Bill C-483 (Historical)

Redress for Victims of International Crimes Act

An Act to amend the State Immunity Act (genocide, crimes against humanity, war crimes or torture)

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 genocide, crimes against humanity, war crimes or torture committed by the foreign state. It will allow victims with a real and substantial connection to Canada to pursue civil remedies against those who caused them harm.

[David Cooper, Director, Government Relations, Centre for Israel and Jewish Affairs]

Good morning. It is a pleasure for me to be here today. I will be making my presentation in English, but you may ask me questions in French.

Good morning, and thank you for providing me this opportunity to comment on Bill C-10, specifically part 1 pertaining to the Justice for Victims of Terrorism Act.

The Centre for Israel and Jewish Affairs welcomes the government's reintroduction of the proposed Safe Streets and Communities Act within Bill C-10. As most of you are aware, the idea for this specific legislation was conceived seven years ago, and has died and been revived several times. We hope that with your resolve the act will finally be passed.

Before I move to the substantive part of my address, I'd be remiss not to applaud the perseverance and hard work of those who initiated this legislation, specifically the Canadian Coalition Against Terror and their volunteers, Danny Eisen, Maureen Basnicki, and Sheryl Saperia. I am also heartened by the fact that over the years this legislation in its various iterations has generally received all-party support.

In principle, the organized Jewish community, for whom I speak, is highly supportive of this important measure to support victims of terror. Domestically, the Jewish community has been the target of terror plots. As you will recall, in August, 1999 two members of an Algerian cell in Montreal discussed detonating a gasoline tanker-truck in an area of town frequented by a large community of orthodox Jews. It has also been the real target of politically motivated violence, for example, in April, 2004, a fire bomb was thrown at a Montreal Jewish school.

Outside of Canada, in July, 1990 a young Jewish woman named Marnie Kimmelman was killed by a pipe bomb when sitting on a beach while visiting Israel.

As a community at risk, we believe that Canadian victims of terrorism should have the ability to seek direct civil redress from those who commit and support acts of terrorism, including foreign states. It is our hope that this bill will serve as a significant deterrent to future acts of terrorism against Canadian citizens. Having said that, we do think that some amendments, as expressed Tuesday morning by Ms. Basnicki of C-CAT, can be made to improve its efficacy.

Our first concern relates to subclause 4(2), dealing with access to Canadian courts by potential victims of terror when incidents occur abroad. As the legislation stands now, it states that: “A court may hear and determine the action referred to in subsection (1) only if the action has a real and substantial connection to Canada."

Our concern is with this ambiguous language. We would like to see it tightened up so that access to the courts is guaranteed on the basis of Canadian citizenship, or permanent residence status alone.

The second matter of concern is that the present legislation only allows suits against states that sponsor a listed entity. As Ms. Basnicki noted on Tuesday, this would effectively limit or shield countries that directly carry out acts of terrorism by state institutions, such as in the case of Libya and the Lockerbie bombing. While most governments like Iran tend to sub-contract terrorism to agents such as Hezbollah or Hamas, it's not inconceivable that in the case of Iran, it would use the Revolutionary Guard, an instrument of the Iranian state, to carry out direct attacks.

To safeguard against frivolous suits, we are open to both of the remedies proposed by C-CAT in their brief, or contained in Irwin Cotler's private member's Bill C-483.

On a related matter, the current legislation allows for a foreign state to be sued only if it provides support to a listed terrorist entity under subsection 83.01 of the Criminal Code. While we have great faith in the listing process, it is often time consuming, and many terror organizations often commit acts under different aliases, or outsource their acts of terrorism to other terrorist bodies that may not yet be listed. To close this gap in the legislation and to prevent states or terrorist organizations from evading responsibility by masking their activities, we would propose amending paragraph 4(1)(b) to include "terrorist groups acting at the direction of or in association with a listed entity."

Our third concern relates to causation. Since many acts of terrorism will inevitably occur in locations where effective tracking of evidence linking specific funds or acts of assistance to the terror attack will be difficult, if not impossible, in our view the mere evidentiary proof that a state has sponsored the listed entity involved in the attack should be sufficient grounds for liability. We therefore concur with the recommendations made by C-CAT on this matter.

[Jayne Stoyles]

Thank you.

I didn't get a chance to get to those points in my brief.

My point about requiring a real and substantial connection to Canada is to address the question that is sometimes raised. If we open the doors to survivors of torture in Canada, or terrorism for that matter, will that not open the floodgates for many cases to go forward?

When a civil case is brought in Canada, of course, there is a requirement that there be a real and substantial connection to Canada. I do think that perhaps being a family member of a victim could be sufficient to satisfy that. What's important to know is that there's an additional check, which is that you can provide a challenge to the case going forward in Canada if there is another forum that is better for the case to proceed, because victims and witnesses are there; there's a functioning judicial system.

I didn't have a chance to say that in fact there was a bill to do this that was proposed as a private member's bill by Irwin Cotler. It had the support of an MP from each of the other federal parties. I've provided you copies of Bill C-483. It provides an additional check, which is that all of the available remedies in other countries must first be exhausted.

There are quite a number of checks in terms of limiting the number of cases that go forward. I think it would be entirely appropriate to include it here, although I would be very concerned—even more so—in the case of human rights claims, about having a predetermined list of countries because of changing circumstances. Given the need to apply principles of law, it is much more appropriate for a court to determine when those acts have been committed.

[David Grossman]

Certainly.

With respect to the issue of whether without a treaty we require states to subject themselves to our jurisdiction, the simple answer is that in many respects, we've already accepted that this is not the case. As I stated, the idea of absolute immunity does not exist in Canadian law. We are simply engaged in a process of line drawing here. So to take the perspective that all foreign states must necessarily submit to Canadian jurisdiction or else our courts have nothing to say about them is, with respect, a position that has already been ruled out by the current State Immunity Act.

With respect to what happens in the private sphere in the context of issues such as genocide, crimes against humanity, torture, and war crimes, again, we don't have a perfectly clear answer. As I stated, we are presently litigating the Kazemi case. There are various specific points in the Kazemi instance that make it very clear that we have a possibility of exercising jurisdiction over Iran, absent consent from Iran in that case.

More generally, I'll simply add to that the fact that consent to jurisdiction is not necessarily the point of departure when it comes to these crimes or the object of these lawsuits. Whether a given foreign state is going to openly subject itself to the courts of this country is a question that's going to be dealt with on a case-by-case basis. What I think Bill C-483 does head on is tell foreign states that we will not accept their impunity in deliberately turning their backs to our justice system. We will not accept their statement that they are not at all subject to our courts in these contexts. Whether or not that foreign state, in its domestic law or in its domestic interactions, takes a position of refusing to submit to our courts, we, as the Canadian people and as the Canadian government, will be taking the position that when it comes to these serious crimes, we do not accept an answer of impunity. I think that's the principled stand Bill C-483 takes.

[Dr. François Larocque]

First of all, I should preface my remarks by saying that most countries on Earth don't have a state immunity act. To the extent that countries apply customary international law and follow the normative hierarchy of peremptory norms and norms of international law, in theory all countries that don't have a state immunity act can follow what Bill C-483 proposes to do.

As to what courts so far have found states to be non-immune with regard to the crimes that are targeted by this bill, outside the United States, Italy and Greece, none.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Thank you both for being here. It's very interesting testimony. I have limited time, so I'll get straight to the point.

Which countries currently allow what Bill C-483 proposes?

[David Grossman]

In response I'll add very quickly two practical points and one theoretical one.

First, from a practical perspective, there's a heavy obligation on the federal government, if we adopt this modus operandi of continually adding countries to the list, of keeping track of everything. As things move forward, there's the obligation if Canada in good faith and well meaning wants to remain fair, to ensure that the list is always current.

The second point that flows from that is that Canada then becomes far more actively engaged in this operation of bringing foreign states to justice than Bill C-483 discusses.

As I mentioned, Bill C-483 puts the burden on private litigants to litigate their disputes. The federal government would be involved in making sure that there's this exception to state immunity, but after that, it does not need to take a position. It does not need to say that it follows foreign state A or it does not follow foreign state A. It is up to litigants to do it.

By pressuring the government to maintain a list of perpetrators, that is really asking the government to have a much more active role that may or may not be appropriate for it as it feels at the time.

Finally, as a principled point, I have no trouble saying that all state torturers, all states that commit genocide, all states that commit crimes against humanity, all states that commit war crimes should be caught by a bill that creates an exception to state immunity, because we have faith in our justice system to mete out frivolous and abusive claims. We have faith in our justice system to do this.

I have no question that to the extent a state is unjustly accused, we will not see on the merits that state have repercussions lobbied against it. On the other hand, if we do not adopt this position, there is a very significant risk that in principle this bill would fall short of what it seeks to do, which is to take a large bite out of the impunity foreign states have with respect to these crimes.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

Thank you, Mr. Chair.

I'm not an expert in international law, but I had the opportunity to listen to experts earlier in the week, allowing us to grasp the essence of Bill C-483. I am in favour of this type of bill, and my party is as well. I do have two small questions to ask about this bill.

The subcommittee is also currently studying the issue of sexual violence against women in countries in conflict or in fragile states. Could rape be recognized as a crime under this bill?

[David Grossman]

I'll take the opportunity to build on what Professor Larocque said.

This bill could help litigants because it removes the automatic arguments of immunity which allow states to invoke impunity in disregarding Canadian courts.

With respect to the Hachemi and Kazemi case, we have a judgment from the Superior Court of Quebec. I agree with the decision of the Superior Court insofar as it allows the personal case of Stephan Hachemi to proceed. There is currently an appeal on this case and it will decide the issue of Mr. Hachemi as well as that of the estate.

The facts of this case allow us to argue that the current wording of the State Immunity Act makes it possible for Iran to have a suit launched against it without immunity being triggered in Canada. However, we are still awaiting judgment on that. We haven't even gone before the Court of Appeal. And the facts of the Kazemi case certainly help that out.

What I think we have much broader support from, through Bill C-483, is the concept that we can undermine this impunity argument from foreign states right from the start without needing to go through all these debates. In the Haiti instance, to the extent that any such claim would be raised, the bill would undercut it. I think it's the undercutting of that claim that speaks to the specific points of impunity, not just immunity, but impunity of foreign states.

[David Grossman, Senior Program Analyst, Ontario Board of Parole]

Thank you very much.

Distinguished members of the committee, I would like to sincerely thank you for this opportunity to testify before you. I believe everyone here today is aware of the significance of the matters that are being considered by this committee. A brief overview of my comments today has been distributed.

I am a Montreal lawyer with Osler, Hoskin & Harcourt. I am a member of the Quebec bar association and the Ontario Bar Association. I currently teach a course on evidence law at McGill University. Over the course of my career, I have had the privilege of working with the honourable Justice Michel Bastarache, when he was a justice of the Supreme Court of Canada, and with the honourable Irwin Cotler, on issues of human rights, including issues relating to state immunity. Today, I am a prosecutor for the Canadian Centre for International Justice in the case of Kazemi versus Iran. I must point out that I am appearing today as an individual, not as a representative of any of these organizations.

In a handout I have distributed to this honourable committee, I have highlighted three premises that I would like to look at as the points of departure in our examination of the implications of the State Immunity Act. I believe these premises are relatively uncontroversial.

The first is that we have faith in our judicial system to deliver justice to Canadians and to litigants generally who come before our courts. Around the world, our courts are recognized as bastions of fairness and impartiality, and with good reason. Moreover, I'd like to stress that there are procedural mechanisms allowed to all defendants in our courts to summarily dismiss abusive or unfounded motions or claims against them. These need not be restricted to cases of foreign states; these are available generally to defendants. They're part of the fairness and the tenor of our judicial system generally.

The second premise is that absolute immunity is not the law in Canada. The Supreme Court recently had the opportunity to opine on this specific point in the Kuwait Airways decision. As stated in paragraph 24 of that decision, the State Immunity Act represents a clear rejection of the view that the immunity of foreign states is absolute. Therefore, the premise upon which we are embarking in this study, the premise upon which we build in looking at the implications of the State Immunity Act, is that absolute immunity for foreign states does not exist.

The third premise is that torture, genocide, crimes against humanity, and war crimes, in other words, the crimes that are treated under Bill C-483, are particularly heinous offences, and our government should not be turning its back on the victims of these offences. When I speak on this point, I speak at a moral level as well as at a legal level.

Legally speaking, Canada has international obligations with respect to torture, genocide, crimes against humanity, and war crimes. All these crimes are clearly prohibited by customary international law. As you heard Professor Larocque mention, measures have been taken with respect to some of these crimes in the criminal sphere by Canada. I'd like to stress that internationally, under such instruments as the United Nations Convention Against Torture, Canada has specific obligations in the civil sphere as well. Article 14 of the United Nations Convention against Torture states:

Each State Party [which includes Canada] shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.

Taking this third premise, the moral and legal obligation on Canada not to turn its back on victims, we arrive at the substance of my presentation, which is, what can we look at in the State Immunity Act and its implications in terms of these crimes? That brings me to lend my full support, and to ask this honourable committee to lend its support as well, to Bill C-483. From this perspective, we can look at Bill C-483 as not only a just measure, but indeed in many ways a conservative measure, addressing the issues of state immunity against the backdrop of impunity, against the backdrop of the most heinous crimes known to humankind.

I believe it is properly the role of Parliament to address this point through legislation. Indeed, as Professor Larocque has stated, to the extent the Canadian courts have opined on this issue and found that state immunity exists in these areas, they have been doing so on the basis of the State Immunity Act, and on the basis that they believe they are representing the will of Parliament.

I would respectfully submit that it was not the will of Parliament to address the impunity of foreign states in this regard. However, from an international perspective, we see the development as well as the general premise of civil law countries, through their partie civile system and through decisions such as Professor Larocque mentioned in Italy, that immunity, even in the civil context when it comes to torture, genocide, crimes against humanity, and war crimes is something that international law no longer accords. Immunity in these aspects, if it is being granted by Canadian courts, is only being granted on supposed reliance on the State Immunity Act. In that regard, we believe there is both the legal and moral imperative for this committee and for Parliament generally to act with respect to Bill C-483.

The State Immunity Act, simply put, is an enactment of Parliament, and it should not be used as the basis for perpetuating an injustice against victims. In this regard, the bill can be seen as no more than an exception to an exception. It is, in limited circumstances, what would allow an apparent impediment, according to certain jurists, of the State Immunity Act and to allow justice to proceed in the context of our recognized and fair legal system.

Moreover, Bill C-483 respects the role of private litigants. Litigation is a very difficult process, and I venture to say especially so with respect to victims of crimes such as torture or genocide. From the financial and psychological perspective, litigation is difficult. Bill C-483 does not lessen that burden for litigants. Moreover, it does not force the Canadian state to take positive steps towards bringing foreign perpetrators to justice. It simply allows victims of these heinous crimes to allow the natural course of the justice system to run its way. It simply removes an impediment for the victims of these crimes, to the extent the State Immunity Act can be said to create that impediment in the first place.

Simply put, I would state that foreign states accused of committing genocide and other heinous crimes should be treated no better than other defendants in our justice system.

Bill C-483 does not do many important things. It does not accord further territorial or personal jurisdiction to Canadian courts. To the contrary, it specifically prefers remedies that would be taken in domestic courts of these foreign states. It does not expand the territorial jurisdiction of Canadian courts in this regard, and it does not break new ground, either from an international perspective or even from a domestic perspective.

The State Immunity Act already recognizes that exceptions to immunity exist and that absolute immunity is not the rule in Canada. In other words, what we are looking at here is an exercise in line drawing. We are not seized with the question of whether immunity for foreign states is a good idea. That type of absolute immunity has already been rejected by Parliament and by the courts, and internationally.

The question we are dealing with is where to draw the line. I would respectfully submit the proper place to draw the line is not where it would doubly victimize victims of torture, genocide, crimes against humanity, and war crimes. I would respectfully submit to this honourable committee that support for Bill C-483 is something that would advance the law in Canada and would ensure that justice would be served, and that defendants that are foreign states accused of heinous crimes would not be given undue privileged treatment under the law.

I would welcome your questions in this regard. Thank you very much for the time you've accorded me.

[Dr. François Larocque, Vice Dean and Associate Professor, Faculty of Law, Common Law Section, University of Ottawa]

Distinguished members of the committee, I thank you warmly for inviting me to appear before you on the study into the implications of the State Immunity Act and Bill C-483, An Act to amend the State Immunity Act (genocide, crimes against humanity, war crimes or torture). I know that this bill is not currently under study by the committee, but my comments on the implications of the State Immunity Act reflect my support of what Bill C-483 would provide to the state of the law.

My name is François Larocque. I'm a lawyer, assistant professor, and vice-dean of the University of Ottawa Faculty of Law. For the past 10 years my academic research has been devoted to various jurisdictional questions that arise in the context of transnational human rights litigation; that is, civil lawsuits brought in one country with respect to grave violations of fundamental human rights committed in another country.

As a practising lawyer, I have intervened either directly or as a consultant in a number of lawsuits, both here in Canada and in the U.K., brought by survivors of torture who seek civil redress against the foreign governments that tortured them, including the Bouzari litigation, and most recently the lawsuits against Iran brought by the estate of the late Zahra Kazemi and Stephan Hachemi.

In the context of these prosecutions, courts in Ontario and Quebec stated that the State Immunity Act protected governments that committed torture and even protected those responsible for acts of torture. In other words, our State Immunity Act ensures impunity in terms of the most serious violations of international law.

Clearly, the State Immunity Act, as it stands, is deficient and must be amended so that Canadians who have been affected by torture may have access to the redress they are entitled to. This is why I believe that Bill C-483 deserves the support of all the honourable members of this committee when it is studied, which I hope it will be.

Quite simply, Bill C-483 is a good idea whose time has come. As noted in the outline I've circulated, my presentation will briefly touch on three points. It will be an honour for me to expand on these points while answering the questions distinguished members direct to me.

As this committee well knows, the crimes for which Bill C-483 seeks to create an exception under the State Immunity Act--genocide, crimes against humanity, war crimes, and torture--are prohibited by peremptory norms of international law and by Canadian statutory and common law. There is no clearer set of violations of basic and universal human rights than these crimes.

Bill C-483 is a good idea because it fixes an international incoherence. While civil law countries allow victims to seek redress as part of their criminal proceedings, Canada does not. I submit that Canadian survivors of torture and crimes against humanity are as deserving of redress as survivors who live in France, Italy, or Spain. Bill C-483 would fix this problem.

Bill C-483 is also a good idea because it fixes a Canadian incoherence. When Canada enacted the Crimes Against Humanity and War Crimes Act in 2000 in fulfillment of our obligations under the Rome Statute, we explicitly removed all immunities with respect to criminal prosecutions for these crimes, but did nothing to permit civil lawsuits for the very same acts.

I submit that if a torturer or a génocidaire is barred from claiming immunity in criminal proceedings, there is no reason in principle that he or she should be allowed to claim immunity in civil proceedings.

This brings me to my second point in the presentation outline I provided.

Bill C-483 is consistent with the global trend toward the removal of immunity for serious violations of fundamental human rights. In their testimony last Tuesday, Matt Eisenbrandt and Jayne Stoyles from the Canadian Centre for International Justice referred to legal developments in the State Immunity Act in the United States, in the jurisprudence in Italy's court of cassation and in the work of the United Nations committee against torture. In 2005, that committee reproached Canada for not meeting its international obligations by not permitting all victims of torture, in all cases, to obtain the redress they are entitled to.

I would like to point out two additional developments. First, in its 2005 report, the United Nations committee against torture made negative comments about Canada. The committee reiterated the same concerns about other countries, in this case Japan, New Zealand and South Korea. According to the committee, these countries, like Canada, are not respecting the letter or the spirit of the convention against torture. It's something I wanted to bring to your attention.

Secondly, you may be aware that there is a United Nations Convention on Jurisdictional Immunities of States and their Property that was signed in 2004. So far, only 28 countries have signed the convention, and only 11 have ratified it. In other words, it's a convention that is not unanimous internationally because it codifies and keeps the same exceptions that we have in our State Immunity Act, an act that is deficient.

I would like to raise a point about this convention. Of the eight countries that have ratified it, three of them—Switzerland, Norway and Sweden—have stated that this convention was without prejudice to developments in international law of an exception that would encourage the denial of immunity in cases of serious violations of international law.

Along with my plan, I provided to you with an example of one these interpretive statements, the one issued by Switzerland on April 16, 2010. I'll read it in English:

Switzerland considers that article 12--

which is equivalent to section 6 in our Canadian legislation for crimes committed in Canada.

--does not govern the question of pecuniary compensation for serious human rights violations which are alleged to be attributable to a State and are committed outside the State of the forum. Consequently, this Convention is without prejudice to developments in international law in this regard;

In other words, the state of law in the area of immunity internationally is still evolving.

My third and final point is that Bill C-483 is a good idea because it responds directly to the calls made by the courts that heard the Bouzari, Arar, and Kazemi cases.

In each of those cases, Canadian courts, rightly or wrongly--and I argue, wrongly--have found that it is for Parliament only to create a new exception to state immunity for grave violation of international law. Bill C-483 would create such exceptions for the clearest violations of international law, while ensuring that only valid claims are processed in our courts.

On a related note, I would also encourage this committee, should it ever come to study draft legislation to amend the State Immunity Act, to consider language that would clarify the relationship of our State Immunity Act to the continuously developing law of state immunity at international law and at common law in Canada. An example of such language would be the last clause I provided from the Switzerland interpretative declaration.

In closing, Bill C-483 is not only a good idea, it is also the right thing to do to prevent the impunity of those governments that blatantly violate fundamental human rights. It also provides access to justice for those survivors who have already suffered too much.

I thank this honourable committee for the time it has given me.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Thank you for a very thorough presentation. I took lots of notes. I honestly don't have a lot of questions, because you've done a good job of answering most of them.

What are the arguments against the changes proposed in Bill C-483? I'm getting the sense that there's support around the table, and perhaps broader than that. But what could somebody say against the idea of extending the State Immunity Act to these officials who have permitted or instructed these atrocities to occur?

[Jayne Stoyles]

Let me first of all say thank you so much for those expressions of support.

We know there's a lot of election talk right now and that people are likely starting to have an eye to that potential. But we felt it was really important to have the opportunity to come. We know this committee has heard about this issue before and that you have looked at and provided some statements in support of Bill C-483. We hope we don't lose momentum for longer than that potential election period, and that if you are all back in your seats afterwards you will work with us still across parties to champion us.

That was really our hope today, to bring it to you knowing that you have provided some endorsement of the bill, to really ask you to think about working actively on this and championing it and making it a priority, as you've said. So I appreciate that very much.

In terms of retaliation against Canadians abroad, I think the most important point to remember is that we are talking here about removing immunity for torture, war crimes, crimes against humanity, and genocide. So if another country were to look at what Canada did and say “Well, you've carved out this exception to your state immunity act for those issues and we are going to do the same”, we're still talking about Canadians implicated in those most serious crimes of international concern. Of course Canada would have an obligation itself, then, to investigate those allegations and to bring people to justice if there were serious allegations. That obligation exists already under many other treaties.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Thank you for the presentation. It's good to see you here again.

I'm very impressed with the work that this organization does along with Amnesty International and the battle that you've undertaken here. The fact that we even consider the sovereign nation has a sovereign right to torture, that it can even be discussed, is in itself very disgusting.

We do have a problem. Bill C-7 is awaiting debate in the House. Bill C-35 died at prorogation. Bill C-483 is teetering because of a potential election. But I want to say on behalf of my party that should there be an election and should the good people of Hamilton East—Stoney Creek send me back here, I'm going to be working with, I presume, the members of this committee to make sure Bill C-483 comes forward again.

But I think what we need to do as well is have a discussion about making it as comprehensive as we possibly can, to include those positives that get lost along the wayside because of the proceedings of a minority Parliament. It's very important, so I want to give you that commitment here today. I've just looked down the aisle here, and I see my friends nodding.

The other thing we have to address as members of Parliament is the order of precedent, that this comes forward. Because if you're a private member, and I happen to be, I think, 163, there's a long wait before you have.... So we have to ensure a bill of this importance gets a priority, and I commit also to work with my House leader to try to get unanimous consent to get this up sooner, no matter who has the precedence on it.

Considering places like Iran or Libya or maybe the Democratic Republic of Congo—I have trouble saying “Democratic” Republic of Congo—if you have Canadians working there and let's just say we made these changes in law here, is there any consideration given to the risk factor for Canadians abroad following this? What kind of reaction might there be? That's something that concerns me, and I'd like a response, if you would, please.

[Matthew Eisenbrandt]

There are many legal issues in these types of cases. The key barrier in all of them is immunity. That is something that Bill C-483 would immediately remove, and then we could move on to the other legal issues.

Take the U.S. Supreme Court case. That's a situation where the court was able to look at a long history of civil litigation in the United States against human rights abusers and to feel comfortable in making its pronouncement that there is no immunity under their Foreign Sovereign Immunities Act, that there has not been disruption of diplomatic relationships, and that there has not been a flood of lawsuits in the United States. There are a couple of decades of these types of cases that have been important to survivors of torture and other atrocities, but they have been limited in number and in scope. The United States Supreme Court was able to look at that issue and say that there is no justification for having immunity attached under their statute. In Italy there is an even more important point to be made, namely, that these are crimes that simply cannot incur immunity. That is a point that we have been trying to make and it is critical—these are not sovereign acts. The idea behind immunity is to protect other governments from lawsuits for sovereign acts. But torture, war crimes, and genocide are not acts that a sovereign is permitted to engage in. The Italian courts have taken a big step by recognizing this.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

I want to begin by commending the witnesses, not only for their testimony today but also for being an inspiration for me as a parliamentarian moving Bill C-483 in light of our discussions and interactions in this regard. I want to commend you for your continuing commitment with respect to this type of legislative initiative.

As you've put it, there is a global trend away from immunity. If I may cite from your testimony: “Most countries in 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.”

You made reference to the United States, Italy, and the U.K. Could you elaborate on what we can learn from those cases? You didn't make reference to the fact that there has been no flooding of diplomatic issues, which may have concerned people here. Are there any particular legal issues that arose in those cases or in the manner in which they were handled or the recent judgment in the Supreme Court of the United States that might assist us in making the case for such legislation here in Canada?