Evidence of meeting #7 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 state.
A recording is available from Parliament.
Jayne Stoyles Executive Director, Canadian Centre for International Justice
Distinguished members of the committee, I want to thank you for the opportunity to speak to you today about part 1 of Bill C-10, the Justice for Victims of Terrorism Act.
I am the executive director of the Canadian Centre for International Justice, which is based here in Ottawa.
CCIJ is a charitable organization that works with survivors of torture, genocide, and other atrocities to seek redress and to bring the perpetrators of these crimes to justice. I am a lawyer, and I previously directed the global campaign, based in New York, to establish the International Criminal Court.
I want to say first that I think it's very positive that Parliament is considering creating a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters, as part 1 of Bill C-10 would do. Victims of such serious violations of international law as terrorism need recognition, support, compensation, and other forms of redress. I know that the families of those killed in the Air India bombing and those who lost family members in the September 11 attacks in New York have waited for many years to have a bill passed that will allow them to seek redress from those responsible for acts of terrorism.
I also believe firmly in the possibility that at least some of those who plan and carry out such horrific acts of violence can be deterred if it becomes likely that they'll be held responsible in a court of law. Those dual goals of allowing victims to seek redress and deterring future atrocities of this magnitude are at the heart of a global trend towards creating and using mechanisms that allow foreign governments, and even their individual officials, to be held responsible in courts of law.
With that general statement of endorsement for the goals behind the Justice for Victims of Terrorism Act, I'll focus my remarks on the sections that seek to amend Canada's State Immunity Act so that the act cannot be used to shield foreign governments and their agents from lawsuits for terrorism.
There are three key points I want to put forward today. The first is that I think it's entirely appropriate, and indeed overdue, for the State Immunity Act to be amended in this way. The second is that I am aware of one major concern about the approach to this amendment, which I'll discuss. And the third is that it's also important that Parliament pass a similar amendment to the State Immunity Act, in this bill or in a parallel piece of legislation, that would allow victims of the equally serious act of torture to pursue those who harm them.
First, with regard to the proposed amendment to the State Immunity Act for acts of terrorism, as I said, it's entirely appropriate to do this. The principle of state immunity generally prevents the courts of one nation from sitting in judgment of another country's official or sovereign actions. Today, however, most nations acknowledge that they should not be immune from everything, particularly when they are engaged in activities that are contrary to international law and therefore cannot be said to be within their sovereign powers.
Canada's State Immunity Act, passed in 1982, reflects this restrictive approach to immunity, as it sets out exceptions for which immunity will not be granted. For example, foreign states are not immune from civil liability for commercial activities, nor are they immune for any death, bodily injury, or property damage that occurs in Canada. These exceptions were included because the underlying activities are not deemed to be within the sovereign powers of the state.
My second point, having endorsed the idea of amending the State Immunity Act in this way, is that I am aware that both academics and lawyers who work in this area believe that it's not appropriate to have a list of foreign states that can be sued for terrorism that is established by the government. Rather, they believe it should be up to a court of law to determine when responsibility for terrorism should be assigned.
My third and final point is that it's absolutely essential that Parliament pass a parallel amendment to the State Immunity Act for torture, war crimes, crimes against humanity, and genocide--
Executive Director, Canadian Centre for International Justice
--which, along with terrorism, are considered among the most serious violations of international law.
I know that you're all familiar with the case of Zahra Kazemi, a Canadian citizen who went to Iran in 2003 with a permit to take photos. She died of the extreme torture to which she was subjected after having been imprisoned. In the seven years since her death, no one has been held accountable.
There are other examples of Canadians being brutally tortured and killed in other countries and their families being left with no opportunity to seek some form of redress. They cannot get justice in the country where the crimes were committed, and they cannot seek justice in Canada. In fact, as has happened in the case being brought by Zahra Kazemi's only child, Stephan, the Government of Canada ends up on the wrong side of the courtroom, with those responsible for torturing a Canadian citizen arguing against justice because of the State Immunity Act.
In the hierarchy of international law, the prohibition against torture is at the top. It is the international equivalent of a constitutional norm. It binds all nations, and as a result, torture is not an act for which Canada should be providing immunity.
Executive Director, Canadian Centre for International Justice
Thank you very much.
Paul Gillespie President and Chief Executive Officer, Kids' Internet Safety Alliance - KINSA
Thank you very much, Mr. Chair.
Ladies and gentlemen, my name is Paul Gillespie. I'm the president of the Kids' Internet Safety Alliance, KINSA. I'd like to speak for a moment or two on part 2, regarding amendments to the Criminal Code and issues in relation to children and the child exploitation that occurs on the Internet.
KINSA helps to protect, rescue, and heal child victims of abuse whose images are shared on the Internet. We accomplish this by helping to train police officers from developing nations on how to be better cyber cops, basically.
We have to understand and get our heads around the fact that this is basically community policing. We have one global community of offenders and we have one global community of law enforcement officers. Unfortunately, there are many more bad guys than there are good guys out there.
It is extremely expensive to hire a police officer in Canada and ask him to be a cyber cop in Canada, because that's just not possible. So we help to train officers who are already cyber cops in places such as Poland, Romania, Brazil, Indonesia, and Africa. We give them the final tools to add to their arsenal so that they know exactly how to investigate these specific offences and thus make a difference in the lives of children. One of our trainees from Brazil was involved in the identification and rescue of ten children down in Tracyville, New Brunswick, and the arrest of a fellow by the name of Michael Gary Gilbert.
We need to understand this global community. The reason I bring this up is that the new offences involving offenders who communicate with each other for the purpose of abusing a child or who conspire to abuse or teach each other.... This is a very common occurrence on the Internet. As these global networks of criminals are now more exposed as we have more law enforcement officers working together cooperatively with Interpol, the FBI, and the RCMP, this is a very important piece of legislation that will allow us, as more intelligence comes in, to have a greater effect on keeping children safe and identifying the offenders and learning more about their methods.
Overall, on behalf of KINSA, Kim Chisholm and I would like to say that we absolutely support this legislation and the direction the government is moving in. Anything that can be done to help keep children safe is simply a good thing.
That's all I have to say. Thank you.
Conservative
The Chair Conservative Dave MacKenzie
Thank you very much.
Mr. Comras, I appreciate your waiting for us. If you have an opening address, please go ahead.
Victor Comras Attorney at Law, Comras and Comras, PA, As an Individual
Thank you, Chairman, for this opportunity to present views again on this important counter-terrorism legislation.
I first spoke to a parliamentary committee on this legislation some three and a half years ago. At that time I expressed my strong support for holding the perpetrators of terrorism and those who knowingly provide them material support, including state actors, accountable to the people of Canada and to the victims of terrorism. Such legislation, I believe, would act as a strong deterrent to those considering supporting terrorist groups, and it gives a long overdue recognition to the rights of the victims of terrorism by affording them a real recourse to hold those who employ and support terrorism responsible.
The proposed legislation has varied in certain respects since I first testified, and the exemption from sovereign immunity has been somewhat narrowed. It now would apply only to countries that have been listed by the Government of Canada as state supporters of terrorism. Frankly, I would have preferred to see an exemption more broadly applied to any state engaged in providing material support to known terrorist groups, particularly when realistically no other recourse to justice was possible. Even so, I believe that the passage of Bill C-10 now is very important and will constitute a real step against terrorism.
It would also be a welcome step to providing justice to the victims of terrorism. Last month’s tenth anniversary of 9/11 served as a poignant reminder that so many have suffered from the hands of terrorists. It also stirred broad reflection on the progress made and the steps that have to be taken still to quell international terrorism.
And there is so much still to be done. According to a recent U.S. National Counterterrorism Center report, there were more than 11,500 terrorist incidents last year alone, resulting in more than 13,000 deaths, 30,000 wounded, and 6,000 hostages.
While the vast majority of these attacks were concentrated in Afghanistan, Iraq, and Pakistan, terrorist incidents have been reported in more than 70 countries during that year. The consequence of these attacks continues to cause staggering casualties, security implications, and costs worldwide. The fact is that we can't afford even a second here to let down our guard.
We know that terrorist organizations rely heavily on financial and material support from certain states, entities, and individuals who condone and support their cause. That's why we have promulgated so many laws, regulations, international conventions, and UN Security Council resolutions to outlaw and suppress such support.
Despite these efforts, we have not stemmed the flow of funds, nor have we held those responsible accountable. Much of the funds are garnered from countries that lack the political resolve or the wherewithal to stop this flow. We must face up to the fact that it is not viewed as illegal in many countries today to continue to fund terrorist organizations, even groups linked to al Qaeda. Yet in the global environment in which we now live, the effects of these lapses can and do have major consequences for our countries and our citizens.
The United States has been among the most active in ferreting out those who provide funding for terrorism and trying to put them out of business or behind bars, whether they are in the United States or overseas. In order to protect our national security and our citizens, we have passed legislation that extends well beyond our borders, and we've used our extensive leverage over international financial institutions to dissuade them from providing a conduit for terrorist funding. How can we combat terrorism effectively if we do anything less? To my knowledge, we are still the only jurisdiction where victims of terrorism are able to hold those who finance terrorism accountable.
Our experience has shown that the risks that such civil tort or tort-like litigation poses to foreign entities and international financial institutions have done much to foster much greater compliance worldwide with our counter-terrorism norms. The cases brought under our legislation have proved to be workable, and the utility of permitting such civil litigation against terrorists and against providing them material support has produced results. They have produced also a body of jurisprudence that has served to delineate and address many of the complex issues involved.
Perhaps the most difficult issue to be addressed here is the question of sovereign immunity. It's ironic that in the global environment we live in today we have already seen fit to place large exemptions from sovereign immunity on a state’s commercial activities, but we are still so hesitant to do so when it comes to their flagrant violation of international law and conventions.
You have a chance here, Mr. Chairman, to begin to rectify this anomaly. In the legislation you are considering today, I believe it will be a major step in the direction of holding those who fund terrorism accountable, including state sponsors of terrorism.
Attorney at Law, Comras and Comras, PA, As an Individual
If you pass this legislation, you will be adding significantly to our arsenal for combatting international terrorism.
Thank you, Mr. Chairman.
Conservative
NDP
Jack Harris NDP St. John's East, NL
Thank you, Chair, and I want to thank the presenters for giving us their presentations and insight.
I want to start by asking Ms. Stoyles, who suggested that, in addition to the terrorism, what's missing here is the notion of torture by states, and I noted that you indicate in your brief that you don't see this as opening the floodgates because there would have to be a connection to Canada.
I'm not sure how that would fit into the terrorism situation. The connection with Canada could be someone who received refugee status and is now a Canadian citizen and wants to sue the state that carried out the torture against that person. Would this be something that you would see as being valid, or the family of someone whose child or relative in Libya, Sudan, or Syria was tortured by the state—or Turkey, for that matter? Is this something that you would foresee as plausible and practical, particularly with our country lists notion that is contained in the bill?
Executive Director, Canadian Centre for International Justice
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.
NDP
Jack Harris NDP St. John's East, NL
Thank you.
I'm going to Mr. Comras. Can you help us here?
You talked about it being workable with results, for example, in the United States. Of course, the United States is the only country with such legislation, but when I read about the fact that the lists have been changed by the State Department on numerous occasions—North Korea is removed, Libya was removed in 2006, and I believe Iraq, for various reasons to suit the American foreign policy of the day.
How do you see it as being effective, with the exception, I suppose, of the pressure it may have put upon Libya to settle the lawsuits for other reasons? Can you give me examples of the effectiveness of legislation in the United States?
Attorney at Law, Comras and Comras, PA, As an Individual
Yes, I'd be glad to.
The legislation is broad. It applies not only to states but also to terrorist groups and those groups that provide material support. Of course, the sovereign immunity exemption doesn't apply to many of those defendants in these cases, and in such cases we have successfully put out of business a great number of entities, non-government organizations and others, that have been involved in the financing of terrorism.
In addition, we certainly dissuaded a great number of institutions from engaging in questionable activities and have significantly increased the compliance worldwide by international financial institutions, which really are very concerned about the possibility of being brought into a court as a conduit for providing material support to terrorists.
With respect to the sovereign immunity issue, I would agree with you, the arrangements we have in the United States are not serving their purpose. It's too political an issue to list a country specifically as a terrorist-supporting organization and then to have it removed.
It seems to me the act speaks for itself. That's why I've been a strong proponent here in the United States and internationally of the concept that sovereign immunity should not apply to countries that so clearly violate the norms of international behaviour. Where terrorism is concerned, it's very clearly now part of our customary international law that those involved in terrorism are acting outside the purview of acceptable international conduct.
Conservative
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chair.
I think Maureen Basnicki had something to add to her statement.
Did you want to complete your statement, Ms. Basnicki?
October 25th, 2011 / 10:20 a.m.
Founder Director, Canadian Coalition Against Terror
Yes. Thank you for the opportunity.
There are two more points to the amendments that I think are absolutely necessary.
Number 3, if a foreign state funds a terrorist body that commits a terrorist act–-it is usually impossible to prove that those specific funds caused a specific attack; thus, it is very difficult to establish causation, a necessary element of successfully suing terror sponsors. Therefore, C-CAT proposes that a deeming provision be added that establishes clearly that supporting a terrorist entity will make one liable, even if you can't prove that this specific dollar bought that specific bullet.
Number 4, states successfully sued should not be able to shield assets through instrumentalities or proxies they direct or control. In order to increase the effectiveness of the proposed legislation, we recommend expressly referencing these types of legal entities. Since the ownership of many private companies is not publicly disclosed, we also suggest adding a provision enabling the government to assist, to the extent that is reasonably practical, any judgment creditor in identifying and locating the property or any agency or instrumentality of the foreign state. This would potentially be of invaluable assistance to victims, but within carefully crafted limitations.
Founder Director, Canadian Coalition Against Terror
You're welcome. Thank you.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
The other question I'd like to address is to Paul Gillespie.
Mr. Gillespie, I recently attended a conference on child pornography offences. In talking to some of the crowns, one of the things they seek on sentencing is some sort of a prohibition order of the offender going on the Internet. Of course, that has very real and practical limitations.
Do you have any thoughts on how something could be bolstered? Obviously, we can't be in a state where 50% of the people are watching the other 50%. Any thoughts on the use of this and what might be implemented?
President and Chief Executive Officer, Kids' Internet Safety Alliance - KINSA
In a perfect world, it would be nice to restrict activities in exactly the same area that people had previously been convicted of working within. It is very difficult. I do believe, however, that there may be technological solutions out there, certain softwares, that will monitor offenders. The challenge is if they change computers or leave their house; it is very difficult. But I do believe, again, the technological solutions are very close to being available; however, law enforcement would need additional access to ensure behaviour was being complied with.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Assuming such technological developments could occur, how much adaptation would it take for the police authorities to zone in on this kind of an activity? Do we have the adequate resources to do that? Should we dedicate them?