Foreign Affairs Committee on Feb. 13th, 2018

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

We've lost a few Canadians in the last couple of years. You spoke about the case of Mr. Seyed-Emami, and also Robert Hall. We spoke a bit at a previous hearing on this issue about the government's no-ransom policy. We've heard some critical testimony about that. We heard at the time from Mr. Pardy, I think it was, who said that when you say “no ransom”, you effectively close a channel of communication. Even if you don't end up paying a ransom in the end, having that channel of communication open is worthwhile.

Do you have thoughts on the Hall case in particular, or the no-ransom policy in general?

[Mark Warren]

It really hasn't come up in my particular area of work. I'm not sure that my opinion would carry a whole lot of merit.

I can tell you that Canada's no-ransom policy is not unique in the world, but neither is it, I would say, the norm. Other countries, of course, struggle with this issue. The general trend, I think, is to say we will not, as a rule, countenance payment of ransom, but we won't stand in the way of that sort of negotiation taking place.

I do have concerns when a country takes a hard line on an issue that is, let's face it, a case-by-case kind of challenge; and speaking personally, only as a concerned Canadian, I would prefer more flexibility in the policy.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Sorry to jump around, but I just want to go back. I was just thinking in the back of my mind to my previous question.

If we were to get back some kinds of results of a notional investigation from Iran, and they were to say they conducted an autopsy and they concluded—as they've claimed—it's suicide, and provided the documents that were associated with it, presumably it's very easy for a state that is trying to cover up its own crimes to falsify any manner of documentation.

I suppose what you're saying is we might ask for that investigation but we would still have a high level of skepticism about whether that's actually going to lead anywhere. Would you say that the government ought to pursue other things concurrently with asking for that investigation?

[Mark Warren]

If you're speaking, as we are, specifically about Iran, one of the challenges, of course, is that Canada and Iran do not have full diplomatic relations. Some of the ordinary avenues that might be open in a situation like this are not open. I can say that in similar cases around the world, for example, not to name any particular countries, but in other parts of Asia, where a country does not have full diplomatic relations, it generally has another consulate of another country that will represent its interests as vigorously as it can. I don't know, but I would assume that some of those backdoor channels are being explored, and that what we are hearing in terms of the public pronouncements of the government may or may not encompass everything that's going on.

Certainly, I would encourage the government to pursue every possible opportunity. I notice that Mohamed Fahmy mentioned the work of the Red Cross, for example. If there is any possibility at all of accessing information, or getting into prisons, I think the Canadian government should explore every one of those possibilities. The challenge after the fact when a prisoner has lost their life unfortunately involves dealing with incomplete documentation; but a full autopsy, if that's what we're talking about, would presumably include some sort of forensic information. It would at least be something that could be examined by other independent experts. I'm not suggesting it's sufficient by any means, but I do think that this, combined with, hopefully, some backdoor negotiations, would offer some hope of obtaining more information about this tragic case.

[The Chair, Liberal, Bob Nault]

Thank you.

Borys.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Mr. Warren, for your testimony.

We heard the poignant testimony of Mr. Fahmy in the previous session and about the sorts of consequences he had to bear because the government decided not to use its discretion. As a human rights researcher, do you have a table, perhaps, that could concisely and clearly provide the data showing what Canadians suffered and what the consequences were as a result of the government's discretion in its cases? If there isn't such a piece of information, perhaps your research, if that could be provided, could provide concise clarity of what happens when you don't have the sort of legislation that guarantees Canadians their government's support. Perhaps, if you don't have that data, you could undertake to provide that.

[Mark Warren]

I have case summaries of Canadians abroad who have suffered the consequences of human rights violations in foreign custody. The larger challenge would be to equate that in some way with what the government did or did not do. There's always an element of uncertainty here. If the government had followed a different course of action, would it necessarily have resulted in an improvement?

The documentation that comes immediately to mind would be the formal inquiries that have taken place in Canada, at great length, into cases like Maher Arar's. I don't think we need, necessarily, to speculate about what the consequences are when Justice Iacobucci has laid them out in considerable detail. I would certainly encourage the standing committee to look back at those documents, at those inquiries, because they not only outline the consequences; they outline the chain of events and the sequence of decisions that resulted in those consequences. There's an opportunity there to explore how the existing chain of command may have failed, for example, and how a culture of inaction may have contributed to some of these consequences.

I would certainly be happy to provide the committee with whatever information I have on individual Canadian cases, though, if that would be helpful.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

I'll move to a different question. Our government reversed the previous government's stance and will now always advocate for Canadians facing the death penalty, but what do we do in a situation like the one in Iran? We've had two Canadians now who have died in very strange circumstances in Iranian prisons. It appears that if you're a Canadian and you're incarcerated in Iran, you—

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

On a point of order, Mr. Chair, I'd like the honourable member to table a policy with respect to the allegation he just made about the last government. If and until he can do that, I'd like him to withdraw that comment.

[The Chair, Liberal, Bob Nault]

Let's just debate. Let's carry on. We'll get the information for the member. It sounds as though there's a disagreement, but we'll follow through on that.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

The question is, what do we do in cases such as those in Iran, where it appears, for all intents and purposes, that there's a good chance that if you're a Canadian and you've been doing good journalistic work or perhaps human rights work and you're incarcerated, you may in fact face a death penalty? How do we address those categories of countries?

[Mark Warren]

I think this raises, indirectly at least, the very thorny issue of dual nationality. Both cases that you're referring to are of people who are of Iranian and Canadian nationality. Iran is one country that is very, very reluctant to recognize this concept of dual nationality.

It's a murky subject in international law. There is really no consensus on whether a country has an obligation to afford consular access to what it sees as its own citizen detained in their own country of origin when they happen to also have foreign nationality. One way that other countries have addressed this—and in fact Canada has done this, too—is through bilateral consular agreements. For example, this has been a problem with Chinese Canadian nationals. Canada, as well as, I think, Australia, New Zealand, the United States, and possibly some other western countries, has negotiated bilateral treaties with China, under which—and again, China doesn't recognize dual nationality—they adopt a kind of legal fiction where, provided that the Canadian enters China on their Canadian documentation, they are treated as though they were solely Canadian nationals during their time in China.

I'm not sure how encouraging it would be to open those negotiations with the Iranians, but at least it's an avenue worth exploring.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I have one last quick question. We recently passed Magnitsky legislation unanimously in our House. The intent was to put people under sanction when they were gross human rights abusers of their own people. I reference Canadians who were incarcerated in Turkey and we believe tortured. In those sorts of cases would you think that perhaps we should take a look at the legislation we recently passed and say torturers, prosecutors, judges in these show trials should perhaps be sanctioned under this legislation?

[Mark Warren]

There is a distinction in international law between state actors and non-state actors. It gets a little blurry sometimes.

I'm going to have to give some thought to that one. It opens more doors than it closes, in my mind.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you. Perhaps you can undertake to provide an answer.

[Mark Warren]

Yes, I'll certainly give it some thought.

[The Chair, Liberal, Bob Nault]

We'll go to Madam Laverdière, s'il vous plaît.

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

Thank you, Mr. Chair.

Mr. Warren, thank you for being here today.

I will ask you the same question that I put to Mr. Neve and Mr. Fahmy: could you give us some good examples of legislation that guarantees the right to consular services? If you have any comments, do make them, and if any good examples come to mind, please send them to us afterwards. Our committee members would find this quite useful.

[Mark Warren]

I do, and the point I would make, first of all, is that the legislation in most other countries is very simple. It's not complex, as I think Alex mentioned. We're not looking at page after page of detailed procedures of what we do and what we don't do.

It basically just enshrines a universal, equal responsibility to protect. Typically the legislation in the countries with which I am familiar will say something like, it shall be the responsibility of this nation to protect and assist its nationals abroad, subject to regulations created under such-and-such an act. In other words, there's an attempt to balance this fundamental bedrock principle with the recognition that there has to be ministerial discretion in how you go about acting in individual cases.

You do not want to tie the hands of your government by making the good the enemy of the best. There has to be some degree of latitude, but at the same time there needs to be a clear and simple statement in law to which whoever is assessing these cases can then go back and refer. Whether that is the courts or an ombudsperson of some kind, or a parliamentary committee, those are mechanisms that this committee and the House of Commons, more largely, should be able to address and come up with some mechanism that they think is appropriate for the Canadian situation.

I will say that most of the legislation I've seen is no more than a sentence or two long.

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

Thank you for the information.

I would like to ask you a question about people who have dual citizenship. You answered my question in part. This is an important issue, especially in Canada. It's becoming more and more frequent because of our presence on the world stage.

The agreement we signed with China is interesting. Do you think it would be possible and indeed a good idea to have the same kind of agreement with other countries such as Egypt and Turkey?

[Mark Warren]

Yes, it is possible. The fact that we don't explore these options doesn't mean that they aren't possible. In fact, Canada does have a bilateral consular agreement with Egypt; it just doesn't happen to address detention issues.

It is not only possible, but I think it is the most effective way forward under international law. Some people have suggested that we should reopen the Vienna Convention on Consular Relations, for example. My response is that even the convention itself, in its final provisions, recognizes that any issues that are not adequately dealt with under the convention can be the subject of bilateral agreements.

I recently undertook a study of bilateral consular agreements, those that were adopted after the Vienna convention. I looked at I think 75 bilateral agreements, and almost all of them specified, what exactly do we mean by “consular access without delay”? What do we mean by “notification without delay”? What do we do about dual nationals? How do we address those concerns?

I think the bilateral consular mechanism is tailor-made for addressing these problems. That's not to say that every country would be willing, and that may well be something we need to work on diplomatically and politically. I do think that if Canada were to make it clear that it wants to resolve these problems through a time-honoured international legal mechanism, that's another card in our hand that at the present time we don't seem to be playing at all.

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

I was fascinated to hear you say that it would even be possible to file briefs for the defence and that it would not be considered interference in the domestic legal process.

Could you briefly explain why this is?

[Mark Warren]

Yes. I put that in intentionally to see if anybody would respond.

There is, in consular law, a doctrine called the rule of non-interference. I don't know if other witnesses have raised this or not. Basically it says that a consulate may not interfere in the internal affairs of the state to which they've been posted.

At the same time, the Vienna convention makes it very, very clear that consulates can address the authorities when their nationals' rights have been violated. They can represent them in court when they can't represent their own interests. They can arrange for their legal representation. They can assist them in that representation. In other words, there must be some kind of a distinction to be made between interference and intervention.

I would say that the distinction is straightforward. If a legal system abroad allows, for example, the filing of friend of the court, amicus curiae, briefs, as most common law jurisdictions do, as well as some others, there is no reason at all why a consulate cannot file a brief, provided it has something to bring to the court's attention that's important, such as a violation of the Vienna convention.

That, in fact, is something that Canada has done in some cases in the past. Other countries do it with some regularity. It is not interference. It is simply making sure that your national is vigorously defended and that you're making full use of the mechanisms available to any case in that particular court or jurisdiction.

Now, it would be interference, for example, to seek preferential treatment or to ask for an exemption under domestic law, or to, I don't know, bribe a judge, but it is not interference to intervene in the proceedings to ensure that your national's basic rights are protected on an equal footing.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Warren.

We'll go to Mr. Saini, please.

[Raj Saini, Liberal, Kitchener Centre, ON]

Good afternoon, Mr. Warren.

I want a comment on a couple of things that you wrote. You wrote a guide for defence attorneys, and you highlighted two cases in that guide, which I think have substantial ramifications in international law. One was the LaGrand case, and one was the Avena case.

However, your paper was written eight years ago, so I'm wondering if you can maybe update us. Has there been anything else significant that has come through, especially from the International Court of Justice, where there has been an impact on providing consular services abroad?