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.