Bill C-408 (Historical)

An Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism)

This enactment amends the State Immunity Act to prevent a foreign state from claiming immunity from the jurisdiction of Canadian courts in respect of legal proceedings that relate to the support of terrorism or terrorist activity engaged in by the foreign state.
It also amends the Criminal Code to provide victims who suffer loss or damage as a result of conduct that is contrary to Part II.1 of the Criminal Code (Terrorism) with a civil remedy against the person who engaged in the terrorist-related conduct.

[Matthew Eisenbrandt, Legal Coordinator, Canadian Centre for International Justice]

Thank you.

Distinguished members of this committee, I also want to express my sincere thanks for the leadership you have shown on the need to ensure that there is access to Canadian civil courts to sue governments such as that of Iran for their torture when there is no other justice option available. We very much appreciate this opportunity to be with you today to discuss how to achieve this.

I'm the legal coordinator for the Canadian Centre for International Justice. I've held this position for three years. Previous to this I served for more than five years as the legal director of the Center for Justice and Accountability, a U.S.-based non-profit organization that also works to prevent torture and other severe human rights abuses by helping survivors hold perpetrators accountable through legal cases.

I have worked on CCIJ's intervention as a friend of the court in the Kazemi case to provide legal analysis about the issue of state immunity. And I coordinated a workshop of leading Canadian and international legal scholars and practitioners who came together at the University of Ottawa in 2008 to discuss what changes were needed in Canadian law to allow torture survivors in Canada to have access to justice.

Having endorsed Bill C-483, we thought this committee would be interested in hearing some of the key arguments in favour of this legislative change and the responses that can be given to what we anticipate may be some of the questions or concerns raised by your colleagues as you discuss it with them.

First, it is important to note that there is a global trend away from immunity in civil lawsuits. Most countries--including almost all civil law countries, which make up two-thirds of the world--do not have legislation providing immunity to foreign governments. Many also allow victims to file civil claims in conjunction with criminal prosecutions of torturers and war criminals.

Courts in the United States have heard dozens of lawsuits concerning torture and other atrocities. The U.S. Supreme Court recently ruled that the United States immunity law, which is very similar to Canada's, does not grant immunity to individual officials. Italy's top court has ruled on several occasions that Germany is not immune in lawsuits for Nazi-era abuses. Even though the U.K. House of Lords did apply immunity in a torture case, that decision is now on appeal at the European Court of Human Rights.

An important United Nations committee has underlined the trend away from immunity and pointed to Canada as being in violation of its international legal obligations in this regard. In 2005 the United Nations Committee against Torture, the body charged with overseeing the proper implementation of the Convention against Torture, made it clear that the convention requires all states to provide civil remedies to survivors of torture.

Canada and most other countries have ratified the convention. And the committee pressed Canada to “ensure the provision of compensation through its civil jurisdiction to all victims of torture”. This was shortly after the Ontario Court of Appeal found that Canada's State Immunity Act barred a claim against Iran for the torture of an Iranian man, Houshang Bouzari, who is now a citizen of Canada, in a case we described during our last appearance. In other words, this UN committee was indicating that Canada should not grant immunity in torture cases. The committee has reinforced with several other countries in recent years this position that all victims of torture must be provided access to justice according to the torture convention.

The trend away from immunity in civil cases follows the elimination of immunity in most criminal cases concerning human rights atrocities, both internationally and in Canada. The Statute of the International Criminal Court and the legislation in Canada and around the world that allows for war crimes trials in criminal courts explicitly prohibits anyone in any rank of government from claiming immunity. Ensuring that immunity does not bar access to justice in civil cases for the same acts is a natural extension.

A second point in favour of Bill C-483 is that Canadian parliamentarians have already recognized the need to create exceptions to the State Immunity Act, with several exceptions already written into the act and a new one under consideration.

One of the exceptions in the State Immunity Act is for commercial activities. A second, the one that we have been discussing, which was used by the Quebec Superior Court to give Stephan Kazemi the opportunity for a remedy, is for involvement in injuries and property damage that occur inside Canada.

In recent years several proposed legislative amendments have also attempted to create an exception to the state immunity doctrine for terrorism, the most recent including Bill C-35, Bill S-7, and Bill C-408.

In June 2009, then Minister of Public Safety Peter Van Loan introduced to Parliament Bill C-35, an act to deter terrorism and to amend the State Immunity Act. One of the primary goals of this bill was to create a new exception to Canada's state immunity law so that it cannot prevent lawsuits in Canada against foreign governments for certain acts of terrorism.

Bill S-7 is an identical bill introduced after the prorogation of Parliament. It was introduced in the Senate in April 2010 by Senator Marjory LeBreton and was recently passed by the Senate and has had first reading in the House of Commons. This bill will allow lawsuits for alleged acts of terrorism that occurred on or after January 1, 1985, the year of the Air India bombing, in which 280 Canadians died.

Again, Bill C-483 is a natural extension. If foreign governments can be sued for commercial activities and for injuries and death they cause inside Canada, why would we not permit them to be sued for the torture and murder of Canadians outside Canada? If a new exception for terrorism proceeds, it should go hand in hand with an exception for torture and other violations of international law of this magnitude.

A third point in favour of the bill is its strong potential for the deterrence of torture, war crimes, and other atrocities. Throughout history these horrendous crimes have been committed with no accountability. But that has begun to change in recent years with the creation of the International Criminal Court and the launching of both criminal and civil cases around the world.

If governments and their officials know they will face justice in a court of law, they will be less likely to commit abuses. Not all of these international crimes will be completely prevented, in the same way that our domestic laws do not prevent all crimes. By the same token, one can only imagine how much more crime there would be if there were no police or judges to enforce domestic law. The same logic applies at the international level. If there is even the smallest possibility that increasing international enforcement measures could help prevent a future Darfur, Congo, or Burma, we must do all we can to provide justice.

Finally, it is important to note that Bill C-483 would remove immunity and thus allow civil claims for four types of acts that have already been criminalized in Canada. The bill would remove immunity in cases alleging acts of torture, genocide, crimes against humanity, and war crimes. Parliament has already criminalized these four human rights violations in the Criminal Code and the Crimes Against Humanity and War Crimes Act passed in 2000 when it ratified the International Criminal Court Treaty. By amending the State Immunity Act, Bill C-483 would merely permit survivors to seek compensation and redress from the states that commit these criminal acts.

Those are some of the key points that can be raised to make a compelling case for the passage of Bill C-483. Bill C-483 was also carefully crafted to address potential challenges, and I will briefly review two key points in this regard.

First, it is possible that someone will ask whether the amendment will throw open the metaphorical floodgates and swamp Canadian courts with lawsuits about human rights abuses that occurred overseas. The answer is no. The number of lawsuits will be limited. As with all civil cases in Canada, judges will have to be assured that a lawsuit has a connection to Canada and the province in which the case is brought. Even if a connection exists with the Canadian province, a lawsuit will proceed only if Canada is the best forum. If another country is in a better position to hear a case, perhaps owing to the location of witnesses and evidence, and if that country protects due process rights, a Canadian court can dismiss the lawsuit. As a result, Canadian courts will take on only those cases in which Canada is both the best forum and the last resort.

The language of Bill C-483 explicitly confirms that lawsuits for torture and other serious international crimes will only be permitted once all remedies have been invoked and exhausted in the country where the abuse has happened. Any civil litigation lawyer in Canada will advise a potential client about these limitations.

The number of lawsuits will also be limited by the fact that the evidence necessary to bring this kind of lawsuit is often challenging because of the obvious lack of cooperation by authorities in the affected country. It is also difficult to find witnesses and ensure their protection. The psychological trauma suffered by most torture survivors is an additional barrier, and many people lack the necessary financial resources.

The number of cases to proceed in other countries in which civil litigation for torture and other atrocities is permitted has been limited, likely due to a combination of these factors. At the same time, many survivors with whom we work talk about the importance of knowing that Canadian courts are open to these kinds of claims, even if they themselves will not be proceeding with a lawsuit.

A second potential critique of attempts to amend the State Immunity Act is the perceived impact on Canada's diplomatic and trade relations if Parliament signals its willingness to take foreign governments and individual officials to court. In response, one can point out, as I have described, that most countries of the world do not have legislation comparable to the State Immunity Act to provide protection from litigation, and that when the issue has been litigated, some courts have refused to apply immunity to civil claims for the most grievous violations of human rights. Clearly, these countries do not view their commercial and diplomatic interests as being at risk because of the possibility that someone in their country might sue Iran or other human rights abusers.

The U.S. and Italian models show that although some countries have protested lawsuits targeting them or their officials, there is little evidence that lawsuits have led to major diplomatic retaliation. In addition, there should not be an explosion of cases against Canadian allies that provide proper redress through their own courts. As I mentioned, Canadian courts can dismiss those cases. With countries that are not close allies and do not respect the rights of their citizens, civil lawsuits provide another effective tool to convince them to change their ways.

If the goal of deterring future abuses is in fact achieved by these cases, the United Nations and foreign affairs departments around the world will have fewer situations of human rights violations raising sticky diplomatic issues.

You may also wish to point out to colleagues that with the State Immunity Act, as it currently reads, a very embarrassing and frankly outrageous situation arises for the Government of Canada. This committee heard Stephan Kazemi, a Canadian, describe how the torture and death of his Canadian mother has resulted in so many years of pain and suffering in the prime of his life. In the same year, he was in court to seek some measure of justice at great emotional cost, with CCIJ and Amnesty International as Canadian charities using scarce resources to support him. There was the Canadian government using Canadian taxpayers' money to stand on the opposite side of the courtroom to argue against Stephan's right to proceed with his case for his mother's torture and murder, because it needed to defend its law, the State Immunity Act.

Great pains were taken to express that Canada was not condoning the human rights record of the Government of Iran, but the practical result is that it contributes to the commission of human rights abuses. There are people being raped, beaten, and killed in the same Iranian prison right now as we sit here. Rather than seeking dismissal of these worthy cases, Canada has the power and obligation to help bring these abuses to an end.

We hope the image of what Bill C-483 means in terms of human lives is what will stay with you, and we hope that you will act quickly across parties to ensure its prompt passage. We have background materials and copies of our statements to leave with you to help you do that.

Thank you so much for the opportunity to discuss this very important issue with you today.

Justice for Victims of Terrorism Act

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, it has been said that the world changed on September 11. I do not know whether the world changed or whether a darker side of our universe was somehow exposed. However, what is clear is that September 11 was a transformative event, impacting on our psyches as well as on our politics, on our priorities as well as on our purposes.

Eight years ago, the reach of global terrorism was illustrated, tragically, more vividly, viscerally and violently to Canadians than ever before. Twenty-four Canadian families lost loved ones in the 9/11 attacks, reminding us also of the horror of Air India years earlier.

Amid the horror and outrage, our government reacted and enacted legislation in the form of Bill C-36. Accordingly, while the threat of terrorism or any legislative response to it was not even on the parliamentary or political radar screen before September 11, it dominated the discourse thereafter and since the enactment of the Anti-terrorism Act some three months after 9/11 itself.

Another measure is now before Parliament, the government's Bill C-35, which has the potential to alter Canada's approach to terrorism as well. However, I want to suggest that the private member's bill that I introduced on behalf of my party is a more dramatic and correct approach in order to provide justice and redress by way of civil remedy to victims of terror while at the same time effectively deterring the states, perpetrators and sponsors of terrorism.

What we have to understand, and this applies both to the government legislation and our own, and here I agree with the generic premise of the government legislation respecting the need to amend the State Immunity Act, for while acts of terrorism are clearly illegal under international law, customary international law has historically given states immunity from suit in domestic courts.

Therefore, we have the situation where Canada's State Immunity Act, in accordance with this basic principle of customary international law, affirmed the principle that a foreign state is immune from jurisdiction in any court in Canada with certain specific exceptions.

Ironically, there is an exception for commercial activity but there is not an exception for terrorist activity. We have a situation where, simply put, our State Immunity Act unconscionably favours foreign states that aid and abet terrorists over Canadians who are harmed by that terror. It removes impugnity with respect to commercial transactions but it retains immunity with respect to terrorist actions. It is in that context that I introduced a private member's bill to rectify this inversion of rights and remedy, this inversion of law and morality.

Under this legislation, when a state engages in the sponsorship of terrorism, it deserves no protection from our federal government. When a state supports a terrorist group that targets Canadians, our Canadian tax dollars should not be spent on defending that state's immunity from liability.

The private member's bill that I introduced sets forth in its preamble the raison d'être for this legislation. I would acknowledge that this raison d'être may well be the objective of the government's legislation and, indeed, features of its preamble in its legislation very much resemble the features in my private member's bill.

What I will seek to show is, while we both may have the same objectives in mind, regrettably, the Conservative legislation does not secure at the end of the day redress for victims of terror, nor does it deter the state perpetrators of terror because the listing framework set forth in the government's legislation undermines the very objectives in the legislation itself, as I will show.

However, let me turn now to our preamble in Bill C-408, which sets for the raison d'être for the legislation. It speaks clearly to the United Nations Security Council resolution 1373, enacted in the aftermath of 2001, and subsequent UN Security Council resolutions thereafter. It states:

—reaffirms that acts of international terrorism constitute a threat to international peace and security, and reaffirms the need to combat by all means—

As our preamble has put it. It continues:

—in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts;

It states that:

—the prohibition against terrorism, as well as the prevention, repression and elimination of terrorism, are peremptory norms of international law—

That is what I refer to as jus cogens.

—accepted and recognized by the international community of States as a whole as norms from which no derogation is possible;

—the support and financing of terrorism...are criminal acts under international law, not sovereign acts for which a state is entitled to immunity;

—the victims of terrorist acts include the individuals who are physically, emotionally or psychologically injured by the terrorist acts, as well as their family members;

—hundreds of Canadians have been murdered or injured in terrorist attacks;

—the Government of Canada reported to the Security Council that fighting terrorism is...the highest priority for the Government of Canada;

I close, with respect to our preamble, and I acknowledge that many of these same principles are set forth in the preamble of the government legislation. As to objective, there may well be a shared objective, but as to the achievement of that objective, the legislations then diverge, and I will show in a few moments exactly how that divergence undermines the very purpose of the legislation of the government, but I will suggest that this purpose is secured by our private member's legislation.

Finally the preamble states that:

—it is in the public interest to enable plaintiffs to bring civil lawsuits against terrorists and their sponsors, which will have the effect of impairing the [function] of terrorist groups, thereby deterring and preventing future [terrorist] attacks;

Admittedly, and this needs to be said, prior to the introduction of Bill C-35, or the introduction of my private member's bill, victims of terrorist acts, arguably, had the capacity to sue individual terrorists, or terrorist entities, or groups, for loss or damage suffered, using Canadian civil responsibility or tort principles in that regard. In fact, if one looked into the situation, there indeed have been civil suits previously in this regard that in fact address the sponsors themselves.

Also, in that regard, at first blush, there may be some concern therefore that while the existing legislation has allowed, under civil law, delictual law in Quebec or the common law of tort, remedies to be taken, this legislation, either that proposed by the government or that proposed by us, raises some constitutional concerns because it attaches civil remedies to federal legislation when such civil remedies are normally thought to be matters within a provincial jurisdiction.

However, as the constitutional law will show, Parliament can establish provisions related to civil redress if they are established within the context of broader regulatory or administrative schemes, which are themselves within Parliament's legislative jurisdiction under the constitution act or, more specific, if they are under the federal jurisdiction in matters related to criminal law, and certainly anti-terrorism law, in its pith and substance, is not only matters related to criminal law but matters of national concern, matters that the courts have held are within the peace order and good government clause and that the civil remedies are, in that sense, ancillary to a power that already exists within a federal jurisdiction.

Other concerns have been raised, which I will very quickly refer to because they have risen in debate this morning and they will arise in discussions before the committee. It might be useful to address them very quickly.

Apart from the constitutional issue, a reference has been made by my hon. colleague from the New Democratic Party on the matter that this legislation gives a right of civil remedy to victims of terrorism, but does not give a right of civil remedy to victims of torture.

That is correct, but the reason for this is not that victims of torture do not have a right to civil remedy. They do. I could even give notice now that I will be introducing legislation that will also provide a civil remedy for victims of torture in the same way that my private member's bill purports to give a civil remedy to victims of terror. However, the issues from a legal point of view, as I will point out at the time of the introduction of my private member's bill, are different in terms of the characterization of the issues, the nature of the remedy, the character of the perpetrator and the like and one could not comingle the two in this legislation because one would do a disservice to both.

Another concern that has been raised is the fact that diplomatic concerns may arise with respect to this legislation and this leads to the final concern and that is the matter of listing of legislation. Here we come to the core of the differences between our legislation.

Simply put, the Conservative legislation takes as its basic premise that state immunity should still operate. In other words, and this is crucial, victims of terrorism under the government legislation will be unable to sue a country that should be held responsible unless the Canadian government decides it should be held responsible. Therefore, whether a foreign state is listed will always be the subject of political negotiations between government. It will always be an issue of executive discretion. It will always have an element of arbitrariness about it. It will take away the basic right of civil remedy from the victims themselves.

In other words, after studying the government's proposed legislation and while I may share its purpose, and I am not questioning the intention, I regard it as necessary in terms of justice for victims of terrorism to put before the House a bill that properly addresses the evil of transnational terrorism, that properly targets the impunity of those states that perpetrate, sponsor or finance acts of terrorism and that properly allows Canadian victims of terrorism to seek justice.

We have an opportunity to provide redress for Canadian victims anchored in principles of domestic and international law. Regrettably, the government's bill handcuffs the victims of terrorism by subjecting them to a political list of countries that the government chooses to target. In this the government bill fails victims of terrorism and places politics above justice.

Simply put, the government's bill takes as its basic premise that state immunity should still operate, which undermines its own purpose in the legislation even when a state is charged with supporting terrorism. Only those states that the government chooses to single out will be held accountable. The government's legislation politicizes the legislation as victims of terrorism have themselves noticed.

Our legislation, my private member's bill's premise on the foundational principle that sponsors of terrorism do not deserve to be shielded by Canadian law and thus state immunity should not continue to operate for such perpetrators of terrorism as it will continue to operate under the government bill.

I move to a close, referring to the words of Victor Comras, which were invoked by the government in order to support its legislation, a former senior official in the U.S. state department who testified before a Senate Standing Committee for Legal and Constitutional Affairs, he explained how maintaining a list of designated countries ended up undermining the U.S. legislation. Therefore, the authority that the Conservatives rely on is Mr. Victor Comras, who came before our standing committee in the Senate and said, “don't go there, don't enact that legislation”. His exact words were, “If we had to do it over again, I have no doubt we would have done it without a list”.

Then he concluded in his testimony here in Canada, “Please learn from our lesson...do not make the same mistake”.

The government, which is invoking Mr. Victor Comras as authority for its legislation, is making the exact mistake that Mr. Comras warned against. I invite the government to in fact respond to Mr. Comras, whom itself has quoted.

While we share the basic principle with the government that victims of terror must have a civil remedy with respect to deterring acts of terror, with respect to providing justice for victims of terror, with respect to giving them standing before the courts to confront the terrorist perpetrators and the like and with respect to removing any immunity from civil liability before Canadian courts, that will only be accomplished if we adopt the private member's bill or if the government is responsive and amends its legislation so as to include the basic principled approach to providing civil remedies for victims of terror that is contained in our private member's bill.

Then we can go forward in common cause, the government and the opposition, to provide victims of terror with a civil remedy that will effectively deter terrorism, that will effectively hold terrorists liable, that will effectively remove immunity from such terrorists, their sponsors, their agents and their like and that will give and secure justice as it must be done for victims of terror.

State Immunity Act

[Irwin Cotler, Liberal, Mount Royal, QC]

moved for leave to introduce Bill C-408, An Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism).

Mr. Speaker, I am pleased to introduce this bill which is an act to amend the State Immunity Act and the Criminal Code, co-sponsored by my hon. colleague from Toronto Centre.

Canadian law presently shields state sponsors of terrorism from justice for Canadian victims. Canadian law presently offers immunity to those countries that expressly seek to harm Canadians. Canadian law regrettably denies a remedy to victims of terror. This bill will right this injustice.

The bill provides justice to victims immediately. It comports with our obligations under international law to both prohibit and combat international terrorism and to provide such a remedy. It does not shield itself behind an escape clause that renders it completely ineffective until foreign states are named on a case-by-case basis. Such an approach politicizes justice.

As Victor Comras, formerly of the U.S. state department, testified here before a Senate committee, let us please learn from the American mistake.

We need to value Canadian rights over foreign state sponsors of terrorism, value action over acquiescence, and value justice over politics.

(Motions deemed adopted, bill read the first time and printed)