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.
