Evidence of meeting #87 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 abroad.
A recording is available from Parliament.
4:10 p.m.
Lawyer, Peroff Professional Corporation, As an Individual
I don't like to be referred to as “senior”.
I'm sorry, but I'm not sure I understand the question. You talked about geopolitical developments.
4:10 p.m.
Liberal
Michael Levitt Liberal York Centre, ON
Yes, basically if you think about the context of increasing international travel by Canadians, the rise of non-state actors, and the rapid technological changes we have seen over the last 15 years, how has it become more challenging in the context of consular cases?
4:10 p.m.
Lawyer, Peroff Professional Corporation, As an Individual
I was involved in the Kapoustin case back in 2005 to 2008. I've always been sensitive to this because I've been part of the globalization process, working on many cases globally over the years. To me, it's just an incremental development. Things are just getting more and more global, along the lines you just said, and by “global” I mean for all the reasons you just said.
All that means then—and I totally agree with the consular officials who have spoken—is that this explosion in all dimensions with respect to globalization has increased the frequency of the problem. However, I suggest that there's a deeper problem than this, which is the failure of many governments—not just the Canadian government—to stand up for their own abroad because of state-to-state relations. That emboldens corrupt governments. It seriously emboldens them.
I'm concerned that it is actually a kind of complicity. It's unintended complicity on the part of governments to fail to intervene on behalf of their nationals, but it's seen by a foreign government as being a sign of weakness that they can take advantage of. It's no coincidence that it takes forceful advocacy of the highest order from the highest level to change things in an entrenched case.
4:15 p.m.
NDP
Hélène Laverdière NDP Laurier—Sainte-Marie, QC
Thank you very much, Mr. Chair.
I would like to thank you both very much for being with us today and for your presentations.
I was struck by two comments.
Mr. Peroff, you mentioned that, at Global Affairs Canada, you often run into a refusal to work with legal counsel. At first glance, this seems completely counterproductive. If two entities are working on a file, it would be logical for them to cooperate. Mr. Caroline, you also talked about a culture of secrecy.
Could you give us the reasons that consular affairs gave for not working with legal counsel? Can you comment on what you call, in a sense, excessive secrecy and an abuse of privacy?
4:15 p.m.
Lawyer, Peroff Professional Corporation, As an Individual
As for the reasons given, I'm sorry; we rarely get an explanation of why there's a refusal to co-operate, but let me make it clear that the problem starts at the authorization stage. What I mean by that is that this is a formalistic position that Consular Affairs takes—to show you how tragic the situation is.
Quite often, you will have an abused Canadian abroad who is unable to tell Consular Affairs that his family has retained me or Mr. Caroline, so the government will refuse to talk to me even though the family in Canada will say, “The guy can't talk to you; the lady can't talk to you. They're in distress, but we want the help. Please deal with Mr. Peroff, or deal with Mr. Caroline.” We get a technical response that they can't deal with us.
Now, let me give you, please, if I could, an extraordinary example. I'm dealing with a case involving a Chinese national who is also a Canadian citizen, the worst kind of case in China. This poor chap was on the run in China. He couldn't give a formal authorization. Consular Affairs refused to talk to me. I involved Mr. Pardy in this.
I finally had to orchestrate the highest-level officials at Consular Affairs to coordinate a call from Ottawa with their consulate in a certain region in China. I had to get my client to go to that consulate so that the people in Ottawa could hear the client in China, who was in distress, tell them to talk to me. That's what I had to do.
Days went by in this emergency situation before that formality was overcome, and then after that, nothing happened anyway, so it really didn't matter.
I'm taking up all the time. I'm sorry.
4:15 p.m.
NDP
Hélène Laverdière NDP Laurier—Sainte-Marie, QC
No, that's fine, no problem.
Mr. Caroline, do you have any comments on this culture of secrecy?
And what do you call inappropriate use of privacy laws?
4:15 p.m.
President, The Ofelas Group, As an Individual
It is such a bizarre misuse. It's a cover. It's basically an interpretation that exists, and that's why we're trying to approach this as a cultural, systemic issue. All the things we're talking about, they're not about the magnificent people who work in the department. It's the heavy influence of history, basically, that prevents people from doing what I think they would like to do if left to their own devices. They're great people there.
For example, on the privacy thing, it's uniform: “The law will not allow us to discuss issues that affect the privacy of the individual, our client”. Well, it's our client as well. Dean's talked about getting permission. I've run into the same thing. What I must say—and this is why again it's a cultural or systemic issue—that you find that there are crazy things asked of you the more direct the consular officer is in touch with the problem. I mean people who are consular officers in an embassy have much less discretion, or feel that they have very little power to deal with things, and therefore they ask for things to be signed by Canadians who are imprisoned and have no access, meaning they are in solitary confinement or they can't sign a paper that the embassy wants them to sign.
If you go higher—I'd say in the food chain of the department—where people have more experience and are more willing to take a risk because they're acting based on not only their own feelings about how to advance a case forward but their own experience about how far they can go, you don't have that many problems.
Then when you get to the top—and I know there have been changes lately, so I'm dramatically generalizing—you find that the top of the institution is there to maintain the culture as it has been. I have not seen a leadership from the top that aims at identifying, “What are the things we need to do to provide a more efficient, more thorough, more successful service to Canadians in this difficult situation?”
Again, the cases vary from person to person, but also within the department. People act differently at different stages. Then we're leaving aside what government itself does in these difficult cases.
4:20 p.m.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Good afternoon, gentlemen. I'm very pleased that you're here.
I'm just going to start off with what you said, Mr. Caroline, about the privacy situation. I also sit on the access to privacy and information committee here in Ottawa, and we just recently reviewed the Privacy Act. I just want to get an idea from you. In specific cases, there is a public override for the public benefit, whether that's in critical cases or issues of public health or national security; but we're overriding someone's individual right to privacy. What do you guys think about that override clause? Is that something you would advocate for? Is that something you think is necessary, that public override should land on this one? You mentioned sometimes the reticence about providing information from consular affairs.
4:20 p.m.
President, The Ofelas Group, As an Individual
On the issue of privacy, obviously, the legislation doesn't just apply to the department we're concerned with. As lawyers, we deal with it all the time. There are exceptions within the privacy legislation, both federally and in different provinces, that permit the exchange of information in the situations we're talking about. For me personally, it's a matter of interpretation. If it could be clearer in the legislation, then fine, but I don't even think we need legislative change. I think it's a matter of how the department—and the government as a whole, because I don't think it's just foreign affairs where this is an issue—has a very narrow view of sharing personal information with advocates.
4:20 p.m.
Lawyer, Peroff Professional Corporation, As an Individual
I would just add that, in my opinion, in most cases there is no need for an override. It's the client's privacy. The client in most of the cases I've been involved in would happily give consent for the government to speak, especially because the client will see it in his or her best interest.
It's quite a simple exercise, which is why I suggest to you that this privacy concern is raised as a cover, and I think it is particularly so when it comes to this kind of review we are conducting now. When consular officials come before the committee and say that they are not going to talk about specific cases, if I may say so, who are they to say that?
How else are we going to get to the bottom of what we say is the problem if there isn't discussion about specific cases? I guarantee you that there will be a whole slew of Canadians who have had bad experiences abroad and would be happy to give all sorts of waivers on privacy and have their files opened up, just so that we could have a fair hearing of the situation.
4:25 p.m.
Conservative
Erin O'Toole Conservative Durham, ON
On a point of order, just because I'm cognizant of us running out of time on our schedule, if the witnesses would indulge—because we have two of the most prominent members of the bar who work on these cases—might we be able to extend to a second round, to have another half hour with the witnesses?
I've consulted for the second part on the report we're going to discuss, and the Conservatives don't have too much to add. Mr. Aboultaif only has a little. I would love to have another round with these great witnesses if we could extend.
4:25 p.m.
Liberal
The Chair Liberal Bob Nault
It's very much up to the committee. Is it the wish of the committee to extend the witnesses for another round, for a little less than half an hour?
Okay, seeing no—
4:25 p.m.
NDP
Hélène Laverdière NDP Laurier—Sainte-Marie, QC
I have somebody who is here for the next part, and I think it would be good to finish, to make sure that the DFI study is finished today, so my tendency would be to stay on the safest ground and keep the current timetable.
4:25 p.m.
Liberal
The Chair Liberal Bob Nault
We don't have unanimous support to extend the hearing, so we'll stick to our schedule.
Thank you, Mr. O'Toole.
We'll go on to Mr. Saini, please.
4:25 p.m.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Do you think that if the Privacy Commissioner had some sort of powers to adjudicate certain individual cases—because you're talking about an area where each case is pretty well unique—that would be helpful in some way?
4:25 p.m.
President, The Ofelas Group, As an Individual
I'm not sure that it would. Any outside scrutiny or intervention by an officer of Parliament would be helpful, but that's speaking generally.
Frankly, if someone is unrepresented in dealing with these situations—and again, I'm speaking as an advocate—the situation would be very different, but ultimately, in most cases I've found myself involved with, I've been able to work things out with the department officials. I have 30 years of experience as a lawyer, however, so it's easier for me to try to convince somebody than it is perhaps for someone who is unrepresented, for sure.
Your idea may be a good one. Having an option for somebody who isn't represented to have assistance, for example by going to a commissioner, may be helpful.
4:25 p.m.
Liberal
Raj Saini Liberal Kitchener Centre, ON
I have just one final question. You mentioned you had 30 years of experience, and Mr. Peroff probably has lots of experience. I won't guess the time.
My question is this. You probably have an understanding of how other regimes, other countries handle their consular affairs. Are there any countries you think we should be looking at? Have there been any decisions by the International Criminal Court that we should be analyzing, any kind of steps going forward? More importantly—you have these years of experience—are there countries that we should maybe be following, looking at, or studying in more depth?
4:25 p.m.
Lawyer, Peroff Professional Corporation, As an Individual
I would say that, when a Canadian appears to be in distress abroad, either because of human rights abuse or wrongful detention, nothing else really matters.
I suggest that this could happen in almost any country outside of.... It's easier to tell you what countries are probably okay than tell you what countries are a problem, because most countries are a problem. Once you get outside of Canada, the United States, Great Britain, the U.K., parts of western Europe, and Australia, it could happen any time, anywhere, in any jurisdiction.
I had a case recently in Barbados, which Canada has a tax treaty with, involving a Canadian businessman. It was a very serious wrongful detention case. I know of another case that I was brought into after the fact, which involved one of the Caribbean islands where somebody was having a wedding party and got into all sorts of wrongful detention scenarios; so it can happen anywhere because almost all these other countries have very weak rule of law or no rule of law.
4:30 p.m.
Liberal
The Chair Liberal Bob Nault
Colleagues, that wraps up our hour.
I want to thank Mr. Caroline and Mr. Peroff very much for this important discussion. It has been just that, and we're looking forward to further discussion.
Colleagues, I'll suspend for a couple of minutes and set up for the in-camera session on DFI.
[Proceedings continue in camera]