Section 6 Federal Government Responsibility and Capacity to Protect Canadians and Their Rights Overseas, Including Respect for International Law Provisions

The responsibility of a state to protect its citizens both at home and abroad is a fundamental, uncontested and long-established part of the doctrine of state sovereignty. The capacity of a state to protect its citizens abroad presents challenges wholly different from domestic security provisions. The symbolic nature of the extension of a governmental duty to protect Canadians abroad is highlighted in the official passage that appears in all Canadian passports:

The Minister of Foreign Affairs of Canada requests, in the name of her Majesty the Queen, all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as may be necessary.⁷⁰

In Canada the responsibility to protect Canadians abroad, as the passage indicates, lies with the federal Department of Foreign Affairs. Protection of Canadians depends on the capacity of that lead department to help Canadians on foreign soil. Canadian action occurs within a complex web of international law provisions, state-to-state relations, and foreign state legal practices and codes. The complexity of the issue increases when Canadians find themselves trapped in war zones, held under duress in lawless areas, incarcerated by states that do not abide by accepted Western norms, or somehow caught up in the extra-legal practices that have emerged, post-9/11, as part of the US-led war on terror.

The recent example of the hostage ordeal of two Canadians, James Loney and Harmeet Sooden, who travelled to Iraq as part of a group known as the Christian Peacemaker Teams, highlights the difficulties of protecting individuals who choose to enter declared war zones. The case of Maher Arar has provided a dramatic illustration of what can befall individuals ensnared in a United States counter-terrorism practice known as "extraordinary rendition." In both cases significant Canadian resources were deployed to render assistance to Canadians abroad. In both cases, Canada had, on its own, no foolproof sovereign capacity to protect Canadians abroad. Loney and Sooden were rescued by a coalition military team in Iraq, led by British special forces. Media reports suggested the presence in Iraq of a significant Canadian contingent deployed to assist in locating and securing the release of the two Canadian hostages. Arar was deported to Syria by the United States’ authorities without the consent of the Canadian government. While in a Syrian jail, Mr. Arar had access to Canadian consular officials, but Canada had no power to force his release. The protective screen that shields Canadians abroad is, by nature, fragile.

To further explore the issue of the responsibility and capacity to protect Canadians abroad in a rights context, we have to appreciate that what is at stake is the right to "the security of the person," a Charter right under Canadian law.⁷¹ Security of the person can encompass both physical security and privacy. Canadian Charter rights do not extend beyond the borders of Canada, but Canadians, for better or worse, often travel abroad with the expectation that their rights travel with them.

While the Canadian government has a responsibility to protect Canadians abroad, individual Canadians living or travelling abroad also have a responsibility to ensure they are reasonably informed about potential threats to their security and to take reasonable precautions. A duty of prudence exists. Where individual responsibility and government responsibility overlap is in the area of information.

The federal government should be able to provide Canadians with authoritative information on risks associated with travel and living abroad. It will not be the sole source, but rather part of a diffuse information universe comprising other key providers such as the news media, travel guides, travel agents, local knowledge and travellers’ tales. While government information must be easily accessible to ordinary Canadians, its value resides in its authoritativeness.

The first test of the federal government’s responsibility and capacity to protect Canadians overseas thus comes in the realm of information provision. In this regard, Foreign Affairs Canada, as the lead department, depends heavily on its website (www.fac-aec.gc.ca) to provide information. In its mission statement, posted on the web, the Department indicates that it "works to promote prosperity, ensure Canadians’ security within a global framework, and promote Canadian values and culture on the international stage." The Consular Affairs Bureau, part of Foreign Affairs Canada, hosts a very useful website. The broad intent is clearly to be both informative and cautionary. Among the most relevant components of the web-delivered information is the section entitled "Current Issues," whose purpose is to "provide Canadian travellers with event-driven and timely information and advice on such matters as security, natural disasters, demonstrations and health hazards, all of which could seriously impact on travel abroad." ⁷² According to Foreign Affairs Canada, "Current issues enable the Government of Canada to communicate information to the general public quickly, clearly and concisely." As well as the web-delivered information there is an emergency operations centre whose telephone number is listed on the website. The online "Current Issues" series is complemented by such additional publications as "Country Travel Reports" and " Travel Updates."

The Consular Affairs Bureau’s Current Issues pages typically indicate the nature of the travel alert applicable to the country concerned and provide brief details about the dangers involved. Foreign Affairs Canada uses a graduated travel warning system, the most serious of which advises Canadians against "all travel" to a particular country and urges Canadians in the country to leave. Currently the highest level of warning is applied to four countries: Iraq, Afghanistan, Liberia and Somalia. "Current Issues" reporting is supported by the "Country Travel Reports" series, which provides additional details. A brief examination of reports posted by the Consular Affairs Bureau suggests that no special attention is paid to the human rights record or criminal justice system of foreign states.

Failure to highlight human rights concerns and provide at least a summary of the justice system of states to which the Canadian government attaches a travel warning is a notable shortcoming.

Apart from this problem, the provision by Foreign Affairs Canada of accessible and authoritative information regarding potential risks involved in travel and residence in foreign countries meets the standards expected. More detailed study would be required to assess whether the array of information posted was sufficiently timely; whether the level of travel alert corresponded to the known facts of the security situation in the country; and to what extent the Foreign Affairs system was publicly known and used, not just by individual travellers themselves but also by other information providers, especially the media and commercial travel services.

Provision of accessible and timely information will not, of course, prevent Canadians from finding themselves in situations abroad where their physical security and rights are threatened. Travel and foreign residence are matters of individual choice. Canadians can face imprisonment abroad, if deemed to have broken the laws of the state they visit, and can otherwise be caught up in a variety of threatening situations, ranging, according to the Foreign Affairs lexicon, from security dangers to avian flu, political demonstrations, natural disasters, disease outbreaks, and obstacles to travel in foreign regions.

The agency responsible for assisting Canadians who find themselves in difficulty abroad is the Consular Service of the Department of Foreign Affairs. It maintains a global network of offices in more than 180 countries. This network operates communications on a 24/7 basis through the Emergency Operations Centre in Ottawa. The work of consular services finds its sanction in the United Nations Vienna Convention on Consular Relations of April 24, 1963, to which Canada is a signatory.⁷³ The Vienna Convention spells out the general obligations of states with regard to the provision of consular assistance to foreign nationals by the "sending" and "receiving" states.

The capacity of Canadian consular services to protect Canadians and their rights depends on a host of issues, some of which, such as the attitudes, practices and legal norms of foreign states, are beyond Canadian control. Those issues within the realm of Canadian control would include resources, staffing, training, expertise, and the corporate culture of the Consular Service. Foreign Affairs Canada sets standards for the performance of its Consular Service and invites Canadians to comment on them. To my knowledge, broader public audits of the performance of the Consular Service are not routinely done, either by any external agency or by the relevant Parliamentary committees.

The most dramatic insight into the functioning of the Consular Service in a case involving human rights has been provided recently by public testimony to the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the Arar Commission). Senior officials from the Department of Foreign Affairs and its Consular Affairs Bureau gave sworn testimony before the Commission’s legal staff and were cross-examined by attorneys representing Maher Arar. These officials included Konrad Sigurdson, the current Director General of the Consular Affairs Bureau (testimony June 23, 2004), Maureen Girvan, the consular services officer based in New York (testimony May 11-12, May 16, 2005), Gar Pardy, the Director General of the Consular Affairs Bureau during the time of Mr. Arar’s captivity in 2002-2003 (testimony May, June 2, 2005, October 24, 2005), Franco Pillarella, Canadian ambassador to Syria at the time (testimony June 14-15, 2005) and Leo Martel, then consul at the Canadian Embassy in Damascus (testimony August 30-31, 2005). Their public testimony is available on the Arar Commission website. Justice Dennis O’Connor is scheduled to submit his report to the government in April of 2006.

The public testimony of senior officials involved in consular matters has provided us with an extensive body of documentation regarding the practices of the Consular Service in a security-related case. The testimony speaks to such issues as Canadian knowledge of the US practice of extraordinary rendition, knowledge of Syrian human rights practices, interaction with Syrian government officials, operational procedures within the Canadian government, and interdepartmental information sharing and coordination.

It is vital that lessons be learned from the Arar case, particularly as regards the ability of the Canadian government to protect the rights of Canadian citizens swept up in the global war on terror. Justice O’Connor’s report will hopefully serve this purpose, though his specific mandate is not a lessons-learned one. Whatever shape Justice O’Connor’s report takes, there will remain a need for additional study of the public documentation generated by the Arar Commission.

In a case such as that of Maher Arar, the Consular Service represents the Government of Canada. The success of consular activities may well depend on the extent of the state in question’s belief that the actions of the Consular Service represent a matter of high priority and significance for the Government of Canada. In this context, the federal government requires a mechanism to publicly register its interest in protecting the rights of Canadians abroad. There are various possible levels of Canadian political engagement, from the Prime Minister, to the Minister for Foreign Affairs, to Parliamentarians and down to the individual ambassador. In the previous Liberal government, a new initiative was taken to establish a Parliamentary Secretary to the Minister for Foreign Affairs responsible for protecting Canadians abroad. The post was held by Liberal MP, Dan McTeague. Mr. McTeague became the government’s de facto spokesperson on issues of Canadians abroad.

Mr. Harper’s new government discontinued the previous initiative. The Minister of Foreign Affairs is now served by two Parliamentary secretaries, neither of whom has explicit responsibilities with regard to the protection of Canadians abroad. It is difficult to weigh the pros and cons of the function of a Parliamentary Secretary with an explicit mandate for protecting Canadians overseas. The Liberal experiment was a short one. It was abandoned, it would seem, in the interest of streamlining the Cabinet and Parliamentary Secretary function and perhaps for that reason alone.

Privacy issues have some bearing on the federal government’s responsibility and capacity to protect Canadians and their rights overseas. Canadian privacy laws do not have any extra-territorial reach, of course. But where the matter becomes pertinent is in cases where Canadian information, protected under Canadian laws, finds its way into foreign-held databases, possibly to cause harm to Canadians travelling or residing abroad. There are multiple paths by which such information can travel. The two key pathways are (1) transfers of information sanctioned by state bodies and (2) transfers of information arranged by private sector agencies. The first category will be discussed in the section of this report devoted to security and intelligence liaison. The second category is an issue that has been taken up by the Privacy Commissioner of Canada, particularly under her mandate to uphold the Personal Information Protection and Electronic Documents Act (PIPEDA).

Just as the Consular Affairs Bureau of Foreign Affairs Canada served as the main portal of federal government information for Canadians travelling or residing abroad, the Federal Privacy Commissioner functions as the main portal on privacy issues. The Privacy Commissioner also acts as an advocate for privacy rights and as a resource for research in the area. In the year 2004, for example, the federal Privacy Commissioner contributed to a study initiated by the Office of the Information and Privacy Commissioner for British Columbia. This study sought to measure the impact on Canadian privacy rights of the new powers acquired by US law enforcement and intelligence agencies under the Patriot Act. In her conclusion, Privacy Commissioner Jennifer Stoddart argued for further investigation of both the issues highlighted above. She said:

The circumstances under which personal information held by the private sector in Canada should be transferred to organizations in other countries is an important policy issue that needs further examination.⁷⁴

With regard to state-to-state transfers of information, The Privacy Commissioner argued that, while the Arar Commission should shed light on the transfer of information in national security cases, there was a need to examine the issue more broadly across a wider range of federal government departments. She further argued that there was a need for the government to explain to Canadians the nature of such transfers.⁷⁵

Key recommendation:

The CHRC should commission an evaluation, for internal use and guidance, of the Arar Commission report upon its release. The evaluation should focus on such key issues as intelligence sharing, Canadian federal agency knowledge of the human rights environment at home and abroad, and the recommendations of the Arar Commission as to a review mechanism for the national security activities of the RCMP.