the same time, when I hear there is no obligation for consular assistance, that flies in the face of the Vienna convention and a number of rights that people have.

Could you talk a little about what it would look like if we eliminated the crown prerogative, which says there is no obligation to come to assistance? Also, have you seen progress in the last few years in treating everybody the same? If you're a Canadian citizen, you have the right to have your government come to your aid if you're in a very difficult situation like this.

4:35 p.m.

Secretary General, Amnesty International Canada

Alex Neve

I'll begin, and I'm sure Mohamed will have something he wants to add.

We have not sat down to draft the provision. That might be a helpful next step; I don't think it would be lengthy. We're not looking at pages and pages of legislation, at least for this particular aspect of enshrining the rights to consular assistance in law. Very importantly, I think we would want to ensure that it gets crafted in terms that make that notion of equal access, equal protection, very clear.

As I think has come up several times here in the past, sometimes well-founded perhaps, other times maybe more as a matter of perception, there have been concerns about unequal treatment of two tiers of citizens, some of whom get senior levels of attention, others not. The nature of the intervention is very uneven, and legislation that tries to address that would be very helpful.

4:40 p.m.

Liberal

Anita Vandenbeld Liberal Ottawa West—Nepean, ON

Of course, each case is different.

In terms of consular assistance, in some cases you want to go to the media. You want noise. You want pressure. In some cases, it can be very helpful to have a number of people, including members of Parliament and others, talking openly about a case.

In other cases, that might have a negative impact on the case, especially if delicate discussions are happening at the diplomatic level. Could you comment a little because that could give the perception that assistance isn't being provided? Every case requires a different kind of assistance. You yourself said sometimes we're creative using third parties.

How would we be able to enforce something like that and say whether or not that assistance was done in the right way?

4:40 p.m.

Secretary General, Amnesty International Canada

Alex Neve

I would agree with that, and that describes Amnesty International's work too. We're always making those exact same assessments, go public or not, big campaign, behind the scenes lobbying, press release yes or no, for exactly the reasons you've highlighted. You want to pursue strategies that will be effective but even more crucial, you don't want to be doing something that will make things worse.

I would totally agree with you, it would be impossible to begin to define and specify that in legislation or even in the regulation that went with it. We're not looking for that.

I think the other piece though, and this was one of the other things that Mohamed highlighted, is the companion to this that I think addresses the point you're raising, Ms. Vandenbeld, the need for—different terms have been used for it—a commissioner, an officer, an ombudsperson, someone who would play an oversight and review role around consular cases.

When they do arise, and they have arisen in the past, I think there are times when those concerns have been well founded, other times when it's been more a matter of perception. Somewhere you would have an expert, independent person who would review and order corrective action of some kind if the concerns were well founded.

4:40 p.m.

Liberal

Anita Vandenbeld Liberal Ottawa West—Nepean, ON

How important is it to have diplomatic channels open? In the case of human rights-abusing states, some have called for us to end those diplomatic channels of communication. How important is it in these cases to have open channels?

4:40 p.m.

Secretary General, Amnesty International Canada

Alex Neve

Amnesty International in no circumstances ever calls on any government to rupture diplomatic relations. We don't call on governments to maintain them. We largely recognize that this is more than anything a political assessment. We do note that if diplomatic channels are open, it offers an avenue for advocacy, diplomacy, and more regular consular access, including in-person consular access from Canada rather than from a partner country. These options won't be there if the channels are closed.

At the same time, I think it is perfectly legitimate to recognize that, in the case of some countries where all options have been pursued, there's very little left, and if an assessment is made that a threat of cutting off diplomatic relations might change the balance, might bring some new pressure to the equation, that could be a perfectly legitimate strategy. We wouldn't criticize it, but it's not necessarily something we would propose ourselves.

4:40 p.m.

Liberal

Anita Vandenbeld Liberal Ottawa West—Nepean, ON

We're talking about Canadian citizens and their having equal access. With respect, however, to permanent residents and those who have, as you put it, close ties to Canada—their children are living here, say—it becomes more complicated. I think we would all agree, especially those of us who have people in our constituencies with a parent or a sibling in jail, that it is really hard to tell these people you can't help them because they don't have Canadian citizenship. All of us would love to be able to find more avenues, but under the Vienna convention, most states don't have to grant us access when it comes to those who are not Canadian citizens.

4:40 p.m.

Secretary General, Amnesty International Canada

Alex Neve

No. Let me specify, however, a few things about what we are or are not saying about those other kinds of cases. For exactly the reason you've described, we're not saying there should be a legal right for permanent residents and others to consular assistance. That's not the law. It's not international law. It's not national law.

We've highlighted this because over the years—and this has crossed all governments going back my 18 years—we have seen real inconsistencies in the response families get when they show up in an MP's office, or some other government office, on behalf of a permanent resident or a loved one. Sometimes they're simply told there is nothing they can do for a non-citizen; sometimes there is some effort to explore some avenues; and sometimes fairly active advocacy is taken up even at high levels of government.

We're suggesting that it would be really helpful for all concerned, including MPs sitting in their offices, if there were some guidelines that sought to bring greater predictability, consistency, and fairness to how these cases are dealt with.

4:45 p.m.

Liberal

Anita Vandenbeld Liberal Ottawa West—Nepean, ON

Thank you.

4:45 p.m.

Liberal

The Chair Liberal Bob Nault

Thank you.

Colleagues, to make up some time with our next witness, we're going to have to call it a day for these two. I want to thank Mr. Neve and Mr. Fahmy in particular. I understand you're in England, so it's a later time and we very much appreciate all your efforts to present to this committee. It has been very enlightening and we enjoyed listening to the charter. I'm sure we're going to have more discussion about these sections of the charter.

Colleagues, I am going to suspend for a short time, and then go on to the next witness.

Thank you very much.

4:45 p.m.

Liberal

The Chair Liberal Bob Nault

We will bring this meeting back to order. In front of us is Mark Warren, human rights researcher. Mr. Warren, thanks for coming to the committee. Our apologies for the late start. Votes in the House do these things to us, but we will try and manoeuvre our way as best we can.

With no further ado, I want to pass the floor over to you. You can start with your presentation, and then we will get right into questions.

4:45 p.m.

Mark Warren Human Rights Researcher, As an Individual

Thank you, Mr. Chairman.

Just by way of introduction, I'm a human rights researcher and a legal consultant. Over the last 20 years or so, my specialty has been addressing issues involving the arrest and detention of foreign nationals abroad. Of course, consular access issues are a major part of the work I do.

It's a privilege to appear before the standing committee and to participate in this vitally important discussion. Going through the list of topics for this study, I was struck by the fact that most are not uniquely Canadian concerns. Instead, the list includes a number of issues confronting consular services worldwide. Since much of my research examines how other countries are responding to these same complex challenges, I'm framing my remarks today within an international context.

First and foremost, many other nations view consular assistance as a legal obligation, not as a discretionary prerogative. By my count, at least 45 countries have enacted laws imposing a mandatory consular duty to protect all citizens abroad. Our closest neighbours long ago adopted provisions that enshrine consular assistance as a right of citizenship. For example, Mexican law recognizes that the primary obligation of Mexican consulates is to protect and defend the rights and interests of overseas citizens. Mexican consulates are also required to protest any denial of rights or mistreatment of their citizens by foreign authorities.

Regulations adopted by the United States also mandate consular protection for nationals abroad. For example, consulates must provide emergency medical and dietary assistance for incarcerated U.S. nationals. The Department of State has instructed its consulates that:

Our most important function as consular officers is to protect and assist private U.S. citizens or nationals traveling or residing abroad. Few of our citizens need that assistance more than those who have been arrested in a foreign country or imprisoned in a foreign jail.

Elsewhere, the European Union Charter of Fundamental Rights guarantees that every citizen from its 28 member countries shall be:

...entitled to protection by the diplomatic or consular authorities of any Member State....

According to the European Commission, this provision:

...enshrined the right to consular and diplomatic protection as a fundamental right of the European citizen;

Further afield, the law in Kazakhstan requires that the republic:

...shall guarantee its citizens protection and patronage outside its boundaries.

Even China has enshrined this basic responsibility, declaring in its constitution that it:

...protects the legitimate rights and interests of Chinese nationals residing abroad....

There are many other examples of legislative enactment, and they all prompt the same important question. Are Canadians less deserving of a legally binding duty to protect their human rights while abroad than the citizens of Mexico, the United States, or China? Surely, we all deserve better from our government than selective protection based on vague and shifting policy guidelines that have no legal force.

The second point I'd raise about international consular practice relates to death penalty casework, which is an area that I'm particularly familiar with. Fortunately, cases of Canadians facing the death penalty abroad are comparatively rare, but when they do occur, the results can be fatal.

This is particularly true when consular interventions begin only after the defendant has been sentenced to death. While the death penalty has been abolished in law or in practice in 142 countries, its use is still widespread in some parts of the world: the United States, but also the Middle East and parts of Asia.

Significantly, the countries that routinely execute prisoners also tend to routinely delay or restrict consular access. However, there are two positive trends within most nations that still cling to the death penalty, which I'd like to briefly touch on. Both are relevant, I think, to consular interventions in capital cases.

The first trend is gradual restriction in the number of offences for which the death penalty is prescribed. The second is the elimination of mandatory death sentences and its replacement with a discretionary process in which the courts may apply a lesser sentence. Both changes provide greater latitude for pretrial consular interventions, either through encouraging prosecutors not to bring capital charges in the case, or by assisting in developing character evidence about the accused in support of a less severe punishment. These are new developments.

Until quite recently in many parts of the world, if a country had the death penalty, the death penalty would be mandatory for certain offences. In essence, it largely tied the hands of consular authorities when a foreign national was facing capital charges. That's less and less true, and it's a critically important point that is often not raised sufficiently.

Now under Canada's current consular standards, the focus in death penalty cases is on what's called clemency interventions. Global Affairs has defined this term as “any diplomatic effort, taken at any stage of the process after detention, aimed at avoiding imposition of the death penalty or the sentence being carried out”. I think the key phrase there is “diplomatic effort” and the experience of other consular services contradicts this emphasis on purely diplomatic efforts. They've learned that the only certain way of preventing the execution of their nationals abroad is to avert the imposition of the death sentences by any appropriate means.

This approach requires early, vigorous, and extensive consular interventions that go beyond diplomatic discourse. A focus on early consular intervention, for example, necessarily means working closely with the defendant's legal representatives to develop a thorough and effective defence. It means providing a consular presence at every important court hearing and frequent consular visits with the detainee. When appropriate, it also includes outreach to prosecutors, prison authorities, and other officials to ensure that the defendant is treated fairly and humanely. When necessary, some consulates have secured the appointment of qualified lawyers, provided missing resources crucial to the defence, or themselves filed legal briefs.

I want to emphasize that none of these efforts constitutes interference in the domestic legal process. They are, instead, legitimate interventions to protect the human rights of foreigners detained abroad. In fact, there's a growing recognition in international jurisprudence that prompt consular assistance can be an indispensable component of fair trials in death penalty cases. Notably, Canadian consular authorities have in the past intervened promptly and effectively in the early stages of some death penalty cases.

Diplomacy alone is not enough. Canada's consular program should provide for enhanced involvement in the pretrial stages of all potential death penalty cases involving Canadian defendants.

Finally, some of the lessons learned in death penalty casework may also apply to other complex consular cases, such as torture. Success depends largely on early and extensive interventions, including a willingness to work closely with non-governmental organizations, the capacity to recognize the signs of ill treatment, and the resolve to confront the state actors responsible for these abuses. Most of all, I believe that achieving real progress depends ultimately on enshrining a consular duty to protect within Canadian law. Legislation is the best way to guarantee consistent and effective consular services for those who are most in need of that assistance. Anything less, I would submit, threatens to reduce Canadians to second-class status among the citizens of the world.

Thank you.

4:55 p.m.

Liberal

The Chair Liberal Bob Nault

Thank you very much, Mr. Warren.

We're going to go right to Mr. Genuis, please.

4:55 p.m.

Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Thank you, Mr. Warren, for being with us today and for your testimony.

I wanted to start by following up with one question on the case my colleague raised of Mr. Seyed-Emami, who was recently killed in an Iranian prison. I raised this issue in question period yesterday, and the parliamentary secretary—and by the way, Mr. Alghabra, it's great to have you here with us today—responded with the following. I'm not quoting his full statement, but one of the things he said is, “We call on the Iranian government to conduct a thorough and transparent investigation into his death.”

I wonder what you think of this approach of asking the government, which many people would suspect is very complicit in his death, to conduct an investigation. How much credibility would you ascribe to the results of an Iranian government investigation, however thorough or transparent it might profess to be?

5 p.m.

Human Rights Researcher, As an Individual

Mark Warren

I share your concerns, of course. I think we all do.

On the other hand, the Iranian government has access to that prison, and it's at least a place to start. If there were, for example, an autopsy, which as I understand it is one of the main considerations here, that would at least provide Canadian authorities with a document that they could then refer to other experts. It's a start.

Obviously, in closed countries especially, there are distinct limits to what a foreign government can do. I think we all recognize that. On the other hand, it's a reasonable request and I think it would be difficult for most countries to say, “No, no, we're not going to do that for you.”