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.