Foreign Affairs Committee on Feb. 13th, 2018

[Mark Warren]

Yes, in fact, India has brought a case against Pakistan before the International Court of Justice on precisely these same provisions of the Vienna Convention on Consular Relations. There's an Indian national on death row in Pakistan who was accused and convicted of espionage. Pakistan used the fact that this person was an accused spy as justification for not granting consular access. India's argument is that there is no such exception under international law, certainly not anything in the Vienna convention. That case has now proceeded to the stage of written proceedings. In other words, we'll probably have a decision relatively soon, perhaps within a year or so.

On the Avena front, there have been a number of attempts.... Is there anyone here who isn't familiar with the case? It's a decision of the International Court of Justice in favour of Mexico and against the United States in which the court found that, in cases where a foreign national—a Mexican national, particularly—has been sentenced to death without timely access to consular assistance, the domestic courts must review and reconsider the case. The clear implication here is that, if there's a finding of actual prejudice, that will require the case to be reconsidered in the truly meaningful sense.

There have been a number of attempts to implement Avena in U.S. law. In fact, the 2018 budget proposal, which I suppose is now defunct, included just such a provision in the Department of State section. It's not sufficient, I think, so many years after the fact, for this still to be an issue of discourse and discussion. It's clear, I believe, at least, that the United States is paying a heavy price for not practising what it preaches when it comes to consular access and consular remedies.

However, individual states in the United States are now starting to take note. For example, the State of Illinois recently passed a consular provision whereby foreign nationals, upon their first appearance in court, will be readvised, one hopes, of their consular rights and the presiding judge will have the authority to ensure that it has, in fact, taken place.

[Raj Saini, Liberal, Kitchener Centre, ON]

Has that improved in the United States since you have written this paper? Article 36 seems to me to be not fully accepted by the United States. There are always other countries that ask for binding judgments. Issuances have been ordered by the ICJ, even in terms of the LaGrand case. There was no U.S. comment after that and there was no attempt to comply with it. For me, if the United States is doing it, are there any other bad actors or any other countries in the world, or is the United States improving? The reason I use the United States is that your paper is heavily ensconced in U.S. law. I'm not familiar with other jurisdictions, comparatively.

[Mark Warren]

One of the important consequences of the Avena judgment is that the Federal Constitutional Court in Germany found not only that German authorities were under a binding obligation to provide consular access, but that the German courts could, in fact, remedy violations of that obligation. You have a dichotomy here, where a country that wasn't even involved in the Avena litigation has said, well, this applies to all of us. This is a binding judgment; it's an interpretation of a multilateral treaty and should apply to all countries equally. There is certainly language in the Avena judgment to support that.

I would say that, in my experience, the compliance is improving in the United States. I'm not sure it's because of the ICJ. It's improving because the awareness of consular rights issues has percolated through the criminal defence community and through the prosecutorial and police communities. There are now police organizations that, as part of their accreditation standards, require that there be a policy in place to advise foreign nationals of their consular rights, a policy to ensure that consulates have access. These things are baby steps; they're incremental, but they're important elements toward a fuller compliance.

On remedies, I just worked on a case in Nevada of a Mexican national under sentence of death where, lo and behold, the court, on appeal, on remand, found that the denial of timely consular access was prejudicial and tossed out the death sentence.

[Raj Saini, Liberal, Kitchener Centre, ON]

The United States signed article 36 of the Vienna convention in 1969. Right now, according to your paper, you said there are about 120 nationals, at that time maybe 200.

[Mark Warren]

It's more now.

[Raj Saini, Liberal, Kitchener Centre, ON]

Could it be that maybe we need to revisit that article to make sure? At that time 170 countries signed that charter. Is it time maybe to revisit it, to reactivate it, or to re-emphasize what it is? Could it be there are certain jurisdictions that don't know, may not have had the experience of knowing? Is it maybe an opportunity to re-highlight or underline that this is something that's important for every country to take note of?

[Mark Warren]

I'm not quite sure what you mean by “reactivate”.

[Raj Saini, Liberal, Kitchener Centre, ON]

Not reactivate, but in terms of re-emphasizing the fact of making sure that countries provide the avenue for—

[Mark Warren]

It could start at home. Canada ratified the Vienna convention in 1974, I believe it was. Many parts of the Vienna convention were implemented under Canadian law by Parliament in 1991, but not article 36. Consequently, compliance with those consular notification and access provisions by Canadian jurisdictions has been, I would say, haphazard at best. This matters because it weakens our arguments abroad when we go to another country and say, “Give us access to our nationals, and be assured that of course your nationals would receive the same consideration.” Well, that isn't necessarily so in Canada. It would require an act of Parliament. It's not easy because of course criminal jurisdictions are multi-tiered in Canada. We don't have a single unitary system. But I think it's an important element. If you are talking about reactivating article 36, why don't we start at home?

[The Chair, Liberal, Bob Nault]

Thank you.

Colleagues, that will wrap it up for today.

I want to thank Mr. Warren for his very good presentation. It was very enjoyable and much appreciated.

Colleagues, on Thursday we will do the first hour of consular affairs, and then the last hour will be DFI. That's the plan for Thursday before the break.

A heads-up, I think it's well known that the budget presentation is on the Tuesday that we get back. Originally we were going to go right into clause-by-clause of the Arms Trade Treaty implementation, but I think we're all going to be in our seats in the budget process at four o'clock, or whatever it is, so that meeting likely will be cancelled, unless I have objections by our colleagues.

Having said that, I'll see you on Thursday.

The meeting is adjourned.