Sunday, January 1, 2017

---This report brings together various issues associated with assistance to Canadians overseas and suggests various corrective actions that could be taken by the new government. The corrective actions include both policy and legislative initiatives and in their collectivity would create greater equity, fairness and consistency in the treatment of Canadians who go beyond our borders for a wide range of reasons. In all of this it is important to emphasize that the consular function does not carry with it the need to pass judgement on the activities of consular clients. Rather it operates independently of such judgements. Instead, it seeks to establish and require standards of conduct by governments in how individuals are treated.--------- the Government of Canada must accept full legal responsibility in ensuring that everything possible is done to assist such Canadians. ---“More than five million Canadians are outside of Canada at any one time,” says Pardy. “The number is increasing, and as daily news reports show, they encounter various and frequent difficulties and dangers as they visit and reside abroad. Hundreds languish in foreign prisons on specious charges, while others need urgent medical attention or evacuation from the world’s trouble spots.” The study charts the development over the past decade of an insidious doctrine, limiting the responsibility of the Government of Canada and forcing many affected Canadians to seek redress through the courts. “The historical Canadian approach of the universality of consular services for all Canadians was undermined,” says Pardy. “The result has been inequity, unfairness and inconsistency in the provision of these vital services.” -------------International Conference on Consular Relations: Canada should play an active role in seeking international review of consular relations, including the Vienna Convention on Consular Relations. To that end Canada should host an international conference on the matter in 2017, the 50th anniversary of the coming into effect of the Convention.---Other countries have enshrined consular protection for foreign detainees in federal law. Why hasn't Canada?-----------Carol Becker @Pauline Tremblay I am Canadian born and raised. Right now I live in another country. When you go to live or work in another country that is your decision and the Canadian government shouold not get involved in any way if you are arrested. As for your comment on misguided opinion, sorry to say you are the one who has a misguided opinion. 18 hours ago  858585  363636 Share Pauline Tremblay Flag Pauline Tremblay @Carol Becker I believe your opinion is more than misguided. The article is talking about those who do not commit crimes...but are arrested, charged and put in prison and are having their human rights trampled on. It is the Canadian government's duty to assist in any way they can to help mitigate torture and other human rights abuses of Canadians abroad.

I have read over the opinion piece and agree with Mr. Fahmy that Canadians need more help from the federal government. Apparently according to the report "Canadians Abroad A Policy and Legislative Agenda" by Gar Pardy we have no right to any help once we leave Canada. This is ridiculous in my opinion. Why the heck does the federal government not have the requirement to help travelling Canadians as well as those who are abducted or imprisoned wrongfully?  But the federal government has NO LEGAL OBLIGATION to do anything.
I'd suggest that the federal government follow the information in this report and get cracking for if the department of Foreign Affairs is now the department of Global Affairs Canada and is pushing for world wide travel and commerce, then they'd better be supporting citizens in their travel.


https://www.policyalternatives.ca/newsroom/news-releases/new-report-details-discrimination-and-unfairness-assistance-canada-offers-its

New report details discrimination and unfairness in the assistance Canada offers its citizens in difficulty abroad

MARCH 29, 2016
OTTAWA – A new report, entitled Canadians Abroad: A Policy and Legislative Agenda, has just been released by the Rideau Institute and the Canadian Centre for Policy Alternatives (CCPA). The report, by former Ambassador and long-time head of the Canadian consular service Gar Pardy, analyses fourteen major issues associated with the provision of consular assistance to Canadians traveling and residing abroad. 
It includes a detailed set of recommendations to improve the assistance Canada provides to such travellers and the international legal environment for consular services.
“More than five million Canadians are outside of Canada at any one time,” says Pardy. “The number is increasing, and as daily news reports show, they encounter various and frequent difficulties and dangers as they visit and reside abroad. Hundreds languish in foreign prisons on specious charges, while others need urgent medical attention or evacuation from the world’s trouble spots.”
The study charts the development over the past decade of an insidious doctrine, limiting the responsibility of the Government of Canada and forcing many affected Canadians to seek redress through the courts. 
“The historical Canadian approach of the universality of consular services for all Canadians was undermined,” says Pardy.  “The result has been inequity, unfairness and inconsistency in the provision of these vital services.” 
An issue of particular complexity is the increasing number of Canadians who have a second citizenship. “There are often serious impediments to Canada providing consular assistance for Canadians who are in their country of second citizenship”, says Pardy. 
The Report recommends that the government seek international agreement on dual national issues and, in the meantime, develop practical measures to assist such Canadians.  
Concludes Pardy, “The new government has an opportunity early in its mandate to address consular services in a comprehensive and forward looking manner. This is the spirit in which this Report is offered.” 
The Report is available on the CCPA website at http://policyalternatives.ca/ and the Rideau Institute website at http://www.rideauinstitute.ca/.
For more information, contact: Kerri-Anne Finn, CCPA Senior Communications Officer, at 613-563-1341 x306
OFFICES: 
 
- See more at: https://www.policyalternatives.ca/newsroom/news-releases/new-report-details-discrimination-and-unfairness-assistance-canada-offers-its#sthash.qMlf3p7L.dpuf



http://www.rideauinstitute.ca/wp-content/uploads/2016/03/Canadians-Abroad.pdf

Canadians Abroad A Policy and Legislative Agenda
 Gar Pardy

• The issues involved, in addition to that of discrimination in the provision of consular services using Crown Prerogative, include clemency and the death penalty, dual citizenship, transfer of offenders, Consular Service Fee, voting abroad in Canadian elections, Mandela rules on the treatment of prisoners, Canadian legal representation, commissions of inquiry involving consular issues, consular cases involving national security, privacy and the media, the revocation of Canadian citizenship, oversight of consular policy and cases, and an international conference on consular relations.
In summary, the recommendations for action by the Government of Canada are as follows: Crown Prerogative: Introduce a parliamentary resolution stating consular services to Canadians will be provided without discrimination and the government will disavow the use of the Crown Prerogative in such matters. In the longer term, establish in law the obligation to provide consular service to all Canadians and in doing so eliminate the use of the Crown Prerogative in this area. 

Clemency and the Death Penalty: Change existing policy so that clemency would be sought for all Canadians sentenced to death in foreign countries.

Dual Citizenship: Seek agreements with countries where recognition of Canadian citizenship is a problem in providing consular services and establish the obligation of Canada to extend such services to its dual citizens. In the longer term seek international agreement on a set of norms on the issue.

Transfer of Offenders: Through amendments to the International Transfer of Offenders Act, curtail the discretion available to Minister of Public Safety in considering applications for transfer by Canadian citizens.

Consular Service Fee: Establish a review of the use of the Consular Service Fee and the appropriateness of its current level. The review should be presented to Parliament.

Voting Abroad. Remove the present five-year limitation on the right of a Canadian citizen resident abroad to vote in Canadian elections.

Mandela Rules on the Treatment of Prisoners: Clearly state that Canada accepts the Mandela Rules on the Treatment of Prisoners and ensure they are reflected in Canadian prison policy.


 Canadian Legal Representation: Establish a review of the rules governing Canadian legal representation of Canadians in difficulty abroad and provide new norms to ensure there is appropriate cooperation by officials in Global Affairs Canada on the matter.


Commissions of Inquiry Involving Consular Issues: Review the recommendations of the O’Connor and Iacobucci Commissions of Inquiry as they relate to consular policy and actions and ensure that appropriate action is taken if it is found that current policy and practices are inconsistent with them.

Consular Cases Involving National Security: Establish the primacy of the rights of the Canadian citizen when information on national security is passed to foreign governments. Consular cases with national security concerns should be included in the development of new oversight procedures and organizations for national security. 

Privacy and the Media: Establish with the Privacy Commissioner guidelines for the release of privacy information concerning consular cases when issues of public safety and interest are involved. Equally, the Privacy Commissioner should provide guidelines for the use of information covered by the Privacy Act for policy analysis.

Revocation of Canadian Citizenship: Remove from law the revocation of citizenship of citizens with a second citizenship when convicted of certain crimes. Dual citizens should not be discriminated against on the basis of a second citizenship. [Update: Amendments introduced in late February to this effect.]


Oversight of Consular Policy and Cases: Initially ensure the House of Commons Committee on Foreign Affairs or a sub-committee assume formal responsibility in matters of consular policy and cases. In the longer term explore the establishment of an independent authority reporting to Parliament to deal with consular policy and cases and to receive from the public complaints on consular services.

International Conference on Consular Relations: Canada should play an active role in seeking international review of consular relations, including the Vienna Convention on Consular Relations. To that end Canada should host an international conference on the matter in 2017, the 50th anniversary of the coming into effect of the Convention.


In the past few years an insidious doctrine has been introduced governing such services. This doctrine suggests that first and foremost Canadians are primarily responsible for solving their own problems. This is akin to emergency room medical personnel screening patients on the basis of their life styles or the accidents they may encounter on life’s perilous journey. Equally, the previous government was quick to suggest that the problems of Canadians overseas were due to the actions of foreign governments, seeking to limit the responsibility of the Canadian government to provide appropriate assistance. While this is a significant element in some cases, the Government of Canada must accept full legal responsibility in ensuring that everything possible is done to assist such Canadians. A few weeks ago Amnesty International in association with the Fahmy Foundation released a “Protection Charter.” The Charter provides “principles to guide Canadian law and policy reform” in order to strengthen and make more effective “Canadian government action to defend the rights of Canadian citizens and individuals with close Canadian connections.” The Fahmy Foundation was created by Mohamed Fahmy, a Canadian journalist, who was wrongfully imprisoned in Egypt for his work during the recent but unfortunately short Arab spring of political change. Mr Fahmy was released and permitted to return to Canada, and he has made it his work to bring into “sharp focus the urgent need to reform and strengthen the laws, policies and practices that guide Canadian government action in such cases.” This report, which was undertaken simultaneously with the development of the Amnesty International Protection Charter, has some of the same objectives. This report brings together various issues associated with assistance to Canadians overseas and suggests various corrective actions that could be taken by the new government. The corrective actions include both policy and legislative initiatives and in their collectivity would create greater equity, fairness and consistency in the treatment of Canadians who go beyond our borders for a wide range of reasons. In all of this it is important to emphasize that the consular function does not carry with it the need to pass judgement on the activities of consular clients. Rather it operates independently of such judgements. Instead, it seeks to establish and require standards of conduct by governments in how individuals are treated.


The charge of discriminatory treatment by a government towards some of its citizens is one of the most serious that can be made. Prior to the start of the three Harper governments, in 2006, it was rare for a government to be charged with discrimination in providing a service to a Canadian citizen. There were often charges of incompetence, lack of interest or diffidence in such matters, but the idea that there was overt discrimination was not part of the public debate. The legal right of the government to deny assistance to Canadians in difficulty in a foreign country is the most serious issue affecting those travelling. Since travel is a right recently sanctioned by the Supreme Court, ultimately it will require legislative action through statute to ensure all Canadians obtain consular assistance. The Canadian government denies it has a legal duty to provide services to its citizens in a foreign country. This stands in sharp contrast to the many ways countries with diverse constitutional and legal regimes recognize the obligation to provide consular services. United States law provides a “clear and universal duty” to protect Americans abroad; such an obligation is a “primary obligation” for Mexican officials; Brazilian law requires “consuls to protect Brazilians abroad and to ensure compliance with rights under treaties, usage and principles of international law”; Hungary has written consular protection into its constitution as an entitlement of every citizen; and European Union law states that every citizen shall be “entitled to protection by the diplomatic or consular authorities of any Member State.”

Both Australia and the United Kingdom continue to emphasize that there is no obligation to provide consular services or a legal right for citizens to claim consular rights or services. The British, as with most “constitutional” issues, prefer the matter to be left undecided and let situational events decide the issues. However, it is rare for the British to deny consular services to citizens. They even went so far as to negotiate the return of British residents from the Guantanamo Bay prison. The Australian policy is much the same as that of Canada. Its “Consular Services Charter” states: “You do not have a legal right to consular assistance and you should not assume that assistance will be provided.” It is worth noting, however, that it is a rare government in Australia that would deny consular services to a citizen or work against the interest of a citizen in difficulty in a foreign country. A constant element in the delivery of consular services by the Government of Canada is the relative unimportance it has held within the work of Global Affairs Canada. Despite their fundamental importance to Canadians, consular affairs remain the ignored and perennial step-child of the work of Canada’s foreign affairs. In the personnel and financial resources made available (even after the implementation of the Consular Service Fee), consular affairs do not have the significance they should have in the overall work of the department. Success and failure are measured by individual cases, and while this is ultimately the measure that should be used, they should also be supported by a larger effort to promote a domestic and international environment in which the consular obligations of governments are universally accepted and followed.

The obligation a state owes to “all persons, whether nationals or aliens,” is a hopeful sign but the practice often falls far short of the principle involved. Consular services continue to operate more on the basis of the willingness of a state to be helpful than any acceptance of this principle. Unfortunately, this has been amply demonstrated by the specific actions of the previous Canadian government. Its willingness to discriminate against Canadians in difficulty overseas added to and supported the worldwide consensus that such matters were not important. Its actions, based more on ideological considerations than universal principles, reinforced the attitude of many countries where fingernail shortening, torture and executions were part of the norm. As the next section of this paper demonstrates, discrimination against specific citizens, giving national security dominance over the rights of citizens, refusal of support to some citizens facing execution, and an unwillingness to transfer Canadian prisoners all delivered a specific message to the international community about Canadian “values.” Of equal import, the policies of the previous government gave an overwhelmingly negative message to Canadian officials responsible for delivering consular services to citizens in foreign countries. If the government was willing to embed discrimination in its policies and actions, it was no surprise that officials were willing to adopt the view that “our hands are tied —all we can do is stand by and watch and let the local system play out” as part of the dominant policy. Government scientists were able to challenge restrictions on their ability to speak freely about their research, but consular officials were sufficiently few, and the issues so unknown outside of a select few, that they were unable to counter the government’s errant policies. It was left to a few dedicated lawyers to bring such matters before the courts in order to obtain remedy for affected Canadians. The Canadian policy changes that were made and accentuated over the last ten years fundamentally altered the basis on which consular services were provided to Canadians. The numerous successful applications to the courts for redress and relief strongly support the view that the changes were inimical to the well-being of Canadians, but there are few signs that officials then in charge of providing consular services argued against them. There is now an opportunity to redress this failure. While eliminating the scope of government discretion under the Royal or Crown Prerogative for the provision of such services is of fundamental importance, there is a wide range of other matters that require urgent action to overcome previous policies and actions that affect Canadians in foreign
countries. These issues require either legislative or administrative action or both. The issues are dealt with in detail in the next section of this paper. Apart from the Supreme Court decision in 2010 emphasizing the primacy of Crown Prerogative in consular matters, there have been a number of other court decisions critical of governmental decisions in this area.

Equality of Service The fundamental principle in the provision of governmental services to citizens is that of equality. The absolute principle that all citizens are equal before the law must be applied when a government offers specific services to its citizens. There are often practical derogations from this principle (for example pensions for seniors are not paid to the young) but for a target group care must be taken to ensure that entitlement differences are not based on extraneous factors and are in accordance with the Charter of Rights and Freedoms. Such services are financed out of specific and general taxes and this reinforces the need for equality. Discretion in the delivery of consular services has been available to the government since such services were first provided through the use of the Crown or Royal Prerogative principle. This prerogative essentially states that a government retains the ability to act as it deems appropriate if the matter is not covered by statute. The conduct of foreign relations, of which consular services forms a part, is not detailed by statute and therefore the government retains the absolute right to act as it considers appropriate. For consular services this is reflected in the instruction to all involved officials in a manual (the full text is in Annex B) which states:

Most consular services are provided as a matter of discretion by virtue of the royal prerogatives; except as provided by statute; no one is entitled to claim such services as a matter of legal right. This prerogative was rarely, if ever, used by earlier governments, but was given renewed prominence in 2010 as a result of the government’s appeal to the Supreme Court of Canada of earlier decisions by the Federal Court and the Federal Court of Appeal concerning Omar Khadr. In their decisions these courts stated that Mr Khadr’s Charter rights had been breached by actions of officials of the federal government. The Supreme Court in its decision agreed that Mr Khadr’s rights were “violated” and the conduct of officials “did not conform to the principles of fundamental justice.” Unfortunately, the Court went on to state: “It would not be appropriate for the court to give direction as to the diplomatic steps necessary to address the breaches of Mr Khadr’s Charter rights.” In doing so the Court gave absolute precedence to the “powers under the royal prerogative” available to the federal government in the conduct of foreign affairs. As such, discretion is legally available to the government in deciding what service it provides to Canadians in difficulty in foreign countries. As we have seen, such discretion is the basis on which discrimination is constructed and exercised. (A more complete text of the decision can be found in Annex C.) Consular services are part of several unique governmental services that are financed wholly by the users of the services. Each year the government collects around $100 million through the Consular Service Fee which is paid at the time a person applies for a passport. Over the past several years, efforts have been made to obtain greater transparency in accounting for this aspect of governmental finances, but so far complete accounting is not available. However, it can be stated with some certainty that the consular fees collected exceed by millions of dollars the cost of the services provided. This is contrary to the law establishing Consular Services Fees, which states that the monies collected are to be used exclusively for consular services. The essential feature in considering the use of the Crown Prerogative in the delivery of consular services is whether it conflicts with the Charter of Rights and Freedoms. The 2010 Khadr decision by the Supreme Court made it clear that Khadr’s rights under the Charter were violated. The Court, nevertheless, decided that an unwritten convention, the Crown Prerogative, took precedence over the basic written law governing the relationship between the state and its people. Both the Federal and Federal Appeal courts regarded the violation of Mr Khadr’s rights as a significant event and did

not believe that Crown Prerogative trumped the effort for a remedy. The Supreme Court of Canada, however, appears to have made a political decision. At the time the Court was under fire for a series of decisions contrary to government policies and Mr Khadr’s rights under the Charter were sacrificed. The elimination of Crown Prerogative from the provision of consular services is relatively easy to obtain. It could be done by parliamentary resolution or, in the longer term, specific legislation that would provide the statutory basis for the delivery of consular services to all Canadians irrespective of how citizenship was obtained. Equally, the resolution or legislation could establish in law the services that would be provided and where they would be delivered. In the past few years there were attempts through private members’ bills to have such a law enacted, but they did not succeed. The legislative route could be a lengthy process, and in the meantime, it is possible for the government to simply declare that consular services are not discretionary but available to all Canadians in accordance with the Charter. The nature of consular services is such that, in addition to the Charter, there is a need for other standards such as procedural fairness and recognition of reasonable expectations when a citizen seeks assistance from government. In a significant way the Federal Court, in its decision of March 4, 2009, concerning the government’s policy change on seeking clemency for Canadians sentenced to death abroad, highlighted these issues. Further details on the decision are in the next section of the paper.

Commissions of Inquiry Involving Consular Issues Ten years ago two commissions of inquiry were established to investigate the actions of Canadian officials in dealing with four Canadians who had been detained in Syria and, in the case of one, in Egypt as well. The first was the Report on the Events Relating to Maher Arar by Justice Dennis R. O’Connor3 . The second was the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin by the Honourable Frank Iacobucci4 . In their detailed reports both Commissioners provided numerous recommendations concerning consular services as well as recommendations for the RCMP and CSIS. The recommendations by Justice O’Connor relate to the policies and practices of the department of Foreign Affairs: he stated that there should be a “protocol to provide for coordination and coherence across government in addressing issues that arise when a Canadian is detained in another country in connection with terrorism-related activity.”5 Among others, Justice O’Connor also recommended the following: The Canadian government should develop specific policies and training to address the situation of Canadians detained in countries where there is a credible risk of torture or harsh treatment; If there is credible information that a Canadian detained abroad is being or has been tortured, the Minister of Foreign Affairs should be informed and involved in decisions relating to the Canadian response; Canadian officials should normally insist on respect of all of a detainee’s consular rights;

Consular officials should clearly advise detainees in foreign countries of the circumstances under which information obtained from the detainees may be shared with others outside the Consular Affairs Bureau, before any such information is obtained.6 Justice Iacobucci in his report made numerous observations concerning the delivery of consular services by Canadian officials to Mr Almalki, Mr Abou-Elmaati and Mr Nureddin. These two reports are the only comprehensive and detailed investigations by outsiders on the delivery of consular services. There is little evidence of the impact, if any, of their recommendations and observations on the delivery of consular services. It would be appropriate for their work to be reviewed—it is the tenth anniversary of the O’Connor report—and a public report made as to whether or not any specific changes have been implemented. Of particular importance would be the recommendations associated with evidence or suspicion of torture by the arresting authorities. It is an increasingly common feature of imprisonment in some countries and Canadians are often victims. If these recommendations have not been acted upon, then the government needs to either move forward expeditiously with appropriate action or provide an explanation for their failure to do so.


Oversight of Consular Policy and Cases As the single purveyor of official consular services, the Canadian government is frequently criticized for the quality of the services and often for the specific actions that have been taken. These criticisms are a regular feature of the reporting on such matters and seldom can there be an adequate response by the government due either to the requirements for privacy or the nature of the negotiations with a foreign government. As well, many consular matters involve obtaining the exceptional cooperation of a foreign government and it is a rare government, including our own, which is will-ing to cooperate in the full glare of publicity. One case involving Brazil a few years ago was conducted with heavy news coverage and a climate of recriminations from Canadians which ensured that the Canadians directly involved spent more years in a Brazilian prison before transfer to a Canadian prison than was necessary. Although it was proven that Brazilian actions were correct and just, it has taken years to reset the relationship to anything nearing normal In many areas where governmental actions and policies affect individual citizens, special offices, generally referred to as ombudsman, have been established that can intervene and seek redress on behalf of a citizen or support for the actions a government has taken. This is not the case with consular affairs. As matters now stand, short of the judicial system, there is no independent arbitrator available to investigate charges of governmental incompetence, inept actions or unjust policies in relation to consular affairs. As a result, in recent years many Canadians have resorted to the courts to compel more appropriate actions by government. It has proven time consuming, cumbersome, costly and procedurally challenging for individuals to obtain redress or for the government to demonstrate that its actions were appropriate. (A listing of some of these court cases can be found in Annex A.) Consular services are unique in that citizens using and needing these services fully fund their costs. However, there is no mechanism apart from letters of complaint to the minister or media publicity, or resort to the courts, for a citizen to obtain a review of the actions of officials and ministers considered by Canadians to be insufficient, inadequate or even malicious. There is a need to bridge this serious gap in the delivery of consular services. One possibility is the establishment of an independent office reporting to Parliament, authorized under law to investigate complaints from the public relating to consular services and the policies in place under which such services are provided. The record clearly demonstrates that the need for such an office is great and growing greater in this age of international travel in an increasingly troubled world. In the absence of an independent office on consular services, it would be helpful for the House of Commons standing committee on Foreign Affairs, or a sub-committee specifically struck for this purpose, to be more involved in consular matters. One possibility would be for the committee to devote at least one of its regular meetings annually to a review and discussion of consular matters. If a sub-committee were established, it could have ongoing overview of consular policy and case management. Expert opinion from within government and without could be called to provide views on issues and problems along with recommendations for solutions. Equally, the committee could review prominent and current consular cases of concern to the public. In recent years the practice has emerged for the government to appoint a Minister of State or a Parliamentary Secretary to assist the Minister of Global Affairs on consular matters. The idea is a good one, but its utility has been undermined by frequent changes in the person named, with the result that there is little consistency or knowledge developed on consular matters. The new government has now appointed a Parliamentary Secretary to the Minister of Global Affairs with responsibility for Consular Affairs. He is Omar Alghabra, the Member for Mississauga Centre, and, in the interim until a more permanent mechanism is found, he should be given the authority to investigate and report on the many issues relating to the delivery of consular services.


Conclusions and Recommendations
The new government has an opportunity, early in its mandate, to address consular services in a comprehensive and forward looking manner. As a first step it could appoint a member of Parliament with a mandate to investigate the myriad issues involved and to provide recommendations for action. To do so would provide hope for the thousands in need of consular services. To assist in this systematic and comprehensive review, this report makes the following recommendation for consideration by the Government of Canada.

 Crown Prerogative: Introduce a parliamentary resolution stating consular services to Canadians will be provided without discrimination and the government will disavow the use of the Crown Prerogative in such matters. In the longer term, establish in law the obligation to provide consular service to all Canadians and in doing so eliminate the use of the Crown Prerogative in this area.

Clemency and the Death Penalty: Change existing policy so that clemency would be sought for all Canadians sentenced to death in foreign countries.

Dual Citizenship: Seek agreements with countries where recognition of Canadian citizenship is a problem in providing consular services and establish the obligation of Canada to extend such services to its dual citizens. In the longer term seek international agreement on a set of norms on the issue.

Transfer of Offenders: Through amendments to the International Transfer of Offenders Act, curtail the discretion available to Minister of Public Safety in considering applications for transfer by Canadian citizens.

Consular Service Fee: Establish a review of the use of the Consular Service Fee and the appropriateness of its current level. The review should be presented to Parliament.


Voting Abroad. Remove the present five-year limitation on the right of a Canadian citizen resident abroad to vote in Canadian elections.

Mandela Rules on the Treatment of Prisoners: Clearly state that Canada accepts the Mandela Rules on the Treatment of Prisoners and ensure they are reflected in Canadian prison policy.


Canadian Legal Representation: Establish a review of the rules governing Canadian legal representation of Canadians in difficulty abroad and provide new norms to ensure there is appropriate cooperation by officials in Global Affairs Canada on the matter.


 Commissions of Inquiry Involving Consular Issues: Review the recommendations of the O’Connor and Iacobucci Commissions of Inquiry as they relate to consular policy and actions and ensure that appropriate action is taken if it is found that current policy and practices are inconsistent with them.


Consular Cases Involving National Security: Establish the primacy of the rights of the Canadian citizen when information on national security is passed to foreign governments. Consular cases with national security concerns should be included in the development of new oversight procedures and organizations for national security.


Privacy and the Media: Establish with the Privacy Commissioner guidelines for the release of privacy information concerning consular cases when issues of public safety and interest are involved. Equally, the Privacy Commissioner should provide guidelines for the use of information covered by the Privacy Act for policy analysis.


Revocation of Canadian Citizenship: Remove from law the revocation of citizenship of citizens with a second citizenship when convicted of certain crimes. Dual citizens should not be discriminated against on the basis of a second citizenship. [Update: Amendments introduced in late February to this effect.]


Oversight of Consular Policy and Cases: Initially ensure the House of Commons Committee on Foreign Affairs or a sub-committee assume formal responsibility in matters of consular policy and cases. In the longer term explore the establishment of an independent authority reporting to Parliament to deal with consular policy and cases and to receive from the public complaints on consular services.


International Conference on Consular Relations: Canada should play an active role in seeking international review of consular relations, including the Vienna Convention on Consular Relations. To that end Canada should host an international conference on the matter in 2017, the 50th anniversary of the coming into effect of the Convention.

http://www.cbc.ca/news/opinion/canadians-imprisoned-abroad-1.3917023
OPINION

Canada needs a law protecting citizens imprisoned abroad: Mohamed Fahmy

Other countries have enshrined consular protection for foreign detainees in federal law. Why hasn't Canada?

By Mohamed Fahmy, for CBC News Posted: Dec 31, 2016 5:00 AM ET Last Updated: Jan 01, 2017 11:55 AM ET
According to Global Affairs Canada, there are roughly 1,400 Canadians currently detained abroad, and many of them are facing grave human rights violations.
According to Global Affairs Canada, there are roughly 1,400 Canadians currently detained abroad, and many of them are facing grave human rights violations. (Amr Nabil/Associated Press)

About The Author

Photo of Mohamed Fahmy
Mohamed Fahmy
Mohamed Fahmy is an award-winning journalist and author of The Marriott Cell: An Epic Journey from Cairo's Scorpion Prison to Freedom. He is the founder of the Fahmy Foundation, which advocates for free speech and fights suppression of the press.

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Canadians who work, study and travel abroad might be astonished to learn they are not guaranteed consular assistance if they get into trouble overseas. Rather, consular intervention is left to the discretion of Global Affairs Canada.
As a former political prisoner in Egypt — jailed unjustly for "conspiring with a terrorist group and fabricating news" while working for Al Jazeera News in 2013 — I understand the importance of having your country on your side. I've also worked as an International Red Cross protection officer, visiting prisoners, Canadians included, in Lebanon's prisons, and I know that time is never on their side. The faster officials intervene, the better. But while the U.S., Germany, Brazil, the U.K., South Africa and at least 28 other countries have enshrined consular protection in federal law, Canada lags.

No legal obligation

According to Global Affairs Canada, there are roughly 1,400 Canadians currently detained abroad, and many of them are facing grave human rights violations. While Canadian officials often do get involved in these cases, they remain under no legal obligation to do so.
After my own release in 2015, I met with former Canadian ambassador and director general of consular affairs Henry Garfield "Gar" Pardy in Ottawa. His deep knowledge, experience and determination to address this gap in law was exactly what I was looking for during my search for answers.
In his 2016 report entitled Canadians Abroad: A Policy and Legislative Agenda released by the Rideau Institute and the Canadian Centre for Policy Alternatives (CCPA), Pardy notes that of the millions of Canadians outside of Canada at any given time, "hundreds languish in foreign prisons on specious charges."
The study outlines how, over the last decade, the Conservative government limited its responsibility to support and safeguard its citizens abroad — evidenced in particular in cases involving Omar Khadr and his brothers. "The historical Canadian approach of the universality of consular services for all Canadians was undermined," says Pardy. "The result has been inequity, unfairness and inconsistency in the provision of these vital services."   
Canada's current "discretionary" approach, Pardy explains, means the government can theoretically choose to do nothing — or everything — to free Canadians detained, jailed or even tortured in the prisons of autocratic and repressive regimes.

'May take steps...'

Indeed, according to the Government of Canada's travel assistance information, the government "may take steps to pressure the foreign authorities to abide by their international human rights obligations" in cases where a Canadian's human rights are being violated (emphasis added). The situation is murkier in cases where an imprisoned Canadian holds dual citizenship, since a foreign government might not recognize the legality of Canadian citizenship — a situation that the Canadian government acknowledges "could limit the ability of the Government of Canada to assist."
Since my release, I've partnered with Alex Neve, secretary general of Amnesty International Canada and an unflagging champion of human rights, on a mission to better protect Canadians abroad. We believe it's high time for Canada to enshrine a new law that obligates our government to intervene when our citizens are imprisoned in a foreign country.
Obviously there are many details to work out in terms of defining the scope of the law — including exactly how, when and where the Canadian government would take action — but certainly in cases where international human rights have been breached, consular officials should, by law, be required to intervene.
Earlier in 2016, Neve and I presented a 12-point "protection charter" to the Liberal government in Ottawa. A coalition of lawyers, former prisoners, diplomats and Canadian civil society organizations have since endorsed our call for action, and we are optimistic about a new era of change.
Iran Cda Professor 20160929
Homa Hoodfar was imprisoned in Iran for supposed propaganda against the state. (Ryan Remiorz/Canadian Press)
An encouraging recent example is that of Kevin Garratt — the Canadian Christian aid worker who ran a café in the city of Dandong and was arrested on spying charges.
The Chinese government released Garratt in September 2016, just over a week after Prime Minister Justin Trudeau visited China. In that case, as in the case of Homa Hoodfar, the Concordia professor who was imprisoned in Iran for supposed propaganda against the state, the happy resolution was the result of the Canadian government's decision to engage in careful and quiet diplomacy.
The move to intervene in these and similar cases should not really be a choice, however, which is why Canada needs a law.  Pardy argues that by maintaining its "discretionary" Crown prerogative, the Canadian government retains the right to act as it pleases on consular matters, forcing families of those detained abroad to often seek redress from the courts. But it shouldn't have to be this way.
The next milestone in our mission will be to introduce a private member's bill to Parliament, in hopes of a successful vote and new legislation that will ensure Canadians who travel the globe receive the protection they deserve, as citizens of a democratic country. When those people are detained, unjustly, in foreign prisons, that country should be obliged to intervene.   
This column is an opinion. For more information about our commentary section, please read this editor's blog and our FAQ.


  • Carol Becker
@Pauline Tremblay I am Canadian born and raised. Right now I live in another country. When you go to live or work in another country that is your decision and the Canadian government shouold not get involved in any way if you are arrested. As for your comment on misguided opinion, sorry to say you are the one who has a misguided opinion.
  • 18 hours ago
Pauline Tremblay
  • Pauline Tremblay
@Carol Becker 

I believe your opinion is more than misguided. The article is talking about those who do not commit crimes...but are arrested, charged and put in prison and are having their human rights trampled on. It is the Canadian government's duty to assist in any way they can to help mitigate torture and other human rights abuses of Canadians abroad.

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