Justice Committee on Nov. 15th, 2011

[The Chair, Conservative, Dave MacKenzie]

Just a minute, Mr. Cotler; I have Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

I'm sure Mr. Cotler can defend himself on that point. I will say that time passes and ideas come and sometimes they're ripe for consideration. I'm not even sure this one is ripe, because I haven't been convinced of the effectiveness of this type of legislation—despite the enthusiasm our witness from the United States brought to it. Clearly, Mr. Cotler has pointed out a significant gap or hole in this legislation, which the government has also recognized.

I will say, Mr. Cotler, I'm not certain whether you are arguing now for your amendment to pass or to amend the amendment that the government has. Maybe you can clarify that. It seems to me that if the object is to ensure that the plaintiffs aren't going to run afoul of a jurisdictional or forum non conveniens type of argument, the way to do it is to be more particular. Perhaps the government amendment, even with your add-on to it, would be more effective than the one you have before us. That is, unless you're suggesting that your amendment needs another amendment to another section in order to be effective.

There seems to be more than one way to do this. I'm interested in assisting to improve the legislation that is now before us, as opposed to some legislation that Mr. Jean thought might have been before somebody else at some other time in the past.

I believe we are here together working in good faith to try to improve this legislation. I wonder, can you tell us whether you still wish to proceed in the manner you suggest by Liberal amendment number three? Or would you be satisfied with the next amendment coming forward with some modifications?

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

I would be satisfied, because in fact the amendment that is proposed by the parliamentary secretary does capture the amendment I had in mind. I would be prepared to support it, and do support it. It's just a matter of the refinement of language.

I do want to say for the record, though, that when I was asked why, as Minister of Justice, I hadn't proposed similar legislation, Mr. Chairman, the answer was that if you look at Hansard, you will see that as Minister of Justice I sought the proposed legislation. We were defeated, Mr. Chairman.

As one of my first acts, and this can be confirmed, I went to the Minister of Public Security at the time and said that we were defeated but this is what I was hoping to do, and I would hope the Conservative government goes ahead and introduces this legislation.

I've been in support of this from the time they took power way back in 2006, Mr. Chairman. Hansard will show that I supported this in 2005. At that point, we did not get to the point where we had draft legislation prepared to go forward, although the intention to do so was clearly stated in the record. I went to Stockwell Day, the incoming Minister for Public Security, and said, “Stockwell, this is the legislation we were intending to propose, but we were defeated. I suggest that you do it. We have a common cause here: we want to give victims of terror a civil remedy.”

I just want to put that on the record, lest it be thought that we are coming late to this idea and only seeking to do it now.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler, given the discussion that occurred with respect to your amendment and the government one, do you wish to withdraw your amendment so we can move to the government one?

[Irwin Cotler, Liberal, Mount Royal, QC]

I will withdraw mine, because the government amendment captures what I had intended. My only thought is that maybe the language I was proposing is somewhat finer, but I have no problem with it, because it captures the intent in what the parliamentary secretary is proposing.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

I'll need unanimous consent for the withdrawal of the motion.

[Some hon. members]

Agreed.

[The Chair, Conservative, Dave MacKenzie]

We'll move to the government amendment, Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Just for the sake of clarity, what we're proposing is that clause 2 be amended by replacing line 4 on page 4 with the following:

Canada or the plaintiff is a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act.

I'd like the public safety officials to comment on that briefly, if you'd give us leave to do that, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Sure.

[Larisa Galadza, Senior Analyst, International Affairs, Security and Justice Sector, Foreign Affairs and Defence Division, Treasury Board Secretariat]

Bill C-10, as originally introduced in Parliament, would allow any person to sue who can demonstrate a real and substantial connection between their action and Canada in a Canadian court. In Canada, the meaning of “real and substantial connection” has been established by the Supreme Court of Canada, which identified eight factors to be considered when determining whether a court could be seized of a case that happened in another jurisdiction.

According to these eight factors, Canadian citizenship or permanent residency would not necessarily be enough to automatically establish a real and substantial connection between the cause of action and Canada. The proposed amendment would establish that Canadian citizenship or permanent residency of the plaintiff would be sufficient for a court to hear the case.

[The Chair, Conservative, Dave MacKenzie]

Not seeing anyone wishing to speak to it, I will call the vote.

(Amendment agreed to)

We now move to government amendment number 2, Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Again, for the sake of clarity, Mr. Chair, we are proposing that clause 2 amended by adding after line 4 on page 4 the following:

(2.1) In an action under subsection (1), the defendant is presumed to have committed the act or omission that resulted in the loss or damage to the plaintiff if the court finds that (a) a listed entity caused or contributed to the loss or damage by committing an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code; and (b) the defendant--for the benefit or otherwise in relation to the listed entity referred to in paragraph (a)--committed an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.

Again, I would ask leave for the person from the public safety department to comment on this, Mr. Chair.

Thank you.

[Larisa Galadza]

This amendment would lighten the burden of proof on victims of terrorism by creating a presumption of causation of damage. The amendment would establish that the defendant is presumed to be liable if it supported a listed entity that caused or contributed to the loss or damage, subject to the cause of action. The presumption could be refuted if the defendant proved that he or she did not cause or contribute to the loss or damage in question.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

I should have mentioned before we started the discussion here, if this amendment is passed, the legislative clerks indicate that Liberal amendment 4 cannot be moved because it is similar in nature.

[Irwin Cotler, Liberal, Mount Royal, QC]

Again, Mr. Chairman, I support the amendment in principle because I support the legislation in principle. This amendment, in fact, in the matter of liability, is relevant and helpful. The amendment I was proposing, Mr. Chairman, and the rationale for it, is if a foreign state funds a terrorist body. We didn't have explanation as to why this amendment was moved. I just want to provide a background rationale for the government's own amendment, let me say, Mr. Chairman.

It's now just a choice of whether it's theirs or mine, but the rationale remains the same—that if a foreign state funds a terrorist body that commits a terrorist act, it is usually very difficult, if not impossible, to prove that those specific funds caused a specific attack. In other words, it's difficult to establish causation, which is a necessary element for a successful suit against terrorist sponsors. Therefore, our approach was to add a deeming provision, which establishes that supporting a terrorist entity will make one liable for the terrorist attacks that entity commits, even if it cannot be proved that a specific donated dollar brought about that specific bullet.

That was the purpose for my amendment, which appears on the next page, Mr. Chairman, but I'm prepared to go along with one that goes along with the presumption, rather than have the deeming clause, because it captures the essence of what I think I would like to have. I think the deeming clause is preferable, but we don't have to go through the whole debate, because it's not going to get accepted—

[The Chair, Conservative, Dave MacKenzie]

Mr. Harris.

[Irwin Cotler, Liberal, Mount Royal, QC]

—so I'll go along with what the parliamentary secretary has proposed.

[Jack Harris, NDP, St. John's East, NL]

I won't go into much detail. It was just to say that we support this amendment, because otherwise the record doesn't show in the votes that we actually support this particular amendment. And we support it for the reasons given by Mr. Cotler, and Mr. Goguen as well.

[The Chair, Conservative, Dave MacKenzie]

Great.

Seeing no other names on the list, I will call the vote.

(Amendment agreed to)

That then precludes Liberal amendment number 4.

(Clause 2 as amended agreed to)

(Clause 3 agreed to)

(On clause 4)

On clause 4, I believe we have an amendment from Mr. Cotler: Liberal amendment number 5.

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman.

The amendment here is really again for the purpose of making the legislation more effective, by clarifying the language in that regard.

The amendment effectively reads that clause 4 be amended by replacing line 39 on page 4 to line 5 on page 5 with the following:

2.1(1) For the purposes of this act, a foreign state engages in the support of terrorism if the foreign state knowingly or recklessly provides, directly or indirectly, material support to a listed entity as defined in subsection 83.01(1) of the Criminal Code, or to a terrorist group as defined in that subsection acting on behalf of, at the direction of, or in association with a listed entity.

Then the next paragraph, Mr. Chairman, seeks to define what material support is, so that we are clear what it in fact covers:

(2) In this section, “material support” means currency or monetary instruments, financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and all physical assets, but does not include medicine or religious materials.

Again, Mr. Chairman, this is to both delineate and capture the nature and character of the terrorist acts so identified.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Seeing no other intervenors, I shall put the question on Liberal amendment number 5.

(Amendment negatived)

[Jack Harris, NDP, St. John's East, NL]

Can we record that vote, Mr. Chair?

[The Chair, Conservative, Dave MacKenzie]

I'm sorry, the vote was already completed. If you're going to ask for a recorded vote, do it before we vote.