Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 20 - Evidence for June 5, 2008
OTTAWA, Thursday, June 5, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill S-209, An Act to amend the Criminal Code (protection of children); and Bill S-225, An Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism), met this day at 10:48 a.m. to give consideration to the bills.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
We are continuing our study of Bill S-209. Our witnesses this morning are Anne McGillivray, Professor, Faculty of Law, University of Manitoba; Mark Carter, Associate Professor, Faculty of Law, University of Saskatchewan; and Eric Roher, Partner, Borden, Ladner, Gervais, LLP.
We are very grateful to all of you for agreeing to be with us this morning to help us in our work as we consider this bill. If you would be so good as to make your statements, we will then proceed to a generalized question period refer than individual ones.
Anne McGillivray, Professor, Faculty of Law, University of Manitoba, as an individual: As you know, I am a professor of law at the University of Manitoba. I have published 60 titles including books, chapters, journal articles and reports. Central to all of my research is the question of violence against children and children's rights.
I had the pleasure of addressing this committee in September 2005 on the history of children's rights in light of Canada's obligations under the UN Convention on the Rights of the Child. I am happy to be back here today to speak more specifically about what I think is the core and emblematic right of children at this moment in Canada: the right of the child to live free of violence and, in particular, free of violence that is sanctioned by the state. This, of course, would be section 43 of the Criminal Code.
The right belongs to children under international human rights law as well under the Convention on the Rights of the Child. It is not only that children are singled out for children's rights, but as human beings they are entitled to full human rights. Under the UN convention, Canada must listen because we signed it and ratified it to the Committee on the Rights of the Child. That committee told us that the ban on violence against children includes even the lightest form of violence. Therefore, we have to ensure that our laws do not permit or tolerate even light violence against children.
As you know, section 43 of the Criminal Code offers a defence to assaults committed against children. Assaults are violence. That defence has been called the defence of reasonable correction, moderate correction, corporal punishment, correction by force and, I think most recently, the spanking defence.
I thought I might be able to help you today understand what this defence is for by understanding where it came from. What does section 43 actually do?
I will say at this point that the decision of the Supreme Court of Canada in the Canadian Foundation case in 2004 was an extreme disappointment. The case does not fit with any other pattern or pathway of law that I have encountered in 19 years of teaching law. Since that case, I have not met a single law student now who will speak up in favour of section 43. The case perhaps had the opposite effect that the court meant. The guidelines are not helpful and the analysis is not helpful in that case. One thing the court did not do that it usually does is talk about where this law comes from. Therefore, I want to do that for you today.
This law originates in a series of Roman laws that were enacted to curtail the power of the father. The power pater potestas gave the father all power over all members of his household, adult children and little children included. In this series of developments in Roman law, child killing began to be treated as murder and, eventually, the senate began to curtail the degree of physical punishment that a father who could not now murder his child could commit.
In the year 227, the Emperor Alexander Severus prohibited punishment that exceeded a moderate flogging. In the year 365, the Emperors Valens and Valentinian recognized the power of punishing minors by their elder relatives but refused to confer the right to inflict extremely severe castigation for the faults of minors. The exercise of parental authority was to be limited to correcting the errors of youth and repressing them by private chastisement. Anything that was a serious offence committed by the child would have to be taken to the law courts and could no longer be punished by the father.
These Roman laws were collected in Justinian's Digest in 534 and an annotation to the Digest in that year or shortly thereafter explained what this meant. The unknown annotator said that flogging goes unpunished if administered by a magistrate or parent because it is inflicted for the purpose of correction and not for the sake of insult. However, it is punished when someone has been beaten up in anger by an outsider.
You can see how this is looking like section 43.
This became known as the power or defence of reasonable correction. Defences actually come much later in the history of criminal law. This would have been thought of as a power.
Assault committed by the father against his child, his wife, his servant and slave were illegal. Magistrates, masters of ships, school masters, prison masters and masters of trades were similarly empowered to use corporal punishment that was reasonable, moderate chastisement against those in their control. Beating subordinates was an emblem of magisterial power.
Ecclesiastical or church courts and civil courts modelled their law on Roman law. Now you see the intersection of a certain view of Christianity with Roman law such as some of the statements in the Old Testament about beating children.
Beating children became again a specific emblem of the kinds of schools that children were sent to. With the Norman conquest in 1066, the law spread into the new common law of England and then outward to its colonies.
In 1867, Canada became a federation. The colonies of Canada came together in the 1867 British North America Act, making criminal law a federal responsibility. As the Fathers of Confederation knew, this would require a consolidation of colonial criminal law which was a combination of common law and statutes that each colony administered separately; most of it was English common law and, in Quebec, the civil law.
This consolidation was achieved in the 1892 Criminal Code, our first Criminal Code. In the general part of the Criminal Code, there is a restatement of the common law on principles of culpability, such as the questions of when are you guilty of a criminal act; when is it an accident; when is it something you are allowed to do; and when do you have a defence for doing something that otherwise you will not be allowed to do. This is all put together in the general part. It includes the defences to assault, and it includes correcting a child by force.
This came to be due to an English jurist called James Fitzjames Stephen. He was a great believer in criminal codes and he prepared a draft code for England in 1878, which he tried to sell to the foreign office. Many of the colonies, including Canada, bought it. All of the colonies amended it in their own ways as they entered statehood.
It is interesting to see that many of us share the section 43 defence. In identical terms, I found it in Queensland, New Zealand, and other places.
James Fitzjames Stephen based his formulation of what we call section 43 on a case from 1860. Thomas Hopley was a schoolmaster, and he had a "slow boy'' by the name of Reginald Cancellor, who was 13 years old. Hopley wrote to the boy's father for permission to beat him as severely as necessary and for as long as necessary to make Reginald learn. The father agreed. The schoolmaster took the 13-year-old boy to a deserted classroom late at night and beat him for two hours straight with a heavy brass stick. The boy died and they dragged him upstairs and tried to cover up the death.
Hopley was found guilty of manslaughter because while he had the right to beat or castigate or use physical punishment on this pupil, especially with the father's permission, which he probably did not need, the way he did it was excessive. It was not necessarily that the boy died, but that Hopley used the heavy stick and for too long. The court ruled that by the law of England, a parent or schoolmaster may, for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment, always, however with this condition: that it be moderate and reasonable. The court went on to say that if the punishment is administered in passion or rage, is excessive in nature and degree, is protracted beyond the child's endurance or an instrument is used that is unfitted for the purpose, then the perpetrator is guilty of assault and does not have access to section 43.
Section 43 is a defence to an assault, so we are assuming now there has been an assault. It is a defence because the assault is corrective. It is not preventive; it is corrective. For example, if my colleague here were to run into the path of a bus going by and I pull him back, that is an assault but it is not a corrective assault, and he is unlikely to charge me with unconsented touching of the person. However, if he runs into the path of a bus and I pull him back and then hit him to remind him to never run into the path of a bus again, that is a corrective assault, so section 43 is a defence to a corrective assault. Hitting, spanking, slapping, strapping, caning — this is what the Romans meant, and this is what Hopley's case meant, and this is what the courts for over 100 years of the Criminal Code have meant: corrective assaults.
We still have this defence for children, but, as you recall from that list, we had wives. We do not have apprentices any more in that sense. Schools are a different question, which my colleague will address. We still have wives. Why do not we have that defence in our Criminal Code for wives? We kept it for children.
The Chair: Ms. McGillivray, I cannot tell you how fascinating this is, but we only have until noon.
Ms. McGillivray: I am nearly done, but I wanted to mention wives because they did not make it in there. A wife was literally under her husband's rod. That was her legal designation. She was not included in Stephen's code because beating your wife had fallen out of judicial favour. Judges did not like to hear about that anymore. Even Blackstone in 1771 called it the old common law. Just one year before Canada's Criminal Code in 1891, the leading English case, Jackson's case, said that we do not have that law in England and never did, which was an odd thing for a court to say, but they did. They said that we do not have anything to do with wife beating as a defence in our Criminal Code.
In all the study of section 43, it has never been about nurturing or protecting a child from harm or preventing a child from committing harm. It has always been about assault for correction, pretty much after the fact. It was not until the Supreme Court case in 2004 that nurture became confused with punishment. There is a very basic privilege in the common law that gives us the right to touch children for the purposes of nurture and care. It is such a common, ordinary right, never discussed by the courts. The Ontario Court of Appeal mentions it in a 2000 case, and it is called the right to touch children for acts of nurture, and that is what we have begun to mix up with section 43.
Today, I would invite the Senate to end the legal sanction of violence provided by section 43 and rid the criminal law of what is clearly an archaic as well as dangerous provision.
The Chair: Thank you very much.
Eric Roher, Partner, Borden, Ladner, Gervais, LLP, as an individual: I am extremely grateful for your kind invitation. I am a partner and national leader of the Education Law Group at Borden, Ladner, Gervais, which is a large national law firm. I am also an adjunct professor at the Faculty of Law at the University of Toronto. I teach a course in education law, and this year will be the seventh year of the course, which is exciting. I have written three books on education law, and a new edition on the role of the principal is coming out next month.
In my practice at Borden, Ladner, Gervais, I represent school boards and independent schools across Ontario. Among my clients are the Toronto District School Board, the Toronto Catholic District School Board, and many other school boards. In the recent introduction of Bill 212, the safe schools legislation, I acted for 20 school boards in the province. I am not here speaking to you today representing any one school board but in my capacity as adjunct professor at the University of Toronto and in my capacity as school board counsel.
I would note that your committee's attempt to combat violence against children is very important. I fully agree with the committee and its objectives of protecting children from abuse and ensuring the right of the security of our children. As school board counsel who has provided legal advice to school boards in Ontario for some twenty years, I do not believe that Bill S-209 will assist to combat violence against children in a school board context. I will focus my remarks in a school context, pertaining to teachers and school administrators.
I note there was a well known Supreme Court decision in December 1998 called R. v. M.R.M. My colleagues will know it well. It is a leading case on search and seizure, decided by Mr. Justice Peter Cory. He says that it is essential that our children be taught and that they learn. He said that without an orderly environment, learning will become difficult if not impossible. He said that in recent years, problems that threaten the safety of students and the fundamentally important task of teaching have increased in their numbers and gravity. He said the possession of illicit drugs and dangerous weapons in schools has increased to the extent that it challenges the ability of school officials to fulfill their duty in maintaining a safe and orderly environment. He also said in his decision that current conditions make it necessary to provide teachers and school administrators with the flexibility required to deal with discipline in schools. Justice Cory said that educators must be able to act quickly and effectively to ensure the safety of students and to prevent serious violations of school rules.
Many of you will have heard about the Falconer report, a report released by the School Community Safety Advisory Panel. It is from the Toronto District School Board and was commissioned after the death of a Toronto student named Jordan Manners at C.W. Jefferys Collegiate Institute in May 2007. I make the point that the Falconer panel found a community-wide crisis of confidence in the ability of the Toronto District School Board to ensure a violence-free and weapons-free environment. The panel report is 1,000 pages and is comprehensive. The panel reported that sexual assaults have increased in alarming rates in Toronto schools and that there are guns in select schools in the city in non-trivial numbers. The panel found that violence in schools, gun incidences, robberies and sexual assaults are not only a Toronto phenomenon but said that the statistics they found are consistent not only in Canada but in North America. This is a North American phenomenon.
Specifically, within the education context, it is my belief that the elimination of section 43 of the Criminal Code would be detrimental to the ability of teachers and school officials to maintain a safe and secure environment for all students. I want to point out briefly five major concerns.
My first major concern is that repealing section 43 will eliminate a very valid defence under the Criminal Code that is valuable for teachers and school administrators. Currently, section 43 is the only defence specifically designed to provide teachers and school administrators with legal protection that is essential in their ability to exercise their duty to maintain a safe learning and teaching environment. Section 43 protects teachers and school administrators who use reasonable corrective force to restrain or remove a child in appropriate circumstances. The concern is that if section 43 is repealed, the general, wide and liberally construed assault provisions of the Criminal Code would apply to teachers and school administrators who use any force at all against a child without the child's consent.
It should be recognized that assault has been construed in a broad and wide manner by our courts, such as any non- consensual touching may constitute an intentional application of force, and thereby an assault. If section 43 were repealed, our broad assault laws would potentially criminalize behaviour that may arise in our schools on a day-to-day basis.
Without the protection of section 43, a teacher or school administrator could potentially be committing assault under a number of circumstances: if a teacher separates a bully from a classmate that he may be taunting; if a teacher removes a disruptive student who refuses to leave a classroom or the school; if a teacher removes a student from a school bus where the student is causing serious disruption or refuses to take a seat in the school bus or leave the school bus. In addition, restraining and controlling an emotional or angry student could potentially lead to an assault charge, as could the following examples: intervening where a fight occurs at school, including restraining a student; restraining a cognitively impaired student who has attempted to lash out; and lastly, minor force when used to direct or guide a student to the principal's office. If section 43 is repealed, those situations could potentially lead to an assault charge.
My second concern is that there are no other defences in the Criminal Code that are an appropriate substitute for the protection offered under section 43. There is a defence called the de minimis non curat lex defence — that law does not concern itself with trifling matters — but that is only available for trivial or technical violations of the law. I know different organizations have said this defence is available for school administrators, but this defence does not offer the kind of protection for valid uses of force, such as reasonable restraint, as does section 43, which is specifically designed to assist and protect teachers and school administrators. The de minimis defence is more vague and difficult for courts to apply than the reasonableness requirement built into section 43.
My third concern is that if section 43 is removed from the Criminal Code, we run the risk of a dramatic increase in the number of assault charges filed and prosecuted relating to schools, teachers and school administrators. As a precaution, teachers and school administrators would be well advised not to intervene in any classroom or school situation that could lead to circumstances where reasonable force might be required. This would likely result in more calls to the local police department, with parents upset at particular educators for different reasons calling the police out of reprisal or retaliation. This could potentially lead to a deterioration of the classroom or school learning environment. In addition, those students most likely to disrupt a classroom might in fact interpret the repeal of section 43 as a kind of licence to do so with impunity.
The fourth concern is that repealing section 43 might unnecessarily stigmatize blameless teachers and school administrators who may be subject to criminal prosecution. The concern is that if you remove section 43 and apply the strict application of the assault provisions of the Criminal Code, this could lead to a considerable increase in the number of questionable, frivolous and maybe malicious assault charges filed against teachers and school administrators.
Even if these educators are eventually acquitted, the mere fact that they have been charged will have a significant and horrendous impact on their lives. Charges against educators — as I am sure you know — are well publicized in the media. Teachers' reputations, positions and professional status are at stake. As a matter of practice, they are suspended from their positions, sometimes without pay, pending the outcome of investigations. If they are acquitted or the charges are withdrawn, teachers accused of assault are usually transferred to another school. Significant stigma is attached to this criminal charge, even if the charge has no merit. Mr. Justice Westman pointed out in a 2005 case that men and women who have been charged who are educators may have their lives — private and public — destroyed; families may be broken up. He is talking about the emotional well-being of these individuals.
We are already having difficulty attracting male teachers into the elementary teaching units, and this type of situation could lead to difficulties generally in attracting individuals into the teaching profession.
The fifth concern that arises in repealing section 43 is that the reasonableness test would be removed regarding the court's consideration of the individual facts of each case. With all due respect to my learned colleague, I do not agree. Lawyers and law professors often do not agree.
It is my view that Chief Justice McLachlin's interpretation of section 43 in the Canadian Foundation case reaches a valid and important compromise by providing much needed guidance as to the scope of section 43. She provides a pragmatic approach based on what is in the best interests of all parties involved. In my view, she provides an appropriate balance. She asserts that teachers may reasonably apply force to remove a child from a classroom or to secure compliance with instructions, but not as corporal punishment. She says we have to look at what is reasonable in the circumstances. She says the test is objective and must be considered in the context and light of all the circumstances of each case. What the court has done is to apply a reasonableness standard, which, in my view, is the correct approach.
In closing, I have outlined five major concerns with respect to section 43. Over all, it is my view that section 43, as currently interpreted, provides good legal protection to our teachers and school administrators across Canada in exercising their responsibilities to provide a safe and secure learning environment.
A complete repeal of section 43 would do more than prohibit corporal punishment. It would, in fact, prohibit the use of any kind of force in all circumstances involving children in a school setting.
I think that all of you will agree that teachers and school administrators require the support of us collectively as a society in order to maintain safety and security in our schools and to allow them to perform their role in educating our children.
Canadian courts have been clear that section 43 does not confer the right to use force, nor does it license any type of hitting or slapping of children. The section does not sanction or condone child abuse. I think all schools and school boards in Ontario, and I think in Canada, currently oppose the use of corporal punishment and maintain there is an important need to protect the rights of our children from abuse.
I am prepared to answer any questions that may arise in the question period, and I am happy to assist where I can.
Mark Carter, Associate Professor, Faculty of Law, University of Saskatchewan, as an individual: Thank you very much. It is an honour to be here today, and I would like to thank the committee for inviting me to be a witness in relation to this important matter.
My research and writing in relation to section 43 addresses various aspects of the corporal punishment issue, all of which support repeal of the defence.
I am a professor of constitutional law, and among other various areas of interest is the role of prosecutors. I will speak to that.
To preface my remarks, I will suggest that, in the absence of section 43, there are defences apart from de minimis that might be considered. I think this committee has heard some of those mentioned already. Defence of necessity and section 27 of the Criminal Code come to mind.
Today, I will speak to something that addresses part of Mr. Roher's comments: If we did not have the corporal punishment defence in the Criminal Code, could the exercise of discretion by prosecutors provide some middle ground? I know this will not be a satisfactory response to people who are most interested in retaining section 43. However, I will outline the situation.
Could the exercise of that kind of discretion modify the application of the law of assault as it applies to parents in particular so that, in some circumstances, they would not be prosecuted for engaging in the kind of forceful disciplinary conduct that might technically comprise an assault? In some respects, I am addressing some situations that are distinguishable from those brought up by Mr. Roher in the school setting.
To the drive to the point, our law does recognize the existence of these kinds of discretionary powers which may be exercised by individual prosecutors in relation to individual cases. For legal and constitutional reason, the "individualness'' of that has to be emphasized. I can respond to that if there are questions.
I am speaking about the common-law power of prosecutors to withdraw charges and the Criminal Code power to stay proceedings. For people who want some assurance that, in the absence of section 43 of the code, the law of assault may still be applied with some sensitivity to the unique situation of parents and teachers in certain circumstances, we can say that the law does allow prosecutors sometimes to decide not to prosecute for using force to correct children in situations where that force would otherwise be defined as assault.
On the other hand, because the law does require the exercise of this kind of discretion to be specific to the facts of a case and a prosecutor's perspective on those facts, we cannot say that parents will never be prosecuted for the kind of conduct that is presently shielded by section 43; some of it would still fall within that range of discretion.
This suggests that reliance on discretion injects some uncertainty in the law in relation to when people may expect that they will be prosecuted for assault in these circumstances. I believe, however, that much uncertainty already exists due to the wording of section 43 and notwithstanding the Supreme Court's attempts to give a clear framework for the application of the defence.
The difference is that, as the law presently stands, we begin from the assumption that the use of force against children can be justified. As part of a package of what exists in the absence of section 43, it places the uncertainty of this area more firmly and appropriately on the people who decide to take the risk of using physical force to discipline children. It is hoped they will not take that risk and consider alternative, non-forceful approaches to correction.
Here are some legal details about prosecutorial discretion. As you will know, with some rare exceptions, individual or front-line provincial Crown prosecutors exercise most of the prosecutorial power under the Criminal Code. In theory, prosecutorial discretion is supposed to be concentrated in the stage of the criminal process that follows charges being laid. However, prosecutors may act as independent advisers to the police in deciding whether to lay charges and, in some jurisdictions, charge approval processes are followed.
As I have mentioned, within the range of decision-making powers available to Crown prosecutors, the common-law power to withdraw charges and the ability to stay criminal proceedings once commenced are the most applicable to this issue. For the most part, these two types of authority can be dealt with together because the principles relating to their use are similar. There are distinctions I can speak to if there are questions about them.
Two principles are expected to guide decisions by prosecutors in relation to whether to enter stays or withdraw charges. The first is perhaps the best known: the sufficiency of proof principle. The second is the public interest principle.
The sufficiency of proof principle provides a threshold test whereby a Crown prosecutor must be satisfied that there is a reasonable chance of gaining a conviction at trial. This, in turn, involves considering sufficiency of evidence in relation to every element of the offence — and the one we would be thinking of most commonly here would be the assault defence — as well as any defences that might be raised. For as long as the criminal law has contained a formal corporal punishment defence, we can assume that the sufficiency of proof principle has been of particular significance when considering whether to pursue assault prosecutions in these circumstances.
In the absence of a formal defence, we could expect that there would still be consideration of other defences that might arise. Also, the public interest principle, the second complement of considerations, would gain significance.
The public interest principle holds that even when there is a likelihood of conviction, a prosecution should only proceed where it serves the public interest. One important factor that mitigates against a decision that a prosecution serves the public interest is that the conduct in question is only a technical breach of the law. For example, no actual harm has been done even though it might technically constitute an assault. This addresses to some degree concerns about the scope of conduct that falls within section 265 being as broad as it is, particularly at the least violent end.
Another example of a public interest factor that could apply to parental situations is whether it would be unduly harsh or oppressive for a conviction to arise under the circumstances. Also, the opinion of the victim is important. Both of these, you will appreciate, could relate to a corporal punishment situation.
These are frameworks that are of the two grand principles that prosecutors uniformly recognize across Canada.
In closing, I want to emphasize that these exercises of discretion by individual prosecutors in response to their assessments of the factors at play in particular cases have to be distinguished from broad, top-down, non-prosecution policies that might be passed by Attorney General offices and imposed on individual Crown prosecutors. Those kinds of non-prosecution policies have been held to be invalid, precisely because they effectively remove discretionary power. The rejection of those policies would speak to some aspects of prosecutorial discretion that make people the most uneasy, suggesting that it might be, in some circumstances, a wholesale refusal to prosecute in certain areas. That is not the case with the legitimate range of prosecutorial discretion that is accepted by our law and the constitution.
Those are my general comments and I would be happy to answer questions.
Senator Andreychuk: Professor McGillivray and I have known each other for some time. I very much respect her work on corporal punishment, although we dramatically disagree in the practice. After you say there should be no corporal punishment, you are still left with the needs of a child and the needs of a family, and therefore some intervention is necessary. We have yet to have a fulsome debate in Canada about that, so I look forward to that debate, which I think the issue of corporal punishment is over.
Mr. Roher, the school boards have passed policies virtually across Canada. Whether it is by law or by policy, there is no corporal punishment. Striking children is out. The emerging crisis that came out of the report is that teachers need some capabilities, and school boards have given varying capabilities. Some have monitors to do security. The teacher can be hands off, but what do we do about the monitors? Many of them are volunteers. You have made your case.
I have a question of Mr. Carter, who comes from a distinguished line of professors and jurists in my province. You are saying that we will get charges, and the charges inevitably will come from clever children saying they have been touched, because if we take the international standard, the category of children goes right up to age 18, and it will happen even if we take a standard of age 16.
I hear children at 8 years of age using legal language that I did not learn until I went to law school. We will see ourselves with more activity and more altercation between children and parents, with one more tool in the hands of the children or the public. We have given dramatic discretion for parents and families to grow within a certain type. Our social services laws do not say, "Here is how you must act as a parent and a child.'' They say, "Here are limits you cannot transgress. Above that, you have discretion and choice.'' I see us limiting that discretion and choice of how families can grow with adult supervision of children until they are capable to get their rights. The international convention is a progressive document. It is not an absolute document for children's rights. It recognizes the progressive nature.
If we do this, we will end up with charges, and you say the prosecutor has all these tools. However, staying a prosecution still leaves a cloud. Most of my clients were dissatisfied with having a stay. They were not declared innocent, and a cloud was left over them. A few of my clients thought that was a great deal, but I saw many of those clients again. Many of the others were domestic disputes. Prosecutors wanted to move the issue over so that there could be some resolution between husbands and wives.
How valuable are these tools to a family when they come at the end of a process, not before the process? They are already within the discretion of the police and the prosecutors. You have already set dynamics of the families into place.
Mr. Carter: I am not an expert on child psychology in relation to what a child may say that is not truthful, if there is an element of that at the beginning of your question. I will say that section 43 does operate in the context of the criminal process. I am not sure that even with its existence, it avoids some of the concerns you have except insofar as it might bolster the prosecutor's considerations under the sufficiency of proof principle, which I mentioned, and that, by the way, is post-charge as well.
I suspect the suggestion is that the existence of this defence is at play earlier on in the process. It might be, but I am not addressing police discretion here. I will say, however, that police have discretionary powers in relation to whether to proceed with charges on a certain basis, which I suspect would address some situations where there are questions about whether anything did happen, again if I understand correctly the concern about what might be a growth of allegations in the absence of section 43.
That is my response to the good question. I am not sure that section 43 already is avoiding some of the concerns that you have raised. I am convinced, however, that it raises concerns about the status of children in a human rights context. I know the committee has also heard about the increasing isolation of Canada in this context. In other jurisdictions, where they have moved away from a formal corporal punishment defence, they have not seen some of the sweeping changes in attitude that we might worry about if it was gone.
Senator Stratton: Thank you for coming. I appreciate it very much. It has been quite an education.
I look at how my parents treated us and how I treated my kids and how my kids treat their children. There is no corporal punishment. I may be special, but I think that is generally the case for most families. I am not really concerned about that aspect of it. I am more concerned with what happens to protecting the teachers of this world who have to go into that classroom. That really bothers me. If you remove that protection for reasonable restraint, where does that leave them? As the RCMP superintendent said quite clearly yesterday, they do not want to have to go into schools and become the bad guys, as they are having to do in the United States. That is the last thing that we want to have happen as well. They want to go in there to help educate, and they want to be friends.
How do you protect teachers and ensure that they are not afraid to use some means of physical restraint? They need to have that, and if not the teacher, then the assistant or whoever. I am adamantly opposed to taking that away from teachers, because I feel the danger is that everyone keeps their hands off and we have chaos. You say that will not occur, but if it happens once, it is too often. I think you need to take that into consideration.
The second question is if this law should pass without education, without a transitional period, in other words, if you pass the law and it is the law, who have you consulted with in the general public? Have you talked to the Aboriginals? They say they want consultation on anything like this. That is my concern. How will you make the transition from the time the law passes to allow people to become educated about this new entity called "hands off''? It really bothers me. I would like a response to that, if you can, Mr. Roher and Ms. McGillivray.
Mr. Roher: Your questions, Senator Stratton, are excellent, and I fully agree with you. That is why, in our view, section 43 is important, and I am solely focusing on a school context. You can imagine escorting an uncooperative student to the principal's office, placing a student on a bus, removing a disruptive student from a classroom, all these issues. You have to give teachers some flexibility, authority and credibility to do that without a concern that they will be charged with assault.
I think that when you go about making your recommendation, the school climate must be seriously considered. I know you have double-teamed me here in terms of the views.
The Chair: That was not a gang up. It is just the way it worked out.
Mr. Roher: That is fine. With all due respect to my colleague, Mr. Carter, I wanted to respond to some of his points. The defence in section 43 is the strongest legal protection to protect teachers and school administrators from these types of allegations. It is the best defence in the code.
My colleague, Mr. Carter, says there are other defences. There is the necessity defence or section 27, and then he points to the prosecutor's discretion. Our view is — and school board lawyers and lawyers who work with schools to support safe and secure learning environments will all say — that those defences are not reliable. Relying on the discretion of a prosecutor injects — to quote my colleague — significant uncertainty into the law and the lives of teachers. You will rely on the discretion of an individual prosecutor.
My point is that I think the defence is an important one. When you do your deliberation, it is clear that any school board or school involved in corporal punishment, child abuse, any excessive physical contact is not acceptable. However, we need to give our educators the tools and resources to carry out their duties without a fear of severe criminal repercussions.
I am very sympathetic to the points Senator Stratton raised.
Ms. McGillivray: First of all, I would like to say that the reason section 43 got stuffed up with so much stuff that was never there is because it is so handy. It says "teachers'' right on it. If it said "Anne McGillivray'' right on it I would use it too, no matter how unfair. It is handy.
I thought we had found out that section 43 really is about corporal punishment. It never did exist to protect these other kinds of activities. These got clumped in because it said "teachers'' and because there was often not much distinction. You are escorting a child out of the classroom and cuffing the child at the same time. It is a mixed-up situation. Teachers do not do it that way; they still want to escort.
The way I have put this to many defence counsel is to say I am doing work on section 43 and I want to get rid of it. They say they cannot agree to that because defences are precious in Canadian law; we need them. Mr. Carter and I were discussing this. It is hard for a law professor, especially one interested in criminal law, to be willing to take away a defence. However, what if I put it to you that anyone who assaults a child should be prepared to defend that assault as if it had been an adult? They think about it and say, "Oh, yeah.'' They know about the other defences in the Criminal Code. They are not particularly school board lawyers, but they are general defence lawyers.
Section 27 allows me to intervene with force to prevent the commission of a crime, and if I see a risk I can use force to prevent it. That covers anything that Mr. Roher has said, in my view.
The other one is necessity, but ultimately all the defences arise from necessity: I am sorry I had to punch you in the nose, but you were going to hit me. I was forced to do it. All the defences are based on necessity. Necessity takes up what is left over.
We have had the discussion of the Swan case where the girl technically was too old for the guidelines the Supreme Court set out. Everyone is sympathetic to the father who wants to remove his daughter from a party where drugs are present. That falls squarely into a line of cases on necessity that we did at law school. Mr. Carter's father is one of the people who may have discussed this.
Because we have had section 43 around for so long we have put many things into it that it was never designed to handle. It is time for the courts and prosecutors to have to consider this. By the way, stay of proceeding is not necessarily dropping charges, which can happen way before that point. If police officers are unsure they can lay charges until they have consulted, we would be no worse off than we are now with the uncertain lines section 43 seems to indicate.
We need to think hard about treating children as human beings — the same basis of equality as recipients of violent behaviour. We need to be able to justify that violence on some ground other than that it is a child.
Senator Merchant: I want to thank all three of you for your stimulating presentations. When we first started out with this, I thought it was counterintuitive to support this kind of legislation. We know that about 20 countries have brought in this type of legislation. We heard yesterday from witnesses from New Zealand, and one of the things I remember is they said Canada has nothing to fear from bringing in this kind of legislation. I think hearing from people who have made the changes and have had the experience is very important.
You have talked about the violence and a very violent society. I wonder, first, if we are training our children to think that a physical response is part of the solution. Like some say, a little lie is okay but a big lie is not, therefore a little bit of hitting is okay but do not hit very hard.
Are there any studies that would show a correlation between hitting children and then having a nine-year-old who becomes fourteen and is hitting an eight-year-old or is bullying a six-year-old? I wonder if you could give us an indication of studies that would guide us.
Second, could you tell me who uses corporal punishment in Canada? Is it religious predominant, ethnic predominant, or can you give some direction as to what is happening?
Ms. McGillivray: I have looked into the question of empirical study quite closely, and there has been a remarkable amount of very reliable work in this area, more so than in many other areas of human behaviour. There is a correlation between corporal punishment — even light corporal punishment, spanking on the bottom once or twice — and outcomes that are serious. We do not quite know what the mechanism is.
However, we would have suspected that, for example, heavy corporal punishment would lead to those things, but we found that when you take out and separately study light corporal punishment, the outcomes of depression, bullying in the home, violence against your partner or children are far more likely. It seems it is a question of approval, much less than a question of how hard was I hit. We found that children who were hit very hard tend to be big approvers of it. They are so submerged. Although they may have been angry and hurt as children, now as adults they think it is part of life. It is not a very good part of life.
We have studies that demonstrate exactly those questions, and we are unable to distinguish in those studies between light and heavy violence.
It is self-perpetuating; we know that. I wanted to mention it because there was a question about Aboriginal peoples. There are hundreds — if not thousands — of first contact reports. I studied these as part of studying childhood, about how Aboriginal peoples in the Americas treated their children. Everyone who came across them was shocked that they used no corporal punishment. They wrote this down. I have collected all sorts of accounts of how shocking it is that these people do not hit their children.
Father Le Jeune in the 1600s, along with many priests, decided that this was such a terrible thing that he would set up a system of schools where he would attract the children with sweets and nice clothing, and after six weeks or so he would begin to beat them. This way they would learn to become proper people and not the savages that he declared them to be.
The most striking thing about all these first-contact reports, when you add them all up, is the shock at no corporal punishment. There are societies that actually do very well and are healthy societies that do not use it. The fact that we managed to inherit it is the long, sad history that I described.
Mr. Roher: I will respond by saying that in our schools there is no corporal punishment. There are no straps. There is no slapping. There is no hitting. It is completely and totally unacceptable to use corporal punishment in a Canadian school. There would be immediate repercussions for any teacher or school administrator.
We are talking about protecting students when a fight breaks out and one tries to intervene and use a reasonable level of physical contact to restrain and protect or remove another student to ensure safety and security. It should be clear that no school board supports or condones corporal punishment. It is not being done.
To answer your question about bullying, there are two major experts in Canada on bullying. They are Debra Pepler from York University and Wendy Craig from Queen's University. In their extensive research, both have said that bullying is a lifetime activity. If a student is involved in intimidation and harassment, the bullying is a lifetime event and they will grow up to be a bully. The research has shown that if the parents use physical contact or intimidation with their children, then it becomes a learned response.
That is an important principle. This type of conduct is learned, and we require significant support for these types of families because there can be serious social and societal implications.
Senator Merchant: There has been some suggestion about the religious and the cultural side of bullying.
The Chair: Okay, in 30 seconds, do we know anything about religious and cultural implications?
Ms. McGillivray: I mentioned culture in the context of many world cultures that never use it.
Senator Merchant: I mean today, because we have a variety of cultures in Canada.
Ms. McGillivray: The courts have sorted through this one clearly. I talk about the idea of a cultural defence in one or two of my papers. They say they did this because they come from a culture where children are treated this way. The courts have truly had to think about this.
The Chair: You can send us the paper and that will be a full answer.
Ms. McGillivray: I will. However, the courts say you live in Canada now and we are all sharing the same standard.
Senator Di Nino: First, in regard to New Zealand, we have been given testimony on at least two occasions that in the amendment of section 59, after the discussions were done, provisions were inserted to try to accomplish what our section 43 does. That is my interpretation. It is not that cut and dried.
Second, I am concerned about some of the testimony given this morning. We keep talking about assault, violence, hitting and corporal punishment. This is not what section 43 is about. The majority decision of the Supreme Court addresses that.
It seems to me that there is an unintended attempt to dehumanize the responsibility of rearing a child. Maybe some day, we can have schools without teachers. We will have computers and then we will see what happens. However, you need to have certain authority for discipline at home. Section 43 is not about violence and hitting. As I said, read the Supreme Court majority decision.
In the mid-1970s, I was president of a home for the aged. I was approached by a lady who said she needed to use the premises for the mental health association of Metropolitan Toronto. It was called the "retarded'' association in those days. They wanted to have a parent relief program where parents with difficult children — principally mental difficulties but also physical difficulties — could take them for one day, either Saturday or Sunday. It was staffed by two professional people and approximately 15 volunteers who were mainly teenage girls. It was the most beautiful expression of love and caring I have ever seen. Under the legislation we have today, that would not be permitted. These kids needed to be disciplined, but no one hit the kids.
How do we rationalize the responsibility of the balance between parenting and teaching proper behaviour with what we are trying to do now?
The Chief Superintendent of the RCMP said it would create further problems because that small safeguard or, at least, comfort that exists now would be eliminated.
The Chair: Is that a question?
Ms. McGillivray: Madam Chair, I resent the insinuation that I have not read the Supreme Court decision and that my 20 years of very thorough research is worth nothing.
The Chair: Ms. McGillivray, I do not think anybody insinuated that.
Senator Di Nino: Absolutely.
Ms. McGillivray: It was said directly. It was not insinuated.
The Chair: There have been in these meetings varied views of and interpretations of the Supreme Court's decision and you have seen a further reflection of that. I am certain because I have known Senator Di Nino for 10 years that there was no personal reflection intended.
Senator Di Nino: That is absolutely true.
The Chair: He is not even a member of my political party.
Ms. McGillivray: Section 43 is exactly about what I said it was about. This is in the record. This is in history books. It is in the Code of Justinian, in hundreds of historical records and current summaries of those records that I have examined.
It is only in recent years that punishment has been confused with nurture and acts of protection. I repeat this so that the committee is clear that based on the research of Professor Anne McGillivray, this is, indeed, the case.
The Chair: Thank you very much.
Senator Oliver: I know there is one minute to go.
The Chair: We are going into overtime because I have a question, but that does not mean you may take 10 minutes.
Senator Oliver: I will not take 10 minutes. I never do that. Therefore, you do not need to say that.
The Chair: No, you never do.
Senator Oliver: I will put my question as a statement. Therefore, you do not have to respond and if you want to send me an email later, you may.
As I heard the evidence today, I am puzzled because I did not see a strong line drawn between the difference of disciplining and correcting children and restraining children.
If we have an excellent teacher with 20 years experience who decides to restrain a child and a charge is laid under an assault or some other charge under the Criminal Code, we have to rely upon the common-law right of a prosecutor to withdraw those charges. In that case, the damage is done. It is in the media. That wonderful teacher's career is ruined and that is the last thing I would want to rely upon.
As someone who has been involved in the law for 30 years in various capacities, I think part of our obligation to protect the best interests of children is to have the ability to restrain them without fear of criminal liability. That is my comment.
The Chair: Would the witnesses care to comment?
Mr. Roher: I fully agree with your perspective.
Ms. McGillivray: I think section 27 covers that very nicely as well as our obligation to nurture and protect children.
Mr. Carter: That is what I would say.
Senator Baker: I have one question that I would like to ask Ms. McGillivray and Mr. Carter.
Does any other section of the Criminal Code or any other act of Parliament provide a defence to common assault for a particular group of identifiable people in any circumstances?
Ms. McGillivray: There was one in particular: A master aboard a ship. That one, in 2002, was removed from the Criminal Code, having fallen into desuetude for many years. Your captain will not keelhaul you or beat you up.
The other is defence for persons in authority, which tends to be restricted to process servers and that sort of thing. The third is perhaps similar but not specific: resisting a lawful arrest. In other words, a police officer can assault you if the arrest is lawful and he is repelling your assault. However, that falls into a slightly different category. Masters of ships is really the only one, and that is gone.
Mr. Carter: The only other thing that comes to mind is self-defence and similar issues.
Senator Baker: That is a general defence. I am talking about a defence available to a particular group of people, identifiable in the Criminal Code. This is really the only section of the Criminal Code in which we have codified a defence for assault.
Mr. Roher: It is not assault. It is a defence with respect to acting reasonably and being involved in action that is corrective in the course of your duties.
Senator Baker: If it is not an assault, then what is the danger? Why is everyone saying that, if this were removed, it would subject persons to paragraphs 265(1)(a) and (b) of the Criminal Code, which is not just touching somebody but making a motion to somebody if they believe that you have the capacity to conduct an assault? If it is not an assault, what is it?
The Chair: Senator Baker, that is a clear question, and Mr. Roher will respond.
Mr. Roher: If section 43 were to be repealed, you would be subject to the broad and liberal assault provisions.
Senator Baker: Now it is a defence for assault.
Mr. Roher: We do not see the conduct as assault. We see it as corrective and reasonable. That is the idea.
In my view, if a teacher or school administrator is involved in excessive conduct, such as throwing a student against a locker or using the strap, then that clearly would be inappropriate.
Senator Baker: You cannot have it both ways, though. You understand that, do you not?
The Chair: Senator Baker —
Senator Baker: I am sorry. My one question is gone.
The Chair: I have a question, which I will try to make succinct. However, I will have trouble doing so because I am having some trouble wrapping my mind around the distinctions we need to draw between correction, prevention and restraint. Almost all the questions, and indeed the testimony, were to do with this.
The question is to you, Mr. Roher. We do not allow corporal punishment. It seems to me that most of the examples that you cited were not, strictly speaking, what a lay person, at any rate, would consider corrective action. They were for restraint or prevention. I hope I am not misinterpreting you.
I was then trying to figure out what would happen in the absence of section 43. The parallel that came to mind, which is maybe not very flattering — but it is not intended to be unflattering — was people like bouncers. If I am in a bar and I am being disruptive, fighting, dealing drugs or, heaven help us, waving around a gun or a switchblade, I am bounced from that bar. Perhaps the police are also called. At a minimum, I am bounced. The bouncers are not charged with assault.
Why would teachers be charged with assault in taking comparable action that everyone agrees is desirable for the greater security of the whole institution?
Mr. Roher: It happens all the time where teachers are breaking up a fight and in so doing there needs to be some physical contact with the students. Either the student or his or her parents contact the police and try to file an assault charge.
The police at least say, "Just a second here.'' They do a preliminary review and they look at it. They may say, "Look, the educator was acting in the course of his or her duties. It was corrective and there was no excessive force,'' and no charge is laid.
My point is that if this defence is repealed, it will open up the door to either the student filing what is called a private information against the teacher or the police at least filing the charge and having the teacher prosecuted. Then we are left with the discretion of the prosecutor and whether that individual will look at all the facts and withdraw the charge.
To be relying on a Crown prosecutor is a very uncomfortable place for teachers. Teachers would prefer to have the comfort and security of some protection under the Criminal Code. I do not think it is unreasonable to carve out some protection for the people across the country who nurture and teach our children. In this environment, they need the support of the Parliament of Canada to assist them and to ensure the order and discipline in our schools.
The Chair: Thank you, all of you. As you can tell, we are all frustrated. We could go on and on with this.
Senator Di Nino: How about another two years?
Senator Andreychuk: Madam Chair, I have a point of order. We heard there were 20 countries that had banned corporal punishment. I am wondering if Senator Merchant has that information. I would like that list.
The Chair: That is not a point of order. That is a point of clarification.
Senator Andreychuk: Regardless, I would like that information. Since we will proceed with clause by clause, it is urgent. My information deals with countries that have banned corporal punishment but have reinstituted other things.
Senator Oliver: Countries such as New Zealand have done so.
The Chair: There has been reference to this in testimony and also I believe in some of the papers that have been provided. I will ask our researcher to do a one- or two-page reminder of everything we know on this particular topic.
Senator Andreychuk: My problem was that Senator Merchant obviously has her own information. I am encouraging her to share.
Senator Merchant: That information has been given to us through the papers in the committee.
The Chair: Senator Merchant will be contacted by our researcher.
Senator Andreychuk: Thank you.
The Chair: This session has been interesting and informative. We are grateful to you. It is always frustrating to have to gallop through these things. You covered an enormous amount of territory very effectively.
Colleagues, in this next portion of our meeting this morning, we are turning our attention for the first time to Bill S- 225, an Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism.) We have before us the sponsor of the bill, the Honourable David Tkachuk, a senator from Saskatchewan, known to us all, and from the Canadian Coalition Against Terror, Sheryl Saperia, Legal Advisor and Advocacy Coordinator, and Aaron Blumenfeld, Senior Legal Advisor. We are grateful to all of you for being here today.
Hon. David Tkachuk, sponsor of the bill: We will try to keep our remarks as brief as we can and, at the same time, fully appraise you of what we think is important to start the discussion.
Honourable senators, thank you for placing this bill on your agenda. To the members of the public and honourable senators, I would state at the outset that this bill and the issue it addresses have bipartisan support in both Houses of Parliament. Minister Stockwell Day and Secretary of State Jason Kenney, along with Joe Volpe, who has been very helpful and supportive, Susan Kadis, Pierre Poilievre, Nina Grewal and others in the House and Senator Grafstein and Senator Meighen in the Senate have already all spoken in support of the issues outlined in this legislation. Bill S-225 is about deterring terrorism, and it is about enabling and empowering the survivors of terrorism by giving them legal instruments to strike back at those who victimized them and would seek to victimize others.
Terrorist acts are evil not only for the wanton destruction of the result of sweat and intelligence but for their need to find these examples of human history when they are filled with humankind.
This bill recognizes that some states, like organized crime, get others to do their dirty work. Terrorist groups need the support of friendly states to train, mobilize and headquarter. They need the convenience of 21st century technology to organize and implement their terror, and they need to raise cash to fund their operations. It takes countless window installers to keep up with a kid with a bagful of rocks.
When terrorists steered planes into the twin towers and killed 25 Canadians along with thousands of U.S. citizens, they did not ask if they were Christian, Muslim, Jew, Black, yellow or White, and when the plotters who blew up the Air India flight succeeded in their horrible objective, they killed everyone aboard, grandparents who were finishing their lives and children who were awakening to the fact of life. The aim of those perpetrators and sponsors of those and other terrorist acts was and is to kill as many as of us as they can and to strike fear among all the rest of the members of free and open societies.
On September 11, two things became very clear. First, those who hate us are willing and capable of carrying the fight to us, striking at us where we live and work. No longer can we count on Canadians falling victim to terror only by happenstance or falling victim because they happen to be in countries in turmoil. Second, they would go to any length and use any means possible to target us.
We can react to this situation in one of two ways. We can cower in fear and hope that we will slip under the terrorists' radar, or we can turn and confront the bully. Bill S-225 helps us to respond, as we must, and within limits that are outlined by our constitution and the laws that govern our society. Living by the rule of law means we must work together with other nations who share our democratic ideals. This can be accomplished through the ratification of international conventions and the establishment of laws in our own country to support our commitments.
For example, in February 2002, the Liberal government ratified the 1999 International Convention for the Suppression of the Financing of Terrorism. This convention stipulates that each state that is party to the convention shall consider establishing mechanisms whereby the funds from forfeitures referred to in Article 8 of the convention are used to compensate the victims of terror offences.
Our very own Criminal Code, as Senator Grafstein pointed out in his speech, under subsection 83.14(5.1) provides that any proceeds that arise from the disposal of property related to terrorist groups or activities may be used to compensate victims of terrorist activities.
In addition to those two important instances, honourable colleagues, we believe that Canada should be further guided by the UN Security Council resolution 1373, established very shortly after the September 11 attacks, which acknowledges the need to combat terrorism by all means in accordance with the UN Charter. The legislation you have before you today in Bill S-225 seeks to address this commitment.
Bill S-225 seeks to deter future acts of terrorist violence by targeting the sponsors of such acts where it hurts, in the pocketbook — an economic, legal and democratic response. Moreover, it enables survivors of the two largest acts of terrorism affecting Canadians, 9/11 and the bombing of Air India Flight 182, to seek damages. We do not want to limit the application of the bill to future terrorist incidents and victims at the expense of those whose past suffering inspired its creation. Nor would Canadians be well served if the legislation's primary motivation, deterrence, becomes viable only when the next victim of terror has been claimed.
We believe these aims can be achieved through two amendments. First, by amending the State Immunity Act, Bill S- 225 would lift the immunity prohibiting civil claims in Canada against foreign states that sponsor any of the groups listed as terrorist entities by the Government of Canada. Under this amendment, these states would not be able to claim immunity from Canadian courts in any proceedings that relate to any terrorist conduct of the foreign state conducted on or after January 1, 1985.
Further, Bill S-225 has a retrospectivity clause, as a result of the insertion of January 1, 1985. This should not be confused with retroactivity, which kicks in automatically with regard to past actions. Retrospectivity would allow victims and survivors of terrorist attacks on or after January 1, 1985, to benefit from the legislation.
Later in your deliberations, you will meet survivors of terrorism who will present to you better than I the rationale for retrospectivity.
Before I discuss the other proposed amendment, I should note that the State Immunity Act currently permits claims for breach of contract and personal injury that occur in Canada but bars civil suits against foreign states that sponsor terrorist acts, murdering Canadians outside of Canada.
The second amendment is to the Criminal Code and would provide a civil cause of action to anyone who has suffered damages as a result of a breach of the anti-terrorism provisions.
Canadian constitutional law is clear that civil remedies may be added to federal legislation if a functional connection to the federal statute can be made. The civil remedy in Bill S-225 is intrinsically connected to the Criminal Code because it is available only if the person availing himself or herself of it can show that he or she has been injured or has suffered loss or damage as a result of conduct that is contrary to any provisions in Part II.1 of the Criminal Code.
Aaron Blumenfeld, Senior Legal Advisor, Canadian Coalition Against Terror: Thank you, Madam Chair, and good afternoon, honourable senators.
We are here on behalf of the Canadian Coalition Against Terror, C-CAT, which is an advocacy group made up of victims of terror and professionals involved in anti-terrorism, including lawyers. Our members include Canadian terror victims of the Air India attack, the World Trade Centre attacks, the Bali bombings and attacks in Los Angeles, Israel and elsewhere.
As Senator Tkachuk said, we hope you will hear the perspectives of some of these victims from them.
Ms. Saperia, I and others at our firm, Borden, Ladner, Gervais, LLP, assisted Senator Tkachuk with this legislation, and we are grateful for the opportunity to make these submissions.
As Senator Tkachuk said, there are two parts to the bill. The first amends the State Immunity Act to remove the immunity that currently prevents claims from being brought against state sponsors of terror. The immunity is lifted only if the state knowingly or recklessly supports a group that the Government of Canada has determined is a terrorist group. That listing is done under sections 83.01 and 83.05 of the Criminal Code.
Those provisions are available for distribution as well as the list of entities. There are 40 entities.
The Chair: That has been distributed, Mr. Blumenfeld.
Mr. Blumenfeld: Thank you.
The second amendment creates the cause of action, and that is in the Criminal Code. The cause of action essentially says that if someone has engaged in conduct contrary to Part II.1 of the Criminal Code, which contains the anti- terrorism provisions, a victim of such conduct can sue for their damages.
As an example, if an organization such as a Canadian charity is in fact a front raising money for a terrorist group, the victims of that terrorist group could sue that charity for their damages, because that charity would be acting contrary to the Criminal Code in sponsoring the terrorist group. It is not necessary for there to be a criminal conviction to proceed with that.
There is a similar provision in the Competition Act, section 36, which creates a civil cause of action against someone who has breached various sections of that act, such as conspiracy to restrict or harm competition in Canada. This is an analogous provision and is based on that.
I will first address the legal basis for the bill. Next I will briefly discuss the scope of terrorism, and then I will set out why we believe the bill is good public policy.
The bill's conceptual framework starts with the underlying principle that money is the lifeblood of terrorism and that state sponsorship of terrorism is an integral component of the terrorist economy, which has an annual turnover of many billions of dollars.
There is presently no legal recourse in Canada for holding state sponsors of terror liable for their actions. Our law governing the liability of foreign states is predicated on the assumption that states should, and generally do, respect each other's sovereignty and, accordingly, should be afforded certain protections, including immunity from lawsuits as set out in the State Immunity Act, which I think has also been distributed.
However, the past assumptions regarding sovereignty and the law are now confronted with new challenges. Ultimately, when a state sponsors terrorist entities to attack the citizens, assets and home fronts of other countries, it is fundamentally an attack on the sovereignty of those countries. Yet, as I mentioned, under our current law, these state sponsors benefit from the immunity and avoid any legal accountability in Canada.
The premise of this bill is that state immunity is founded on a universal respect for the international community of states and the rule of law, but that terrorist attacks are actions against the fundamental integrity of the international public order, in effect an attack on all states, because it is undermining that order and not only the immediate victims. Therefore, a foreign state does not deserve immunity when it sponsors terrorism.
As the senator mentioned, the law recognizes that state immunity is not absolute. There are several exceptions in sections 4 to 8 of the act. Apart from being able to sue in Canadian courts for breach of contract and personal injury in Canada, certain Maritime claims and claims in respect of certain property in Canada can be brought. Claims against foreign states routinely come before our courts, and they generally do not even make the news. Therefore, this is not a major change. Rather, it is a modest addition to the exceptions that already exist.
States are not immune from suit in their commercial undertakings, as mentioned, so it does not make sense that states should be immune from suits regarding financially underwriting terrorist actions.
In summary, Bill S-225 is a necessary extension, I submit, to address the new realities of the 21st century.
On the second issue, I wish to address the global impact of terrorism. Terrorism needs to be distinguished from criminality. It is more like war than crime because it is done to influence society and government policy. The goals include weakening the population psychologically and making people feel fearful and intimidated so that they will pressure the government to succumb to terrorists' demands.
Furthermore, unlike criminals, terrorists want their acts to be spectacular and notorious so that the free media attention generated by their acts will also enable them to broadcast their grievances and perspectives.
A terrorist attack is just the tip of the iceberg. Many terrorist groups spend the vast majority of their money and resources on winning over the hearts and minds of people by funding hospitals, employment programs and, of course, schools where they teach their political or religious ideologies.
Thus, terrorist groups in some cases set up quasi states within states. There are a number of examples of this. They gradually attempt to take power, and in some cases they have succeeded in doing that in parts of states or more. Therefore, when states sponsor terrorism, it is fundamentally an attack on another nation's sovereignty.
This infrastructure requires many billions of dollars and often involves state support. Terror financing is, therefore, inseparable from and essential to the terrorism itself. Therefore, if you can help to cut off the money supply, the terrorist groups will wither away, and Bill S-225 aims to do that in Canada.
I wish to summarize three reasons why the legislation is, in our respectful view, good public policy and why it will have a positive impact. The first is that it works. It will help to deter future terrorism by filling in a gap in the present Criminal Code. Second, it helps to reframe the public debate on terrorism by recognizing the real victims. This can also help catalyze other government actions. Third, it can help compensate the innocent victims who have been deeply wounded. This is the right thing to do.
Beginning with the first point, that the legislation works, the original inspiration for this type of legislation was the U.S. civil rights legislation, which was used by groups like the Southern Poverty Law Center in the United States to get judgments against the Ku Klux Klan and its leadership. It was not actually criminal proceedings that stopped the KKK. Rather, it was the victims who used the courts to bring civil claims that enabled them to seize the headquarters of the KKK and related groups and bankrupt their leadership. Without the resources, their operations were severely curtailed.
Civil claims, of course, have a different standard of proof than criminal convictions. There is the balance-of- probabilities standard versus the beyond-a-reasonable-doubt standard. There may be various reasons why prosecutors may not proceed or succeed with a criminal charge but, on the same set of facts, it may be possible to bring a civil claim that can win.
In Canada, Financial Transactions and Reports Analysis Centre of Canada, FINTRAC, reports suggest that there are hundreds of millions of dollars a year in suspected terrorist financing in Canada. There has not been one conviction under the Criminal Code sections that prohibit that. Bill S-225 would enable civil claims in respect of such conduct to proceed, as I mentioned.
As a second example, the United States enacted similar legislation in the 1990s after some pressure from victims groups. It allowed family members of the victims of Pan Am Flight 103, which exploded over Lockerbie, to sue Libya. There was a great deal of negative publicity over Libya's involvement and, ultimately, Libya took responsibility and agreed to pay the families $10 million each, which amounted to several billion dollars.
Between the suit, the publicity and sanctions as well, it is arguable that this led Libya to change its state policy, end its nuclear program and leave the terrorism business. This was an enormous victory in the war on terrorism. This supports the fact that, ultimately, the state sponsors are rational and can be deterred, which is one of the objectives.
A second reason why these suits are good is the effect of the publicity that they generate. They reframe the public debate. They can galvanize public opinion against terrorists and their sponsors.
There is a lawyer in England by the name of Jason McCue who is representing the Omagh victims of an IRA bombing. He started a civil suit against them and has written that the terrorists use the media as a channel to justify their actions to the public and portray themselves as underdogs or victims and their enemies as large, oppressive forces. Civil suits can give the victims a chance to humanize their plight while showing the terrorists for what they are. A civil action juxtaposes the cold-blooded killer with the mother who has lost her son.
The sponsors of terrorism often think differently from the terrorist groups. They fear the publicity and exposure that follow being named in a suit. David Aufhauser, the former general counsel to the U.S. Department of Treasury, remarked:
. . . the bankers of terror are cowards. They have too much to lose by transparency. Name, reputation, affluence, freedom, status. They're the weak link in the chain of violence. They are not beyond deterrence.
This applies not only to bankers but to state sponsors as well.
A final example: publicity from civil suits can also spur government investigations and criminal prosecutions. For instance, the launching of a lawsuit by terror victims in the United States against a foreign bank which was alleged to have knowingly aided a terrorist group by distributing compensation money to the families of suicide bombers led to a stream of new and improved laws in Jordan where the bank was based. It led to a probe by U.S. bank regulators and a Department of Justice criminal investigation.
Therefore, the publicity that accompanies civil suits can be a key tool in winning the war on terror.
Third and finally, this bill will help victims by enabling them to seek compensation. Some other countries, such as the U.S. and France, have compensation packages specifically for victims of terror. Canada does not. However, the victims here are not looking for a government bailout or the creation of any bureaucracy. They are looking for the right to seek just compensation from those who are responsible for the deaths of their loved ones.
In a world where terrorism is too common and extremely difficult for states to fight, Bill S-225 allows private citizens to strike back at terrorists and their backers and to bring lawsuits, which can undermine the viability and legitimacy of terrorist organizations and their sponsors. As I mentioned, I hope you will hear from the victims. Above all, they are looking to hold the wrong-doers accountable and they deserve their day in court.
Finally, I wish to stress the urgency of the matter before you. Daily, Canadian soldiers are dealing with terrorist attacks on them, and Canadian victims of terror have been seeking accountability for years. Some are growing old. Justice delayed is justice denied.
If, as we hope, you support the bill, we respectfully ask that you speedily pass it. Ms. Saperia will complete our presentation.
Sheryl Saperia, Legal Advisor and Advocacy Coordinator, Canadian Coalition Against Terror: Good afternoon, honourable senators. I am happy to be here today. Thank you for the opportunity.
As Senator Tkachuk noted earlier, the bill that is presently before you was first introduced in 2005. It has benefited from four years of scrutiny and extensive review by numerous experts in many fields, some of whom I hope will be appearing before this committee in the near future.
Upon examining the bill's provisions, the reader will quickly discern that this process has not only produced a bill that is legally sound and measured but one that has been meticulously crafted to ensure that the integrity of the legal mechanism it seeks to create will be protected from misuse. Bill S-225 contains numerous provisions that protect against frivolous use of the proposed civil remedy, particularly when a foreign state is the defendant. Although these protections will place a further burden on victims, in the end, they will serve the purposes of both justice and deterrence by ensuring a credible and transparent process of identifying those who are truly the most egregious violators of our anti-terrorism laws.
These protections, which will also ensure public confidence in the findings of the courts, include the following: first, a requirement that the victim prove that the foreign state has knowingly or recklessly provided material support to a terrorist entity listed as such by the Government of Canada. Anything less than knowing and reckless support would not be grounds for a finding of liability. This is a high burden of proof. A plaintiff who unsuccessfully makes allegations of terrorist sponsorship will risk a substantial cost award against him or her, which will itself act to deter the casual misuse of these provisions.
Second, once a victim has proven that the foreign state provided material support to a listed entity, state immunity can be lifted. However, there is another step. The state would only be held liable if it were shown that its conduct caused loss or damage to the victim as a result of a breach of the Criminal Code anti-terrorism provisions. These provisions already include a mens rea or intent component, meaning that the plaintiff must show that the defendant committed the act knowingly or with intent.
Third, Bill S-225 specifies that universal jurisdiction is not created, meaning that a court will accept only cases that have a substantive connection to Canada. This will limit the number of suits that will be heard before a Canadian court.
Fourth, Bill S-225 encourages the plaintiff to provide a foreign state with the opportunity to arbitrate before the matter can be pursued in court. This affords both the victim and the defendant a potentially lower-intensity venue for settling the claim. This only applies, though, when the terrorist attack physically occurred on the soil of the foreign state that is now being sued.
Lastly and, perhaps most notably, Bill S-225 includes a list of countries that cannot be sued under the legislation. These are states with which Canada has specific extradition relationships. This restriction would stop claims against countries with legal systems similar to our own, which also happen to include Canada's allies.
This critical provision is vitally important to the victims who have fought for this bill, and they have asked that I take a few moments to explain its importance.
Earlier, Mr. Blumenfeld referred to legislation similar to Bill S-225 that was enacted in the United States over 10 years ago. We are fortunate to have been able to observe the U.S. experience, and Bill S-225 has been drafted to avoid the pitfalls of the U.S. model. Unlike Bill S-225, the American legislation contains a list of countries explicitly designated by the U.S. government as official state sponsors of terror. Only the five states that appear on this list can be sued. All other states are exempt.
In our opinion, this method of determining which states can be sued has demonstrated itself to be an overt flaw in the American model and must be avoided for a number of reasons. First, listing countries in this manner can become a highly politicised process and is vulnerable to the lobbying of foreign states. In fact, it appears that political factors unrelated to whether a country does in fact sponsor terrorism sometimes become determinative.
Second, by not listing countries that objectively should be listed, Canada would be effectively declaring them non- sponsors of terror. In other words, we would be officially letting them off the hook, which certainly undermines deterrence.
Third, adopting the American model of listing terrorist states would hurt Canadian victims. In all likelihood, a Canadian list would look like its American counterpart and would thereby severely restrict the number of states that can be sued. This means that many Canadian victims would not be able to utilize legislation for potentially valid claims. This would create a victim's bill that actively marginalizes victims. Furthermore, it would unfairly pit individual victims against foreign states who have practically unlimited budgets for lobbying. In order to level the playing field, victims should have the opportunity to let impartial judges determine whether a state is a sponsor of terrorism.
To conclude on this issue, C-CAT believes that in employing specific extradition relationships as the criterion for states that would not be sued, this bill is a unique Canadian formulation. Extradition agreements are based on recognizing in another country the common values of a fair legal system and respect for the rule of law, and utilizing this pre-existing formula for evaluating Canada's relationships with other countries is a criterion that Canadians will understand and appreciate. Not only does it protect our allies; it also precludes the backroom lobbying that state sponsors of terror would surely prefer.
In the time I have left, I wish to address briefly the remaining sections of the bill, first going to the State Immunity Act. Clause 2 of the bill lists the foreign state's immunity from suit. Clauses 3, 4 and 6 in the bill apply this principle to different parts of the litigation process. Clause 5 requires the Canadian government to turn over information in its possession that may assist litigants in recovering assets — and collection is, of course, an important issue.
Second, the amendments both to the State Immunity Act and the Criminal Code are retrospective to January 1, 1985. This date, as we mentioned, was chosen to ensure that the families of the 280 Canadian victims of the Air India bombings, Canada's largest body of terror victims, would be able to use the legislation.
This provision is important to achieving all of the bill's objectives, especially the deterrence objective. Without retrospectivity, Canada would be in the absurd position of being forced to wait for a terrorist attack to occur in order to allow for the particular laws to become effective that could have deterred the very terrorist attack that just occurred.
Going now to the amendments to the Criminal Code, proposed new subsection 83.34(3) is a deeming provision that addresses the challenge that terrorist organizations do not maintain open books, as an American judge put it. So long as a victim proves that a defendant knowingly funded a listed terrorist group and that group harmed the victim, it will not be necessary to show that the defendant's money paid for the actual bomb or bullet that killed or injured the victim.
Proposed subsection (4) suspends the limitation period for bringing an action under the legislation while the victim is unable to commence proceedings for various reasons.
Proposed subsection (6) confirms that foreign anti-terror judgments from legal systems similar to Canada's would generally be enforceable in Canada. Terror attacks and terror financing flow freely across international borders, and in order to combat effectively the threats they pose, countries such as Canada should honour and enforce foreign anti- terror judgments.
Honourable senators, Bill S-225 is a unique counterterrorism initiative that all political parties in Canada can support. It does not involve detaining people or infringing on their civil rights. As a country that values democracy, the rule of law, justice and morality, Canada should give victims of terror the same right as any other victim of crime to hold the wrongdoer accountable in a court of law and thereby prevent other Canadians from being victims of terrorism. We look forward to answering your questions.
Senator Andreychuk: Thank you. I certainly associate myself with the intent of the legislation, and I do not think I need to say any more than that. We want to stop terrorism in any manner and method that we can, and we do not want to create victims of terror.
I have so many questions that I will presume we will be hearing witnesses and that Senator Tkachuk and the other witnesses will come back at some later date, because there are so many issues to explore here.
The Chair: That is a fair point. We will, indeed, be hearing more witnesses on this bill. I, too, have a whole lot of questions that I would like to ask, although perhaps only a couple today.
We would like to ask you to be available to return as we go through the learning curve on this bill.
Senator Tkachuk: We have also provided a list of witnesses, some of whom have a particular expertise in constitutional law. We are not that well-equipped today; nonetheless, we have them on the witness list for you to call or to answer any questions you may have. We have tried to cover the gamut.
The Chair: We appreciate that enormously. I am just trying to reassure not only Senator Andreychuk, who is the deputy chair, but all members of the committee that we will be doing due diligence.
Senator Andreychuk: There are so many issues that I want to touch upon. I will touch upon two today and hopefully other witnesses will get the questions or we can come back to them.
One is a specific legal question. I have sat on the Anti-terrorism Committee, and we continue to wrestle with the whole issue of terrorist activity. The United Nations continues to wrestle with it. How do we get a definition of terrorist activity? We know that something that may look innocent one day, coupled with something else, is not. We also want to be sure that when we put that label on someone, it is a fair label, whether it is a state or an individual. The United Nations has not come to a definitive definition. Canada has not come to a definitive definition. The best we could do is "terrorist activity,'' and we are still struggling with that.
The term "terrorist conduct'' is used here. I am wondering what that will cover specifically in law and why there is no definition. Can you give me a specific definition? If so, I am wondering why the definition was not included in the proposed section 83.34.
Ms. Saperia: First, we have been able to draft this legislation in a way that does not require an accepted definition of terrorism. You are quite right: internationally there is no single definition.
Proposed section 83.34, where we have created the civil cause of action, does not define a victim of terrorism. You are saying that a person who has suffered loss or damage as a result of the specific anti-terrorism provisions already existing in the Criminal Code would therefore have a civil remedy. It does not require a definition of who is a victim of terrorism in order to do that, nor even what is a definition of terrorist activity, because again, we are saying Parliament has already created these definitions of what type of behaviour vis-à-vis terrorism is allowed, and we are simply providing a civil remedy based on whether that conduct has been adhered to.
In terms of making reference to the definition of terrorist conduct in the State Immunity Act, putting it back to the civil remedy in the Criminal Code, in my humble opinion, is not necessary because it is a two-step process when you are launching a civil suit against a foreign state. Before you even touch the Criminal Code provisions, you have look at the State Immunity Act, and you have to be able to lift immunity in order to launch the suit.
We have created a definition of terrorist conduct that applies only for lifting immunity in the State Immunity Act. There is a specific definition given, as you see: knowingly or recklessly providing, directly or indirectly, material support to a listed entity. If the plaintiff can prove that, immunity is lifted and then you turn to the Criminal Code and look at the civil remedy there. It is not necessary to go back to terrorist conduct as defined in the State Immunity Act.
Senator Andreychuk: I have about another 20 questions arising from that.
Senator Tkachuk: Some acts of terrorism are obvious. Outside of that, there is the onus of the victim, as Ms. Saperia has so aptly put it. To prevent a scattergun approach, there is the onus of the victim to lift the state's immunity. I think that provides a lot of protection, so the chances of abuse are minimal, if any.
Senator Andreychuk: It is not the question of abuse; it is the question of properly going through a process. I do not know what terrorist conduct is; we are starting to use that term as opposed to terrorist activity. We are opening up a whole new process that needs to be followed through, including how I link it to existing issues of terrorism and whether I will be able to understand the conduct. I leave that with you. I need to pursue that further.
I have an overall government international relations question. We can start lifting state immunity, but we must do it for all the right reasons. We are labelling countries in a different way. It is the same process as with the United States. The United States accomplished it, as I understand, definitively and openly. We are saying that we will not put you on our state immunity list, but we will take you off of it. In essence, we are naming countries.
In my opinion, we would then suffer the consequences of a different ability to function in the international field, in the United Nations and bilaterally, which affects trade and the protection of our citizens in those countries. It will trigger the whole aspect. I trust you have thought about that. It is not a unique thought, so I want to hear your rebuttal on the evidence.
Mr. Blumenfeld, you said this would be helpful to our Canadian soldiers who suffer terrorist activity. If that is the case, we have soldiers around the world today, and if they suffer a terrorist attack, what will that do to our ability to work in the countries that are in conflict, which is why we are there?
I worry not only about the safety and the abilities of the individual soldier to obtain compensation, but I worry about Canada having to put troops somewhere else and not know whether that state will be part of a terrorist regime. We are in a NATO situation where we go into areas of conflict not only by our own choice.
I want to know how we have assessed this particular action from a Canadian international foreign relations point of view, partly because of who we are. We do not have some of the levers the Americans do.
Senator Tkachuk: On the question of international relations, the bill we are attempting to pass here is an expression of our sovereignty, as a beginning.
In addition, a state's most important responsibility is to protect its citizens. States take actions, such as going to war. They have sanctions and all kinds of things to protect their citizens. All this bill does is allow a victim of a terrorist act who is a Canadian citizen to seek redress. There is plenty of protection in the act itself to protect the abuse of this action.
To me, it fits within all the parameters of what a sovereign state should do. This is what a sovereign state should do. It should allow victims to seek compensation from those that are doing it harm.
As far as trade and all of those other things are concerned, the state that actually lends itself to fund terrorism is the state that has taken the negative act. The fact that someone is seeking redress because their families were killed is a positive act. The negative act and the disruption of trade was already caused by the state that actually funded terrorist activities.
Senator Andreychuk: I fully appreciate that we have sovereignty, and I fully appreciate what they have done in the negative.
If we are to deal with this, I want to know what the consequences will be. Have you looked at the consequences? There will be consequences, including international relations consequences and for our being able to work in multilateral environments, like NATO. I would like to know that you have factored those in. How have you done it?
Mr. Blumenfeld: Senator Andreychuk, thank you for the question. I agree that it is an important one. The starting point is to look at how this sort of situation has been dealt with previously. What evidence underlies these legitimate concerns?
Canada has all sorts of international policies. Canada lists 40 terrorist organizations. It could say we do not want to list al Qaeda because al Qaeda might attack us in some embassy. Canada has done the right thing. Canada has gone into Afghanistan as an expression of its government policy. That has obviously had various implications. It has been decided that it was the right thing to do.
In terms of this specific policy, the precedent in the United States has been that things have not been nearly as drastic as one might have feared. All states on the list have been sued. They have been sued before independent courts, not by the government. It is all dealt with at arm's length from the government. The government can say to the defendant states that these are the victims who have come forward.
What has been the result? Libya has actually changed its policy in regards to terrorism and its nuclear policies. Syria has not retaliated against the United States. Sometimes a firm foreign policy has a positive effect. The Syrians moved out of Lebanon for a time when there was a robust approach taken to them.
In terms of the effect, another example is in Canada. Claims go against foreign governments for selling bad materials and for all kinds of financial claims. They do not even make the newspapers. Even if there are issues between countries, those issues are generally dealt with. There are always bumps along the road, but those issues are dealt with between countries.
I would ask that question in the following context: What is the real evidence that there will be a negative impact from standing up for your citizens when another country undermines your sovereignty? That would be my general answer.
You mentioned our soldiers in Afghanistan. This kind of legislation would permit, for example, where there is proof that the improvised explosive devices against them were organized in a foreign state or sponsored or funded by a foreign state, that they might have a case against that foreign state. That could be a potential claim they could bring.
The fact is that the soldiers are unfortunately at risk every day attempting to help the country of Afghanistan. Ultimately, that comes within the larger picture of what the right way to go ahead with foreign policy is. Do you live through fear, or do you live through trying to do the right thing, understanding that there are real risks in the world?
Senator Baker: First, senators and guests, I want to say what a pleasure it was to listen to the presentations here today. They were indeed remarkable presentations in their content. Ms. Saperia was extraordinary in her conviction. I would not want to face her in court. She presents a very convincing argument.
With that, my question is to the senator who sits in front of us. It appears as if this bill, as he has pointed out, has wide support in the House of Commons and with many senators. It has been studied thoroughly. Of course, after it goes through the Senate, which is the place where we examine the law and give our stamp of approval on the law and the principle of the law, then it is a fairly swift procedure through the House of Commons because their duty is not to examine in detail, as is our duty.
What is the expectation of the senator as far as the passage of this legislation is concerned? How quickly does he hope that this can be passed?
Senator Tkachuk: I am not sure I can answer the question of how quickly it can be passed in the Senate, let alone of the other place of which I am not a member.
I do know that in the other place there are expressions of support from the NDP, the Conservatives and the Liberals in large numbers. I am not sure about the Bloc. I expect it will be dealt with reasonably quickly, but then again it is the other place. You probably would know more than I, having been a member of the other place.
Senator Baker: For too long. That is encouraging. Perhaps we can do the thorough examination in a relatively short period of time if we have the time in the scheduling.
My questions will be very quick according to the instructions from the chair.
As I see it, we have the vehicle in the State Immunity Act. That is the general vehicle for this legislation. We will be examining, and that is what I have been doing for the last few minutes, the actual wording of the inclusions into the Criminal Code and the State Immunity Act.
It appears to me as if the State Immunity Act has a set of rules on its own. We have our rules in our superior courts, where I presume this matter would find jurisdiction in the provinces in the superior courts. The rules of procedure appear to be similar to the rules of the Superior Court of Justice of Ontario, for example, in the time periods of the originating application, the originating document, and a period of time for the offending state or agency of the state to respond.
In between that, we have the matter taken over by the minister of the Government of Canada, the Minister of Foreign Affairs under the provisions of the act. It says, at 9(2):
For the purposes of paragraph (1)(c), anyone wishing to serve an originating document on a foreign state may deliver a copy of the document, in person or by registered mail, to the Deputy Minister of Foreign Affairs or a person designated by him for the purpose, who shall transmit it to the foreign state.
It appears to me as if you already have ready-made rules in the State Immunity Act to carry out the purposes of your bill. Is that correct?
Mr. Blumenfeld: Yes.
Senator Baker: When you go to the Criminal Code, a couple of things bother me. In your first clause, the State Immunity Act is amended by adding proposed new section 2.1 after section 2. Proposed subsection 2.1(1) reads:
For the purposes of this Act, a foreign state engages in terrorist conduct if that foreign state knowingly or recklessly provides, directly or indirectly material support to an entity that is a listed entity as defined in subsection 83.01(1) of the Criminal Code.
There is some excellent wording there.
I just took out section 83.01(1) of the Criminal Code, and I knew the answer to the question before I did: there is no listed entity defined in that section of the Criminal Code. Would we need to amend that to say a listed entity under the definition of terrorist group: (a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or (b), a listed entity?
Mr. Blumenfeld: Senator, I am not sure what you are asking; section 83.01 does have a definition of listed entity. It is the third definition. It says that listed entity means an entity on a list established by the Governor-in-Council under section 83.05. That list is established and is the list of 40 terrorist groups. We have distributed that.
Senator Baker: They are referenced in 83.01(1).
Mr. Blumenfeld: Right. It is under regulation.
Section 83.05 empowers the Governor-in-Council to do that.
Senator Baker: You are talking about those entities that are listed by regulation by the Government of Canada facilitated under this section of the Criminal Code.
Mr. Blumenfeld: Right.
Senator Baker: You have done an excellent job before this committee. We really appreciate it and we look forward to, as Senator Tkachuk has pointed out, a speedy consideration of this bill.
Mr. Blumenfeld: Thank you very much.
The Chair: With all deliberate speed because we need to understand it.
Senator Baker: Oh, yes. Due diligence is always maintained in the Senate of Canada.
The Chair: That is not a threat to delay and delay and delay.
Senator Tkachuk: I understand.
The Chair: It is an undertaking to do the work.
Senator Di Nino: First, the principle of this bill is something I strongly support. I congratulate all of you who have undertaken this.
This is not an easy, simple bill. It is very complex. I will just throw out some questions. I do not necessarily want answers today, but the issues that both my colleagues identified are issues in my briefing notes. I am not a learned attorney like most around this table seem to be, Madam Chair, which is a good thing today.
Senator Andreychuk: We will train you.
Senator Di Nino: I think I am too old to be trained.
Things about the extraterritorial authority that we have to do this, the ability to collect the remedies, whether from a non-resident or a resident in our territory or in other territories, are all questions that have been raised in the briefing notes that we are supplied. The notes talk about the violation of the comity of nations and so on. I would like to have some time to deal with those issues and we do not have the time today, Madam Chair.
I will ask one simple question that is not related to the law, in that sense anyway. You have given us two lists, Canada's commitment through bilateral extradition treaty and the schedule of designated extradition partners in the Extradition Act. The question I ask relates to the list. You are saying those countries are immune from suit under the proposed legislation. There certainly must be some remedy available to us if one of these nations conducts terrorism.
For the purposes of the record and clarity, can you tell us how we would deal with that if? Looking down the list, I would not be surprised if some of them could be involved in terrorist activities.
Mr. Blumenfeld: The top country on the list is Albania. I will go with the alphabetical order, if that is all right. The thinking behind the Extradition Act is that Canada enters into extradition treaties with countries that, in broad terms, have similar legal systems to Canada, so Canada has confidence in their legal systems. In general, you can sue the state within that state. For example, if somebody had a case against Canada, they could come into Canadian courts and make that claim against our country. The same rationale would apply here, and that would really be the remedy.
Ms. Saperia: That is the main point here. The extradition relationships, specifically the bilateral treaties and the extradition partners designated in the schedule to the Extradition Act, are with countries that do have legal systems similar to ours, for the most part, and a basic legal standard that we are able to accept. The fact that we have engaged in these types of extradition relationships, in my opinion, represents two things. First, these countries are not sponsoring terrorism directly and intentionally, so we hope, but second, and this is the more important point that Mr. Blumenfeld made reference to, if harm were to befall an individual in that country, that person would have recourse in that country's courts and be granted or denied redress accordingly. Therefore, the ability to bring the same suit in a Canadian court would be unnecessary.
Senator Di Nino: I am not accusing any of them as being involved in terrorism, but things may change tomorrow. Things are changing right now in two or three countries on that list.
More specifically, are there international conventions that cover this? Are the issues that we talked about all covered by the bilateral agreements that we sign with these countries? Are there international conventions under the UN that refer to a bilateral agreement of this nature or standard, or are they individually crafted? Are they all the same?
Ms. Saperia: Extradition tends to be complicated in general. We evaluated the countries that appeared on different lists and tried to establish which of those countries ought to be protected from frivolous suit under the legislation. Ultimately, it was felt that the extradition formulation that we have set out here is the best way to do that.
In terms of countries changing their behaviour and perhaps one day sponsoring terrorism, I would argue that when that happens, we should not be extraditing our citizens there anyhow, so they should be taken off the list and then we do not have any problem.
Senator Oliver: I would like to congratulate Senator Tkachuk for all the work he has done in bringing this important bill before us. It has been very well presented.
I have a series of questions only on one subject, and the subject matter is judgments. Normally, when a lawyer is engaged to bring a lawsuit, the lawyer brings the suit, and at the end you get a judgment for money or some other remedy. Then, if the person is not in Canada, you must find a way to reciprocally get that money. If it is a maintenance order, there are reciprocal maintenance orders and statutes. For judgments, there are reciprocal judgment orders that can be made among reciprocating states.
Here you are adding a new section 12.1 to the State Immunity Act, and you are saying that once you get this judgment, you can call upon two departments, the Department of Finance and the Department of Foreign Affairs, to assist you by using all means necessary to help you enforce that judgment.
Can you help me with that language? What types of things will these departments do to help get this judgment realized? What if they say they do not want to help you? The departments of finance and foreign affairs could say they do not want to help you because they feel that if they do what you are asking it will affect their relations with that reciprocating state or with that state.
Mr. Blumenfeld: The provision you referred to in proposed section 12.1 requires the ministries to assist, and the words are "to the fullest extent practicable.''
Senator Oliver: What does that mean?
Mr. Blumenfeld: That would be for the courts to decide. Many statutes use words like "reasonable'' and "practicable'' and so on. It may be open to the department to go to court and say, "This is not practicable for various reasons.'' Ultimately, the government is subject to the jurisdiction of our courts, and the courts will decide matters like that.
Senator Oliver: What about the victim with a judgment for $2 million? What happens to the victim waiting for his money?
Mr. Blumenfeld: It has not stopped victims from undertaking the lawsuits which are large and complex in the United States.
Senator Oliver: Have they had any success rate in enforcing judgments against foreign states there?
Mr. Blumenfeld: The Lockerbie victims collected over $3 billion from the Libyan government, and other victims have also collected in the United States. It is not just about collection; it is about accountability. That is very important.
Senator Oliver: If the Department of Finance and the Department of Foreign Affairs say, "No, we will not assist you, and we will not do it because we are afraid it will do injury to our international relations with that country,'' what do you do then?
Mr. Blumenfeld: It is up to the court to decide whether the departments are required to do something or not. Both sides would make their submissions, the judge would decide, and everyone would have to abide by that.
We have distributed another version of the bill with a few small changes. There is some fine tuning in that particular provision.
The Chair: To whom have you distributed this, Mr. Blumenfeld?
Mr. Blumenfeld: If I am not mistaken, I believe it was circulated to the clerk of the committee.
In the section you referenced, Senator Oliver, one word was taken out. Previously, it said that the ministries shall assist the creditor in identifying, locating and executing against property. The word "executing'' has been taken out. To the extent that they have information, the intention is that that would be turned over. It would be up to the creditor to actually execute on that.
If your concern is whether states actually do have business assets in our country or elsewhere, typically there will be investigations done into that before a lawsuit is launched. These countries tend to want to invest in our country and other Western countries because they know there is rule of law here and protection for contracts.
If the effect is to collect, that is great. If the effect is that the state has become afraid that their assets may be seized and moved out, then that is one more thing that might deter them from engaging in terrorist conduct. That would be a positive thing, too.
Senator Tkachuk: There is in the world today something called sovereign funds. Many of these countries that are on the edge are investing in places that they consider safe, that is, in the Western democracies that are often the victims of terrorist activity. This definitely provides an opportunity for a victim if the courts deem that there was a liability.
Senator Cowan: To follow up on Senator Oliver's point, as I listened to that and as I read the sections that you referred to, it does concern me that perhaps the objectives, as laudable as they are, might create a bit of a false sense of security or optimism in the minds of a plaintiff in this country who would assume that, having pursued his or her lawsuit, that that was the end of the process and the government would then step in and get the money. One can imagine all sorts of geopolitical considerations that might enter into the mind of the government, any government, in saying, "For reasons that we cannot disclose, it is not practicable for us to intervene on your behalf.''
Is there a danger that, in our attempt to stamp out and discourage terrorist activity, we would create a false sense of optimism in the minds of Canadian plaintiffs who would then feel let down when they did not get their money or whatever remedy might come? It has happened, and Senator Oliver will be familiar with this in his own practice, where people assume that they get a judgment and that is it. That is only the end of the beginning. At the end of the day, when they do not get what they think, they lash out at lawyers, judges, society and everyone else.
That is a long-winded way of inviting your comment on raising people's expectations unreasonably.
Senator Tkachuk: It is a risk worth taking.
Senator Cowan: I do not disagree with that, senator.
Ms. Saperia: First of all, as Mr. Blumenfeld mentioned, the organization we work for represents Canadian terror victims who have been involved in advocating for this piece of legislation. I have gotten to know many of them very well. One is in the room now.
They have all told us that the issue of collectability, whether they will be able to collect a damages award, should not be the determining factor in whether this legislation is passed. In any civil suit there will always be a risk that you will not succeed, and if you do succeed there may not be assets to collect. That is an issue that every potential plaintiff and his or her counsel will have to figure out in advance of launching an expensive suit.
Aside from that, there are extremely persuasive benefits for passing this legislation, regardless of whether collection ever happens. The civil process provides effective deterrence and a sense of justice for victims. You are publicly identifying terror sponsors and holding them civilly accountable. You are utilizing the discovery process to unravel these illegal sponsorships that these sponsors are trying to obscure. You are establishing, as a matter of public record, the victimization of the victims and society's revulsion for this type of terrorist conduct.
Furthermore, whereas in criminal proceedings the victim has no say, no control and very little participation in the proceedings, in a civil suit it is all in the hands of the victim. It is important to be able to put in place mechanisms for a victim to take an active part in seeking some sort of justice for the harm done to them.
Senator Baker: Since the question was asked by a professor of law, I suppose to him would lie the answer, and maybe the witnesses could comment. When you get a judgment from the court, it is not unusual that a government would refuse to honour the judgment, but then you seek an order of mandamus to have a superior court order the government to carry out the civil action that has been adjudged against them. Perhaps that would be open to you.
Mr. Blumenfeld: I think there are a number of lawyers here with more experience than I have in practicing civil litigation. I have been practicing for a number of years. Before I start a case I will typically do an asset search if the opponent is not a well-known company. You have some idea of that early on. It is also the job of good counsel to advise the client about the potential outcomes.
Senator Cowan: They always say at that point, "It is not the money; it is the principle.'' The more they say that, the more you know it really is about the money, do you not?
The Chair: I am grappling with this. Let me preface this by saying I am not asking about the motivation, the reasons or the objectives, for which I have profound respect. I am trying to understand the reasons for those specific proposals about techniques. I will put both of my questions together because I think the answer is related. Bear with me if I stumble a bit.
I see that your revised proposal would use the phrase "terror sponsorship,'' rather than "terrorist conduct.'' I am going to some of the issues raised by Senator Andreychuk in her first question and also by Senator Baker.
Some of us sat through the endless committee meetings, pre-study meetings, study meetings and review meetings. These things have really gone through the mill around here. The language that was used in the Anti-terrorism Act and some of the Criminal Code refers to "terrorist activity'' and "terrorist groups.'' I am suggesting that those concepts have by now been relatively well studied, relatively well established. Would it not have been easier to hang your hats — even though we are talking about the State Immunity Act now and not the Criminal Code — on legal language that we have already established and come to grips with, at least to some extent?
My second question which, as I say, may be related, has to do with the business about listed entities. This one comes in two parts. Would it not have been simpler to refer to section 83.05(1) of the Criminal Code, which deals with that list of entities and defines them up to a point? Alternatively, if we want to hang it on section 83.01 — and it struck me that this is more what you were trying to do — why refer to listed entities? Why not go straight to terrorist groups and terrorist activities?
Do you see what I am trying to drive at here in a not very coherent way? If so, can you explain?
Senator Tkachuk: This bill has been around for quite some time and has languished in the Senate. Even though the original bill put forward by the Canadian Coalition Against Terror was ingenious and quite brilliant, other brilliant people helped us create amendments that we thought would improve the bill and clarify some outstanding issues. That is why we have some amendments to bring forward to the bill, which we have distributed to the clerk.
The Chair: I apologize. I had in fact received that document before this meeting but was plowing through a thick file of documentation and had not gotten to that one yet. I believe other senators are probably in the same position.
Senator Tkachuk: We sent them ahead of time.
Mr. Blumenfeld: Starting with your last question, the definition of "terrorist group'' has two components. In section 83.01(1), under "terrorist group,'' paragraph (a) says:
an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity.
In paragraph (b) it is a listed entity.
The thinking was simply that the listed entities were a well-defined group. You have to show that the state sponsored or supported one of those 40 entities. With respect to (a), it might be argued that group X falls within that category, but that might be an assertion or allegation. On a common-sense definition, a judge might not agree. The feeling was that the listed entity definition was better defined. That was the rationale.
Certainly there is a lot of fine-tuning in this, and Senator Fraser's suggestion to use "terrorist group'' may be a good one and should be looked at further.
Ms. Saperia: In terms of choosing "listed entity'' as the definition, in drafting it we attempted always to strike the right balance between ensuring the broadest possible access to justice while protecting against frivolous suits and protecting Canadian foreign policy.
Based on what Mr. Blumenfeld said, the listed entity is a complete list and there is a clear definition. This way, there would be no debate about whether the Canadian government views a particular terrorist group as terrorist or not. Whatever the government has deemed as a listed entity would be unacceptable for a foreign state to be knowingly providing material support for. Therefore, this is an attempt to prevent frivolous use and keep things as tight and narrow as possible.
The Chair: Suppose we have a group called the national liberation front of east overshoe, and it has not made it onto the list of entities. However, it is a terrorist group. It is even found guilty of the criminal offence of blowing up a plane and killing 150 people, but it has not yet made it onto the list.
Surely, your objective in this bill is to enable the families of the victims to sue the national liberation front of east overshoe whether or not they are on the list and to sue foreign states that may have been funnelling money or otherwise facilitating, harbouring or other offences listed in the Criminal Code. Is that correct?
Ms. Saperia: If there is that type of evidence, the organization ought to be a listed entity.
While you have portrayed one hypothetical example, I would portray another. That is an organization that one group of people may consider to be a terrorist group, but the rest of society does not perceive in that way. I think it would be troubling for a foreign state to be sued in our courts for sponsoring an organization not widely accepted and considered to be a terrorist group.
Senator Tkachuk: The organization can be sued, but the state cannot be sued in this particular case.
The Chair: There is the State Immunity Act.
"Overshoeistan'' has been financing my National Liberation Front. It is getting very hypothetical, but I take the point you make Ms. Saperia. It is an interesting one.
Mr. Blumenfeld: I want to address the other definition. Your comment was that the phrase "terrorist activity'' has been dealt with in the Criminal Code and is familiar.
If I remember correctly — this is easy to check — I think the bill for the State Immunity Act used the phrase "terrorist activity.'' There was feedback from within certain ministries that it was better to use a different phrase to avoid confusion. That is my recollection. The phrase "terrorist conduct'' was inserted instead of that phrase. It sounds like a distinction without a difference, but there it is.
In our new draft, with some minor amendments, the phrase suggested is "terrorist sponsorship.'' The view is that the State Immunity Act deals with states that sponsor listed terrorist groups in the way indicated. Therefore, sponsorship seems to be a more apt word to use. However, all of those things are appropriate to look at in fine-tuning this.
Ms. Saperia: In using "terrorist activity,'' the concern was that we would be using the same term with a different definition. Therefore, the definition that we provide for lifting state immunity is not terrorist activity according to the Criminal Code. That comes as step 2.
Step 1 is this very specific definition. Therefore, it seemed to make sense that we listed it clearly as a distinct term in order not to confuse the terms. Terrorist conduct is fine. Terrorist sponsorship is more specific and is reflective of the definition itself. However, we defer to you.
The Chair: This strikes me as a wonderful example of "damned if you do and damned if you don't.'' You will have people coming at you whichever way you go.
Senator Oliver: I have a supplementary question. Senator Tkachuk, do you have a copy of the bill with all the various amendments that have been made since the bill was presented in the Senate? We learned this afternoon that a number of words have been changed and amended.
Senator Tkachuk: We did not distribute the bill with the potential amendments we would like to make because we did not have time to prepare the French version. We will try to have that for you shortly. When we have both official languages available, they will be forwarded to the clerk.
The Chair: I thought you were asking for an annotated version of the various incarnations of this bill.
Senator Oliver: That is not what I was asking for. It would be nice if we had it all in one bill.
The Chair: It is basically in one bill.
Senator Tkachuk: Senator Oliver, we cannot have two bills before the Senate. We have one bill and we will have some amendments in both official languages to propose.
The Chair: In the meantime, there is an English copy of the text with the proposals that will be made when they are available in both official languages.
Senator Cowan: I want to get a sense of how you intend to proceed with this, Senator Tkachuk. Are you intending to propose these amendments to the committee when you next come back?
Senator Tkachuk: Yes. You have copies unofficially, but when we have them in both official languages, they will be tabled before the committee.
The Chair: Thank you all very much. This will be an interesting study for us to embark upon. We are grateful to you for launching this.
The committee adjourned.