THE STANDING SENATE COMMITTEE ON LEGAL AND
OTTAWA, Monday, February 20, 2012
The Standing Senate Committee on Legal and
Constitutional Affairs, to which was referred Bill C-10, An Act to enact the
Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections
and Conditional Release Act, the Youth Criminal Justice Act, the Immigration
and Refugee Protection Act and other Acts, met this day at 12:00 p.m. to
give consideration to the bill.
SenatorJohn D. Wallace (Chair)
in the chair.
The Chair: Good afternoon. I am John
Wallace, a Senator from New Brunswick, and I am Chair of the Standing Senate
Committee on Legal and Constitutional Affairs. Today we are continuing our
review and consideration of Bill C-10, the safe streets and communities act.
The overall goals and objectives of Bill C-10, as stated by Justice Minister
Nicholson and Public Safety Minister Toews in their previous appearance
before this committee, are to further enhance the public safety and security
of all Canadians and to provide additional rights, privileges and protection
for victims of crime, including those who have been victims of acts of terrorism.
The role and function of this committee is to
carefully examine, consider and make recommendations concerning all the
components of Bill C-10 that relate to the following matters: the
production, trafficking, importation and exportation of illicit drugs; the
international transfer of offenders back to Canada to serve the remainder of their foreign sentences; the entry into Canada
of vulnerable foreign workers
who may be involved in human trafficking and subject to exploitation or
abuse; deterring acts of terrorism and providing justice for victims of terrorism; the commission
of sexual offences against children; the
commission of serious violent and repeat offences by youth; and proposed
changes concerning the granting of conditional sentences or house arrest, parole and pardons.
Honourable senators, we are very pleased to
have with us today a witness from the Assembly of First Nations, Mr. Roger
Jones, Senior Strategist.
Welcome, Mr. Jones. We were expecting to have
two witnesses, but unfortunately Grand Chief Atleo is between locations in
the North and is trying to get to a location where he can connect to us by
video conference. We hope that before this session is finished he will be
able to join us.
Mr. Jones, we received and carefully reviewed
the written submission dated November 22, 2011, that was provided by the
Assembly of First Nations, AFN, in regards to Bill C-10. We thank you for
that. It was very comprehensive and very well articulated.
I understand that you have an opening
statement, and we would be pleased to hear it.
Roger Jones, Senior Strategist, Assembly of First Nations: Thank you,
Mr. Chair, and good afternoon to all of the
senators. Thank you very much for the invitation you extended to the
Assembly of First Nations to hear First Nations’ perspectives on the bill.
As the chair pointed out, National Chief Atleo
was scheduled, and perhaps still may be able, to appear before you via video
link. He is currently back in his home community, Ahousaht. Arrangements
were made at a facility there to link him up, but technology is failing us
this morning. He was looking forward to this opportunity to share with
senators the concerns of the First Nations peoples about Bill C-10.
Copies of the national chief's speaking notes
were distributed, I believe. I will read only a portion of that into the
record, because I know that you want to have an exchange about some of the
issues that are raised in the submission we provided.
This matter is incredibly important for all
indigenous peoples in Canada. As you know, the AFN made a request to appear
before the House of Commons committee, but unfortunately we were not
successful in being granted that opportunity. The national chief sent an
extensive letter and attachment to the Minister of Justice, the Honourable
First Nations are of the view that Bill C-10
will result in compounding the already unacceptable overrepresentation of our people in the criminal justice system. This conclusion is supported by a
massive amount of evidence that documents how the system has been
disrespectful of and ultimately destructive to the lives of our peoples.
The raw statistics also tell a clear story.
While our population is 4 per cent of the general population, our peoples
make up almost a quarter of the prison population. The inmates have largely
grown up in poverty, have poor education and too often are young people
suffering multi-generational effects of residential schools, the child
welfare system and displacement from their families, cultures and homes.
In 1996, the Royal Commission on Aboriginal
Peoples drew two conclusions: first, that there is a consensus that the
justice system has failed our people, and second, that notwithstanding the
hundreds of recommendations from previous commissions and task forces, the
justice system was still failing them in 1996. Tragically and unacceptably, nothing has occurred between
1996 and now, a period of 16 years, that allows
us to draw any different conclusions.
The failure that the royal commission pointed
to is characteristic of all aspects of the criminal justice system, from
policing to sentencing to imprisonment to post-release services. The current
criminal justice system has profoundly failed First Nations peoples by
failing to respect cultural differences, by failing to address systemic
biases against our people and by denying them an effective voice in the
development and delivery of services.
It is recognized that many of the deep social
and economic challenges manifested in indigenous families and communities is
the legacy of colonization and associated efforts at assimilation. The
tragic legacy of residential schools, the dislocation caused by forced
adoptions known as the Sixties Scoop, and cultural and socio-economic
marginalization have all impacted First Nations people.
This legacy of past government policies has
caused deep wounds that fester in the current generation. The dramatic
overrepresentation of First Nations peoples' interaction with the criminal
justice system, both as victims and offenders, is attributable to these past
policies and the underlying social and economic conditions our peoples face.
Subjugation of indigenous peoples to a criminal
justice system that is at complete odds with indigenous social and political
organization and cultural values and beliefs aggravates and perpetuates the
problem of overrepresentation.
Recent statistics further illustrate this
point. When accused, our people are more likely to be denied bail. They
spend more time in pretrial detention. They are more likely to be charged
with multiple offences and often for crimes against the system. Our people
are more likely not to have legal representation and spend less time with
their lawyers. Finally, First Nations offenders are more than twice as
likely to be incarcerated as other offenders.
Between 1998 and 200, federally incarcerated First Nations, Metis and Inuit populations increased by
19.7 per cent. In
the Prairie provinces, 50 per cent of prisoners are indigenous peoples.
Indigenous women in federal incarceration have increased by 131 per cent. In
fact, the case of both First Nations women and First Nations youth is
particularly alarming as these rates of overrepresentation are even more
dramatic. Tragically, with Bill C-10 we will see the current very apparent
problems be further exaggerated, creating greater costs and, more important, far greater harm to our peoples and our communities.
Bill C-10's sentencing regime means that a
larger number of First Nations people will find themselves in mandatory
custody for significant periods of time, notwithstanding their particular
rehabilitative qualities. Justice requires recognition of the reality that
First Nations people must overcome systemic discrimination, poverty and
societal dysfunction to reach an acceptable level of well-being.
Let me just point out the major problems as we
see them with Bill C-10, and I would encourage this committee to think very
carefully through every opportunity it has to ensure oversight and
assessment of the potentially devastating consequences of this Bill to our
population, which already experiences the failure of criminal justice in
We do go through certain parts of the bill, which we believe will compound the probleMs. That has been detailed in the
written submission, so perhaps I will not repeat that part and will instead
finish up with some conclusions so we can have more time for discussion.
one of the points we wish to implore upon you is that as parliamentarians
you are aware that the Constitution Act, 1867 and the Constitution Act, 1982 have specific sections relating to First
Nations peoples and their rights. You may also be aware that the courts have
considered these provisions and observed that these provisions give rise to
legal requirements, such as fiduciary obligations and maintenance of the
honour of the Crown in dealings with First Nations people, both in an
executive and a legislative context.
First Nations are certain that elements of Bill C-10 will have harmful impacts, and that is our principal message to you
The Chair: Excuse me, Mr. Jones; we have
just been joined by National Chief Atleo by video conference. Chief, are you
able to hear us?
Shawn A-in-chut Atleo, National Chief, Assembly of First Nations: I am.
The Chair: I am John Wallace, the chair of this committee, and we are extremely pleased that you are able to join us. I
realize it has been difficult for you to get to the video conference, but
this is wonderful. We are very happy to have you. I believe Mr. Jones is
just in the process of finalizing what would have been your opening
statement, and then we will move to questions. If we could, we will allow
Mr. Jones to continue; then we would be very pleased to hear any comments
you may wish to make in addition to that, Chief Atleo.
Mr. Jones: I will complete my comments by pointing out one of the
statements made by Minister Vic Toews to this committee, which I read while
reviewing the record of his appearance with Minister Nicholson. He said:
Predicting the future and the future
impact of a Bill is always very difficult. We rely on the expertise
of our officials to give us some indication.
It is obviously a reality that you cannot predict exactly how legislation
will impact on people, but I think you can do a good job in forecasting or
in trying to sense that it will produce an impact. one of the documents we looked at in relation to the preparation
of our submission was a report that was issued by the Office of the
Correctional Investigator, I believe in 2009. It is called Good
Intentions, Disappointing Results: A Progress Report on Federal Aboriginal
There are many important bits of information in this report, but one that
is contained in the executive summary says:
With the Aboriginal population much
younger than the overall Canadian population and experiencing a
higher growth rate, the problem of Aboriginal over-representation in
corrections continues to worsen rather than improve. Compared to
non-Aboriginal offenders, the gap in positive results for Aboriginal
offenders across the spectrum of correctional processes remains
significant throughout sentence.
The offending circumstances of Aboriginal offenders are often related to substance abuse, inter-generational abuse and residential schools, low levels
of education, employment and income, substandard housing and health
care, among other factors. Aboriginal offenders tend to be younger;
to be more likely to have served previous youth and/or adult
sentences; to be incarcerated more often for a violent offence; to
have higher risk ratings; to have higher need ratings, to be more
inclined to have gang affiliations, and to have more health
problems, including Fetal Alcohol Spectrum Disorder (FASD) and
mental health issues.
I point out that some elements of the Bill are
in fact directed at some of these issues, dealing with illicit drugs and
protecting society against repeat young offenders and so on, so these
changes will have an impact on our population.
The Chair: Thank you, Mr. Jones.
Chief Atleo, Mr. Jones gave an overview of the
opening statement. He did not get into the details of each of the comments
you had on the various components of Bill C-10. We have received, as you
know, the copy of your submission from November of 2011. As I was saying to
Mr. Jones, it is very comprehensive, very clear and well articulated, so we
have had the benefit of that. Having said all of that, are there any opening
comments that you would care to add?
Mr. Atleo: Thank you, Mr. Chair. I want to
thank you and the Standing Senate Committee on Legal and Constitutional
Affairs for inviting my colleague Mr. Jones and me. I am coming to you from
my community of
Ahousaht, which is a little fishing village located on Vargas
Island, off the West Coast of Vancouver Island. Ahousaht is as far west as you can go on the west coast
of Vancouver Island, and our little village has a tremendous amount of experience in some
unfortunate ways with the criminal justice system, but in other ways using
the systems that have always been in place here and ensuring that we seek to
return our community back to a sense of balance, safety and security.
My village, like many First Nations villages, has been impacted tremendously by the trauma
of the residential school era.
Our detailed submission provides a glancing overview of the challenges, and
yet for each of us, for Roger Jones or for me or for First Nations from
coast to coast to coast, this is very personal. This is about our friends, our family and our relatives. The incarceration rates we are talking about
include people that we know and that we care about.
To conclude, this coming week we are holding a
national forum on justice in Vancouver. of specific note is the interest
amongst the leaders to develop a national strategy in the area of justice, recognizing, as Roger Jones has articulated, that modifications
present justice system cannot adequately address the problems that exist.
Therefore, in the spirit of the First Nations gathering on January 24, there
is a need for clear recognition and implementation of First Nations
government jurisdiction. This is something that we are pursuing in areas
such as education. There is a strong link between the notion of unlocking
the education potential and savings to government expenditures
of approximately $115 billion. For instance, if we were to close the
education and labour market gap, in one generation it would constitute a
contribution to Canada's GDP of at least $400 billion.
In this submission, and in that which Mr. Jones already presented, one of the questions we ask is this: Has there been an
examination of the estimated costs of increased detention and incarceration
of indigenous peoples, as well as the absolute requirement for culturally
appropriate programming and supports through these proposed exchanges? We
would submit, along with other areas such as education, child welfare and
health — given the legacy wherein the Prime Minister rose in the house and
gave an apology back in 2008 — that the era of reconciliation that I suggest
we have engaged in calls for recognizing that First Nations governments and
jurisdiction need to be supported so that we can do much better by our young
In my own community here, the legacy that we
refer to is statistics; it is something that we understand intimately. We
certainly would encourage the committee to look deeply into this issue and
the implications of this bill. In the spirit of the January 24 First
Nations-Crown gathering, as well as what the United Nations Declaration on
the Rights of Indigenous Peoples articulates, which is that First Nations
must be full partners in designing the way forward, we come to you and
present in that spirit.
Thank you for the opportunity to add a few
comments. I appreciate my colleague providing the remarks that I would have
otherwise. My apologies for being delayed in being linked up.
The Chair: We are pleased to hear your
comments and are glad that you were able to make it.
Colleagues, we will now turn to questions from
our senators. I would remind you that, as you are well aware, we have
extensive hearings all week. They will continue this afternoon, through to
Friday of this week. We have our next panel scheduled for one o'clock, so
keep that in mind as you ask your questions.
For our first question, I would turn to our Deputy Chair, Senator Fraser.
Senator Fraser: Mr. Atleo and Mr. Jones, thank you so much for being with us. It is very important to hear your point
of view. I want to ask you about the Gladue principles and section
718 of the Criminal Code, which brings them, to some extent, into the
sentencing provisions of the code.
As we all know, there are some very
high-profile court cases leading to and arising out of those principles. Can
you give me any idea of the extent to which ordinarily, on a run-of-the mill
basis, the courts actually take these principles into account when they are
sentencing Aboriginal offenders and, in particular, the extent to which they
use those principles to avoid incarceration and turn instead to other
methods of sentencing?
The Chair: Before we begin, Chief Atleo, we
are getting some interference on the transmission. I am not sure if there is
any background noise happening in your office, but we are picking up
something here. I am being told it is the audio, so we will continue.
Mr. Jones: Thank you for that question. Our
concern with respect to the impact of Bill C-10 will be to take certain
sentencing principles such as Gladue out of the hands of judges
because of the mandatory requirements on some sentences. Our experience has
been that where Gladue has been applied, it has produced the desired
results. First, the sentencing judge does take into account the history, the
background of the individual, to look at alternatives to incarcerating the
particular individual. Obviously, there are situations where the nature of the crime is pretty serious and some incarceration is required. However, it
is always best that the sentencing judge does have the benefit of knowing
what this individual has lived through in terms of their childhood, their
upbringing and their youth.
one of the realities about Gladue and I
think any provision or any measure in the Criminal Code or in the legal
system to try to address the systemic discrimination is in the fact that by
and large Aboriginal offenders do not have the benefit of legal counsel who
are going to utilize and apply all of the tools that are at their disposal
to be able to get the best bang for the buck in terms of measures such as
At one time, I practised criminal law. I saw a
lot of our people simply plea for the sake of getting it done and readily
accept incarceration because they did not want to have to prolong it. They
really were not very well-informed about their rights and their
Sometimes individuals did not get the benefit
of these, simply because of a lack of legal counsel. However, where they are
applied, they do make a difference. I do speak with my brothers and sisters
who are in the legal profession and who utilize these provisions in the code
for the benefit of their clients.
Senator Fraser: To the extent that this
bill, in various sections, overrides section 718, sets aside Gladue, it would be your expectation then that those very high statistics for
incarceration of Aboriginal people go even higher?
Mr. Jones: That would be our assessment
because, unfortunately, the nature of these crimes that are involved do
involve drugs. Sometimes they are violent, serious offences. Unfortunately, that defines some
of the people who will be impacted by this.
In some respects, yes, this is going to
exacerbate a problem where, currently, if Aboriginal accused are represented
appropriately and do have counsel that will do everything they can to
provide adequate representation, these tools are there. After this Bill becomes law, then those tools will no longer be there for some
cases and those people will end up in prison.
Senator Fraser: Thank you very much.
The Chair: We will move along now to Senator Runciman.
Senator Runciman: Thank you, gentlemen, for
contributing to the committee's deliberations. That is very much
I am curious about a couple of things. The
mandatory minimums contained in this legislation are dealing with offences
against children and focusing on drug trafficking. We do not have a
breakdown of First Nations convictions falling into those categories. I am
assuming the primary problem you are facing is with drugs. Maybe you could
speak to that. When you look at these mandatory minimum penalties, we are
focusing on linkages to trafficking of drugs and sex offences against
children. Can you speak a little bit more about why you see this as such a
concern within your communities?
Mr. Jones: With respect to sex offences
against children, there is no argument with the need to protect and
safeguard all our children. I think in the past it has been clearly
established that indigenous children have been particularly vulnerable to
sexual abuse because of the situations that they were put in, whether that
was residential school or through the adoption of indigenous children
outside of their own communities.
Absolutely, our children deserve as much
protection as possible. That is something that we hope will, in fact, better
protect our children. We have also been aware that at times our children
have not had the benefit of having the law, whether it is the policing
service or the Crown prosecutorial service, treat these cases as they would
treat others. In fact, they would sometimes blame the children themselves
for engaging in activity, whether that is alcohol consumption or drug
consumption, for putting themselves in those situations. We hope that the
entire administration of justice will in fact ensure the equal protection of our children by laws such as this.
On the drug trafficking side, one of the
realities that perhaps we need to own up to is the fact that Aboriginal
youth are getting involved in gang activity. In the larger urban areas, Aboriginal gangs are in fact a big reality and they are extending their
reach into communities on reserve. No doubt they are engaged in some form of trafficking, so that those individuals will be caught up by these
As I pointed out, and as was pointed out by the
report of the Office of the Correctional Investigator, many of these people
are young people who get caught up in gang activity, either as a result of being incarcerated and exposed to gangs and gang leadership or, quite
simply, on the street. They get caught up in these activities, not as a
matter of preference, but in reality that is what life holds for them in
terms of having to deal with all of these other factors like lack of education, lack
of jobs and so on.
It is anticipated that it will, in fact, unfortunately, impact the young people to a greater extent.
The Chair: Excuse me, senator. We are
having a problem with the translation. The translation is not working. I
understand, unfortunately, Chief Atleo, the problem is that, with the video
conferencing connection, we are not able to translate, and we do have to
translate. I understand the only solution to that — and I really hate to say
this — is that we would have to terminate the connection to you, chief, in
order to do the translation. Would that be acceptable? I am truly sorry
about that. Would that be acceptable to you?
Mr. Atleo: Absolutely. Maybe by way of concluding on my part, I want
to thank the Senate committee again. You are in good hands with my
colleague, Mr. Roger Jones. I am very concerned about
the direction this Bill is taking us and feel strongly, as someone who has
worked in the addictions treatment field in my own home territory, that it
is really prevention, support, rehabilitation and overcoming the trauma and
In the end, it is a comparable approach that we
are seeing at the federal level, that there was a report done back in 2005
by the Canadian Council of Chief Executives that really spoke to the notion
that you can only build economically sound and prosperous communities if
those same communities are safe and secure.
The direction this is heading does not support
the notion of First Nations creating safe and secure communities. These
young people we are talking about right now are more likely to end up in
jail than in school. That is certainly a trend we want to reverse.
Thank you again. I understand the technical
requirements and support them. I will sign off at this juncture and I
appreciate that Mr. Jones will undertake to represent the Assembly of First
Nations for the balance of the hearing. Thank you.
The Chair: Once again, chief, our deepest
apologies for this. To hear your words, as brief as they were, means a great
deal to us and we thank you for that. We look forward to seeing you again.
Mr. Jones, at this point we will have to move along to our next senator,
Senator Jaffer: I had a question for Chief
Atleo, and perhaps, Mr. Jones, you can answer it. If not, perhaps we could
get a response before the end of this week.
I recently attended a meeting hosted by the
government, and these meetings were widely reported in the media as an
effort for the government to begin repairing relationships between
Aboriginal people, Canadians and the government. The language that came
across was positive, the language of reconciliation of Aboriginal people
with the people of Canada and, of course, the Crown.
Can you speak to how Bill C-10 contributes to
this reconciliation? What portions of the Bill work toward achieving the
goals established by the government in the recent meetings with First
I will ask both of my questions, and if you
cannot answer them maybe Chief Atleo can complete the answer. I have not
completely decided, but I am looking to introduce an exemption to section
718.2(e) on the Gladue principle. If we introduced that and it
was accepted, would it answer your concerns?
Mr. Jones: Thank you, senator. We searched
high and low in the Bill to find elements of it that would move the
relationship forward and deal with the situation that our people face in the
criminal justice system.
First, no doubt we would find favour with any
legislative amendments that would be designed to maintain and in fact
enhance the ability of the criminal justice system to take into account the
circumstances of Aboriginal offenders, as in the Gladue context.
There is also no doubt that measures such as
the drug treatment court program are extremely helpful, because
unfortunately a lot of the Aboriginal offenders are probably in need of some
treatment, and the ability of a court, within the overall Canadian criminal
justice system, to be able to deal with those situations is beneficial.
Unfortunately, I think, as in the case of
Gladue and Gladue courts, drug treatment courts are few and far
between. As I understand it, there are half-dozen of them across the country
that do the job they are supposed to do. However, our people are everywhere, and not just in Toronto, Vancouver, Edmonton, and so on, where these
facilities are. They are also required in our home communities. Drug abuse
and drug treatment programs are also a requirement in our communities. Where
our people are dealt with, when they are charged with offences under the
Criminal Code, the nature of which we are talking about here, is often in
the adjacent, non-indigenous community. There are no facilities there, because they are often very basic court facilities. Much like the system
itself, they simply process people: get them in, get them out, and on to the
The expectation around reconciliation is that
more needs to be done to address, as the national chief spoke to, the
governance capacity of our communities to be able to deal with these issues
in a way in which people will be made accountable to their own people and to
their own communities. When you get processed as an accused person in a town
adjacent to where you live, there is no accountability back to your own
people, even though it is your people you may have harmed by way of property
or personal offences. These court systems that currently process our people
are not operating in our communities. Therefore, there is no accountability.
Senator Boisvenu: Thank you very much for being here today, Mr. Jones and Chief Atleo. In western Canada, there is an
overrepresentation of Aboriginal youth in the prison system. We really have
to find ways to better support those communities and young people so that
they can avoid a life of crime. Tightening the Criminal Code for this type
of crime is not enough. We also need to provide communities with greater
support in social matters, education and health.
Aboriginal leaders who have come here
previously talked at great length about the reality in western Canada in
terms of overrepresentation in prisons and crime; in eastern Canada, including Quebec, is the situation the same or is it different?
Mr. Jones: Thank you, senator.
Unfortunately, I cannot speak to statistics from region to region, but I can
certainly undertake to try and provide that information to you. I would
generally point out that the situation facing our people, both as a general
population and as the youth, is that we often see that it is a national
reality and it is not restricted to the Prairie provinces or the Western
provinces. At best, I can try to undertake to provide information to you and
your fellow committee members as to what the statistical realities are from
region to region.
The Chair: Senator Boisvenu, we will have
to move along to the next senator. With the number on the list now, we will
be able to have everyone who has indicated they want to speak to get on the
first round. I am sorry about that.
Senator Munson: I will be brief. I wanted to follow up on Senator Boisvenu's question. On community-based sentencing, in your estimation, is it more successful? Can it be more successful? How
can it be more successful? It repeats the question of finding out the
success rate as opposed to incarceration.
Mr. Jones: I believe Minister Nicholson was
quoted in this weekend's article that appeared in The Globe and Mail
as reporting that measures like the Aboriginal Justice Strategy, which in
fact is able to deliver these pilot projects of community or alternative
sentencing, work; otherwise, the government would not continue to put
investments into these kinds of initiatives. You will hear First Nations
leadership and First Nations community people say, "Yes, they work."
Unfortunately, as in the case of drug treatment
courts, the availability of these kinds of private projects is dependent on
funding. These programs are often cost-shared by the federal and provincial
governments, and there is never enough to go around. That is the unfortunate
reality. Our message would be that perhaps if there were more investment in
this kind of programming by the federal and provincial governments to make
these programs more widely accessible and available, then perhaps the
investment would pay off by lower incarceration rates, where in fact the
cost is quite high to keep a person in the corrections system. That is a
pretty high cost.
one of our messages is that you either increase
your costs by putting more of our people into the prison system or you can
invest in programs and initiatives aimed at trying to keep our people out of the prison system. There are programs and policies to build on that have
been in place for a few years and have shown positive outcomes. I would
suggest that perhaps you might want to investigate those avenues, in
addition to measures such as legislative amendments to provide exemptions in
clear situations where the offender is an indigenous person.
Senator Lang: I think we all share the real concerns across this
country with the First Nations community and the challenges they face and
the challenges that face government, whether they be First Nation,
provincial, municipal, or federal. However, I just want to go back to the
legislation before us. Senator Runciman touched on this in
his opening questions in respect to the actual Bill and what it refers to, which is basically sexual exploitation and the trafficking
Not unlike yourself and the Chief of the
Assembly of First Nations, I come from the North. I come from an area where
the majority of communities are very small. We do have a drug problem. It is
not just in Toronto or Vancouver but can be found in most of our communities
in the North and northern parts of the provinces. We all share that.
Then to the question of sexual predators and
sexual exploitation, I want to point out that I think a lot is being said
about this bill, but I do not think the public is being told exactly what it
says. There is mandatory minimum sentencing for offences that cross that
moral line that we, as a society, are not prepared to accept. For example, if this
Bill passes, sex exploitation of a young person will be mandatory
one year. I have to ask you, as a representative of the Aboriginal
community, what is wrong with a mandatory sentence of that kind for an
individual who has obviously taken advantage of in most cases a young woman, a young girl, who has victimized her, and who has to go to jail for at least
one year if proven guilty? It would seem to me, from the victim's point
of view, that maybe that might give, in this case, her some comfort that there
was a consequence to that action.
The Chair: Senator Lang, I think you have
asked your question. Do you understand the question?
Mr. Jones: Yes, I do. Quite frankly, I do
not think you can ever avoid looking at the circumstances of an individual
in determining what the best thing is to do in addressing harms that have
been inflicted. I think you still have to look at the circumstances.
However, I agree with you on your assessment that perhaps the story about
this Bill is not being properly told because perhaps there is too much
emphasis on the mandatory sentencing part.
As we point out in our submission, we have
problems with other parts of this Bill that relate to changes to the young
offenders legislation, to corrections and conditional releases, and to the
International Transfer of Offenders Act. When taken together, this will
impact our people quite broadly.
I think you are right in that it is not just
about mandatory sentences. This has a further implication for our people, and that is something we want the committee and the government to know, that
that will ultimately be the effect and the impact.
Senator Cowan: The short title of this act
is "Safe Streets and Communities Act," and all of us, whether we are
legislators or leaders like yourself, would be in favour of doing anything
we reasonably could to make our communities and streets safe. The issue we
are struggling with is whether this particular piece of legislation in its
many parts does in fact do that.
Earlier you referred to a statement by Minister
Nicholson when he was asked about the effect of this legislation, and he
said it was difficult to predict the future effect of legislation, and that
is true. It is true that it is difficult to predict future performance, but
you look at past performance and it is a pretty good indicator of future
performance, is it not?
Mr. Jones: Yes.
Senator Cowan: I would suggest to you and
ask if you agree with me that we have enough evidence now as to the impact
of this type of mandatory minimum sentencing regime, which has, in my view, been a failure here and in other countries, to reasonably assume that
perpetuating and expanding that will have a similar impact in Canada. I ask
you particularly with respect to the devastating statistics that you
referred to in the submission that you attempted to make to the House of Commons earlier but that has been submitted to the Senate here with respect
to impacts of our criminal justice system on our Aboriginal peoples. Can you
comment on that?
Mr. Jones: of course I would agree with the
perspective that you put forth. I would in fact take it a step further and
say that historically we have had countless examinations about the treatment
of indigenous people by the criminal justice system in Canada, whether it is
through the Royal Commission on Aboriginal Peoples or various provincial
inquiries, right from Marshall to the inquiry that is currently going on in
British Columbia regarding murdered and missing women, many of whom are
indigenous. There are countless reports, studies and evidence that establish
that fact. Many recommendations have been put forth about how to deal with
that situation, yet it is status quo or in fact potentially worsening.
I think the reality we face is that this is
nothing new; we keep driving home the same message, yet it is not producing
Senator Cowan: Mr. Jones, can you point us
to any study, any review or any statistics that would indicate that this
type of approach will make our communities and our streets safer?
Mr. Jones: No, I cannot.
Senator Frum: Thank you, Mr. Jones. When
they appeared before this committee, Minister Nicholson and Minister Toews
made it clear that the purpose of Bill C-10 is to focus on serious, violent
and repeat offences. In the context of Gladue, we have heard
testimony here that Gladue exists to reduce sentences for Aboriginal
peoples. I want to ask you about a specific section of the Gladue
decision where it was said that:
It is also unreasonable to assume that
aboriginal peoples do not believe in the importance of traditional
sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and
violent the crime, the more likely it will be as a practical matter
that the terms of imprisonment will be the same for similar offences
and offenders, whether the offender is aboriginal or non-aboriginal.
I would like you to discuss that. I think that
makes it clear that the Gladue decision really does not apply in most
Bill C-10 offences.
Mr. Jones: I cannot comment specifically on
statistics, but I know the point, and the point is that any offender who
comes into conflict with the law in the nature that is described has
committed a serious offence and should be held accountable. I think the name
of the Bill is something that we all want; we want safe streets and
communities, none more so than First Nations communities across this
country, which we do not have the benefit of. The fact is that when it comes
to deterrence and accountability, it is simply not there.
When our people are getting processed outside
of their own community realities, they do not feel accountable to their
community at all. When you are sitting in a courtroom in an adjacent town or
city to where you have committed the offence or where you are being
processed, all of those great principles of deterrence and accountability, unfortunately, do not apply. Not that they are not valued or valid
— I think
our communities would want those kinds of principles applicable, which is
why I think our emphasis is on how to address the reality in this country
that indigenous peoples are dealt with more harshly by the system. I think
people believe that the solution lies in our communities taking
responsibility for their own people and for those individuals to be
accountable to them as well.
Senator Angus: Mr. Jones, it is good to see
you here again, sir. You have indicated that, at least in the case of Aboriginal youth, these amendments would involve an element
of discrimination against them. Could you make that a little clearer? When you
say you feel, based on the mountains of evidence, that First Nation youth
will be unfairly targeted and harmed by these changes, that is kind of a
Mr. Jones: That point relates to the fact
that statistically our youth, unfortunately, are falling victim to street
life and gang life, and changes to the act, which means incarceration for
repeat offenders, will impact those individuals.
Senator Angus: More than other individuals?
Mr. Jones: Yes. That is the reality.
Statistically, those situations already exist. If in fact the Bill is going
to deal with repeat offenders, those are the people who will get caught up
in the change.
The Chair: That concludes our time with
Mr. Jones; unfortunately, our time with National Chief Atleo was cut short.
Mr. Jones, thank you so much for your
contribution to the work we are doing. We have certainly heard what you and
the chief have had to say today. As we pointed out earlier, we received your
written submission, and it will be very helpful to us.
Once again, thank you. We look forward to
seeing you on your next visit to this committee.
Honourable senators, we will continue with our
review and consideration of Bill C-10, the safe streets and communities act.
The next portion of our consideration involves Part 5 of Bill C-10, which
proposes to amend the Immigration and Refugee Protection Act to provide that
the objectives of the act will be to protect public safety and to maintain
the security of Canadian society. Additional proposed amendments would
preclude situations in which foreign nationals might be exploited or become
victims of human trafficking in this country. These amendments would provide
immigration officers with the discretion to refuse to authorize foreign
nationals to work in Canada if, in their opinion, the foreign national is at
risk of being a victim of exploitation or abuse.
We are pleased to have with us as our next panel today, representing the
Canadian Council for Refugees, Ms. Loly Rico, Vice-President; welcome, Ms. Rico. By video conference, we have appearing
before us Mr. Benjamin Perrin, Assistant Professor, Faculty of Law, University
of British Columbia; welcome, Professor Perrin.
Ms. Rico, I will start with you. I understand
you have an opening statement you wish to make.
Loly Rico, Vice-President, Canadian Council for Refugees: Good afternoon. We want to say we do not agree with the
amendments. We are opposed to the amendments, and the idea is that they will
not stop the root problem of trafficking.
The Bill will stop vulnerable women who have
been approved a work permit here in Canada, especially when it has been
approved by the Department of Human Resources and Skills Development. one of the things that we said is that there should be more focus more on the work
permit, especially for exotic dancers. They should check in Canada what the
purpose of the work is, who the employer is, and they should be more focused
in Canada on a way to make a decision at the visa office. one of our
concerns is that the refusal has to be considered by two immigration
officers, but sometimes in the different embassies there are not always two
people. Sometimes they have meetings or they are separated, and when that
happens, how will be the decision be made?
The other concern is that we are excluding
women instead of protecting them because if they do not do not receive the
work permit, trafficking will not be stopped because they will be in the
hands of the traffickers, and they can come in other ways.
As Canada has been one of the signatory
countries of the Palermo protocols, our focus should be on the protection
here in Canada and to address that issue in Canada.
The Chair: Thank you for that opening
Professor Perrin, do you have an opening
Benjamin Perrin, Assistant Professor, Faculty of Law, University of British Columbia, as an individual: Yes, I do. I
am honoured to appear before the committee today, and I appreciate the
opportunity to do so by video conference.
Let me begin by stating that I strongly support
the passage of Bill C-10, the entire legislation that you are considering. I
have a very brief remark or two about that, and I will focus in my opening
remarks on the current piece regarding the Immigration and Refugee
Protection Act amendments.
There is a widely held sentiment I have seen in
my time travelling across Canada for research, being in police stations as
well as in victim services agencies that assist victims of serious and
violent crime including sexual exploitation and human trafficking. There is
a widely held concern that the criminal justice system has left victims and
their families behind, and that our laws have failed to keep pace with the
realities of serious crimes, that they have not been able to have the impact
that we may have expected existing provisions to have.
I also want to highlight in general terms that, with respect to the package
of reforms that the committee has before it, while it is often said that crime is on the decline in Canada, as the
committee is no doubt now aware, the types of crimes that are the focus of
Bill C-10 are actually increasing, both crimes of child sexual exploitation, an issue I also have some expertise in relation to, and drug crime, and the
perception that I and many others have that human trafficking would also fit
into that list of crimes.
This package of reforms in its entirety, in my
view, is about rebalancing the criminal law in a way that enhances
accountability of offenders. These reforms are overdue. They are important, and they are consistent with the expectations that many Canadians have about
how individuals who commit crimes should be dealt with by the criminal
justice system, both in terms of punishment and in terms of rehabilitation.
Now I will turn to the provisions related to
what was formerly called the "protecting vulnerable foreign nationals
against trafficking abuse and exploitation act." This proposed legislation, as the committee will be aware, has been before various house committees for
several years now, and the remarks that I am presenting to you today were
initially prepared almost three or four years ago in response to earlier
versions of this piece of legislation. I feel quite confident in making
There are four main reasons I support the
adoption of these proposed amendments related specifically to the changes to
the Immigration and Refugee Protection Act under consideration.
The first is they advance Canada's
international commitments to prevent human trafficking, and I disagree with
my colleague and friend who is appearing before you today on that point, and
I will elaborate in a moment on that.
Second, and most important, this proposed set of amendments confronts forms
of human trafficking related to deception and
fraud where the foreign national either does not know or is wilfully blind
to the potential of exploitation in Canada.
Third, it is a preventive approach. It has
often been said in the media by critics of Bill C-10 that it is not a piece
of legislation that addresses prevention. Well, these amendments are a very
good example of a preventive approach to crime, which is in everyone's best
interest. I wholeheartedly disagree with the idea that it is better to allow
a foreign national to be brought to Canada where we have reasonable grounds
to believe they will be subject to exploitation, only to hope that we can
identify them after the fact and hopefully have support services for them
Finally, this is consistent with the federal
responsibility to conduct due diligence to prevent foreign human trafficking
to Canada. I would be happy to elaborate on those reasons in the questions
that I know the committee has. Thank you very much.
The Chair: Thank you, Mr. Perrin. We will
now proceed to questions, beginning with our deputy chair, Senator Fraser.
Senator Fraser: Thank you both very much
for being here. It is important for us to hear knowledgeable views on this
My question is for you, Professor Perrin. You
said that this Bill would require the immigration folks to do due diligence
when they are assessing applications. How would you define that? I feel that
we are flying blind, looking at this bill. The Bill says that Canadian
immigration officers abroad can refuse to authorize foreign nationals to
come if, in the officer's opinion, public policy considerations that are
specified in the instructions given by the minister justify such a refusal.
We do not have those instructions. We do not know what they will say. All we
know is that, according to the bill, they specify public policy
considerations. There is nothing in here about doing due diligence, about
reasonable grounds or how you would establish reasonable grounds for the
immigration officer to refuse entry. I do not want to bring people in who
are being trafficked, and on this ground I suspect that everyone would
agree. I am just trying to figure out whether this Bill will do what it says
that we are told it will do and how we can understand, on the plain face of it, what it is going to do. Can you comment?
Mr. Perrin: Absolutely. The structure of these amendments is consistent with how the Immigration and Refugee
Protection Act is generally structured, I would submit. IRPA is a framework
piece of legislation that has frequent references to both regulations and
guidelines that are both promulgated by the minister and, as with these
amendments, published in the Canada Gazette to ensure transparency
I considered this, senator, and it is an
excellent question. Should some of this be in the act itself, or what piece
should be in these publicly disclosed guidelines? Based on my research and
what I have found, traffickers' tactics are constantly changing and the
schemes that they deploy and use adapt rapidly. This Bill is not limited to
sex trafficking. It mentions sexual exploitation, but we have a significant, growing problem with forced labour trafficking in Canada, including with
male victiMs. That is an example of a phenomenon that is only recently being
disclosed. Having this in guidelines rather than having to go through
Parliament every time a new tactic or method is identified allows for an
appropriate level of flexibility. I do support the concept that most of the
meat of this set of response would be in those guidelines, and I am
comfortable with that because of the fact that they will appear in the
Canada Gazette both on adoption and on repeal so there will be a level
of public transparency. I will be very supportive of the department
consulting widely, both among its own officials as well as with the RCMP, municipal police and non-governmental organizations, to identify some
of these tactics. That is the first response to your question.
More briefly, the second response, my research
was a three-year study on human trafficking in Canada, primarily published
in a book called Invisible Chains: Canada's Underground World of Human
Trafficking. As part of that study, in addition to interviewing
officials, I also obtained tens of thousands of pages through Access to
Information. one case I found, which I have on my computer, and I will not
elaborate unless the Senator would like this, is an example of a situation
where an immigration official in Budapest was the one who had identified and
determined through his due diligence the information that identified an
ongoing scheme that was being involved. It is an example of where we do not
actually know where the information of potential exploitation will come
from. In fact, it will likely come from many avenues. This Bill takes the
view that the person closest to the ground where the application is being
made is the best person to be the decision maker. I think that is the right
Senator Fraser: I would still like to see
the instructions before we pass the bill, but I guess that will not happen.
Chair, could we ask Professor Perrin to provide for the committee the case
he was referring to? We do not have time to discuss it now.
The Chair: Would that be possible, professor?
Mr. Perrin: I can give you a snapshot or
paragraph that I could read into evidence, if that is helpful now.
Senator Fraser: It would be faster if you
could just transmit it to us.
The Chair: If you could give a citation to
our clerk, that would be helpful. We would appreciate that.
Mr. Perrin: I would be happy to.
Senator Runciman: Thank you, witnesses, for
appearing. Ms. Rico, I do not want to be unfair but it strikes me, from
looking at your submission and hearing what you have said here briefly
today, that what you are suggesting is that the government should allow our
immigration process to be used as a vehicle by criminals to engage in human
trafficking and the horrendous abuse that is caused by it, especially to
women and children. Is that essentially what are you saying?
Ms. Rico: No, I am not saying that. I work
here with victims of human trafficking, and I was a refugee from El Salvador
22 years ago. I know, from experience, the process with the visa officers.
This is not only sexual exploitation. A lot of people come with a work
permit as a temporary worker and can be in a situation of human trafficking.
Just making a stop from the visa officer does not stop human trafficking.
What we say is that HRSDC, at the time that they issue the work permit, approves that work permit because they do the labour market opinion, and
that is when they have to go through the process when they approve the
employers contracting these temporary workers. That is what we say. The
challenge using the visa officer is that sometimes you will stop someone who
is coming to work genuinely, and they will use other ways that they will
come here, as we say, underground.
Senator Runciman: Professor, what I think Ms. Rico was saying is that we should not try to prevent persons at risk
from being brought to Canada in the hope that we can have a 100 per cent
rescue rate once they are here. You made some passing reference to that
earlier. Could you comment on that?
Mr. Perrin: Absolutely. To begin with, Ms. Rico is saying that we would somehow be able to know at the stage
labour market opinion, which of course is a very general economic view about
a particular sector of the economy, which employer or employers may be going
to subject their victims to trafficking. I think that is the wrong approach.
The reason for that is that we see examples of human trafficking in many
sectors. We have documented cases from the construction and food processing
sectors, live-in caregivers and, of course, in the various outlets of the
sex trade. At least, within the former category, not the sex trade, of course, you will have legitimate construction companies but some who have
chosen to take advantage of our immigration system and horribly abuse
people. Prosecutors can make a claim of modern-day slavery. That is why I
think an individualized approach like this Bill adopts is the right one.
In terms of the point about detection, in
Canada, we have very low identification and detection rates for human
trafficking. Our research found that at the University of British Columbia, and the RCMP conceded to that in its March 2010 report, called Project
SECLUSION, which was an extensive national criminal intelligence exercise.
We absolutely cannot and should not take the approach of all we will do is
help people after they have been exploited. We have to both prevent the
crime and prosecute the traffickers. It is not enough simply to protect sex
victims after they have been harmed. That is not just my opinion, but that
is what the United Nations protocol against trafficking in persons
recognizes as well. Specifically, Article 11(1) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which Canada ratified on May
13, 2002, says that states parties shall
strengthen, to the extent possible, border controls as may be necessary to
prevent and detect human trafficking. That is why this Bill is consistent
with what we have agreed to do internationally as well.
Senator Jaffer: I welcome both of you. It
is good to see both of you again. Ms. Rico, the concern that you raise is
very much a concern of mine, because virtually the only way that women can
come to Canada is through the live-in care program. Very rarely can women
come to Canada on their own or in other categories. I am concerned that
after the woman has gone through the whole process two visa officers can
still decide that she needs protection.
My bigger concern is that we have not seen what
instructions the minister will be giving. He has not specified what the
instructions will be or how they will be stated. He says they will be
published later. My concern is that Parliament will have no oversight of the
Will you please comment on that?
Ms. Rico: This is also the concern of the
Canadian Council for Refugees. We have not seen the instructions or any
guidelines, nor that there will be any consultation by the minister. Our
main concern is that this deals with women, who are the most vulnerable
I understand that we need to prevent human
trafficking, but that is not the way to do so. This is closing the door more
and more for people who want to come, for example through the live-in
caregiver program. The Canadian Council for Refugees has a proposed
amendment to the Immigration and Refugee Protection Act that would provide
more protection for female victims of human trafficking. It would allow them
to stay in Canada and be protected.
Without seeing the regulations and the
instructions, we do not know how visa officers will make their decisions.
Who will provide them the information? Will it be a subjective decision by
them that this is not possible?
We need to look at the root causes. one of the
challenges that we have with temporary workers, even in the live-in
caregiver program, is that they come to work with a specific employer. They
do not come with an open work permit. If they had an open work permit and
found themselves in a situation of exploitation, they could make a complaint
and change jobs. This Bill will not stop human trafficking. It will exclude
people who want to come to work here in order to sustain their families
Senator Jaffer: Professor Perrin, you have
done much research. Do you know how many women are trafficked into Canada
through the work permit process?
Mr. Perrin: It is not possible to answer
that question due to lack of detection. However, we do know that people have
been trafficked through the work permit system. In response to inquiries for
our study, Citizenship and Immigration Canada stated that legitimate work
visas have been used by traffickers to bring victims into Canada.
Senator Jaffer: Did I understand you
correctly to say earlier that you had come across one case?
Mr. Perrin: That was an example of a case.
There is more than that.
Senator Jaffer: How many cases have you
Mr. Perrin: I have not tabulated that
The Chair: Professor Perrin, can you comment on the question posed by
Senator Jaffer about the minister's
instructions as they relate to public policy considerations?
Mr. Perrin: Thank you for the opportunity, chair. I am referring to
clause 206 of Bill C-10, which would create section 30(1.4) of the
Immigration and Refugee Protection Act. It reads as follows, in reference to
The instructions shall prescribe public
policy considerations that aim to protect foreign nationals who are
at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.
It is not the case that the Bill says only that
instructions will follow. The proposed legislation does more than that. It
clearly sets out that there will be public policy considerations, which term
has a particular meaning within the Immigration and Refugee Protection Act.
It is not the case that the Minister of Immigration could use these to say, for example, that anyone who likes the colour blue could not immigrate to
Canada. This is an example of a legislative framework that provides for
This Bill goes further than only speaking of public policy, which includes things like national security, health and
safety, and criminality. It specifies that those considerations must be
directed toward protection of foreign nationals. This is not some
anti-migration scheme being contemplated. This government has increased
immigration more than any other in the past.
Furthermore, it is focused on risk prevention, and that is specifically related to humiliating or degrading treatment, which suggests a very high threshold
of a very particular form of problematic conduct.
Senator Lang: Mr. Perrin, in the remarks you gave us, in reference to
the safe streets and communities act you state:
There is a widely held sentiment that
Canada's criminal justice process has left victims and their
families behind, and that our laws have failed to keep pace with the
reality of serious crimes, including terrorism, organized drug
crime, human trafficking and predatory pedophiles. This is not
merely a sentiment but, in many cases, a reality.
I would like to hear you expand on why you make
that statement and what experience you have had to justify it.
Mr. Perrin: I first started working on
issues of domestic violence and abuse when I was a young boy. As a teenager
I volunteered my time at a centre for abused women in Calgary. Twelve years
ago, I founded an organization called The Future Group, which is a
non-governmental organization that confronts issues like human trafficking
and other forms of serious abuse against children.
As a professor of law for the last four and a
half years, my focus has been on issues of child sexual exploitation and
human trafficking. Through that, as I indicated earlier, I have travelled
across the country visiting recovery centres. I have met 14-year-old
Aboriginal girls in Winnipeg recovery centres who are close friends of the
missing and the murdered. I have shared meals with them. I have donated
funding from the sale of the book I mentioned to support two of those young
women when they became 18. I have met with them to talk about how they are
doing. one is doing very well and one is doing very poorly. My experience
has been very interesting personally as well as in terms of my research.
I am told repeatedly by police and victim
service workers that our current laws have not been able to keep pace. In
many cases, victims are reluctant to come forward with evidence of the
crimes that they suffered because many of them view things like house arrest
as an adult version of being sent to your room. When I give public talks and
have question and answer periods, people, unprompted, raise issues about how
it is that someone can be out on the street after they have been convicted
of these types of crimes.
Changes that have been introduced in recent
years have started to give me assurance that this is beginning to change.
one change is Bill C-268, which I was involved in the formation of, which
gives mandatory minimum sentences of up to five years to human traffickers
of children. The committee will be pleased to know that that legislation is
now being used.
We are seeing a shifting tide, but this has
been a long-term problem. Things like victims of serious criminals not being
given legislative rights before parole board hearing have confounded the
families of victiMs. Not seeing serious jail time for the making and
distribution of child pornography and the imposition of house arrest for
sexually assaulting a child with a weapon or abducting them are examples
that, when brought forward to me, make me conclude that the public has these
concerns about our justice system.
All the examples I have just given are things
that this legislation would go a long way towards addressing.
Senator Munson: Thank you, Ms. Rico, for
being here. I have a brief question. In your written submission on behalf of the Canadian Council for Refugees, you use the words "condescending" and
"moralistic" and you say it is demeaning for women to have a visa officer
decide they should be kept out of Canada for their own protection. Who
should make the decision? Someone has to make a decision.
Ms. Rico: Yes. That is why I am saying that
when Human Resources and Skills Development Canada does the labour market
opinion, I know they make an economical decision, but they should see what
kind of job the women are coming to do. We are putting forward the example
of exotic dancers. If you go to HRSDC, even here in Ontario, they have a
specific office to give the labour market opinion for exotic dancers. It is
a kind of job that we said is degrading. Why do we allow that kind of labour
market opinion? That is when we are saying it is not the visa officer who
should make the decision. The decision should be made here in Canada.
I believe one of the things we need to do to
stop human trafficking is to have national legislation where we can cover
the kind of jobs that the person will do, how they can be protected and how
we can do the prevention. Right now we are making different changes in small
pieces that will not bring protection.
I am saying that because we have been working
in my office with victims of human trafficking. We do not see that many
international non-citizen human trafficking victims because there is no
specific legislation that will give them permanent protection, only
temporary protection. When we talk moralistically, sometimes we are talking
to women who are vulnerable. Some of them come under the live-in caregiver
program and they are coming to work to sustain their family. It is
Senator Munson: How does this process
start, then? Someone with the instincts of a visa officer, whomever, has to
start the ball rolling and make the recommendation and start moving it
through to, as you say, the decision should be made in Canada, but from my
limited reading of this there has to be something, yes or no, or a vague
area, from the country where that citizen is living.
Ms. Rico: I am familiar with that process. When an employer wants to
hire a foreign worker who is not in Canada they have to apply for the labour
market opinion in HRSDC. They have to prove that they have enough income to
hire someone. However, one of the conditions
is that they have to prove they have been looking for someone here in Canada
who can cover that job. After they have been doing that and they cannot find
a person who has that specialization, that is when they apply and they
approve the labour market opinion. With that labour market opinion, the
person can go and make an application for a work permit at the visa office
We are saying that we should do it here in
Canada, where we can check who these employers are. Having the visa officer
deciding at the end will not stop the human trafficking. If the employer is
involved in trafficking, the RCMP and the police have to be involved here.
As it is presented right now it is the women who will be prevented and who
will be punished. It will again be the women because they may be applying
for legal work, they are coming to work, but if the visa officer says, "I
have a suspicion," and stops that work permit, they will not be able to come
and work here in Canada. That is when we are saying that this is not the
possibility. We have to start doing this from home, here, to make this
Senator Dagenais: My question is for
Ms. Rico. Correct me if I am wrong, but you are saying that the Bill with
the possible amendments would broaden the right of visa officers to refuse, which might encourage some organizations to operate illegally.
Have you heard of specific cases where visa
refusals have forced people to do things illegally? You talked about exotic
dancers and women doing domestic work.
Ms. Rico: I do not have specific cases.
I am sorry I cannot answer in French. I wish I
could speak in Spanish.
one of the cases we can bring as an
example that was not using the work permit is a case right now in Hamilton
that is before the courts. The people were from Hungary. There were 17
Hungarian people who came in small groups as visitors and they made them
claim refugee status. In that way they put them to work in construction and
they were in a situation of exploitation. The RCMP is involved and now they
have received some sentences and they have nine people who have received
Most come in through the work permit in a way
that they will suffer human trafficking. Most of the cases come either as a
visitor or the ones we know. They have been crossing the border and they
start working illegally here in Canada.
Senator Boisvenu: I would like to thank
both of our guests for their opening remarks. My question is for Professor
The Bill will ensure that the checks will be
done beforehand rather than afterwards, which I think is a very good thing.
My first question has to do with changing the way the checks are done by
giving more discretion to visa officers. Would this not make it easier to
stop more people with criminal records from entering Canada?
And my second question has to do with the
checks taking place beforehand rather than afterwards. Could this spare
Canadians from having to pay for people who have blended into the general
population and are staying here illegally because we did not discover their
real status until after they arrived here?
Mr. Perrin: That is a very good question. I
will answer your second question.
In responding first to your second question, it
is absolutely advantageous to prevent this at the earliest possible stage.
It is, in my view, completely indefensible to suggest
that we should allow people to be brought to Canada when we believe there
are grounds to suspect or to believe that they will be exploited, hoping
they will be identified and incurring all the additional misery that they
may suffer en route or in Canada and, as you allude to, the significant
costs for providing them with assistance for recovery, if that support is
even available where they are found; and then there is the process of having
them either voluntarily returned to their countries or deported. It is
absolutely advantageous to prevent this crime.
I find it remarkable that the Canadian Council
for Refugees does not in principle support a more preventive approach that
involves visa officers in the home country because CIC, Citizenship and
Immigration Canada, has a global reach. Other than Foreign Affairs Canada, they are the most internationalized department. They have assets in these
countries, including in countries that are known source countries for human
trafficking and, as a result, are best placed to be the decision makers in
these cases. They, of course, draw upon information provided to them from
sources in Canada as well.
I agree with the additional point that you make
about this being an approach that could benefit us in Canada. I think the
information obtained through the reviews that are contemplated in this
proposed legislation could work in both ways. It could either be information
that comes from law enforcement investigations that provide the information
to Citizenship and Immigration Canada — and I have seen evidence of that in
the Access to Information reports — but it could also work in the opposite
way, where schemes are identified in source countries and that information
is brought through CIC back into Canada and is used to further
My final point in response to your question is
that this Bill should be considered in the context of a broader response.
The federal government has announced that it will bring forward a national
action plan to combat human trafficking this year. That draft plan has been
circulated to the provincial and territorial governments. In our province
here of British Columbia, there has been one-day extensive consultation with
all stakeholders that will be fed into that process.
The Chair: Professor Perrin, a question for
you. If Ms. Rico would care to comment, we would appreciate any thoughts she
In your opening comments, you indicated one of the reasons you support this
Bill is because it would confront deception and
fraud used by traffickers. Could you expand upon that? From your experience, what types
of deception and fraud are you aware of that take place in the
context of these foreign workers entering Canada?
Mr. Perrin: The reason I focused on
deception and fraud is because that is the aspect of the types of trafficking that would be captured by this legislation. It would not be
captured by an individual making a decision to come to Canada on their own.
We know that there are cases of deception and fraud that have been used in a
whole range of situations. I will give a few examples.
one involved a young teenage girl from the
Caribbean who came to Canada believing she would be working as a babysitter.
She came on a visitor visa in that case and then was both forced to provide
domestic servitude-type activities and sexually abused by the man of the
house for extended periods of time. In our research, we also interviewed
police officers, including the Calgary police department vice unit, which
even in their own investigations that are focused on drug trafficking and
the sex trade found that criminals were misusing legitimate work visas. An
example was a furniture company identified bringing workers into Canada
under the guise that they legitimately believed they would be working in
upholstery and carpentry to build fine furniture in the Calgary area.
However, when they were brought into the country through that method, they
were subjected to sexual exploitation and other degrading and humiliating
The police are telling us that traffickers are
using deception and fraud. In my view, that is the preferred approach. If
someone will bring you through an airline or boat or across the land border
into Canada and if you know or suspect that you are destined for a situation
of severe degradation and humiliation, there is a greater chance that you
are going to be detected at the border or you may attempt to seek help or
resist. It is in the best interests of traffickers to bring people to our
country believing that they are coming for legitimate purposes so they will
not know. It is not patronizing to say to someone, "You simply do not know
because you could not know." I disagree with the idea that this Bill is, somehow, patronizing at all. We are dealing with sophisticated criminal
networks here that it takes police and immigration a lot of effort to
uncover, so how could we expect some individual in a developing country to
be able to know that they are destined for exploitation? This Bill gives the
legal authority for CIC to intervene, which it currently does not have at
The Chair: Thank you, professor.
Ms. Rico, have you experienced examples of this
type of deception and fraud that would be used by those involved in human
trafficking, experiences you might share with us?
Ms. Rico: We have seen cases as Professor Perrin said, where they
have been coming in as a visitor with a visitor visa and they were exploited
here. one of the things related to the work permit
is that the Minister of Citizenship, Immigration and Multiculturalism made
changes in the regulations on the temporary work permit, which were
implemented in April 2011. This penalized someone to pay to find a job. For
example, with the live-in caregiver, it is the employer who has to pay all
the agencies in a way so that they can recruit employees. I believe this is
something that, if implemented, will prevent human trafficking a bit.
That is one of the ways we can do it. We are
still saying that it is not the solution or the prevention, however, because
they can come here with a work permit. As Professor Perrin was saying, and
this has been my experience, traffickers use different ways. Even if they
get the work permit and they come here, if the purpose is to humiliate or
degrade the person, they will do it.
one of the things that we should do — and I
have not seen this at the embassy that I have been going to in Guatemala —
is awareness about human trafficking at the embassies. There is a way we can
do it. For example, I have experience with the region of Central America.
All of us know about the corruption of the different countries. If you
prevent that, if the visa officer were to refuse the work permit to the
person, then the traffickers will use other ways to bring the person either
to Canada or to another country. We are not tackling the issue. I know that
Canada has been very involved in the region, providing training for officers
and for the immigration officers, but the level of corruption in that region
is such that you cannot stop the entrance abroad.
The Chair: Would you agree that this type
of human smuggling is not an imaginary problem but a real problem in our
country? Would you agree with that?
Ms. Rico: I agree that they are coming. one of the challenges we have here in this country is that we do not see that
many cases in the court system. The women who are in that situation are
afraid to come out because there is not a permanent solution to protect them
here in Canada.
Senator Fraser: Professor Perrin, this is a
supplementary to my first question about the instructions. I have a couple
First, you said, and I think you are right, how
can you expect someone in some Third World country to know what he or, more
probably, she, is actually coming to in Canada? Good question. How can you
expect the immigration officer there to know either, though? My
understanding is that immigration officers abroad do not have vast
investigative resources available to them. They are abroad, not here, so why
would they know any better than the person making the application?
Mr. Perrin: The individual, the applicant, is not well placed to make any sort
of assessment with respect to the kinds
of information we are talking about. However, Citizenship and Immigration
Canada, through the access to information filings that we receive through
our research, is in regular contact with various law enforcement agencies in
Canada. of course, through Interpol, Canada has a connection to foreign
one of the examples that we found of this in
our research was literally a list of strip clubs in the Greater Toronto Area
largely that had been identified by police as known destinations for
confirmed human trafficking cases. When you have that kind of information, if you have legislation like this,
you are able to immediately stem the flow and prevent that. Then, of course, in Canada, you have the additional work
of holding those organizations accountable beyond the individual
perpetrators, the people themselves, but actually those entities.
That is the type of information that comes up.
In my mind, when those visa officers have this sort of information, they
should be entitled in law to act upon it, subject to review by a second
Senator Fraser: My second question has to
do with this phrase "humiliating or degrading treatment." It would seem to
me that humiliation and degradation are things that lie, to some extent, in
the eye of the person involved. Treatment that I might find humiliating
someone two seats down might not, similarly degrading. All we good, middle-class folks tend to think that anything remotely involved in the sex
trade is, by definition, humiliating and degrading, but we know there are
people involved in the sex trade who say they are not humiliated or
degraded. I may not agree with them, but it is their life.
It seems to me you are asking the immigration
officers to make a judgment that, in a way, they cannot: Is this person in
fact going to feel humiliated or degraded? Would it not be preferable to
revamp the system rather more dramatically than this Bill is proposing to
ensure that the person who is making the application to come here actually
knows what they are coming to? Are they coming actually to be a babysitter?
Are they coming to be an exotic dancer, and does that mean what we used to
call stripping or does it include what is euphemistically called lap
dancing, or does it include work in a textile factory? I do not know.
If we had a more elaborate system of specifying
what these persons are coming to, and of follow-up, of protection once they
get here, would that not in the end be more effective than simply saying
that if we think they are going to be humiliated, we will not let them come?
Mr. Perrin: I think the starting point of viewing this as a subjective exercise I am not as concerned with as you are, senator. I think the words "humiliating and degrading treatment" in here, when they are coupled with a reference to public policy considerations and a
non-exhaustive example of sexual exploitation, will be, as all legislation
that you are considering, subject to interpretation.
As I suggested in my earlier remarks, these set the bar very high.
"Degradation" suggests to me, and "humiliating" together, humiliating and
degrading treatment —
Senator Fraser: It is "or."
Mr. Perrin: Thank you, "or" — both of those
terms suggest something that is tainted with illegality. It suggests to me
that legal work that is permitted and authorized in Canada could not be said
to be humiliating or degrading. I think that is a reasonable interpretation, and certainly what I take this to mean.
Really what this Bill is designed to do, as it
suggests, is prevention. It is designed to ensure that people are not
subjected to humiliating or degrading treatment, which would fall beyond the
scope of what we would ordinarily authorize people to come to Canada to do.
This is providing a moment of intervention, a moment of pause, to assess
whether what the person has actually come to Canada to do is what Canada has
authorized them to do, not, as you have put the question, what they would
like to do.
Senator Fraser: I am not sure that is quite
what I said.
Are you aware of — and if so, can you give us
the references to — any jurisprudence that establishes what "humiliating" or
"degrading" means in law?
Mr. Perrin: I have not done any research
into that question, so I cannot provide you with any sort of citations. Even
if I had, the way that the Supreme Court of Canada requires the Immigration
and Refugee Protection Act to be interpreted is that simply using this word
in one context in another act or section of the act cannot be imported
wholesale anyway, so that information would not be helpful to the committee.
This legislation will be interpreted by the
court in its own right, based on the purpose of Parliament in adopting it, and transcripts from committees like this will no doubt be used to derive
that purpose, which, the government has been very clear, and I agree with
them, is a preventive one. The term should be interpreted in that way.
Senator Runciman: I was going to ask you
about the national action plan, but you have already referenced that. You
said strip clubs in the Toronto area were a major problem. If "exotic
dancer" were removed from the approved job list, how helpful would that be?
Is that appropriate?
Mr. Perrin: My understanding is that the
federal government, some years ago, removed the blanket labour market
opinion, which had a significant and dramatic effect. Once the so-called
exotic dancer visa, which was under that previous blanket opinion, was
removed, the number of foreign nationals being brought to Canada was reduced
to a small handful on an annual basis. The history of that is not before the
committee, but essentially it was recognized that the vast majority were
coming from Romania, and there were significant concerns of exploitation.
That was a positive step being made.
The removal of the "exotic dancer" job
category, in my opinion, would be an appropriate step to take. That is not
what is proposed in this legislation, but that is something I would
certainly support, because exotic dancers do not do that. What police tell
me they do and what the cases demonstrate is that so-called strip clubs are
really the fronts for sex acts that take place in the back room or other
venues, and that they are much like walking by a department store's window.
That is what you see. That is the advertisement, and where the real money is
made is in the illegal purchase and sale of sex and bawdy houses and that
sort of thing.
Senator Runciman: I want to ask you a quick
question, since we have a law professor from British Columbia here. You
talked about mandatory minimum penalties. We had a witness earlier, an RCMP
officer, talking about drug cases and individuals charged in Nova Scotia, where he was stationed at the time, applying to have their cases transferred
to British Columbia because of the leniency of the courts. We know there are
significant problems in the illegal drug sector in British Columbia. Could
you talk about, from your perspective as a law professor, how you view the
mandatory minimum penalties as they relate to the challenges facing the
country and perhaps, more significantly, British Columbia, with respect to
Mr. Perrin: Certainly British Columbia has
become a global exporter of illegal narcotics, and that has brought with it
the involvement of organized crime. In my research on Bill C-10, I came
across an excellent report that was already made to this committee earlier
by Len Garis, the fire chief of the city of Surrey, British Columbia. It is
dated November 4, 2009, and it is entitled Combating Canada's Marijuana
Grow Industry: Stronger Penalties and Other Deterrents. It was submitted
to the Standing Senate Committee on Legal and Constitutional Affairs on what
was then called Bill C-15.
I am referring to that because I agree with Mr. Garis's assessment. He
cites extensive research that shows that even in what is considered to be a
less serious illegal narcotic, and certainly the narcotic that is frequently
cited in the media with respect to the debate on Bill C-10, very few
individuals ended up actually imprisoned. A study cited in this report on
page 3 says:
. . . from 1997 to 2003, an average of 16%
of those convicted in B.C. marijuana cultivation cases were imprisoned.
The percentage of convicted growers sent to jail dropped steadily each
year, from 19% in 1997 to 10% in 2003.
He demonstrates as well that these are not
mom-and-pop operations; these are organized crime. The Organized Crime
Agency of British Columbia estimates that 85 per cent of our province's
marijuana trade is run by organized crime, and they are also involved in
illegal weapons smuggling; cocaine; ecstasy, also known as MDMA; and illegal
Most of the illegal marijuana cultivation in
Canada is destined for the United States, up to 80 per cent of it, according
to this report, so we have serious transborder criminal issues as well.
The punishment and separation from society of those who are members of organized crime, who are cultivating illegal
narcotics and fuelling violence in our communities has to be addressed. I
was astounded when I heard reports when we were in our peak of the weapons
violence problem in Vancouver. I would be driving home in one could say very
nice areas of town keeping track of where these public shootings were. We
hear of fine restaurants where gang members go in and execute other gang
I have to tell you as a father, as a husband, I
keep track of this information, and I cannot just stay out of that part of town now in Vancouver because any restaurant on any street corner is a place
where we could see violent crime with illegal weapons erupt, and the
information you hear through the media and police reports is this is tied to
control over the drug trade.
Do these people who cultivate this need to be
imprisoned? Absolutely they do, and it is not happening in any significant
number, as the research shows.
Senator Lang: I know we are coming to a
conclusion here, but if I could just follow up with the mandatory minimum
sentences and the schedule that you are obviously very familiar with. We had
testimony earlier last week in our hearings where at least one witness
stated that they felt that in some cases the minimums were not severe enough
for the nature of the offence, for example in the question of sexual
predators, in the question of trafficking.
The position was put forward that if the
Canadian public knew more about this they would probably in some cases be
asking for more of a sentence than what is being put forward in the
legislation. Do you have any comments on that?
Mr. Perrin: I do agree with the need for stronger minimums for child
sexual exploitation offences. one of the
recommendations that many people have made and that I support is amendments
to the Criminal Code to change the term "child pornography" to instead refer
to "child sexual abuse imagery." When the committee has an opportunity to
speak with officers who work on these files, what you will hear, without
even ever being exposed to any of the images through those police training
education exercises, just by having those images described to you, the
images are seared in your mind's eye.
We are not talking about individuals who are
close in age to 18. Some of the cases that are being prosecuted and where
the police are attempting to identify the victims involve intrusive sexual
assaults against infants, as an example. That is the kind of cases that the
police are coming up against. To call that child pornography is at minimum
to mislabel it and at worst to completely undermine the gravity of what is
I personally am very supportive of stiffer
sentences with respect to child sexual exploitation. I think more work could
be done on that issue more broadly, but what we have here is at least the
beginning, and so I am very supportive of a number of the sentencing changes
here, for example, where you now have a minimum six months' imprisonment for
making and distributing what is called child pornography, up from 90 days. I
agree that could be much more, but I am supportive of the direction in which
this legislation is heading.
The Chair: We have Ms. Rico and Professor
Perrin for about another 15 minutes. On second round I have next Senator Jaffer and
Senator Boisvenu, and I have a question as well.
Senator Jaffer: Ms. Rico, I want to clarify
something you said. You said you had the experience of someone being
trafficked for visitors visas, but have you ever had the experience of someone being trafficked for work permits under the live-in care program?
Ms. Rico: No.
Senator Jaffer: Professor Perrin, I wanted
to clarify some things that you said. I know how much work you have done on
trafficking, and we certainly appreciate the work you have done, but in your
experience, the same question I asked of Ms. Rico, have you ever, and you
have done extensive research on trafficking, in all your research seen
people being trafficked under the live-in care program? That is my first
Mr. Perrin: Yes, I have. We have documented
cases of that sort of exploitation. The sort of research that I do is to
interview people who have had experience working with these cases; so for
example, I had the pleasure of interviewing Ms. Rico about the cases of human trafficking that she is familiar with in her part
of the country, but
I also travelled to approximately eight to ten other cities doing the same
thing with other organizations, so we did document cases of human
Senator Jaffer: I am just talking about the
live-in care program. This is a program that assists us in helping to look
after our children and our seniors.
Mr. Perrin: That is right. The Philippines
certainly came up in a number of cases, and that is not surprising, I would
say, given the proportion of Philippine nationals who participate in the
live-in caregiver program. Certainly organizations in B.C., for example the
West Coast Domestic Workers' Association and some of the other immigrant
service agencies, have raised repeated concerns about exploitation within
that program itself but of course recognizing the importance of that program
to both the families of those workers who are not mistreated and to the
Philippine economy. The expatriate labour force is a huge portion of their
Senator Jaffer: I want to clarify one more.
You stated that you very generously supported two girls in Winnipeg. Those
were Canadian girls; am I correct?
Mr. Perrin: That is right, yes.
Senator Boisvenu: Professor Perrin, correct me if I am wrong, but I
think Canada was one of the first countries to
publish statistics on human trafficking crimes. Earlier you said that those
types of crimes are on the rise. As Canadians, we do not want to see
newcomers exploited. But some jobs are performed in environments that are
more at risk. For example, exotic dancers find themselves in environments at
higher risk than dishwashers or servers. Is it not true that those
activities are more controlled by organized crime and that is really where
we see a weakness in the current system?
The other part of my question is: will this
Bill help exploited women in situations where those responsible have fallen
through the cracks of the new regulations? Will this legislation enable more
victims to report cases of abuse?
Mr. Perrin: Research was conducted on the
sectors most prone to human trafficking. Research published by the
International Labour Organization has indicated three specific features that
describe the industry sectors where we are likely to see this.
In English it is the three Ds — dirty, difficult, and dangerous.
These three elements characterize the
industries where human trafficking is most likely to occur. Some industries
are more likely to present these three elements. You talked about sexual
exploitation. The construction and hospitality industries, domestic workers
and agriculture are other areas likely to give rise to these three elements
that foster human trafficking.
You mentioned the problem of the trafficking of Canadian citizens, particularly young women who are being sexually
exploited. This is a bigger problem in Canada, which is why the federal
government launched a national plan that targets human trafficking.
Senator Boisvenu: Professor Perrin, do you
think that this Bill will encourage victims to speak out against abuse
Mr. Perrin: Some programs are in place to
protect victims of human trafficking from other countries. There is a
program with temporary residence permits for victims of human trafficking
that continues to improve the situation for victims from other countries.
For the most part, the assistance services that
the victims need are the responsibility of the provincial and territorial
governments, and some provinces continue to increase the services they
provide to human trafficking victims, for example here in British Columbia, as well as in Ontario.
It is essential to have a good national
response and good coordination among the NGOs, governments and police
forces. This is another reason to create a national plan — not a federal
plan, but a national plan — to fight human trafficking.
Senator Boisvenu: Thank you, and
congratulations on your French.
Mr. Perrin: Thank you.
The Chair: I have a question that I will
direct to Ms. Rico and then Professor Perrin, if you wish to comment.
one other aspect of Bill C-10 — and it is
included in clause 205 — would amend the objectives of the Immigration and
Refugee Protection Act by referring to what the objectives would be in the
protection of public health and safety. It is my understanding that the
purpose of that amendment is to protect public health and safety and
maintain the security of Canadian society in immigration matters.
I am wondering if you have any comments to make
about the public health and safety aspect contained in the bill.
Ms. Rico: I do not think the amendments
will cover the public health and safety of the country. The act already in
place contains different aspects that the Minister of Immigration has
applied in the last two years to try to protect Canada. one aspect, for
example, is under the Safe Third Country Agreement that they have removed
wherein in order for people to be able to claim refugee status at a port of entry, they must have a relative in the country.
The other aspect is that the Canada Border
Services Agency, when you arrive in Canada by plane, thoroughly checks your
passport and whether you have all the relevant paperwork. I do not think
having a visa officer checking immigrants' work permits will really make a
big difference in public safety.
The Chair: Professor Perrin, do you have
Mr. Perrin: I am not certain, Mr. Chair, that I appreciate the nature
of the amendment and the rationale behind that
particular piece. I refer to the existing provision, which says "to protect
the health and safety of Canadians and to maintain the security of Canadian
society." The proposed change to that would read "to protect public health
and safety and to maintain the security of Canadian society."
To me, I do not see this as reflecting any
major change of policy, perhaps simply to recognize public health and safety
in the context of the types of serious communicable diseases that CIC deals
with routinely, but that is actually a public health global issue and not
really limited to Canadians. Therefore, I do not see this being a
controversial change in any way at all.
The Chair: Thank you. Thank you very much, colleagues and our guests. That concludes our time with this panel. It has
been very useful.
Ms. Rico, we thank you so much for being here
and taking the time to come to this hearing today. Professor Perrin, it has
been a pleasure to hear you from the West Coast. Both of your input has been
very valuable to us and we thank you.
Mr. Perrin: Thank you very much.
The Chair: Colleagues, we will continue
with our consideration of that portion of Bill C-10 that is focused on
proposed amendments to the Immigration and Refugee Protection Act. We are
pleased to have with us, as part of this third panel, joining us by video
conference from the Wilfrid Laurier University, Associate Professor Jenna
Hennebry, and I believe, although I do not see her on screen, that we also
have Professor Audrey Macklin from the University of Toronto. Welcome. We
are pleased to have you here.
Ms. Hennebry, I will start with you. Do you
have an opening statement you wish to make to this committee?
Jenna Hennebry, Assistant Professor, Communications Studies, Wilfrid
Laurier University, as an individual:
Thank you very much for inviting me to come before the Senate to provide my
perspective on Bill C-10 and some of the changes that are proposed. I am
here in my capacity as an associate professor with the Balsillie School of International Affairs where I am also the associate director
International Migration Research Centre. It is a centre that focuses on
trying to facilitate policy-relevant research. I am glad to be here today to
talk about this proposed change.
I will give you a two-second background on my
research so you know where I am coming from today. I have been researching
and writing in the field of international migration with a focus on Canadian
and European temporary foreign worker programs for more than a decade. This
research has involved quantitative surveys of 300 employers, nearly 600
temporary foreigner workers or migrant workers in agriculture, as well as
the administration of a survey and qualitative interviews with live-in
caregivers and international students as well. This research has also
involved hundreds of detailed qualitative interviews with migrants from a
range of sending countries including Mexico, Jamaica, Guatemala, the
Philippines, Thailand and others, as well as with families of migrants in
The Chair: Ms. Hennebry, if you could slow
down a bit, our translators are having a bit of difficulty.
Ms. Hennebry: You should see what my
students have to say.
The Chair: You obviously have a lot to say, and you will get it in. If you could slow down a bit, it would be
Ms. Hennebry: The gist of it basically was
to tell you that I come at this from a lot of empirical data, qualitative
and quantitative data that I have been collecting over the last decade. This
type of forum does not lend itself well to presenting all of that data, obviously, but I will try to point to some things that I am concerned about, and then hopefully in discussion some
of that can come out if you have
particular questions. Needless to say, I am talking about interviews with
hundreds of workers, surveys with workers, interviews with government
officials in sending countries as well as in Canada, interviews with
recruiters as well as with the International Organization for Migration, and
quite a number of other NGOs and others working with migrants and supporting
migrants, both in Canada and in sending countries.
This research has basically demonstrated that
there are few options for lower-skilled migrants who would like to come to
Canada, which is an obvious result of the points system that gives
preference to the highly skilled and educated. The primary program streams
of the Temporary Foreign Worker Program through which these particular
migrants, the lower-skilled migrants, come to Canada are through the
Seasonal Agriculture Worker Program and the pilot project for occupations
requiring lower levels of formal training, which for now I will call the
low-skilled pilot project.
Some of these migrants are some of the most
vulnerable migrants to exploitation. My research over this period, as well
as the research of many others, has shown that these migrants face
particular vulnerabilities when they come to Canada in terms of potential
exploitation and abuse from employers, as well as heightened health risks.
The research has also shown that they have a higher propensity towards
vulnerability to exploitation from recruiters, and this largely happens
prior to coming into Canada.
For all of the program streams that I have been
talking about here, there are policy instruments in place that are designed
to protect or to make an attempt at protecting workers when they come into
Canada. They do things such as assess the veracity of the job offer and
ensure employer compliance through the labour market opinion process, which
I will call the LMO process from now on. The problem with the LMO process is
that it does not protect workers from exploitation, abuse and heightened
health risks. Even recent amendments that were introduced in April 2011 and
January 2012 to the Immigration and Refugee Protection Regulations did not
significantly strengthen the LMO system to provide adequate protections for
these workers. I can get into some of the examples around that. I am doing
this to try to illustrate that, although we have policy procedures in place
that are sort of aimed at trying to protect workers, they do not go far
enough. Then beyond that, we have some legal frameworks in place to protect
workers from exploitation prior to coming into the country or from
recruiters in the process, and also those who may be in Canada as well, but
both are leaving a gap with respect to regulation and protection, a gap that
I do not believe will be filled by the proposed amendments to Bill C-10.
Research basically shows that the lower-skilled
temporary migrant workers are fearful of loss of employment and loss of the
right to work in Canada and stay in Canada and are therefore much less
likely to report unsafe working conditions and abuse and are much more
likely to face heightened health risks, both from employers and from
recruiters. In our survey of nearly 600 migrant farm workers in Ontario, we
found that over 50 per cent would work whether ill or injured because of fear
of loss of employment. That is a pretty big motivator to accept just
about any kind of conditions you find yourself in.
The other point is that the majority of those
people we speak to send money home. Remittances are what they are here for, and their families depend on them. That dependency also makes them much more
vulnerable to accepting difficult working conditions and also that
heightened vulnerability with respect to recruiters.
one of the problems is how we regulate and how
we enforce the regulations we have in order to protect workers. Recruitment
is not something easily regulated just at the domestic level. However, there
have been moves to try to do that. We have seen that happen at the
provincial level. For example, Manitoba’s Worker Recruitment and Protection
Act has made changes that make a difference in the recruitment process by
ensuring that recruiters have been vetted to some extent by the province
before employers can engage their services in order to hire workers.
That is a tangible example of how we can make a
difference in terms of protecting the rights of workers and not leaving them
vulnerable to unscrupulous recruiters as well as to trafficking and
exploitation more generally.
We could better protect these migrants through
improved policy instruments such as strengthening the LMO process. For
example, recruitment could be built in to the process more stringently than
it is now. Currently there are only advertising requirements of 14 days in
certain occupations and 30 days in others. That is simply trying to ensure
that employers have tried to hire Canadian workers. That is not doing
anything to ensure the safe recruitment of foreign workers. There are really
no teeth in the policy frameworks that we have to protect workers.
Changes to clauses 206 and 207 under the IRPA
will effectively pass the buck even further on the responsibility of protecting migrants by shifting the burden to developing countries and to
migrants themselves, the very migrants who will put up with unsafe working
conditions in order to get an opportunity to work in Canada. Many of those
migrants have paid thousands of dollars for this opportunity. In qualitative
interviews I have done with Thai and Guatemalan workers, they have indicated
they have taken out significant loans in order to be able to pay fees to
recruiters for what they think will get them access into programs we have in
Canada, and in some cases they have ended up not even getting a work permit.
These proposed changes would download the
burden onto the migrant. Instead of addressing exploitation in the system, particularly in the Temporary Foreign Worker Program, the changes will
punish migrants by denying them access to visas, which will arguably do more
to heighten their vulnerability rather than make a tangible difference to
It is not clear in section 31.4, which outlines
the ministerial instructions, to what extent we will be looking at public
policy considerations that determine whether a work permit can be refused.
To what extent will these considerations go beyond issues of trafficking or
the protection of migrants? How will we ensure that that is the case?
If the federal government is truly concerned
about exploitation of these workers, these proposed changes are either too
powerful or meaningless or problematic if it means that visa officers have
the discretion to deny visas to migrant workers who are vulnerable to
exploitation. Research has demonstrated that farm workers, for example, are
a group of lower-skilled migrants who are particularly vulnerable to
exploitation, both in the recruitment process and from employers in Canada.
Does this mean that visa officers will be denying them visas when they come
to meet with these officers?
Furthermore, what are the criteria and
guidelines being used to determine that these migrants are indeed vulnerable
to exploitation? What evidence will be used? What training will these visa
officers have to determine that these migrants are vulnerable? If they are
determined to be vulnerable, how is simply not letting them into the country
doing anything to slow the process of the violation of human rights for
The Chair: Professor Hennebry, I am sorry
to interrupt you, but if you could abbreviate your opening comments a bit, it would be appreciated. We were expecting opening comments in the range
of five minutes.
Ms. Hennebry: Have I exceeded that?
The Chair: Slightly. This is all important, but if you could keep that in mind, because we want to allow as much time as
possible for questions, and of course we want to hear Professor Macklin's
opening statement as well.
Ms. Hennebry: of course. I have finished
except to say that we need more willingness to regulate recruitment and
enforce compliance at the federal level. I do not think that the changes
proposed do much for migrants and instead simply remove responsibility from
The Chair: Thank you very much for that, Ms. Hennebry.
Please proceed, Professor Macklin.
Audrey Macklin, Professor of Law, University of Toronto, as an
individual: Thank you very much. I appreciate the
opportunity to address you.
The provision with respect to the discretion of visa officers to deny work permits in the face
of an assessed risk of exploitation is concerning for two reasons. First, as a matter
of policy, will this advance the goal of protecting vulnerable workers from
exploitation? I will not summarize what Professor Hennebry has articulately
laid out as the limitations on a policy like this. Instead, I will summarize
what I take to be the animating idea behind this grant of discretion to deny
admission to someone for fear that they will be exploited, by a Canadian
The idea seems to be that we can protect
foreign workers from exploitation by Canadian employers, or Canadian or
foreign recruiters, or Canadian customers by denying those foreign workers
entry into Canada. By analogy, it is similar to the idea that we can protect
women from sexual harassment in the workplace by forcing them to stay home.
This seems like an odd way of pursuing the objective of protecting people
In addition is the concern expressed by
Professor Hennebry that visa officers are ill-equipped to make that kind of assessment. My view is that this provision probably resides primarily in the
realm of symbolic politics, that is, it gives the appearance of concern
about exploitation of foreign workers but in fact will do very little. I
expect it will be rarely invoked and, in the event, will do very little to
protect those who are admitted to Canada from exploitation. The tool is only
a tool of barring entry.
The other concern that I want to address is
more specifically legal and democratic, if you will. This provision, on the
one hand, grants a visa officer discretion under law to deny entry to
someone for fear of exploitation. At the same time, it makes this discretion
subject to mandatory ministerial instructions. Ministerial instructions are
a peculiar instrument. They seem not to constitute law in the way that is
conventionally understood. They do not exist under the Statutory Instruments
Act; they are specifically exempted from it. They appear to give the
minister the authority to make law by decree. This is unusual and
exceptional but is making more frequent appearance in the Immigration and
Refugee Protection Act. This seems to allow the minister, by decree, to set
out criteria by which a visa officer shall exercise discretion to refuse
entry, but those criteria are not available to us.
Here we are trying to assess a law that
contains a giant loophole for ministerial instructions that we cannot see or
comment on. Here I think is evidence of the democratic deficit of ministerial instructions.
By contrast, for example, laws have to be
subject to a process of publicity and debate prior to passage into law.
Similarly, when Parliament delegates its authority to the
Governor-in-Council — cabinet — to make regulations, those regulations also
must follow a certain set of practices that ensure publicity and an
opportunity to comment before they are passed into law. For example, under
the Immigration and Refugee Protection Act, regulations have to be subject
to notice, an opportunity for input and a regulatory impact statement that
accompanies the proposed regulation. As you can see, none of that is
available to us with respect to ministerial instructions.
This democratic deficit, I hope you can
appreciate, should be of concern, quite apart from what you make of this
particular provision. Whether you think it is good or bad, the idea of permitting the minister to make
law by decree that is opaque, and yet which
we are expected here to authorize, is problematic.
In furthering this concern, which I think is
arising regarding ministerial authority, I would like to draw your attention
to another aspect of Bill C-10 that I think is also illustrative of that, and that is the Transfer
of Offenders Act. Here again, using the device of ministerial discretion, we see a grant
of wide, unaccountable and subjective
discretion to a minister to exercise authority under the act to approve or
deny a request for prisoner transfer, again with no statutory or even
regulatory articulation of those criteria, much less a mechanism of accountability.
I hope you can appreciate that, in addition to
the concern that Professor Hennebry has adequately laid out, as a means of protecting foreign workers from exploitation this policy is useless and
probably only resides in the realm of symbolic politics. Quite apart from
that, the mechanism by which Parliament seeks to incorporate this policy
into law in turn grants ministerial authority to create law by decree, which
in some sense is inimical to our understanding of how laws get made, implemented and applied in Canada.
Senator Fraser: Thank you both, Professor Hennebry and Professor Macklin for thought-provoking presentations
that are very helpful to us.
Professor Macklin, I wonder if I could pursue
your point a little further about instructions. You said they are becoming
more common in the immigration and refugee system. Can you give us any other
Ms. Macklin: Yes. Under our Immigration and
Refugee Protection Act, foreign nationals are permitted to apply to
immigrate to Canada as skilled workers. Under the act and the regulations, Canadian citizens and permanent residents are entitled to apply to sponsor
In creating these entitlements to apply, there
is a correlative obligation on the Minister of Citizenship and Immigration
to process those applications. That is what the law says. Through the device
of ministerial instructions that purport to manage the prioritization of applications and timing and so on, the minister has suspended the
entitlement of Canadian citizens and permanent residents to apply to sponsor
parents and grandparents. That is to say the minister has not just set out a
prioritization of how those applications will be processed; the minister has
announced a so-called temporary pause, which amounts to an evisceration of the entitlement that is granted, under law, to citizens and permanent
residents to apply to sponsor parents and grandparents and therefore the
duty of the government to consider those applications.
Similarly, with respect to applications for
skilled workers, the act and the regulations set out criteria and
eligibility that through ministerial instructions the minister has set out
29 occupations and said that no one else who lies outside of those
occupations can apply. The problem is those ministerial instructions are not
law. They are being applied as if they are law, but they are not acts of Parliament; they are not delegated authorizations by Parliament to the
Governor-in-Council to make regulations. They exist somewhere out there in
the ether as a matter of ministerial decree, with no legal pedigree. What
they do is purport to contradict and even overrule what the act and the
regulations state as a matter of law.
Senator Fraser: That is fascinating. In the
particular instructions that are called for under this bill, the minister's
instructions, we are told, shall prescribe public policy considerations that
aim to protect foreign nationals who are at risk of being subjected to
humiliating or degrading treatment, including sexual exploitation. I have
been trying to wrap my mind around what those words "humiliating or
degrading treatment" will be taken to mean in practice. Do you have any
guidance for us on that?
Ms. Macklin: No, I do not. Indeed, the fact
that we do not know what these words mean, but that the minister is
ostensibly being given power to create law by decree about what those words
will mean and how they will apply, is precisely what we should be concerned
Let me just suggest that there are other
alternatives for dealing with this that are conventionally understood as
legally available. For example, the government could have laid out in its
amendments to IRPA precisely what it means by "degrading" and "humiliating."
Alternatively, Parliament could have delegated authority to cabinet, the
Governor-in-Council, to make regulations that set out what is "humiliating
or degrading treatment" and what "sexual exploitation" means.
Finally, it would be possible for the
Department of Citizenship and Immigration to come up with guidelines to
assist decision makers — visa officers — in interpreting the terms
"humiliating" and "degrading." In that last case, however, guidelines are
not law. They do not have the force of law. At most they can guide the
interpretation of what the law means, but they cannot bind or compel. All of
those options were available here. None of them was pursued. Instead, what
is pursued here is the grant of an unfettered, unaccountable mandate to
create law by decree.
Senator Fraser: That is particularly
interesting to parliamentarians because Parliament does have the right to
scrutinize and indeed overturn regulations, but not ministerial
instructions. It is fascinating.
Senator Runciman: Ms. Hennebry, you talked
about people who wish to come to Canada under this process and are rejected, and it heightens their vulnerability. I am wondering what you mean by that.
Heightening their vulnerability in their country of origin is what you are
referencing, I guess. Perhaps you could elaborate on that.
Ms. Hennebry: What I was alluding to there
is particularly for the low-skilled migrant who has applied, let us say, through the low-skilled pilot project to come and work in meat-packing
somewhere in Ontario; they have very few alternatives for being able to get
into the country. For them, this was quite obviously something they put a
lot of effort into in order to be able to come. They may have borrowed
money. They have had to sacrifice a great deal already in order to get to
this stage. For them to then be rejected makes them even more likely to
pursue other options. These could include seeking out paths to come into
Canada without proper documentation.
What I am referring to here is that when we
close down more doors, all we do is put more pressure on the system. We
cannot stop flows where people want and are interested in work, when there
is work and work is needed, and where there is a labour shortage or a labour
demand. Combined with high unemployment and poverty, you will have lots of pressures. What I am pointing to here is that we may just put more pressure
on the system, making those migrants even more vulnerable to traffickers.
Senator Runciman: The intent of the
legislation is to curb human trafficking. I guess I raised this with an
earlier witness, that government has an obligation not to allow our
immigration process to be used as a vehicle by criminals to engage in human
trafficking because it impacts, especially on women and children. Do you
disagree with that concept?
Ms. Hennebry: of course, I do not disagree
with that. I agree wholeheartedly that the government has an obligation to
Senator Runciman: Well, that is what the
government is attempting to do here.
Ms. Hennebry: I do not see how simply
giving a visa officer discretion to say, "You might be a vulnerable worker
and therefore cannot come," will do much to stop trafficking or to stop any
of these human rights violation. It will shift them around and basically
mean that the government has done nothing apart from not opening its door to
that particular individual.
Senator Runciman: We just heard a witness
earlier, Professor Benjamin Perrin — and this deals with our second witness
today and her concerns with respect to ministerial instructions — who
indicated to us that they were going to be based on public policy
considerations. I believe he said that that is the best, maybe the only way
to tackle this problem because it allows the immigration system to adapt to
changing circumstances, and ministerial instructions will be published in
the Canada Gazette, which is how we will know whether the
considerations will be related to the factors they are supposed to be
I am having trouble understanding why you think
that is a bad idea. That was for our second witness.
Ms. Macklin: The problem is that there is
no advance notice of those ministerial instructions. They are published
after the fact in the Canada Gazette. There no notice, no opportunity
to comment on them, and no accountability to the requirement of a regulatory
impact assessment. So, sure, as any decree would be, it will be announced, but there is no democratic mechanism underlying it. I would venture to say
that it is on tenuous grounds in terms of its legality.
The idea that one cannot undertake a
transparent process in order to issue guidelines or regulations or law on
the public policy considerations at play, I think, is simply not tenable. We
do it all the time.
Senator Runciman: I think the Canada
Gazette is pretty transparent.
Ms. Macklin: But it is only after the fact.
Senator Baker: Thank you to the witnesses
for the excellent job they have done here today. My question is to
Ms. Macklin. Before I do question her, I have to congratulate her on her
great contribution, I believe, to Canadian law in that she is quoted
extensively in our courts and the judges usually quote her with approval. I
want to congratulate her for that. Keep up the work; keep up that exuberance
that you have.
Getting back to the mandatory minister's
instructions, the law by decree, as you put it, Ms. Macklin, first, is there
a privative clause in this act?
Ms. Macklin: The Immigration and Refugee
Protection Act does not have a privative clause. What it does have, however, is a requirement that if
one seeks judicial review of a decision made under this act, one needs leave
of the Federal Court in advance. If you will, this
is a mirror image of a privative clause. A privative clause is Parliament's
attempt to preclude the courts from reviewing decisions by administrative
decision makers. This grants the courts the power to gate-keep by imposing a
requirement that a judge first says this is a case worth hearing, and only
if leave is granted can there be judicial review of that decision.
Senator Baker: If leave were granted, what
degree of deference is shown to the decision maker in this particular
Ms. Macklin: The Supreme Court of Canada's
jurisprudence about deference has been evolving in recent years. Following
the Dunsmuir decision, it is probably fair to say that the standard
of review that is level of deference shown to decisions made about the
interpretation of the statute in the regulations, or the exercise of discretion under the act or the regulations, should be assessed against a
standard of reasonableness. That is relatively deferential.
Having said that, however, the Supreme Court of Canada's jurisprudence also suggests that what "reasonableness" requires
will vary according to the kind of decision it is, who the decision maker
is, whether it is a question of law, whether it is a matter of discretion.
I guess the short answer is that most decisions
under the statute and the regulations will be assessed against a standard of reasonableness, but there appears to be an emerging continuum, if you will, within that term "reasonableness" where some kinds
of decisions will still
be scrutinized more closely than others. It is difficult for me to say with
any greater precision than that how a court will approach particular
decisions made under the statute and the regulations.
Senator Baker: It is at the point where if, in fact, an appeal is allowed to the court on application
of the applicant, we will learn about the regulations or the instructions given by the
minister. At that time, when that is heard, those instructions will be
judged on the basis of reasonableness to make up the decision of the
official, which decision could be under review at that time. Am I correct in
Ms. Macklin: The question I expect that
would arise, if a decision were challenged, would be something like this:
Did the visa officer exercise his or her discretion reasonably, taking into
account the requirement to apply the ministerial instructions? What that
question does not come to is what is the legal status of those ministerial
instructions. That is the problem that I am hoping to raise with you and
that I hope is independent of your evaluation of the merits of this
In other words, an ordinary judicial review of the exercise of discretion under this provision will not get at the problem
that I am identifying, which is the legal pedigree of those instructions.
Certainly, that could be a subject of legal challenge as well.
Senator Baker: Or the reasonableness of those instructions. Is that what you are saying?
Ms. Macklin: No, the legality of those
instructions. Not whether it is a reasonable instruction, not whether the
minister reasonably interpreted what "humiliating" and "degrading" treatment
Are these instructions lawful? The concern here
is that something called "instructions" is purporting to override a lawful
grant of discretion. It is not clear where the legal authority resides for
something called a ministerial instruction to override what is clearly a
matter of law in the Immigration and Refugee Protection Act.
At the top of our little hierarchy of law you
have the Charter and the Constitution. All law has to conform to those. Then
have you statutes. All statutes have to also conform to the Charter and so
on, and then there are statutes and regulations. All regulations have to
conform and cannot exceed the power granted by the statutes that authorize
them. Regulations are ultra vires, outside the authority of the
Governor-in-Council, if they exceed the mandate given by the statute.
What we have here are ministerial instructions, which, as I read them, purport to trump the Immigration and Refugee
Protection Act's grant of discretion. It is not clear to me that there is
authority in the minister to make a decree that trumps a discretion granted
under the act. That is the kind of pedigree problem I am trying to advert
Senator Jaffer: Thank you for your
presentations. I found them very useful.
For years I have worked with live-in caregivers
and migrant workers, especially Mexican migrant workers. I can see that
clause 206 of Bill C-10, proposed subsection (1.4), sets out that one is
subjected to humiliating or degrading treatment.
You both have experience in this area. What I
find difficult is how an immigration officer will know that a prospective
person who will be getting a work permit will be treated in a humiliating
and degrading way, except if there is a history of the employer treating his
farm workers, for example, in that way. In the end, who gets punished? The
person who is applying. I would like you to comment on that.
While I am asking you to comment on this
section, if I have time I have another question of you, and I am really
struggling with this. I have read clause 206 proposed subsection (1.4) a
number of times and the wording "humiliating or degrading treatment, including sexual exploitation." Does that mean that the degrading and
humiliating treatment includes sexual exploitation, or is that in addition?
I would like your comments on that.
Ms. Hennebry: Thank you, Senator Jaffer, for your valuable concern.
I also agree that there is some concern
regarding being able to leave it to a visa officer to determine whether
something is humiliating or degrading treatment.
The other thing, when I was reading through
this, is that I was wondering whether we are talking about the worker or the
individual being vulnerable to humiliating and degrading treatment once they
come into Canada, or is it that it has been in the process of procuring a
work visa, and how are we going to differentiate between the two? What
mechanisms are already in place that are supposed to be doing this?
In fact, we are seeing the mechanisms that are
in place now, for example, the LMO process, and we also have labour
contacts. Neither of those seems to have the teeth to be able to do anything
about any of the humiliating and degrading types of treatment that we have
seen, and we have evidence, with respect to migrant workers certainly in
agricultural, of live-in caregivers, and also among exotic dancers, for
How do we say that this new discretionary power
to the visa officer, who will be given some ministerial interpretation of what humiliating and degrading is, will actually get at any
of those things?
This is much more about needing to have a twofold approach that has some
teeth in migration management, and that means teeth in the actual policy
framework and the program regulations and enforcement. We do not have that
in our temporary farm worker program.
The only enforcement that really ends up
existing, the only consequences for an employer, either come from something
that is complaints-based, when a worker or individual is able to lodge a
legal complaint, and obviously they are quite vulnerable and not often in a
situation to do that, or it comes from the LMO process. That simply means a
slap on the wrist and you will not be permitted to have foreign workers for
two years following.
What does that do in terms of actually stopping
these kinds of problematic treatments? Not very much. Then we also can think
about new legal frameworks to get at these problems that I think are quite
different. I think that, simply, this will not solve either of them, whether
we are looking at issues of trafficking or abuse and exploitation from
employers. This is not getting at either.
Ms. Macklin: I will add a few words to what
Professor Hennebry said. Senator Jaffer, you are familiar with the debate at
the international level regarding trafficking in women, wherein some take
the view, the Coalition Against Trafficking in Women, that all sex work is
intrinsically exploitative, versus those who take the view that sex work is
not necessarily intrinsically exploitive but can be done in conditions that
Which interpretation one has of the
relationship of sex work to exploitation could have significant implications
for the application of discretion here. If sexual exploitation is taken to
mean sex work, period, then presumably anyone entering Canada to do what is
described as sex work could be caught by this and excluded. Alternatively, if there is a view that not all sex work is exploitative but there are
conditions that would render it exploitative, that would lead to a different
conclusion. Again, we have no way of knowing that because there is nothing
in the act or the regulations, and we have not seen any ministerial
instructions that assist in interpreting that.
It is also important to return to what this
discretion is telling us about exploitation and the way to prevent it.
People who are the subject of concern of this provision enter Canada and, if
they are vulnerable to exploitation, it is from Canadian employers, Canadian
and perhaps foreign recruiters and Canadian customers. What this provision
is saying is we cannot do anything. We, the Government of Canada, are
absolutely unable or unwilling to do anything to respond to exploitative
practices by Canadian employers, Canadian customers and Canadian recruiters.
We cannot do anything about that, we are unwilling to do anything about
that, so what we will do is just keep these people out. That is an
interesting and perhaps somewhat dispiriting perspective that this provision
seems to be conveying about the ability of the Government of Canada to use
its regulatory authority to assure safe, non-exploitative rights respecting
working and occupational health and safety conditions for all workers — not
just foreign workers but all workers.
Senator Dagenais: My question is for
Ms. Macklin. In your presentation, you said that more restrictive
legislation will make workers more vulnerable. Do you not think rather that
the amendments to the legislation will prevent workers from being victims of abuse or having their money extorted from them by criminal organizations
that may profit from flaws in the current legislation?
Ms. Macklin: If the concern is that people
are being extorted and abused by Canadian employers or Canadian customers or
Canadian recruiters, it is unclear to me why this would target then the
worker and not the ones who are committing the abuse. Yes, keeping women at
home and out of the workplace I suppose protects them from sexual harassment
in the workplace, but is that really the response we would have to a concern
about sexual harassment?
Similarly, we are concerned about abuse and
exploitation, and this abuse is not just happening from foreign recruiters
in foreign countries. The premise of trafficking is that the abuse is
happening in Canada from Canadians — employers, customers, recruiters, middle people and others. Surely it makes more sense to go after the
wrongdoers than the victims, and I am surprised and disappointed that the
government considers itself unable to do that.
Senator Cowan: Back to this issue about
ministerial instructions, when Professor Perrin was with us by video
conference earlier he supported the government's initiative in this regard
and said that proceeding by way of instructions rather than regulations was
necessary in order to give the necessary flexibility to the system to deal
with the rapidly developing schemes of those who are exploiting workers. Can
you respond to that defence of the use of instructions rather than
Ms. Macklin: I presume the question is
directed at me?
Senator Cowan: Yes, it is.
Ms. Macklin: I would suggest that there is
nothing unique about the subject of these concerns that requires
circumvention of conventional democratic processes; and, indeed, ministerial
instructions, as I pointed out, are cropping up all over the Immigration and
Refugee Protection Act.
I appreciate, as does anyone who works in this
field, the need for flexibility. That is the reason for granting regulatory
authority to cabinet. The Immigration and Refugee Protection Act has gone from being a fairly detailed set
of laws to skeletal legislation that grants
the Governor-in-Council enormous regulatory authority to give meaning, to
put flesh on the bones of the act. There is no empirical basis for the
argument that somehow this situation is so unique or urgent or volatile that
ordinary democratic processes are inadequate to deal with it. The claims of flexibility can certainly be managed in other ways.
Senator Cowan: By means of regulations.
Ms. Macklin: By means of regulations. The
immigration manual is a voluminous set of guidelines and instructions that
are designed to assist in the interpretation of law. They do not have the
force of law so they cannot fetter the discretion or override the laws or
regulations that bind them, but they certainly are able to be responsive in
ways that count. In other words, I would resist a bald claim that there is
something unique about this or any of the other things about which
ministerial instructions are directed that demand a circumvention of democratic accountability.
Senator Frum: Professor Macklin, to
continue with your analogy about sexual harassment, you say if you kept
women at home they would be protected from sexual harassment. That is what
this legislation is trying to do. It is trying to say that to protect women
from sexual slavery in Canada it is better to keep them at home and not let
them come into this country. That is exactly what we are trying to do.
Because this is trying to address issues of sexual slavery, human
trafficking, the argument here is it is because of the danger of ministerial
instructions. The danger of those instructions outweighs the need to prevent
sexual slavery being perpetrated in Canada and fraud being committed against
workers who otherwise would not be allowed into Canada. They are only
sneaking into the system because they are being fraudulently brought in
under the guise of one type of work in order to perform a completely other
type of work.
Therefore, my question actually is about the
fear of ministerial instructions and where else you see this. What other
evidence do we have of this democratic deficit when you rely on ministerial
instructions to prevent serious crimes from taking place? Where else do you
see a democratic deficit with ministerial instructions? Can you point to
other problems you have seen with these kinds of instructions?
Ms. Macklin: Thank you. I earlier gave the
examples of the so-called pause on the acceptance of applications for
sponsorship of parents and grandparents, and I also gave the example of ministerial instructions being used to restrict the eligibility
of those who
can apply for the skilled worker program in ways that are not evident on the
face of the legislation or the regulations. Those are two examples of the
way ministerial instructions are being used in effect to overrule what is
law or regulation properly passed without, as I said, the appropriate legal
pedigree attached to those instructions.
To go back to your query about protecting women
from sexual slavery and so on, there are two points to make. One, it is true
that this is being promoted as I think directed at protecting women from
entering Canada and being trafficked into sexual exploitation. The route by
which historically that was done was alleged to be the exotic dancer work
visa. I am sure you are familiar with it. The fact is, virtually none of those are being issued any more, so whatever you think
of that as a
technique, it appears that virtually no visas have been issued in the last
few years. If this is supposed to get at a problem of women entering on
exotic dancer visas and then being exploited, suffice to say that that
problem is being addressed elsewhere because those women are not, in fact, coming in. This seems superfluous to that.
However, even if I were to accept that that is
what this legislation is for and that there is an existing need for that, again I return to this point. If you think there is sexual slavery happening
in Canada, rest assured it is probably not just happening to foreign women
who are particularly vulnerable because of their immigration status. It is
probably happening to vulnerable women who are Aboriginal, who are very
young, who are runaways, who are being taken from one place to another in
much the way that traffickers do. In other words, the very concerns you have
about foreign women being exploited sexually will also exist with respect to
Canadian women who are vulnerable and marginalized and can be exploited in
this way. Trafficking need not be across borders but it can be, but it can
also be within Canada. If that is true, then again we return to the question
you have to address — we see these practices happening within Canada.
Keeping foreign women out neither protects them nor brings an end to those
Senator Frum: Well, it protects them by
preventing it. It is prevention.
Ms. Macklin: Those women are likely being trafficked elsewhere; but
again, if it is Canadian employers, Canadian customers who are doing this —
Senator Frum: We owe these women some
protection from us.
Ms. Macklin: No, there are other women they
are doing it to in Canada, right?
Senator Frum: I agree that is a problem
that needs to be addressed. Anyway, for those we can prevent it from
happening to in our country and that we are fraudulently allowing this to
happen, we are allowing others to commit fraud upon them to bring them in
for the purposes of sexual slavery. If we can prevent that, then that is
some good. It does not help the Aboriginal girls, I agree, but there are
other things we can do for them. It will help those women from Eastern
Europe or wherever they are coming from.
Ms. Macklin: one of the other things you
have to take into account here is that if they are not coming in on visas
there are other ways they can come in as well. Again, it is not obvious that
this is in fact going to make any difference; but in any event, as I said, the exotic dancer visa program has been pretty much shut down. They are
clearly not coming in on those visas, so whatever value you think this has
seems to be entirely superfluous given the empirical data at this point.
The Chair: Professor Macklin, I have a
question. Coming back to the concern you have expressed regarding the use of the ministerial instructions or ministerial decree, as you referred to it, your strong preference obviously is that a regulatory process should be used
rather than this ministerial decree or ministerial instruction.
It is my understanding, though, that the use of ministerial instructions or ministerial decrees in much legislation in this
country does happen and has for a number of years, and obviously I guess
there are some circumstances where ministerial discretion is considered to
be necessary. I am wondering what your comment might be on that. I
understand your point, that you are not in support of a ministerial decree
at any time, but has it not been used quite frequently in this country
through many different pieces of legislation?
Ms. Macklin: I will defer to others'
expertise. I have not seen ministerial instructions outside of the
Immigration and Refugee Protection Act. Here I think it is important to
distinguish between ministerial instructions and a legislative grant of discretion to the minister. That is, certainly this legislation and many
other pieces of legislation grant ministers discretion with respect to
particular kinds of decisions in individual cases. You are absolutely
correct that that is widespread, pervasive and simply a part of the system.
However, ministerial instructions are, as far
as I know, novel and distinctive, and I have not seen them used outside of the Immigration and Refugee Protection Act. I defer if there is evidence to
the contrary. The concern about them is that they give the minister the
power to make law without appropriate legal pedigree, and more concerning
still is that they appear to be used to overrule what is genuine, beyond
debate, law and regulation.
The Chair: one further quick question, professor. You said earlier that you felt the immigration visa officers were
ill-equipped to deal with making these decisions, whether or not a worker
should be allowed to enter the country; yet when you say that, what comes to
mind, many times we have heard that when statutory changes are proposed that
would limit judicial discretion, it is problematic because judges are on the
front line. The judges are there, they are familiar with the facts and the
given circumstances of that particular case, and it has been argued they are
the ones best able to make those decisions.
Similarly, would the immigration visa officers
not be the ones best equipped? They are the ones dealing with the facts.
They are the ones who have built up the expertise in dealing with these
matters. Would they not be the ones who would be most equipped to make these
decisions? Those decisions have to be based upon something, yes, upon the
ministerial instructions. They cannot go off on a lark of their own; it has
to be grounded in something. I am curious why you would say they would be
Ms. Macklin: Here I would evoke Professor
Hennebry's earlier remarks, which are to say if we are concerned about
exploitation by employers, visa officers, a Canadian embassy or high
commission abroad will not have the kind of nuanced understanding or
familiarity with the practice of specific employers in Canada to make the
Really, I am referring here to how well
equipped a visa officer is in comparison to other bureaucrats at other
points in the system. By comparison, here you have the people who do the
labour market opinion and people who have familiarity with particular
employers and their track record of how they treat workers. Do they pay them
properly? Do they abide by all occupational health and safety criteria? Do
they abide by maximum hours, minimum wage requirements and so on? Those are
the sorts of things a visa officer abroad would actually not know.
I am not comparing how equipped the visa
officer is to a judge; I am comparing how equipped the visa officer is to
other people in the system. Again, once we recognize that the perpetrators
of exploitation are Canadian employers and recruiters primarily in Canada —
some of whom are abroad but some of whom are in Canada — then giving the
decision-making authority of the discretion to a visa officer abroad is
probably not giving it to the right person.
The Chair: Thank you for that response.
Senator Fraser: I have two questions, both
for Professor Macklin. Let us try to keep the questions and the answers as
concise as we can.
The first is a point of clarification arising
out of one of your answers to Senator Jaffer. Back to humiliating or
degrading treatment, including sexual exploitation, I now find myself
wondering whether humiliating or degrading treatment, under the terms of this bill, will necessarily have to include sexual exploitation and that
other humiliating or degrading treatment would not be covered by this act, or whether sexual exploitation is just
one example of humiliating or
degrading treatment. What do you think?
Ms. Macklin: I would read "sexual
exploitation" as one species or one example of humiliating or degrading
Senator Fraser: Second, this follows in a
sense on your exchange with Senator Frum. Over the weekend I read a very
interesting paper that you wrote in 2003 in the International Migration
Review called "Dancing Across Borders: ‘Exotic Dancers,' Trafficking, and Canadian Immigration Policy." You had a passage in there on something
called the Almanzo Project, which seemed to address the fact that — as we
are all agreed, we are talking here about human tragedies that are extremely
complex and difficult to solve, but the Almanzo Project sounded like an
interesting approach. Could you tell the committee about it?
Ms. Macklin: It was a joint initiative of, I believe, the police, the RCMP and to some extent what was then CIC and I
guess has since become the Canada Border Services Agency, to address
concerns about foreign national women, among others, in the sex trade
It would appear that Canadian consumers of services in these clubs prefer women to do things that are not in fact
lawful. They pay extra money to have these women do things that are not
lawful, and bar owners therefore demand it of them. Women who need the money
do it, and that is how the cycle goes on. The problem is that those women
are fearful of being discovered and fearful of being deported, so they are
the least likely to complain about it.
Project Almanzo was designed to find a way for
women to safely speak up without fear of removal from Canada. It is
precisely immigration enforcement that heightens their exploitability.
Unfortunately, as I understand it, though the
program was launched and seemed to be proceeding, it was dismantled, and
that is all I know about it. I do not know that it has been revised in any
Senator Fraser: one of the interesting
things you said about it in your reference in this paper was that there was
a program for the women whereby charges against them — because they are
engaging in these illegal acts — would be stayed if they completed English
and computer training courses. Over the course of a year, they appear to
have had 115 graduates, and that is just in Toronto. It sounded pretty
successful. You do not know any more about it?
Ms. Macklin: No, I am sorry, I do not. one of the things about women migrating as sex workers is that many
of them have
many other qualifications, but our immigration systems — and this is true of Canada and globally
— are quite restrictive. For women, often their only
route to migration is by engaging in some commercialized form of traditional
women's work, and that means child care, sex, and/or marriage or housework, as it were. Many
of these women certainly would like to be doing different
kinds of work or are qualified to be doing different kinds of work, but our
immigration system is narrow in who it admits, and that is one of the
reasons they end up coming in through these routes. I think that is all just
a way of reminding us that we should not be defining these women solely in
terms of the work that their particularly desperate situation has resulted
in their doing.
Senator Runciman: My question is a
follow-up to what Senator Frum was posing to the witness. Essentially, the
intent of this legislation is to protect individuals from exploitation and
victimization. I gather from what you are saying here that the position is
that an officer should ignore the intelligence he has on the probable fate
of an individual, let that person in, and the position is that we can
eradicate abuses here. I guess you have to accept that if we are wrong, people will be abused and we are condemning potential victims to abuse. I
conclude that is the position of the witnesses today.
The Chair: Professor Hennebry, would you
care to respond?
Ms. Hennebry: I think that is not quite
what we are trying to get across here. Certainly, prior to even the stage of there being a work permit issued at a visa office, there should already have
been a process by which the veracity of the employment offer was assessed, and this should have some teeth. By the time it gets to that stage, we
should have already done our job and made sure this job was, in fact, a job
that was legitimate, legal, and that there would be compliance with Canadian
law with respect to health and safety, among other things. To then say that
the only people who can then do something to help stop the point at which
these migrants are to be vulnerable is the visa officer speaks to what
Professor Macklin was talking about, a sad state of affairs with respect to
our own regulatory mechanism.
Ms. Macklin: Let me return to what I
believe to be the purpose of this provision. Candidly, this provision, I
expect, will not be used very often. What this provision is about is sending
a message that Canada cares about exploitation, cares about trafficking in
women, is really concerned about it, and, "See what we have done; we have
passed this law." We will have that law as part of the symbolic message and, in the meantime, not be doing any
of the practical things on the other side
with respect to actually regulating employers, who happen, unlike foreign
nationals, to be voters. It is more about appearing to do something while
not doing the sorts of things that might actually have a positive impact.
The Chair: Thank you, Professor Macklin. I
am sure I can speak for all of us around this table that we hope you are
wrong in that assessment, but we heard what you had to say.
Colleagues, that concludes our discussions with
this panel. Professor Macklin and Professor Hennebry, we want to thank you.
Your comments were thoughtful and pointed. We certainly did not have to
guess what was on your mind, and that is very helpful to us. We appreciate
that. Thank you and we look forward to perhaps having you before us again in
Colleagues, we will now continue our
consideration of Bill C-10, the safe streets and communities act. We now
have a change in focus from our previous panel. This is our fourth panel of
the day. This panel and these discussions will focus on Part 1 of Bill C-10.
That part provides for the enactment of the justice for victims of terrorism
act. The stated purpose of this act is to deter terrorism by establishing a
cause of action that would allow victims of terrorism to sue perpetrators of terrorist acts and their supporters for the losses and damages they have
suffered. Part 1 also proposes to amend the State Immunity Act to create a
new exception to what is known as state immunity, which is the general rule
that prevents foreign states from being sued in Canada's domestic courts.
The proposed new exemption would remove state immunity only when the state
in question has been placed on a list established by the Governor-in-Council
on the basis that there are reasonable grounds to believe that the state has
supported or currently supports terrorism.
Colleagues, we are very pleased, for this
portion of our discussion, debate and consideration of Bill C-10, to have
representatives with us from the Canadian Coalition Against Terror, represented by
Ms. Maureen Basnicki, Co-Founder; and Ms. Sheryl Saperia, Senior Advisor. We also have,
from the Canadian Centre for International Justice, Ms. Jayne Stoyles, Executive Director.
Ms. Basnicki, I understand you have an opening
statement you wish to make.
Maureen Basnicki, Co-Founder, Canadian Coalition Against Terror: Thank you. The tragedy that crushed my family
on 9/11 and my thoughts on the justice for victims of terrorism act that is
designed to deter such horrors are very much a matter of public record.
Today, I simply wish to take this opportunity, on behalf of Canadian terror
victims, to say thank you to the Prime Minister for following through on his
election promise to introduce the JVTA; to the House Justice Committee for
introducing several key amendments that victims had requested; to Senator Tkachuk and so many
of his colleagues on both sides of the aisle in
both chambers who have been so supportive of our efforts; and to all
senators who will support what we have termed the Lockerbie amendments, which we expect to be introduced shortly.
Senators, I have done all I could over the last
seven years to bring this legislation to a final vote in Parliament. Its
passage is now in your hands, and I am here today to ask for your support
this one last time.
Sheryl Saperia, Senior Advisor, Canadian Coalition Against Terror: Honourable senators, I am so pleased to be
here today to discuss the justice for victims of terrorism act, a
legislative initiative that the Canadian Coalition Against Terror has been
working on for so many years and which some of the best legal minds in this
country have endorsed. I would be happy to address any specific provision
within the Bill during Q and A but, for now, in C-CAT's last committee
appearance before Bill C-10 is voted on, I would like to offer a big-picture
perspective on what you, as Canadian parliamentarians, would be
accomplishing by turning the JVTA into law.
Senators, the primary motivation of victims in
pursuing this measure has always been the deterrence of terrorism, and the
JVTA's potential to accomplish this goal is manifold. Civil suits have the
potential to financially impair the terrorist infrastructure through
successful court judgments, and even the possibility of being named in a
civil suit may deter potential sponsors, who rely on anonymity, from
supplying funds. In turn, a terrorist group will have trouble recruiting and
training its members, purchasing weapons and launching attacks if it or its
sponsors have been forced to spend their money paying out damages awards.
The JVTA, demanding the lower civil standard of proof, can hold terror
sponsors accountable even when the criminal justice system has failed to do
Civil suits can also garner the attention of government regulators to illegal conduct that they had not detected
themselves. For example, lawsuits filed in 2004 against the Jordan-based
Arab Bank for allegedly distributing compensation money to families of terrorist suicide bombers triggered a probe by U.S. bank regulators and a
Justice Department criminal investigation.
Lawsuits can additionally deprive terrorists of a key promotional asset. Jason McCue, a lawyer for the Omagh family members
in their civil action against the real IRA in Northern Ireland, has pointed
out that conventional state counterterrorism measures can be manipulated
into David versus Goliath propaganda victories that advance the terrorists’
agenda. A civil suit, however, deprives the wrongdoers of this opportunity.
Terrorists cannot portray themselves as the victims when parents who have
lost their children in a terrorist attack take the stand in court.
Perhaps most notably, the JVTA will end the impunity enjoyed by state
sponsors of terror. As Dr. Peter Leitner, a noted counterterrorism expert, has pointed out:
There is something fundamentally absurd
with the current legal arrangement in Canada that allows lawsuits
against Iran for selling you rotten pistachios, but bars legal
action against them for sponsoring terrorist attacks which kill
Canadian citizens abroad . . .
Lastly, passage of the legislation should help
facilitate the execution of suits against local terror sponsors and
perpetrators. The JVTA carves out a specific cause of action rather than
relying on general tort principles. The bill's retrospectivity and
limitation period will also be helpful to existing terrorist victims in
filing claims against their local wrongdoers.
I conclude by quoting an excerpted passage from an email written by a
Canadian recently convicted of terrorism offences:
We have to come up with a way that we
can drain their economy of all its resources, cripple their
industries, and bankrupt their systeMs. . . . Imagine if there were
10 September 11’s, wouldn't that accurately bring America down, never to rise again? Yes, I understand that innocent human beings
died, but there is absolutely no other way of achieving the same
objective with the same effect.
The JVTA turns these malicious ideas on their
head by attempting to cut off the terror economy in order to save, rather
than wreak havoc on, innocent lives. Moreover, victims take their fight to a
court of law without advocating for violence.
Senators, by providing a civil remedy for the
contravention of terrorism-related criminal laws, private citizens are
poised to strengthen Canada's efforts in confronting terrorism and terror
Jayne Stoyles, Executive Director, Canadian Centre for International
Justice: Distinguished members of the committee, I want to thank you for
the opportunity to speak to you today about Part 1 of Bill C-10.
I want to say first that I think it is positive
that Parliament is considering creating a cause of action that allows
victims of terrorism to sue perpetrators of terrorism and their supporters.
Survivors of terrorism need recognition, support and compensation where
possible, in the same way that the survivors of so-called common crimes
often need justice as part of their healing process after a traumatic
I also believe firmly in the possibility that
at least some of those who plan and carry out such horrific acts of violence
can be deterred if it becomes likely that they will be held responsible in a
court of law. Those dual goals of allowing victims to seek redress and
deterring future atrocities of this magnitude are at the heart of a global
trend towards bringing foreign governments and individual officials to
justice before both international and domestic criminal and civil courts.
I want to raise two key points with respect to
the sections of Part 1 that seek to amend Canada's State Immunity Act so
that the act could no longer shield foreign governments and their agents
from civil lawsuits in Canada.
The first point is that it is entirely
appropriate, and indeed overdue, for the State Immunity Act to be amended in
this way, as most nations now acknowledge that they should not be immune for
everything, not when they are engaged in activities that are contrary to
international law and therefore cannot be said to be within their sovereign
powers. There are already exceptions to Canada's State Immunity Act allowing
foreign states to be sued in Canada for commercial activities and for their
responsibility for death, bodily injury or property damage that occurs in
Canada. These exceptions were included because the underlying activities are
not deemed to be within the sovereign powers of the state. Similarly, acts
of terrorism are not within the sovereign powers of a state.
My second point is that it is absolutely
essential that a parallel amendment to the State Immunity Act be included
for torture, war crimes, crimes against humanity and genocide, which, along
with terrorism, are considered among the most serious violations of international law. The victims
of these heinous crimes are no less in need
or deserving of justice, and the goal of deterrence is no less essential.
I know you are all familiar with the case of Zahra Kazemi, a Canadian citizen who went to Iran in 2003 with a permit as a
photojournalist and was tortured and killed. Her son Stephan has since
devoted so much of his life to the pursuit of justice. His lawsuit in
Montreal against the Government of Iran and individual Iranian officials is
the only hope he has left. If you spent five minutes with him, you would
want nothing more than for him to have the justice he seeks. Yet, Canada's
State Immunity Act has been resulting in the use of taxpayers' money for
representatives of the Government of Canada to stand on the other side of the courtroom, with the Iranian government, and argue against his right to a
remedy for the torture and death of his mother.
Iran's argument that it is immune from the
lawsuit because of the State Immunity Act follows a decision in Ontario that
denied justice to Houshang Bouzari, a businessman who was also tortured in
Iran and now lives in Toronto.
Mr. Bouzari, like all torture survivors, continues to suffer enormously from the physical and psychological trauma. I
remember a powerful conversation I had with him when we first met. He
described to me how difficult it is to live with the fact that the denial of justice in his case, because
of the State Immunity Act, allowed the same
government and the same individuals to kill Zahra Kazemi and other Canadians
In the interests of time I will just flag a few
additional key points that I can expand on during the question and answer
session as to why it would be entirely appropriate and in Canada's interests
for you to insert the language that I have with me, which was developed by a
group of law professors and lawyers, into Bill C-10 to create this
First, the prohibition against torture is
extremely clear in international law and therefore an act that governments
should not be allowed to claim as a "sovereign act."
Second, allowing lawsuits in Canada for acts of torture committed abroad will not swamp Canadian courts because there are
checks and balances in the system already, and there are more checks in our
Third, immunity for torture, war crimes, crimes
against humanity and genocide has already been eliminated in Canada and
internationally for criminal cases concerning these acts.
Fourth, as the world struggles to respond to
crises like the current situations in Syria and Iran, being able to bring
some of the officials responsible for atrocities to justice is such an
important tool, not only of response but also of prevention.
Finally, the Bill that I have with me, copies of which are available, was introduced in the last session
with support from MPs from all parties and endorsed in a December 2010
report of the Standing Committee on Foreign Affairs and International
Development as it considered how to respond to the situation in Iran.
It is fitting that we are discussing these
issues on a day recognized as Family Day in some provinces in Canada. You
have an opportunity to prevent Canadian families from having to suffer the
enormous trauma that results from terrorism and torture, and I hope you will
seize that opportunity today in the interests of all Canadians. Thank you
for your time.
Senator Fraser: Welcome to all of you, and
welcome back to Ms. Basnicki and Ms. Saperia. I think it is no exaggeration
to say that the power of your testimony before this committee when this Bill first was bruited had a great deal to do with moving the whole project
forward. I do not think that any of us who were here that day will ever
forget. Thank you for that.
Ms. Stoyles, you referred in your presentation
to language that you have with you. I assume you meant the text of the
private member's Bill that was presented by Mr. Cotler in the last
Parliament. Goodness knows it sounds tremendous, but I find myself wondering
if the perfect is not the enemy of the good here. We have before us a Bill that addresses the question
of the victims of terrorist act. If we decide to
shoehorn in all these other nefarious acts, do you not see a risk that we
would find ourselves faced with the usual expostulations from learned civil
servant who would say, "Oh, but you haven't understood the implications for
this, that and the other, and it doesn't fit in this bill," and the whole
thing could grind one more time to a halt?
Ms. Stoyles: I also have a hesitation in
raising it because of all the incredible work that has been done on this
issue of terrorism. By no means do I want to undermine that by raising these
However, as an organization that provides legal
services to torture survivors and survivors of other atrocities, our
challenge is that it is difficult to explain to them why people who have
suffered similar kinds of trauma and the aftermath of that have a right to a
remedy, and yet these other acts that are recognized as serious in
international law do not yet allow for a remedy. The mechanism of doing that
I would leave more to you, but it is difficult for us to go away thinking, "Now we begin again." This
Bill was introduced a couple of times in
Parliament. Parliament was prorogued or an election was called, and we began
It is a very similar kind of crime or act with
a very similar need for redress, and it strikes me as fitting very well as
we are creating this amendment to the State Immunity Act.
We are not asking for a similar creation of a
cause of action as is requested for terrorism, but simply the parallel
amendment to the State Immunity Act.
Ms. Saperia: I fully respect your agenda
here. My concern, to paraphrase Irwin Cotler, the sponsor of this private
member's bill, is that by commingling the two concepts of terrorism and
torture into a single Bill you end up doing a disservice to both. If it were
up to me, I would want this Bill to continue to focus on terrorism and
terror financing. Bringing in other egregious crimes, albeit they are worthy
indeed of legislative attention, would cause the Bill to suffer.
I highly recommend that you continue, as you
have, to pursue a completely separate Bill dealing with crimes like torture, war crimes, crimes against humanity, et cetera.
Senator Fraser: Ms. Stoyles, I believe this
is the first time that this particular project has been brought to the
attention of this committee. Ms. Basnicki and others will be able to tell
you that the road may be long, but you have taken some good steps along it.
I thank you for bringing it to our attention.
Senator Runciman: I assume that everyone around the table is
sympathetic to what you are suggesting here today, Ms. Stoyles. I assume you appeared before the house committee on
Bill C-10 and
made your case. We know that there was a last-minute all-party agreement to
do what we are going to be doing here, hopefully. That might jeopardize the
process or, at best, delay it, so I think the suggestion of looking at this
as a separate effort on the part of the government might be appropriate.
In terms of the logic of the amendment
regarding the liability of foreign states, I am wondering how a judgment
would be obtained against a foreign state or entity. one of our witnesses to
follow, I believe, was referencing the American experience with similar laws
allowing victims of terrorism to sue state sponsors. The American courts
have awarded almost $19 billion to American victims, but most of that has
never been collected.
Would you like to address that issue?
Ms. Saperia: It is true that more money has
been awarded than has been collected in the United States. However, hundreds
of millions of dollars have ultimately been collected by victims there.
Simply put, our view is that not every case will be successful and not every
case will be collected upon, but if even one case results in a successful
collection that prevents one terrorist attack, this Bill will have done its
I would like to explore your question further
because it is a really good one. Is this Bill just symbolic? Can victims
actually succeed in getting judgments and have them enforced? I will focus
specifically with regard to foreign states.
My position is, first, within the Bill the
Minister of Finance and the Minister of Foreign Affairs are encouraged, under proposed section
12.1 of the State Immunity Act, to assist the
successful victim plaintiff in identifying and locating assets and property
of the foreign state in Canada. Although that language could be stronger —
it uses optional language, such as they "may" assist, rather than compulsory
language, which we would love to see — nonetheless, that section will help
to boost the plaintiff's chances of successful collection.
It is also possible that a foreign state will
voluntarily submit to the jurisdiction of the Canadian court or comply with
the court judgment. Let me explain that, because one's first thought is why
in the world would a foreign state agree to pay up in a Canadian court? I
would say it is really hard to predict how the political context will
influence a state's decision as to whether to get involved in this type
I would like you to consider the Lockerbie
bombing case. In 1988, a Pan Am flight was blown out of the sky. After
several years of criminal investigations all signs pointed to Libya's
involvement. American victims actually lobbied the U.S. government and
succeeded in getting changes to their laws in order to be able to sue Libya.
Libya was found liable and, of course, refused to pay.
Now, around that time the U.S. and the UN both
imposed very heavy sanctions on Libya, and as a result of those sanctions
Libya agreed to pay out I believe it was $8 million to each family, in order
to get those sanctions lifted. You never know exactly how the dynamics will
affect a foreign state's decision.
There are many other things I can say. I am
happy to discuss further, but that is just for you to consider.
Senator Runciman: You referenced the
government identifying domestic assets. Is that all they do? To use the U.S.
as an example, do they simply identify or do they actually seize those
assets and make them available?
Ms. Saperia: We envision here a court, if
they were to find a state liable, would be able to actually freeze those
assets within Canada, but the court would not necessarily help them locate
those assets. The government's role here would be to help locate, and then
it would be the court's job to get involved.
In the United States, they have really
complicated things. We have one consolidated piece of legislation here that
does the job. There they have five or six or seven pieces of legislation
trying to accomplish what this Bill does, with the President having a waiver
in order to bar the seizure of a foreign state’s assets. There is something
else in the United States that is very complicated, which we have not
advocated for here and is not present in the Bill — that being the ability
to try to seize diplomatic property of other foreign states. That is not
something that we seek, and in fact we would probably view that as a breach
of the Vienna Convention. They have had more confusion there.
Senator Runciman: Have you looked at
privacy issues provincially or federally? Are there any privacy issues with
respect to this initiative?
Ms. Saperia: I do not believe privacy
issues have ever come up in the concerns, and I would tell you that some of the best lawyers in this country have reviewed this
Bill over a period of probably seven years, and that has never come up as a potential problem.
Senator Jaffer: Thank you for coming again.
As you know, the last time you were before the Anti-terrorism Committee. I
certainly commend you, Ms. Basnicki, for your persistence in this, and I
also recognize the sad loss you have suffered. You have shown great courage, and I salute you for that.
Ms. Saperia also appeared before the
Anti-terrorism Committee. I certainly am supportive of what you are doing, but I will raise some
of the same concerns that I raised last time, and
maybe since then you have had some answers.
As you remember, I had brought up the issue
that — and correct me if my steps are wrong now — Canada identifies a
country and puts it on the list of countries you can sue, identifies the
assets and the victim starts the action. While the action is proceeding —
and we all know these things take many, many years — Canada delists that
country. I had raised this same concern with you. I did not get an answer
from the government or anyone about what happens.
My concern is, once again, we are raising the
expectations of victiMs. I am concerned, if you did get an answer, will
Canada continue to support the victim while their action is continuing? Have
you heard anything further on that?
Ms. Saperia: Thank you so much for that question. I actually think
that as a result of concerns like yours we were able to insert another
amendment into the Bill in one of our last hearings. I would like to turn
your attention to the State Immunity Act amendments, proposed section
6.1(10). I will read it for you:
If proceedings for support of terrorism
are commenced against a foreign state that is set out on the list, the subsequent removal
of the foreign state from the list does not
have the effect of restoring the state's immunity from the
jurisdiction of the court in respect of those proceedings or any
related appeal or enforcement proceedings.
That means that as soon as that state appears
on a list and a suit is commenced, whatever happens in that process —
because you are quite right, it could be a long process — that suit will be
allowed to continue to its end, including any appeals or enforcements.
Senator Jaffer: As you know, this was one of my very big concerns the last time we met. What I am concerned about
and I may not have said this very clearly — is what happens to the assets
that are identified? Will the victims still have access to those?
Ms. Saperia: My reading of this legislation
is that it would continue to allow the suit to proceed, just as if that
state had never been removed from the list.
Senator Jaffer: The other concern I raised
last time, which continues to be a big concern for me but this Bill cannot
cover it, and some of the things that you raised, concerns the fact that
sometimes the biggest threat is within our country. Today we are looking at
a foreign state, but another day we need to look at de-radicalization within
our own country, and there is still a lot of work to be done on that.
Ms. Saperia: In terms of de-radicalization
efforts, I agree with you 100 per cent, and certainly this Bill does not
cover de-radicalization, but the Bill does enable civil suits against local
terrorist sponsors and perpetrators. This is not simply dealing with foreign
states and threats from abroad. This does deal with the threat from within
Senator Jaffer: Once again I want to thank
you for your work.
Senator Boisvenu: Congratulations on your
work! When someone is a victim of crime, keeping up the fight takes years
and a lot of energy. one thing is certain, though: when victims speak out, they take the power away from the criminals.
My questions are technical. A Bill remains
theoretical for me until it comes into force and improves things for victims
I will give you a series of questions and then
you can answer. My first question concerns prosecution costs. A lot of victims do not prosecute criminals because
of the cost. Who assumes the
cost? Prosecuting a country is not the same as prosecuting an individual.
My second question is this: once you have won a
case, you need to recover the money. If the fight goes on for years and, in
the end, there is no improvement for victims, I am certain that victims will
not want to speak out and prosecute in the future. We see it in sexual
crimes where only one woman out of ten speaks out because they are often
afraid that when the legal proceedings are over, the criminal will be better
off than the victim.
What will be the procedures and support that
you will eventually show to ensure that the country or terrorist group that
has been found guilty pays the compensation?
My third question concerns the assets of these
countries or groups that might be in Canada. What role should the Canadian
government play to speed up or facilitate the seizure of those assets when
the country or group is found guilty of terrorism or of crimes against
Were my three questions clear?
Ms. Saperia: Let me try to go through them
and if I miss anything, please remind me. In terms of the cost that it would
take to file a civil lawsuit, that is true, it can be very expensive. There
are a few comments that I would like to make about that. First, the point
here is that terror victims should be granted a civil remedy that they can
decide to exercise or not. Just like any other victim of any other crime in
this country, they should be able to make an informed decision by going to a
lawyer and by discussing whether it is financially prudent to file a civil
suit. That is a question that any victim will have to encounter: Does the
defendant have deep enough pockets? Is there a chance of collection? We are
arguing to let victims of terror have the same chance as anyone else in this
country to make an informed decision about whether it is in their interest
to pursue that claim or not.
The other point is that lawyers are in a
position to make contingency arrangements, and they can say to a victim, "I
will only charge you if you are successful," in which case that could
prevent a victim from being terribly out of pocket.
In terms of trying to create mechanisms that
will increase the likelihood of payment, this goes back to the question of whether defendants will ever abide by a Canadian court's order; what are the
chances of collectability? I would like to go through a few considerations
First, when we ask whether this Bill is only
symbolic, let me say that the symbolic element of the Bill should not be
diminished. Parliament is making a clear statement that terrorism is an
issue that they take seriously, that terrorist sponsorship will not be
tolerated and that, importantly, victims have a key role to play in this
process. In criminal proceedings, the victim has barely any role at all; in
civil proceedings, they get to initiate the suit and settle, and they get to
choose their own legal representation.
Second, victims may find that they have very
good reason to pursue a claim in court, even if they do not anticipate
collection of a damages award. Turning to the civil courts offers them an
alternative avenue to pursue justice. The civil process, regardless of the
end payout, can publicly and officially identify terrorist sponsors, hold
them civilly accountable, utilize the discovery process to unravel the
illegal financial networks that terrorist sponsors try so hard to obscure, and establish as a matter
of public record the victimization of the
plaintiffs by the defendants. I come again to this point that terror victims
should be able to decide for themselves whether it is worth it.
I would like to make a few other points. Local
sponsors of terror with assets in Canada will have difficulty evading
judgments against them because it will be easier to locate and seize their
assets. I have also made the point about state sponsors and all different
considerations that will be involved in whether or not they decide to pay.
There is another aspect, too. Over the years, we have gotten some indications from allies that they are interested in this
type of legislation. If, one by one, Western countries choose to enact
legislation like this, terrorist sponsors will run out of places to hide
their assets. As a result, they are going to hurt financially from this.
I have two more points and then I will be done.
I have read certain critiques of this Bill and they drive me crazy. I wanted
to dispel the notion that the JVTA is merely symbolic because "in an age
when people are willing to commit suicide to achieve ideological ends, it is
hard to imagine the threat of civil liability in a far-off country deterring
The argument is that terrorists in caves are
unlikely to be deterred by civil suits or to pay out any damages awards.
Senators, these types of criticisms suggest a profound misunderstanding of
the bill. While perpetrators can be targeted under the legislation, and I
hope they will be, one of the primary objectives is to go after the sponsors
of the terror — that is, individuals, organizations and states that do not
reside in caves. They have assets in their names and they attempt to obscure
their involvement in illegal activity and they have incentive to appear on
the right side of the law. I envision some good things coming out of this.
My final comment is that if the JVTA is enacted
and victims are systematically unable to collect on judgments, then
something has gone wrong and Parliament should revisit and insert whatever
amendments are needed. At this point, I am confident that this Bill is very
strong, and I think we can do some damage to our enemies.
The Chair: Ms. Stoyles, is there anything
you wish to comment on in regards to Senator Boisvenu's questions?
Ms. Stoyles: In response to some of the
other comments, I understand that senators may decide this is not the time
for this parallel amendment. Perhaps this is just to bring it to your
attention for the future; that is also important. I also want to say that by
no means do I want to undermine what my colleagues are here to achieve
today. I am here entirely in support of that. However, I will ask you again
to consider whether this is a way to do this that would not unduly delay the
As we have been looking at this process for a
couple of years, we have had situations in Iran and in Syria, to give two
examples right now, that have been garnering significant international
attention, where many tools are being brought out. I strongly believe in the
possibility of justice. Houshang Bouzari said that if there is the
possibility of bringing these kinds of cases forward, we do have the
possibility to deter these kinds of crimes from being committed. The
Kazemi case is right now on appeal in Quebec, and Stephan Kazemi's right
to proceed because of existing exceptions in the State Immunity Act has been
allowed because it has been deemed that he suffered his injury in Canada, his nervous shock, as a result
of his mother's death. However, both her
right and the right of the state to proceed have been precluded. It is a
call to Canadian Parliament to act.
The Ontario Court of Appeal's decision in the
Bouzari case has resulted in a reprimand from the UN Committee
Against Torture, the committee charged with interpreting Canada's
obligations under that convention. We were slapped on the wrist for our
interpretation in the Bouzari decision. Now we are up for review
again, some seven years later, and again we have to demonstrate that we are
no further along in providing a right to civil redress for victims of torture.
I have a couple of quick points in that context
in response to the senator's questions. Around costs, in this context, what
we have in Canada, in terms of possibilities for criminal prosecution of war
crimes, crimes against humanity and genocide, is a wonderful new piece of legislation that was passed in 2000, which outlaws all those crimes. We have
the budget in Canada to prosecute one case at a time. At the same time, we
have an alleged 2,000 or more war criminals in Canada. Criminal prosecution
is not an option in Canada to give people a sense of the possibility of redress, yet our organization works with the help
of pro bono lawyers
willing to give their time. All of our work as a charity allows the
possibility of civil redress for people to go directly to court when they
cannot get justice any other way, and to bring those cases forward as part
of this global system of justice that we are trying to create. That is one key point.
Around enforcement, I think Ms. Saperia made
the key points. In terms of enforcement, I would add that there is some
possibility of seizure of assets and other types of recovery, but
compensation is not often the primary driver for many people. If you ask Mr. Kazemi what his motive is, he will say in no way does he ever want to
benefit financially from what happened to his mother. This is about the need
for justice, the need for a court of law to say that this should not have
happened to him and his family and his mother. It is about his incredible
drive and the drive that I have heard from many people who are victims to
not have this continue to happen to other Canadians while we just sit here
and talk about the changes that we might make.
Senator Munson: That follows the question I
wanted to ask because there are so many questions on the technical side. We
use a lot of abbreviations around here, like JVTA, when there are folks
watching us and watching us go through this parliamentary procedure of studying a
Bill dealing with justice for victims of terrorism.
Ms. Basnicki, so people know and understand and
we can put a face to this, when this law takes place, what will change in
Ms. Basnicki: I think my colleague just
mentioned it, and actually said it very well. Justice for victims of terrorism, to date, has been elusive. There has been no closure for us, no
sense of justice, and in many cases the perpetrators are dead.
If I could have my day in court — and unless this law is passed, I do not
see a day in court — and I could look at individuals, organizations or
states and say, "You raised money to kill innocent civilians, and one of those innocent civilians was my husband,"
then I will feel some sense of justice. It boils down to that. It is the
closest that we can get to having some kind of closure. If we can do this
and know that it will prevent other Canadians — and it was mentioned that
today is Family Day — I do not want any family to have to go through what my
If I can create a legacy for my late husband
that will help deter future acts of terrorism and prevent other Canadians
from being in the horrific state that we found ourselves in, then it will be
a very good day for me.
Senator Lang: I would like to put a
question to Ms. Saperia, if I could. In your remarks you mentioned that the
more countries that enact this type of legislation, the more difficult it is
for those that would go into this type of activity to find a place to put
their assets, and subsequently we can diminish, perhaps, the roles they can
How many other countries, other than the United
States — and if this goes through — Canada, have enacted this legislation, and are other countries considering such pieces
Ms. Saperia: Currently only the United
States allows for civil suits against foreign states in this concept. There
are a whole bunch of other countries that have permitted civil suits against
local terror perpetrators or sponsors. In fact, the Omagh case I
referenced earlier in my remarks in Northern Ireland has been a fabulously
successful case for terrorist victims with local perpetrators.
With regard strictly to lifting state immunity
for the support of terrorism and being able to launch a civil suit against a
foreign state, only the United States thus far has passed such legislation.
I personally think that, for better or for worse, Canada has a lot more
credibility on the world stage, and I believe that other countries may
sooner follow Canada's precedent on something like this.
In terms of which other states would be
interested, I cannot say at this point. Any interaction we have had has been
in confidence. I am confident only in saying that I believe other countries
are watching this process carefully, with great interest in pursuing similar
Senator Lang: Looking ahead with such a
piece of legislation being enacted and put on the books, what do you foresee
the implications to our court system will be? Have you given that any
Ms. Saperia: one of the things we really
wanted to ensure was that the Canadian court system was not going to be
bombarded with frivolous suits, especially against democratic allies. That
was never the intent of this legislation. There are a number of hurdles
built into the legislation that I am extremely confident will prevent many
suits from going forward. There are a number of examples of these types of hurdles.
I will give you a couple of examples. If the
terrorist attack occurs in another country and does not occur in Canada, then the plaintiff actually needs to try to arbitrate the matter according
to international rules of arbitration, and a Canadian court can refuse to
take jurisdiction of the case until those arbitration procedures have at
least been attempted in a meaningful way.
Another example is that a real and substantial
connection is specifically mentioned in order to allow a case to proceed in
a Canadian court. We have been adamant that this Bill not create universal
jurisdiction, meaning anyone can bring any terrorism-related case to a
Canadian court. That has not been the intention here. There needs to be a
These are just the types of examples that
absolutely will ensure that there will not be an influx of cases, aside from
the fact that these cases are challenging and complicated, and I do not
think it is worth anyone's money or time to pursue it unless they were very
serious and had a very good case.
Senator Angus: Thank you all, ladies. It is
I will address this question to Ms. Saperia. If this legislation passes,
do I understand there could be civil suits for damages arising out of Lockerbie, the Pan-Am explosion that Libya has
allegedly perpetrated, or is it too late? Is there a time bar? What is the
Ms. Saperia: That is an excellent question.
I want to say that our considerations of how a Lockerbie-type case
could be dealt with within our legislation are actually because of previous
Senate hearings on earlier iterations of this bill.
With regard to the timeline, for instance, the
Lockerbie bombing took place in 1998. From a timeline perspective that could
fall within this Canadian Bill because this Bill is retrospective to 1985, specifically to ensure that Air India victims would be able to benefit from
this bill. Air India victims are the largest constituency of Canadian terror
victims, and the thought of excluding them from any benefits of this
legislation was unacceptable.
However, as the Bill currently stands, this Bill would not allow a suit against Libya for its activity in the
Lockerbie case. Let me explain. What this Bill does right now — and I
think this will change, so I hope there is a very positive answer to your
question at the end — is allow a civil suit against a foreign state for
providing support to a listed terrorist entity under the public safety list
of terrorist entities, and that listed entity was responsible for causing
the loss or damage to a Canadian victim.
What if, however, as in the Lockerbie
case, the foreign state used its officials directly to cause that harm, not
through a proxy? As the Bill currently stands, it would not allow a suit
against Libya for that action. That is why the Canadian Coalition Against
Terror has been very vocal about introducing what we have termed the
What those amendments would do is not create a
new exception for state immunity, because we did not want to make this too
broad, but what we have said is that once a state has lost its immunity for
supporting terrorism, it should also be able to be sued for directly
engaging in terrorist activity. Those amendments were introduced in the
house, but unfortunately they were introduced too late. We have been
signalled the intent to introduce those amendments in the Senate. I do not
know what the timeline of that is, but I hope it is very soon and that all
of you will support it. It is a really important and entirely logical
Senator Angus: Let us assume that amendment
becomes law. I am focusing on all this media attention to this very lavish
condominium in Toronto on the harbour front owned allegedly by the state, according to some government officials, and belonging to the individual son
of Gadhafi, according to others. As you anticipate this Lockerbie amendment
coming into law, would one then be able to do a seizure before judgment of that kind
of property? Is that how it is envisaged to play out?
Ms. Saperia: Assuming that the foreign
state is listed on the government's list of state sponsors of terror who
could be sued, then in theory that is the type of asset. It is a
non-diplomatic asset that could be seized and used to pay out a successful
damages award in favour of a victim plaintiff.
Senator Angus: Chair, I want to make sure I
understand it. The Lockerbie amendment will or will not become part of the
law. Assuming now it does not, it can only be one of the listed terrorist
organizations like al Qaeda? Is that the type? Whom do you sue? Whom do the
victims of Air India sue?
Ms. Saperia: Let me try to address the
first part. Let us assume that the Lockerbie amendment does not pass, as you
say. I certainly hope it does. Two things would need to happen. First, cabinet, on its list
of terrorist-sponsoring states, would have to include —
and we are using the Libya example here — Libya on that list. Prima facie, Libya could be sued. The second step would be whether Libya has supported a
listed entity such as an al Qaeda and in turn that listed entity has caused
the terrorist activity. If you can show both those things, then the suit
would be able to proceed and in theory be successful.
In terms of Air India specifically, as it
stands right now, research has indicated that this has been a local matter, and so there are local individuals, though, who were accused and acquitted
in a criminal court. This could be an example where someone could be proven
liable in a civil court where they were unable to be proven guilty in a
Senator Angus: This was your point earlier
about it has to be the individuals in a case like this, and to make it
worthwhile, you would have to determine whether, your words, there were deep
enough pockets to make it worth the effort, if they have money squirreled
away in Northern B.C.
Ms. Saperia: Or if the victims do not care
whether they actually get paid.
Senator Jaffer: I was going to ask about
the Lockerbie amendment. We all know that is in the works because it is not
in front of us yet. That was exactly my question, and I should have pursued
it. If the list were in place, let us assume Libya would have been on the
list. Now we are not so sure.
Ms. Saperia: Because of the political
Senator Jaffer: The change in Libya.
Ms. Saperia: Correct.
Senator Jaffer: What happens now? We have
not started a case, we are not so sure what will happen, and so that is a
Ms. Saperia: I agree. If the list were
created right now, it remains to be seen whether the political decision
would be to list Libya for its past actions or whether they would want to
start anew and say this is a new government, a new regime, hopefully making
different decisions. As much as I would love to be in charge of making that
list of terror sponsors, I will leave it to hopefully the very capable hands
Senator Jaffer: If it has not happened, then sadly some of those victims will not be able to use this.
Ms. Saperia: That is correct.
The Chair: Colleagues, we have 10 minutes
and I have three senators listed in the second round.
Senator Fraser: If Libya is on a list and
taken off a list before a suit is brought, there is no way you can bring the
suit; am I correct about that? A short answer, please.
Ms. Saperia: I am sorry. I feel like I am
talking too long. The provision says if proceedings for support of terrorism
are commenced against a foreign state that is set out on the list then the
subsequent removal would not affect it. That reads to me that a suit would
have to be initiated first.
Senator Runciman: I wanted to commend
Ms. Basnicki for her years of effort, and the contribution she has made to
this cause is remarkable. I know it was a very difficult period for her
family and herself, of course. I was personally proud that the Ontario
Office for Victims of Crime in the aftermath of 9/11 was able to provide
some assistance to Canadian victims of terrorism. The federal help was not
there. That is essentially what the situation was. Today, what is the
situation with respect to federal assistance that might be available to
Canadian victims of terrorism?
Ms. Basnicki: Terrorism put me in the
victims of violent crime club, and sadly at the federal level there is still
a lack of a policy or plan in place. Terrorism, unfortunately, is still a
provincial matter, and I find that incredible; but it is another area I am
working on, and I thank you, senator. I do recall you were working for the
Ontario government, and certainly the Ontario government of the day did
everything possible to help us out.
There was little communication and cooperation
between the provincial and federal governments at that time. I am very
encouraged at how things have changed tremendously, and I look forward to a
new plan and policy.
Ms. Saperia: May I jump in for five seconds
to add to that? I promise to be very quick. As Ms. Basnicki indicated, federal compensation is absolutely non-existent, and provincial compensation
fluctuates across the provinces and varies greatly. It only covers injuries
that occur within the province, so if you get injured outside of it, you are
completely out of luck.
I want to bring to your attention a provision
within the Criminal Code, meaning a federal provision, that would actually
provide assistance to victims, and the government has done absolutely
nothing on it, so I would encourage all of you to find out why. Section
83.14(5) of the Criminal Code allows for property to be disposed if it
belongs to a terrorist group. The next subsection, 83.12(5.1), says any
proceeds that arise from the disposal of property may be used to compensate
victims of terrorist activities and to fund anti-terrorist initiatives in
accordance with any regulations made by the Governor-in-Council. The
Governor-in-Council has made no regulations about this and no money that has
been seized has ever been given to victiMs.
I am not saying that victims are out for money.
In fact, my experience with Ms. Basnicki and every other terror victim in
this country with whom I have had contact has been that they are absolutely
not interested in the money angle. If there are federal provisions here that
are readily available that could make life a little bit easier for terror
victims in the aftermath of an attack, why are we not taking advantage of this?
Senator Runciman: Has any money been seized
under that provision that you are aware of?
Ms. Saperia: I will undertake to find that
out for you. We know that there are terrorist groups in Canada, so that
money should be seized. If it is seized, at the very least let the
Governor-in-Council make those regulations so it can move smoothly after
that. I leave that with you.
The Chair: Our final question of this panel
goes to Senator Boisvenu.
Senator Boisvenu: Thank you very much for this privilege, Mr. Chair.
Ms. Basnicki, you are quite right that aid for
victims is the responsibility of the provinces, and the federal government
is doing everything it can. But I can assure you that you can count on my
support. Once we have finished with Bill C-10, victims’ aid will be one of the files I will take on so that every province can provide a minimum to the
families. You can be assured of my support.
Senator Angus: Without charge.
Senator Boisvenu: Without a charge. I am
not a lawyer.
What is the process for determining the list of countries recognized as sheltering terrorist groups?
Is it a political process? Is it a legal
process? And once the country is recognized, is it a national list or an
Ms. Basnicki: I am not sure that I
understood your question, the latter part, with the translation. Perhaps Ms. Saperia can address it.
Ms. Saperia: With regard to your second
question, it is very much a national list. Any list that cabinet creates in
terms of foreign states that they designate as supporters of terrorism is
not applicable anywhere outside of Canada. If other countries want to create
similar lists, by all means, but this is very much a national list.
In terms of the process, it is a political
decision, and the standard seems to be set out here in proposed section 2.1
of the State Immunity Act amendments where it says, "For the purposes
of this Act, a foreign state supports terrorism if it commits, for the benefit
of or otherwise in relation to a listed entity as defined in subsection
83.01(1) of the Criminal Code, an act or omission that is . . .
punishable under" certain sections of the Criminal Code. That is actually a
legal standard, and it references certain Criminal Code provisions.
However, the next section says that a foreign
state that is set out in the list is not immune from the jurisdiction.
Therefore, the list will be a political decision, and the actual support of terrorism would be a legal decision.
The Chair: Colleagues, that concludes our
discussion with this panel. On behalf of us all, I want to thank you for the
presentations you have made. As you have said, Ms. Basnicki, this has been a
long journey, one that has obviously been a painful one for you, but you
certainly presented this clearly to us, and there has been a lot of effort
to get to this day. We congratulate you for that. That is sometimes what it
takes to get to this point. It does not come easy, but we recognize that, and you have our assurance we will look at this seriously, as we do with
everything. We will pay particular attention to the points you have made
here and take that into consideration as we come to a conclusion by the end
of this week or the first of next week. Thank you so much.
Ms. Basnicki: Thank you so much.
The Chair: Ms. Stoyles, the points you
raised focus more on proposed amendments, but you certainly brought that
home loud and clear to us, and rest assured it will not be lost on us. Thank
We will continue now with our consideration of Bill C-10, in particular, the portion
of Bill C-10 that concerns the
enactment of the proposed justice for victims of terrorism act and
consequential amendments to the State Immunity Act.
We are pleased to have with us in the final
panel for today, from the Centre for Israel and Jewish Affairs, Mr. Richard
Marceau, General Counsel. We also have Ms. Hilary Young, Assistant
Professor, Faculty of Law, Queen's University, and from the law firm of Lenczner Slaght, we have
Mr. David Quayat.
Mr. Marceau, we will begin with you. I
understand you have an opening statement to make.
Richard Marceau, General Counsel, Centre for Israel and Jewish Affairs: Thank you very much, senator.
My name is Richard Marceau. I am here on behalf
of the Centre for Israel and Jewish Affairs, the official representative of Canada’s Jewish community.
I will be making my presentation in French but
will be happy to answer any question in any official language.
I will be commenting only on part 1 of Bill C-10, entitled the Justice for Victims
of Terrorism Act.
I am particularly pleased to be here today
because, in a former life, in another place, I was interested in these
issues and had started to work on them.
I was made aware of these issues by C-CAT, the
Canadian Coalition Against Terror, particularly I think by Danny Eisen, Maureen Basnicki and Sheryl Saperia, and two
of these people have just
testified before you.
They are models of involvement, civic engagement and drive. Canada’s
Jewish community supports part 1 of Bill C-10. We are pleased to note that the government has responded to the
requests made by victims of terrorism for some time.
We are also pleased to note that there is
strong support from other political groups in this area. As you have too
often heard, after an intense period following terrorist events, the victims
are left alone, without recourse or support. The fear and especially the
powerlessness remain for the individuals affected and the communities
targeted. For that reason, the measures in Bill C-10 quickly obtained the
support of many Canadians and many communities, particularly, Canada’s
Jewish community. The Jewish community around the world, as in Canada, has
too often been the target of terrorism.
You will recall, for example, that the Jewish
community was the target of a terrorist plot in August 1999. Two members of an Algerian cell in Montreal, including Ahmed Ressam, the notorious
Millennium Bomber, planned to blow up a tanker truck filled with gasoline in
a neighbourhood where a significant number of Jewish Canadians live and
spend time. Or again, in April 2004, a bomb was thrown at a Jewish school in
Montreal, which is another perfect example of politically motivated violence
and hate against Jews. Outside Canada, there was an incident in which a
young Jewish woman, Marnie Kimmelman, was killed by a pipe bomb while she
was quietly sitting on a beach in Israel.
As a community at risk, we feel that Canadian
victims of terrorism should be authorized to engage in civil suits against
people who commit and support terrorist acts, even if foreign states are
We hope that this Bill will act as a deterrent
to prevent future terrorist acts against Canadians. When my colleague, David
Cooper, testified before your colleagues in the House of Commons, he asked
that Bill C-10 be amended and he, himself, proposed a number of amendments.
We are pleased to see that a number of those amendments have, in fact,
been made. And we hope that one of them, the one I
mentioned a little earlier, the Lock of the Amendment, will be added.
We are also eager to see the government’s
proposed list of states that may be prosecuted. Obviously, we are expecting
that it will be a full and complete list. I know that I am running out of time and that you have many questions, but allow me simply to say that it is
time to send strong messages to the victims, that they are no longer alone, they are no longer isolated and they are not powerless; and to the
terrorists and their supporters, that Canada is serious in its fight against
them and that neither we, as the government, nor the victims will stand
still and that the time of impunity is over.
The Chair: Thank you very much, Mr. Marceau. Ms. Young, do you have an opening statement?
Hilary Young, Assistant Professor, Faculty of Law, Queen’s University, as
an individual: Mr. Chair, members of the
committee, thank you for the opportunity to address this committee with
respect to the proposed Justice for Victims of Terrorism Act.
My name is Hillary Young. I am a member of the
faculty of law at Queen's University. My colleague, David Quayat, is an
associate with the litigation firm of Lenczner Slaght in Toronto and served
as a law clerk to the Chief Justice of the Federal Court.
Our submissions today are the result of work
that we have done with our colleague Brendan Green on versions of this law since 2009. We have expertise in civil litigation, tort law, international
law, and the constitutional division of powers.
At the outset, we recognize that terrorism is a
serious problem that has significant effects on Canadians, and we share the
government's desire to deter terrorism and to obtain justice for victiMs. However, in our view, this act is unlikely to achieve those goals. We also
believe that the act is unconstitutional and would violate international
Mr. Green, Mr. Quayat and I have provided the
committee with written submissions that outline our three main concerns with
the bill. I will briefly summarize those concerns.
First, we believe the justice for victims of terrorism act would be unconstitutional. It essentially creates a new
federal tort, a civil cause of action. The power to create civil causes of action falls to the provinces under the constitutional division
Specifically, it falls under the provinces' power over matters of property
and system rights. Mr. Quayat will be happy to take any questions you have
about why it is that the act cannot be justified as necessarily incidental
to a legitimate federal scheme or grounded in a federal head of power under
section 91 of the Constitution Act, 1867.
Our second concern is that the act invites the
government to violate international law by removing certain countries'
immunity from the jurisdiction of Canadian courts. It is a fundamental
principle of international law that sovereign states are generally immune
from the jurisdiction of each others' courts. This principle was affirmed
earlier this month in a case before the International Court of Justice, which rejected Italy's assertion
of jurisdiction over Germany in relation to
acts committed during the Second World War. The court made clear that this
has nothing to do with how terrible or illegal the acts that were committed
are. The court noted that the acts — these were acts of the Nazis —
reflected a complete disregard for the elementary considerations of humanity, and yet the ICJ said, nevertheless, Italy does not have
jurisdiction over Germany.
Our third concern is that the Bill would not
realistically achieve its goals. The allegations involved in these kind of lawsuits will be difficult and expensive to prove and, even if a victim can
prove her case, it is unlikely she will ever collect any damages, although
that will depend to a large extent on the nature of the defendant. Foreign
individuals, organizations and countries often have no seizable assets and
may simply refuse to pay. It will be especially hard to get a foreign
country to pay a Canadian court order against it.
That has been the American experience with
similar legislation. It has led to extensive litigation, with victims
spending large amounts of money seeking vindication that has almost never
materialized. In fact, the United States stepped in to pay amounts owed to
victims by countries like Iran when it became clear that these countries
would not recognize U.S. court orders to pay. The American experience led
one commentator to conclude that "the privatization of the war on terrorism
Stephen Flatow, who sued Iran under the U.S. law and successfully proved that Iran caused his daughter's death, said, "If
I knew then what I know now, after spending tens of thousands of dollars
trying to get some measure of justice for Alicia, I do not think I would
have started this lawsuit." I should note that he did ultimately receive
compensation, but it was from the U.S. government, not from Iran.
Rather than requiring individual victims to
pursue expensive and difficult litigation, a more effective way to
compensate victims would be to take advantage of civil forfeiture laws, whose goals are to deter unlawful activity and compensate victiMs. These
laws allow a province to seize property acquired through unlawful
activities, including criminal activities, and that property may then be
distributed to victiMs. This would have a number of advantages over the act.
Aside from being constitutional, the province, rather than the victim, would
have to prove that the property was acquired through an unlawful activity.
To conclude, deterring terrorism and compensating victims are, of course, laudable goals, and the government is
right to pursue both, but we believe the act will do little to achieve
either. If anything, it may be harmful to victims of terrorism, who will be
encouraged to spend thousands of dollars seeking justice, only to have the
act found unconstitutional or to obtain a court order that cannot
successfully be executed.
Those are our main concerns. Thank you again
for the opportunity to be heard, and we are happy to take any of your
The Chair: Thank you, Ms. Young. Mr. Quayat, did you have an opening statement?
Ms. Young: I spoke for the two of us.
The Chair: We will now proceed to
questions, beginning with the deputy chair, Senator Fraser.
Senator Fraser: I would like to welcome all
three of you and thank you very much for being here. Mr. Marceau, I was
particularly pleased to hear your testimony because I think we can say that
the Jewish community around the world has more often been the target of terrorist acts than any other group. So it is very important to have your
point of view on this bill.
Ms. Young and Mr. Quayat, I read on the
weekend, as carefully as I could and with great interest, your long piece
making the arguments you have just given us in very short form. I still come
away perplexed. Essentially, this Bill relates to the State Immunity Act, which is a federal statute. There is no way a province can override the
State Immunity Act. It relates also to the Criminal Code and even mentions
in passing the Immigration and Refugee Protection Act, although that is, as
I recall, for definitional purposes.
If the federal Parliament cannot override the
State Immunity Act or change it, how can a province do that? If a province
cannot do that, then how can we achieve the goals in this legislation?
David Quayat, Lawyer, as an individual: Let
me take that question.
Senator Fraser: You can tell me I am wrong.
That is what I am asking you to do. That is where my puzzlement arises.
Mr. Quayat: To answer your question, we
need to distinguish two parts of the bill. When I say the bill, I am
referring only to the Justice for victims of terrorism act, not the rest of
Withdrawing the immunity of a state is surely
within the power of Parliament. We take no quarrel with that. It is the
creation of a cause of action, what is clause 4, that is constitutionally
offensive. It is constitutionally offensive for two reasons.
The cause of action targets what I would call
two buckets of targeted defendants, state actors or other non-state
entities, organizations, individuals and whatnot. Let me deal with the
Suing an individual or a listed entity is in no
way connected to state immunity. The two are not related because you are not
suing a state. To say that the cause of action is against listed entities or
individuals can be tethered to the State Immunity Act is simply, in my view, incorrect.
With respect to the targeted state defendants
who are listed, here you have to unpack two other legal concepts. one is
jurisdiction, and one is cause of action. Jurisdiction is the ability of a
court to hear cases either against certain persons or over certain subject
matters. Cause of action defines liability. The two are not legally
connected concepts. To say that creating a cause of action is a necessary
incident or a functional incident of the State Immunity Act, in our view, is
constitutionally suspect and therefore would be open to attack under the
division of powers.
If Parliament wanted to achieve a
constitutionally lawful scheme, leaving aside our concerns on international
law for a second, the way that would be achieved is to withdraw the immunity
under the State Immunity Act, and then the provinces, who have the right
under property and civil rights, could create causes of action as against
foreign sovereigns or other individuals for torts of terror.
Incidentally, this is how federal law currently
functions, both with respect to proceedings against the Crown and as the
State Immunity Act is currently drafted. For example, in the State Immunity
Act, personal injury and property damage and death that is caused by a
foreign sovereign within Canada is not shielded from the immunity provision, but the State Immunity Act does not create the cause
of action. For example, if any of you were to take a walk and slip and fall in the embassy
United States, you could sue the United States in negligence, a cause of action defined in provincial common law, and the federal immunity is
withdrawn. That is respectful of constitutional principles, balancing who
controls the immunity and who controls the definition of a cause of action.
That is where the disconnect is constitutionally.
Mr. Marceau: My colleague said that
Canada’s constitutional law is complex, and the people who are elected in
the other place and senators know very well that the issues of jurisdiction
are complex. There are entire libraries full of decisions and doctrines on
Our analysis of the Bill found that it is
constitutional, for three reasons. First, the cause of action is created for
a breach of criminal law. We know very well that, under section 91 of the
Constitution, criminal law comes under federal jurisdiction. So there is the
The second reason that can be established, and
that speaks in favour of federal jurisdiction in this area, is the federal
jurisdiction when it comes to foreign affairs. This area comes exclusively
under the federal Parliament, and there is a direct link between part 1 of
Bill C-10 and foreign affairs.
The third reason is peace, order and good government, the famous POGG. We
think this third link can be established between part 1 of Bill C-10 and federal jurisdiction. We think these three
factors together make this Bill constitutional and intra vires of the federal Parliament.
Senator Fraser: I am sure the lawyers on
the committee will want to pursue that issue, but I have another question to
put to you.
Ms. Young, you referred to the recent case
between Germany and Italy in the International Court of Justice. I have read
only a summary of the judgment, but I was not at all sure that it was a
precedent for this country. Tell me why you think it is relevant.
Ms. Young: The case to which we referred
reaffirms the proposition in international law that sovereign states are
immune from the jurisdictions of the courts of other states, and by "states"
I mean countries. of course, we can change our domestic law to remove that
sovereign immunity, but that does not change the fact that that sovereignty
remains in international law.
Mr. Quayat: It recognizes that in certain
instances certain international transgressions become a state-to-state
problem. In the Germany and Italy case the International Court of Justice
was saying that countries cannot use the device of civil domestic process to
remedy what is essentially a state-to-state violation in the form of what is
called diplomatic protection.
Professor Young is correct that we can modify
our domestic law, and we are not strictly bound by what the International
Court of Justice has done, but Canada has filed a recognition of compulsory
jurisdiction, and it is a real possibility that a future listed country
could invoke that jurisdiction and force us to defend ourselves at the
International Court of Justice.
Senator Runciman: Thank you for being here, witnesses. If you have responded to this, I lost the message. Do you agree
that, if creating a cause of action in respect of terrorism is a national
concern and no provinces have acted, the legislation is justifiable under
Mr. Quayat: In order to invoke the national
concern doctrine you have to show two things under a case called R. v.
Crown Zellerbach, which deals with national concern. That case says you
do not simply look at whether the provinces have chosen to take action but
rather whether they are incapable, individually or collectively.
I would submit that it has never been put to
the provinces to embark on a course of action either via the route of civil
forfeiture or to create specific causes of action for terrorism to do so. I
do not think the provinces are incapable. If one wants to look for guidance
on how the current Supreme Court would approach it, one need look no further
than the recent reference on the national securities regulator. The court
walked a tight line to balance that which is truly federal, what we say is
the withdrawal of the immunity, and that which is truly provincial, the
creation of a cause of action.
Senator Runciman: On page 4 of your brief
you say that Parliament has the authority to define the scope of a foreign
state's immunity, but creating causes of action is in no way incidental to
the scope of that immunity.
There is no footnote in terms of judicial
authority with respect to that. I am having some trouble with the logic. If
you can define a foreign state's immunity, why can we not say what they are
not immune from?
Mr. Quayat: There is no precedent on this
question, senator, because the State Immunity Act has not been the subject
of a great deal of litigation. In fact, its constitutionality and its
constitutional borders have never been tested, although there have been
charter arguments raised about whether immunizing foreign states violates
To answer your question I will return to the
distinction of two legal concepts, jurisdiction and cause of action/liability. Jurisdiction merely says the foreign state may be brought
before a civil court for these classes of issues, but the specific creation
of a cause of action, those facts which, if proven, would give rise to
liability, is a distinct legal concept. Again I return to the example of the
Crown Liability and Proceedings Act and the State Immunity Act that is
respectful of that bound. Those acts withdraw the immunity of, inter alia, Her Majesty the Queen in Right
of Canada and foreign states, but it does not
specifically define those causes of action for which either actor is liable.
Senator Runciman: Does it not strike you as
absurd that you are contemplating restricting remedies available to our
citizens against a state, a precondition of which is that the state itself
is acting totally contrary to the principles of international law?
Mr. Quayat: The emotional reaction one can
have is an obvious one, and it is nothing but sympathy for victims of terrorism. I was at the Pentagon on 9/11. I understand what terrorism is. I
did not suffer a loss personally, but I am not ambivalent to the emotional
issue of terrorism. However, if there is anything we have learned about
terrorism in the decade since 9/11 is that the terrorists win if we are
willing to commit acts of legal subterfuge to attain an end that feels good.
The rule of law requires more than that. We
have a federal constitutional structure, and we as a country have chosen to
live within the bounds of international law. Sometimes respect for both
produces outcomes we might not otherwise like. That is an unfortunate
by-product of living in a society that cherishes the rule of law.
Senator Runciman: one of the witnesses
referenced the difficulty of enforcing judgments. In your submission you
mentioned US$19 billion. The earlier witnesses said "yes, but." I do not
know if you were here for the testimony.
Ms. Young: I was, and I have a "yes, but"
to respond to the "yes, but," if I may. Those moneys have been recovered
from the United States government, not from the countries that committed
acts of terrorism against the victiMs. If this act is truly aimed at
deterring, there can be no deterrence if it is the Canadian government or
the United States government that ends up paying awards to avoid diplomatic
problems of what assets can be seized.
Senator Runciman: You are saying that in
the U.S. experience no assets have ever been seized?
Ms. Young: I will not say that no assets
have been seized from terrorists or supporters of terrorists. I have not
found anything that unequivocal, but the large sums that have been recovered
have been recovered from the United States government. Sometimes some of that money has come from assets that the United States government was able
to seize from, for example, Cuba, but it was only because the United States
government agreed to pay those awards in exchange for the plaintiffs
agreeing not to pursue their claims against the states any further that
those people ever got paid.
Senator Baker: It is a very interesting
argument. I am sorry I did not read your submission before I listened to it, but I suppose I would come to the same conclusion. I believe it is
inevitable that Canada will follow the lead of the United States and
eventually establish a fund similar to that established in the United
States; and if a judgment is successful, it is then left up to the state to
recover the funds that were given out from this particular fund available in
the United States.
Your argument is interesting. However, it has never been adjudicated, to
my knowledge, in the context that you have outlined it, although there are
some interesting factors. If we just deal with the State Immunity Act and
the Criminal Code, the amendment to the State Immunity Act herein contained
seeks to add a provision that will allow for one of the states listed that has committed, presumably, in our
understanding, an act of terrorism, a criminal act, and then to not allow
them to be immune from a civil action that is taken in a court in a
As you say right now, commercial matters, death
and bodily injury are presently covered and are not subject to immunity
under the State Immunity Act. Therefore this would simply extend an action
to those nations or countries that have committed acts of terrorism.
In criminal law right now you have a surcharge
at the end of a criminal proceeding. You pay. You have, as you admit, forfeiture. Those are federal laws that are administered in the provincial
Could you not see a logical extension of that
to include what has been done here to the State Immunity Act? Furthermore, which province would say that this legislation, this change to the State
Immunity Act, is unconstitutional? The court cannot, on its own. It needs a
reference. It needs an argument somewhere. Where would it come from?
Ms. Young: It could come from a defendant
or it could come from a province. It could be a nation or it could be an
individual. It could be a listed entity. It could be any of those: an
organization, individual, or a state defendant. Realistically I think
defendants will ignore these actions, but if they chose to defend them they
could challenge the constitutionality of the act.
Senator Baker: If they choose to defend
them, it puts them on the hook.
Ms. Young: Not necessarily. May I address a
point you made earlier? I want to distinguish jurisdiction over commercial
activities. The reason for Canadian courts having jurisdiction over foreign
states in relation to commercial activities is that the international
community has agreed that they will all be subject to each other's domestic
jurisdiction when it comes to those kinds of matters; otherwise it would be
very difficult to conduct business in a foreign state. In this case, the
nations of the world have not agreed to subject themselves to the
jurisdiction of domestic courts in relation to matters like this, as was
confirmed on February 3 by the International Court of Justice.
Mr. Quayat: To answer Senator Baker's
question with respect to criminal law, the criminal law has never been held
by the Supreme Court to justify the creation of a civil cause of action, and
in fact, in a decision called MacDonald v. Vapor, the then Chief
Justice, in summary form, disposed of any argument that attempted to justify
a cause of action created with respect to trademarks under the criminal law power. There is an easy piece
of logic for that.
If Parliament could simply define causes of action in relation to the criminal law, then the power
of the provinces over
property and civil rights could be swallowed whole because, for example, battery is a crime. Battery is also a tort. There has to be recognition that
the criminal law ends somewhere. To go to your example, a defendant is
ordered to pay at the end of a criminal process because there is a
conviction. This cause of action does not require a conviction. There is no
prerequisite. This is why civil forfeiture is a smarter avenue to go if one really wants to seize terrorist assets.
For example, under Ontario's Civil Remedies Act
there is no requirement of a conviction. As long as the Attorney General of Ontario can show there is a balance
of probabilities to show a particular asset is connected to a criminal
activity, it can be seized and later distributed to victiMs. In fact the act
contemplates as one of its purposes
the distribution of those assets to victims.
Senator Baker: You are questioning whether
or not the exceptions to immunity of bodily injury and death are beyond the
power of what is already in law in the State Immunity Act.
Mr. Quayat: I think what we would say —
Senator Baker: That is what you just said.
Mr. Quayat: — to make it constitutionally
respectful of the division of powers, one could as an example expand that
waiver of immunity because that immunity only applies to activities that
occur in the territory of Canada.
Senator Baker: I will be short, chair. I
know you will cut me off.
You look at the case of
v. Canada. That is a
detailed judgment of the Supreme Court of Canada on bodily injury as it
relates to the State Immunity Act. They took the French and they said the
French is different from the English and they made a judgment. The Senate
here even changed the definition of "bodily injury" when we did the federal
law-civil law harmonization. All of this has taken place, the Supreme Court
of Canada has dealt with it in graphic detail, and you are here saying that
what they dealt with, as far as bodily injury is concerned, really does not
exist in law in the State Immunity Act.
Mr. Quayat: No. What exists in law in the State Immunity Act —
Senator Baker: It is not enforceable.
Mr. Quayat: Sure it is enforceable. If you, Senator Baker, were to take a walk and slip and fall in the driveway
U.S. embassy they would have no immunity from suit for you suing in a
provincial court for, among other things, negligence for not de-icing the
sidewalk. The difference here is we are not suggesting that Parliament lacks
the power to enlarge the withdrawal of immunity. That is absolutely within
Parliament's power. However, creating the cause of action — and by the way
the Bill as drafted does not insert it into the State Immunity Act — kind of creates this free-standing act that is untethered to the State Immunity Act.
That is where you cross, in my view, the constitutional line between the
power over sovereign immunity and intrusion onto the property and civil
rights jurisdiction of a province.
Senator Baker: one final thing: It is not a
separate act. It also incorporates it in the State Immunity Act; at
paragraph 5, it inserts a provision after 6.1, and section 6 begins with the
definition of bodily injury, death and so on. This is a continuation and it
adds to the preceding provision. It is not a completely separate act. I
thought about it when I was reviewing the legislation. Why would the
government do this twice? They have created a separate act, yet they have
put the same provision in the State Immunity Act. They are mirroring it. It
is not just a separate act; it is part of the State Immunity Act.
Mr. Quayat: The portion inserted into the
State Immunity Act is not constitutionally deficient. It is the creation of a cause
of action that is constitutionally deficient. The drafters had to do
both because withdrawing immunity does not create a cause of action. In
fact, there is U.S. case law where they struggled with this very problem and
that resulted in something called the Flatow Amendment. The point simply is
that Parliament can do the provisions that are enacted under the amendments
to the State Immunity Act. We do not question their constitutionality. They
are within Parliament's power.
Senator Baker: Well, there you go.
Mr. Quayat: It is the previous paragraphs
under "cause of action," which is not inserted into the State Immunity Act
and simply exists as a free-standing federal tort, that is not
constitutionally permissible, in our view.
Senator Baker: It is an interesting
opinion. I do not agree with it, but it is excellent that you have made it.
Ms. Young: The first part that creates a
cause of action is unconstitutional. The second part violates international
law but is not unconstitutional. The state immunity issue is within
Parliament's power to change domestic law there, but in so doing they
violate international law.
Senator Angus: I would like to follow on
Senator Baker's line of questioning. Ms. Young and Mr. Quayat, you have
impressive CVs, which we have in front of us. I am curious about your
colleague. Is it Mr. Brendan Green? Where does he work?
Mr. Quayat: He practises at a law firm
known as Herbert Smith, and he is in his Paris office. He practises
primarily in the field of international arbitration.
Senator Angus: I know Herbert Smith well.
Their main office is in London, is it not?
Mr. Quayat: That is correct.
Senator Angus: You have made a big point
that you are here as individuals, and you have clearly got passionate belief
in your arguments. You have written articulate academic articles about this
issue, and you have stated in the footnotes that "The views contained in
this submission are those of the authors," — I assume Mr. Green as well
and "They do not represent the views of the authors’ current or past
employers or clients." In other words, Mr. Quayat, you worked at White &
Case, I believe, who are well known for representing many large interests in
the Middle East, including some states and organizations that have been
involved in the mysterious world of terrorism. Is that not a fact?
Mr. Quayat: That is correct.
Senator Angus: In any event, this led me to
wonder, given, as I think, Ms. Young, you especially underlined your support
of stopping terrorism and having redress in any way we can. Yet, this is not
some quick little tract in the McGill law Journal. The three of you, from the U.S., Canada and the U.K., have gotten together, somehow
— if I may
I use the expression — to beat this drum or to drive this train. What
motivated you to do that?
Ms. Young: We all went to the same law school at approximately the same time. I have expertise in tort
law especially. Mr. Quayat has expertise in the constitutional division of powers especially, but also international law;
Mr. Green, especially in
international law. We got talking about this act and the issues that were
not being discussed, because everyone can agree with its motives. We all
identified probleMs. To me, at first it seemed quite redundant in that it is
already open to victims of terrorism to sue in provincial courts in relation
to acts of terrorism. It is more difficult than it would be under this act
because it would require you to use the law of the state in which the
terrorism occurred, but it is still a possibility. My initial thought was:
Does this advance us anywhere? of course, once we realized the
constitutional and international legal problems, we felt compelled to write
about it from a perspective that we had not seen in any of the literature.
Mr. Quayat: To add to that, senator, this Bill has existed in various predecessors and various iterations.
Interestingly, I note, having pulled the records of all the committee
hearings where that Bill was considered, never once has Parliament invited
anyone to discuss the potential downside, negatives, unconstitutional nature
or issues with it.
Senator Fraser: That is why we are here.
Mr. Quayat: Well, we are here on the eve of what we expect will be the passage
of the bill. I wonder if that is in time
to fulsomely consider it. The point simply being that I believe deeply in
respect for the Constitution and respect for our rule of law. Having
experienced terrorism first hand — I was going to graduate school in
Washington on 9/11; I was on my way to my first day of graduate school when
the plane struck the Pentagon — we have to respect the laws and the
processes that we have and the structures with which we live.
Some of my foreign friends marvel about some of these debates we have about federalism, especially in the recent context of the national securities regulator. A friend
of mine who is a U.S. regulator
said, "How can Canada have a system like this?" I said, "Show me another
Western country that has a constitutional division of powers like ours, and
then we will have a conversation about it."
There are complex issues here of jurisdiction
and of constitutional division of powers. It would be easy to blow by them
in a cause that is good, but someone has to be willing to stand up and speak
for the division of powers as it stands.
Senator Angus: This is fine. I am
comfortable with your answers. The common thread, I take it, is that you all
went to the University of Ottawa law school, including Mr. Green?
Mr. Quayat: Correct.
Senator Angus: You are here; that drew you
together. This is a profound legal issue, and you are here purely not
representing any interests, no particular axe to grind. You found a legal, intellectual exercise that fascinated the three
of you, all believing in the
Constitution and passing legislation that is intra vires, not ultra vires or
ultimately subject to attack. You have come at your own free will, at your
own expense, to elucidate these issues and to give your views as to your
belief that this law is unconstitutional on its face?
Ms. Young: That is right.
Mr. Quayat: That is correct.
The Chair: I have a supplemental on that.
Mr. Quayat, I have to take exception when you suggest — unless I
misunderstood you — that the work that we are doing here, as a Senate
committee, that we would, in your words let significant issues blow by us.
That is certainly something that we do not do. We are thorough and
thoughtful. If you look at the process we are following here and at the past
work of this committee, I think it would confirm that.
You are an effective litigator, I am sure. You
certainly present yourself well. You are articulate. You make the point that
many issues are arguable; there are constitutional issues. I cannot think of too many bills that have come to this committee on which there has not been
an argument made that there is a constitutional issue. There is nothing new
about that. Lawyers are trained to make arguments and to represent clients.
We understand that. I understand that and you understand that. However, it
is not the point that arguments can be made; it is not the point that
allegations of constitutionality can be raised. It is ultimately whether or
not they are valid. I can assure that you we will consider that seriously.
On the one side, we have evidence from the
ministers responsible for this Bill that the constitutionality of this
particular matter is not in question. That is their view. You have raised a
contrary position. That happens many times before this committee. However, I
want to make it clear to you that we would never blow by any issue and
disregard the responsibility that we have to consider seriously the
implications of matters that come before us.
We have heard the testimony from the previous
witnesses. Ms. Basnicki has dedicated a significant part of her life to
having this portion of the Bill brought forward. However, that in itself is
not the beginning and the end for us. As extremely sympathetic as we would
all feel, we have to make a decision. We have to decide whether the issues
she raises and whether the opinions she raises from her organization are
valid, if the opinions we are receiving from the government are valid, and
consider the points that you raised forcefully and in an articulate manner.
That is exactly what we will do.
Not to repeat myself a third time, but I am
proceeding to do that, we do take this seriously. We will not blow by any
issue. What we have to do is weigh the arguments made on either side of an
issue. You certainly raised some on the other side very strenuously.
Mr. Quayat: I apologize if that was the
interpretation you put on it. I merely attempted to suggest that, based on
the review of the evidence publicly available to me on various websites and
on the Parliament's website, the specific issue of the constitutionality
of the cause of action provision is not something that has been discussed in
committees. I was merely pointing that out. To the degree that there may be
some surprise about these issues, it has not been raised in this direct a
way, and I am grateful that it is being raised today.
The Chair: I would say to you, and remind
all of us — although around this table we do not have to be reminded — this
is the first time this committee has considered this bill. This is the first
opportunity we have had to hear the constitutional arguments you have
raised, and we thank you for raising them. We truly thank you for raising
them. We will give them careful thought and consideration, as we would with
all matters that come before us.
I think enough said about that. I appreciate
your raising the issues you have here.
Senator Angus: The Leader of the Opposition
has his hand up.
Senator Cowan: If I could pursue that. I
was here, I think, for the testimony of the two ministers and for the
officials, and I do not recall this being raised with them. I thought you
were saying that you had an opinion that the ministers had opined that this
was constitutional. I do not recall that being raised with them or with the
officials, but I may have missed that. I certainly was not here for a number
of the other hearings the committee has held since then.
The Chair: We did not request and did not
receive, as you refer to it, an "opinion" on the constitutionality
matter. There is no question, from the evidence we heard from them, that
they believe it to be lawfully enforceable, and that would include the
constitutionality of this bill.
Senator Cowan: I will review the evidence, but I do not remember those issues being discussed with the officials. The
points Mr. Quayat has made here, whether they are valid or not I do not
know, but they are certainly worth considering. It is new to me, and I was
not aware of that issue, from my hearing and subsequent reading of the
testimony of the ministers or the officials. I may be mistaken.
The Chair: I would think that if there were
issues of the constitutionality of this bill, it would not be before us. In
any event, I noted your comment and we will consider it.
Senator Fraser: As the deputy chair of this
committee, and the sometime chair of it, when this Bill came before us in
previous iterations, I would like to confirm that as soon as we became aware
that you had raised constitutional concerns, we put you on our witness list.
When this bill, in its previous versions, has
appeared before this committee, there has been no indication from anyone that these concerns existed. We did not sort
of scratch our heads and say, "Let us create a constitutional question that we can then invite someone to
talk about." This is the way it works. If you become aware that there are
people who have serious constitutional questions, you call them in to hear
It is true that we did not ask the ministers
directly when they appeared before us. They had a grand total of one hour to
discuss all nine parts of this bill. That was one part we did not get to. We
will, however, be hearing again from the officials later this week, and I
think we can be sure that we will be asking them for their view on this
particular line of argument. I would not wish anyone to take away the view
that, as the chair says, this committee "blows by" any serious issue
Mr. Quayat: If I can just say that was not
my intention in communicating that. I am not suggesting that Parliament
ignores issues. I am merely saying that the issue has been raised. We are
grateful to be here today to raise it. That is all I am suggesting.
The Chair: That is fine. Let us leave it at
that. We are all trying to do a job, and we want to deal with the facts we
have. Enough said about that issue.
Senator Lang: I would like to go back to Ms. Young's initial
statement. I want to quote this:
In fact, the United States stepped in
to pay amounts owed to victims by countries like Iran when it became
clear that these countries would not recognize U.S. court orders to
I want to pursue that to some degree, because
you indicated also, upon further questioning, that — I am not sure how the
process worked — the United States government did receive funds from Cuba in
one particular situation, and obviously paid it out. My understanding is —
and correct me if I am wrong — regarding the results of the suits that went
on with Libya, eventually there were settlements for those individuals who
were involved, the victims, and the victims' families that were involved in
I do not quite understand why you say that they
stepped in to pay amounts, but then you did not go on further to say that
monies were made available. Maybe they were the interim step that had to be
done in order to get the money, but the fact is that it did result in some
Ms. Young: I am not familiar with all the
intricate details of the claims against the state of Cuba and the state of Iran. The United States had seized some Cuban assets,
but not necessarily in relation to the terrorist acts that had taken place.
The lawsuits under the American legislation related to shooting down planes
over international waters. There was an attempt to recover funds from Cuba.
Cuba, of course, refused to pay. The Americans ultimately agreed to pay, out
of seized Cuban
funds, but there was no connection between those funds and the terrorist
In the case of Iran, the money came directly
out of U.S. Treasury funds. There were no seized Iranian assets that could
be drawn on. Part of the problem in the case of Iran, perhaps also in the
case of Cuba, although I am not sure, was that the plaintiffs were
attempting to seize diplomatic assets. In the case of Iran, it was property
that used to be a consulate or some sort of diplomatic property. The United
States feared that if the plaintiffs were successful in being able to get
access to that property, Iran would then retaliate against diplomatic
property of the United States in Iran. There are international legal
principles that protect diplomatic property.
All that to say that if it were the case that
the United States had seized Cuban assets and then passed that money on to
victims of Cuba's terrorism, that is all fine and well, but the only reason
the victims ever recovered was because the Americans agreed to pass that on.
They could not go through the tort process in the courts to get at that
money. Furthermore, you have the Iran example, where there was no connection
to seized Iranian assets. It was simply U.S. Treasury funds.
Senator Lang: You never mentioned Libya once in your answer, and that
was one of the issues brought up by previous
witnesses. The fact is that there was money paid out, and it was as a result
of at least an initiation of a court case in the United States, so something
Mr. Quayat: With respect to Libya, the
funds that were paid to the victims of Libya were the result of a
state-to-state settlement between the United States government and Libya.
There is an argument to be made that because there were outstanding lawsuits
in the U.S., that pushed a diplomatic solution to pay out the victiMs. However, the court process itself did not lead to a judgment that was
one could say that the pressure of domestic
lawsuits helped move that process down the field and created a settlement.
one could equally say that the Gadhafi regime, attempting to get out from
under, in terms of sanctions, and wanting to recommence international
commerce saw a benefit to paying U.S. claims, which the U.S. government had
advanced independent of the lawsuits. The U.S. had made a claim for
diplomatic protection, saying it was entitled to claim on behalf of nationals.
Senator Lang: You are obviously a good
litigator, because you have me confused. I want to go back.
We have some legislation being presented here.
It has been available for quite some time and talked about for quite a few
years. We are finally coming to a conclusion, hopefully, down the road here.
It seems to me that it brings us a step toward
pushing the various sovereign states, if you wish, to come to some
conclusion for the purposes of this type of situation, and hopefully sets
some standards where, in some cases, it might not even happen. Why would you
say we should not pursue something like this? You have not given us an
alternative other than for me to talk to Alberta or Ontario.
Mr. Quayat: Simple forfeiture is a good
option. It is certainly one that should be considered. Sovereign immunity is
a fundamental international law concept. one thing that you have to be
mindful of, I think, is that international consensus on this issue has been
difficult. The question becomes, does Canada want to be out in front of an
attempt to push diplomatic consensus or be in lockstep with it?
It is interesting that no country of the
European Union has to date promulgated such laws. Interestingly, Europe is
not exactly a continent known for not being on the forefront of human rights
developments. British courts did Pinochet in respect of individual sovereign
immunity. The fact that there is a lack of international consensus shows
that sovereign immunity, which is one of the longest-standing concepts in
international law, in fact at the core of international relations, is
something that vexes states. If as a policy choice Canada wants to be out in
front of that, leaving aside domestic constitutional issues, that is a
policy choice it can make.
Mr. Marceau: I have three quick points, Mr. Chair. First, there seems to be a belief somehow that the State Immunity
Act, the theory, the concept of state immunity, has no exception. If you
look at the act from sections 4 to 8, if I remember correctly, it states it
is not a wall-to-wall concept. There are indeed, and Senator Baker alluded
to this, exceptions to that, not only in commercial cases but also in bodily
injury and death. That is the first point.
Second, to respond to Mr. Quayat's point that
the EU has not acted yet, so what? What is wrong with Canadian leadership?
What is wrong with Canada saying that is an important case? We are dealing
with an important issue here, with terror. You have heard from Ms. Basnicki.
The victims are looking for their day in court. They are looking for tools
to fight this because now they are alone. They feel helpless, and this Bill gives them something so, you know what, I am going to fight this. I am going
to fight this tragic injustice that was done to me and my family, and that
is something very important.
Third, again to take Mr. Quayat's point, an
argument can be made that the Lockerbie situation pushed Libya towards
settlement. Yes, there is an argument to be made, and that is the argument I
present to you today.
Ms. Young: I do not want to give the
impression that we are saying no one could ever benefit under this act.
There could be well-informed plaintiffs who understand all the hurdles they
face who could conceivably obtain a finding of liability and a court order
that could ultimately actually be enforced. My concern is there are a number
of both hurdles in terms of actual litigation and these international and
domestic legal hurdles that could actually result in causing victims a lot
of trouble, a lot more trouble than they anticipate in pursuing their claiMs.
They are spending the money to pursue justice
here; so if they get good legal advice and only pursue claims where the
chance of recovery is strong, then by all means that could do them some
good. It does not, of course, address the constitutional issue. This is not
the first time it has been raised. The Library of Parliament's legislative
summary on this piece of legislation does go into some detail about
potential constitutional arguments.
The Chair: Thank you for that. Senator Munson, you have a brief supplementary.
Senator Munson: How big is the financial
hurdle? If you are talking a well-heeled family with connections and money, that is
one question. However, when it comes to 9/11, it is a different
Ms. Young: As any lawyer will tell you, it
depends. It will depend on a great number of variables — who the defendant
is; what the facts are; whether the potential evidence you would need to
bring needs to be translated; whether you need to bring witnesses to Canada
from abroad; whether you have a listed entity involved, which adds an extra
layer of things that have be proven. There is no way of knowing, but Mr. Quayat could tell you that it is rare to ever get anything through a
civil litigation process for less than tens of thousands of dollars.
The Chair: I am not sure it is possible to
sue someone for running into your car for less than $10,000.
Ms. Young: That is why we have insurance.
The Chair: If the cost of litigation
determines government policy, then we have a problem.
Senator Dagenais: I have listened to what
has been said around the table, and I have read your brief. I will make a
summary comment, and then I would like to hear what you have to say.
I understand that if the government had to
compensate victims, first, as you mentioned, the states promoting terrorism
should be clearly identified and, second, they should not be able to benefit
from their immunity, be prosecuted and should have their assets seized. It
is something I thought about; it may seem radical to you, but I would still
like to hear your thoughts on it.
Ms. Young: This is a question about seizing
assets. Would you like to answer it?
Mr. Quayat: Senator, a couple of thoughts
there. The first is that the Bill creates a cause of action in respect of listed entities under the Criminal Code and then listed states that may or
may not be added at some point down the road.
With respect to the listed entities, most of those entities have been listed for
10 or so years now. Query whether in
that 10 years they have gotten wise to the fact that they are listed and
have moved assets offshore. Similarly, without prejudging who might end up
on the list, those countries are likely to have been or currently are under
sanctions regimes, which may or may not complicate trying to track down
In terms of if the government makes a payment
to terror victims, you are starting to wander potentially into an area of
law where, first of all, in terms of civil recovery, we prevent double
recovery so a victim cannot collect twice for the same civil wrong. If the
government were to make a compensatory payment, there is a question as to
whether a separate third party would have to make payment if they have been
made whole for the loss, and then that opens an issue of law called
subrogation and whether the government could take on the claim on behalf of the victims, which, if
one thinks about it, is in effect what we are
suggesting by using the civil forfeiture devices as a technique to target
terrorism and terrorist entities. The government is far better equipped with
resources, intelligence information and other intellectual assets to know
where foreign governments and foreign entities might be hiding money. We
have FINTRAC, for example.
Leaving aside vindication and the symbolic role
that a civil judgment may give to victims of terrorism, if truly choking off
terrorist financing is the goal, it seems to me that there are more
effective devices than civil lawsuits to deter future terrorist attacks and
choke off the lifeblood of terrorism.
Senator Boisvenu: Mr. Marceau, thank you
very much for being here this evening. We have not seen each other for quite
a while. I would first like to congratulate you for your commitment to
Israel, and especially for defending a Bill that we think may be beneficial
in the medium term.
As Senator Fraser said, we know that Israel is
often a target of international terrorism. Do you think this Bill might have
some impact on the particular case of Israel, and the terrorism it has
encountered for years?
Mr. Marceau: The Bill is intended for
victims who have, and I quote, "...a real and substantial connection to
For example, if you mention the case of Israel, you may think of a Canadian citizen or permanent resident
of Canada who is
affected by a terrorist act abroad; so in Israel, this would be the link
that I could see with the Jewish State. Otherwise, the Bill deals with
actions that have taken place here in Canada or that have a real and
substantial connection, and that may affect Israel or many other countries
that might also be victims of terrorist acts.
Senator Boisvenu: Are there a lot of Israelis who have dual Canadian-Israeli citizenship?
Mr. Marceau: There is a large community of Israelis in Canada, especially in Toronto. I do not know the percentage, but
there are 370,000 people in the Jewish community in Canada, with 93,000 of them in Montreal, which is closer to you. I do not know how many people have
Senator Boisvenu: As you know, I am not a
lawyer, but a victims’ rights advocate. We are aware that the bills adopted
by the federal government are, in large part, challenged under the
Constitution by the individuals affected, and often it is the criminals and
not the victiMs. If Bill C-10 is contested one day, we will not be
surprised. The Supreme Court will decide whether this Bill is
unconstitutional or not. We may be in for some surprises.
Nevertheless, international law is evolving.
Terrorism is one way that crime has become globalized. The first type of globalized crime is terrorism, which has spread. So we need to give the
victims tools to go to another country and have the parties held
responsible. As we said earlier, the victims do not necessarily want to be
compensated; they want support from the country sheltering such a group of criminals responsible for the death
of their husband, their sister, or their
father. Canada needs tools to ensure that victims are supported.
My other thought — you spoke about it earlier —
is how can we let a group of victims work on a Bill for five or seven years
only to tell them as it is about to be adopted that it is unconstitutional?
How can that situation come about?
Ms. Young: We published our article in
2009, so it is not like we did not raise the issues about the
constitutionality of the law a number of years ago.
Let me just address your question about victims
wanting their day in court. I think if I heard you correctly, you said they
may not care so much about the financial aspect of their claim; they may
simply want their day in court.
Again, if that is what they want and they have
good legal advice, then more power to them. Especially I think when it comes
to foreign defendants, if I were a foreign defendant, I would simply ignore
any action filed in a Canadian court against me. If I am a foreign state, I
would ignore it; if I am a foreign individual, I would ignore it; if I am a
foreign organization, I would ignore it. That means you get default judgment
entered against you in a Canadian court. I do not know whether that would
count as a moral victory to victims, to simply have a court rubber-stamp
their claim because a defendant failed to show.
If a defendant did show and there was an actual
legal contest over evidence and the victims prevailed and had a finding of liability, even if they could not enforce that judgment, I can understand
there would be symbolic victory in that. In fact, I have a future research
project that considers the pluses and minuses of using tort law to seek
those kinds of symbolic victories.
I have a feeling that what will happen in
relation to foreign defendants is the lawsuits will simply be ignored, and
then it will be a question of default judgment and trying to chase down
assets, but you will not actually ever deal with the evidence in court.
Senator Boisvenu: But what recourse is left
for victims to get a state found criminally responsible for the death of their loved one? What recourse do they have?
Ms. Young: I am not sure I know what to
tell you. Other than what we have suggested by way of funds through the
provincial acts that allow seizure of claims, I cannot change the
Constitution. I cannot change international law. I cannot change the fact
that foreign states are sovereign and do not have to recognize —
Senator Boisvenu: Do you agree that they
need to be developed?
Ms. Young: As a matter of international
law, should we seek to have more foreign treaties that would require the
reciprocal enforcement of judgments? Absolutely. Treaties would be a matter
for our foreign affairs department to pursue. Imagine, especially when it
comes to the United States, who will we put on this list? The equivalent
American list has four state names on it: Syria, Cuba, Iran and Sudan. North
Korea is not on it any longer. The point being, it will only be pariah
states, states with whom we have no serious diplomatic relations that will
ever be put on this list. We are only really talking about them anyway, and
of course they will not pay, and they will likely not participate.
Mr. Marceau: Mr. Senator, my colleague Mr. Quayat just said that the choice was to use forfeiture, where the state
steps in when a victim does not have the means to have the assets of the
states involved seized. But if you will look at page 7, clause 8 allows a
successful party to request help from the departments of Finance and Foreign
Affairs to identify the property of the state or entity that has been found
guilty or that lost in court. So the victim is not alone and would
potentially have the government’s help. It is very different from what Mr. Quayat said a little earlier.
Mr. Quayat: Mr. Chair, if I could just
clarify with respect to civil forfeiture laws, the act includes a provision
for the federal government to assist victims in locating assets. The civil
forfeiture provisions, however, actually give the Attorney General — in this
case, Ontario — the power to actually seize the asset and take control of it, something that the draft
Bill before you does not contemplate.
I am not suggesting that there are two cross
purposes here. It might very well be helpful to have the assistance of the
federal government in locating certain assets, but the provinces have the
power, if an asset, for example, is in Ontario, to notify the Attorney
General of Ontario, and if there is a link to criminality on a balance of probabilities, the Attorney General can seize the asset.
The Chair: On that point, what we are
talking about here would be a judgment that is registered against a state, and if there are assets in the jurisdiction that could be seized, it is on
the basis of that judgment that they would be seized. The judgment is in
favour of the plaintiff. It is not the Ontario government; it is the
plaintiff. It is the plaintiff that would seek to recover and would not look
to the Ontario government to seize the asset. The plaintiff would exercise
their right to seize the asset to apply against the judgment, would he or
Mr. Quayat: If a judgment is obtained, absolutely. What I am trying to suggest as an alternative, leaving aside the
vindication and the symbolism, is that if one is trying to seize the assets
of groups involved in supporting or materially aiding terrorism, a way to
short-circuit that money in the short term and immediately without the need
of a civil judgment is to make an application for civil forfeiture in a
I am not suggesting you cannot have both, leaving aside my concerns on other issues, but civil forfeiture in a way is
a speedier mechanism than civil litigation. Particularly with reference to
the Ontario act because the Ontario act speaks to the power to distribute
the money to victims.
The Chair: It is an alternative, but this Bill would provide a two-pronged approach to the issue. I understand your
Senator Cowan, I think you had a comment.
Senator Cowan: Yes, it is more a comment
than a question. I think all of us would like to do in the most effective
way what this Bill aims to do. I think what you have drawn to our attention
today is that there are some concerns that expectations as a result of the
passage of this Bill may exceed the capacity of us as parliamentarians, the
government as the government, the system as a system to deliver on what we
would like to achieve for victims of terrorism. Indeed, we talked about
perhaps expanding it, not this time but on another occasion, to victims of torture and other heinous offences.
I think it is important for us to manage
expectations here and be careful about simply passing and Bill and saying, "That is fine; if you are a victim
of terrorism, torture, genocide or
anything else, do not worry, Parliament has passed the Bill and you will
achieve satisfaction because you have been wronged." We are saying here that
there may be a gap between the legitimate expectations of people who are
watching and hearing what we do and will do on this — and there is no
opposition to what is being done here. However, let us not pretend that we
are doing something that we are not. Let us be realistic about what it is
that we are doing, as laudable as that is, and recognize that we may have to
revisit this if, in fact, we have fallen short of people's legitimate
expectations. That is all I am saying.
The Chair: Senator Cowan, if I could, to
that point, there are realities that this Bill would entail. That is clearly
understood, and there are significant issues, if it were enacted in a law, as far as providing plaintiffs with recovery. That is understood, and you
have highlighted that.
It is important to remember the previous
witnesses that we had before us, in particular Ms. Basnicki from the
Canadian Coalition Against Terror and Ms. Saperia. They described all of those limitations clearly. They recognized those issues and identified them
for us, but they still have the strong will to see this proceed.
I do not think there is a suggestion that there
is a smoke-and-mirrors effort here. It is well understood by those who are
proponents of this Bill that there are issues.
Senator Cowan: I am not opposed to the Bill at all, and were it a stand-alone bill, I would happily support it. I have
some questions about whether I can do it the way it is.
The Chair: Thank you very much. That
concludes our time with this panel. It was extremely helpful to us. You have
certainly fleshed out issues we have to give serious consideration to, and
we thank you very much for doing that. You presented your arguments
Honourable senators, we will meet tomorrow
morning at 8:30 to continue our discussions of Parts 2 and 3 of Bill C-10.