10/18/2012 08:30 EDT | Updated 12/18/2012 05:12 EST

If Detained Abroad, Would Canada Defend You?


The recent repatriation of Omar Khadr has demonstrated yet again that serious concerns remain about Canada's approach when its citizens are detained abroad. The rights of too many Canadians have been or continue to be violated in foreign countries, and Canadian governments have regrettably been inconsistent defenders of those rights. As demonstrated by the Khadr case and by many others, protective action is required to guarantee that Canada will respect the rights of its citizens, wherever they are in the world, whatever the circumstances, and however unpopular their case may be.


In his announcement of Khadr's return, Public Safety Minister Vic Toews sidestepped the question of Khadr's Charter rights, while emphasizing once again the crimes of which he has been convicted and the ideological environment in which he was raised. Indeed, it sometimes appears that the government -- and many in the public -- would prefer that such factors could somehow supersede the rights of Canadian citizens.

Accordingly, the government resisted intervening on Khadr's behalf despite a unanimous Supreme Court decision stating that his Charter rights had been breached, and that his continued detention constituted a violation of the fundamental principles of the rule of law and due process. In fact, at the time of the ruling, he was the only citizen of any Western country still detained at Guantanamo, all others having been repatriated.

Similarly, the government has refused to intervene on behalf of Canadians on death row abroad despite the Supreme Court's clear ruling that capital punishment is cruel and unusual and that Canada must seek the commutation of such sentences.

In fact, disrespect for the law has become a regular feature of the Conservatives' approach when Canadians are detained elsewhere. Earlier this year, the Federal Court found that Minister Toews failed to provide adequate reasons for rejecting the repatriation of Richard Goulet, a Canadian jailed in the U.S. who Correctional Services had deemed a suitable candidate for transfer back to Canada, notably because he was unlikely to re-offend. The court went further, however, calling out the Harper government for disregarding its legal duty to justify its decisions in matters of ministerial discretion, such as the repatriation of inmates.

More egregiously still, the Government has been reluctant to respect the rights of Canadians detained abroad, even when they have not had the benefit of a trial, and when there is no case against them. Such was the situation of Abousfian Abdelrazik, a Montreal man forced to remain in the Sudan because the Government considered him a security threat, despite RCMP and CSIS investigations that found no evidence for such a claim. Only when the Federal Court ordered his repatriation did the government back down.

The Conservative record on Canadians detained abroad is deeply troubling, and it constitutes the aggravation of a problem that has existed for too long, under Liberal governments as well. In 2002, Maher Arar was apprehended in the United States and sent to Syria, partly on the basis of false information supplied to the Americans by the RCMP; Arar was imprisoned and tortured in Syria for almost a year, and no disciplinary action has been taken against the officers involved.

Similarly inaccurate intelligence -- sharing by Canadian security agencies has resulted in the detention and torture of Ahmad El-Maati in 2001, Abdullah Almalki in 2002, and Muayyed Nureddin in 2003; a 2009 parliamentary motion offering an apology to these men -- surely the least we can do -- was passed over the objection of the Conservatives.

In order to ensure that the rights of Canadians are respected by their own government on a consistent basis, I have introduced and re-introduced legislation in the House of Commons, the Protecting Canadians Abroad Act (C-359). This first-of-its-kind bill would set out rights and obligations -- including rights to consular access, consular visits and repatriation -- for Canadians detained, disappeared or captured in another country, and would establish reporting requirements for Canadian officials who believe that a Canadian detainee has been tortured. Further, it would obligate the government to request repatriation when there are reasonable grounds to suspect torture, cruel or unusual punishment, or arbitrary detention.

Most importantly, C-359 would allow recourse against the government -- including suits against Ministers -- if Canada does not live up to its obligations, such as seeking the repatriation of a Canadian unlawfully or unjustly detained.

Ideally, the Government of Canada would, of its own accord, make every effort to guarantee that the Charter rights of all Canadians are protected everywhere and in every situation. Sadly, this has not always been the case, and thus measures such as those I have proposed are necessary to help ensure that the rights of Canadian citizenship are not offered as mere privileges only to those Canadians who the Government likes -- and of whose actions and opinions it approves -- but rather that citizenship rights are universally respected and upheld.


Omar Khadr Returning To Canada