24 April 2020, 9:10 a.m.
(Disponible en français : Les services consulaires du Canada et leur intervention face à la COVID-19)
In February 2020, the Government of Canada chartered two flights out of Wuhan, China, the capital of Hubei province and the initial epicentre of the novel coronavirus (COVID-19) outbreak. The government also secured seats for Canadians on aircraft chartered by the United States. Those flights transported more than 400 Canadians and their families to Canada. In the months since the Wuhan flights, the global scope of the COVID-19 pandemic has demanded an unprecedented consular response from the Government of Canada.
1. The Canadian Consular Service
Global Affairs Canada (GAC) provides consular assistance – help, support and advice to Canadians abroad – through 260 points of service in 150 countries. It also operates an Emergency Watch and Response Centre in Ottawa where officials are available to respond to inquiries 24 hours a day, seven days a week.
In 2018-2019, the department handled 202,400 consular cases, 6,675 of which were deemed urgent. Spending on consular services in that year totalled approximately $57 million, employing the equivalent of 371 full-time staff.
While the Government of Canada maintains an extensive consular assistance program, no Canadian law expressly requires it to do so. The Canadian Consular Services Charter guides the provision of consular services, outlining the services that officials can and cannot provide to Canadians overseas, as well as the steps the government may take during large-scale emergencies. However, Canadians are ultimately responsible for their own safety overseas and do not have a right to consular assistance, including repatriation.
1.1. The Crown Prerogative
In Canada’s constitutional order, certain powers are recognized as being reserved for the executive branch of government without being expressly granted in the Constitution or by legislation. Known as the Crown (or royal) prerogative, these powers are exercised at the discretion of the executive.
The conduct of foreign affairs is recognized as one such power, of which consular service is a part. However, this discretion is not absolute and the fact that the government chooses to provide consular service creates legal obligations in how those services are provided.
At the international level, consular relations between States are governed by the Vienna Convention on Consular Relations. Domestically, the provision of consular service is regulated by legislation governing government services generally – for example the Privacy Act – and constitutional requirements, including protections under the Charter of Rights and Freedoms.
The Supreme Court of Canada has affirmed that Canadians interacting with Government of Canada officials overseas, where the laws of the local jurisdiction generally apply, continue to possess certain Charter protections where such protections are required by Canada’s international legal obligations, including human rights.
In recent years, some civil society organizations have advocated for legislation which would create a legal right to consular assistance and require that it be provided in an equitable manner.
2. Selected Aspects of Canada’s Consular Response to COVID-19
On 13 March 2020, the Government of Canada issued a global travel advisory urging Canadian travellers to return home as soon as possible while commercial means remained available. That same advisory recommended against all non-essential travel outside Canada.
It is not known exactly how many Canadians were overseas at the time of the advisory. The government estimates that three million Canadians live outside the country in addition to those traveling on a short-term basis. In January 2020 alone, Canadian residents made nearly 4.7 million trips abroad, more than three-quarters of which were to the United States. Foreign Affairs Minister François-Philippe Champagne has referred to the government’s efforts to assist Canadians’ return home as “probably the largest repatriation effort in Canada’s history, in peacetime at least.”
The government has worked with Canadian airlines, including Air Canada, WestJet, Air Transat and Sunwing, and with foreign governments to help Canadians access commercial flights. It has also arranged special flights specifically for Canadian citizens and their immediate family members. As of 23 April, the government had coordinated the repatriation of approximately 20,000 Canadians on 160 flights from 76 countries.
Consular officials have also assisted Canadians stranded aboard cruise ships. For example, the government chartered flights to repatriate 129 Canadians from the Diamond Princess docked in Yokohama, Japan and 228 Canadians from the Grand Princess docked near Oakland, United States.
In some instances, special flights to Canada have been associated with higher ticket costs. While Canadians are expected to cover the cost of their return, the government has established an Emergency Loan Program for Canadians Abroad for those in need of financial assistance. Through the program, Canadian citizens and permanent residents may apply for a loan of up to $5,000. According to a media report, as of mid-April, 1,300 loans had been approved, and a further 2,100 applications were being processed.
3. COVID-19-Related Consular Challenges
COVID-19 presents significant challenges from a consular perspective. Emergency assistance is being requested by Canadians around the globe simultaneously, in a context of extreme restrictions on cross-border travel and internal movement.
Canadian diplomatic missions remain open and the provision of essential consular and emergency service continues. However, in dozens of countries [in French only], diplomatic and locally-engaged staff levels have been reduced. In other cases, such as in Japan during the evacuation of Canadians from the Diamond Princess, GAC has deployed additional consular officials abroad.
Canada’s Emergency Watch and Response Centre witnessed a surge in demand early in the crisis. A consular official told the House of Commons Standing Committee on Health that GAC “dramatically increased” the number of staff in the centre to respond to the high volume of calls and emails being received. Testifying on 31 March, the official indicated that the centre had been receiving an average of 5,000 calls and emails a day, which she said was down from the daily peak of 10,000.
Repatriating Canadians in the context of the COVID-19 pandemic presents logistical challenges. For example, a special flight departing Peru required permission for commercial planes to land at a military airport. For the Wuhan charter flights, overflight clearances from neighboring countries, some of which had closed their airspace, were required.
A lack of data on how many Canadians are abroad and where is another challenge. Canadians living or traveling abroad are encouraged to enrol with the Registration of Canadians Abroad service. However, media reports indicate that between 370,000 and 411,000 Canadians are registered in the system, only a fraction of those estimated to be overseas.
The Hubei case provided one illustration of the low uptake on the registry. A GAC official told the House of Commons Special Committee on Canada-China Relations that while “only about 38 Canadians” had registered as residing in Hubei prior to the crisis, by 4 February, that number had increased to 565.
Strengthening the Canadian Consular Service Today and for the Future, House of Commons Standing Committee on Foreign Affairs and International Development, 42nd Parliament, 1st Session, November 2018.
Office of the Auditor General of Canada, “Report 7 – Consular Services to Canadians Abroad – Global Affairs Canada,” 2018 Spring Reports of the Auditor General of Canada to the Parliament of Canada.
Gar Pardy, Canadians Abroad: A Policy and Legislative Agenda, Canadian Centre for Policy Alternatives and Rideau Institute on International Affairs, March 2016.
Authors: Brian Hermon and Scott McTaggart, Library of Parliament