Amir Attaran and Gar Pardy

At the mercy of the government

The Globe and Mail

Canada's legal system is said to respect peace, order and good government. Not always. Buried within the law books is an atavistic power unfamiliar to most Canadians, the Royal (or Crown) Prerogative, or the residue of power untouched by Parliament. Most Canadian governments have used the prerogative sensitively, so that it attracts little attention. But since 2006, the government is using it arbitrarily, even discriminatorily, to deny some Canadians the usual protections when travelling abroad.

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The prerogative's dark side appeared most recently in the Abousfian Abdelrazik case. The government argued in the Federal Court of Canada that it could lawfully refuse Mr. Abdelrazik, a Canadian who went to Sudan to visit his mother, a passport to return home to his children in Montreal.

Passports are a "matter of discretion falling within Crown prerogative," and the government argued that it has no "legal obligation in international law to even provide consular protection."

To translate: If you are in trouble overseas and go to a Canadian embassy, Canada's government believes that it has the option, but not the obligation, to help. If the government is fond of you, like Brenda Martin, it may help with papers or a private jet home, but if it scorns you, like Mr. Abdelrazik, it may revoke your passport and exile you. The choice is the government's alone.

No laws govern this relationship, the government says. As then-Mr. Justice Konrad von Finckenstein of the Federal Court wrote in an earlier case, "Canadians abroad would be surprised, if not shocked, to learn that the provision of consular services in an individual case is left to the complete and unreviewable discretion of the minister." Except for the Charter of Rights and Freedoms, the minister's exercise of the prerogative is absolute.

What this means is that Canadian citizenship is less than it appears.

Other governments long ago passed laws that bind their discretion and make it mandatory to help their citizens abroad. For example, the German Constitutional Court has written that the German state has "a constitutional duty to provide protection for German nationals and their interests in relation to foreign states." In the United States, a similar obligation is included in statutes requiring the government to provide consular services.

But in Canada, Parliament has never passed such a law, and consular officers have long been instructed that consular services are discretionary. That posed no problem when the prerogative was exercised sparingly, but today a litany of unresolved cases - not just that of Mr. Abdelrazik, but of Omar Khadr, Amanda Lindhout, Beverly Giesbrecht, Ronald Smith and others - shows that the current government is taking arbitrary and capricious licence with the prerogative.

Currently, the only remedy these Canadians have is an expensive, slow appeal to the courts to assert their Charter rights. In Mr. Khadr's case, Mr. Justice James O'Reilly of the Federal Court ordered the Prime Minister to request Mr. Khadr's return from Guantanamo Bay. In Mr. Abdelrazik's case, Mr. Justice Russel Zinn of the Federal Court ordered the government to issue an emergency passport and bring him home. The turn is revolutionary: Until a few weeks ago, Canadian courts had never overridden the Crown's Prerogative.

Rather than proceed with a haphazard judicial erosion of the prerogative, Parliament should pass a Protection of Canadians Act with rules to guarantee consular services for all Canadians, irrespective of background or circumstance. The statute should require consular services to be non-discriminatory; should place a clear, positive duty on consular officers to assist Canadians in distress; should give Canadians denied consular services access to a lawyer and a highly expedited appeal to court; and should permit them in a closed courtroom to see all personal information, including intelligence reports or diplomatic démarches that the government now hides as secret.

If a Protection of Canadians Act were already law, many of the most recent spectacles would have been avoided. The government could not hide behind secret evidence to justify its neglect of Mr. Abdelrazik or Mr. Khadr - evidence that, when finally revealed, demonstrated that the Canadian Security and Intelligence Service was knowingly complicit in their detention and torture.

The government also could not play favourites, and when it negotiated with al-Qaeda to release elite Canadians such as Robert Fowler and Louis Guay, it also would have to negotiate with other hostage-takers to release ordinary Canadians such as Beverly Giesbrecht or Amanda Lindhout.

Perhaps it is not surprising for a government that attacks the Leader of the Opposition for having spent too much time outside Canada to be indifferent or hostile to the millions of Canadians who travel internationally for work or pleasure. But the freedom to travel is every Canadian's right, and when Canadians abroad land in trouble for whatever reason, they should not be subject to the whims of the government of the day.

For Parliament to extend statutory protection to the millions of Canadians who venture internationally would be a major milestone, and it would mean that Canadians are finally protected as Americans or Germans already are. To do otherwise leaves Canadians not only to the vagaries of foreign governments, but to the sometimes tyrannical vagaries of the Canadian government as well.

Gar Pardy retired from the Canadian foreign service in 2003 and for more than a decade headed Canadian consular services. Amir Attaran is a Canada Research Chair and associate professor of law and medicine at the University of Ottawa.