Mr. Speaker, it has been said that the world changed on September 11. I do not know whether the world changed or whether a darker side of our universe was somehow exposed. However, what is clear is that September 11 was a transformative event, impacting on our psyches as well as on our politics, on our priorities as well as on our purposes.
Eight years ago, the reach of global terrorism was illustrated, tragically, more vividly, viscerally and violently to Canadians than ever before. Twenty-four Canadian families lost loved ones in the 9/11 attacks, reminding us also of the horror of Air India years earlier.
Amid the horror and outrage, our government reacted and enacted legislation in the form of Bill C-36. Accordingly, while the threat of terrorism or any legislative response to it was not even on the parliamentary or political radar screen before September 11, it dominated the discourse thereafter and since the enactment of the Anti-terrorism Act some three months after 9/11 itself.
Another measure is now before Parliament, the government's Bill C-35, which has the potential to alter Canada's approach to terrorism as well. However, I want to suggest that the private member's bill that I introduced on behalf of my party is a more dramatic and correct approach in order to provide justice and redress by way of civil remedy to victims of terror while at the same time effectively deterring the states, perpetrators and sponsors of terrorism.
What we have to understand, and this applies both to the government legislation and our own, and here I agree with the generic premise of the government legislation respecting the need to amend the State Immunity Act, for while acts of terrorism are clearly illegal under international law, customary international law has historically given states immunity from suit in domestic courts.
Therefore, we have the situation where Canada's State Immunity Act, in accordance with this basic principle of customary international law, affirmed the principle that a foreign state is immune from jurisdiction in any court in Canada with certain specific exceptions.
Ironically, there is an exception for commercial activity but there is not an exception for terrorist activity. We have a situation where, simply put, our State Immunity Act unconscionably favours foreign states that aid and abet terrorists over Canadians who are harmed by that terror. It removes impugnity with respect to commercial transactions but it retains immunity with respect to terrorist actions. It is in that context that I introduced a private member's bill to rectify this inversion of rights and remedy, this inversion of law and morality.
Under this legislation, when a state engages in the sponsorship of terrorism, it deserves no protection from our federal government. When a state supports a terrorist group that targets Canadians, our Canadian tax dollars should not be spent on defending that state's immunity from liability.
The private member's bill that I introduced sets forth in its preamble the raison d'être for this legislation. I would acknowledge that this raison d'être may well be the objective of the government's legislation and, indeed, features of its preamble in its legislation very much resemble the features in my private member's bill.
What I will seek to show is, while we both may have the same objectives in mind, regrettably, the Conservative legislation does not secure at the end of the day redress for victims of terror, nor does it deter the state perpetrators of terror because the listing framework set forth in the government's legislation undermines the very objectives in the legislation itself, as I will show.
However, let me turn now to our preamble in Bill C-408, which sets for the raison d'être for the legislation. It speaks clearly to the United Nations Security Council resolution 1373, enacted in the aftermath of 2001, and subsequent UN Security Council resolutions thereafter. It states:
—reaffirms that acts of international terrorism constitute a threat to international peace and security, and reaffirms the need to combat by all means—
As our preamble has put it. It continues:
—in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts;
It states that:
—the prohibition against terrorism, as well as the prevention, repression and elimination of terrorism, are peremptory norms of international law—
That is what I refer to as jus cogens.
—accepted and recognized by the international community of States as a whole as norms from which no derogation is possible;
—the support and financing of terrorism...are criminal acts under international law, not sovereign acts for which a state is entitled to immunity;
—the victims of terrorist acts include the individuals who are physically, emotionally or psychologically injured by the terrorist acts, as well as their family members;
—hundreds of Canadians have been murdered or injured in terrorist attacks;
—the Government of Canada reported to the Security Council that fighting terrorism is...the highest priority for the Government of Canada;
I close, with respect to our preamble, and I acknowledge that many of these same principles are set forth in the preamble of the government legislation. As to objective, there may well be a shared objective, but as to the achievement of that objective, the legislations then diverge, and I will show in a few moments exactly how that divergence undermines the very purpose of the legislation of the government, but I will suggest that this purpose is secured by our private member's legislation.
Finally the preamble states that:
—it is in the public interest to enable plaintiffs to bring civil lawsuits against terrorists and their sponsors, which will have the effect of impairing the [function] of terrorist groups, thereby deterring and preventing future [terrorist] attacks;
Admittedly, and this needs to be said, prior to the introduction of Bill C-35, or the introduction of my private member's bill, victims of terrorist acts, arguably, had the capacity to sue individual terrorists, or terrorist entities, or groups, for loss or damage suffered, using Canadian civil responsibility or tort principles in that regard. In fact, if one looked into the situation, there indeed have been civil suits previously in this regard that in fact address the sponsors themselves.
Also, in that regard, at first blush, there may be some concern therefore that while the existing legislation has allowed, under civil law, delictual law in Quebec or the common law of tort, remedies to be taken, this legislation, either that proposed by the government or that proposed by us, raises some constitutional concerns because it attaches civil remedies to federal legislation when such civil remedies are normally thought to be matters within a provincial jurisdiction.
However, as the constitutional law will show, Parliament can establish provisions related to civil redress if they are established within the context of broader regulatory or administrative schemes, which are themselves within Parliament's legislative jurisdiction under the constitution act or, more specific, if they are under the federal jurisdiction in matters related to criminal law, and certainly anti-terrorism law, in its pith and substance, is not only matters related to criminal law but matters of national concern, matters that the courts have held are within the peace order and good government clause and that the civil remedies are, in that sense, ancillary to a power that already exists within a federal jurisdiction.
Other concerns have been raised, which I will very quickly refer to because they have risen in debate this morning and they will arise in discussions before the committee. It might be useful to address them very quickly.
Apart from the constitutional issue, a reference has been made by my hon. colleague from the New Democratic Party on the matter that this legislation gives a right of civil remedy to victims of terrorism, but does not give a right of civil remedy to victims of torture.
That is correct, but the reason for this is not that victims of torture do not have a right to civil remedy. They do. I could even give notice now that I will be introducing legislation that will also provide a civil remedy for victims of torture in the same way that my private member's bill purports to give a civil remedy to victims of terror. However, the issues from a legal point of view, as I will point out at the time of the introduction of my private member's bill, are different in terms of the characterization of the issues, the nature of the remedy, the character of the perpetrator and the like and one could not comingle the two in this legislation because one would do a disservice to both.
Another concern that has been raised is the fact that diplomatic concerns may arise with respect to this legislation and this leads to the final concern and that is the matter of listing of legislation. Here we come to the core of the differences between our legislation.
Simply put, the Conservative legislation takes as its basic premise that state immunity should still operate. In other words, and this is crucial, victims of terrorism under the government legislation will be unable to sue a country that should be held responsible unless the Canadian government decides it should be held responsible. Therefore, whether a foreign state is listed will always be the subject of political negotiations between government. It will always be an issue of executive discretion. It will always have an element of arbitrariness about it. It will take away the basic right of civil remedy from the victims themselves.
In other words, after studying the government's proposed legislation and while I may share its purpose, and I am not questioning the intention, I regard it as necessary in terms of justice for victims of terrorism to put before the House a bill that properly addresses the evil of transnational terrorism, that properly targets the impunity of those states that perpetrate, sponsor or finance acts of terrorism and that properly allows Canadian victims of terrorism to seek justice.
We have an opportunity to provide redress for Canadian victims anchored in principles of domestic and international law. Regrettably, the government's bill handcuffs the victims of terrorism by subjecting them to a political list of countries that the government chooses to target. In this the government bill fails victims of terrorism and places politics above justice.
Simply put, the government's bill takes as its basic premise that state immunity should still operate, which undermines its own purpose in the legislation even when a state is charged with supporting terrorism. Only those states that the government chooses to single out will be held accountable. The government's legislation politicizes the legislation as victims of terrorism have themselves noticed.
Our legislation, my private member's bill's premise on the foundational principle that sponsors of terrorism do not deserve to be shielded by Canadian law and thus state immunity should not continue to operate for such perpetrators of terrorism as it will continue to operate under the government bill.
I move to a close, referring to the words of Victor Comras, which were invoked by the government in order to support its legislation, a former senior official in the U.S. state department who testified before a Senate Standing Committee for Legal and Constitutional Affairs, he explained how maintaining a list of designated countries ended up undermining the U.S. legislation. Therefore, the authority that the Conservatives rely on is Mr. Victor Comras, who came before our standing committee in the Senate and said, “don't go there, don't enact that legislation”. His exact words were, “If we had to do it over again, I have no doubt we would have done it without a list”.
Then he concluded in his testimony here in Canada, “Please learn from our lesson...do not make the same mistake”.
The government, which is invoking Mr. Victor Comras as authority for its legislation, is making the exact mistake that Mr. Comras warned against. I invite the government to in fact respond to Mr. Comras, whom itself has quoted.
While we share the basic principle with the government that victims of terror must have a civil remedy with respect to deterring acts of terror, with respect to providing justice for victims of terror, with respect to giving them standing before the courts to confront the terrorist perpetrators and the like and with respect to removing any immunity from civil liability before Canadian courts, that will only be accomplished if we adopt the private member's bill or if the government is responsive and amends its legislation so as to include the basic principled approach to providing civil remedies for victims of terror that is contained in our private member's bill.
Then we can go forward in common cause, the government and the opposition, to provide victims of terror with a civil remedy that will effectively deter terrorism, that will effectively hold terrorists liable, that will effectively remove immunity from such terrorists, their sponsors, their agents and their like and that will give and secure justice as it must be done for victims of terror.