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In the last three years, Stephen Harper's government has been the subject of several judicial scoldings. All have been at the hands of the Federal Court of Canada, which took a dim view of government decisions involving Canadians in serious difficulty abroad. Collectively, the decisions represent the denial of the government's efforts to curtail assistance to such Canadians – a shortcoming recently on display in the treatment of Suaad Hagi Mohamud.
Omar Khadr had two favourable decisions from the Federal Court, and even one from the Supreme Court of Canada, that ultimately stated the government was obliged to request his release from Guantanamo Bay prison; Abousfian Abdelrazik had his return to Canada ordered by the Federal Court despite the government's pleas that to do so was contrary to a United Nations resolution; convicted murderer Ron Smith was strongly supported by the Court in his request to have the government continue support for his plea for clemency; and in two other cases involving Canadians imprisoned in the United States, the Federal Court ordered Ottawa to reconsider their requests for transfers to Canadians prisons.
In all of these situations, and especially in its pleadings before the court, the federal government sought to establish the principle that it had complete discretion in deciding which Canadians it would assist and which it would not. In their decisions, the judges did not deny the availability of discretion. Rather, the Federal Court – on a variety of grounds – denied the basis on which discretion had been used in these specific situations, and in the Abdelrazik matter went so far as to state that his mobility rights under Section 6 of the Charter of Rights and Freedom had been denied.
The government has no one to blame but itself for this debacle. Its lumpy and idiosyncratic decision-making has created the perception, if not the reality, of playing favourites.
The problem began when Stockwell Day, then the minister of public safety, decided he would end the long-standing Canadian practice of transferring all Canadians in foreign prisons who requested a move to a prison in Canada. Mr Day, contrary to the recommendations of his officials, decided some Canadians would be transferred and others would not. In doing so, he stated that those denied transfer would represent a threat to the safety of Canadians, or possibly to our national security.
Mr. Day's decision ignored the well-founded and internationally accepted rationale for such transfers, which was that Canadians who had been convicted in foreign countries could be assessed by Canadian officials before they were released. As matters now stand, Canadians not transferred from a foreign prison will be returned to Canada at the end of their sentence and will be on Canadian streets without any assessment as to the danger they represent to Canadians.
The Federal Court took a dim view of the minister's reasoning. Mr. Justice Michael Kelen, in his decision in one of the cases, stated that Mr. Day was being “wholly unreasonable,” that the “evidence points in a wholly opposite direction” to the decision and that the minister “unreasonably disregarded this evidence.”
Unfortunately, the court decisions in these cases related only to the individuals concerned, and the government continues to deny transfer to many Canadians incarcerated abroad.
The court was equally critical of the government's reasoning in not seeking clemency for some Canadians sentenced to death in foreign countries. Here, it stated that it could not find any basis in reality for why or how the new policy came into existence but that “it was made in breach of fairness, is unlawful and is set aside.”
Reading the Federal Court's decision, it is apparent that members of the government did not like Mr. Smith and acted callously. However, a judicial scolding for this government is not something that gets in the way of bad policy. Now, the government has enshrined its discriminatory clemency policy in new clothing in the hope that this sleight of hand will deceive.
All of these court cases have surrounded the government's quite contrary approach to assistance for Brenda Martin. In that case, it was all hands on deck – and for a while, there was practically need for a traffic cop to direct Canadian ministerial visits to her prison in Mexico.
There was absolutely nothing wrong with the effort the government expended on behalf of Ms. Martin (except perhaps for the chartered aircraft to return her to Canada). But in a world where there is ample opportunity for comparisons, it is not surprising that some Canadians see discrimination when such assistance is not offered to an Abousfian Abdelrazik. There, it took a court decision – one that the government fought tenaciously.
Today, the case is that of Suaad Hagi Mohamud. Here, the insensitivity of the government in such matters has been unmercifully demonstrated.
The actions of the Canadian High Commission have not been explained. It is unlikely that a First Secretary made the decision to cancel Ms. Mohamud's passport without the concurrence of the Passport Office in Ottawa, which has final authority under law in all such matters. That there is now a review being conducted by the Ministry of Public Safety suggests it was equally involved. Until this and other reports are available, responsibility cannot be assigned exclusively to the High Commission in Nairobi.
Moreover, overlooked in much of the reporting has been that the government resisted DNA testing for Ms. Mohamud for weeks. It was only when her lawyer filed a motion before the Federal Court that the government agreed to the testing on July 22 – two months after she had been detained in Kenya.
Commenting on Ms. Mohamud's case, the Prime Minister recently – and correctly – observed the potential difficulty in dealing with such matters when foreign governments are not co-operative. But he missed the point, since so many of the recent cases have nothing to do with the actions of foreign governments.
Rather, it is the action and policy of the Canadian government that has created the problems. Canadians should be rightly concerned with these developments. If not, the ghosts of Arar, El Maati, Almalki and Nureddin will haunt us for years to come.
Gar Pardy was the head of Canadian consular services for 11 years. He retired from the foreign service in 2003
