John D. Weston, National Post
Friday, August 15, 2003
The most unsuspecting Canadian can end up in a foreign prison. In fact, about 3,000 Canadians may be in foreign jails at any given moment -- and you don't have to be a criminal to get caught in a web of cross-cultural misunderstanding or conflict.
Among the ugliest cases was that of Nguyen Thi Heip, a 42-year-old Canadian of Vietnamese descent who was executed in April, 2000, after being sentenced three years earlier for drug trafficking. Despite strong suspicion that the drugs had been planted on her and her mother, and assurances by Vietnamese authorities that they would review the evidence, she was executed without advance notice. More recently, of course, there was Bill Sampson, held captive for 31 months and reportedly tortured in Saudi Arabia before his release last week.
Canadians who count on our government to get them out of a foreign jail may be sorely disappointed, despite the sometimes heroic efforts of our officials. While the Department of Foreign Affairs may commit considerable resources to the cause, it has inherent conflicts -- from trade negotiations to other diplomatic concerns -- that weaken its ability to help.
With that in mind, it's always best to stay on top of matters yourself. So here are some specific suggestions that might assist Canadians in prison overseas and those working to release them:
1. Learn as much as you can about the local rules of the game. Don't assume the rules are ones you're familiar with -- due process is not the order of the day in most countries.
2. Track down people familiar with local customs, traditions and applicable laws. Be flexible, and open your mind to innovative solutions. I once encountered a penniless American charged with shoplifting in Taiwan. Without money he couldn't hire local counsel, and non-Taiwanese lawyers were prohibited from appearing in court. So I appeared as his "translator" and won the acquittal.
3. Don't forget that the foreign government is also conflicted. It wants to maintain diplomatic ties with Canada, attract Canadian tourists and pull in Canadian investment. If possible, leverage these competing interests to the best of your ability with the foreign country's ambassador to Canada.
4. Save your salvos. The countries that are most likely to abuse Canadians are the same ones that especially value "saving face." Humiliating them through the media or elsewhere makes that a more remote possibility, and only gets their backs up.
5. Look at the situation through the other country's eyes. Give the jailers a way out, aiming for a solution that seems fair to them, appeases their public and helps save face. One of the best ways is to present a case for moving the prosecution to Canada, which suits a host country that would just as soon unload its prisoner, but needs an assurance that "justice will still be served." Alternatively, there may be a transfer treaty in place between Canada and the other government that allows the Canadian to be returned here to serve out his sentence -- often with quick eligibility for parole -- after prosecution, conviction and appeal in their system.
6. Work in a team. Hiring a lawyer may be a good start, but be sure you are the boss and give your lawyer clear instructions on what he or she can and cannot do. Working with those who've had an experience similar to the one your loved one is suffering can also be tremendously useful. Find out how they got out and learn from their mistakes. And make sure to appoint a single spokesperson to ensure that a clear message is put forward at all times, both in media relations and in negotiations.
7. Be judicious in appointing local counsel. My practice in appointing counsel overseas has been to look for consistent criteria: integrity, English language skills, local roots, experience in Canada or the United States and good local connections. To develop your short list of candidates, work with locally based diplomats, bankers, businesspeople and lawyers. Then thoroughly understand the compensation structure and make sure you agree with it. Ideally, the fee formula will relate to success as well as the lawyer's efforts.
8. As Mr. Miyagi tells his young apprentice in The Karate Kid, "best way to avoid punch is not to be there." In other words, just don't visit places where you anticipate a threat to your security. If you do go, avoid bad company. And don't forget to take that Maple Leaf with you -- it still means a lot in unfriendly places.
John D. Weston, of the Vancouver-based Access Law Group, is an international and constitutional lawyer licensed in B.C., New York and England. He often assists Canadians deal with foreign governments.
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