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?

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

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Jayne Stoyles, Executive Director, Canadian Centre for International Justice]

Distinguished members of the committee, I want to thank you very much for the opportunity you have provided me to appear before you once more to discuss how survivors of serious human rights violations can turn to Canada's judicial system when all other options have been exhausted.

Distinguished members of the committee, I want to thank you for the opportunity you have provided today to follow up on CCIJ's appearance before this committee in April 2009. I was here with a number of CCIJ advisors and with Stephan Kazemi and his lawyers to discuss the important issue of the need to amend Canada's State Immunity Act.

As a reminder about my background, I'm the first executive director of the Canadian Centre for International Justice, which is based here in Ottawa and which I helped to establish. CCIJ is a charitable organization that works with survivors of torture, genocide, and other atrocities to seek redress and to bring perpetrators of these crimes to justice in criminal and civil courts, both in Canada and internationally.

I am a lawyer. I previously directed the global campaign to establish the International Criminal Court. Last summer I was very honoured to receive the Tarnopolsky Human Rights Award from the Canadian Bar Association and the International Commission of Jurists. It was for me wonderful recognition of the increasing importance and impact of the efforts we and similar organizations in other countries are making as we seek to end impunity for international crimes, such as torture and genocide.

As you will recall, in April 2009, Stephan Kazemi delivered a very eloquent statement to this committee about the importance of justice in response to the brutal torture and rape of his mother while she was on a work assignment in Iran in 2003. She died of her injuries after Stephan unsuccessfully tried to have her returned home to Canada for treatment. He was not even able to have her body returned so that he could give her a proper burial. Neither the government of Iran nor the individuals involved were ever held accountable in Iran. In fact, one of those responsible was promoted, and there's no possibility that there will be any justice in Iran.

Stephan so poignantly talked about how difficult it is for others to imagine the harm caused by the loss of a mother and of her love, particularly under such horrific circumstances. But it's important that we do try to imagine what this would be like. As we all sit here in our professional capacities, we are also human beings with families, with mothers, with children. Despite what we may think, this could be our own story.

Zahra Kazemi is not the only person to be tortured and killed in the notorious Evin prison and in other parts of Iran, not by far. Torture, crimes against humanity, and other atrocities are being perpetrated right now in many parts of the world against Canadians and people with a connection to Canada. We're all watching what's unfolding in the Middle East and the incredible violence and brutality being unleashed against innocent people who are simply seeking the most basic of rights: an end to dictatorship, a path to democracy, and the alleviation of extreme poverty.

The fact that this continues today is in fact in large part because it's still very rare for those responsible for these crimes to be held accountable in courts of law. We have the new International Criminal Court in the Hague, but it has limits on its jurisdiction and its funding, and it's premised on the idea that most of the cases for torture and war crimes will take place in national courts around the world.

Canada's criminal courts have a very important role to play. Yet it is very important that civil courts in Canada also be in a position to play a role, as the federal budget allocates an insignificant level of resources to war crimes trials in Canada. Civil trials provide the alternative of allowing survivors and victims' families to go to court themselves. It's only with a large web of accountability mechanisms globally that we can send a strong and clear message to the likes of Iran's Mahmoud Ahmadinejad and Libya's Moammar Gadhafi that they cannot indiscriminately torture and kill to maintain their hold on power and their access to their countries' resources and wealth.

At our previous appearance before this committee, we discussed in detail how the survivors of torture who have a connection to Canada and the family members of victims, such as Stephan Kazemi, are effectively barred from proceeding with their claims by Canada's State Immunity Act. The purpose of the act is to allow foreign government officials to carry out their official duties without fear of lawsuits. Yet as it currently reads, the State Immunity Act also protects the government and its officials from lawsuits, even when they torture and kill a Canadian. While it contains some exceptions, it does not explicitly include an exception to immunity protection for acts of torture and other serious international crimes.

Since our appearance before this subcommittee in April 2009, we have seen two very important developments that would remedy this problem. We want to talk about these developments today and also discuss what might be the next steps. The first development was the introduction of Bill C-483, the Redress for Victims of International Crimes Act, which would squarely address the problem. The second was a decision by the Quebec Superior Court on the issue of state immunity in the Kazemi case, in late January of this year, a decision that makes the need for Parliament to act by passing Bill C-483 all the more clear.

The CCIJ very much welcomed the introduction of Bill C-483 at first reading, on November 29, 2009, and its reintroduction on May 3, 2010. The bill was introduced as a private member's bill by Liberal MP Irwin Cotler, and had the support of Conservative MP Scott Reid, NDP MP Paul Dewar, and Bloc Québécois MP Francine Lalonde.

This bill proposes to amend the State Immunity Act to prevent a foreign state from claiming immunity from the jurisdiction of Canadian courts in legal proceedings that relate to genocide, crimes against humanity, war crimes, or torture, when domestic remedies have been exhausted. In other words, Stephan Kazemi or a torture survivor himself or herself could sue human rights abusers like the Government of Iran and the individual torturers.

You as members of the subcommittee clearly demonstrated in your report on the situation in Iran, issued at the end of December 2010, that you understand the importance of allowing civil cases to go forward in Canada against torturers and war criminals and the barrier to justice that is currently created by Canada's State Immunity Act.

CCIJ welcomed recommendation number 13 in the report, that the Government of Canada remove immunity for foreign officials for gross violations of international human rights law from the State Immunity Act, and the recognition in the report that Bill C-483 would achieve this.

The need to ensure such an amendment to the act through the prompt passage of Bill C-483 has been made all the more clear by the ruling of the Quebec Superior Court at the end of January in the Kazemi case. The ruling was in response to the claims made by the Government of Iran that neither the government, as such, nor any individual officials can be made to stand trial in Canada for torturing and murdering a Canadian because of the State Immunity Act. The ruling provides a very mixed result.

It has some positive consequences for Stephan Kazemi, but with such a narrow approach that it will be very unlikely to allow most other victims a right to a remedy in Canada. Stephan's personal claim has been allowed to proceed, and this is of course extremely positive.

As we noted previously, the State Immunity Act currently contains several exceptions. One of these is for harm suffered inside Canada, and it is because of the existence of this exception that Stephan's claim can proceed. The Quebec Superior Court found that a claim may be brought by someone in Canada who suffers significant trauma as a result of the torture of a close relative in another country, as Stephan did. This was a very important interpretation of this exception to the State Immunity Act, and one that, unless overturned on appeal, will result in the first Canadian civil trial for torture committed overseas.

At the same time, the court found that there is no right to a remedy for a torture victim who dies overseas. The harm did not occur in Canada, so it does not give rise to an existing exception in the State Immunity Act. The court explicitly refused to read a new exception for torture into the act. So Zahra Kazemi's estate is barred from proceeding with its claims in this case because the harm that Zahra herself suffered did not occur in Canada.

One of the unfortunate outcomes of the ruling is that it could create an incentive for torturers to ensure that their victim dies. If Zahra had survived and returned to Canada, she would likely have suffered significant psychological harm inside Canada as a result of her traumatic experience. She might then have been able to sue Iran, according to this Quebec court ruling, arguing that this harm falls within the exception to the State Immunity Act.

The court was clearly indicating that it could use only the existing exceptions written into the State Immunity Act by Parliament. By refusing to go further so that the ruling could apply beyond Stephan Kazemi's unique circumstances, the court was sending a clear invitation to Parliament to take up this issue. Bill C-483 does just that, and it is members of this committee who understand why it's important for governments like Iran to be sued for torture and who are in the best position to update Canadian law to make this possible.

Recognizing that your committee does not formally have Bill C-483 before you for consideration, we would like to ask that you do all you can to seek its passage in your individual capacities.

First, we ask that you speak to your party leaders and their staff about the need for the bill.

Second, we hope you will think of who else within your parties would work closely with you to champion the bill, and approach them to request that they assist you in building support, including going to the clerk to have their names added as seconders for the bill.

Finally, we hope you will do whatever you can to raise awareness of the issue and the need for the bill more generally within your parties. I would offer the suggestion of raising it during caucus meetings and regional caucus meetings.

We have an event this Thursday at 12 noon when Stephan Kazemi will be with us again. That's taking place in the Press Club on Sparks Street, and we hope you will invite your colleagues to this opportunity to hear more about this issue. Of course, you know much better than we do how to build general support within your party, and I'm sure you will have many other ideas.

When Stephan Kazemi appeared before this committee almost two years ago, he made the point that since his mother's death, he has been all-consumed by the effort to seek justice. He has been crystal clear about the fact that in no way does he want to profit financially from her torture, and that the court case is about his need to see someone held responsible as part of his effort to rebuild his life. The Quebec court decision would allow that, but in speaking with the media Stephan has also eloquently articulated how deeply he had hoped, and still hopes, that he can make a difference for other people. His mother stood up for the rights of others through her work, and paid the ultimate price for doing so. Now Stephan wants her death to help ensure that other people, other Canadians, are not tortured, raped, beaten, and murdered.

Bill C-483 would provide one very important tool to help Stephan to realize that goal. We hope that we can count on each of you to get it passed as quickly as possible, so that torturers and war criminals will no longer be able to fend off responsibility when they order and participate in such horrific acts of violence.

Thank you very much for your attention, and your assistance.

[Irwin Cotler, Liberal, Mount Royal, QC]

About a year ago I introduced a private member's bill, Bill C-483, which was to provide a remedy for victims of the most heinous of crimes--war crimes, crimes against humanity, and genocide--to give them a civil remedy against foreign governments and their officials who perpetrated these atrocities. Right now the State Immunity Act immunizes these foreign governments and officials from any suit, although there are commercial exceptions. In other words, if there's been a breach of contract, you can sue, but if you've been a victim of genocide, you can't. We had someone from each of the parties support it on introduction.

To sum it up, there was a case that just came down, the Kazemi case, which was a suit brought against the Government of Iran. I can crudely summarize it by saying that the court felt that for the most part, it's Parliament that should deal with this. Jayne Stoyles, executive director of the Canadian Centre for International Justice, asked me if we might consider hearing her and a law professor expert who would come before us and make submissions on that issue, with the hope that maybe the government would take over this private member's bill or a variation thereof, in light of the fact that courts have now turned the case over to Parliament. The private member's bill is there, and we have this anomalous legal situation in which you could sue for breach of contract, as I said, but not for being a victim of the most heinous of crimes.

Two witnesses would come before us. One would be Jayne Stoyles, the executive director of the Canadian Centre for International Justice. The other would be, I believe, a law professor from the University of Ottawa.

Redress for Victims of International Crimes Act

[Irwin Cotler, Liberal, Mount Royal, QC]

moved for leave to introduce Bill C-483, An Act to amend the State Immunity Act (genocide, crimes against humanity, war crimes or torture).

Mr. Speaker, I am pleased to table the Redress for Victims of International Crimes Act, which amends the State Immunity Act, in support of the foundational principle that victims of torture and heinous international crimes deserve a right of redress against their criminal perpetrators.

At present the exercise of such foundational rights is precluded by the operation of the State Immunity Act, which immunizes foreign states and their officials from civil suit.

This legislation, the first of its kind ever, will allow Canadian victims to sue the perpetrators of international crimes in Canadian courts. Simply put, our present legislation criminalizes torture, war crimes, crimes against humanity and genocide, the most heinous acts known to humankind, but does not allow for a civil remedy for the victims of such horrific acts.

Accordingly, this legislation will address the evils of such international crimes that are now shielded by Canadian law, target the impunity of those states and officials that perpetrate these crimes, remove the state immunity that operates to shield the perpetrators of such crimes, and allow Canadian victims to secure justice while holding their perpetrators accountable.

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