Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 5 - Evidence - Meeting of June 28, 2010
OTTAWA, Monday, June 28, 2010
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-7, An Act to deter terrorism and to amend the State Immunity Act, met this day at 12:59 p.m. to give consideration to the bill.
Senator Hugh Segal (Chair) in the chair.
[English]
The Chair: Honourable senators, this is the sixth meeting of the Special Senate Committee on Anti-terrorism, in the Third Session of Canada's Fortieth Parliament. Today we are fortunate to have with us, accompanied by officials, the Minister of Public Safety, the Honourable Vic Toews, P.C., M.P., whose department has created the act before us. Bill S-7, which creates a right of action in Canadian courts by Canadians who have been harmed by terrorist acts and makes consequent amendments to the State Immunity Act, received second reading in the Senate of Canada on June 17 and is before us today for the first time.
The minister, who has other obligations before other Senate committees this afternoon, is here for an hour. His officials can stay longer to take further questions from colleagues around the table beyond those the minister is able to take himself in his time with us. The minister has an opening statement. We are delighted to have him with us.
Hon. Vic Toews, P.C., M.P., Minister of Public Safety: I am pleased to be here today to discuss a very important piece of legislation, Bill S-7, the justice for victims of terrorism act.
As we all know, global terrorism remains a serious threat to our security. Terrorist acts continue to claim the lives of too many innocent civilians and to cause losses and devastation across the world. The report of the Air India commission of inquiry reminds us in very clear terms that Canada and Canadians are not immune to this threat.
Canada, along with its security partners and allies, remains committed to protecting its citizens and interests from terrorist acts, and has implemented a number of measures to prevent, deter, disrupt and counter terrorism at home and abroad. As part of this unwavering commitment, in April 2010, we introduced another initiative, Bill S-7, previously Bill C-35, to complement our existing counterterrorism tools. The bill aims to deter terrorism and address the needs of victims of terrorism by providing them with the ability to seek redress for losses resulting from terrorist acts.
I welcome today's opportunity to discuss in greater detail some key elements of this bill. Specifically, I would like to briefly explain the proposed cause of action and how it addresses victims' needs. I would also like to say a few words on how the bill would target states that support perpetrators of terrorism.
In our election platform, we committed to introduce legislation to allow Canadians who have been affected by terrorism to sue the sponsors of terrorist organizations, including to recover funds from states that are designated as sponsors of terrorism. Bill S-7 meets this commitment by allowing any victim of terrorism whose cause of action has a real and substantial connection to Canada to sue, in a Canadian court, the following: first, perpetrators of terrorism, including individuals, organizations and terrorist entities listed pursuant to the Criminal Code; and second, supporters of terrorism, including individuals, organizations, listed terrorist entities and foreign states designated by the government. I will come back to this last point in a few moments.
Of course, as with any matter of civil litigation, it would be up to the court to determine whether the connection between the cause and Canada is sufficient for any specific cause to be considered and judged. Courts normally assess a number of factors to determine whether they can hear a case, including, among other things, the link between the jurisdiction where the claim is filed and the plaintiff and the defendant, and the involvement of other parties to the suit.
Bill S-7 further stipulates that victims of terrorism may sue perpetrators of terrorism and their supporters for loss or damages that result from terrorist acts that occurred anywhere in the world on or after January 1, 1985. This is important, as the retroactivity of the bill would allow victims of past terrorist acts to seek redress. In making this bill retroactive to 1985, we are also sending a clear message to the world that those who perpetrate or support terrorist acts remain accountable to this day.
Bill S-7 is all about demonstrating Canada's leadership against the perpetrators and supporters of terrorism, including foreign states that are believed to support or have supported terrorism. To do that, the bill proposes amendments to the State Immunity Act, which would provide the Governor-in-Council with the authority, upon the recommendation of the Minister of Foreign Affairs in consultation with the Minister of Public Safety, to list foreign states that are deemed to have supported a terrorist entity that is already listed pursuant to the Criminal Code.
As you know, lifting a state's immunity is a significant foreign policy decision, one that cannot be taken lightly. That is why we would base such a decision on a rigorous mechanism and concrete criteria. Indeed, we believe that providing support to terrorist entities listed pursuant to the Criminal Code — a list which is established through a detailed, effective analytical process — is an adequate criterion to justify the listing of a state sponsor.
To establish the list of state supporters of terrorism, the Minister of Foreign Affairs, in consultation with the Minister of Public Safety and with the support of the intelligence community, would first make a recommendation to the Governor-in-Council. Should the Governor-in-Council be satisfied that there are reasonable grounds to believe that the proposed state supported terrorism, this state would be placed on the list and its immunity would be lifted.
There are safeguards. The bill would require the Minister of Foreign Affairs, in consultation with the Minister of Public Safety, to review the list of states every two years to determine whether these states should remain on the list. Listed states could also submit an application to the Minister of Foreign Affairs to be delisted. The decision to remove a state from the list would also be made by the Governor-in-Council, upon recommendation by the Minister of Foreign Affairs, after having consulted with the Minister of Public Safety.
Once on the list, state supporters of terrorism could be sued for damages and losses that occurred as a result of terrorist acts conducted by entities to which they provided support. If a favourable judgment were issued to a victim, the defendant, including a listed state, would have an obligation to comply with the court's order or its assets and property could be seized.
Bill S-7 provides an avenue for the government to assist successful plaintiffs; indeed, the bill calls for the ministers of Foreign Affairs and Finance to provide assistance, within the confines of their mandates and to the extent reasonably practical, in identifying and locating the property under Canadian jurisdiction of a foreign state against which a judgment has been rendered.
Upon receiving a formal request from a successful plaintiff, the ministers would review it as appropriate, including any similar past requests. Ministers would then communicate relevant information to parties responsible for executing the judgment.
Of course, ministers would need to be satisfied that doing so would not damage Canada's interests. Also, the Minister of Foreign Affairs would need to be of the view that to do so would not be injurious to the conduct of Canada's international relations.
I would also like to point out that before releasing anything, the information would be thoroughly reviewed to ensure ministers are complying with legal obligations, including the Privacy Act and the Canadian Charter of Rights and Freedoms.
I am sure you will agree that going through any legal process can be quite taxing. This is especially true when it is to seek redress for losses resulting from events as devastating and traumatizing as acts of terrorism. Therefore, to support victims of terrorism as much as possible, and save them the anxiety of having to go through stressful procedures more than once, Bill S-7 would also require Canadian courts to recognize foreign judgments in favour of victims. However, for this to occur, criteria under Canadian law for recognizing foreign judgments in Canada must be met in each case. Furthermore, any judgments against foreign states must be against those states that are already on the list of state supporters of terrorism. This provision would allow Canadian courts to recognize reliable foreign judgments in favour of a victim of terrorism, while providing flexibility to reject those rendered for political reasons or by courts with questionable judicial practices.
Bill S-7 is a sound and appropriate piece of legislation that would effectively complement our existing counterterrorism measures. It would help us in further deterring terrorism while responding to victims' needs. This bill demonstrates Canada's leadership against the perpetrators and supporters of terrorism around the world.
Thank you very much for your attention. I would now be happy to answer questions, as much as I can. This is quite a technical bill, and I do have very competent individuals with me who can answer the legal or technical aspects of this bill.
The Chair: I point out to colleagues that Ms. Larisa Galadza is Senior Director, National Security Policy Directorate of the department, on an acting basis, and Ms. Agnes Levesque, is Legal Services counsel at the department.
Can I ask my deputy chair, Senator Joyal, if he would like to begin the questioning?
Senator Joyal: Thank you, and welcome to you, Mr. Minister, and your assistants. I would have hoped that Senator Furey, being the critic of the bill, would have started the questioning, but I am happy to do so.
The Chair: I do have a question from Senator Furey which I will put, should you fail to do so. He called from the lawn of the Senate on earthquake day.
Senator Joyal: Mr. Minister, do you know any other states that have taken a similar initiative to Bill S-7? If so, could you point out the differences in terms of enabling legislation? Could you give us a broader perspective to the initiative taken in that bill?
Mr. Toews: Indeed, other states have taken similar initiatives. The Americans have brought forward legislation. There are, of course, substantial differences between the legislations. For example, the Canadian legislation contains a clause dealing with retroactivity to January 1, 1985. To my understanding, the American legislation does not include a specific retroactivity clause. There are a number of other distinctions, if I could use that term.
Senator Joyal: Let me be more specific while your assistants are looking at their files. On the process of establishing the list — I am referring to the foreign state list specifically, because of course it amends the State Immunity Act — what process does the United States follow in relation to their anti-terrorism legislation?
Mr. Toews: As I understand it, it is fairly similar. The notes that I have, for example, indicate that of course in Canada perpetrators and supporters of terrorism, including states designated by the government as supporters of terrorism may be sued. In the United States a state designated as sponsor of terrorism or its official employee or agent acting within the scope of his or her office that perpetrate or support terrorist acts may be sued. The U.S. Department of State is responsible for establishing and maintaining the list of state sponsors of terrorism.
Larisa Galadza, Senior Director, Acting, National Security Policy Directorate, Public Safety Canada: Minister Toews is correct that the United States has a provision for listing state sponsors of terrorism. The bill that they have that opens the civil cause of action is not specifically for terrorism, however. The list is separate and is published on an annual basis. States that are currently designated are Cuba, Iran, Sudan, Syria, and a number of countries were recently removed from their list including Iraq, Libya, Yemen and North Korea. This gives you a flavour of the countries they have, but it is a specific list established on an annual basis.
Senator Joyal: Why did you decide to establish retroactivity to 1985? It is a long time ago, in world history. I tried to understand where we were in 1985 in terms of terrorism activity. It is certainly not a context we have known since 2001. Why did you specifically decide upon that date?
Mr. Toews: In listening to those who made representations to government and government officials about the issue of retroactivity, it appeared that 1985 was a crucial period of time in which the face of terrorism and how it affected Canada changed Canada's relationship with terrorists in the world.
Of course, there were some specific incidents, for example, the Air India bombing in 1985. However, just generally speaking, I can say that 1985 was seen as somehow crucial in that terrorism was no longer a foreign matter but a matter that, in fact, affected Canadians very directly. It was chosen, therefore, to allow victims to go back as far as 1985.
Senator Joyal: In your opinion, what other incidents have occurred since 1985 where, in your opinion, Canadians could be concerned or could be seen as now having an opportunity to sue foreign states?
I am thinking of Libya, for instance. At the time, as you know, that the incident happened, Libya denied any responsibility. Later on, through global pressure, Libya recognized that they were sponsoring and they accepted some responsibility to compensate the victims. I am thinking of Libya because the Libyan case is so well known to everyone. Do you have any other case in mind where you feel that, by bringing the retroactivity so far back, we would catch other countries other than the Air India incident that you have mentioned?
Mr. Toews: I have not focused on any countries in particular, and deliberately so. We wanted to leave that open. We did not want to colour a court's consideration of these matters. We saw 1985 as a turning point.
Senator Joyal: The problem I see is that, according to the legislation, a country must be on the terrorist list. If I, as a Canadian citizen, wanted to sue a country for something that happened in the 1990s, for instance, how could I sue that country if it is not on the list today? It is one thing to say today, we want to see country X on the bad list because they are bad, but that country, in the 20 years before, might have been in a totally different context. How would one make the connection to make that retroactivity real?
Mr. Toews: It is a difficult issue. I think it illustrates the difficulty of retroactivity in any statutory context. The Governor-in-Council will consider those issues in placing people on the list, but the focus primarily is deterrence into the future, as opposed to simply looking at issues of compensation.
Your point is that a country, in 1986, could have been a rogue country and in 2000 is completely rehabilitated.
Senator Joyal: The Libya case is a good example.
Mr. Toews: Without mentioning names, countries can be rehabilitated, if we can use that word in the context of a country. That is a difficult issue and it is something that the Governor-in-Council will have to consider. Is this an ongoing rogue state that sponsors terrorism? Have there been incidents in the past where that country may have sponsored terrorism, it has stopped, and in that period of time there were some activities that could have caused damage? The Governor-in-Council will consider that issue. It is not an easy decision, but once we have chosen to move retroactively, that brings those types of problems, both legal and political.
Senator, as you are aware, the general principle of state immunity is a fundamental principle to our foreign relations system. It was for that reason, for example, that we chose to make exceptions to the rule rather than simply throw it open and say you can sue basically anyone you want. Throwing that whole principle out, I would think, would cause all kinds of difficulties.
We continue to affirm that general principle of state immunity and then make specific exceptions, because the principle of state immunity is such a fundamental principle to the overall relationship between countries. The example that you raised is not only a difficult one but also one that we could not necessarily afford to ignore. We will have to grapple with that, perhaps.
Senator Tkachuk: Twenty-five Canadians were killed on September 11, 2001. Canadians were killed in foreign countries in the 1990s. I know of two Canadians who were killed by acts of terrorism in Israel. There have been other incidents where Canadians were killed, Air India being one example.
Senator Joyal: I am sorry to interrupt, Minister Toews, but allow me to present the same argument. September 11 is a good example because Canadians were killed, but whom do we sue in that context? Do we sue the Afghanistan government of the Taliban who provided training, money, et cetera to terrorists? Would you put the Afghanistan government on the list to sue? That is a good example of my point.
The Chair: It strikes me that as in any action before a court; the litigant has to make a case based on fact and substance. The case as to whom they might wish to sue has to be established in law, and the judge would have the same jurisdiction to say that the case has or has not been well made, as would be the case of any other cause before a court. No one would expect a bill to preclude that proposition.
Senator Joyal: The country must be on the list. That is the preliminary point.
Mr. Toews: How do you make a political decision to put a country on the list when that country has rehabilitated itself? For example, we might assume that Afghanistan was involved in some way in the terrorist attacks on September 11, but today, Afghanistan is our ally. In 2010, do we put Afghanistan on that list in order to sue? That is the difficult political decision that governments will have to make.
Another proposal, senator, is that we simply open it up to any country that does not have an extradition treaty with Canada, which includes about 111 countries. I foresee difficulties in doing that because it would substantially undermine the principle of state immunity in the world and would create untold problems in terms of foreign relations. This is the narrowest approach and does create some difficulty for government, but it is the more responsible approach.
Senator Smith: I think you have clarified the 1985 date with regard to Air India. I witnessed that plane take off. I will never forget it. I remember seeing some men looking out the window as it flew by me. They wore turbans, one of them was red. I saw their faces. It was a fluke that I saw them, and I have always had strong feelings about that tragic incident.
I am curious as to whether, in the case of Air India specifically, the class action mechanisms kick in or does everyone have to file individually? What happens in such a situation?
Mr. Toews: This does not impact upon the general powers that the courts have today in imposing class action lawsuits. You would have to meet those criteria. It does not impact on the court or, in my opinion, preclude the court from utilizing the class action proceedings, which have a whole other set of difficulties, especially in this context.
Senator Smith: There is the criminal side and the civil action side, plus the costs. I sense that part of the problem was the trial of a couple of persons who were acquitted. Obviously, some people had evidence and if they had taken the stand to say what they knew, the result might have been different.
I am speaking hypothetically of course. Given the conclusions by Justice Major, if someone reconsiders his or her testimony, or comes forward with additional information, for whatever reason, does this open any new opportunities? I do not think that would happen on the criminal side but might it happen on the civil damages side.
Mr. Toews: Yes, and you raise a very good point concerning the role of the court in bringing facts to the public's knowledge that would otherwise not come forward. In a criminal proceeding, where the onus is on the Crown to prove every element of the charge beyond a reasonable doubt, an accused is not obliged and, indeed, no comment can be made about an accused not taking the stand and raising any of the facts. In a criminal context, you can have a very different result than in a civil context. The most prominent example of that can be found in People v. Simpson in the United States when O.J. Simpson was acquitted of murder in the criminal context but found liable for the wrongful deaths of the two individuals that he had been charged with killing criminally.
The civil process brought out matters that the criminal process did not bring out. There is no right of a person who is a defendant in a civil suit to say, "I will not testify." There is an obligation. If that person chooses not to testify, inferences can be drawn against that individual.
This civil process has a beneficial public interest impact, especially when we are dealing with something like terrorism. That is not to be underestimated in the benefit of this kind of process for public information and knowledge.
Senator Smith: There could be some potential in that, which was my gut sense.
Mr. Toews: The fact that someone has been acquitted criminally does not preclude an action that might implicate them and find them liable under this process provided all other conditions are met.
Senator Smith: It is also on a different scale, on the balance of probabilities, as opposed to beyond a reasonable doubt. There is a difference between those two scales.
Hypothetically speaking, if the evidence were overwhelming against a rogue state like North Korea that a military exchange occurred and we lost Canadians in the exchange, would there be potential for this to kick in?
Mr. Toews: I am trying to think quickly of all possibilities.
Senator Smith: Even if you got a judgment, I do not know how you would ever collect a cent from that rogue state or any other rogue state.
Mr. Toews: That is an entirely different issue and needs to be clear. For example, even the assistance afforded by the two ministers to the victim is essentially to identify the assets within Canada. Canada does not become the enforcer of the judgment. That remains in the civil process. In many contexts, the judgment is symbolic rather than real in terms of collecting money.
Senator Smith: And the rogue states may not have the assets.
Mr. Toews: I should point out that even today, if an individual is involved in a terrorist act, for example, in Canada, that individual cannot only be prosecuted by the relevant attorney general but also made liable in a civil suit. There are civil ramifications that flow from that. Simply because it was a terrorist act does not preclude that from occurring.
What this is doing, however, is bringing the foreign state to heel in terms of its involvement in a terrorist incident.
Senator Jaffer: Mr. Minister, you said the Air India tragedy was the worst terrorist act in our country, but I do not think that was a state issue. We are not blaming any state for that act of terrorism. I just want to clarify that.
Mr. Toews: That is a good point. Our focus is on how we respond to terrorism generally, and if there are state sponsors and organizations that support terrorism, then there is a mechanism to deal with their involvement. That is why I am hesitant to get into the whole issue of Air India, because what it did should have changed Canadians' attitude about the reality of terrorism being very present in Canadian lives and in the Canadian context. I make no comment about any state sponsored act.
Senator Jaffer: I am concerned. Maybe people here in this room understand, but people watching us may not understand. I do not want anyone to think that the Air India bombing started this legislation because I do not think there ever has been question of anyone attributing this case to any state.
I want to be certain there is no issue of any state involvement in the Air India attack. I spent the morning with the Prime Minister of India, who is committed to working on this issue in his country. I want to make sure there is no issue of any state blame in this case.
Mr. Toews: Let me be clear: The choice of the date does not point the finger at any particular state.
Senator Jaffer: I wanted to clarify that. Thank you.
Minister, ever since Senator Tkachuk introduced Bill S-7 I have been concerned about one item. I would like you to clarify Article 31 of the Vienna Convention on Diplomatic Relations, which states:
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction . . . .
I assume that we are signatory to Article 31 of that convention.
Mr. Toews: Yes.
Senator Jaffer: Mr. Minister, I need your help in understanding how we deal with this legislation while we are a signatory to the Vienna Convention on Diplomatic Relations.
Mr. Toews: This legislation proposes a specific exception to that exemption. I have indicated that I prefer listing countries specifically as opposed to having general criteria that could put many countries into that category. I think that would undermine the fundamental principle of state immunity that is so essential to foreign relations.
There must be, in my opinion, a very deliberate consideration by government as to whether or not state immunity should be lifted in respect of any particular country. That is why we have chosen this particular route.
Agnes Levesque, Counsel, Legal Services, Public Safety Canada: In section 6 of the State Immunity Act, Canada has chosen to limit the state immunity where there is a death, personal or bodily injury, or damages to or loss of property. This limitation to the state immunity already exists in Canada and, as Minister Toews said, we are sparsely adding to it.
Senator Jaffer: Can you walk me through when the convention comes into place; did we have any reservations to that? How will we deal in the future with a situation if we are challenged? We often — and the minister will know this well — when legislation comes through, ask if it is "Charter proof?" Of course, this is not about the Charter, but is this legislation before us "Vienna convention proof"?
Ms. Levesque: If I can get back to you on that specific question, I would be in a better position to give you a more complete answer.
Senator Jaffer: I would like a detailed rationale on this and then we may have more questions of the minister.
Senator Wallin: I think everyone knows the intent. If an act of terrorism occurs on American soil with 9/11 you are not suing America. The question is what or with whom in Afghanistan do you deal, seeing as the governments and the systems have changed?
What is your sense of creating liability? If we actually put this on the books, do you have someone who neither goes through the Charter — because you are right, it is not a Charter case — or, as I am thinking, something through you to the UN?
Have we looked at the reverse onus? If you look at whether it is Air India or the Toronto 18, we could think of other cases to mention.
Mr. Toews: My understanding is that even when we adopt an international convention, it does not deprive us of the right to limit the application of that convention in one way or another through appropriate legal action. That is what we are doing in this particular case. We are limiting the general principle.
I do not want to get too much into the legal items because we will have an opinion on that, but we are limiting the general application of that fundamental rule of the relationship between states in the modern world.
Let us take the case of 9/11. The damage took place in the United States. A relative of a Canadian killed there brings the application alleging that a particular country was behind that specific incident; there was some kind of a state support for one of these listed terrorist organizations. We know the identity of the listed terrorist organization and we determine the state that gave financial or other support to the individual. The person then goes to the Canadian court and says he or she is initiating an action against that state for supporting that particular terrorist act. The court will then determine whether that country is on the list. If it is on the list, the action can proceed against the country. If the country is not on the list, then the individual cannot proceed against that country.
The Chair: May I ask a supplementary on that point? Clause 4(4) of the bill deals with the court having the right to set aside a case unless the litigant has applied for arbitration in the country where the allegation has been made that the source of the activity had been inspired.
If you look at two named organizations — Hezbollah and Hamas — Iran denies any connection with them, except spiritually. I have had diplomats from Iran in my office make that denial as clearly as possible.
These organizations are on the named list. If a Canadian felt that he or she had been damaged by activities advanced by those individuals and presented a cause before a Canadian court, Iran would, first, deny any connection. Second, Iran could say we will set up an internal arbitration process under international law, which could go on forever, thereby in a sense removing the right of cause in practical terms from the Canadian who sought to use this act for that purpose. Further to Senator Wallin's question, can you give us advice on how that might operate?
Ms. Levesque: If you look at clause 4, it says the court could refuse if the plaintiff did not give an opportunity for arbitration. The paragraph does not require that the arbitration be completed or that it be resolved. Also, I think maybe a court would consider if the plaintiff is too quick in filing its lawsuit or, at the same time, if there are delays. I think it would be on a factual basis.
Mr. Toews: Clearly, the situation that you are pointing out — that there is no good faith on the part of the country — is something that the court in Canada could take into consideration.
The Chair: That is very helpful.
Senator Wallin: As a clarification, your argument is that we would be protected if someone decided to sue Canada, because some members of the Toronto 18 happen to be Canadian citizens, because we are not on the list. Therefore, the assumption would be that we would go to the country of inspiration or training.
Mr. Toews: In that particular case, we are not dealing with a foreign state. The point I wanted to raise is that just because you have a terrorist act does not mean that it excludes other civil remedies. For example, if the Canadian government were somehow complicit in a terrorist act, that would give rise to a cause of action under our existing legislation. Therefore, this would not affect that in any way.
The Chair: Although Senator Baker is not formally a member of the committee, we are delighted to welcome him today.
Senator Baker: I welcome the minister to the committee. When we think about retroactive or retrospective regulation, we think about the minister back in the 1980s, when he took on the chartered banks as far as wages were concerned in another capacity. He went right to the Manitoba Court of Appeal, where he unfortunately lost, but it was a noble effort.
That was on retrospective legislation. Of course, we have no problem here because this is civil legislation. If it were criminal, it would be protected by section 11(g) of the Charter.
My first question is trying to figure out exactly what the bill does. The United States has a lot of experience in this matter of litigation relating to terrorism acts, and I do not know if there has been a successful litigation relating to that as yet in the United States. There have been payouts of money. Fortunately, the United States has what they call a Justice for Victims of Terrorism Act, which allows the government to pay out the money and to then seek redress from the state.
The bill talks about a cause of action; it says "any person that has suffered loss or damage." Does this loss or damage relate to the parameters set in section 6 of the State Immunity Act? Is that what we are starting from?
I notice Ms. Levesque mentioned that we have, in section 6 of the State Immunity Act, "death or bodily injury." Those were your words. As I recall, when we passed that legislation in 1985, it also said "personal injury."
Ms. Levesque: I was not there in 1985.
Senator Baker: Is that not in the present legislation?
Ms. Levesque: It is death, personal or bodily injury — all three of them.
Senator Baker: In your opinion, will this cover claims for personal injury?
Ms. Levesque: At clause 4 of the bill, we have the heading of cause of action and it states "any person that has suffered loss or damage. . ." It would the court's responsibility to interpret the meaning of "loss" and how broadly it should be applied. If you have a personal loss —
Senator Baker: Yes. We are changing the State Immunity Act at section 6 considerably, and that is where the substance of the bill proposes a new section 6.1, after the section in the act that identifies what types of injury can be litigated against the state. Is that correct? It is section 6 of the present State Immunity Act.
Ms. Levesque: Proposed section 6.1 in the bill would lift the immunity from the state that supports terrorism.
Senator Baker: Yes, but which immunity? It lifts what is in section 6, which precedes it:
A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to
(a) any death or personal or bodily injury, or
(b) any damage to or loss of property
Mr. Toews: If I could intervene, for my own clarity, are you asking whether there is an inconsistency between the loss covered in the State Immunity Act and what we are doing in this legislation? Is there some kind of discrepancy that is not covered in this act, so that a state could still come by and say you have lifted the immunity for a certain portion of the damages but not all of the damages, so there is still some immunity left?
Senator Baker: I will tell you why I am asking. If you follow this along, you will note that the French version is different than the English version of section 6. It is considerably different and when we passed the law, we did not notice it. The French only talks about bodily injury.
The Ontario Court of Appeal ruled in United States of America v. Friedland that this would cover personal injury. However, the Supreme Court of Canada came along in Schreiber v. Canada and said no, the State Immunity Act does not cover personal injury; it only covers death and bodily injury and the English shall not be complied with.
What I am trying to get at is what kind of loss and damage will this new law create that is different from what is presently there?
Ms. Levesque: I would like to draw your attention to section 3 of the act, which states that "a foreign state is immune from the jurisdiction of any court in Canada."
If we add proposed section 6.1, we are saying there is no immunity from the court in Canada, where the foreign state has supported terrorism, in connection with this cause of action. Then we go to the cause of action, which says the person who has suffered loss or damage. Therefore, I believe we are outside the application of section 6.
Senator Baker: In other words, you are saying this will open up, to any person who brings action, what we consider to be the normal personal injury and damages. That would include psychological and mental harm, not just bodily harm. It would transgress over into the normal injuries that we can claim in a normal action in litigation. Is that correct?
Ms. Levesque: Yes. It would be for the courts to decide, but that is my understanding.
Senator Baker: It would be for the courts to decide? What is the intent?
Ms. Levesque: The intent is to allow any person who has suffered loss or damage in or outside Canada to be able to —
Senator Baker: Therefore, the intent is not to tie it to what is presently there in section 6 of the State Immunity Act. Beginning at section 6, it says personal bodily injury or death.
Ms. Levesque: That is it.
Senator Baker: It does not tie it to that. This is extraneous to it. This is a whole new area of contemplation for the courts. Is that correct?
Ms. Levesque: That is my understanding.
Senator Baker: By the way, I think the best answer to why it dates back to 1985 is because the State Immunity Act came into being in Canada in that year. Therefore, it would be logical, minister, for you to put it back to 1985, January 1.
In the United States, — and I follow the law pretty carefully in these matters — I do not know of any case that has been adjudicated in favour of the person bringing the action, but there have been successes. I have mentioned it before. The state has undertaken by law, under the Justice for Victims of Terrorism Act, a responsibility in which payouts have taken place, and then it is left up to the state to collect. Is there any contemplation that you know of by the government to enact a similar measure in Canada?
Mr. Toews: No, we do not have a similar provision in this act. Senator Baker, when you indicate there has been no success, there has been success in obtaining a judgment.
Senator Baker: Loads of judgments: 6,000.
Mr. Toews: That is right, so about $19 billion worth of judgments. The issue of collection is a very different issue.
Senator Baker: You are right.
Mr. Toews: Have we set up a similar process by which people could claim against the government and then the government collects? No, we have not.
Senator Plett: I want to welcome my member of Parliament to the committee today. Mr. Minister, I want to go have some clarification on the retroactivity in the proposed legislation.
You made a comment about certain countries rehabilitating themselves and then being taken off the list. If I steal 100 cars and then decide to be rehabilitated, I still have to be penalized for stealing the 100 cars. I am wondering what rationale there is. If a country is involved in an act of terrorism and a lawsuit is brought against them, and then they decide that they have rehabilitated themselves — I can understand possibly taking them off the list — why would we not expect them to pay for their past deeds?
Mr. Toews: For example, if you took action and stole 100 cars in a country where it was not illegal to steal 100 cars and then 25 years later someone comes by and says they will make that a crime, and because you stole 100 cars 25 years ago, now we will hold you liable. You say that is not fair; there was not a law in place at the time.
This is not a criminal process but a civil one. Part of the same issue must be considered when we are looking at state immunity. There was no liability for that state 25 years ago — no liability at all. It has said, despite the fact whether it was liability or not, we realize that that activity is somehow wrong in a moral or other sense, and we will not embark upon that course of conduct any longer.
Then, when the government is met with placing someone on the list in this situation, do you then put that country on the list because of the conduct that happened 25 years ago when there was absolute immunity for that type of conduct?
I know that is a rough example, as your example was fairly rough as well. The point is it is something that government will have to consider in looking at a particular country, whether that should go on the list. I think it is a better system than simply saying, we will throw open, for example, any country that does not have an extradition treaty with us, all 111 of them, and now will become subject to possible lawsuits, where they were not subject to those lawsuits previously.
Before we put our relationships with 111 countries in jeopardy, we want to be very careful about what countries are on that list. We will look at various factors. I suspect that some of the factors that we will look at are issues of our relationship with that country, what that country is doing in terms of its relationships in the broader international context.
In addition, it was pointed out to me that there are limitation periods that apply in current civil proceedings. If we were simply to say you can sue, how far back can you go? Seven years, because of the limitation period?
Senator Plett: I appreciate what you are saying. I support the bill, minister, but it is of very little consolation to the people who are victims of terrorism because we have taken a country off the list.
Mr. Toews: I understand.
Senator Wallace: Thank you. I would like to focus on the actual payment of a judgment. It is wonderful that this bill would create a cause of action, but it is another thing, as Senator Baker has touched upon, to actually have the victims paid for the damages covered by that judgment.
In your presentation you mention that your ministry — and I believe another ministry — would be able to assist plaintiffs in identifying property located in Canada that could be available for seizure in order to satisfy a judgment. You said that information could be communicated for the purpose of executing the judgment. Of course, ministers would need to be satisfied that doing so would not damage Canada's interests.
I am wondering what that means. We have a situation where the courts have found judgment against a perpetrator of terrorism, assets are in Canada, they should be available to satisfy the judgment but there seems to be somewhat of a reservation that you have mentioned there about where the government would cooperate. I am just wondering what that means.
Ms. Galadza: It is within the confines of the mandate. It is specifically to identify and locate those assets. There is nothing about the execution of any further power to then seize those assets.
Mr. Toews: The point I think the senator was making is that my comments say that we have a country on the list and we have a judgment on it. The ministers have said there is a building here in downtown Toronto that is owned by this particular country. The reservation, then, is saying this could damage Canada's interests. Is there a specific statutory provision that says Canada would not release that information because it would be injurious to our information?
Ms. Galadza: I am not aware of a statutory provision. Certainly there are Privacy Act provisions. We can get back to you with the specifics of whether that is laid out in the law.
Senator Wallace: That is fine. I was just wondering what was meant by that statement. That would be helpful if you could do that.
Ms. Levesque: The section is meant to provide some flexibility to consider facts individually. At the time of the request, the government determines all of the considerations at play before disclosing this information.
This does not prevent the plaintiff from obtaining the information elsewhere and trying to execute that judgment against, for example, this property. It would still be open to the plaintiff, even though the information might not come directly from the Minister of Finance or the Minister of Foreign Affairs.
Mr. Toews: The senator's question still needs to be answered. Under what authority does the Government of Canada knowingly have information regarding an asset and say that it will not provide the successful plaintiff with that information?
Ms. Levesque: The authority is found in a section of the State Immunity Act.
Mr. Toews: Which section is that?
Ms. Levesque: I should know this by heart.
Mr. Toews: It is a very good question. It is unusual in the sense that you are already a successful plaintiff and you have received a judgment. However, now, there is some discretion on the part of government not to disclose that information to you despite the fact that the country has assisted is terrorist activities.
Senator Wallace: The clear intent of the bill is to assist victims of terrorism.
Ms. Levesque: The authority is found in section 12(1) of the State Immunity Act, which provides for the assistance to identify and locate, unless the Minister of Foreign Affairs believes that to do so would be injurious to Canada's international relations or either minister believes that to do so would be injurious to Canada's other interests. The Minister of Finance would identify the financial assets and the Minister of Foreign Affairs would identify the property of the foreign state. That is found in section 12(1) of the State Immunity Act.
The amendment to section 12(1) of the State Immunity Act in Bill S-7 subclause 12.1(2) states:
In exercising the power referred to in subsection (1), the Minister of Finance or the Minister of Foreign Affairs, as the case may be, may not disclose
(a) information that was produced in or for a government institution, without the authorization of the government institution; and
(b) information produced in circumstances
The Chair: Senators, Minister Toews has other obligations before Senate committees this afternoon. I am delighted that Ms. Emmanuelle Deault-Bonin, Senior Policy Analyst, Public Safety Canada, has joined other officials at the table to take further questions.
Mr. Toews: I want to clarify, Mr. Chair, that I have other obligations but not before another Senate committee. I do not want the record to say that I have disappeared and that I am not before a Senate committee.
The Chair: We do not want you to ever disappear, minister. That is not in the national interest, under any circumstances. Thank you very much for your time.
Senator Joyal: Ms. Levesque, I would like to come back to the procedure on serving a judgment. A Canadian successful in receiving a judgment would incur a procedure to seize a property. Article 31(2) of the Vienna Convention on Diplomatic Relations states:
A diplomatic agent is not obliged to give evidence as a witness.
How would you compel a diplomatic agent from another country that has been the object of a court decision to testify in court and confirm that that property belongs to that government? The Vienna convention is clear that the diplomatic agent is not obliged to give evidence as a witness.
Ms. Levesque: Under Canada's State Immunity Act, the state does not have immunity, but an exception is provided in the act. With this bill, we would have an exception in the State Immunity Act. There would not be immunity. If the court is asking for evidence and the state refuses to provide the evidence, then the court would be in a position to consider the evidence that it has before it, which would be the evidence provided by the plaintiff.
Senator Joyal: That raises the point of retaliation. For example, let us suppose that the Government of Canada has a decision against North Korea and North Korea has property in Canada. The person who received the judgment would seize that property or seek the permission of the court to seize the property. What would prevent the North Korean government from seizing Canadian property or a Canadian interest in Korea as a matter of retaliation, given that it would be outside the Vienna convention?
Ms. Levesque: That would be a matter for the North Korean government to decide based on their legal system, the application of their legislation and the treaties to which they are a party.
Senator Joyal: That is the problem with the bill. You have not answered the question on the procedures under international law for Canada to denounce the Vienna convention in order to open the immunity to criminal litigation in circumstances that are not contemplated in the Vienna convention. Has Canada informed or does Canada intend to inform its co-signatories to the Vienna convention?
I understand the convention is tabled with the Secretary-General of the United Nations to inform its partners that generally Canada has decided to afford itself the capacity to sue certain members of the United Nations in circumstances that are contemplated in the bill.
If any country were to decide to open the convention and not notify its partners, as the minister said, it would be playing a difficult game. The world would not be the same without certain immunities on which the member states rely.
Ms. Levesque: I will have to get back to the committee on this matter. The Department of Foreign Affairs might have some input as to what approach Canada would take.
Senator Tkachuk: Do you allow lawsuits for commercial purposes?
Ms. Levesque: Yes.
Senator Joyal: Has Canada notified the person responsible for the Vienna convention that it is contemplating opening the criminal aspect of the convention?
Ms. Levesque: I am not aware of it.
The Chair: Surely we would all be concerned if the Government of Canada were to give such notification prior to the matter even receiving third reading in this chamber before it goes to the House of Commons. We want parliamentary due process to be respected.
Senator Joyal: We understand that. I am asking what procedure is to be followed. I am sure that Canada will want to evaluate the impact that such eventual notification would have on its partners, and that is what I am trying to understand.
I am not suggesting that Canada give notification before the bill is passed. We do not know if the bill will pass.
I want to know what procedure is to be followed so that we could have a better understanding of what actions can be expected from other countries in response.
Ms. Galadza: I am not aware of the specific process but it is important to know so we can return to the committee with that information in writing.
Senator Jaffer: Senator Tkachuk said we could do a civil process but the Vienna convention applies only to the criminal process. Is that correct?
The Chair: This bill is about civil liability.
Senator Jaffer: We are talking about the Vienna Convention on Diplomatic Relations.
Senator Joyal: The nuance, Mr. Chair, is that we are dealing with state property. We are not in a commercial enterprise. We are dealing with state property and as such, it is covered under Article 31 of the Vienna convention. The convention lists the exemptions that Senator Tkachuk mentioned concerning the commercial activity. It is totally two different sets of activities.
The Chair: It strikes me, in the case of some of the countries we have discussed, there are the equivalents of their Crown corporations that do commercial business in Canada and are subject to commercial litigation for various reasons.
As I understand, the purpose of this bill is to broaden the basis with respect to diluting the state immunity provisions so one can litigate in the event one feels that one has been harmed by that state. At that point, all of the assets that state might have through Crown corporations or whatever in this country would be open to detection and then pursued should a positive judgment be received by the plaintiff in that circumstance.
Senator Jaffer: To add to that, we are asking how the Vienna convention fits into it.
The Chair: Indeed, and concerning that question, officials, to their credit, have offered to bring back some detailed information for us in that respect.
Senator Joyal: I am sure one would ponder the reaction against Canadian interests in the listed countries. Let us show an example. I do not want to mention any specific country because it is against the proper way of doing things, but a country for which assets would be seized in Canada could certainly be tempted to seize Canadian interests, saying it would hold the assets until the litigation with Canada is clear.
The Chair: To hold them in escrow.
Senator Joyal: Exactly. That could happen. Have you evaluated that type of impact?
Ms. Galadza: There is provision in the bill for that evaluation in two respects. The first type of evaluation is in the process of listing the countries and the process that it goes through with the Governor-in-Council to think about, in particular, the impact on the conduct of international relations. Second, there is the evaluation with respect to sharing information about the assets a country might have in Canada and the flexibility given to the Minister of Foreign Affairs and the Minister of Finance not to disclose that information should one minister or both considers it injurious to the conduct of international affairs.
Senator Joyal: In a civil litigation, when you take an action, you are allowed in certain circumstances to seize the property so that your judgment is real. Those are called provisional measures to save your future interest.
Can you confirm that there would be a similar opportunity for a Canadian suing a state, to be able to take provisional measures against that state in the case that the judgment would be favourable to that litigant?
Ms. Levesque: Yes, clause 8 of Bill S-7 proposes to amend section 11(3) of the State Immunity Act. The immunity act at section 11 says that it is not possible to have an injunction or a specific performance against the state unless you have written consent. However, an exception states that the section does not apply to an agency of the foreign state or, as it would be amended, to a foreign state set out on the list.
The Chair: Just so I am clear on that, because it is an important point; if I think I have a cause of action, an aircraft has gone down and a loved one has been lost and I think there is prima facie evidence that country A has supported that terrorist act, I could then move, under the provisions you have just cited, on an injunction basis to seize assets.
Ms. Levesque: Yes.
The Chair: Prior to the pursuit of my other legal activity created by this bill, my legal right to litigate so that those assets are in fact in place should I get a positive judgment and, of course, the other side could argue against the injunction in the normal course, if the government is on the list. That is very helpful.
Ms. Levesque: Then also there is an amendment to section 12 of the State Immunity Act, which talks about the seizure of the property, not in a provisional measure but in a more definite measure.
Senator Joyal: In execution of the judgment.
The Chair: Pursuant to a judgment.
Ms. Levesque: Yes, so both aspects are covered.
Senator Jaffer: I had reservations before I heard from our witness and now I have even more reservations. It bothers me that a country is in one day and out the next day. Are not you creating country profiling? One day we have an issue with a certain country and the next day because of national interests or because other words have been used, that country is "rehabilitated." How will this system work?
Ms. Galadza: It works through a rigorous process of review and assessment by the Governor-in-Council. We do that with terrorist entities under the Criminal Code, and a much similar process would be put in place for listing states.
As far as one day in, one day out, every two years, it would be reviewed and within that context, a listed state could apply to be removed from the list. There are provisions for that request to be executed quickly.
The fundamentals of state immunity are important. The process needs to be rigorous to ensure we do not have a country on the list that does not belong there. That is why that two-year provision is in place, with additional mechanisms as well.
The Chair: Do officials know whether that two-year interval and the assessment process about who stays on the list, who is added to the list or who is removed from the list, is a process to which Canadians are given any opportunity to be supplicants in terms of making their point of view known on the matter? Is that an internal process to government outside the purview of public consultation as far as you know?
Ms. Galadza: That process will be established by the Department of Foreign Affairs and we have not yet even engaged the department in consultation.
The Chair: Is it a process yet to be established?
Ms. Galadza: The process is yet to be established, that is correct, and it would be under regulations that would be published in the Canada Gazette, but the specifics of the process, again, will be established by the Department of Foreign Affairs.
Senator Jaffer: I have a concern. Litigation is slow going and perhaps when you answer you can tell us what happens when a country is removed and litigation is midway. What happens to that process? Perhaps you might reply in writing to that question.
Why do we not take these cases to the International Criminal Court? Under Article 7, paragraph 2 of the Rome Statute of the International Criminal Court, crimes against humanity, why would not we take this to the international court? Why do we want to do this here?
Ms. Levesque: I think an individual could not commence a proceeding before the international court; it would have to be a state. This is allowing the victims to commence proceedings.
Senator Jaffer: We will help the victims, the way I understand it, is that correct?
Ms. Levesque: Yes.
Senator Smith: At first blush, the bill sounds noble and decent and I think well intended. However, I am worried that it may be falling into the platitude category. In other words, it is a great platitude but does it have any relevance to actual fact situations where it fits?
We initially heard — and I think this was genuine — that the 25 years was influenced by Air India, which was 25 years ago, but it is not really relevant because there is no state. Yes, there were some people in Canada from one particular community who mostly come from Punjab and would like to see it become an independent state. However, there is no state involved in any of that.
Ironically, if there is any state that may be culpable in Air India, it is Canada. I suppose under the common law, tort law, it was their negligence. What Justice Major concluded was that if the RCMP and CSIS had been getting along, it probably would not have happened. That seems to fall under the negligence category, at first blush.
I forget what year the Lockerbie crash occurred but if there were Canadians on that flight and it occurred within the 25 years, seeing as Libya is off the list, it would not apply.
It sounds noble and well intended, but I am trying to think of an actual situation to which it would apply. Even if it did apply — say there was some North Korean thing — in these rogue states, you will never get a nickel out of them anyway.
The Chair: To be fair to the officials, the minister did try to indicate that the main purpose of this bill is to be a deterrence going forward and that its applicability to events in the past may or may not be clear.
Senator Smith: By the linkage with Air India, are you establishing a level of expectation that does not really relate to reality? People may be even more disappointed because they think they did not do anything; and if they had had their act together, it would not have happened. All of a sudden this comes out. I just hate establishing high levels of expectation for people if they are not going to relate to reality. Those are just musings; it is not so much a question, but maybe I could get a reaction.
Ms. Levesque: I would like to bring you back to the text of the bill, which proposes to create a cause of action against those who commit the terrorist offence. I would be punishable under the Criminal Code. Also, it is if a foreign state or a listed entity or another person or a person that supports terrorism, so it is not limited to being able to identify a state that would have supported terrorism; it is broader than that. The cause of action that is created here is for both the perpetrators and those who support them.
Senator Smith: That is assuming they have any assets that are in a jurisdiction where you can get at them. If I start thinking about reality situations that fit these criteria, no examples leap to mind.
Ms. Levesque: I think this happens in all claims where there is a risk that the defendant might not have assets.
The Chair: Surely, we have a history of Canada being part of sanction agreements against countries where some of their assets in this part of the world are affected. In some cases, they do not have assets in this part of the world, but that does not mean we do not engage in sanctions agreements with allies against countries that are bad actors on various issues.
To be fair, the same difficulty would also exist in terms of whether there are assets or business activities emanating from Canada that would be relevant to those sanctions. I expect some of that would also apply here.
Senator Wallace: My question comes back to what Senator Smith is touching on, which is the issue of being able to satisfy the Canadian judgment that would arise under this act. As you pointed out, if there are assets against the judgment debtor in Canada, those could be available to satisfy the judgment.
However, I am thinking of a situation where there are known assets in other countries. My comment relates perhaps more to this bill and to the enforcement of judgments' issues generally.
Once having the judgment in Canada, are there countries in the world that we have reciprocal arrangements with where we can enforce a judgment of the Canadian courts? For example, if we knew that a rogue state or an organization that was the judgment debtor had assets in Switzerland, would we have the ability to register that judgement in Switzerland and have it enforced against those assets?
Ms. Levesque: I think so. I am not exactly sure what the rules are in Switzerland, but the principles are that you would ask the foreign court to recognize the Canadian judgment. Afterwards, it can be executed in that country according to their legislation.
Senator Smith: I do not think this bill would help that, would it?
Senator Wallace: No, but it gives the cause of action. It enables the action to be taken and the judgment to be recorded against the perpetrator, and then it can go the next step. As I see it, that would be the advantage of the bill.
Ms. Levesque: Yes; the bill is creating a cause of action for which you obtain a judgment, which will be like any other judgment that can be executed in a foreign country upon recognition by the foreign state or the foreign court.
Senator Wallace: Without the bill, you could not get the judgment in the first place, as it stands today.
Ms. Levesque: Correct.
Senator Baker: This is a very difficult subject and the witnesses deserve to be congratulated for their answers. Upon reflection, if you would like to change any of your answers, you could notify the committee in writing as to the correct interpretation that should have been given.
Most of the litigation regarding the State Immunity Act in Canada has been related to matters other than terrorism. It has been related to torture, for example; there are several cases. Did the department give consideration to expanding the scope of the bill to include those other areas? Did you have much representation in that area?
Ms. Galadza: In previous iterations of the bill, there were representations made to an expansion of the definition. However, the purpose of this act is to deter terrorism specifically. That is its focus, and it is linked in terrorism in the way that the Criminal Code defines it and lists entities and so forth.
Senator Baker: As far as your cause of action is concerned and the words you have used in the English version, are you fairly confident it corresponds to the French interpretation?
Ms. Levesque: We try to be as rigorous as possible. Sometimes there are differences between the two languages, and the courts have a way to interpret both versions in order to best reflect the intent of Parliament.
Senator Baker: The interpretation is usually the most restricted one, is it not?
Ms. Levesque: It depends on the provision that needs to be interpreted.
Senator Joyal: I have a supplementary to the execution of a judgment abroad. Could you look into your file to see if it ever happened that a country was successful in executing a judgment against another country in a third country? That is essentially the question that Senator Wallace asked.
Ms. Levesque: I can certainly look it up.
Senator Joyal: If these are theoretical issues or if there is a precedent we could look and see how it happened.
Ms. Levesque: If we are talking about the execution of a judgment against a state, it would depend in part if the state in which we are trying to execute the judgment is lifting immunity.
Senator Joyal: Under the State Immunity Act.
Ms. Levesque: Under their immunity legislation and for the purposes of the judgment obtained in Canada. While there may be judgments recognized against the state, for example, for commercial activities, I am not sure that a similar fact scenario has been tested in courts in other countries.
Senator Joyal: That is why it seems to me that it is so particular that I doubt there is a precedent. Of course, I might not be aware of it. That is why I am interested in knowing about it.
Ms. Levesque: Yes. At the same time, as I mentioned earlier, the cause of action is not only against the foreign states but also against listed entities or any other person that supported terrorism. You could have a judgment against someone from country A, and you try to execute the judgment in country B because you know that the person has assets in that second country. I am sure that has occurred, but I will confirm.
Senator Joyal: Thank you. My other question is in relation to the minister's statement on page 4, the penultimate paragraph.
Ms. Galadza: The one that starts with, "As you know . . ."
Senator Joyal: Yes. I will read it for the benefit of our listeners:
As you know, lifting a state's immunity is a significant foreign policy decision, one that cannot be taken lightly. That is why we would base such a decision on a rigorous mechanism and concrete criteria.
I want to underline, "rigorous mechanism and concrete criteria."
According to section 83.01 of the Criminal Code, to which the new section 2 of the act refers, a listed entity means a listed country.
"listed entity" means an entity on a list established by the Governor in Council under section 83.05.
Then we go to section 83.05 of the Criminal Code, and it states:
. . . the Governor in Council is satisfied that there are reasonable grounds to believe that
(a) the entity has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity; or
(b) the entity is knowingly acting on behalf of, at the direction of or in association with an entity referred to in paragraph (a).
In Bill S-7, proposed paragraph 6.1(2) to the State Immunity Act states:
. . . the Governor in Council is satisfied that there are reasonable grounds to believe that the foreign state supported or supports terrorism.
What was the "rigorous mechanism" that the minister was referring to? Is it a new mechanism that will be adopted through regulations? What is the "concrete criteria?"
Ms. Levesque: There is the mechanism to be created, but also currently in the act "supporting terrorism" is defined and brings us back to sections 83.02 to 83.04, and then 83.18 to 83.23 of the Criminal Code. That is where we will find what "supporting terrorism" means. The Governor-in-Council will have to determine if there are reasonable grounds to believe. Therefore, on an objective basis, if the foreign state has been providing or collecting property for certain activities — I am looking at les notes inframarginales — making available property or services for terrorist purposes, et cetera. That is what the Governor-in-Council will have to consider in determining if there are reasonable grounds to believe that the foreign state has supported terrorism.
Senator Joyal: In other words, it would be on the same grounds in the Criminal Code. There would not be another mechanism than the one provided in the Criminal Code?
Ms. Levesque: There are other considerations that are in the process of being developed. It will be on the recommendation of the Minister of Foreign Affairs, in consultation with the Minister of Public Safety. In addition to the specific activities referred to in the Criminal Code, there will be other considerations.
Senator Joyal: Yes, because there could be an intelligence element of information that the Minister of Foreign Affairs or the Minister of Public Safety might have.
Ms. Galadza: Section 83.05 of the Criminal Code provides for the listing of a terrorist entity, and Bill S-7 provides for the listing of a state.
What Ms. Levesque has referred to is that in the Criminal Code we find some of those concrete bases that might be used. You are exactly right; there might be additional information as well. That is why the Minister of Foreign Affairs, upon consultation with the Minister of Public Safety, makes a recommendation to the Governor-in-Council to make sure that that full picture is considered.
Senator Joyal: The Governor-in-Council with the contribution of the Minister of Public Safety and the Minister of Foreign Affairs has access to privileged intelligence that I, as a victim, may not have. I take a country to court on elements of information that I base my evidence on to convince the judge, on reasonable grounds, that the country is responsible for the terrorist activity, for supporting it, encouraging it or taking part in it.
I see a great distinction between what I, as an individual citizen, can go to court and prove in court and what the Governor-in-Council can conclude based on reasonable grounds with information that is not accessible to me.
The Chair: Just so I am clear on the question, you are asking about the basis upon which the Crown would seek to add or subtract a country from the list. It may, in fact, have access to proprietary information not available to the general public. It strikes me, however, that Canadians who felt they had been wronged and damaged and sought the cause of action created by this bill, to make their case before the court would have to have their allegations pass the same evidentiary test of the reasonable person in order to be sustained. That is the normal obligation any court applies in any civil matter. This does not purport in any way to alter that.
Senator Smith: You assume the court has jurisdiction to put it on the list.
The Chair: No, putting it on the list is a matter for the Crown, although I, as a citizen, could seek a writ of mandamus to force the Crown to put some country on the list if I felt I had the right to do so. I would do that based on evidence I would advance in support of — my suggestion — a writ of mandamus.
A citizen still has the right to act if he feels the Crown is being incompetent or negligent in not putting someone on the list. A local resident of that country who feels the country is unfairly being maligned also has the right to ask for a writ of mandamus to force them off the list if the Crown does not respond to the normal interaction between citizens and take the advice in that fashion.
Senator Smith: You passed your law exam.
The Chair: I have never set foot in a law school except for the purpose of running for office. The last time I was successful was just down the street at the University of Ottawa.
Ms. Levesque: If I may, I think it might be useful to separate the processes. One is for the Governor-in-Council to consider if there are reasonable grounds to believe that the foreign state supported terrorism. Once that state is on the list, then the plaintiff goes before the court and asks the court, on a balance of probabilities, to determine if the state has supported the listed entity. It is not the same standard.
In order to have sufficient evidence, I would presume that the plaintiff would have access to the same mechanisms as in any other litigation matter to examine and cross-examine the defendant, the listed entity or the individual person who has committed the terrorist activity. Afterward, if the foreign state decides to appear and participate in the litigation, you can examine and cross-examine the foreign state as a defendant. You can also make access to information requests under the Access to Information Act. That would be on a case-by-case basis. It is a matter for the plaintiff to determine the chances of success.
The Chair: I have a supplementary. The principle hold as established by the minister earlier that in a civil matter, which this bill creates the right of, should a state choose not to show up in response to the plaintiff's action because they do not feel they are governed by the jurisdiction, that does not limit, if otherwise compliant, the judge's right to make a decision based on civil liability notwithstanding whether it is a rogue state, as the case may be. The civil procedure does not stop because the respondent chooses not to show. I want that to be clear.
Ms. Levesque: No. My colleague is also pointing to clause 4 of the bill, paragraph 3(b), where the limitation period is suspended if you cannot ascertain the identity of the listed entity, the person or the foreign state. It gives the plaintiff more time to commence the proceedings.
Senator Joyal: I am still puzzled by the difficulty of proving the link between the state and the alleged terrorism act. The government would have access to information to put that country on the list that but I, as a simple citizen, would not have access to all of the intelligence that the government relies on for listing countries. How could an individual citizen prove his case against a country with only the information that appears in the newspaper? I have limited means to establish the link of responsibility between terrorists who have perpetrated the damages and the entity or the state that I allege has sponsored, helped or secured it.
The Chair: Do any of our witnesses wish to help in that respect?
Ms. Levesque: I would think that the matter would be the same in many instances where someone wants to sue a state. They might face great difficulties trying to obtain information. At the same time, as was mentioned, the judge would have to consider the evidence that it has before him or her in determining a balance of probabilities. If there is no counter-evidence to rebut the plaintiff's allegations, the court would consider that.
In addition, the cause of action here is to allow a person to sue the foreign state for the support of the terrorism and not to provide evidence that the foreign state directly contributed to the terrorist activity. The different step is that the victim does not have to prove that the foreign state's participation directly caused the damages suffered.
Senator Tkachuk: This is a counterterrorism bill. Would there not be deterrence in the fact that no state wants to be on that list?
Ms. Levesque: That would be a reasonable affirmation, yes.
Senator Tkachuk: Especially two North American countries, where all of these states like to put their cash. If all civilized countries had laws like this, it would be difficult for terrorists to raise the cash necessary to commit terrorist acts. The uncivilized countries are the ones committing acts of terrorism. The act of states listing countries would help to prevent terrorism in the future.
Senator Joyal: The minister referred to concrete criteria. Will they be published in the form of regulation through the Governor-in-Council or will they be in the form of an internal confidential mechanism?
Ms. Galadza: The criteria, as we mentioned before, include those listed in the Criminal Code. The actual mechanism, how those criteria will be taken into consideration and the process are being developed.
Senator Joyal: You do not know whether it will be made public in the form of regulations?
Ms. Galadza: I cannot say at this time but we can get back to you after consulting with our colleagues to determine their intentions.
The Chair: As a committee, we may have a view as a committee about how that process should be made public. We could express that should we choose to do so. Senator Jaffer wanted a supplementary.
Senator Jaffer: You do not have to answer my supplementary question today. What happens if you are in the middle of litigation and the country is removed? Does our government still participate? How does that work? We know that even the simplest of litigation takes over two years.
Ms. Levesque: It is at the time when you commence the proceedings if the state is listed. It is not necessarily at a time when a judgment is pronounced.
Senator Jaffer: Sorry, I did not mean to cut you off. In the case of national interest, we remove that country. What happens? Does our government continue to support the litigant through the process? I am confused.
The Chair: Take Libya as an example because it was cited earlier. Let us assume that this law had been in place after the Air India bombing, that Canadians had been affected by that act of terrorism and that they had launched an action. Libya was on the list and that litigation took some time. In the interim, Libya was removed from the list. As I understand what Ms. Levesque said, if they were on the list ab initio, the litigation continues. As we all know, and people around this table who are practitioners know better than I, the vast majority of civil litigation ends up with a settlement on the courthouse steps. This is another tool that a victim might use to try to achieve some settlement. Depending on where the country sits in the firmament of civilized countries, it might want to provide a settlement for other public interest foreign relations reasons, whether, as many settlements do, it stipulates that they do not accept any responsibility but as an act of grace they are prepared to encourage a settlement in this manner. Those options would not be cut off by this legislation.
Senator Jaffer: I would like to add to what my colleague has said. If the country did not settle, would Canada continue to support the person who brought the action given that the country is no longer on the list?
Ms. Levesque: The participation of the Canadian government is found in section 12.(1) of the State Immunity Act. It assists when a judgment has been rendered. Once a judgment is rendered, the Minister of Foreign Affairs and the Minister of Finance could disclose the information as set out in section 12.(1) of identifying and locating the assets within the confines of their own mandate in considering the international relations or because either minister believes that it would be injurious to Canada's other interests. I believe that is the extent of the obligations that are in the act for the assistance.
Senator Jaffer: This section bothers me. We have gone through the process, we have arrived at a judgment, and at the time of the judgment, Canada removes that country from the list. Foreign Affairs now says it is injurious to our interests to pursue it any further. What happens then?
Ms. Galadza: A judgment is a judgment of the court.
Senator Jaffer: I understand that. What happens now that Canada will not help them identify the property in their country?
Ms. Levesque: You can still try to execute the judgment as any other judgment could be executed. It is a question for the plaintiff to obtain the information otherwise.
Senator Jaffer: I thought this bill was to help our government to help the plaintiff to identify the property in our country. That is how I understood it.
The Chair: After a judgment.
Senator Jaffer: After a judgment, exactly. That is what I understood; but by the time the person receives the judgment, the country is off the list, for whatever reason, then will our country help the litigant identify the property?
The Chair: Let me run through this and share my own initial response to what is a very thoughtful question on your part Senator Jaffer.
If we are in the process of considering the removal of country A from the list and there was in fact a litigation proceeding through the courts against that country, if I were the Minister of Foreign Affairs, or the deputy minister or the desk officer for that part of the world, my recommendation to the Government of Canada would be that in going through the process of removing country A from the list, can we get a sign of good faith from them so as to help us deal with this legitimate litigation that is in the courts. That would be in the normal course of Foreign Affairs, and one can think of what went on between the British government and others, and the government of Libya with respect to the settlements offered to the survivors of those who died in the Lockerbie process, none of which was provisioned by the courts, and all of which was part of foreign relations activities between them.
Senator Jaffer: I suggest, chair, that when we are looking at observations, that may be an observation we may want to make.
The Chair: By all means.
Senator Tkachuk: That was a point I wanted to make. No government will make this decision in a vacuum. They will be looking at what is transpiring with their citizens against this country and take that into consideration before they proceed. I am sure there will be negotiations as to how that would all work out. Like everything else, they would not just cut them off at the pass so to speak.
Senator Joyal: Is it the intention of the government that the bill be enacted as an act of Parliament to take it internationally in the forum whereby anti-terrorism is discussed among partners of Canada so other states might follow suit on the example of Canada in relation to that bill?
Senator Tkachuk: I think the United Nations has encouraged nations to create acts like this, if I am not mistaken.
Ms. Galadza: Yes, you are right in terms of terrorist financing. Those discussions take place in a number of international fora. How this bill would play into it I cannot say just yet and certainly Foreign Affairs would lead that effort. However, you are correct in saying that one of the intentions of this bill is to show international leadership in combating terrorist financing and state sponsorship to terrorism.
The Chair: FINTRAC, which is part of our instrumental toolkit against terrorist financing, would be one of the organizations that could provide information to assist, as Senator Jaffer has said, the litigant in gaining access to assets that might be the result of a judgment.
Senators, I am sure you will agree that our officials from Public Safety Canada have done yeomen's work in helping us through a complex process. I want to thank all three of you for being here and being forthcoming. We may call you back at some point and we are awaiting some further information from you, which you have undertaken to deliver.
Senators, your steering committee will look at prospects for next Monday when the Senate may very well be in session, at which point we would be meeting. We have already had some requests to appear before the committee and we will give that consideration. Your steering committee will get back to you very quickly about our putative plans for Monday.
Senator Jaffer: May I ask if the steering committee would look at the issues that have come up about witnesses from Foreign Affairs?
The Chair: That is a very thoughtful idea. I will ensure it goes to the steering committee indeed.
Thank you all very much, and if I have a motion for adjournment, I will accept it.
Senator Joyal: So moved.
The Chair: The committee is adjourned.
(The committee adjourned.)