Why The Government Must Do More to Protect Canadians Detained Abroad

FEBRUARY 1, 2016
By journalist and former prisoner of conscience Mohamed Fahmy with Amnesty International Canada Secretary General Alex Neve

Held in an Egyptian jail for more than a year, Canadian journalist Mohamed Fahmy felt let down by Ottawa’s efforts to help him. Here he offers 12 ways the government can do better.

In solitary confinement in a freezing Egyptian jail cell, with no sunlight or fresh air, my one hope was that the Canadian government was doing everything possible at the highest levels to advocate for my rights and for my release.

I was let down.

I am safely home now. But around the world there are other Canadian citizens, permanent residents and men and women with close Canadian connections who face dire conditions in foreign jails. They are unjustly imprisoned, held incommunicado, subjected to unfair trials, at risk of torture or under sentence of death.

They too want to believe the Canadian government will spare no effort on their behalf.

But they too are often disappointed.

When it comes to defending Canadians imprisoned abroad, government efforts vary considerably.

Some Canadians detained abroad have garnered headlines; while others know only obscurity. Diplomats have generally worked diligently. But while cabinet ministers have occasionally mobilized; they have often adamantly refused to get involved. In some cases, Canadian officials have even been complicit in the injustice.

In an ever more connected world Canadians live, travel, work, study and have family everywhere. With that smaller world, and no lack of oppressive governments, comes heightened risk of human rights abuse.

I know it from my own experience and from my work with the International Committee of the Red Cross in Lebanon.

Prime Minister Justin Trudeau has stressed that the rights of all Canadians must be upheld equally. He has a tremendous opportunity now to make that real.

That is why, through the Fahmy Foundation, I have joined with Amnesty International to launch a Protection Charter, a 12-point proposal for reform of Canada’s consular laws, policies and practices dealing with imprisonment abroad. It is widely endorsed by others, including released prisoners and families whose loved ones still languish behind bars.

First, the obligation to provide consular assistance — equally to all Canadians — must finally be expressly enshrined in Canadian law.

Second, the policies that guide Canadian consular action need updating. When do ministers get involved? How best to handle cases of urgent medical need? How best to work with lawyers? What about keeping families informed? Revised guidelines will bring greater consistency.

Third, it must be made clear that Canada will always defend Canadian citizenship, even when other governments ignore it in cases of dual nationality.

Next, it is vital that Canadian officials never cave in to unjust local laws. Respect for another country’s laws must give way when international human rights norms are contravened.

Fifth, there must be a firm commitment to seek clemency anytime a Canadian is sentenced to death abroad.

Sixth, some groups, notably journalists operating in hot spots and conflict zones, require special measures.

Seventh, all of these overhauls need to be backed up by a new independent officer responsible for consular affairs, such as a commissioner reporting directly to Parliament.

Eighth, given that many of these cases often arise in a national security context, the long overdue gap in review and oversight of Canadian national security agencies must be addressed.

Ninth, Canadians and everyone held in foreign jails would be better protected if there was wider support for the UN’s torture prevention treaty, the Optional Protocol to the Convention against Torture. That treaty institutes prison inspections focused on eradicating torture. Canada hasn’t ratified yet, however. And we can’t push other governments to get on board until we do.

Tenth, released prisoners must be able to pursue legal action against foreign officials responsible for torture and other abuses. Canada’s State Immunity Act needs to be amended to allow such lawsuits in Canadian courts.

Eleventh, Canada can rarely go it alone in these cases. Cooperation with other governments is vital. It would be advisable to take steps now to establish arrangements with other governments to assist when the need arises.

Finally, concerns also often arise with respect to permanent residents and individuals with other close Canadian connections. Their rights matter. It is time for a consular strategy that reaches beyond citizens.

I thrived on the solidarity of concerned Canadians. I benefited from the efforts of hard-working diplomats. But I felt let down by senior politicians. I know that reforms can better assure stronger, more consistent action to protect the rights of other Canadians who face human rights abuse in foreign prisons.

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