Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 6 - Evidence - Meeting of July 5, 2010
OTTAWA, Monday, July 5, 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 1 p.m. to give consideration to the bill.
Senator Hugh Segal (Chair) in the chair.
[English]
The Chair: Honourable senators, this is the seventh meeting in the Third Session of the Fortieth Parliament of the Special Senate Committee on Anti-terrorism. We are delighted to have two panels of witnesses today. Our first panel is made up of David Sproule, Deputy Legal Adviser from Foreign Affairs and International Trade Canada, DFAIT; and Hugh Adsett, Director, Criminal, Security and Diplomatic Law Division, also from DFAIT. We are grateful to the senior officials from DFAIT for making themselves available on relatively short notice.
Your presence here will help us with questions that were raised at the last hearings of this committee about the linkage between the provisions of Bill S-7 relative to litigation and the list of nominated countries that are allegedly bad actors with respect to the sponsorship of terrorism and how that list might be addressed.
[Translation]
I know you have opening statements. So please make them and then we will ask you questions.
[English]
David Sproule, Deputy Legal Adviser, Director General, Legal Affairs Bureau, Foreign Affairs and International Trade Canada: Honourable senators, thank you for the opportunity to appear today before the Special Senate Committee on Anti-terrorism as you consider Bill S-7, an act to deter terrorism and to amend the State Immunity Act.
I will be pleased to respond to any questions you have on the bill, particularly from a foreign affairs perspective. However, I would like to take this opportunity to speak to two issues that I understand came up during this committee's hearings last week.
The first is the issue of the relationship between the proposed amendments to the State Immunity Act contained in Bill S-7 and Canada's obligations under the Vienna Convention on Diplomatic Relations.
As senators may know, the Vienna Convention on Diplomatic Relations was adopted in 1961 and came into force for Canada in 1966. It largely codifies long-standing rules of customary international law and requires states to take a number of steps to facilitate diplomatic relations, including providing accredited diplomats with immunity from the jurisdiction of the receiving state. Canada has implemented its obligations under the Vienna convention through the Foreign Missions and International Organizations Act.
The law of state immunity, on the other hand, is distinct from the law of diplomatic immunity, and its content derives largely from state practice and custom. Many widely accepted practices, such as commercial activity, are an exception to state immunity. Some of these are codified in a 2004 treaty on state immunity known as the United Nations Convention on Jurisdictional Immunities of States and Their Property. Canada is not a signatory to this treaty, which has been ratified to date by only 10 states.
In general terms, the law of diplomatic immunity provides for limits on the jurisdiction of states over accredited diplomats. The law of state immunity provides for limits on the jurisdiction of states over states and their property. This distinction in international law between diplomatic immunity and state immunity is also found in Canadian law. Section 16 of the State Immunity Act reads as follows:
If, in any proceeding or other matter to which a provision of this Act and a provision of the Extradition Act, the Visiting Forces Act or the Foreign Missions and International Organizations Act apply, there is a conflict between those provisions, the provision of this Act does not apply in the proceeding or other matter to the extent of the conflict.
In other words, in the event of a conflict between the State Immunity Act and the Foreign Missions and International Organizations Act, the State Immunity Act would not apply to the extent of the conflict.
I understand that questions were raised at your last meeting also as to whether the amendments that Bill S-7 would make to the State Immunity Act would be inconsistent with Canada's obligations under the Vienna Convention on Diplomatic Relations. The short answer is that nothing in Bill S-7 would be inconsistent with Canada's obligations under the Vienna Convention on Diplomatic Relations. Canada's obligations under the Vienna convention are implemented under a different act, the Foreign Missions and International Organizations Act, and the proposed amendments to the State Immunity Act would not affect those obligations.
The second question was on the process that would be used for listing states. As colleagues from Public Safety Canada indicated, a detailed examination of that issue has not yet begun. The bill provides that the Governor-in- Council may, "on the recommendation of the Minister of Foreign Affairs made after consulting with the Minister of Public Safety and Emergency Preparedness," establish a list of foreign states that support terrorism, if "the Governor- in-Council is satisfied that there are reasonable grounds to believe that the foreign state supported or supports terrorism."
If the bill passes into law, DFAIT will prepare a list of countries based on a preliminary assessment of whether countries have been known to provide support to an entity listed under the Criminal Code.
An intelligence analysis process would be initiated to assess each case against the strict criteria set out in the terrorism provisions of the Criminal Code. Proposed new section 2.1 of the bill provides that the acts or omissions that constitute state support for terrorism are those listed in sections 83.02 to 83.04 or 83.18 to 83.23 of the Criminal Code. These acts include financing terrorism and participating in or contributing to the activity of a terrorist group.
Foreign Affairs and International Trade Canada would be the central repository for collecting and analyzing the information. In parallel to the intelligence analysis, DFAIT would also identify potential risks and consequences associated with proposed listings, including those pertaining to Canada's diplomatic relations with the state in question and to foreign policy and economic considerations and other Government of Canada priorities. In conducting this assessment, DFAIT would consult with other interested departments.
Given that this bill is still at a preliminary stage, DFAIT has not yet begun the research and analysis that would be required to make these recommendations to the minister.
The Chair: Thank you.
Mr. Adsett, did you want to add to that, or will you only help with any questions that come up in your area of responsibility?
Hugh Adsett, Director, Criminal, Security and Diplomatic Law Division, Foreign Affairs and International Trade Canada: I will be happy to help with questions.
The Chair: That is very much appreciated.
I have a generic question about the way in which the list would be prepared. If I were the ambassador for the Kingdom of Saudi Arabia here in Ottawa, while there may be a series of stories about various parts of Saudi society that may or may not be supporting terrorist activities in other parts of the world, I would have a very strong view about my country never being listed on any formal list that Foreign Affairs and International Trade Canada might have.
How might I make representations in that respect, if I heard that there was some risk of that happening unjustifiably, in my view as the ambassador?
Second, would the Canadian public who have various concerns from various communities about how the list is put together have a chance to make representations on the final content of the list? Clearly, one's right to litigate under the provisions of the bill before us today is severely constrained by whether or not there is a country that is on that list and, therefore, is subject to potential litigation on the provisions of this law.
Any advice or counsel you could offer, I am sure, would be of great value to the committee.
Mr. Sproule: Thank you, Mr. Chair. Let me begin by reiterating that the modalities of this review mechanism are still to be worked out. Therefore, it would be premature for me to speculate in too much detail.
With respect to the first consideration that you mentioned, namely, input about Saudi Arabia and their views, presumably it would include our experts in the department, our geographic divisions, who are in constant touch with the various governments that they look after to advise and provide that type of background information.
The Chair: Could I ask, again, where you think you would find yourselves in the event that the Islamic Republic of Iran, which protests directly that it has no linkage with either Hamas or Hezbollah, other than a spiritual one, but is viewed by our own security services as being in some way connected with the support of terrorist activities or groups that are on our Canadian list of terrorist groups, were placed on that list? Do you have any sense of how that might be addressed? Clearly, their diplomatic representatives here would take a strong view that it would be an act of some hostility to define them as formal sponsors of terrorist activity one way or another.
With respect to the other countries that will fall in and out of that category over time — and if you do not have an answer because the process has not been elaborated, that is fine — is it fair for us to conclude, as members of this committee, that advice from this committee in its report on how that process might operate would be of value to the public service in this circumstance? Would that be an inappropriate and wildly optimistic conclusion on my part?
Mr. Sproule: Advice from Parliament is always valuable and welcome. We would welcome any advice and recommendations that this committee might have.
The Chair: Thank you, Mr. Sproule.
Senator Jaffer: I wish to thank both of you for coming here. I have some preliminary questions. If I do not finish, maybe I can go on the second round.
Did I understand you correctly to say that, for some of the questions that we raised last week on the list and other matters, not enough research has been done for you to be able to give us a response? For example, what are the criteria for forming the list? Did you say that not enough research has been done for you to tell us today what the criteria would be?
Mr. Sproule: We need to elaborate the modalities for the consideration of states that could possibly be part of that list. Therefore, it is premature for me to speak at this stage about what those might be because they have not been developed.
As I just said to the chair, we would welcome advice from this committee if it has views about how we might go about our work within the parameters of what has already been set out in the bill, namely, that a recommendation from the Minister of Foreign Affairs would be made in consultation with the Governor-in-Council and his colleague, the Minister of Public Safety.
Senator Jaffer: We have been given this bill before us, yet you are saying that you have not thought out how you will put the list together. I find that difficult to rationalize. Is that what you are saying?
Mr. Sproule: We know that the main criterion is that there must be reasonable grounds to believe that the state has been in support of terrorism. However, decisions about the modalities for that are for our minister to determine. We will certainly make recommendations to him about how he wishes to go about consideration.
Senator Jaffer: Reading the bill carefully, when it comes to the list, I understand that you look at the first ground that you talked about, namely, aiding terrorism. You then ask the departments if that country should be listed. Am I correct?
Mr. Sproule: We would utilize resources available in our department, in our experience.
Senator Jaffer: No, not your department. Clause 10 states that in exercising the power referred, you would also ask the other departments whether the country should be listed.
Mr. Sproule: It specifically sets out that our minister would consult with the Minister of Public Safety. In that process, we would draw on information that we would have, as a government, on activities of the state that is under consideration.
Senator Jaffer: You would also look at whether it would be injurious to Canada's international relations, is that right?
Mr. Sproule: Yes, indeed.
Senator Jaffer: There are some criteria already set out.
Mr. Sproule: That is a consideration, yes.
Senator Jaffer: Victor Comras, formerly from the U.S. Department of State, testified at our Legal and Constitutional Affairs Committee on this issue. He spoke about the list of designated countries ending up undermining the U.S. legislation. He said that we should not go there, that we should not enact this legislation. His exact words were as follows: "If we had to do it over again, I have no doubt we would have done it without a list." He then went on to say, "Please learn from our lesson. . . . do not make the same mistake."
These are not new remarks to you; you know these remarks. What do you have to say?
Mr. Sproule: Senator, I am a public servant. My job is to implement the policy that my government wishes.
Senator Jaffer: I understand; you are right.
Mr. Sproule: I would leave a response to that question perhaps to one of our ministers.
Senator Jaffer: You are right. We will get the minister to come here. You are absolutely correct. I wanted you to say that so I could tell the chair that we need the minister to come. Thank you very much.
My last question is about treaties. I raised the Vienna convention, and you gave a thorough answer, so I will not ask you about that. Are there any other treaties that would be affected by this legislation?
Mr. Sproule: Not to my knowledge, but I will ask my colleague in case I have omitted something.
Mr. Adsett: To follow up on Mr. Sproule's answer, not to my knowledge either; I do not know of any treaties to which Canada is party that would be affected by this legislation.
Senator Wallin: Just a quick point on your reference earlier to modalities. When you make reference to modalities, do you mean that you would deal with this through regulation, as most other laws are dealt with?
Mr. Sproule: I was referring to the procedures that would be set up for consideration: in the form of a committee in terms of who would be consulted with when elaborating a list; all the procedures that would be in place before a minister made a formal recommendation to the Governor-in-Council.
Senator Wallin: It is before the fact, not after the fact; that is what you are talking about?
Mr. Sproule: Yes.
Senator Wallin: The regulation would spell out how, when, where and why.
Mr. Sproule: Yes; that is, once we have a Governor-in-Council decision.
Senator Wallin: What is your assessment, if you have done one as such, of the purpose of this? I know it seems pretty clear that it is compensation for victims. There is a sense of redress or closure or maybe even empowerment. However, there is also the second strand, which is that this is a way to get at those that fund terrorism, be they states or whatever, and the funding of terrorism in general. Is that reason enough, on its own merit, to proceed with some form of legislation that would capture that?
Mr. Sproule: I see this legislation as first and foremost a deterrent to states who may contemplate such activities. I think that is set out in the bill itself as a primary purpose.
Senator Wallin: Anything else would be what?
Mr. Sproule: There are other secondary purposes, too. I think a decision has been made by the sponsors of the legislation, and their purpose would also be to ensure that that was backed up with some concrete action.
Senator Wallin: Do you think this actually addresses the issue, though, of the financing of terror, those who have money, whether it is state-sponsored or indirectly state-sponsored through the acknowledgement or the acceptance of drug lordism or whatever it may be?
Mr. Sproule: We have one other example, an international example of a country that has similar legislation. There have been judgments of considerable amounts in favour of the plaintiff, although my understanding is that only a small proportion of that has been realized as compensation.
Senator Wallin: Is your department concerned, in terms of your assessment of this, about retaliatory action or that others may then, in turn, point to Air India or the Toronto 18, saying that we are just as subject to this as anyone else?
How has that been assessed in terms of looking at the legislation?
Mr. Sproule: Among the criteria that can be considered by our minister, in consultation with the Minister of Public Safety, are considerations such as you set out; namely, the effect it might have on our diplomatic and commercial relations, our security stance, and so on.
Senator Wallin: Has this been considered and accepted as reasonable?
Mr. Sproule: There is the opportunity for the minister to consider all those factors.
Senator Furey: Thank you, gentlemen, for coming today.
I have a couple of questions. I want to talk a little about the troublesome listing provision that seems to be causing some confusion.
Before we go to that, I want to draw your attention, Mr. Sproule, to clause 4(4) of the bill, which speaks to an arbitration clause, basically. The language is not mandatory, as you can see, but it sort of gives, I would suggest, the defendant country something to hang its hat on. Lawyers in the room will know that when you go banging on a judge's door, if you are looking for certain types of remedies, one of the first questions you will be asked is whether there are other remedies available to you that you have not exhausted, especially certain types of remedies.
Why is this clause there? Is it because of any foreign relations issues that Canada has with other countries, or is it a result of contractual relationships that we may have or treaties that we may have signed? Can you shed any light on that?
The Chair: If I could, Senator Furey, we did ask this precise question in your absence. The clarity we received from the officials from the Department of Justice Canada was that the mere fact that one has launched a request for arbitration would not impede someone from seeking litigation. That is a little off topic.
Senator Furey: I read that, chair, but I want to delve a little deeper into this.
The Chair: By all means. I am sorry to interrupt.
Mr. Sproule: Yes, it is permissive, not mandatory. I believe the thinking was exactly what was set out in the provision itself, which is that it would provide states with an opportunity to settle lawsuits beforehand, particularly for acts that may have happened within their own territory.
Senator Furey: That is one way of looking at it, and I agree it can be looked at that way. I perhaps have more of a complicated way of looking at it. I see it as being used by states as a stumbling block, a delay tactic, and another way of not addressing the issue that plaintiffs raise. However, that is probably a debate that could go on forever.
On the listing matter, I cannot see, for the life of me, how we could exclude government or DFAIT or the Governor- in-Council when it comes to creating a list of countries under this act. As you know, some critics of this act — and if not exactly this act, certainly other iterations of this act — have said that a listing provision by government will tend to politicize, if not overly politicize, the process. We already have such an arrangement, as you pointed out, in section 83 of the Criminal Code with respect to listing.
What manner of chaos will we create if we do not have a listing provision, if we go to some of the suggestions that others are making, such as let us deal with countries that do not have extradition treaties with Canada, for example? If you have an extradition treaty with Canada, you will not be listed. If you do not have an extradition treaty with Canada, you will be listed.
What manner of chaos will this create with respect to our whole foreign affairs policy?
Mr. Sproule: I will begin by addressing specifically the extradition treaty existence as a basis for which to establish.
As you probably know, senator, there are many countries with which we do not have extradition arrangements, many of which we consider to be countries with similar values and strong legal systems. The reasons for not having extradition treaties with certain countries are numerous. It certainly is not restricted to the fact that we have legal systems that are very different or that we would not see as the same as ours or of the same value or level as ours.
Given the many reasons extradition arrangements have not been made with many countries, separate and apart from considerations in this case, we do not believe that that would be the best basis upon which to judge which states to include and which states not to include on a list.
Senator Furey: Bypassing the Governor-in-Council when it comes to listing, when I looked at some of the other commentaries, could only mean that judges all across the country would be making the decisions with respect to claims that were brought to them. In other words, judges across the country would be making decisions with respect to who will be on a terrorist list and who will not. What sort of havoc would that create with our foreign affairs policy?
Mr. Sproule: I am a lawyer, and I am comfortable with the judiciary. However, I am also a public servant, so I am also comfortable, of course, with our Governor-in-Council making those decisions.
Senator Furey: I was not meaning to cast any aspersions on our judiciary. However, we would essentially have judges in different parts of the country making decisions based on completely different sets of facts that I think, in the end, would seriously impact on our foreign relations with the countries that have been dealt with. The act will have no guide in it for the judges to use, that I can see, that would create any consistency.
It is not really a question of whether or not the judges have the competence to do it — they certainly do; however, the application of it would have no consistency. That is the issue I am trying to get at.
Mr. Sproule: I think most commentators and observers would see something as important as this as a Crown prerogative.
Senator Furey: In response to Senator Wallin's question about the purpose, you mentioned that really the nuts and bolts of this bill are to serve as a deterrent for countries. From what I have seen and heard from the people who are involved in this, I think they would much prefer to see this as actually creating a remedy for victims, and that that should really be the sum and substance of it. Do you not see it that way?
Mr. Sproule: I see it that way, but my answer was predicated on the first important aspect and purpose that I saw. However, you are quite right; that is another purpose of the bill.
Senator Tkachuk: My question is a follow-up to Senator Furey's question on extradition treaties with Canada and those countries with which we do not have extradition treaties. You mentioned that many countries have similar values and legal systems. How many would there be?
Mr. Sproule: How many countries with similar values and legal systems are there?
Senator Tkachuk: Yes, and those with which we do not have an extradition treaty?
Mr. Sproule: I thought I had heard that there are more than 100 countries, but I could be wrong.
Senator Tkachuk: With how many do we not have an extradition treaty?
Mr. Sproule: I think dozens. For example, we do not have an extradition treaty with Ireland.
Senator Tkachuk: I understand that. With how many do we not have an extradition treaty?
Mr. Sproule: We do not have an extradition treaty with 110 countries.
Senator Tkachuk: Of those, how many countries have similar values and legal systems to Canada?
Mr. Sproule: Senator, I do not know.
Senator Tkachuk: Outside of maybe Ireland, who else?
Mr. Sproule: Australia; there are others, but I do not know them.
Senator Tkachuk: I am asking because this is important. Senator Furey posed the question, and you cannot dismiss it with a blank answer. If there are many others, then how many are there?
Mr. Sproule: Senator, I just would offer that it would be complex.
Senator Tkachuk: There are probably not that many; that is what I am trying to get at. I would like to see that list of 110 countries.
Mr. Sproule: We would certainly be pleased to provide you with a list of countries with which we do not have extradition treaties.
The Chair: It is the countries with whom we do not have extradition treaties that would, should they either meet or fail other criteria, be eligible to be put on the list of countries that could be sued under the provisions of Bill S-7; is that correct? If they had an extradition agreement with us already, then Bill S-7 would not apply. One could apply under normal criminal procedures for access to individuals and whatever in those other jurisdictions. Do I understand that to be the case?
Mr. Sproule: The proposal did not make it into this bill, but my understanding was that, if we had an extradition treaty with that country, they would not be eligible to be considered to be put on the list.
The Chair: That is on a prima facie basis, unless there was evidence to the contrary.
Mr. Sproule: That was my understanding. Perhaps the authors of earlier bills could speak more authoritatively.
Senator Tkachuk: That would be the rationale for not having it in the bill. I am trying to further Senator Furey's query because I did not think the answer was adequate. I am trying to figure out if the reason that we do not have the question of extradition as countries that could be sued because we do not have an agreement with them, and you said there were many countries that have similar values and legal systems. I took that to be the reason for that being put aside and that we are now at a list system. That is why I asked the question about how many would there be that would have similar legal systems and values to us.
Mr. Sproule: Another explanation that I provided was that there may be other reasons that we do not have an extradition treaty with a particular country.
Senator Tkachuk: That could be, but I will wait for the list of 110 countries; I will look at that first.
The Chair: We will accept the undertaking to provide us with that list at your earliest convenience. We appreciate that.
Senator Dallaire: Senator Tkachuk queried countries that have similar legal systems, and that is fine, but values might be more difficult. You used Ireland as an example. I assume you are not using Northern Ireland as your example because surely that is not necessarily the methodology that we would want to use as criteria for solving problems in our country, although it is moving and advancing progressively.
You are deputy legal adviser, correct?
Mr. Sproule: Yes.
Senator Dallaire: In that capacity, you are competent to respond to a query directed to the effectiveness of this legislation with respect to its application to our diplomatic activities, are you not? As you said yourself, as a public servant in that role, you can answer a direct question to that specific point.
Mr. Sproule: Senator, the decision has been made that this legislation will go ahead. I am not sure if my views on whether it will be effective or not are central anymore. I will do my best to ensure it is implemented as intended and as effectively as possible.
Senator Dallaire: By the time it has left the department or the department as part of the matrix that was inputting into this legislation, your input was done at that point and the government has decided to pursue this legislation. You are now here providing us with clarification. However, is that clarification as to your input into that legislation at that time?
Mr. Sproule: I am providing you with clarification into the effects and the possible considerations when this legislation becomes law.
Senator Dallaire: Right, which is what you were doing when it came across your desk; is that correct?
The Chair: I will interrupt if I may, senator. I think it is completely fair to ask a public servant to offer a view as to those instruments that are before us and the way they might operate. As to the advice they may have given in confidence within the department, it is unfair to ask them to share that with us because it puts them in an awkward situation.
Senator Dallaire: Thank you for that, and we will leave it at that.
I wish to use an example. We were both in Cambodia in 1992. If this legislation is implemented, what would happen to the people who were tortured and had their assets taken away at the time by the Khmer Rouge and who are living now in Canada? Questions remain about the Khmer Rouge and Cambodia and the collection of funds and so on. Would a person be able to use this legislation to go after the Cambodian government or to try to go after whatever is left of the Khmer Rouge structure? What would they go after?
Mr. Sproule: Torture is not specifically set out in this bill — it is terrorism, or the support of terrorism. Many would say that a state decision to utilize torture might be part of a more general act of terrorism or that maybe the use of terrorism included torture by one of the entities listed in the legislation.
On the more general question, without talking specifically about any one country, if a state was put on the list, then at that point it would be possible for an action to be brought in a Canadian court. It would also be possible, if there was a finding in another court about support for terrorism, to seek to have that judgment enforced by a Canadian court.
Senator Dallaire: If an entity is collecting funds in this country for terrorist activities yet the terrorist activities are occurring in their country, that would not involve us because it is not terrorism specifically against this country; is that right?
Mr. Sproule: There would have to be a substantial connection between the individual seeking redress — that is, Canada — and the cause of action. If there is, that would give that person the opportunity to bring an action in Canada.
The Chair: If that person is living in Canada as a permanent resident, is that a sufficient connection in your understanding of the law?
Mr. Sproule: It is not sufficient in and of itself, but it would be a consideration.
Senator Dallaire: I would like to return to the listing process because it is approved when the government implements the legislation.
Is there a methodology by which the criteria and, ultimately, the list would be reviewed by a parliamentary committee or a parliamentary entity that has been created to monitor this application of an entity that has significant ramifications in regard to our position internationally with these other countries?
Mr. Sproule: As the bill now stands, the review is by the Minister of Foreign Affairs, no less than every two years.
Senator Dallaire: It is by the minister only, so Parliament would not be in any way involved in either setting the criteria or reviewing the list; is that correct?
Mr. Sproule: I am not aware of a provision for parliamentary review in the bill.
Senator Dallaire: I wanted to bring that specific point up.
This bill has a great deal to do with compensation for people who have been injured or considered potentially injured through the processes of terrorism.
Are we pursuing the concept of compensation to victims as policies through DFAIT? Are we actually looking into that?
Mr. Sproule: I can only comment about international trends in this regard. The position in which victims who have suffered at the hands of individuals or governments find themselves is being taken into consideration more and more. For example, the International Criminal Court now has a very elaborate system to address the problems of victims, and even in the court itself, victims can make representations in this regard.
I would say, in general terms, that the role of victims is receiving increasing attention in international fora and tribunals.
Senator Dallaire: Does this bill not move down that road, in a sense?
Mr. Sproule: In a general sense, you can say that there is increasing recognition that the acts this bill seeks to deter should not go with impunity, and part of that is to give an opportunity to victims to bring forward legitimate cases where they have been treated badly.
Senator Dallaire: If we had added to this legislation — Bill C-35 had a some of it — torture, genocide and crimes against humanity, would that have made it more complex or simply more complete with respect to applying this legislation to Canada's perspective internationally?
Mr. Sproule: I would need to examine more carefully the Criminal Code to see the various aspects of terrorism. However, those are considerations that would go into a determination of whether or not there was support for terrorism.
Senator Dallaire: That would be within the definitions of torture.
Mr. Sproule: On this question, I had better defer to my Department of Justice colleagues who can speak to section 83 of the Criminal Code with more authority.
Senator Dallaire: It is terribly underfunded, and you can tell your colleagues that I think so.
Senator Furey: Mr. Sproule, I want to go back to the arbitration clause, clause 4(4) of the bill that says the following:
The court may refuse to hear a claim against a foreign state under subsection (1) if the loss or damage to the plaintiff occurred in the foreign state and the plaintiff has not given the foreign state a reasonable opportunity to submit the dispute to arbitration in accordance with accepted international rules of arbitration.
Now, I understand your point of view that the best possible interpretation of that clause is that it is put there to give foreign countries an opportunity to resolve any issues with plaintiffs who are claiming that they are victims of terrorist acts.
However, I delved a little deeper into that particular section as I was not totally satisfied with the response last week. My view of that particular section is that it is more open to be used and abused by foreign states to stymie, delay and put off plaintiffs, and if it is open to that type of interpretation, why is it there? Does it really need to be there?
Mr. Sproule: The issue is, as you suggest, whether the provision provides a reasonable delay or whether it would, in effect, prevent litigation. Our view is that it would provide for reasonable delay.
Senator Furey: It allows for unreasonable delay — if you were a plaintiff, it would probably be unreasonable delay.
Again, I support the purpose of this bill, which is to try to make life as least complicated for plaintiffs as possible. I do not see it as anything other than complicating a process that will be complicated enough anyway. At the end of day, we have issues of compensation that we have not even dealt with and that plaintiffs will have to deal with on a whole different claim that does not even come into our discussions.
I wonder why it is there. If a country is inclined to resolve an issue through arbitration, would it not be inclined to resolve the issue at first instance once the matter has been put to that country? You go to arbitration only if you think you have something to arbitrate.
Mr. Sproule: It is limited to actions that take place in that country, too, and I would think that what would prompt this would be a formal initiation of an action in a Canadian court to get the attention of the state involved.
That state would presumably look very carefully at whether or not it would be advantageous to try to settle with the alleged victim before it goes through a Canadian court process, which could be difficult for that state as well.
Senator Furey: In the absence of international obligations requiring Canada to put something such as this in a bill, would it diminish the bill at all if we took it out, in your opinion?
Mr. Sproule: I will let our ministers respond to that. That is a very central policy consideration.
[Translation]
Senator Nolin: I would like to go back to one of your answers to Senator Tkachuk.
I want this to be clear. You are saying that there are no criteria for creating the list provided for in Bill S-7. So, the whole issue of listing a state with which we have an extradition treaty has nothing to do with Bill S-7. Is that your answer?
[English]
Mr. Sproule: The decision about whether or not a country is to list would certainly rely on the minister's recommendation in consultation with his colleague and would rely on a careful study of the Criminal Code provisions that are applicable, mostly in section 83. It would also rely heavily on information that the minister received from other parts of the government about the activities of the state involved. They would rely on many considerations and considerable information before coming to any conclusion.
[Translation]
Senator Nolin: The fact that we have an extradition treaty with a foreign state could be a consideration, but it is not set out in Bill S-7 as a consideration that the minister must take into account in order to convince himself and his cabinet colleagues that the name of a state should be added to the list.
[English]
Mr. Sproule: The existence or non-existence of an extradition treaty per se is not a consideration that is set out in the bill.
[Translation]
Senator Nolin: Could you provide me with the list of the states with which we have an extradition treaty? I should know it by heart but that is not the case.
[English]
Mr. Sproule: Again, senator, I have to emphasize the criterion set out for the minister in his recommendation to the Governor-in-Council is whether there is reasonable grounds to believe.
[Translation]
Senator Nolin: You understand our interest in that issue since judges will have such latitude when it comes to adding a state to the list under paragraph 4(1)(b). There can be some confusion after a number of years of case law under Bill S-7. That is why the evaluation criteria to be used by the Governor-in-Council are so important.
There is both a prerogative and a judge's request to enforce the act. We are concerned, or at least I am, about these two aspects existing at the same time.
The Chair: Once the bill is passed, what administrative policies could the Minister of Foreign Affairs use to make recommendations on the list itself and its contents? When the time comes to sign treaties with one country or another, that key question must be asked.
The witness points out that this has nothing to do officially with the content of the act as such right now. But as a committee, it is very important for us to be up to date on the administrative procedures or policies that the department intends to issue, since these are crucial for implementing the bill that was referred to us. We are supposed to study the content of a bill in parliamentary terms, but what actually happens after passing a bill involves many unexpected elements.
Senator Nolin: My concern stems from the fact that, if there were only clause 4(1)(a), that is, a list established under royal prerogative by the Governor-in-Council, I could live with that, especially if it is revised every two years and it is published.
I have a problem with the co-existence of two types of lists, the one in clause 4(1)(a), which we have just talked about, and the one in clause 4(1)(b), since judges want something solid to be able to make decisions based on specific criteria.
The Chair: I will give the witnesses a chance to answer.
[English]
Mr. Adsett: Going through the bill and the criteria set out in the bill, the bill creates the possibility for a list of states to be created. The reference in clause 4(1)(b) to the foreign state has to be read back to the list of states that is created by the Governor-in-Council. It is not the judiciary that creates the list of states; only the Governor-in-Council creates the list of states.
The only other reference to a list in this bill is the listed entities that appear in the Criminal Code, but that list of entities is created through the process for creating listed entities under the Criminal Code, if that helps to clarify the response. The list of states that is to be created under Bill S-7 is not a judicially created list of states, but a list of states created by the Governor-in-Council.
[Translation]
Senator Nolin: Why is there a paragraph (b) in clause 4(1)?
Mr. Adsett: Are you asking why there are two lists?
Senator Nolin: In clause 4(1)(b), it is written: "foreign state" or "listed entity or other person." Why does the word "listed" not apply to "foreign state"?
[English]
Mr. Adsett: Perhaps the best way I can describe that would be that that paragraph sets out the cause of action and describes the breadth of the cause of action itself in clause 4(1)(b). This act lifts state immunity in certain circumstances, in the circumstances described in the bill itself. In clause 4 is a description of the cause of action against a foreign state, and clause 4(1)(b) describes the breadth of the cause of action. In the next part — the question of whether a state can or cannot be sued — you have to look to see if the state is on the list. The two issues are separated conceptually in the bill itself. The first question is what is the cause of action, and that is drafted in 4(1)(a) and (b). That describes the legal basis for the cause of action and how it is defined. Any person who suffered loss or damage inside or outside of Canada as a result of an act or omission that would be punishable under Part II.1 of the Criminal Code, the terrorism provisions of the Criminal Code, and it describes who that cause of action can be brought against. In 4(1)(a), it is a listed entity or person, and in 4(1)(b) it is a foreign state or listed entity or other person. Like listed entities or persons, you could already potentially sue foreign states in Canada; however, with foreign states, you have to go that next step and lift their immunity. Therefore, that provision appears elsewhere in the bill and provides for immunity being lifted for those listed states. It is simply a way to distinguish the elements. The element in clause 4(1) deals with the cause of action — how to describe it — and the second element is dealt with elsewhere, which is which states can be sued, and those that can be sued or, more accurately, those whose immunity is lifted are those who appear on this list.
[Translation]
Senator Nolin: So, are we going to get the list of states with which we can sign treaties?
[English]
Mr. Adsett: Yes.
Senator Furey: You talked about lifting immunity of foreign states. I find that confusing. Can you explain what you mean by that in this context?
Mr. Adsett: The State Immunity Act provides that foreign states have immunity under Canadian law, and it also provides exceptions in certain instances. For example, there is an exception for commercial activity, an exception to the general principle of state immunity.
Senator Furey: There can be foreign states listed that have no immunity or are not covered by the immunity act; is that correct?
Mr. Adsett: Bill S-7 provides that foreign states can be put on a list and their immunity lifted for the purposes of a law suit that would be brought under Bill S-7 itself. The bill describes the cause of action for the law suit that would be brought, and then for those states that are listed, the immunity they would otherwise have under the State Immunity Act is lifted for the purposes of that cause of action.
Senator Furey: Maybe I am just not hearing you right. To clarify, I think you are saying that those foreign states that have immunity would have it lifted.
Mr. Adsett: That is correct.
Senator Furey: There are foreign states that can be listed to which this does not apply.
The Chair: Senator Furey, what states with whom we have diplomatic relations would not now be governed by State Immunity Act regulations?
Senator Furey: I am just asking the witness to clarify the comment that all foreign states that would be listed on this would have to have their immunity revoked first. I am qualifying that by saying that there are foreign states that have immunity under the State Immunity Act.
Is that correct?
Mr. Adsett: Senator, all foreign states under the State Immunity Act have immunity as the State Immunity Act stands.
Bill S-7 would allow for the creation of this list that would, within the scope of the cause of action that is defined in the State Immunity Act, allow for the lifting of the immunity of those states that are on that list. It is the states on the list whose immunity would be lifted. Does that clarify it?
Senator Furey: Yes. Thank you.
The Chair: Thank you, Mr. Sproule and Mr. Adsett for giving of your time today.
Colleagues, our next witnesses are, from the Canadian Coalition Against Terror, C-CAT, Mr. Aaron Blumenfeld and Ms. Sheryl Saperia, and I believe Mr. Blumenfeld will make an opening statement.
We also have, from the United States via teleconference, Mr. Victor Comras, who is a former international monitor at the United Nations responsible for overseeing the implementation of the UN Security Council measures against terrorism and terrorism financing. Prior to his work at the UN, Mr. Comras worked for the U.S. Department of State for 35 years in various capacities and appears to have survived that experience in good health and good shape, which we view as a success in and of itself.
We are pleased to have witnesses from the Canadian Coalition Against Terror with us. C-CAT is a strong citizen advocacy group that has been working on this issue. C-CAT is a non-profit organization and was active in support of a prior iteration of this bill, which was considered by a prior Parliament.
Please proceed with your opening statement, Mr. Blumenfeld.
Aaron Blumenfeld, Counsel, Canadian Coalition Against Terror: Thank you, Mr. Chair, and good afternoon, honourable senators. Thank you for the opportunity to be here.
The Canadian Coalition Against Terror is made up of Canadian victims of terror and professionals involved in the fight against terrorism. Our members include Canadian terror victims of the Air India bombing, the 9/11 attacks, the Bali bombing and attacks in Los Angeles, Israel and elsewhere.
I have practiced commercial litigation since 1993 with Borden Ladner Gervais LLP in Toronto, and I will bring some of that experience to bear in my remarks.
I will address three issues: first, the nature of terrorism; second, I will provide a legal framework for the bill; and, third, I will set out why Bill S-7 is, in principle, good public policy.
The bill's conceptual framework starts with the underlying principle that money is the lifeblood of terrorism, and, therefore, the sponsorship of terrorism is an integral component of the terrorist economy, which has an annual turnover of many billions of dollars.
The money spent on terrorist attacks is just the tip of the iceberg of the terrorist economy. 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 and religious ideologies.
Osama bin Laden, for example, spent hundreds of millions of dollars on infrastructure and regime support in Afghanistan and the Sudan, including building a highway from Khartoum to the Red Sea. He did this to ingratiate himself with the local populace and leadership, which gave him safe haven while he planned attacks elsewhere. He had a network of financiers who transferred money to his organization through charities and non-governmental organizations, NGOs, to pay for this. Without a sanctuary from which to organize and recruit, al Qaeda could not have launched its attacks.
Bill S-7 uses the definition of listed terrorist entity found in sections 83.01 and 83.05 of the Criminal Code. There are currently 43 such listed entities, and many operate in ways similar to al Qaeda.
In some cases, terrorist groups funded by certain states gradually take power in parts of other states. Such state sponsorship of terrorism is fundamentally an attack on another nation's sovereignty, which has legal implications, as we will come to.
Thus, terror financing is inseparable from and essential to the terrorism itself. Therefore, if you can cut off the money supply, the terrorist groups will wither away, and Bill S-7 aims to do that in Canada.
With respect to the legal framework for the bill, there is presently no legal recourse in Canada for holding state sponsors of terror liable for their actions abroad. 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.
However, past assumptions about 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. However, as mentioned, under our current law, those state sponsors benefit from the immunity and avoid any legal accountability in Canada. The law prevents victims from responding through our courts. This is truly an uneven playing field.
The premise for 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 integrity of the international public order, in effect an attack on all states, because they undermine that order. Thus, terror sponsorship is an attack on society as a whole that transcends the impact on the immediate victims. Therefore, a foreign state does not deserve immunity when it sponsors terrorism.
As you know, and as the previous witness indicated, the law recognizes that state immunity is not absolute. There are several exceptions in clauses 4 to 8 of the bill, such as the right to sue foreign states in Canadian courts for breach of contract and personal injury in Canada. Such claims against foreign states routinely come before our courts, and they generally do not even make the news, and any state can be sued.
If states are not immune from suit in their commercial undertakings, it does not make sense that they should be immune for sponsoring terrorism. In summary, Bill S-7 is a necessary and modest exception to state immunity to address the new realities of the 21st century.
I now wish to now summarize three reasons why the legislation is, in our respectful view, good public policy and why it will have a positive impact. First, it works, and it will help to deter future terrorism by filling in a gap in the present law; second, it helps reframe the public debate on terrorism by recognizing the real victims, which can also help catalyze other government actions; third, it can help give innocent victims a sense of accountability and finality. This is the right thing to do.
As to the first point, this type of legislation is not a silver bullet that on its own will stop terrorism. However, together with criminal prosecutions and regulations directed at freezing the flow of money associated with terrorist groups, it can be an essential part of a framework that will deter terrorism.
The original inspiration for this type of legislation was the U.S. civil rights legislation that was used by groups such as the Southern Poverty Law Center to get judgments against the Ku Klux Klan, or KKK, and its leadership. It was not criminal proceedings alone that stopped the KKK. Rather, the victims also 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 resources, their operations were severely curtailed.
We are particularly concerned about terrorism sponsorship. It is difficult to obtain a criminal conviction because of the mens rea requirement and because sponsors abroad are typically not pursued criminally. While the Financial Transactions and Reports Analysis Centre of Canada, FINTRAC, reports hundreds of millions of dollars a year in suspected terrorist financing in Canada, there have only been two successful prosecutions for terror financing here.
Civil claims have advantages over criminal charges in these cases. Apart from the lower burden of proof, in criminal cases you cannot compel the accused to testify or turn over information because of the right against self-incrimination. You can do this in civil suits, however. In contrast to the dearth of criminal convictions against terror financiers, expert witnesses in many U.S. civil cases have successfully demonstrated the flow of funds from states to terrorist groups, and terror sponsors have been found liable for their actions. Further, in civil claims, the victim and her narrative is an essential part of the process as a party.
The colossal costs and high stakes of criminal trials can discredit the government and counterterrorism efforts if they fail, such as with the Air India bombing trial. Civil cases are at the very least an effective complement to this.
We have distributed some materials. First, let me apologize that they are not translated into French. They were put together at the last minute. I will address a few of them.
One of them is an article from The New York Times on Ron Motley, the lead plaintiffs' lawyer in the 9/11 litigation in the U.S. He describes some of the creative methods he has used to gather evidence around the globe on the sponsorship of al Qaeda — evidence the FBI did not get.
Lest you wonder whether civil terrorism suits are effective, Mr. Motley was so committed that he spent $12 million in the first two years investigating the case. Before that, he was the lead lawyer, representing 25 states, who secured a $246 billion settlement with Big Tobacco. He is a leading American lawyer.
There are good reasons why leading American lawyer are suing and exposing terrorist sponsors: the litigation is powerful, and they have been successful.
The United States enacted similar legislation to Bill S-7 in the 1990s after requests from victims groups. This allowed family members of the victims of Pan American World Airways' Flight 103, known as Pan Am Flight 103, which exploded over Lockerbie, to sue Libya. After the negative publicity over Libya's involvement, Libya ultimately agreed to pay the families $10 million each. Libya made an initial payment, over time, of $2.3 billion to those victims, and, in 2008, made a further payment of $1.5 billion to compensate these victims and other terror victims. Of course, no admission of liability was made in the context of that compensation.
Arguably, the suit, the publicity and the sanctions 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, and victims were key drivers. Ultimately, state sponsors are rational and can be deterred, which is a key objective.
By way of other examples, according to the Congressional Research Service, U.S. terror victims received $97 million from blocked Cuban assets; $377 million from an Iranian foreign military sales account; and over $90 million from Iraqi government assets, all held by the U.S. government.
The amount collected by plaintiffs' lawyers, other than from foreign assets held by the government, is unknown. We have a couple of examples of that, but plaintiffs' lawyers typically keep this information guarded because if one discovers, for example, an Iranian asset that may be in a different name in one court district, any publicity may result in that being shared with other judgment holders.
In 2008, the United States Congress passed amendments that will make collection easier. Among other things, the Justice for Victims of Terrorism Act makes it easier to pursue banks associated with terror sponsors; enables victims to collect on state sponsors' hidden commercial assets if a sufficient connection to the country is established; and creates an automatic lien when the claim is started over any real or tangible property in the control of the defendant state in the judicial district. It is quite strong.
A few months after this legislation was passed, the victims of the 1983 bombing of the U.S. marine barracks in Lebanon, which killed 241 servicemen, tied up $2 billion in a clearing house account called Clearstream, which was held with Citibank in New York. The U.S. Department of the Treasury, with court permission, provided information to the plaintiffs that linked the money to Iran, which the court had earlier found sponsored the attack. This court file is under seal and almost no information is publicly available, but in your package you will find an article from late last year in The Wall Street Journal entitled "U.S. Freezes $2 Billion in Iran Case," which describes this.
You may wonder why Iran would be transferring $2 billion through the U.S., assuming that it is Iranian money, which, as far as I know, has not been found by a court at this point. If you want to exchange U.S. dollars into another currency, you must generally go through the large clearing houses in the U.S. It is not easy to operate in global markets without the ability to trade in U.S. dollars.
Imagine the impact that this approach could have if it were exported to other major currencies, for example, the Canadian dollar, the euro, the British pound, and so on.
Finally, we have distributed one other letter from the head of the Israel Law Center, which specializes in this type of litigation. That one firm placed $600 million in liens on terrorist assets or state assets and collected $72 million for victims of terror. They reference a case last week in which the New York State Court of Appeals affirmed an award to terror victims of a New York property owned by an Iranian bank.
The second reason 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.
In England, a lawyer named Jason McCue successfully obtained judgment last year for the Omagh bombing against IRA members. He writes that 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 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 the 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, I say, not only to bankers but to state sponsors as well.
As 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 U.S. against a foreign bank that 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 also led to a probe by U.S. regulators, and the United States Department of Justice commenced criminal investigations.
Therefore, the publicity that accompanies civil suits can be a key tool in winning the war on terror.
Finally, victims feel some degree of solace, justice and finality from presenting their story to the court and receiving a decision holding the wrongdoers publicly and permanently accountable and responsible. To many, this measure of closure can be more important than the compensation.
In a world where terrorism is too common and extremely difficult for states such as Canada to fight, Bill S-7 will allow 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.
If, as we hope, you support the bill, we respectfully ask that you speedily pass it. It would be a fitting tribute to the Air India families, who recently commemorated the 25th anniversary of their losses. The Canada India Foundation has provided a strong letter of endorsement, which has been distributed with our materials.
Sheryl Saperia, Senior Advisor, Canadian Coalition Against Terror: Honourable senators, thank you for the opportunity to speak to you today. As my colleague Mr. Blumenfeld has explained, we are here on behalf of the Canadian Coalition Against Terror. C-CAT speaks on behalf of victims in advocating for enhanced counterterrorism measures, not just to ensure that these particular victims see some measure of justice in their lifetimes but also to ensure that other Canadians never have to experience the same horrors of terrorists murdering their parents, spouses or children or of being injured themselves.
As some of you may know, it has now been five years since C-CAT initiated this campaign for the passage of federal legislation that would grant Canadian terror victims the ability to launch civil lawsuits against local and state sponsors of terror. During this time, we have watched the introduction of no fewer than eight private members' bills and two government bills, with Bill S-7 being the most recent.
Bill S-7, while different in some ways from the legislative model that we have proposed in the past, would constitute an essential addition to our arsenal of counterterrorism tools that is peaceful, operates within the rule of law, and does not infringe on anyone's civil liberties. It is time for Bill S-7 to be passed.
Having said that, with no victims testifying today, I would like to be their advocate in ensuring that this bill is not drafted in a way that unnecessarily provides advantages for terrorist sponsors at the expense of the victims. While I urge you to pass this bill now, I would respectfully encourage you to consider several amendments that I believe are both minor and uncontroversial and that would greatly strengthen the bill without delaying its passage through the Senate.
Let me start with the listing process. By "listing," of course, I refer to the process by which the government decides which foreign states will appear on the list of terrorist-sponsoring states that can be sued under the legislation.
Before I do that, many of you have asked today about the extradition process and how that would differ. I am happy to answer any questions about that as well during the question period. However, right now, I will focus on the list as it is currently drafted in the government bill.
Honourable senators, there is a noticeable discrepancy, an imbalance, in the bill's amendments to the State Immunity Act between the language used to describe the listing process, on the one hand, and the delisting process, on the other hand, which benefits the alleged state sponsor of terror over the victim.
With respect to the listing process, C-CAT would suggest the following small but important amendments:
First, and most important, use mandatory language such as "shall" or "must" rather than optional language such as "may" to ensure that the Governor-in-Council will initiate the process for creating a list of state sponsors of terror. Otherwise, there is a good chance that a list will never be created.
Second, require that a first list of designated states be established within six months of the bill's passage to ensure that terror victims do not have to wait for years to utilize the bill — and this is in addition to the years already spent waiting for the bill to be passed. The list should be reviewed every year after that to determine whether there are reasonable grounds to add any foreign states to the list rather than subtract from it. Currently, there is only a requirement for a review to decide whether a foreign state ought to be delisted.
Third, in response to Senator Jaffer's very good question from last week, we would suggest that the bill be amended to provide that once a state is listed and a civil suit against that state is initiated, the suit must be allowed to proceed to its completion, including the collection of any damages awards, even if the foreign state is delisted in the middle of the process. This will assure a plaintiff that he or she will not waste vast amounts of time and resources launching a suit that could be derailed at any time by a delisting.
There are two other amendments outside of the listing process that are extremely minor but would go a long way in helping the victims.
First, let us look at proposed new section 12.1 of the amendments to the State Immunity Act, which allows the Minister of Finance and the Minister Foreign Affairs to provide assistance to victims in identifying the property and assets of a foreign state implicated in terrorist sponsorship. Once again, the language is "may" rather than "shall." However, by making the government's disclosure of information about the foreign state's assets only optional, the provision is rendered largely ineffective. The additional words — you can see it for yourself — "within the confines of his or her mandate" and "to the extent that is reasonably practical," which are already found in the government bill, as well as the long series of exceptions for not having to disclose the information, already ensure that the ministers will not be compelled to provide information in unreasonable or inappropriate circumstances.
For my final recommended amendment, I would draw your attention to clause 4(2) of the bill, which requires the civil suit to have a real and substantial connection to Canada for it to be heard in a Canadian court.
According to a recent Court of Appeal for Ontario case called Van Breda v. Village Resorts Limited, there is presently no presumption that living in a particular jurisdiction is a sufficient connection for this purpose. It is, therefore, essential that the legislation explicitly state that a person's Canadian citizenship or permanent resident status is enough to establish a real and substantial connection to Canada. Otherwise, the bill could allow for an unacceptable situation in which Canadian victims will be unable to seek justice in Canadian courts.
Most, if not all, of the cases that will be brought against foreign states under this bill will involve damage outside of Canada, due in part to the fact that a foreign state already has no immunity under the State Immunity Act for damages it causes to someone in Canada. There will likely be no connection to Canada other than the Canadian nationality of the victim. The bill should be amended to provide the assurance that a plaintiff's Canadian citizenship or permanent resident status is enough to gain access to a Canadian court. Indeed, it is worth noting that jurisdictional issues caused many defendants to be dismissed from the 9/11 action in the United States. We should learn from this and make Bill S- 7 jurisdiction-friendly, so to speak, for Canada.
In my remaining time, I wish to briefly address some issues that have been raised and that may require clarification, no amendments.
The terms "retrospectivity" and "retroactivity" are often but incorrectly used interchangeably. It is C-CAT's view that the legislation is retrospective rather than retroactive because it imposes liability for past events but does not change the law as of the time that those events occurred.
Regardless, though, from a legal perspective, the legislature may enact retroactive and retrospective legislation provided that its intent to do so is expressed clearly in the language of the law, which is the case in this bill. As Senator Baker correctly pointed out last week, because the bill does not create any criminal liability but only civil liability, there is no infringement of section 11(g) of the Canadian Charter of Rights and Freedoms.
Ultimately, it is essential that the Air India victims, whose mistreatment over the last 25 years is now a matter of public record, be allowed to use this legislation to sue their wrongdoers, even if, as Senator Jaffer pointed out last week, there may be no foreign state responsible. The Air India victims have been extremely supportive of this bill.
Also some discussion has taken place about the arbitration clause, especially by Senator Furey, which is in clause 4(4) of the bill and which requires the victim to pursue arbitration with the foreign state before being able to sue. I would like to clarify once again that this clause only applies where a victim wants to sue a foreign state when the terrorist attack occurred on the soil of that foreign state. It is unlikely that this clause will be used often, as it is rare for a foreign state to launch a terrorist attack on its own soil. Therefore, I would not worry about this provision.
Lastly, I would like to address the question of the bill's impact on our foreign relations. First, Canada's key allies will not be subject to this legislation because, simply put, the listing process precludes such an eventuality. Second, the legislation represents a modest addition to a whole series of measures already enacted by Canada since 9/11. Similar to other countries, Canada has passed tough and controversial anti-terror legislation, revisited immigration policies and banned terrorist organizations. We even went to war in Afghanistan. All of these measures were pursued despite risk to our foreign policy. This shift reflects the recognition that terrorism represents a unique transnational threat requiring unique responses.
Third, the depth of Canada's standing in the international arena will not be undermined by allowing for litigation that leading Canadian lawyers have confirmed is only actionable in carefully defined cases of clear-cut and egregious state sponsorship of terror.
Fourth, fear of retaliation, whether through violence or reciprocal lawsuits, as Senator Wallin mentioned earlier, cannot be Canada's sole guiding principle of diplomacy. As John Norton Moore, a professor of law at the University of Virginia and the director of the Center for National Security Law, has explained, the retaliation argument does not recognize the responsive nature of the context. He says that it is bizarre to worry about a few terrorist nations allegedly proceeding against our assets in a setting where they are willing to kill and torture us and to participate broadly against us to harm us in every way possible.
The real issue, as with any defensive response, is whether we should be effectively fighting back using the tools at our disposal.
Senators, I have spoken to you as advocate for the victims, who have been the driving force behind this effort. As I mentioned earlier, this is the tenth time that a bill of this sort has been introduced. There is a growing urgency amongst the victims and the communities that have supported them. As one Air India victim pointed out recently, victims are dying waiting for this bill to be passed.
We now need your support to ensure that the bill is not derailed once again. While we have suggested some proposed amendments, we do not wish these suggestions to be the cause of further delay. We feel it is imperative that this bill be given the approbation of the Senate and passed at the earliest possible opportunity.
The general principles of this bill have been endorsed by the Prime Minister, Liberal leader Michael Ignatieff and by senators and MPs of all parties, as well as by leading legal and counterterrorism experts. I urge you to look at the section of quotes in your folder. It is time for Bill S-7 to be passed.
I thank you for your time and would be pleased to answer any questions you may have.
The Chair: Thank you, Ms. Saperia, for that articulate presentation.
We will now go to the United States for Mr. Comras, who has been waiting patiently and will share with us his perspective on the anti-terrorist battle, something on which he has been an ally of Canada in his work in the U.S. Department of State and elsewhere for many years.
Victor D. Comras, as an individual: Thank you for the opportunity to present my views on this important counterterrorism legislation, which you have now for consideration. I will try to be brief and will be glad to supplement this statement with further information as you require it.
For two years, I served as one of the five international monitors, charged by the UN Security Council with overseeing and reporting on what countries were actually doing to implement the UN measures against al Qaeda, the Taliban and related terrorists. My principal role was to report on the measures being taken to freeze assets and to stop them from acquiring the funds and other economic resources they needed to operate. I saw first-hand the challenges and lapses in such counterterrorism efforts.
Despite our efforts to date, we have not stemmed the flow of funds to terrorist organizations, and we have not been that successful in holding those who knowingly provide and handle such funding accountable.
It is true that most countries now have in place measures to freeze al Qaeda assets and Taliban resources as well. Numerous individuals and entities, including so-called charities and nonprofits, have actually been identified and designated by the UN, the United States and by others in this regard, yet many of them remain active and continue to finance terrorism. This represents a great problem for all of us, particularly since the world of terrorism goes well beyond al Qaeda and the Taliban.
We are still very far from achieving a needed international consensus on who is a terrorist and what constitutes terrorism financing. Remember, it is still not illegal, in most countries of the world, to provide funding to terrorist organizations such as Hamas or Hezbollah or to other terrorist organizations not directly associated with al Qaeda. In this regard, the UN International Convention for the Suppression of the Financing of Terrorism has had only limited value.
Most troubling is the fact that several countries continue to support, supply and fund various terrorist groups, often under the guise of social welfare, religious education or national liberation. The U.S. Department of State's list of state sponsors of terrorism falls seriously short in this regard. Today, that list includes only four countries: Cuba, Iran, Sudan and Syria. However, a closer reading of the State Department's own annual international terrorism assessment report makes it clear that state sponsorship of terrorism is certainly more widespread.
In this regard, I would like to refer you to the excellent work done by Daniel Byman in his 2008 report for the Brookings Institution, "The Changing Nature of State Sponsorship of Terrorism" and his book, Deadly Connections: States that Sponsor Terrorism. From this work, it can easily be seen that the problem continues to involve a substantial number of countries that believe that their own state interests are served by such terrorist organizations. Consider, for example, Yemen's or Saudi Arabia's open support for various Palestinian-related terrorist groups, including the provision of financial stipends to the families of suicide bombers; or Pakistan's aid to terrorist groups fighting in India; or Hugo Chávez's the support for the FARC.
The United States has been among the most active venues for ferreting out those who finance terrorism and for trying to put them out of business or behind bars. To my knowledge, we are still the only jurisdiction where victims-of- terrorism plaintiffs can actually seek to hold those who finance terrorism civilly responsible. I hope that Canada will soon join us in this regard and lead the way for other countries to take more seriously the need to provide such redress to the victims of terrorism.
The key U.S. legislation here is the Antiterrorism and Effective Death Penalty Act of 1996. This legislation includes the financing of terrorism in its definition of terrorism and makes it a crime to provide material support to any designated foreign terrorist organization. Section 2333 of this act opens U.S. courts to take up the claims of those who most directly suffer from such acts of terrorism — the victims themselves. It provides that:
Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.
In addition, U.S. courts have allowed claims to be filed by non-American victims of terrorism for certain terrorist acts overseas where an individual or entity in the U.S. or subject to U.S. jurisdiction is alleged to have provided material support to those responsible. These cases are brought under the U.S. Alien Tort Claims Act.
The cases being pursued under these statutes have established both the workability and the utility of permitting such civil litigation against terrorists and those providing them material support. They have produced a body of jurisprudence that has served to delineate and address many of the complex issues involved. That body of law is still evolving, but its basic outlines remain clear in the landmark Boim case. That case stems from the 1996 killing by Hamas operatives in Israel of a 17-year-old American citizen named David Boim. His family brought a law suit in U.S. federal court against several U.S. entities, including the Holy Land Foundation and the Quranic Literacy Institute that were actively soliciting and collecting funds destined for Hamas.
The case was reviewed several times at the appeal level, but the final outcome upheld the principle that the provision of funds to designated foreign terrorist organizations for any purpose falls well within the purview of the civil lawsuits permitted by section 2333.
Numerous cases have followed, directed also at those funding these terrorist organizations. While collecting many of the large judgments awarded has sometimes proved problematic, these judgments have been quite successful in putting these nefarious fundraising organizations and those running them out of business.
In July 2004, six American families — victims of Palestinian terrorism in Israel during the Al-Aqsa Intifada — sued Jordan's Arab Bank under section 2333. They maintained the Arab Bank disbursed millions of dollars in support payment to families of suicide bombers, which served as a further incentive for attacks. Arab Bank had routed much of this money through its New York office to convert it to U.S. currency. In a sister case, the court also permitted foreign nationals who were victims of Hamas terrorism to sue Arab Bank and U.S. federal courts under the Alien Tort Claims Act.
These cases, and many like them, have had a profound impact on the way international financial institutions now conduct their business, particularly with respect to the adoption of effective know-your-customer and due-diligence procedures. Both U.S. and foreign charities, social and financial organizations are now doubly cautious when it comes to treating with organizations that employ or condone terrorist acts; and we have all benefited from this.
When the United States Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 and amended it in the USA PATRIOT Act — the full title being Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 — it intended that once a foreign terrorist organization had been designated that it would be cut off from funds collected by local organizations for any purpose. Congress recognized that funds are fungible and that any donations going to terrorist groups, no matter what the stated purpose, would benefit their operations, including the execution of their terrorist attacks. Congress was intent on eliminating a loophole used by terrorist organizations to solicit and collect funds for their operations.
It was also clear to U.S. legislators that something had to be done to deal with the difficult problem state sponsorship of terrorism posed. Such actions were ostensibly protected by claims of sovereign immunity that had long been used and abused by certain governments and their operatives to fend off any accountability for such violations of international law. The classic notion that sovereign immunity would protect such acts is clearly on the wane, both in terms of terrorism and torture. Manuel Noriega, Augusto Pinochet, Radovan Karadzic and Slobodan Milosevic are but a few names of former heads of state held accountable for their acts, despite their claims of sovereign immunity entitlement.
Congress amended the Foreign Sovereign Immunities Act, FSIA, to allow U.S. victims of terrorism to sue those countries that had been designated by the U.S. Department of State as sponsors of terrorism. Extending U.S. federal court jurisdiction to cover such cases against the foreign countries and agents raised complex and contentious issues, and, for several years, a see-saw battle took place in the courts between the United States Congress and the administration to clarify the intended scope and nuances of this important foreign sovereign immunity exemption.
In January 2008, United States Congress and the administration reached agreement on this with the passage and signing of the Department of Defense Appropriations Act, 2008. Section 1083 of that act clearly established an express private right of action against state sponsors of terrorism and entities. Successful plaintiffs can also impose their own liens now on the property of these entities and states found within U.S. jurisdiction.
The "state sponsor of terrorism" exception in the Foreign Sovereign Immunities Act applies in cases against a designated foreign state. This act reads as follows:
. . . against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by any official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.
The constraining factor here is the fact that so few countries that support terrorism have actually been designated. We owe it to our citizens and to all victims of terrorism to rectify this shortcoming.
In the meantime, attorneys representing victims-of-terrorism plaintiffs and some judges are employing and exploring some very novel legal approaches to get around these limitations and to do justice. In the 9/11 related cases, for example, plaintiff attorneys are seeking to attach responsibility to countries such as Saudi Arabia by using traditional tort-law principles concerning Saudi Arabia's alleged control and support for the funding activities of the Saudi charities implicated in funding the 9/11 attackers.
The legislation that you are considering today will be an important step in the direction of holding those who fund terrorism accountable, including state sponsors of terrorism. This legislation is particularly laudable because it recognizes, as it should, the legitimate right of the victims of terrorism to seek redress, compensation and justice.
Pass this legislation, and you will be adding considerably to our arsenal for combating international terrorism. Thank you.
The Chair: Thank you very much, Mr. Comras.
Colleagues, we have some time for questions. I should also point out that Ms. Lévesque from the legal services branch of Public Safety Canada has asked to come before us to clarify something she indicated to us when she last appeared before us. It is appropriate that we afford her the opportunity before we adjourn today.
Senator Jaffer: Thank you to the three of you for your presentations.
Mr. Comras, I understand that you appeared before our Standing Senate Committee on Legal and Constitutional Affairs on October 30, 2009; am I correct on that?
Mr. Comras: The last time I appeared, I believe it was on an issue related to Iran. Perhaps I am suffering from a mental lapse. That is the only one I recall in 2009.
Senator Jaffer: With respect to the listing of states, which you have spoken about indirectly, what is your opinion on whether we should have country profiling or a list of states or not have a list of states but enable victims to get compensation?
Mr. Comras: I have always held the very broad view on this that international terrorism is a violation of international law. It and torture by states should fall within a separate category, and there should be universal jurisdiction, and states should be held accountable in our courts and in your courts for such actions, particularly if we can find the appropriate nexus to our own state. I have always suggested that we should be as large as we possibly can when it comes to the inclusion of states. I would have preferred that the issue defines the exemption rather than a designated list, but a designated list is better than nothing.
Senator Jaffer: Mr. Comras, I have your comments to the Standing Senate Committee on Legal and Constitutional Affairs in which you said for us to not go there, do not enact the legislation, and that if the U.S. were to do it again, you have no doubt you would have done it without a list. You concluded by saying to please learn from your lesson and do not make the same mistake.
Mr. Comras: That is still my view. However, I do recognize, perhaps more now, that there are many who do not share my view in the United States. My view is the correct course, and the course I believe Congress would adopt today would be to broaden this exemption as much as possible. I believe they showed that in their actions in 2008 with the last time in which they passed legislation in this regard.
Ms. Saperia: Mr. Comras had indeed testified in the Senate in 2008, so it was two years ago, on a private member's bill which was an earlier iteration on this. I just also want to clarify the context in which I believe he made that quote. It is true he said do not go through it in terms of the list, but what he was not saying was that there ought to be no list at all. Instead, he was encouraging the extradition mechanism. In other words, not to say there ought to be no restrictions on which states to be sued, but just a different type of restriction.
Senator Jaffer: I have limited time so I want to go into another issue. I hope Mr. Comras will come back and clarify what you said after I finish asking you questions. Soon after the last time the legislation was reintroduced as Bill C-35, you were on the Tom Clark show, and the interviewer asked if the bill would get any results. You said it was would be more symbolic, and then you said there were some other practical things, and I think today with your amendments you have clarified that. I will not ask that question.
The Chair: Just as a matter of principle, if you say something about what a witness said some other place, she has the right to clarify. Just so we are clear. We do not attack people and then move on.
Senator Jaffer: I am not attacking her.
The Chair: Just as a matter of principle and courtesy.
Senator Jaffer: Do you feel attacked?
Ms. Saperia: Thank you. I do not feel attacked.
Senator Jaffer: I was commending her. I wish you would let me finish my question. I was going to say, before the chair so rudely cut me off, that I commend you for the work you do and I commend you for the work you do for the Air India community. For 25 years, victims have suffered. I wanted some clarifications on some things, and one was when you spoke on the Tom Clark show. He wondered if it is, at its essence, really a way for people to feel better about things. These are his words, not mine. You went on to say that there was a symbolic aspect of the court judgments, and then you went on and I am pleased today you have clarified.
The idea of this bill is very important. Victims do need to be compensated. I would like you both to comment on what the U.S. has done. Should that not be a better way of going? With their Justice for Victims of Terrorism Act of 2000, the U.S. government can compensate victims of terrorism for harm suffered as a result of terrorist acts sponsored by a foreign state, leaving it up to the U.S. government to seek compensation from the foreign state in question. If I may just clarify a bit more, Mr. Blumenfeld, I heard you before, and you have spoken about how complicated this bill is and how difficult it would be for victims on their own to pursue these remedies. I would like to hear from both of you as to what you think. Do we need to or should we, and I would certainly encourage it, do something else to help the victims to get the rightful judgment they are owed?
Ms. Saperia: First, it was funny to hear myself being quoted. That is an interesting experience. Certainly the bill does have an important symbolic element, but I hope that what I was conveying on that show, because my position on this has not changed at all, is that much beyond the symbolic element, this bill has real practical effect. This is what Mr. Blumenfeld was speaking to in his testimony. It can deter terrorism, because successful judgments can bankrupt terrorist organizations. It can prevent attacks, and it can deter future terrorist attacks because terrorist sponsors do fear being listed in a court document. They are the ones who are relying on anonymity, in contrast to the terrorists themselves, who love publicity. The sponsors do not want to be named. There is also the compensation element, which is important for victims, and the fact that victims themselves actually have a chance to participate in a court proceeding. In criminal cases, as we know, it is the Crown who represents the victim, but the victim does not play an official role. That is important as well. For all of these reasons, I do think there will be enormous practical impact and the symbolic aspect is just the cherry on top.
I know you had asked about the U.S. experience and also generally about making this bill more effective and other amendments. Certainly in the amendments I spoke to today, my objective was to allow all of you to consider, as I put it, small ways of improving the bill that I think will have meaningful impact. What I hope will not happen is for there to be even more delays in getting this bill through, because it has now been too many years that victims have been waiting. We have at every step of the road been met with elections and prorogations and just simple ordinary delays in this process. At this particular moment in time, I would urge you very respectfully to consider the amendments that we spoke about today. In fact, we went so far as to give you suggested language to use, which is in your folder for those amendments.
Mr. Blumenfeld: To me, the key impact here will be from the lifting of the state immunity. What follows from that is that the effectiveness of this bill will very much depend on the number of countries that are on that list and which countries and so on. If the list consists of North Korea, then I can confidently tell you that the bill will not have much impact, but if there are other countries that are engaged much more in international trade, then it will likely have considerably more impact. The U.S. experience shows these bills have impacted a great deal and can even influence the foreign and domestic policies of such countries.
Apart from that, in terms of what the Canadian victims are looking for, I cannot speak for all of them, as everybody has their own individual perspective on this, but I do not see any movement out there in Canada looking for government money for this. The victims know that, based on U.S. experience, if you have motivated plaintiffs' attorneys doing the investigation and launching these suits, with some work, there will be assets out there, and there will be accountability at the end of day for those responsible. I think they will be happy with that.
Finally, you can always improve the bill. In the U.S., there have been many iterations since 1996, but the priority now is to pass it.
Senator Furey: I want to thank the witnesses for coming today. Thank you for taking the time to be with us. Mr. Blumenfeld, you raised the issue of the State Immunity Act. I am not sure if you heard the previous witnesses.
I am trying to understand the present state of the law in Canada. Is it your understanding that, given the present State Immunity Act, no foreign country has state immunity for acts that create bodily harm or property damages within Canada?
Mr. Blumenfeld: Yes.
Senator Furey: Therefore, the thrust of this act is really to create a new extraterritorial cause of action for plaintiffs.
Mr. Blumenfeld: Yes.
Senator Furey: Thank you. I just wanted to clarify that.
Ms. Saperia, thank you for pointing out that issue with respect to the arbitration clause. If it has to be used at all, which would certainly be in unusual circumstances, if we leave it in there, are we not creating two classes of plaintiffs? Because of a certain quirk of circumstances, we are requiring one set of plaintiffs, if it is used, to go through what I consider to be a laborious and expensive process.
If you agree, do you think it would diminish the act in any way if we were to remove it?
Ms. Saperia: I personally am not married to this provision. If you, as a group, decide that this provision ought not to be there, I do not believe that removing it will be overly detrimental to the bill. I very much appreciate your concern, which is for the victims. You do not want an extra obstacle that a foreign state can take advantage of to cause a delay.
I like that this wording strongly suggests only that the plaintiff give the foreign state a reasonable opportunity to submit the dispute to arbitration. That does not mean that the arbitration procedure must be completed; it means that there must be a reasonable attempt to submit it. I hope that a court would look at the context of the situation so that if there had been a reasonable attempt and the foreign state was not responding, the court would accept the case to be heard there.
Senator Furey: Thank you.
Mr. Comras, it is quite obvious from your presentation and your resumé that you have been very heavily involved in the issue of terrorist financing. I find one issue in particular troublesome, bothersome and quite puzzling.
Doing a bit of Monday morning quarterbacking, if we look back at the 9/11 event, the London bombings and even the Toronto 18, we see that all the financing for the participants was through small amounts of money. For example, the terrorist Hani Hanjour who was involved in 9/11 received a number of wire transfers over four or five months in 1998, all under $2,500. He paid cash for pilot training in $200 allotments and things of that nature. The situation was much the same for some of the other terrorists involved.
Given these small numbers, what can we do to improve the terrorist financing legislation that we have in place in Canada, with which you are familiar? I am not sure that anything we have in place will catch the frontline terrorists when they are dealing with numbers that small.
Mr. Comras: You are quite right that the cost of launching a terrorist attack itself can be very minor. The cost of creating, maintaining, soliciting, recruiting and indoctrinating is considerably higher. The terrorism budget for any terrorist organization usually runs into the millions of dollars. Terrorism is big business, even if the last part, the cost of the attack itself, might be quite minor.
Cutting off the funds that create the foundation for terrorists is essential. That can be done, I think, by getting at material support and inhibiting those who would provide such material support to terrorist organizations, which actively seek to raise the considerable funds needed through every means possible.
Since the funds used for attacks are small, the best we can do is to identify them and use them as an investigative tool. We need to follow the money to the cell before it is able to use the small amounts of money to do what it means to do. We are becoming increasingly effective at that. Cutting off the financial support for terrorism cuts off the indoctrination, recruitment, maintenance and training of terrorists.
Senator Wallin: All of you gave very compelling testimony today. I share your view that, while this may not be a perfect bill, we do not want to let perfection be the enemy of the possible.
That said, having read some of the concerns about the United States and their legislation and given that we have some unique issues here, such as the Charter, are you prepared to have this in place as is with the possibility of having a different iteration of it in the future as some of these elements are tested? Is that a reasonable position?
Ms. Saperia: If the choice is either to pass the bill as it is today or to amend the bill and pass it at a later unknown time, I would prefer the bill be passed as it is today. The victims have waited too long.
Mr. Blumenfeld: I share that position. However, I believe the proposed amendments are fairly minor, so if they can easily be done, they ought to be done.
Senator Wallin: Mr. Comras, do you have the same view, namely, that time is of the essence?
Mr. Comras: The time is certainly ripe now for the legislation to be passed. As I have said, we have done it. It would be nice to have Canada join us. It would be nice to be able to build on that foundation to convince other countries to join also with such victims-of-terrorism legislation.
The Chair: I have a question for all three of our panellists. I want to stand back from the process, as I am sure you all have. In a sense, it is not hard to understand the dynamic. Independent of the dynamic in this committee, which I think is a relatively non-partisan one, the dynamic within a government is understandable. In DFAIT, they will seek to build language into a bill that gives the minister to whom they report and the Governor-in-Council as much flexibility as possible so that they can use their judgment with respect to who is on the list and who is not.
Public Safety Canada seeks to have a bill that provides real rights of litigation to people who feel that they have been the victims of terrorist acts as the core principles of the bill and the anti-terrorist commitment in which Canada shares. I am sure some of these dynamics took place, Mr. Comras, between state and God knows who else in the U.S. government.
Given the nature of that dynamic, I want to reflect on the amendments, which struck me as quite rational and thoughtful and tightening up in many ways. You will understand that that will unleash a fresh round of the dynamic, and I have no idea how the minister might respond.
I know that Senator Jaffer, among others, would like to have the minister reappear. We might be able to put that question to the minister when he does come back. However, you can understand how the dynamic that you suggest will re-energize that debate within the public service. Everyone will be acting in the best of faith trying to do what they think is right.
What advice can you give us about unleashing that dynamic and how that dynamic has worked in the United States as well?
As a committee, when we go forward and consider the contents of this bill and the recommendations that we might make — or the amendments, as has been suggested by one of our panellists today — we want to take that consideration into our thoughts and processes to do something constructive as opposed to unwittingly delaying. I would be interested in all your perspectives on that.
I wish to start with Ms. Saperia because I think you are the one who put the precise amendments in an articulate fashion.
Ms. Saperia: I do agree with your assessment of that dynamic. In structuring my testimony today, I was very cognizant of that. If I were told that I had all the time in the world to make this a perfect bill, my list of amendments would be much longer. However, my objective was to strengthen the bill for the victims in ways that would not unleash a fury of debate and controversy. These are the amendments that I believe could be done in short order. If I am mistaken, then I would say that the bill should be passed as it is; it could always be amended at a later date. Bills are revised every day, and that would be an ongoing process. At least let victims begin the process of trying to pursue litigation and trying, therefore, to prevent other Canadians from becoming victims.
The Chair: Mr. Blumenfeld, did you want to add to that in some way?
Mr. Blumenfeld: When the victims testified two years ago on a predecessor bill, a Liberal senator said, in good faith, that this bill will pass. Obviously, there is a time-consuming aspect to the dynamic to which you referred. I think it is important to avoid that at this point, given the passage of time.
The Chair: I understand. Mr. Comras, can you share with us your perspective, having been through the American experience on this?
Mr. Comras: The Washington perspective is that timing is everything. This seems to be the right time, so I hope you will act. One never knows what comes along and whether the timing will be as propitious in the future. The basic principle in Washington has always been when it is time, do it. When it seems to come together and you have enough of a consensus, push ahead.
The Chair: Thank you very much for that.
Honourable senators, I do not have any other senator on the question list. With your permission, I will express our committee's thanks to Mr. Blumenfeld, Ms. Saperia and Mr. Comras for your forthcoming, direct and helpful involvement here today. Your testimony will be of immense value to the committee going forward.
We will next hear from Ms. Agnès Lévesque, counsel from Public Safety Canada, who has asked for an opportunity, pursuant to her testimony last week, to visit with us to clarify one or two points that she made. We are appreciative of the initiative and the due diligence involved in her request and that she is with us today.
We will have some time for a few questions should they emerge from your testimony. Please proceed.
Agnès Lévesque, Counsel, Legal Services, Public Safety Canada: Thank you very much. One of the clarifications I would like to make is more specifically about the question of if a state is removed from the list what would happen for the plaintiff, should the plaintiff be successful.
Upon further reflection, two scenarios might arise. If a state is listed, the plaintiff would commence proceedings. Before a judgment is rendered, if the state is delisted, without being able to predict exactly what a court would say, it is probable that the state would likely benefit from the immunity again. Therefore, the court would no longer have jurisdiction to hear the matter.
The second scenario would be if the state is delisted after the judgment is rendered. The plaintiff would then have a successful judgment that could be executed. However, it is unlikely that the provisions providing for assistance in the bill would apply.
The Chair: I want to be clear on this. This is a pretty important and fundamental proposition. You are now saying that if I, as a victim of terrorism, launched an action against a country that was on the list, but over the period of that action — that is, the normal rollout of time — that country was then delisted, my cause of action would likely fail, without predicting what a judge might say, insofar as the provisions of this act are concerned. Is that what I hear you saying?
Ms. Lévesque: With respect to the foreign state, yes. However, any other defendant that could be sued, which is provided for in the bill, would still stand.
The Chair: That strikes me as a fundamental shift on where we were on this issue last time. I am appreciative of the clarifications so that colleagues can be fully abreast of that. As we are in the mindset of amendments, it strikes me that — and, I realize you will not be able to offer us advice or counsel on this — one of the things, if I read the questions from my colleagues accurately, would be a proposition around tightening that premise so that someone was not disqualified in their actions simply because a country, by virtue of various geopolitical dynamics, was delisted. That is to say, although the case against them was substantive ab initio in the courts, the country was delisted because they did whatever they did.
You do not have to comment on that. If we did not want that to happen, we would have to do something to the bill to keep it from happening. If we did not want someone to lose their right to litigate by virtue of delisting, we would have to do something to this piece of litigation to change that, if I understand what you are saying.
Ms. Lévesque: If you want to change that, I would think so.
The Chair: I understand.
Ms. Lévesque: I hesitate to bring this forward, but I understand that there might be some provisions — and, I am not sure exactly which legislation either, so I am not sure how useful I am here — where there is an indication that, within a time period, a certain government would have been considered at fault, for example, from 1939 to 1945, but afterwards would not have been considered at fault.
The Chair: You are talking about some statutory expression of limitation?
Ms. Lévesque: Yes.
The Chair: I understand. I appreciate that point.
Ms. Lévesque: That is, perhaps, something that could be considered.
The Chair: That is very helpful.
I have Senator Jaffer who wishes to put a question.
Senator Jaffer: This was my preoccupation. It still is, and I am even more concerned now. Can you clarify for me — you did, but I want further clarification — proposed new section 12.1, assistance for judgment creditors?
Let us say that state A is on the list, then it is delisted. We have the judgment. Will Canada then not help the victim?
Ms. Lévesque: Let me ensure that I understand your question.
Senator Jaffer: The assistance is for identifying the property. That is, the Minister of Finance would identify the property. The Minister of Finance would contact the government departments and find out if they are willing to share that information. Clause 12.1 says that the assistance that the Minister of Finance would give to the victim would be withdrawn. Do I understand that correctly?
Ms. Lévesque: I am not certain how the government or how the ministers would react. However, when I read the language found in proposed new section 12.1, the requirement is that you would need a judgment rendered against the foreign state in proceedings referred to in proposed new section 6.1.
When we turn to proposed new section 6.1, we are referring to a foreign state that is set out on the list. If the foreign state is no longer on the list, I do not think that the minister would be able to assist.
The Chair: Senator Jaffer's question is very important here. It says that the citizen has taken a foreign government that is on the list to court and the courts have ruled in favour of the citizen and rendered a judgment that says that assets now must be liquidated and provided in recompense to that citizen. Then that country is delisted, and the Department of Finance and others, who, by this bill, would have an obligation to be of assistance, are relieved of that obligation because the country has been delisted, rendering the judgment, essentially, null and void, if it is against that country — just so we are clear. Clarity here is very important.
I believe the way you answered Senator Jaffer's question was to say that the conviction took place under proposed new section 12.1 and the Department of Finance operates under the provisions of proposed new section 6.1. Those provisions require that you be on a list. If you have had a judgment rendered against you, as a country, and you arrange to be delisted in whatever way, then the Department of Finance has no further obligation to pursue your assets in assisting the plaintiff simply because the law says that if you are not on the list, no one will pursue your assets.
Ms. Lévesque: However, the validity of the judgment remains.
The Chair: The validity of the judgment remains, but the ability of the Department of Finance to act in a constructive way to help the citizen realize that judgment is cut off right at the knees because the country has been delisted, if I understand what you are saying.
Ms. Lévesque: Yes, and I would think that is probably what might happen.
The Chair: I understand.
Senator Furey: Did you say that that is what would happen or you think that is what would happen, Ms. Lévesque?
Ms. Lévesque: I am not certain. I cannot predict the future, but I am looking at the language and the provisions in the act.
Senator Furey: That is your opinion?
Ms. Lévesque: I am not trying to give legal advice but trying to help you read the bill.
Senator Furey: As the chair has said, it is very important to us to know what you think on it.
Ms. Lévesque: I am here to help you read the bill.
Senator Tkachuk: Was that the intent? What was the intent when the legislation was written?
Ms. Lévesque: Oh, my. I am not sure exactly how to express the intent of Parliament.
Senator Tkachuk: No, what would be the intent of the people writing the legislation? What was their intent?
Ms. Lévesque: What is my personal intent? I do not have one.
Senator Tkachuk: No, no. You were part of the group that was here with the minister last week.
Ms. Lévesque: Yes, I was.
Senator Tkachuk: This is not a question that you would not have been asked at that time, the three of you and the minister. What would the intent have been of the legislation? Would the intent have been that if a country was delisted, the person who had an action that was successful would then lose the ability to capture the results of that civil action?
Ms. Lévesque: As I mentioned earlier, the judgment remains valid.
Senator Tkachuk: I know that.
Ms. Lévesque: When you look at the provisions of the bill, I see great consideration is being given to the Minister of Foreign Affairs' position if assistance would be injurious to Canada's interests.
The Chair: I think we said last week when the same matter came up in a slightly different way that if you assume there is a negotiated process between Canada and the country to be delisted, and if we already had on the books a judgment against that country on behalf of a Canadian citizen, then it strikes me as highly likely that the officials of the Department of Foreign Affairs or our ambassador in that country or the minister would try to get some satisfaction from that country for the judgment prior to delisting as part of an overall negotiation, although the legislation, of course, cannot provide for that by definition.
Ms. Lévesque: I would think that that probably would be something that could be considered when determining if a state should or should not remain on the list.
Senator Jaffer: To clarify, Mr. Chair, I said last time that if this bill goes forward, we should make an observation that we expect that to happen.
The Chair: Indeed.
Senator Dallaire: I would like to pursue the clarification of what the interpretation by the civil servants and ultimately the minister would be in a scenario where you have this much room to manoeuvre. Although I am an optimist at heart, I have also been an assistant deputy minister in the Canadian government. It would be the nature of the beast that if the government can be protected from becoming engaged in something that would involve it beyond the strict mandate of legislation, then the government will not go there. There may be goodwill, but it would not necessarily hold water when it goes up the chain of people who decide whether to do it or not, for a variety of reasons. I think that is why you said that the way it is written leaves that open for people to simply drop the ball.
Ms. Lévesque: I think it is a question of flexibility.
[Translation]
Senator Dallaire: I congratulate you on your optimism.
[English]
The Chair: We are actually looking at here, colleagues, if I may, the classic tension in the design and shaping of governing instruments. We often say that it is too bad that the minister did not have more discretion or that there was not more parliamentary discretion and that it was not so prescribed by the contents of the act.
On the other hand, when you try to give prescription and provide a measure of flexibility, then people ask if this will in some way be contradictory to the purposes of the act. I do not think there is any wilful attempt to dilute the purposes of the act. The desire is to have a fair amount of balances, the right balance. It is our job, as members of this committee, to offer our views on that as the process goes forward.
Ms. Lévesque, I want to thank you for coming forward and helping us better understand.
If I have a motion to adjourn, I will accept it.
Senator Furey: So moved.
The Chair: The meeting is adjourned.
(The committee adjourned.)