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Canadians Detained Abroad
By Abby Deshman on February 19, 2013
Millions of Canadians travel abroad. Each year, some are charged and convicted of crimes in foreign countries. These individuals are often detained for long periods of time in foreign prisons, far from their families. Many will be surrounded by a foreign bureaucracy, culture and language, and may be subject to conditions that fall far below what Canadians would view as acceptable. Over thirty years ago we realized that there was little to be gained by forcing people to serve their prison sentences abroad. Both for the rehabilitation of offenders, the interest of their family and public safety in general, a sentence in a prison of the country of citizenship is often preferable. Language barriers, isolation, difficulties in contacting families and friends, and, in some countries, prison conditions may make the sentence particularly harsh or undermine any possibility of rehabilitation and reintegration. For Canadian families, the difficulty and costs of maintaining contact with a loved one may be significant. And since citizens have a right to return to their country of citizenship after their sentence is completed, there is an interest in ensuring that they have access to rehabilitation programs while in prison. It is for these reasons that most countries have entered into multi-state conventions of bilateral arrangements to provide for such transfers. It is indeed viewed as enhancing public security and not diminishing it to ensure proper rehabilitation to offenders who are more than likely to come back in the country. In Canada, the International Transfer of Offenders Act was put into place to facilitate precisely this return and rehabilitation. Once an offender and the foreign detaining country have given their approval, a person can ask the Canadian government to approve the transfer to a Canadian institution. In recent years, however, the federal Minister vetting these applications has drastically decreased the approval rates – from 100% approval of all recommended transfers between 1999 and 2005, to just 27% approved in 2009-2010. And in numerous court cases, time after time, judges have reprimanded the Canadian government for improper decision-making and failing to articulate why they are refusing to allow people to complete their sentences in Canada. Now the question has come to the Supreme Court of Canada: if a Canadian wants to transfer to a prison in Canada, and the foreign government agrees to the transfer, when can the Canadian government refuse to take a citizen back? And if they do, does it engage a citizen’s constitutionally-protected right to enter Canada? On February 18, 2013 CCLA appeared before the Supreme Court of Canada to argue that the government’s decisions in these cases does engage Canadians’ mobility rights, which are constitutionally protected under s. 6 of the Charter. And although there may be a few exceptional situations where transferring a person to a Canadian prison would actually increase immediate safety risks, in the vast majority of cases public safety will be served by allowing a Canadian citizen to be near their family, to access programs, and be subject to appropriate Canadian supervision. To read CCLA’s factum click here.
By Sukanya Pillay on August 8, 2012
There have been recent media stories about CSIS considering use of information either procured from torture, or transferring information to a country where it could be used to torture a detainee. CCLA’s position is clear: Canada cannot be complicit in torture. Torture is illegal in Canadian law and in international law: 1) This means that no evidence procured through torture can ever be used as evidence in a Canadian courtroom, or to deprive a person of his or her liberty. 2) Canada cannot pass on information to a foreign country, knowing that it may result in the torture of a detainee. Four Canadian-Arab men – Maher Arar, Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nurredin – were detained and tortured abroad due to direct or indirect faulty sharing of information by Canadian officials with foreign agencies. Two Federal Commissions of Inquiry have made detailed and specific recommendations (O’Connor Commission) and specific comments (Iacobucci Commission): CCLA believes the information-sharing recommendations and comments of the O’Connor and Iacobucci Commissions must be followed to ensure that Canada is not complicit in the torture of detainees held abroad. 3) Finally, the Minister of Public Safety has repeated that Canada will not ‘dither’, and that information procured from torture may be relied upon to “prevent a mass terror event”. CCLA believes that Canada must not encourage foreign countries to torture. Canadian police always act upon tips of mass threat – for example an anonymous phone call of a bomb threat will result in police first evacuating the public space, searching for a bomb, and — if a bomb exists – deactivating and disposing of the bomb in a safe manner. CCLA believes that the comments of the Minister of Public Safety – which conflate the need to act to prevent a mass terror attack, with a supposed need for torture information — is a harmful syllogism that undermines respect for the law and undermines respect for human life and human dignity – which respect is at the heart of the absolute legal prohibition against torture.
By Communications on July 27, 2012
The 2012 Summer Series is a collection of essays, articles and op-eds published by the Canadian Civil Liberties Association. The Summer Series explores some key questions about rights and responsibilities in democracy and examines topical issues through a civil liberties lens. To view all articles of the Summer Series, click here. Every year, thousands of Canadians are arrested around the world. Some are guilty, others are not. Some are treated fairly, but many are not, for various reasons. Whether it is because there is prejudice against foreigners, a weak justice system, corruption, a mistaken application of the law, or a failure to apply international standards, some people are abused, wrongfully accused, subject to torture or imprisoned in abusive conditions. Subsequently, these Canadians will be judged more or less impartially or plead guilty in more or less coercive circumstance. Later, their country of imprisonment may decide to accept that they be transferred to a Canadian prison to complete their sentence. At that point, they become completely at the mercy of the Minister of Public Security. All Canadians can apply to complete their sentence in a Canadian prison and, if the country where they are detained agrees, they may request the transfer. Most countries engage in transfer of prisoners because this enables the country of citizenship to support the rehabilitation of its nationals in a context where they will return to their country of citizenship at the end of their sentence anyway. In Canada, the Harper government has expanded the discretion of the Minister to deny such transfers. This increased the politicization of such transfer decisions. This is certainly the case in the context of Omar Khadr. The guilty plea entered by Khadr before a military court and after already eight years in Guantanamo prison provided for an additional year in prison in Guantanamo and that the remainder 7 years could be in a Canadian prison. Omar Khadr who was 15 at the time of his participation in combat in Afghanistan has been imprisoned at Guantanamo since 2002, the only citizen of a Western country to still be there. The Canadian courts who have had to review his case concluded that the Canadian intelligence services violated his rights during interrogations, and he was not treated in accordance with international conventions, including the Convention on the rights of the Child. The Americans agreed to the transfer of Mr. Khadr to a Canadian jail nine months ago. Minister Toews still refuses to accept the transfer request and weighs the political costs of such a decision. The National Post invites people to vote on the question: who wants the return of Omar Khadr? People express themselves: they do not like the Khadr family, are afraid of terrorists, want murderers punished more severely. A decision that should be taken on the basis of legislative criteria is converted into a popular plebiscite. All Canadians should be concerned about the way this case has been handled. The Khadr case dramatically exposes the inconsistencies of our politics: we sign international agreements such as the Convention against Torture or the Convention on the Rights of the Child and ignore their application in concrete cases. We claim to want impartial justice, free from politics, but when the courts rule in the Khadr case, the Minister refuses to comply or to acknowledge the implications of the judicial pronouncements. Detention conditions at Guantanamo violate international conventions of human rights, and Canada still does not care. The rights of all Canadians are weakened by indifference and intransigence of the Minister in the Khadr case. The Minister is dragging his feet and refuses to promptly approve a transfer in the case of a prisoner in a context of multiple violations of human rights recognized by Canadian courts. When there are rights violations or abusive conditions of detention, the Minister should act promptly. Approving a transfer is not a “favour” to Mr. Khadr, it is the application of the same law for all Canadians. The process is designed to ensure that the Canadian correctional service is involved in the rehabilitation of persons who, in any case, will be returning to Canada when they finish their sentences. Public safety is best served by this involvement of the correctional service. The obstinacy of the Minister does not help anyone here: Canadians are not better protected by Khadr’s detention in Guantanamo instead of in Canada, the Americans who may want to do other plea bargains with other prisoners do want Canada to honour the deal. What the obstinacy of the Minister is doing is weakening the rule of law and every Canadian’s right to believe that he or she will be treated according to law at all times.
Nathalie Des Rosiers General Counsel
By Communications on July 13, 2012
The 2012 Summer Series is a collection of essays, articles and op-eds published by the Canadian Civil Liberties Association. The Summer Series explores some key questions about rights and responsibilities in democracy and examines topical issues through a civil liberties lens. To view all articles of the Summer Series, click here. Senator Romeo Dallaire and Omar Khadr’s Canadian legal counsel are teaming up withChange.org to launch a petition in support of Khadr’s repatriation. Given your commitment to human rights and basic justice, we’d like to a call on your support to help promote this initiative. Specifically, we would like you to draw attention to this petition. Change.org is sending the email on behalf of Senator Dallaire to approximately half a million Canadians, but we are hoping to reach many more with your help. Sukanya Pillay, director of the national security program at CCLA, recently wrote an op-ed for Huffington Post detailing six reasons for which Omar Khadr should be allowed to come back to Canada. Please read at attached petition, and thanks in advance. Hope to hear back from you soon. Nathalie Des Rosiers General Counsel
**** About this Petition The case of Omar Khadr-a Canadian citizen and former child soldier-is a stain upon our society and shows a blatant disregard for Canada’s obligations under international law. During his 10 nightmarish years at Bagram and Guantánamo Bay, Omar Khadr’s rights have been violated time and again. He has been denied the right to due process and a fair trial, the right to protection from torture, and the rights stemming from the Convention on the Rights of the Child and its Optional Protocol on Children in Armed Conflict. After years of dragging its feet, Canada finally agreed to his return in 2010, so long as he served one additional year in Guantánamo. No one forced the government’s hand. It made its promise voluntarily. That year has passed, and yet the transfer request continues to gather dust on the minister’s desk awaiting his signature. This is simply unacceptable. Just days ago, Marine Col. Jeffrey Colwell, chief defense counsel for military commissions openly chastised Canada for crippling US efforts to enter into plea agreements: If the US “can’t carry through on their end of the bargain, it has a chilling effect on the willingness of others to plead. There was an expectation by all parties involved that Khadr was going to be home last fall. It’s July, and he’s not.” The Americans have held up their end of the deal. Omar Khadr has held up his end of the deal. Why is the Canadian government refusing to follow through on its commitment? Enough is enough. Canada must keep its word – and Minister Toews must authorize Omar Khadr’s return without delay. A deal is a deal. If thousands join me, we can force Canada to honour its promise. Now is the time to speak up and spread the word. Please sign this petition and help me bring Omar Khadr home. LGen Honourable Roméo A. Dallaire, (Ret’d), Senator
By Sukanya Pillay on June 1, 2012
Today, the UN Committee Against Torture (“Committee”) released its Concluding Observations about Canada’s compliance with the UN Convention Against Torture (“UNCAT”). Because Canada has ratified the UNCAT, it has specific legal obligations it must implement. As you know, CCLA has been concerned that Canada was falling short on its commitments. In earlier posts, we referred you to CCLA’s written submissions and a summary, and provided you with a description of our oral presentation to the UN Committee in Geneva on May 18th, 2012. After being briefed by the CCLA and two other Canadian NGOs, the UN Committee met with the Canadian Delegation on May 20th and 21st, 2012 in Geneva, to engage in a “constructive dialogue” about Canada’s implementation of UNCAT. Well, we are happy to tell you that the UN Committee seems to have picked up on CCLA’s key concerns and incorporated our suggestions into their Concluding Observations. Some of the issues CCLA highlighted, which appear in the Committee’s Concluding Observations include (but are not limited to) the following:
The Committee has asked Canada to implement specific recommendations regarding the above concerns, and to respond in writing to specific questions by June 1, 2013, in its Concluding Observations – You can read it here. CCLA will continue working to ensure that Canada complies with its legal obligations pursuant to UNCAT, we will monitor Canada’s responses to the UN Committee’s recommendations, and we will continue to keep you posted.
By Sukanya Pillay on May 21, 2012
On Monday May 21, 2012 and Tuesday May 22, 2012, Canada will be appearing before the UN Committee Against Torture. Canada will engage in a constructive dialogue with Committee Members, regarding Canada’s implementation of, and compliance with, the UN Convention Against Torture. To watch Canada’s appearance before the UN Committee Against Torture LIVE click here http://www.treatybodywebcast.org/ Canada has signed and ratified the UN Convention Against Torture, which means Canada has voluntarily assumed binding legal obligations contained in this treaty. CCLA appeared before the UN Committee on Friday, May 18th,2012 to brief Committee members of our concerns. We hope the Committee members will use CCLA’s briefing materials to engaged in a more informed question and answer session with the Canadian delegation.
By Sukanya Pillay on May 18, 2012
Geneva: The Canadian Civil Liberties Association today made a presentation to members of the UN Committee Against Torture, at the United Nations Palais Wilson in Geneva. The Committee is comprised of ten legal experts from around the world, charged with overseeing how State Parties implement the Convention at home. CCLA presented highlights from our report to the Committee Members, on Canada’s compliance with its legal obligations pursuant to the UN Convention Against Torture. To read our report, click here: FINAL CCLA UNCAT MAY 2012 To read a SUMMARY, click here: CCLA SUMMARY UNCAT CCLA answered questions regarding (i) the need for Canada to provide legal redress for victims of torture and State Immunity — in particular CCLA argued that interpretation of the State Immunity Act to bar civil suits for torture is tantamount to granting impunity for a violation of jus cogens; (ii) the need for Canada to recognize that domestic violence in the case of Nathalie Morin and her three children — all Canadian citizens unable to leave Saudi Arabia — can constitute torture and requires States to investigate and intervene – particularly where both Canada and Saudi Arabia are State Parties to the Convention Against Torture; (iii) CCLA’s concerns on the lack of implementation of legal safeguards and policy recommendations coming from the two Federal Commissions of Inquiry headed by Justices O’Connor and Iacobucci; (iv) and following from the last point, our concerns that plans for “information sharing and pooling” pursuant to the proposed Canada-US Security Perimeter must comply with the Canadian Charter of Rights and Freedoms and the recommendations of the two Inquiries; (v) Bill C31 and CCLA’s ongoing concerns regarding violations of the rights of refugees; (vi) incarceration and segregation of individuals with mental health issues; (vii) extradition, the principle of non-refoulement, and CCLA’s concern that individuals should not be deported or extradited to the risk of torture, the risk of a manifestly unfair trial, or to face charges based upon corrupted information procured from torture; and (viii) CCLA’s work in seeking accountability for the failures of the G20 policing in Toronto in 2010 and CCLA’s reaction to the OIPRD report released earlier this week. The Canadian delegation will be appearing before the UN CAT on Monday, May 21, 2012, and Tuesday, May 22, 2012. CCLA will be providing the Committee Members with a summary brief, which we hope may be useful during the Constructive Dialogue between the Committee and the Canadian Delegation. We will keep you posted on the proceedings.
By Sukanya Pillay on April 17, 2012
Canada has publicly urged Iran not to execute 44 year-old Canadian-Iranian Hamid Ghassemi-Shall. Mr. Ghassemi-Shall is being held in the notorious Evin prison. While on a family visit to Iran in 2008, he was arrested by Iranian authorities and accused of being a spy. Since then, Mr. Ghassemi-Shall has been imprisoned and unable to return to his home and family in Canada. CCLA welcomes the actions of Prime Minister Harper, and Minister of Foreign Affairs John Baird, in seeking to protect the fundamental rights of Mr. Ghassemi-Shall — a Canadian held abroad — and in seeking to ensure that Iran complies with international law. CCLA is particularly concerned that Mr. Ghassemi-Shall faces the threat of execution, that he has been arrested and detained without fair trial, and, reportedly, that he has been subjected to cruel treatment — all contrary to international legal standards. Previously, CCLA has called on the Canadian government to protect the fundamental rights of Canadian citizens detained in foreign countries, by urging these foreign governments to comply with their legal obligations in international law.
By Sukanya Pillay on March 23, 2012
The Canadian Press recently published a document obtained through an access to information request. The document is a Directive to CSIS, from the Minister of Public Safety, dated July 28, 2011, and deals with torture. The Directive, entitled “Information Sharing with Foreign Entities”, essentially permits two types of information sharing: (1) CSIS is permitted in certain circumstances to share information with a foreign state, even when CSIS knows the information may result in an individual abroad being tortured. Any such information-sharing must be in accordance with Canada’s legal obligations. CCLA RESPONSE: CCLA argues that Canada’s legal obligations – domestic and international – prohibit complicity in torture. (2) CSIS is permitted, in exceptional circumstances, to rely on and share information that was procured by torture, with domestic and foreign recipients. All decisions about sharing information will be made in accordance with Canada’s legal obligations. CCLA RESPONSE: CCLA argues that Canada’s domestic and international legal obligations prohibit the “fruits of torture” – i.e. information procured from torture – being used (i) as evidence in legal proceedings, (ii) to deprive an individual of his or her liberty, or (iii) to deprive an individual of his or her legally guaranteed human rights. We will continue to monitor developments on information-sharing and torture, and will keep you posted. The Windsor Star today published a CCLA op-ed stating our position that evidence obtained through torture is illegal in Canadian and international law, is immoral, and is dangerous. Our op-ed was written in mid-February 2012 — in response to revelations that the Minister of Public Safety had written a December 2010 letter (since replaced by the July 2011 Directive described above) to CSIS endorsing the sharing of information procured by torture in exceptional circumstances. To read our op-ed, click here
By Sukanya Pillay on December 1, 2011
CCLA welcomes the news that Abousfian Abdelrazik has been de-listed from the UN 1267 listing regime. At this stage, CCLA is very concerned that Mr. Abdelrazik remained on the list from 2006-2011 and suffered from being publicly and internationally branded as a ‘terror suspect’, on the basis of “secret evidence”, with his assets frozen, unable to receive financial assistance, and his mobility rights severely curtailed. CCLA has spoken out repeatedly to argue against the UN 1267 listing process because of the unfairness and lack of due process inherent in the UN 1267 listing process, and the devastating consequences for wrongly listed innocent individuals, and their family members. To read an earlier CCLA opinion piece on this issue, click here http://ccla.org/2010/06/26/canada-and-un-resolution-1267/ . For further analysis, please read “The UN 1267 Sanctions Regime: No Due Process”, below. Currently, Mr. Abdelrazik is suing the Federal Government for its alleged role in his prolonged detention in Sudan. CCLA will keep you posted on this important case. The UN 1267 Sanctions Regime: No Due Process
To fight terrorist activities of Al Qaida and the Taliban, the UN Security Council passed Resolution 1267 (1999). Related resolutions were passed over the next ten years, creating a sanctions regime commonly referred to as UN 1267. Notably, UN 1267 creates sanctions that target individuals. The sanctions include being publicly “listed”, being subject to a global travel ban and asset freezes, and being unable to receive funds from any sources including employers and lenders. But what if a listed person is innocent of any terrorist activity and wrongly listed? What recourse does this person have? UN 1267 has been criticized internationally for its failure to provide basic due process rights. People are given no notice before they are listed by the UN 1267 Committee. Criminal charges or convictions are not a prerequisite to listing. Individuals do not always know which State listed them, or why. Without knowing sufficient reasons, how can an individual make an effective defence? And to whom? One Canadian judge (Justice Zinn of the Federal Court), and many international writers, have condemned the UN 1267 regime as being untenable under international law, because of the “denial of legal remedies” and failures of due process, natural justice, and fairness. In Europe, courts have struck down domestic legislation implementing UN 1267, because of the lack of due process. By Resolution 1904 (2009) the UN 1267 Committee created an Office of the Ombudsperson, occupied since June 2010 by Canadian Kimberly Prost. Now, individuals, organizations or groups can submit delisting requests directly to the Ombudsperson. The Ombudsperson will then investigate by contacting relevant States and other parties, and then issue her recommendations in a report to the UN 1267 Committee. While creation of the Ombudsperson’s office is welcome, it does not go far enough in addressing the inherent flaws of the UN 1267 listing regime. There is no guarantee the Ombudsperson will receive complete or accurate information from States who support an individual’s listing. The UN 1267 Committee is not obliged to accept the Ombudsperson’s recommendations. And refusals of the UN 1267 Committee are not subject to any judicial review process. In other words, a listed individual can still be denied due process and an effective remedy. Currently one Canadian is on the UN 1267 list, Abousfian Abdelrazik. Listed in 2006 despite any criminal charge or conviction against him, he has tried for years to be delisted. A 2007 delisting request submitted by Canada on Mr. Abdelrazik’s behalf, was refused by the UN 1267 Committee without reasons. Though there is speculation, it is uncertain which State requested that Mr. Abdelrazik be listed. The reasons for his listing are unknown, though he has argued that his listing is based on faulty information procured from torture, contrary to Canadian and international law. Mr. Abdelrazik has filed a delisting application with the Ombudsperson, currently being investigated. Whatever the recommendations of the Ombudsperson, there is no guarantee the UN 1267 Committee will follow them. The CCLA is opposed to the current UN 1267 listing process, and any listing process devoid of due process and procedural fairness. If the UN 1267 regime continues, the CCLA believes there must be key changes. At a minimum, States who list individuals or seek their continued listing, must provide sufficient reasons, so an individual can provide a proper challenge. Individuals must have effective recourse to remedies, redress, appeal and/or judicial review. Listing itself must be periodically reviewed so that new exculpatory information or errors in the original listing process can be revealed,.The CCLA agrees with international recommendations that any listing be “preventative and temporary”, and as such agrees with the proposed 36-month sunset clause: i.e. listing would expire in 36 months unless, after an effective review, the UN 1267 Committee decides to continue listing and provides sufficient reasons for this decision, with opportunity for review or appeal. Finally, individuals should be able to request the Ombudsperson to recommend humanitarian exemptions of the UN 1267 Committee. The CCLA notes that without these amendments, the UN 1267 sanctions regime remains at odds with the foundational principles of the UN Charter –commitment to human rights including fairness and due process. |
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