Evidence of meeting #11 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was terrorist.
A recording is available from Parliament.
Conservative
Liberal
Irwin Cotler Liberal Mount Royal, QC
Mr. Chair, the government bill currently allows for a foreign state to be sued only if it provides support to a listed terrorist entity. But the bill should allow a foreign state to be sued for providing support to a terrorist group that is not a listed entity, provided that the non-listed entity is acting at the direction of, or in association with, a listed entity.
Again, Mr. Chair, the whole purpose of our amendment is to actually make the legislation more effective. I thought we would not have had to come here to do this, that the government would have said, you know what, you have provided and made recommendations that in fact enhance our legislation, that allow us to make it more effective for the victims of terrorism. This is what this legislation is all about.
For greater clarity, this amendment will only allow a suit against the foreign state if it sponsors unlisted terrorist groups that are functionally connected to terrorist entities presently listed by Canada, but not if the foreign state sponsors terrorist groups that are unlisted and unaffiliated with those already on the Canadian list.
What we are saying here, Mr. Chair, is basically that the rationale for this change is that terrorist organizations often function under other names. So you have the situation where one name of the organization may be listed as a terrorist organization under Canadian law and other aliases of that same terrorist organization may not yet be listed. This is a phenomenon that we know only too well, that the same terrorist entity now listed just changes its name, and is no longer listed, but it still commits the terrorist act, and you still have the victim. The victim will not have a remedy unless the amendment that we propose here will catch those who in fact then operate under an alias.
Simply put, the amendment more fully enables the bill to meet its stated objectives--again, not my stated objectives, which I share with the government, but its stated objective with regard to this legislation.
The alleged sponsors being held liable for supporting terrorist entities that are satellites of already listed entities thereby in effect closes a gap in the law that would allow listed entities to escape liability through the use of an alias or through let's say outsourcing terrorism to other terrorist bodies. This is another way they immunize themselves from the terrorism, by simply outsourcing it or going under another name.
The amendment does not alter the nature of the conduct for which the terrorist sponsor is being held accountable; nor does it permit civil liability for unlisted entities that are totally independent of listed ones. It simply removes a kind of ruse that is commonly used by terrorists and their supporters.
Furthermore, I close with this, Mr. Chair. Most unlisted entities, if they have committed a significant terrorist act, are likely to be listed by Canada eventually. Therefore, this proposed amendment, while effectively spreading a wider net in the pursuit of justice, also in effect seeks to implement a basic intent of the bill. I'm saying this over again. It seeks to more effectively implement the intent of the bill, as proposed by the government, by allowing suits to be launched in a more timely way, rather than having victims wait for a prolonged listing process to run its course before being able to seek redress.
It just means that if they change their name, they go under an alias, but they are the same terrorist entity, and are associated with the listed terrorist entity, then that ruse of going under another name will be caught by this amendment, and we will be able to in fact hold that outsourced entity also responsible because of its relationship with the listed entity.
That's what it's all about, Mr. Chair, only to make the legislation more effective.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Yes, Mr. Chairman.
Very briefly, I want to first of all thank the NDP for the hundred pages of amendments we received this morning for this bill.
With respect to Mr. Cotler--
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
--I understand what Mr. Cotler's issue is. But this is a state issue, and I would suggest, frankly, that on his basis it violates the very principles of international law, because what he's suggesting is that judges would be able to decide what is a terrorist state or what is a terrorist entity. I think that's more of a state-to-state issue, from my perspective, and the principles of international law would be violated.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Mr. Chairman, this is in fact seeking to implement the principles of international law. The whole question of international law is set forth in the whole notion of the State Immunity Act, which at this point, before any amendments, the government's or mine, shields state sponsors and their agents from any acts of civil remedy in Canadian courts.
The government has agreed that we no longer want to immunize these state sponsors of terrorism or their listed entities. All I want to do is say that you're right. You've already done the international law thing. All we want to do is make it more effective. Once you've already agreed that the State Immunity Act should be amended so as to not shield state sponsors of terrorism and to not shield their aliases, agents, or proxies who go under another alias, then make it effective.
What is the point of putting forth legislation and bringing in an irrelevant notion about not wanting to give it to the courts? It has nothing to do with the courts, Mr. Chairman. It has to do with the fact that you want to go ahead and hold state sponsors of terrorism responsible or you don't.
The government already agrees that Canadians should have a civil remedy in the courts. They've already agreed to give the courts jurisdiction. They've already agreed to give the courts jurisdiction so that they can hold states responsible for acts of terrorism and so that they can hold their proxies responsible. This is not a matter of giving the courts jurisdiction they wouldn't otherwise have. It's the same jurisdiction the courts will have. It's the same liability the states will have.
We want to make the legislation more effective. This parroting of some notion that this is not in accordance with international law is simply incomprehensible, Mr. Chairman. With all due respect, it doesn't make sense. In accordance with what they are proposing, they should be supporting this amendment. I shouldn't have to be here today to argue for this amendment. I'm trying to make their legislation more effective. If they really care about giving civil remedies to victims of terror, then they should want to adopt an amendment that does that. Otherwise, what's the point of putting forth their own legislation?
To talk about international law and courts and the like.... The legislation is giving Canadian courts jurisdiction. This government legislation is giving Canadian courts jurisdiction. I'm not doing it with my amendment; the legislation does it. I don't think the government understands the legislation they themselves are proposing, because if they understood the legislation they themselves are proposing, they wouldn't be making these comments here today, because these comments just don't make sense.
Jack Harris NDP St. John's East, NL
Thank you, Chair.
We support the amendment.
In response to Mr. Jean's concerns, I don't understand where he's coming from. The clause that would be amended already recognizes that the cause of action comes from a foreign state committing an act or omission in Canada that would be punishable under various sections of the Criminal Code. That's the definition of terrorism.
What Mr. Cotler's amendment says is that it is not just a foreign state or a listed entity. It would also include a terrorist group that acts at the direction of or in association with such an entity. We're talking about the ability of the cause of action to exist if it's done by a terrorist group that's not listed but is actually acting in association with a listed entity or foreign state.
How this gives judges the power to decide whether a foreign state is a terrorist state is beyond me. I think your comments may have relevance to some other part of the legislation. But surely Mr. Cotler is saying that if we're going to be giving people a cause of action if they're victims of terrorism, and you have listed entities under the Criminal Code and foreign states, and you also have groups that may not be listed but are acting in concert or under the direction of one of these listed entities or foreign states, then they would also give rise to a cause of action.
There may be problems of proof. That goes back to our reservations about the efficacy of the legislation in terms of actually being effective. But in principle, if you're going to suggest that victims of terrorism in Canada have a cause of action within Canada based on these types of acts, then why would you not include non-listed terrorist groups that are acting in concert with or at the direction of the same bodies?
If the other side wants to object to that, I'd feel more comfortable with a reasoned objection rather than something that's misplaced or baseless. If they're not going to vote in favour of this, hopefully someone over there can tell us why.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I object to the characterization of Mr. Jean's comments as unreasoned or not well placed. Up to this point in time, the Canadian government, through section 83.01 of the Criminal Code, has provided a definition of a listed entity. To introduce a term such as “terrorist group”.... Of course, every one of us here knows what a terrorist group is, but I can tell you that once you get into court, without a definition of “terrorist group”, it can indeed be problematic.
I see nothing wrong with the approach of Canada, up to this point, in providing a list.
Thank you.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Mr. Chairman, I think the honourable member, with all due respect, is confusing the question of the list of countries against whom an act can be taken. I have a separate amendment with regard to that. That is not what this amendment is about.
This amendment seeks to ensure that the agent or proxy of that listed state will not be able to escape civil liability by outsourcing it under another alias. That's all we're saying. We're saying that when you go into court we want to make it effective.
They agree that a Canadian citizen should have a civil remedy in a Canadian court. Up to now, that can't happen. This legislation allows it to happen.
It's not a question of the judicial determination. We agree that there should be a judicial determination. It is not a question of the listed entity and the government making that determination as to who is a listed entity. As a state, I have some concern about that, but that's another point. I'm talking about now going on the government's own legislation, with their own determination of the state as a listed entity, that the state proxy or agent should not escape liability by outsourcing it to another alias. That's all we're saying, making your legislation more effective.
I have to say that I don't understand the objections of the government. The more I hear the objections, the more I feel they don't understand their own legislation they are proposing and don't appreciate the fact that we're trying to make their legislation more effective and give Canadians a more effective remedy. They should in fact be responding to our amendments rather than voting them down. At the end of the day, they're going to have less-effective legislation than they themselves wish for, which we otherwise support in principle.
Mr. Chairman, I have to tell you this is an interesting case study of what's the problem with this whole approach. I say this because we have nine bills like this. If we had disaggregated the bills, if we were able to give the proper time to each of the pieces of legislation, we might end up with adopting the legislation and getting better bills for the public, for the people of Canada, for protecting, in this instance, Canadian victims of terror.
What we're going to get is a less effective version than the government deserves to have and what the Canadian people deserve to have. At the end of the day, a Canadian citizen going into court will have a less effective remedy against the state sponsor of terrorism. Now we can't take an action, because they voted my first amendment down. It's not because it's my first amendment; I thought it should have been in the legislation to begin with.
Right now, a Canadian citizen who will have a domestic remedy in a Canadian court cannot take an action against the state perpetrator itself. So if Iran tomorrow commits a terrorist act against a Canadian citizen, the only way we can take an action against it is if Iran in fact delegated it, or designated it a listed entity under Canadian law. We agree: if a listed entity under Canadian law carries out the act, they should be held liable. But if a state carries out the act and doesn't delegate it, or authorize a listed entity in Canada to do so, a Canadian citizen cannot now, under this legislation, take a direct remedy.
That has been the result of them voting down the first amendment. The result of them voting down the second amendment is that if a terrorist entity that is listed under Canadian law goes under a different alias, changes its name and is no longer a listed entity, the Canadian citizen will no longer have an action against them.
Mr. Chairman, the result of the objection to these two amendments is to make their legislation ineffective. It will be there, but it will not accomplish what the government itself seeks to accomplish. I find it surprising that they would not be responsive to amendments that improve their legislation, improve the objectives of that legislation, provide protection for Canadian victims, provide them with an effective civil remedy, and neither immunize the state sponsors of terrorism, which is now immunized, nor immunize the alias or outsourced entity to whom the act is thereby committed, so they also get immunized.
Regrettably, Mr. Chairman, the result of the rejection of two amendments is that a Canadian citizen will not be able to sue a state directly; and secondly, if the terrorist entity or proxy changes its name and is no longer a listed entity, even though it's functionally associated with the listed entity, they will not be able to sue that alias either.
Mr. Chairman, this goes back to immunizing the very terrorist entities this legislation was designed to take immunity away from. It was designed to give effective remedies to Canadian citizens. We no longer will have effective remedies. That's the result of the rejection of the amendment, Mr. Chairman.
NDP
Françoise Boivin NDP Gatineau, QC
Mr. Chair, when I see the kinds of amendments that are being proposed, starting with the first one introduced this morning and continuing to the two from Mr. Cotler we have just heard, I become concerned. It does not provide a great cause for hope for later on, when we get to the substance of the measures that the Conservatives are imposing with Bill C-10.
These are proposals that have been made to really improve the bill and to ensure that the government’s stated objective is met. The only comment I hear from the party opposite, the Conservatives, that is, is to raise objections to or snicker at the number of amendments. I would like to remind people around this table that this is an omnibus bill more than a hundred pages long, with more than 200 clauses, and that it affects nine acts.
To the people offended by the number of pages of amendments, I have to say that I am much more offended by a bill that seeks to enact the Justice for Victims of Terrorism Act and to amend such fundamental legislation as the Criminal Code, the State Immunity Act, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other acts. That frustrates me much more than the number of amendments.
Actually, the Conservatives are lucky because I wanted to introduce just one amendment, an amendment to drop this whole thing. But I was told that it was not admissible.
I don’t know whether they do not understand their own bill or whether they only see what they want to achieve. The Conservatives seem to be quite blindly claiming that we must deal only with what they have presented to the committee, nothing else, and that not a single additional word can help. The explanation that Mr. Cotler has just given makes a great deal of sense. If the Conservatives opened their ears and their eyes they would agree. But that is certainly not happening.
This committee can pack up and go home, my friends, although there are non-contentious issues on which parties are ready to come to an understanding, to find common ground. Why we can’t do that in this committee is beyond me. Just wait until we get to the Youth Criminal Justice Act or even to minimum sentences. That ought to be good.
Conservative
The Chair Conservative Dave MacKenzie
Seeing no further people on the list, I'll now call the vote on Liberal amendment 2.
(Amendment negatived)
Next is amendment L-3.
I'm advised by the legislative clerks that if amendment L-3 is adopted, the government amendment G-1 cannot go ahead because the same lines are in the two.
Conservative
The Chair Conservative Dave MacKenzie
If the next motion is adopted, then government amendment 1 does not go ahead because it's the same words.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Mr. Chairman, the purpose of this legislation has to do with the whole nature of Canadian law, the background with respect to the State Immunity Act, and the jurisprudence that has evolved regarding notions of what it means for the victim to have a civil remedy. Since the State Immunity Act currently gives no immunity to states for damage they cause in Canada, then cases against foreign states that will be brought under the government's proposed legislation will primarily involve acts outside of Canada--as I hope to indicate, for example, suing Iran directly, not just suing Islamic Jihad, which is sponsored by Iran, for killing a Canadian abroad.
I might add parenthetically that if you take the Lockerbie situation, it would not have been possible to go after Libya under the current wording in this legislation. That was why I proposed the legislation that you should be able to go after the state sponsor, Libya itself, for the Lockerbie terrorist act.
What we have here, I regret to say, and I will make this point once again so the government might reconsider, is that the government is in effect being soft on terror and harder on the victims. This government that purports to speak in the name of the victims—and we all want to protect victims—should be giving an effective civil remedy to those victims and not privileging the state sponsors of terrorism who commit terrorist acts against those victims.
Now, with an act of terror committed by the state of Iran, the Islamic Republic of Iran, or in the Libyan Lockerbie situation, they will be immune from a civil suit as a result of the government not wishing to respond to an amendment we propose that would give citizens a remedy.
With regard to this particular amendment, what we want to do under.... Because under proposed subsection 4(2) of the present bill, for a person who is victimized by a terrorist act outside of Canada to sue in a Canadian court, he or she must establish a real and substantial connection to the jurisdiction in which he or she is launching the suit--i.e., here in Canada. So the only connection to Canada will be the Canadian citizenship or permanent residency of the victim.
But in recent court rulings, Mr. Chairman, it's likely that citizenship and permanent residency alone—and I think the government realizes this—will not be sufficient to establish a real and substantial connection to Canada. Therefore, international law experts we've consulted, and I suspect they are the same international law experts they would be consulting, are of the view that it is possible that a significant number of actions against foreign states under this legislation may be precluded or stopped on jurisdictional grounds before they get to the merits, which would undermine the intention of the legislation.
There are cases pending before the Supreme Court of Canada on this very point. Therefore it's essential that the legislation explicitly state that a person's Canadian citizenship or permanent residency status is enough to establish the jurisdiction of the Canadian court.
The way it should be done is in proposed subsection 4(2), which we are speaking of here. We should be deleting the four lines—and I think this supports the next amendment put forward by Mr. Goguen—and maybe word it that for certainty, it is sufficient to establish that the plaintiff is a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act in order to establish the jurisdiction of the Canadian court with respect to the cause of action referred to in this section.
It's similar to what Mr. Goguen is suggesting; the language, I suggest to you, may be somewhat more specific with regard to the same remedy and the same effectiveness that the government seeks.
Again, Mr. Chairman, we are seeking only to make the legislation effective.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Yes, Mr. Chair.
Very briefly, the honourable member worked with Minister of Justice John Turner and he was the Minister of Justice and Attorney General of the country from 2003 to 2006. If he's so adamant in supporting the government at this stage, why didn't he come up with the legislation when the Liberals were in power for 13 or 14 years? I say that with respect, Mr. Chair, because he keeps saying the same thing: he supports our legislation, he's trying to make it better. Yet it took a majority Conservative government to finally get it to this stage to get it passed.
Bluntly, I have a lot of respect for the man. He's a great professor and an Order of Canada winner and Minister of Justice. But why are we here today and arguing about something he wants to make better if he didn't do it in the first place?
