Justice for Victims of Terrorism Act

An Act to deter terrorism, and to amend the State Immunity Act

This bill was last introduced in the 40th Parliament, 2nd Session, which ended in December 2009.

Sponsor

Peter Van Loan  Conservative

Status

Second reading (House), as of Oct. 30, 2009
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment creates, in order to deter terrorism, a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters. The enactment also amends the State Immunity Act to prevent a foreign state from claiming immunity from the jurisdiction of Canadian courts in respect of actions that relate to its support of terrorism.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:05 a.m.
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Conservative

Peter Kent Conservative Thornhill, ON

moved that Bill C-35, An Act to deter terrorism, and to amend the State Immunity Act, be read a second time and referred to a committee.

Mr. Speaker, it is a pleasure to have this opportunity at second reading to speak about how this government is delivering on its commitment to protect from terrorist activities the safety and security of Canadians, both at home and abroad, while giving those who do fall victim to heinous acts of terrorism an ability to fight back.

Bill C-35, An Act to deter terrorism, and to amend the State Immunity Act, is a result of victims' initiatives championed by an organization called the Canadian Coalition Against Terror, know by its acronym C-CAT, which represents Canadian terror victims. C-CAT has played a critical role in driving this bill forward.

I would like to personally credit Danny Eisen and Sheryl Saperia, two young Canadians who put heart and soul into C-CAT. Credit is due as well to many supporters across Canada who have contributed time and effort to this important initiative. However, the driving force has been Maureen Basnicki, who lost her husband Ken in the 9/11 destruction of the twin towers in New York City. Maureen has been joined in the C-CAT cause over the years by Canadians of all communities who have also had their lives and the lives of loved ones touched by terror.

The legislation before us today would provide the Government of Canada with another important tool to protect Canadians from acts of terrorism while ensuring that victims of these heinous acts have the chance to seek justice. Over the last few years, all of us have been witness to the horrible carnage that terrorism can and does leave in its wake.

Canadians including constituents from my riding of Thornhill have been personally affected by terrorism. We have witnessed the broken lives, the broken communities and the constant state of fear and panic that innocent bystanders as well as victims and their families are forced to endure.

Most recently, we heard of a string of terrorist attacks in Pakistan, where innocent civilians were indiscriminately massacred. The bombings in Mumbai, the attacks on Sri Lanka's national cricket team and the recent arrest of seven people on suspicion of planning a terrorist attack in Amsterdam are all chilling reminders of the continuing threat of terrorism.

Canada is not immune to this threat. Hundreds of Canadians were killed in the bombing of Air India flight 182, the worst act of terrorism in Canadian history, and the biggest in North America before the September 11 tragedy.

Canada has been designated as a potential target for terrorist attacks by organizations like al-Qaeda. We have also seen the successful action taken against terrorists born or recruited in our country before they could execute their plans. We must not stick our heads in the sand and pretend that this country has no interest in participating in the worldwide fight on terrorism. We must continue to take concrete and decisive action. That is the reason for Bill C-35, An Act to deter terrorism, and to amend the State Immunity Act.

We need to take steps to prevent these acts from occurring in the first place, and when they do occur we need to ensure that victims' voices are heard. That is what Bill C-35 is all about.

Bill C-35 demonstrates this government's commitment to deterring terrorism and to giving victims the possibility to seek redress.

Specifically, it would create a course of action to allow victims of terrorism to sue perpetrators and supporters of terrorism. It would modify the State Immunity Act to allow the Government of Canada to lift the immunity of states that are deemed to support terrorism. The bill demonstrates Canada's leadership in combatting terrorism and terrorist supporters.

Providing victims with an opportunity to seek justice for violent acts committed against them is a fundamental tenet of our legal system and a cornerstone of Canadian society. Criminals, including terrorists, need to be held to account. They need to know there are consequences to their actions. Victims too need to know that their interests are paramount and that they can move on with their lives to every extent possible.

Canada applies these principles domestically. The bill before us today would further extend them to some of the most callous acts of violence imaginable, regardless of whether they are committed here in Canada or overseas.

Bill C-35 would allow victims to use courts to seek redress provided they can show a real and substantial connection between their action and Canada. The burden of proof is smaller in civil cases.

Civil suits would deter future acts of violence by bankrupting or financially impairing the terrorist infrastructure through successful judgments and/or by causing terrorist sponsors to refrain from future sponsorship out of fear of the publicity and exposure that would result from a civil suit.

Bill C-35 proposes to allow victims to seek redress not just from the perpetrators of terrorist acts but also from their supporters.

Today we know that terrorist groups seldom act alone. The scale and sophistication of terrorist operations in recent years have often required vast amounts of financial and organizational support. That support can come from other entities and even from other states. Many observers have often described the relationship between terrorist groups and certain governments as one of a state operating within a state.

The present reality is that money is the lifeblood of terrorism. One of the most effective ways to deter terrorism and to put terrorists out of business is therefore to hit them where it can hurt the most, in the pocketbook.

The bill before us today, Bill C-35, An Act to deter terrorism, and to amend the State Immunity Act, would do just that by allowing victims of terrorism to sue perpetrators and supporters of terrorism, including those states that support terrorism, while respecting the important international relations that we have.

For example, Bill C-35 will allow victims of terrorist attacks to seek redress for losses or damages resulting from a terrorist act committed anywhere in the world on, or after, January 1, 1985, if they can demonstrate a real and substantial connection between their cause of action and Canada. Victims will be able to sue the perpetrators as well as supporters of terrorism, including some states that are known supporters.

Bill C-35 would lift the immunity of those states, under certain conditions, so that governments that support terrorism can no longer hide behind the international rules and agreements between so-called civilized, law-abiding countries.

As Victor Comras, one of the five international monitors appointed to oversee the implementation of security council measures against terrorism and terrorist financing, once noted:

...major terrorism’s financial abettors and supporters...have successfully avoided criminal prosecution. (...) [C]ivil liability cases... associated with terrorism may [therefore] constitute the best constraints we have against their activities and our best chances to hold them accountable.

Bill C-35 proposes to do exactly this by lifting state immunity for states known to support terrorism. The decision to list such countries will be made by the Minister of Foreign Affairs in consultation with the Minister of Public Safety and will be subject to review every two years. Listed countries will also be able to make a written application for delisting, which again will be reviewed by the Minister of Foreign Affairs in consultation with the Minister of Public Safety.

There are, therefore, safeguards and review mechanisms built into this provision, striking the appropriate balance between accountability, justice and fairness.

The bill before us today is also reasonable. It proposes to give the Minister of Foreign Affairs and the Minister of Finance the discretion to help victims identify and locate the property of a foreign state against which a judgment has been rendered, provided such assistance falls within the minister's mandate and it is in Canada's best interests to do so.

The provisions of Bill C-35 respond to the needs of victims. They respond to the needs of Canadians who want us to work together to put an end to terrorist acts and to ensure that we protect their safety and their security at home as well as abroad.

Several years have now passed since that terrible day in 2001 when Canadians and people from around the world became aware of just how much they were at risk and how committed terrorists are to causing untold and indiscriminate damage.

Since then, Canada and its allies have taken a stand to say that we are not afraid, that we will not bow down to the terrorists, and that we will not give in to terror.

We are not going to back down from terrorists or give in to fear. We are going to meet the threats they pose head-on and take the necessary steps to protect this country, protect our fellow citizens and help ensure that terrorists do not succeed in raining havoc among our friends, our neighbours and our allies overseas.

That is the commitment all of us as Canadians made in 2001. It is the commitment that all of us today as Canadians still believe in. The bill presently before us gives this country another important tool in our efforts to both deter terrorism and help ensure that victims get the justice they so rightly deserve.

That is what our government has committed to doing and what the legislation before us today is all about. I therefore urge hon. members to give speedy passage to the bill we are debating today and send one loud and very clear message to all those who would threaten our safety and security: Canada is prepared to do anything and everything we can to defeat terrorism.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:15 a.m.
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Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Mr. Speaker, our government has brought in a number of pieces of legislation that attempt to address the issue of victims of crime, including the repeal of the faint hope clause, the serious fraud sentencing provisions and the limitations on conditional sentences for serious crimes. In fact we often hear victims of crime saying that they are both appalled and frustrated at some of the changes that have been made to our justice system by the former Liberal government.

Therefore I would like to ask Mr. Kent this. Is this bill just another example of our government acting strongly on behalf of victims, and is it not about time that victims' voices were given greater weight in our justice system?

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:15 a.m.
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Conservative

Peter Kent Conservative Thornhill, ON

Mr. Speaker, unfortunately, in Canada today, there are too many whose lives, as I have said, have been touched by acts of terrorism in recent years and who continue, in some cases, to live under further acts of terrorism.

The bill would allow any victim of terrorism, past that effective date mentioned in my speech, to file an action in Canada to seek redress for loss and damages resulting from such a terrorist act committed by a terrorist entity listed under the Criminal Code. It would also, as I said, allow redress against other persons or organizations who supported, financially or in other ways, the terrorist and the terrorist action. The court would determine whether and how to hear the case by determining whether there is a real and substantial connection between the action and Canada.

In considering the bill, we need to consider the words delivered in a speech yesterday by the new head of CSIS who said that too many in our community, in our country, in our society and in the media seem to think that terrorism is an issue that exists beyond our borders, that in fact it is unrealistic and unreasonable to pursue the sorts of changes and improvements to our criminal justice system, as mentioned by the hon. member, or in fact the sorts of measures that are provided for in Bill C-35.

The new head of CSIS made it very clear that t there is a real threat and that it is around us every day for those who would open their eyes. Again, the words from a leading and informed member of the intelligence community should be heeded by all Canadians and certainly by members of this House.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:15 a.m.
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NDP

Paul Dewar NDP Ottawa Centre, ON

Mr. Speaker, I have a couple of the questions and maybe a comment to start off.

The comments we all followed from the new head of CSIS should be put in context. I am not sure I see a direct connection with the bill. I understand his concerns, but what we are referring to here in the bill is opening up a law that people have been concerned about that right now state immunity applies simply for financial concerns and not other areas. However, I will leave that aside for now.

It was mentioned in the bill that a list would be compiled. I will be speaking to the bill later and will enumerate my concerns with the bill in this area. I think everyone supports the notion of being able to deal with the issue of grievances as it relates to terrorism but many are concerned, and I share their concerns, with having the list. People who support changing the immunity of players around the world for various things have mentioned this concern.

Does the minister of state not share the concerns of others about limiting the legislation to a list that is derived by cabinet, notwithstanding the review of two years? I share that concern with them and I would like to see that amended.

I am being very straight up about this with my next question. Does the minister really think that terrorists will be deterred by legislation that is passed in Canada? I really question that assumption and I would like to hear his thoughts on that.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:20 a.m.
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Conservative

Peter Kent Conservative Thornhill, ON

Mr. Speaker, I thank my hon. colleague for reasonable commentary and for perfectly reasonable and valid questions.

In order to address the matter of listings, we need to remember that there are more than 100 countries with which Canada today does not have extradition agreements. Lifting the immunity of these states would expose, it is true, some of Canada's strategic international partners, including countries with which we share a strong commitment to fighting terrorism.

The creation of a listing regime is necessary to provide flexibility in protecting both Canada's national interest as well as the needs of victims. The listing regime set out in Bill C-35 shows that the government is providing global leadership, I think it is fair to say, in denouncing and clearly identifying these supporters of terrorism.

As to my colleague's question about the reality of the impact that Bill C-35 might have in terms of discouraging those thinking of considering a terrorist act against Canadians or Canadian properties here or abroad, we realize that those determined to commit terrorist acts may not be discouraged by a mere law, by civil behaviour or the reasonable relations of communities around the world, but it does discourage those who would support and finance those individuals.

It is an equal reality that these acts of terrorists cannot be carried out without financing and, in many cases, substantial financing, and that by discouraging those who support and finance terrorists, wherever they might be in the world, and admittedly it will be easier to prosecute within Canada under the Criminal Code than abroad, but this would discourage and, we believe, would have significant benefit to discourage terrorism here and abroad.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:20 a.m.
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NDP

Paul Dewar NDP Ottawa Centre, ON

Mr. Speaker, I have another question for the minister of state about something that many have had concerns, and that is the limits of the bill and that many wanted to see, in terms of priority, the reach of our ability to go after those who involve themselves in torture of Canadian citizens. In fact, there are many groups who wanted to see that as a primary focus before this issue because of some of the reasons the minister just mentioned in terms of state actors and how that could affect our relations with countries that we are trying to work with to stem terrorism. That remains a concern of many.

I am wondering why the legislation did not open it up to the issue of torture. As we know, Mr. Arar and others were tortured by regimes, by state actors, and it would seem that this would be in line with where the government is going in terms of opening this facet up. Is the government contemplating going beyond terrorism--

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:25 a.m.
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Conservative

Peter Kent Conservative Thornhill, ON

Mr. Speaker, I thank my colleague for raising valid concerns. The short answer is, no. This particular bill is aimed at terrorists and the sponsors of terrorists in the interest of victims and their families. I think that any other legislation would merely distract from the central purpose of this particular law.

Bill C-35 certainly deserves due consideration and debate but it is what it is and we believe it is a law that should pass expeditiously through the House.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:25 a.m.
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Liberal

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.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:40 a.m.
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Thornhill Ontario

Conservative

Peter Kent ConservativeMinister of State of Foreign Affairs (Americas)

Mr. Speaker, I am indeed reassured that both the private member's bill and the government Bill C-35 have a common objective.

My colleague is absolutely correct in characterizing the only significant difference as being between the listing of states. This list will be created by the government and it will be created to recognize the 41 terrorist entities, which are now listed pursuant to the Canadian Criminal Code.

The words of Mr. Comras are indeed correct. Mr. Comras has said many things. It is quite reasonable for a government or an individual to accept some of his opinions, statements and conclusions as worthy of inclusion and consideration in Canadian law, but not necessarily, holus bolus, everything that he said.

Canada recognizes that lifting of immunity of all states may in fact have a significant effect on Canada's international relations, interests and foreign policies, particularly on democratic allies, which have little or no likelihood of ever being listed as supporters or sponsors of state terrorism.

The ability to amend and to add to the list as time changes, and there is provision for a review every two years after all, is that not a pragmatic way of moving forward?

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:40 a.m.
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Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I agree with the hon. minister that we have the same objective. The minister says that the only significant difference, or the only single difference as he might even have put it, is the issue of listing. That is a dramatic difference which goes to the core of the difference in our legislation. It undermines the very purpose, as I indicated, of the government's raison d'être in its legislation. It is a crucial difference, for listing retains the principle of state immunity for the most part.

In our private member's legislation we wished to reverse the notion, whereas the Conservative bill takes as its basic premise that state immunity should still operate and victims of terrorism would be unable to sue a country that should be held responsible unless the Canadian government decides it should not be held responsible. Under our private member's legislation we take the basic premise that state immunity should not operate an injustice by denying victims of terrorism their day in court.

The minister, if I can sum him up, made a point about listing possibly preventing frivolous or vexatious lawsuits against our democratic allies and the like. While our private member's bill would remove immunity from perpetrators of terrorism and state sponsors of terrorism, it also has an exception with respect to civil remedies for victims of terrorism. It refers to those countries with whom we have an extradition treaty; that is, those countries that respect and are anchored in the rule of law, have an independent judiciary, a democratic process and the like. Victims of terrorism could seek redress in those countries because of the democratic nature of the regimes, the independent judiciary and due process. We have addressed that issue.

What we are saying is that with the rest of the international community the situation should not be an arbitrary listing, which is always going to be subject to political negotiation, which in turn is going to make our foreign relations more difficult, where the government makes the choice as to who should be sued rather than the victim being able to exercise the judgment as to whom should be sued. In other words, it still retains the principle of state immunity. Our private member's bill would remove state immunity except for democracies anchored in the rule of law.

It is possible to frame legislation between the government's bill and our bill that would protect victims of terrorism, offer them an effective remedy, and remove the principle of state immunity, which continues to operate under the government's legislation through the listing process.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:45 a.m.
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NDP

Paul Dewar NDP Ottawa Centre, ON

Mr. Speaker, I asked the Minister of State of Foreign Affairs for the Americas a question about listing. I am wondering if my colleague could speak a bit about the possibility of changing this bill. Unless that is taken out of this bill, this bill would be hard to support. The member has underlined crucial amendments.

Can we amend the bill to also protect victims of torture? If we cannot do it in this bill, then I would like my colleague's feelings on when we should do that. His private member's initiatives are important in this area. I would like his comments on that.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:45 a.m.
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Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I am pleased to respond. I think that victims of torture deserve a right of civil redress no less than do victims of terror.

My only point was that from a legal point of view we could not commingle the two principles in the same bill without doing a disservice to both. Therefore, I introduced a private member's bill with respect to providing a civil remedy for victims of terror and I will be introducing shortly a private member's bill to provide a civil remedy for victims of torture.

In that way we will have two distinguishable, though related, bills with respect to the matter of principle, but in the matter of process we will be able to go forward effectively to secure the rights of victims of torture and terror respectively.

In the matter of the listing, I regard this as a fundamental issue because, as I said, it goes to the core of the principle of state immunity. The whole purpose of the government introducing its legislation and my introducing my legislation is to remove this operating principle of state immunity, so as to provide victims of terror a civil remedy which they cannot now have because of the State Immunity Act.

Therefore, if we are going to amend the State Immunity Act, we have to amend it in a way that gives an effective right of redress to victims of terror. If we keep the listing system, we not only deprive the victims of terror of an effective right of redress but we do not effectively deter the state perpetrators of terrorism and the state sponsors of terrorism because unless they are somehow arbitrarily put on that list, they themselves retain the immunity from suit.

Putting them on a list, as the government chooses to do, also invokes a kind of arbitrariness in the whole process. Therefore, to retain the principle of effectively amending the State Immunity Act to give victims of terror an effective right of redress, we strongly urge the government to remove the listing approach. Then we can combine to put together a bill that will serve the needs of victims of terror that will effectively deter terrorism, that will properly amend the State Immunity Act, and that will be consonant with both our domestic law, our international law, and the UN Security Council resolutions and the like that I referred to earlier in my preamble as a raison d'être to this legislation.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:50 a.m.
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Liberal

Bob Rae Liberal Toronto Centre, ON

Mr. Speaker, I would like to say to the hon. member how proud all of us are in the Liberal caucus and I am sure in the whole House to have somebody of his calibre focusing his great attention on this question.

I would like to ask the member to comment on this thought. The minister referred to the political difficulties of listing certain countries with respect to our foreign relations. Would the member not agree with me that by turning this into a political act by the government putting countries on the list, it constantly politicizes an issue and makes an issue more difficult when in fact the purpose of the legislation is to grant a civil right to victims that would be there in a sense regardless of politics? It is not because one country or another is on a list that there is a problem, it is because that victim can prove in court that in fact that country is responsible for an act of terrorism.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:50 a.m.
See context

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, the government's bill regrettably will introduce a standing politicization. The government will be engaged in negotiating which governments should be on the list or should be removed from the list, and the victims of terror will be denied their effective redress. Remove the list, give the victims of terror an effective redress. and deter acts of terrorism at the same time.

Justice for Victims of Terrorism ActGovernment Orders

October 30th, 2009 / 10:50 a.m.
See context

Bloc

André Bellavance Bloc Richmond—Arthabaska, QC

Mr. Speaker, given that oral question period is imminent, this major 20-minute speech that I am about to give will unfortunately be interrupted. But no one will miss anything, for I will be back to finish my speech on Bill C-35.

The purpose of this bill is to lift the immunity of states that support terrorism and expose them to private civil actions. The Bloc Québécois has already pointed out its many reservations about this bill, but we are prepared to examine it in committee. As I have always said, all legislation deserves to be examined in committee, unless it is completely absurd or goes against our values. We can study it to determine if this kind of bill can be improved in any way. I can assure you, Mr. Speaker, we have many questions. There are a number of irritants in this bill that will definitely have to be eliminated in order to obtain the Bloc Québécois' support.

Right now, the State Immunity Act prevents victims from suing states. The act gives foreign states jurisdictional immunity before Canadian courts and prevents anyone from suing foreign states in Canada, even for crimes recognized under international law. This jurisdictional immunity also applies in cases where the victim is Canadian, as in the cases of Zahra Kazemi, William Sampson and Maher Arar.

In criminal cases, the law currently permits legal action against foreign officials. Legal action may also be taken against agents of a foreign government for abuses perpetrated outside of Canada. However, both the victim and the perpetrator must hold Canadian citizenship when the crime is committed, or the perpetrator of the abuse or crime must be in Canada. Even so, criminal law does not provide for compensation for the victim. That is the current situation in Canada.

I will now turn to the government's proposed changes. In creating the Justice for Victims of Terrorism Act and amending the State Immunity Act, the federal government is lifting that immunity and authorizing Canadian citizens to sue individuals who participated in acts of terrorism and organizations and states that financed or protected terrorists in Canadian courts. At first glance, it seems like a very good way to ensure that justice is done for victims of terrorism.

Right now, state immunity prevents anyone from taking any action whatsoever to obtain redress. Some damage can never be repaired, and people tell themselves that that is what the law says, so it must be all right. But we can obtain redress and punish the guilty parties to ensure that justice is done and that the people who were hurt, the victims, have a chance to confront the ones who victimized them. However, several of the parties in this House have detected significant oversights in this bill. Because of these oversights, there will not really be any victims who succeed in obtaining compensation. The intention is good, but we have to take a closer look at how it will play out. As legislators, we have to ensure that a law will truly be effective, and that is not the case with Bill C-35.

Under the bill, foreign states and terrorist organizations can only be sued if they are on the government's list. We do not know yet which countries will be listed. Foreign states can be sued only if they did something for the benefit of the listed terrorist group that actually caused the harm in question. It appears that the cause of action does not cover situations where a state was involved directly. This refers to whether they committed one or more of the following acts: providing property for terrorist activities, providing property or services for terrorist activities, possessing property for the purpose of carrying out terrorist activities, participating in the activity of a terrorist group, facilitating a terrorist activity, committing an indictable offence for the benefit of a terrorist group, instructing a person to carry out an activity for the benefit of a terrorist group, instructing a person to carry out a terrorist activity, and, harbouring a person whom he or she knows has carried out or is likely to carry out a terrorist activity.

The courts may hear the cause of action only if the action has a real and substantial connection to Canada, in other words, if the victim is Canadian, the defendant is Canadian, the harm occurred in Canada or on a vessel or aircraft in Canada. That sums up what Bill C-35 is all about.

As I was saying, the Bloc Québécois has a number of questions. There are a number of irritants in this bill, but we would nonetheless like to refer it to committee in order to discuss all aspects of it.

In practice, and I was saying this a few moments ago, the recourse offered by the government through Bill C-35 could never provide justice or redress to the victims. The state being sued could quite simply refuse to compensate the victims, despite any ruling.

I will continue immediately after question period with all my concerns about this bill.