Bill C-554

3rd Session, 40th Parliament,

59 Elizabeth II, 2010

house of commons of canada

BILL C-554

An Act to Protect Canadian Citizens Abroad

Whereas the conferral of Canadian citizenship upon an individual implies certain obligations on the part of the Government of Canada;

Whereas all Canadian citizens deserve to benefit equally from the rights conferred through citizenship;

And whereas all Canadian citizens deserve the protection of the Government of Canada while located abroad, in a manner consistent with domestic law and international obligations;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Protecting Canadians Abroad Act.

PART 1

INTERPRETATION

2. The following definitions apply in this Act.

“Canadian” means a Canadian citizen and, for greater certainty, includes Canadian dual citizens.

“Canadian official” means any employee of the Government of Canada or the government of a province or territory of Canada and, for greater certainty, includes consular officials.

“captured” means being compelled, through force or threat of force, to remain in the custody of an entity, other than the Government of Canada or a foreign government, and includes being captured incommunicado where appli- cable.

“case management judge” means a case management judge referred to in Rule 385 of the Federal Courts Rules.

“Committee Against Torture” means the body established pursuant to Article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

“consular official” means an employee of the Government of Canada who is trained and employed to provide consular services to Canadians travelling or living outside of Canada.

“designated contact” means:

(a) any individual designated as a contact person by a Canadian under this Act orally or in writing; or

(b) in those circumstances where a consular official is unable to communicate with a Canadian for the purposes of this Act,

(i) the individual designated as the emergency contact person in the Canadian’s passport application or, where an emergency contact is unavailable, the guarantor of the Canadian’s passport application, or

(ii) where a Canadian passport is unavailable for the Canadian, an adult member of the Canadian’s family with whom he or she lives or, if such a member is unavailable, any member of the Canadian’s immediate family.

“detained” means being compelled, through force or threat of force, to remain in the custody of a foreign government, and includes being detained incommunicado where applicable.

“disappeared” means being detained or captured, followed by a refusal to acknowledge the deprivation of freedom or by concealment of the fate or whereabouts of the detained or captured Canadian.

“foreign government” means a governmental authority not constituted pursuant to the laws of Canada.

“incommunicado” means being held in conditions that make it impossible to communicate with outsiders.

“Minister” means the Minister of Foreign Affairs and International Trade.

“personally identifiable information” means information that can be used, alone or in conjunction with other information, to uniquely identify a single individual.

“repatriation” means the return of a detained or stranded Canadian to Canada.

“specially managed proceeding” means a specially managed proceeding referred to in Rule 385 of the Federal Courts Rules.

“stranded” means being outside of Canada and unable to return to Canada for any reason other than

(a) being detained or captured or having disappeared;

(b) being involved in a judicial process that conforms to the principles of fundamental justice;

(c) a natural disaster;

(d) solely because the price of transportation to Canada cannot be paid.

“torture” means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person

(a) for a purpose including

(i) obtaining from the person or from a third person information or a statement,

(ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and

(iii) intimidating or coercing the person or a third person, or

(b) for any reason based on discrimination of any kind,

but does not include any act or omission arising only from, inherent in or incidental to lawful sanctions.

“trial management conference” means a trial management conference referred to in Rule 270 of the Federal Courts Rules.

3. Nothing in this Act shall be interpreted in a manner to read down, abrogate, eliminate, or otherwise limit in any way any rights held by individuals with ties to Canada, whether they be Canadian citizens or not.

PART 2

DETAINED CANADIANS

4. (1) A Canadian official, other than a consular official, who has reasonable grounds to believe that a Canadian is being detained shall immediately inform a consular official.

(2) A consular official who has reasonable grounds to believe that a Canadian is being detained, or who has been contacted by a Canadian official pursuant to subsection (1), shall investigate in a timely manner in order to determine the situation of that Canadian.

(3) The obligation referred to in subsection (2) remains until a consular official has either confirmed with a foreign government that it is detaining the Canadian referred to in that subsection or confirmed with that Canadian that he or she is not being detained.

5. (1) A detained Canadian has the right to be visited by a consular official in a timely manner where possible once a consular official becomes apprised of his or her detention.

(2) A detained Canadian, after the initial visit, has the right to be visited by a consular official at regular intervals thereafter where possible, the frequency of such visits being determined by all relevant circumstances, including the seriousness of the allegations against him or her, the conditions of his or her detention, and the likelihood of his or her being tortured.

(3) Where a Canadian is detained and released before a consular official has the opportunity to visit him or her, he or she has the right to be visited by a consular official to discuss the circumstances surrounding his or her detention.

6. (1) A consular official shall, to the best of his or her ability, monitor the condition of the detained Canadian and the conditions of his or her detention.

(2) A Canadian official who has reasonable grounds to believe that a detained Canadian has been, is being or may be tortured, in the context of his or her detention, shall as soon as possible notify the Minister, the highest-ranking member of the relevant Canadian embassy, consulate, high commission or other diplomatic mission and a designated contact of the detained Canadian of this belief.

(3) A Canadian official who is told by a detained Canadian that he or she has been tortured, or threatened with torture, in the context of his or her detention shall as soon as possible notify the Minister, the highest-ranking member of the relevant Canadian embassy, consulate, high commission or other diplomatic mission and a designated contact of the detained Canadian of this statement.

(4) Despite subsection (3), when a detained Canadian requests that the Canadian official not inform the designated contact of his or her allegations of torture, the Canadian official shall note it and comply with the request.

(5) A consular official who is unable to gain private access shall as soon as possible notify the Minister, the highest-ranking member of the relevant Canadian embassy, consulate, high commission or other diplomatic mission and a designated contact of the detained Canadian of this situation.

7. During each visit, a consular official shall raise the issue of legal representation with a detained Canadian and shall place him or her in contact with a lawyer or other legal representative should he or she desire one.

8. (1) A consular official with reasonable grounds to believe that a Canadian has been detained shall immediately notify a designated contact of that Canadian to inform him or her of the situation.

(2) A consular official shall further notify a designated contact of the detained Canadian

(a) once the situation of the detained Canadian has been confirmed;

(b) once a consular official has visited, or attempted to visit, the detained Canadian; and

(c) at least once every two weeks thereafter, for so long as the detention merits a repatriation request pursuant to section 9, in order to provide updates on the situation of the detained Canadian.

(3) A consular official shall respond to all reasonable requests for information by a designated contact of a detained Canadian to the best of his or her ability and in a timely manner.

(4) Despite subsection 8(1) of the Privacy Act, the consent of a detained Canadian to disclosure under subsection (3) shall be presumed unless he or she can expressly communicate otherwise.

9. The Minister shall engage the foreign government that is detaining a Canadian and formally request the repatriation of that Canadian where:

(a) the Minister has reasonable grounds to believe that the detained Canadian has suffered, is suffering or may suffer torture in the context of his or her detention;

(b) the detained Canadian is being detained in conditions that involve acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture; or

(c) the detained Canadian is being subjected to arbitrary detention.

10. (1) Where repatriation is requested pursuant to section 9, but this request is denied by the foreign government to which it is addressed, the Minister or a representative of the Government of Canada may bring the situation to the attention of

(a) the Committee Against Torture, if the request was made pursuant to paragraph 9(a) or (b); and

(b) the United Nations Working Group on Arbitrary Detention, if the request was made pursuant to paragraph 9(c).

(2) Where repatriation is requested pursuant to section 9, but this request is denied by the foreign government to which it is addressed, the Minister shall continue to request the repatriation of the detained Canadian and shall consider using any other recourse available to the Government of Canada under international law.

11. Upon repatriation, the imprisonment of a formerly-detained Canadian may continue, to the extent permitted by Canadian law and international law.

PART 3

STRANDED CANADIANS

12. A stranded Canadian has the right to meet with a consular official to raise his or her situation and seek the assistance of the Government of Canada.

13. Where a foreign government does not prohibit the repatriation of a stranded Canadian, the Minister shall not prevent the repatriation of the stranded Canadian, and shall permit the stranded Canadian to obtain a Canadian passport.

14. Where a foreign government prohibits the repatriation of a stranded Canadian, the Minister shall engage that foreign government and formally request that Canadian’s repatriation.

15. Where repatriation is requested pursuant to section 14, but this request is denied by the foreign government to which it is addressed, the Minister shall continue to request the repatriation of the stranded Canadian and shall consider using any other recourse available to the Government of Canada under international law.

PART 4

CAPTURED CANADIANS

16. (1) A Canadian official, other than a consular official, who has reasonable grounds to believe that a Canadian has been captured shall immediately inform a consular official.

(2) A consular official who has reasonable grounds to believe that a Canadian has been captured, or who has been contacted by a Canadian official pursuant to subsection (1), shall

(a) immediately attempt to confirm the situation of that Canadian; and

(b) immediately contact a designated contact of that Canadian to inform him or her of the situation.

(3) A consular official shall further notify a designated contact of a captured Canadian

(a) once the situation of that Canadian has been confirmed; and

(b) at least once every two weeks thereafter, for as long as that Canadian remains in captivity in order to provide updates on his or her situation.

(4) A consular official shall respond to all reasonable requests for information by a designated contact of a captured Canadian to the best of his or her ability and in a timely manner.

(5) A consular official shall use all reasonable means and exercise all reasonable options to attempt to visit a captured Canadian at regular intervals.

(6) Notwithstanding subsection 8(1) of the Privacy Act, the consent of a captured Canadian to disclosure under subsection (4) shall be presumed unless he or she can expressly communicate otherwise.

(7) A consular official shall use all reasonable means and exercise all reasonable options to attempt to gain access for humanitarian organizations to visit a captured Canadian.

17. (1) A consular official shall, to the best of his or her ability, monitor the condition of and conditions in which a captured Canadian is being held.

(2) A Canadian official who has reasonable grounds to believe that a captured Canadian has been, is being, or may be tortured, in the context of his or her captivity, shall as soon as possible notify the Minister, the highest-ranking member of the relevant Canadian embassy, consulate, high commission or other diplomatic mission and a designated contact of the captured Canadian of this belief.

(3) A Canadian official who is told by a captured Canadian that he or she has been tortured, or threatened with torture, in the context of his or her captivity shall as soon as possible notify the Minister, the highest-ranking member of the relevant Canadian embassy, consulate, high commission or other diplomatic mission and a designated contact of the captured Canadian of this statement.

(4) Despite subsection (3), when a captured Canadian requests that the Canadian official not inform the designated contact of his or her allegations of torture, the Canadian official shall note it and comply with the request.

(5) The Minister shall use all reasonable means and exercise all reasonable options to obtain the release of a captured Canadian.

PART 5

DISAPPEARED CANADIANS

18. (1) A Canadian official, other than a consular official, who has reasonable grounds to believe that a Canadian has disappeared shall immediately inform a consular official.

(2) A consular official who has reasonable grounds to believe that a Canadian has disappeared, or who has been contacted by a Canadian official pursuant to subsection (1), shall

(a) immediately and continuously attempt to confirm the situation of that Canadian; and

(b) immediately notify a designated contact of that Canadian to inform him or her of the situation.

(3) A consular official shall further notify a designated contact of a Canadian who has disappeared

(a) once the situation of that Canadian has been confirmed; and

(b) at least once every two weeks thereafter, for as long as the disappearance of that Canadian lasts, in order to provide updates on his or her situation.

(4) A consular official shall respond to all reasonable requests for information by a designated contact of a Canadian who has disappeared to the best of his ability and in a timely manner.

(5) Notwithstanding subsection 8(1) of the Privacy Act, the consent of a disappeared Canadian to disclosure under subsection (4) shall be presumed.

PART 6

REPORTS AND RECOURSES

19. (1) The Minister shall report quarterly to Parliament on all Canadians who are detained, stranded or captured or have disappeared, including, as applicable

(a) their names;

(b) their places of residence in Canada;

(c) where they are detained, stranded or captured or have disappeared;

(d) whether they are incommunicado;

(e) any allegations made against them in connection with their being detained, stranded, captured or having disappeared;

(f) their conditions of detention or captivity;

(g) the risk of their being subjected to torture;

(h) a summary of any statements they have made to Canadian officials with respect to their treatment or general welfare in the context of being detained, stranded, captured or having disappeared; and

(i) a summary of the measures taken by the Minister and other representatives of the Government of Canada to seek their repatriation or release.

(2) Before the report to Parliament is distributed, a consular official shall give every Canadian mentioned in the report the opportunity to request that all his or her personally identifiable information be struck out, and shall ensure that such information is struck out if the request is made or if a consular official is otherwise unable to communicate with the person concerned.

20. (1) Any Canadian may apply to the Federal Court of Canada for a writ of mandamus compelling the relevant department, agency, official, representative or Minister to fulfil their obligations pursuant to any of Parts 2 to 5.

(2) Despite subsection 18.1(2) of the Federal Courts Act, an application for a writ of mandamus under subsection (1) may be made at any time that the subject of the application remains abroad.

(3) A writ of mandamus under subsection (1) shall be conducted as a specially managed proceeding.

(4) A case management judge shall be assigned to a proceeding under subsection (1).

(5) In a proceeding under subsection (1), a trial management conference shall be conducted before the case management judge assigned under subsection (3) within 15 days of the service of the notice of application.

(6) At the trial management conference under subsection (5), the case management judge shall fix the period for completion of all steps in the proceeding in order to ensure the most expeditious hearing as is just in the circumstances.

21. (1) A Canadian who has suffered physical or psychological injury as a result of the failure of any department, agency, official, representative or Minister to fulfil their obligations pursuant to any of Parts 2 to 5 may apply to a court of competent jurisdiction for compensation.

(2) In the context of any action undertaken pursuant to subsection (1), a failure to request repatriation as prescribed by this Act shall be deemed to be the cause of a Canadian continuing to be detained or stranded.