Irwin Cotler

[Justice for Victims of Terrorism Act, October 30th, 2009]

Mr. Speaker, I agree with the hon. minister that we have the same objective. The minister says that the only significant difference, or the only single difference as he might even have put it, is the issue of listing. That is a dramatic difference which goes to the core of the difference in our legislation. It undermines the very purpose, as I indicated, of the government's raison d'être in its legislation. It is a crucial difference, for listing retains the principle of state immunity for the most part.

In our private member's legislation we wished to reverse the notion, whereas the Conservative bill takes as its basic premise that state immunity should still operate and victims of terrorism would be unable to sue a country that should be held responsible unless the Canadian government decides it should not be held responsible. Under our private member's legislation we take the basic premise that state immunity should not operate an injustice by denying victims of terrorism their day in court.

The minister, if I can sum him up, made a point about listing possibly preventing frivolous or vexatious lawsuits against our democratic allies and the like. While our private member's bill would remove immunity from perpetrators of terrorism and state sponsors of terrorism, it also has an exception with respect to civil remedies for victims of terrorism. It refers to those countries with whom we have an extradition treaty; that is, those countries that respect and are anchored in the rule of law, have an independent judiciary, a democratic process and the like. Victims of terrorism could seek redress in those countries because of the democratic nature of the regimes, the independent judiciary and due process. We have addressed that issue.

What we are saying is that with the rest of the international community the situation should not be an arbitrary listing, which is always going to be subject to political negotiation, which in turn is going to make our foreign relations more difficult, where the government makes the choice as to who should be sued rather than the victim being able to exercise the judgment as to whom should be sued. In other words, it still retains the principle of state immunity. Our private member's bill would remove state immunity except for democracies anchored in the rule of law.

It is possible to frame legislation between the government's bill and our bill that would protect victims of terrorism, offer them an effective remedy, and remove the principle of state immunity, which continues to operate under the government's legislation through the listing process.

[Justice for Victims of Terrorism Act, October 30th, 2009]

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.

[Petitions, October 28th, 2009]

Mr. Speaker, I am pleased to table a petition signed by hundreds of Canadians, including many from Dawson College and from my riding, calling upon the government to undertake its responsibility to act to stop the humanitarian crisis in Darfur.

The petition notes that since 2003 more than 400,000 have been killed and 2.5 million displaced.

Canada has a responsibility to play a leading role to save the people of Darfur from despair, rape and death.

The petition concludes with this:

We, citizens of Canada, call upon the Government of Canada to engage with the international community to end these atrocities.

We trust that the government will act in response to this cri du coeur.

[POINTS OF ORDER, October 28th, 2009]

Mr. Speaker, the broadcast video and audio of yesterday's answer by the foreign minister to my question on Iran showed that the foreign minister used the word “finally”, saying that Canada will “finally table a strong resolution at the United Nations”, et cetera.

In the report of the exchange in yesterday's Hansard, the word “finally” was edited out. I would ask that the Speaker use his good offices to see that the text faithfully reflects what the minister in fact said.

[Iran, October 28th, 2009]

Mr. Speaker, yesterday, the minister avoided my questions on Canadian action to counter the Iranian threats.

My questions are: Will Canada seek sanctions in support of our United Nations resolution, including sanctioning the Iranian revolutionary guards? Will Canada, as a state party to the genocide convention, implement our legal obligations to combat state-sanctioned incitement to genocide? Will Canada support the Interpol arrest warrant against Iran's defence minister for the 1994 terrorist bombing in Argentina?

We need action, not just words, to protect human rights.

[October 27th, 2009]

Mr. Speaker, as I said in my remarks, the government is continuing its practice of arguing in Parliament that it cannot respond because a matter is before the court.

All these matters went before the court because the government breached Mr. Abdelrazik's rights to begin with. Had the Conservative government not breached Mr. Abdelrazik's rights, the matter never would have been before the court. The matter could have been resolved without a court procedure simply by the Conservative government, on its watch, when these things were taking place, undertaking its responsibilities and bringing Mr. Abdelrazik home, and not continuing to sustain a Kafkaesque process which the court itself identified in terms of the government's breach of its obligations.

If there are any questions that an inquiry would raise that have to do with the former government, so be it. We need an inquiry to get at the truth. We will not get to the truth simply by court actions which deal with damages but not in how the government acted, in what way was it complicit, as the court stated, how far the approvals went, et cetera.

We need to do this in order to protect Canadian citizens wherever detained abroad.

[October 27th, 2009]

Mr. Speaker, the Federal Court in its decision on the Abdelrazik case that the government had breached the Charter of Rights and Freedoms in its treatment of Mr. Abdelrazik and that the Canadian government should take immediate action so that Mr. Abdelrazik would be returned to Canada was clear in its findings of fact and conclusions of law. In addition, however, its factual findings and legal conclusions actually bring shame to the government. I will give some examples.

The government promised Mr. Abdelrazik a passport and then it renegued. Our security agencies cleared him of terrorist ties and then our government called him a security threat. Our government heard a UN official say Canada can bring Mr. Abdelrazik home but then it argued in court that it could not because the United Nations stood in the way.

The government instructed Mr. Abdelrazik that he needed to get his name off the UN watch list though it knew that this was effectively impossible. The government continued to argue in Parliament that it could not comment on the case for weeks and months in debates before the House because the matter was before the courts, and yet the matter was before the courts because the government itself had breached the rights of a Canadian citizen.

It is not surprising that the court called it disingenuous for the government to argue that Mr. Abdelrazik should apply to the United Nations committee for de-listing. It also held, on the basis of the evidence before it, that “CSIS was complicit” in the detention of a Canadian by a foreign government.

Had it been necessary, the decision stated, the court would have no hesitation finding that the government had acted in bad faith. It also stated, “There is no reason to challenge the applicant's assertion in his affidavit that he was tortured while in detention”.

From the beginning, as the court stated, the process that got Mr. Abdelrazik listed recalls the situation “of Josef K. in Kafka's The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime”. In the end, the court had so little faith in our government that it ordered Mr. Abdelrazik to be physically brought before it to prove that he was finally on Canadian soil.

While at this point there is a security review of the actions of CSIS and while Mr. Abdelrazik has sued the Canadian government and officials for damages for the reasons to which I have referred, some disturbing questions remain, questions that can only be addressed and resolved by a complete judicial inquiry.

I will list only some questions for reasons of time. They are as follows. Why was the Canadian government so committed to refusing passage home to a Canadian citizen, a position that appeared to have no basis in law and, indeed, violated the Charter of Rights and Freedoms, as the court said?

Why did the government risk a third straight adverse decision in which the courts admonished it for failing to come to the protection of its citizens? Why did the government invoke dubious security considerations in its defence, ignoring the fact that its own security services, both CSIS and the RCMP, openly stated that they had no information connecting Mr. Abdelrazik to terrorism?

Why did the government appear to acquiesce to both the detention and the torture of a Canadian citizen? Why did it seek to bring about Mr. Abdelrazik's detention to begin with? If Canada turned a blind eye to torture, who knew, who approved it, how high up did it go?

There is a whole series of questions, but I want to close by saying the following. When Canadians travel abroad, they should leave their country confident that their government will stand behind them, that whatever accusations other countries make against them, their government will work to ensure their rights are protected and that, as a bare minimum principle, their government will not be an obstacle to their safe return home.

Only a judicial inquiry will be able to address these questions and satisfy the necessary accountability at this point of what the government knew, when it knew it and why it acted in such a way so as to systematically violate the rights of a Canadian citizen.

[Iran, October 27th, 2009]

Mr. Speaker, we are witnessing, in Ahmadinejad's Iran, four distinct and interrelated threats: the nuclear, the genocidal, the terrorist and massive domestic repression.

What action will the government take to hold Iran to account? In particular, will the government sanction Iran's revolutionary guards, who are at the core of each of these threats, and its energy and banking sectors that create the capacity for this kind of violence?

I invite the government to adopt my own private member's Iran accountability act, which would address all these threats with corresponding remedies. Will it do so?

[Status of Women, October 7th, 2009]

Mr. Speaker, 16 years ago the clarion call at the World Conference on Human Rights held in Vienna was that women's rights are human rights, and human rights mean nothing if they do not include the rights of women.

Sixteen years later, not only are women's rights still not respected as human rights, but discrimination against women remains a form of gender apartheid, where vast numbers of people around the world are humiliated, tortured, mutilated and even murdered just because they are women.

Accordingly, I was pleased to participate in the first ever G8 conference on violence against women in Rome, which determined that violence against women is bound up with women's inequality; that combatting such violence must be a priority on our domestic and international justice agenda; that law on the books must be translated into law in action.

As Canada assumes the leadership of the G8, we must heed the Rome conference call of, “Respect women, respect the world”. There is no better place to begin than a national inquiry into the disappeared and murdered aboriginal women in Canada.

[Foreign Affairs, October 1st, 2009]

Mr. Speaker, amid our domestic preoccupations, we often lose sight of the international suffering around us.

In the Philippines, unprecedented flooding has caused a humanitarian disaster. I extend my sympathy and support to the Filipino community in my riding and beyond.

In Sri Lanka, hundreds of thousands of Tamils suffer in camps for the displaced, eclipsed from the international radar, while NGOs and journalists are silenced and imprisoned.

In Burma, we witness crimes against humanity against the Burmese people, as attested to by the distinguished Burmese delegation here today, whom we assure of action on their behalf.

In Iran, we witness the innocent under assault and the criminalization of innocence, for which Canadians Maziar Bahari and Zahra Kazemi are both metaphor and message.

We will not be silent and indifferent. We will act and prevail.