Subcommittee on International Human Rights Committee on April 30th, 2009

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you very much for that additional information.

I would like address a question to all the witnesses. Whoever feels they would like to answer or thinks they have the best answer should speak up.

Ms. Stoyles, you mentioned that the United States allows victims of torture and other atrocities to bring legal proceedings against those responsible for such actions. How does the process work in the United States? Could we use the same process here in Canada? You also said that the U.S. Congress has created an explicit exception in order to be able to sanction other states in that regard. Ms. Stoyles, could such an exception apply to cases such as the one involving Mr. Kazemi's mother, or the case you referred to at the beginning of your presentation?

[Jayne Stoyles]

Thank you.

Perhaps I'll start, or would you like to start, Mark?

[Mark Arnold]

Very simply put, as I understand American law, they have a similar foreign sovereignty and foreign sovereign immunity act, but under that statute, there is an exception for what I believe are called “state sponsors of terrorism”. Under that exception, there are numerous American judgments against Iran. I'm presently consulting with American counsel on some of their cases in the United States. That's the way they've dealt with it there.

The other thing I should mention—I need to also point out to you—is that present today is Mr. Houshang Bouzari, who is the gentleman sitting behind me with the white hair. He is a survivor of torture. Of course we took his case all the way to the Supreme Court of Canada, only to fall down on the issue of sovereign immunity. What we argued was that international law trumped Canadian domestic law, and we failed in that regard, which again crystallizes the need that if we're going to provide protection for torture victims who cannot get justice elsewhere, it really is essential to amend the local statute.

This doesn't mean we're going to run off and sue in foreign courts such as the United States and England. They have competent courts. This is meant to provide justice for individuals who cannot get justice in other countries.

There are U.S. exceptions. The way we're going to draft it here in Canada is up to you people, with our assistance to put that legislation together.

[Dr. François Larocque]

I would like to go one step further and explain exactly how the U.S codifies that exception.

As Mr. Arnold has just stated, the United States drew up a list of states which, in its view, support terrorism. Today there are four states on that list. They are Cuba, Iran, Sudan and Syria. Not so long ago, North Korea, Libya and Irak were also on the list, but those three countries have since been removed. The United States has normalized its relations with these countries. So, those four countries are listed. There are a number of consequences associated with that designation, including a denial of immunity for civil proceedings launched only by U.S. citizens. No remedy is available to foreigners who have been tortured outside of the United States. Only U.S. citizens have access to that remedy whereby immunity is refused. It is a very limited mechanism, as well as being a highly problematic one.

If you are asking my professional opinion, I would say this is not something that Canada should consider doing. Canada should take a position that relies more on international law and is more respectful of the general principles of international law.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you.

Ms. Stoyles, would you like to add anything?

[Jayne Stoyles]

Perhaps I can just add one additional clarification in terms of how this is done in the U.S. There are two pieces of legislation, the Alien Tort Claims Act and the Torture Victims Protection Act. Those create, essentially, the cause of action. They create the possibility of suing torturers for their crimes.

We in Canada don't necessarily need to create that kind of extensive legislation. There is actually something like that floating around in Parliament, but not specifically on the question of torture, more for environmental and labour crimes. We don't necessarily need to do that in Canada. We can use existing law. We can use law for injuries, other types of injuries in Canada, through provincial courts in tort law.

Really, what stands in the way in Canada is that most of these claims are against government officials, and it's the State Immunity Act that really creates the barrier there.

I should point out, too, that the torture convention, our international treaty on torture, states that by its very nature torture is committed by governments, so if there is a barrier to pursuing a remedy against foreign governments, then essentially there is no possibility of a remedy. It's very, very clear that if there is a right to a remedy, and that right is very clear in international law, we have to have this amendment to the State Immunity Act to make this go forward in Canada. It's in fact as simple as that, not as complicated as creating a system like they have in the U.S.

[The Chair, Conservative, Scott Reid]

Thank you.

Mr. Marston, please.

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

First of all, Mr. Kazemi, thank you for coming before us today, carrying the burden that you do with the memories of the incident and the information. I know it has to be very troubling for you, but it is to some extent a mission. I can see that. I watched you as you made your presentation and after, but I want to assure you of one thing: Canadians as a whole do very much believe in justice; Canadians as a whole very much are opposed and disgusted by the thought of torture.

I am very troubled, and I have been for a time now, because the Government of Canada has been complicit in torture by proxy. We've had the Maher Arar case. We've had the Abdullah Amalki case. We have Omar Khadr down in the United States, or in Guantanamo, being held by the United States when our Supreme Court and the U.S. Supreme Court have ruled that it's a violation of rights. I don't want to politicize this by going off on that tangent, because I'm very tempted to.

I will give a commitment personally, which is all I can do here, that whatever you want done to get a motion in, I'd be prepared to work with you. My office staff will work with you. You get in touch with us and we'll be there.

Over the last number of months I've had people come to talk to me about the mining companies of Canada and the corporate and social responsibility, and how we're failing at that level as well. The word “impunity” keeps coming up over and over in that conversation. Until we remove that, it doesn't matter what else we do, we're still going to have victims.

Having justice is really important and critical, but prevention is more important. The first stage is to ensure that all countries know they're called to account. I think Canada has been lacking on the world stage for a number of years now because of our inaction on the optional protocol to the UN Convention against Torture. Again, I'm very troubled by that.

I'm more making a statement than asking a question, because this is the kind of thing that touches you in a way that's different from any of the witnesses who have come before us. Technically, we were talking about Iran here today, and you see how this discussion has become far broader than Iran, and it's most significant. I think we're at a potential turning point right here, right now.

So I would invite you to contact my office. I'm not trying to politicize this. I share this with anybody in this committee who wishes to. Let's get this job done.

If you'd like to comment on anything else, please go ahead, because I am not in a questioning frame of mind, to be quite frank about it. This is beyond an individual.

[Mark Arnold]

Perhaps I can comment.

Mr. Marston, firstly, thank you very much for your support on the issue.

You mentioned the complicity of Canada. Let me add a little piece to this interesting puzzle, if I may, particularly with respect to the case of Mr. Buzari.

The State Immunity Act provides a way in which foreign countries can be served with a claim, interestingly, and we served Iran through the State Immunity Act and Iran didn't defend. We went to court and what happened was that the Government of Canada intervened in the lawsuit, hired experts from England at huge cost, brought them into the court room and argued the position that Iran would have argued, had Iran defended the case. We fought in the Buzari case against the Government of Canada.

To be objective about it, the Government of Canada was simply upholding its own statute, the State Immunity Act, but there was a certain irony about that, where Mr. Buzari, who had chosen Canada as his home, had become a citizen of Canada and was now facing the Government of Canada in his quest for justice. What the Government of Canada should have done was taken steps to amend the State Immunity Act.

I wanted to add that piece to your puzzle.

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

There's one thing that comes to mind here. George Bush is under investigation, or whatever you want to call it, by the Spanish courts.

[Mark Arnold]

He's been indicted by the courts.

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

If we made the changes to our State Immunity Act here, would that open the door, and would that kind of case surface in Canada?

[Mark Arnold]

Do you mean indicting George Bush in Canada?

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

I'm not suggesting we'd be indicting. I'm just talking about what implications would these changes have comparative to that case.

[Mathieu Bouchard, Lawyer, Irving Mitchell Kalichman, As an Individual]

Actually, the State Immunity Act already has an exception for criminal cases, and there are provisions in the Criminal Code that implement the torture convention. As Jayne mentioned in her opening statement, they're not used at the moment because, I understand, the RCMP office that is in charge of investigating those crimes doesn't have much of a budget. But in theory, crimes committed abroad, especially crimes against humanity, can be prosecuted in Canada, including public officials, and their immunity has been removed through the State Immunity Act. So whatever we're saying here today is about civil cases. It's translating that immunity we've removed in criminal cases to civil cases so that you can also have compensation for the victims themselves.

We have here the common law system, where in criminal cases the crown prosecutes the criminals. In the continental legal system, private parties can join the prosecution and claim civil damages. That's what they call the partie civile in France. So it is possible in those European countries for a victim of torture to actually join the prosecution and ask for compensation against foreign officials, whereas, here, in Britain, and in common law countries we don't have that possibility. The only way to do this is to remove the immunity that's actually built into the State Immunity Act, especially for gross violations of international law.

[Mark Arnold]

Thank you for that comment.

Mr. Marston, in your comments, in effect, you were suggesting that this issue, if I may say, crosses party lines, that it's not a matter of debating torture. All of us in this room—all of us—oppose torture. No one favours torture.

In the past three or four years, I've consulted with MPs--for instance, Francine Lalonde. I was here three years ago at a press conference. The Bloc had put forward a private member's bill. That bill went nowhere.

About a year and a half ago, I consulted with Peter Julian. I came into Ottawa for the day and spent time in his office, with a number of other people, on amendments to the State Immunity Act. There's no doubt that the NDP supported that.

When he was my MP, the Honourable John Godfrey entertained me in his office in Toronto. I prepared a brief for him. He gave me his wholehearted support, and we worked together to try to get it on the agenda. They were in government at that time.

Mr. Oliphant, I believe you are the Don Valley West representative. You're my MP. Mr. Oliphant, I'm going to be knocking on your door for the same kind of support that Mr. Godfrey gave to me personally on that issue.

This issue crosses party lines. I'm just a simple lawyer from Toronto. I don't know how the politics work, but it seems to me that the simple solution—and I may sound silly—is that maybe five of you or four of you from the main party should go off and have coffee somewhere and decide together that you're going to put this on the agenda, have the issue studied, compare the bill, and get it through. It crosses party lines. And you know what? It doesn't cost any money to do it. There's no cost. The impact on the human rights of Canadians is huge, at very little cost on a cross-party issue.

[The Chair, Conservative, Scott Reid]

We're out of time for that round.

Mr. Hiebert will be next, but just before we go to him, I have to observe I have never heard anybody use the line before, “I'm just a simple lawyer from Toronto”. I'll have to try that one time when I'm out in a rural riding. I'll have to try that line sometime at one of my meetings.

[Mark Arnold]

You don't accept the line, or do you like it and you want to use it? It's my line; you can't have it.

[The Chair, Conservative, Scott Reid]

I should pay royalties.

Mr. Hiebert.

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

Well, Mr. Chair, as a simple lawyer from Vancouver, I have a couple of simple questions.

We've heard some fascinating testimony. Thank you for being here and sharing your stories. They are quite moving.

There are a number of questions that come to mind. Some of them are perhaps a little bit more complex, but some of them are quite simple.

Here is a simple one: When was Mr. Bouzari's case prosecuted?

[Mark Arnold]

Mr. Bouzari's case began in the year 2000, and I believe it ended up in the Court of Appeal for Ontario in 2004. It went to the Supreme Court of Canada, and leave was denied.

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

All right. So that was 2004.

In the speech that you provided, Ms. Stoyles, you mentioned that Ms. Kazemi's case is different from that of Mr. Bouzari. In a couple of ways it's distinguished. Can you explain how?

[Jayne Stoyles]

In fact I was going to answer, but perhaps I'll let the lawyers on the case answer that.

[Kurt Johnson, Lawyer, Irving Mitchell Kalichman, As an Individual]

I would say the main distinguishing factor was the citizenship of Ms. Kazemi at the time the atrocities were committed. When Ms. Kazemi was unlawfully detained, tortured, beaten, and ultimately murdered in Iran, she held Canadian citizenship. She had been domiciled in the province of Quebec and was a citizen of Canada, and her estate was domiciled as a result in the province of Quebec.

So from the outset we faced fewer jurisdictional problems than Mr. Bouzari may have—although as Jayne mentioned, the courts never addressed the jurisdictional issue, having fallen, as Mark said, already on the state immunity issue. But Ms. Kazemi faced no issue there. The courts of Quebec clearly have jurisdiction to hear a suit, and I would say that's the principal distinguishing feature.

When Mr. Bouzari was tortured in Iran, he was not at the time a resident of Canada. He subsequently fled to Canada and pursued his justice here. I would say that's the main distinguishing factor.

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

So you believe that Ms. Kazemi's Canadian citizenship would be sufficient for the State Immunity Act not to apply?