The legislation seeks to amend the Federal Courts Act, to provide the Federal Court of Canada with jurisdiction to hear claims brought by foreign claimants with respect to causes of actions that took place outside of the territory of Canada, where the acts or omissions alleged contravened international law or a treaty to which Canada was a party. Without more, there are a number of problems with Bill C-331.
To begin with, the legislation would radically transform the mandate and jurisdiction of the Federal Court of Canada.
When the Federal Court of Canada was established, it was established to deal with certain types of matters that fell within the legislative jurisdiction of the federal government. The legislation would fundamentally change that. The Federal Court of Canada would be transformed into essentially an international court dealing with international claims brought by international claimants with little to no connection to Canada whatsoever.
Aside from the issues and principles such as the presumption against extraterritoriality, comity and the principles respecting the sovereignty of foreign states under customary international law, all of which are implicated by Bill C-331, from a practical standpoint, there is a question about the appropriateness of the Federal Court of Canada becoming such an international forum.
By virtue of the international actions that would be invited to be brought forward to the Federal Court of Canada, such actions would necessarily implicate the interests of foreign states. As such, the court would be required to consider questions relating to foreign affairs, international human rights law and international commerce. This is far outside the jurisdiction and mandate of the Federal Court and its area of expertise. Moreover, the legislation would completely upend Canadian and international law respecting the assertion of extraterritorial jurisdiction.
The universal test for the assertion of jurisdiction is a bona fide substantial connection between the subject matter and the source of jurisdiction. As the Supreme Court of Canada stated in the Hape decision, citing the Permanent Court of International Justice in the Lotus case:
...that jurisdiction “cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention”...According to the decision in the Lotus case, extraterritorial jurisdiction is governed by international law rather than being at the absolute discretion of individual states. While extraterritorial jurisdiction — prescriptive, enforcement or adjudicative — exists under international law, it is subject to strict limits under international law that are based on sovereign equality, non-intervention and the territoriality principle.
Moreover the Supreme Court in the Terry decision stated:
This Court has repeatedly affirmed the territorial limitations imposed on Canadian law by the principles of state sovereignty and international comity.
The Supreme Court in the Hape decision did make clear, at paragraph 68, that it was within the jurisdiction of Parliament to pass laws that would have the effect of asserting jurisdiction over non-Canadians outside the sovereign territory of Canada. However, in doing so, the question would become whether it would “violate international law and offend the comity of nations.”
Parliament has passed legislation that would have an extraterritorial effect in some very narrow and limited circumstances.
For example, Parliament has passed the Crimes Against Humanity and War Crimes Act. Pursuant to section 6 of that legislation, every person who commits genocide, a crime against humanity or a war crime outside of Canada is guilty of an indictable offence. However, under section 8 of that act, to be prosecuted, the accused person would have to have some substantial connection to Canada. More specifically, section 8 provides that an individual can be prosecuted only if at the time of the offence the person was a Canadian citizen or a citizen of a state engaged in armed conflict against Canada; or the victim was a Canadian citizen or a citizen of a state allied with Canada in an armed conflict; or, if after the time the offence was committed, the person was present in Canada.
Additionally, section 7 of the Criminal Code contains a number of provisions that deem certain acts that occurred outside of Canada to be deemed to have occurred inside of Canada, including attacks on internationally-protected persons and UN personnel. However, to be prosecuted under those sections of the Criminal Code, the act must be deemed to have been committed in Canada only if the accused was a Canadian citizen or normally resided in Canada.
However, the legislation clearly is inconsistent with any basis for a real and substantial connection that is the basis for the lawful assertion of extraterritorial jurisdiction. Indeed, claimants could bring civil suits in the Federal Court of Canada with virtually no connection whatsoever to Canada.
Additionally, there is some question about the basis of whether it is consistent with international law to permit civil actions against foreign corporations. This issue was considered recently in the U.S. Supreme Court decision of Jesner, which was considering the alien tort statute. In the Jesner decision, the U.S. Supreme Court considered whether common law liability under the ATS extended to a foreign corporate defendant. In considering that question, Justice Kennedy, writing for the court, determined that he was not satisfied that it would be consistent with international law or at least that it was not established that it was so. Justice Kennedy stated that:
It does not follow, however, that current principles of international law extend liability—civil or criminal—for human-rights violations to corporations or other artificial entities. This is confirmed by the fact that the charters of respective international criminal tribunals often exclude corporations from their jurisdictional reach.
In so stating that, Justice Kennedy cited the Nuremberg tribunal as well as the statute of the International Criminal Tribunal for the former Yugoslavia, the statute of the international tribunal for Rwanda, as well as the Rome statute of the International Criminal Court, all of which are limited to natural persons.
Justice Kennedy concluded:
In the American legal system, of course, corporations are often subject to liability for the conduct of their human employees, and so it may seem necessary and natural that corporate entities are liable for violations of international law under the ATS...But the international community has not yet taken that step.
Therefore, for these and other reasons, I cannot support Bill C-331.