Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence for June 12, 2008
OTTAWA, Thursday, June 12, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-225, An Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism), met this day at 10:48 a.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study of Bill S-225.
Our first witness this morning is the Honourable Bob Rae. I should specify for the record that Mr. Rae is here not as a critic for the Liberal Party, which is his job in the House of Commons. We have invited him to appear before us in his capacity as Former Independent advisor to the Minister of Public Safety and Emergency Preparedness on outstanding questions with respect to the bombing of Air India Flight 182.
Please proceed, Mr. Rae, and we will have questions for you after your remarks.
Hon. Bob Rae, P.C., M.P., Former Independent Advisor to the Minister of Public Safety and Emergency Preparedness on outstanding questions with respect to the bombing of Air India Flight 182, as an individual: I am honoured to have been invited to comment on the legislation, and I appreciate your introduction. I certainly, honourable senators, have no intention of engaging in any partisan activity.
It would be fair to say that no experience in my public life has moved me and affected me as much as the work I did on behalf of the Government of Canada with respect to the Air India bombing. However, in the interests of total candour, I must tell you that I have had one other personal experience with terrorism that also had a profound effect on me.
As a young man, I happened to be on a plane travelling from Belfast, Northern Ireland, to London, that had to make an emergency landing. We were advised that a device had been planted on the plane, and we were required to leave.
Twenty years later, I was reading a book on the subject of the conflict in Northern Ireland and discovered that a single coat of paint on the pin that was connecting the electrical charge to the bomb that was on board that plane stopped the bomb from detonating. I can assure you that when I speak of these things that small personal history has had its effect.
I was asked by the Minister of Public Safety and Prime Minister Martin, to meet with the Air India families after the verdict in the trial of the two individuals who were charged in connection with this terrible event in order to advise the Government of Canada on what the next logical steps should be.
In the course of that, I had occasion to meet with dozens of family members and to reflect on what had taken place. My report is a matter of public record. I recommended that there should be a further public inquiry and that it should focus on some very particular questions. I was asked to carry on by Prime Minister Martin, but an election took place and someone else was invited to continue on with the inquiry, which I entirely accept as the right of the new government.
I was pleased that, in the terms of reference for the new public inquiry, the new government adopted all of my recommendations with respect to what should be the focus of the inquiry, and, in fact, I have continued to have a very good relationship with Justice Major and his staff with respect to their ongoing work.
I said in that report that, although we did not come to terms with it at the time as a country, the Air India bombing was, until the events of September 11, the greatest airline terrorist act committed since the Second World War, and there is no question that it was the result of a conspiracy carried out by several individuals.
We know now that a bag containing a bomb was placed on board a plane travelling from Vancouver to Toronto. It went through the Toronto airport, and that bag was then placed on the Air India flight going from Toronto to London and then on to India. The bomb exploded just off the coast of Ireland.
The purpose of amending this act, as I see it, is to give an additional element of right to the individual victims of terrorist activity. In the world of diplomacy, the normal course of events is that we assume that state actors are immune from prosecution in our civil courts, and we assume that it is through international activity at the United Nations or other ways of intervening that will deter and punish states that engage in the funding and financing of terrorist activity.
In the 21st century, as we express our continuing interest as a country in the rule of law, not only within Canada but also internationally, it becomes increasingly important for us to look at ways in which we can deal with what we know are the patterns of terrorist activity.
Individual conspiracies do take place, and frequently terrorist activity does not have the direct sponsorship of a state, and we can point to those examples. However, we can also point to examples where clearly or arguably it does, and I would argue that justiciably it does, in the sense that it should be possible for survivors whose family members have been killed or maimed as a result of a specifically terrorist act not only to sue those who they believe have perpetrated the act — and we can talk about what form that may take — but also to join in the action against those governments that have financed it, and we know that in the past governments have financed such acts. We know, for example, that the Government of Libya was extensively involved with the Lockerbie bombing.
To give this a broader context, we now have some evidence that the funding for the Revolutionary Armed Forces of Colombia, FARC, activities in Colombia was or arguably could have been sustained by the Government of Venezuela. We do not know that, and the Government of Venezuela will deny it, but these are things that can be tried and assessed.
I support the legislation, and, as I see it, the legislation basically says that if you are a Canadian businessman doing business in Colombia, and you are kidnapped and then killed by FARC guerrillas, you have a right of action against whatever government you think is actually funding the guerrillas. If the families can find out who is funding them, can trace it and can take that activity through and prove in a court of law that it was, in fact, supported by a state, I do not know why we would not bring that state to justice. I do not know why we would not do it through our civil courts.
A diplomatic argument is made, and I am certainly familiar with it. The argument says that that is all very well and well-meaning in its own way. However, that should be left to governments and states. We really cannot interfere with the Congress of Vienna rules. We have to play the game the way it is supposed to be played.
I feel that, in the 21st century, we cannot restrict the rule of law in that way. We must give it the full force of real life. In that real life, citizens have had their lives taken away unjustly. If we can trace how that was done and discover who was responsible for doing it, then we should pursue it.
The Americans have done this but in a different way. Senators will be aware, I am sure, that the Americans have passed legislation that names countries because the question then becomes: Which countries do you name? In the case of the United States, they have a very restricted list of countries. The countries listed by the U.S. Department of State are those that have been known funders and supporters of acts of terrorism.
The suggestion has been made that this legislation should follow the American legislation and should do the same thing. I take issue with that.
Ironically, I want to take issue with it because I think it is not very smart, diplomatically. It seems we should not get into the business of necessarily naming, off the top, the governments and the countries that we believe have a record of funding terrorist activity. It seems we should follow the outline that is set out in the legislation, namely, countries with which we do not have any extradition treaties and so on; essentially, countries that are not allied to us and that do not share our system of law.
It is inconceivable that other governments that are friendly to us would be doing this. A limited number of governments would be doing this. I do not believe we should artificially restrict the naming of the governments doing this. The legislation proposed will do a better job of that than would otherwise be the case.
I want to deal with one last argument and that is the traditional argument against doing anything, which is the floodgates argument; that somehow this will open the floodgates to all sorts of trivial or meaningless pursuits. Frankly, that is an outlandish proposition.
This is a law that would, one hopes, be used incredibly rarely and only in circumstances where there was a clear and undeniable line of proof that went from line A to line B to line C in terms of which government was responsible. It will be very difficult to prove. The hurdles are high, which is arguably appropriate. Because of cost and of the difficulties of moving it through, it will not lend itself to that type of activity.
However, I do think that, if it can be proved that a Canadian citizen has been killed because of terrorist activities that have been directly or indirectly funded by foreign governments, we should hold those foreign governments accountable. We should not let them "get away with it,'' to use the colloquial. We should subject them clearly to the rule of law in Canada.
Finally, in the fight against terrorism, in which all Canadians share the view that it is a very important fight, we need to use a number of legal and other means to combat it. If governments come to grips with the fact that they will face an evidentiary path that will, ultimately, prove to be hugely embarrassing to them, it will help to deter that activity.
There is some evidence of that. There is evidence, for example, as to what it took for Colonel Gadhafi to begin to change his ways; to change the way he conducted himself and the way he conducted business.
In the conflict in Colombia and on the borders with Venezuela, we appear to see some signs of change of position from the President of Venezuela. I think that is because of the simple fact of evidence. The embarrassment of the weight of evidence has a serious impact.
Having invited me to comment on the legislation, I am glad to do so and am happy to answer any questions from senators. I appreciate this chance to appear.
The Chair: We are glad to have you here, particularly since I gather that you had a vote. It must have been a rapid transition.
Mr. Rae: I left the vote. My vote counted when it needed to.
Senator Andreychuk: You said that there are diplomatic arguments as to why civil suits are difficult. One of the difficulties I have is that states do not stay the same; they change. Some are evolutionary, such as Colonel Gadhafi. I am sure if you tried to sue him earlier, it would not have worked. There were a lot of dynamics working on him and the civil suit was one of them.
How does one trace the evidence? You talked about the lines "A to B to C,'' evidentiary. Let us assume that we have a state-sponsored activity that can be deemed terrorist activity in some way; at least, we have that in knowledge. By the time we arrive at the point, the government may have changed. Do we hold accountable the government of the day, which has some of the trappings of the government but already shows some positive movement? How does one hold a government in change accountable? In other words, does the government of the day carry forward the legacies of those past?
If the individual has to arrive at all this evidence and connect A to B to C, what would be Canada's obligation to give information that may be confidential or based on foreign sources? How does one work through that maze to accomplish the laudable end?
Mr. Rae: Let me try to answer each part of your question. The answer to your first question is that successor governments are responsible. If a corporation that pollutes is succeeded by a new administration of the corporation, the corporation is responsible. The Government of Canada, under Prime Minister Harper, apologized for activities that it had nothing to do with and took responsibility for them. Ultimately, that is the way it is.
Insofar as you are looking where the legal responsibility lies, I do not think you can avoid it. Would a legal successor to a bad regime have responsibility? Yes, he or she would have that responsibility. The post-1945 government of Germany paid reparations to the Government of Israel. Were there people in their government who committed bad things? No, they were taking a collective responsibility for what had taken place. I do not have any problem with that.
As for the second question, there are real evidentiary difficulties. For anyone who has looked at the question of how you connect intelligence to evidence, this is one of the great challenges in the relationship between Canadian Security Intelligence Service, CSIS, and the Royal Canadian Mounted Police, RCMP. That is, how does one collect intelligence? How intelligence is collected may be different from how evidence is collected; evidence may or may not be admissible in court. Those are evidentiary problems and problems that will have to be settled by the court of appropriate jurisdiction to say that they do not believe you have a case, and they do not think you have been able to prove it.
That is why I stress that these facts are very difficult to prove, which is why this legislation will not be abused. It is not legislation that will lead to a flurry of lawsuits. However, where it can be clearly established, on the basis of evidence that is accepted by a court, where the preponderance of the evidence would lead to a conclusion that government X did have a role to play, then there is a case to be met. That is all that the legislation is saying. The proposed bill is saying that it should be possible for a citizen to do this, if this is clearly where the evidence takes you.
Senator Andreychuk: My question was not so much on the legal point. I get the evidentiary aspect. I am saying that if I were a victim in Canada and had reason to believe there was state-sponsored terrorism — and let us take the Air India example — I would go to my government first and request all the information that they have.
This is the dilemma that we are having under our anti-terrorism legislation. I think the government wishes to disclose what it has, but then there is the confidentiality of state security issues. They have received information from other states under certain protocols, et cetera. Would this lead to the confrontation — not legally but practically — where a victim with limited resources will ask the Canadian government for help, for their information and help to get it from other states?
If the government says that they can give them this but cannot give all the other things — and the "other things'' are usually where the dots can be connected — will it lead to more cynicism about and difficulties with the government because it will not produce blanked-out statements? I ask this because I think you were involved with the Security Intelligence Review Committee, SIRC, so you know all of the issues.
Mr. Rae: I do; absolutely. That is really a question for the court of jurisdiction that is dealing with the case. Does the Government of Canada have to cooperate? I do not think it is a voluntary question of a citizen going to the government and asking for their information.
With great respect, I do not think that would happen. I think that a court would tell the Government of Canada that in terms of evidence, they have to produce whatever evidence is there. Representatives of the government can be subpoenaed, and then it becomes a question that is immersed in the details of the particular issue as to whether the government says that they can produce this or they cannot.
The balance, with respect to the security and the transparency arguments, would have to be struck by the court. It would need to be dealt with on that basis.
Again, it is not a barrier to passing the legislation. It is a realistic sense, if you are a lawyer advising a client, to tell that client that this is a difficult thing to do. It is not easy for a citizen to take on any foreign government and say that they believe there is evidence that so-and-so was involved. However, without citizens doing this, and without courts getting into the game, which needs to happen, then a lot of information and evidence will be swept under the carpet. We will then not know what happened, how it happened or how it was allowed to happen.
I do believe that one of the principles of public policy is not only that we are against terrorism but also that we believe that the financing of terrorism must be stopped and must be traced. If we do not give the citizens some right to invoke the jurisdiction of the courts to trace the financing, we will not get to the bottom of the matter with respect to how certain activities have and are being financed today.
Senator Andreychuk: My concern is that before a claim is filed, one must have some proof. If one waits for the court and subpoena, one is in jeopardy of the case being thrown out because it is not founded on anything. How does one get that evidence early enough to be able to lay the complaint?
Mr. Rae: Under the Criminal Code, if it goes to a preliminary inquiry, there has to be a prima facie case. If you do not have a prima facie case, it does not happen.
Senator Andreychuk: That is the conundrum.
Senator Oliver: Welcome, Mr. Rae. Thank you very much for coming here today. Your broad experience with Air India is something that helps you contribute greatly to our understanding of this bill brought by Senator Tkachuk.
My question is about judgments. Clause 5 of this bill would add new section 12.1 to the State Immunity Act, which provides that in the event that a judgment is rendered against a foreign state for engaging in terrorist conduct, the Minister of Finance and the Minister of Foreign Affairs shall, at the request of the party to the proceedings, assist to the fullest extent practicable, any judgment creditor or the court in identifying, locating and executing against the property of the foreign state, its agents and its instrumentalities.
When the bill was presented to us last week, I raised the same question. As you know, in matrimonial law, you have the Reciprocal Enforcement of Maintenance Orders Act and reciprocating states, who will, by agreement, reciprocate once that judgment is recorded and filed there. We do not have such a thing here. What this act merely says is that we want the two ministers, namely, finance and foreign affairs, to assist, to the fullest extent practicable.
Do you think the enforcement section is strong enough? If not, how do you recommend that it should be strengthened? If the ministers say that they will not do anything to help you with this, you always have the prerogative writs that you can rely upon, certiorari, mandamus and so on, but if the courts do not give you that right, you will have a judgment in vacuo. What would you recommend, if anything, be done to try to strengthen this section?
Mr. Rae: That is a good question. The reason that you do not have a reciprocal enforcement is because the states that we are dealing with are states that are not particularly friendly to this country. Therefore, there would not be any reciprocal enforcement.
The only additional step that I could recommend — and I think this is what the wording is intended to do; whether it goes far enough or not is an interesting question — is with respect to a freezing of assets or an identification of assets and a freezing of assets until such time as judgment is satisfied.
This proposed section 12.1(1) does say "shall, to the fullest extent practicable, assist any judgment.'' I think they are saying that you have to help us to identify the property. At that point, the judgment presumably applies to that particular property that has been identified.
It is fair to say that if it could be any stronger, the strongest wording would be to suggest that there would be a freezing of assets or a lien on those assets applied by the Government of Canada with respect to the judgment that has been made.
Senator Joyal: I would like to come back to the principles involved in the bill. This might be the first opportunity I have to commend the sponsor of the bill, because I believe it is a very important potential development of international law. It is at that level I want to ask my question.
As you know, international law evolves through individual initiatives of states, or governments, to put it in the more visible aspect of identification, who decide to take initiatives that are recognized by others as perhaps binding.
A recent example would be the recognition by the United Nations of the right to intervene in the case where there would be genocide in a population or so gross a violation of human rights that a certain number of countries that respect the rule of law and the principles of human rights come to the conclusion that the immunity of the state must yield in order to protect the life of its citizens. This seems to be a new development that is conducive to greater respect of human rights.
How can we use that parallel to introduce into the international community the principle of this bill, which is that if a state is a participant to terrorism, such as Libya was recognized to be at one point in time, then that immunity could be lifted because a large number of countries around the world recognize that terrorism is not only a home-grown factor but spreads across the world? Could we, in Canada, use the examples of the recent developments at the United Nations with this bill to try to enlarge the support of other states? We are talking about the principle of criminal responsibility. A state has been part of criminal activities, such as terrorism, and as such, if a state is part of that type of initiative, the state more or less, I will not say loses its immunity but its immunity is no longer a barrier for another state to seek responsibility for the damages that have been inflicted on its citizens. Would it be possible to apply similar reasoning and take the principle of this bill to another level so that it not only binds Canada but also binds other countries that are signatory to international conventions for the suppression of terrorism, and they could join Canada in these efforts?
Mr. Rae: Absolutely. I think your eloquence and understanding is very helpful. I would say that you are right. I do not need to add anything to what you have said. You are correct. That is certainly a logical direction of public policy. It is also a logical extension of our understanding of the rule of law.
There are two principles: One is the security of the person as an international principle and not just a national principle or a principle that applies to citizens within a country. The security of the person is a principle that applies around the world. The second is the responsibility to protect, to which you have referred.
International law is continually recognizing that there are limits to sovereignty. This is an important trend in international law. The limits to sovereignty, I would argue, stem from more than the impact of globalization from an economic standpoint, which we all understand. We signed a treaty on international trade. We recognize there are things we cannot do that we might want to do as a country. This applies, as you put it, to an important principle of human rights.
I would argue an additional point, and that is that I do not believe we can limit our understanding of the impact of terrorism to states from the point of view of who the victims are. The victims are any one of us and any one of our fellow citizens going about their daily business. Those are the victims of terrorism. They have done nothing. They are not soldiers. They are not participants in a battle. They are going to work in the morning. They are getting on a plane to see their families. They are carrying on their daily business in a marketplace. They are living their lives. They are regular people.
This legislation, it seems to me, is saying that regular people have rights. If they get into a car accident, they have a right. If something else terrible happens to them, they have rights. Just because terrorism is a complicated, politically motivated event does not mean they lose their rights to a civil action. If we can prove that we know who did it and who funded them, then we should be able to take them to court and hold them responsible.
Is this a principle that has broader application ultimately for our international public policy, and should we be encouraging other governments to go in this direction? Yes, this is an example where Canada can be a leader, where we can say that people have to take this seriously. The one great trend in Canadian public policy that we can all be proud of is that we are a country that is profoundly committed to the rule of law, not only nationally but internationally. That is who we are as Canadians. As we try to extend this, we are doing a good thing.
Senator Joyal: On the same principle of the relative impact of the principle of state immunity in relation to criminal acts of terrorism, would there be, in your opinion, any precedents whereby action has been taken in court to seek responsibility for a state that was party to criminal activity, such as genocide?
Mr. Rae: Efforts have been made by the survivors of torture to take their former governments to court. We have held General Pinochet responsible. He eventually found travel very difficult. I think that is appropriate. We are living in a world that people take more seriously. Eventually, life caught up with President Milosevic. People who thought they could do things with impunity because that is the way it had always been are increasingly discovering that that is not the case. This will be one important way of saying this, and we want to extend this logic in terms of giving rights to individual citizens because of what has happened to them.
Senator Joyal: Would there be, in your opinion, short-term negative impact for Canada's diplomatic service abroad if such a bill were adopted?
Mr. Rae: I do not think so. Some people would say that this bill makes our lives more complicated. My answer to that would be that that is life. The world is complicated, and this happens to be a reality for our fellow citizens. I am trying to give you practical examples.
If Canadians doing business in the Middle East lose their lives because of where they were, or are the target of kidnapping or something else, I do not believe those governments should feel they can carry on that activity with impunity. I do not believe that we should leave it entirely up to governments, because it is not only the governments that have suffered the consequences of this action. Individuals and families have suffered. It does make consular work more difficult, but that is not a reason not to do it.
Senator Stratton: It is good to see you here, Mr. Rae. Thank you for appearing.
Mr. Rae: When I told my colleagues I was getting called to the Senate, they were very jealous.
Senator Stratton: I will take another tact. We look at this bill from the perspective of what is right to Western democratic eyes and civil laws. I am in favour of the bill, but criminality is in the eyes of the beholder throughout the world. It is a matter of whose ox is being gored.
Western democracy is trying to impose our values throughout the world. While that is a good thing to a degree, there are those who have values that are not ours and who have a different way of thinking. You look at it and wonder whether their law is wrong and how they should view us.
In Afghanistan, for example, we are fighting a war against the Taliban. If Afghanistan becomes a democratic state and the Taliban is elected to govern it, victims of the current war may say that their families suffered a loss as a result of Canada's actions. Could their perception of what is wrong and evil not be imposed to find Canada guilty under the law? What is the difference? I see no difference.
Mr. Rae: You are entitled to your opinion, but I will put forward the argument to you that there is a difference when an engagement in Afghanistan is specifically called for by the United Nations Security Council and is sanctioned by international law. There is no question that the activities of our troops in the conflict in Afghanistan, insofar as they are pursuant to the resolutions of the United Nations and insofar as our soldiers conduct themselves in a manner consistent with international law and activities, are entirely legal. It is a lawful conflict. Some wars are lawful and considered as such by international law.
I think I understand your point, but I beg to differ because the international community has said that terrorism is not acceptable and is a crime against humanity. It is specifically the taking of lives of persons not engaged in a conflict by a non-state actor that is using violence deliberately to achieve a political purpose.
We also know that some of these non-state actors have from time to time been financed by governments. Under this legislation, those governments would be liable to take responsibility as they either knew or should have known that terrorist activity was underway as a result of their funding.
I hope that we will not see our courts flooded with activity as a result of this, because I hope that terrorist activity will decline. However, we have a responsibility to Canadians who suffer as a result of what is taking place in the world to do everything we can to bring these people to justice. That is really all this bill does.
I do think there is a difference, although I understand what you are saying. The convention is referred to in the "whereas'' section of the bill. The international convention on the financing of terrorism is taken very seriously. There is no conceivable way that the taking of a life, the bombing of Air India or the attack on the twin towers are lawful or legal under anyone's system of law or under international law as it is currently designed.
I know that people question international law. It has evolved over the last several hundred years, but it is a real thing with real sanctions and consequences, and we should be doing whatever we can to strengthen it.
Senator Stratton: I do not disagree with you. I am on your side, but I am asking about a situation in which a democratically elected state could deem that another government is responsible.
Mr. Rae: Iran has stated publicly that they regard Israel as an illegal state that has no right to exist, and they think they are sanctioned to wipe Israel off the face of the earth. Is the position of the Iranian government, from an international legal standpoint, an arguably acceptable perspective? No, it is not. They can say what they like. Democratic governments can say all sorts of bizarre things, but ultimately there is a movement to say that they cannot do this.
This is what the trend of holding people responsible for their actions is all about. We do not live in a completely relativist world. At some point, you say that this is wrong. It is not wrong only because Canadians say so; it is wrong because international law also says that it is wrong, and it will be enforced.
This is why Senator Joyal's point is very important. If we take this step, it has implications for what we need to do as a country in terms of saying that we think it is a good idea for other countries to join with us in terms of moving in this direction because it will give greater deterrence to terrorist activity.
Senator Stratton: I applaud the bill. I think it is a good bill and a good step. I am, however, concerned about where that leaves democracies if the shoe is on the other foot.
Mr. Rae: I understand.
Senator Milne: I will to follow on the diplomatic lead that Senator Joyal started. Would this bill enable the Canadian government to sue the government of another country if, for example, a Canadian air force plane were shot down by a rogue state? If so, where would that lead to from a diplomatic point of view?
Mr. Rae: That is a logical conclusion, but I think it is already an established principle of international law that states are responsible for the consequences of their actions. After the First World War and the Second World War, we demanded reparations. In the case of the First World War, people felt we may have overdone it, but reparations were paid, as they were after the Second World War, although there were different ways of collecting it in a variety of circumstances.
Senator Milne: This would not be a case where war is declared.
Mr. Rae: It does not matter.
Senator Milne: A simple hostile action would count.
The Chair: The first element of this bill that has puzzled me a bit is that, in connection with the State Immunity Act, it lays out these capacities for individuals to sue a foreign state if it is supporting or has supported a listed entity. The listed entities are under section 83.01(1) of the Criminal Code and consist of groups such as Sendero Luminoso and al Qaeda, of course. There are not that many of these listed entities; may be a couple dozen or so. It is not that easy to be put on the list, even if you are a demonstrably bad bunch of people. I am told 40 entities are on the list. Even then, it is a well-defined group.
We were told the reason why it was pegged to the list of entities was in order for there to be complete clarity in everyone's mind, that it be indisputable, at least in the eyes of the Canadian state, that these entities are, indeed, terrorist groups.
However, we know that there are other terrorist groups that have not made it onto the list. Maybe we do not even know about them yet. Some of them may receive support from other states.
Let me pick the government of Cuba, as an example, for the precise reason that I do not believe this is happening there. A few decades ago, the Cuban government was actively working to export revolution and might well have found it appropriate to finance what we would consider a terrorist group, even if it had not made it on to our list of listed entities. That would mean a victim of that group would not be able to take advantage of this law.
I can see the arguments on both sides. However, I wonder where you would see the most appropriate course for this legislation.
Mr. Rae: That is a good question. I am afraid I do not have an answer for you.
I think the drafters of the legislation have been very concerned to deal with arguments that say that it is too broad, general and vague; and we do not know who is involved. Very thoughtfully, they have tried to deal with each one of those criticisms of the potential legislation to see if it can be limited in some way.
I have two comments. First, if the Senate or committee, in its deliberations, can think of a definition or a circumstance that they would like to cover that is not covered, then that is open to be done. Definitions of terrorist activity are in the legislation. You are quite right when you say that someone may be part of a defined group today; it may be a group that has not yet been identified.
My second comment is that, if you decide to maintain the bill in its current form, it is important to remember that the list is not a permanent list. It will be smaller and bigger depending on the activities of the people. At one time, there were other organizations that were prescribed that are no longer prescribed because they have chosen to change their modus operandi.
That is why I keep encouraging people who come to me and say that they are on the list. I respond that it is easy to be removed: Stop killing people, stop recruiting child soldiers and stop doing a bunch of other stuff, and you will get off the list. The Irish Republican Army, IRA, was on the list and were removed because they changed their method of operation. The Palestine Liberation Organization, PLO, and the African National Congress, ANC, did the same thing. The list is not permanent.
Also, we can assume that our authorities are working very hard, in this day of the digital revolution, to add names to the list very quickly where they feel there is a new group being formed that poses a particular threat.
The Chair: My second question has to do with the capacity that this bill would create for individuals to sue perpetrators of terrorist acts under the Criminal Code; not states but people. In other words, it is a civil recourse.
We know that in the Air India case, the criminal justice system has failed to convict anyone of perpetrating that dreadful act. I am not asking you for a legal opinion.
Mr. Rae: That is a good thing, because I do not have insurance anymore.
The Chair: What you say here is privileged. Regardless, I am not asking you for a legal opinion.
As you examined the Air India matter, was it your impression that the victims and families might have been able to achieve a greater degree of success through the civil route than what was achieved through the criminal route?
Mr. Rae: Many examples exist where the simple fact that the standard of proof is different in a civil matter than it is in a criminal matter has led to a different result. We are all familiar with the O.J. Simpson trial, where Mr. Simpson was acquitted in a criminal court, but he did not get off the hook in terms of his responsibilities.
That is something that people have considered and will continue to consider. Justice Major's report comes out reasonably soon, I think, and people will then want to consider whether there are any subsequent steps that they might be able to take as citizens or as a group.
Without drawing any legal conclusions, I will say that, on a balance of probabilities, some courts can find their way to a conclusion that they simply cannot on the basis of the criminal burden of proof, which quite appropriately is a very tough burden of proof to meet.
Senator Joyal: If this bill were adopted, would we not find ourselves in a very uncomfortable situation in some instances? Let us take the example that you have mentioned of Mr. Pinochet. At a time when the Central Intelligence Agency, CIA, was involved in the uprising to oust Mr. Ayendi, one could claim that the activities of the CIA were equal to terrorism. If a Canadian citizen happened to be an innocent victim of an uprising provoked by a CIA initiative, would we not then find ourselves in a situation whereby we would seek responsibility and compensation from the United States?
Mr. Rae: We can all think of possible examples. However, my view would be that, under the state immunity proposition, the key question in the particular instance would be what the responsibility was.
This is not about the direct activity of a government that mistreats a Canadian citizen. Those rights are already in place. This, specifically, has to do with the funding and financing of terrorism by a state entity. Again, it would have to be based on proof; what proof we have that this in fact has led to the funding of terrorism.
One of the outcomes that ultimately will happen, if we envisage how this legislation could take effect over time, is that it will lead every agency to reflect carefully on who they are funding and what those people are doing. The consequences and the risk can be quite serious.
Senator Andreychuk: I have one question related to your familiarity with the Air India matter. What if we had addressed the issue of tracking of money earlier or paid more attention to how money travels in the world to assist terrorist activity? Was there an element of that in the Air India case? We woke up after September 11 to say that we have to put in more tracking; we are obliged to disclose money and movement, and we have linked it to organized crime, et cetera. At the time of Air India bombing, and through your investigation, did you find that that was significant?
Mr. Rae: No, I did not. Amazingly, the Air India bombing was not expensive. This was not a hugely complex conspiracy. It was to put a bomb inside a piece of luggage and get the luggage put on a plane. That is not a huge financing question. Frankly, I do not know what Justice Major will conclude or what he will say, but from what I saw, this was not an example of state-sponsored terrorism. I said in my report that this conspiracy was made in Canada. It was made by people who may have had a grievance stemming from an issue and a conflict in another country, but the reality is that this was homegrown.
We would like to think that all these incidents happen in other countries, but this was a very Canadian action. This was carried out by people living in Canada. That is what it was, and that is why it is so shocking because we tend to think of this as a foreign activity that involved India and so on. We lived for 20 years in denial as to what had happened until we traced, in a day-to-day way, how they made the bomb.
Contrary to what Senator Fraser said that no one was found guilty, in fact, Mr. Reyat was charged and convicted. He has admitted to being directly involved in the manufacture of the bomb, though his story was that he did not know what the bomb was being used for, and he has refused to testify or to cooperate any further with the police with respect to other questions.
The simple answer would be that foreign financing was not really the issue in the Air India matter, as far as I am aware. Justice Major may find something because he did the full inquiry, and I just did a review of the existing evidence that was in place. He has carried out a much more thorough inquiry. However, that was not my impression.
Senator Andreychuk: That seems to support the idea that we will increasingly face this capability of doing harm to civilians in very simplistic, cost-efficient ways by groups that are picking up ideas for whatever reason. We cannot seem to get at why they are doing it, but they have the capability of doing it. You can go on the Internet to find out how to create weapons of harm.
Looking at the state-sponsored terrorism, it seems to me the states that are exercising that terrorism are becoming smarter in not showing the linkages directly. They are using other tools. They are using development as a tool, and they are planting ideas. However, these groups are changing their methodology and the direct linkages of financing as we go. Is there more legislation or different ways that we can start to attack their new ways of acting?
Mr. Rae: That is a huge philosophical question. The answer is, yes. This is ongoing. You are quite right to suggest that it is a moving, evolving issue.
I continue to believe that the fundamental issues surrounding terrorism are political and that it is the political engagement of populations and how receptive communities are to messages of hatred and violence. Ultimately, the inoculation against accepting this virus, if you see it that way, is fundamentally about politics. If you look at how terrorism ends or how it is dramatically reduced as a phenomenon in different countries, it happens when there is such a sense of solidarity and such a sense of inclusiveness in the country that those ideas just do not take hold. People refuse to take part because it is horrible, too costly and the consequences of the action become so severe. Ultimately, the task is always to look at how we resolve these questions. How do we deal with the political momentum to get to a solution?
This legislation is not a be all and end all. It is a narrowly cast piece of legislation that says that here is a situation where citizens have lost their lives as a result of a terrorist act, and they want to know what their legal rights are. We are saying that they have one more legal right: If you can prove that the government of X, Y, or Z was indirectly or directly responsible for the financing of the group that killed you, you have a cause of action, and we will respect that. We will, as a country, line up our legal systems to allow that to happen. We will not prevent or stop you from doing that, and we will not allow those governments to invoke the protections of diplomacy to cloak their nefarious activity.
The financing of terrorism is a horrible occurrence. As a country, we should be saying that we want to stop it, and we want to do what we can to give citizens the right to stop it.
The Chair: Thank you very much, Mr. Rae
Mr. Rae: I have appreciated it. The civility of the exchange was mind-blowing.
The Chair: I particularly thank you for correcting my error. I was thinking of more recent judicial events, but you clarified the record.
Senators, we have the great pleasure of welcoming our second witness this morning, Professor Ed Morgan, Professor, Faculty of Law, University of Toronto.
Welcome and thank you for being with us. Please proceed with your statement and then we will ask you questions.
Ed Morgan, Professor, Faculty of Law, University of Toronto: Honourable senators, thank you for inviting me here this morning. I am here to speak in support of the bill, which I think is very good, very well-constructed and very thoughtfully drafted, and which reflects a positive contribution to Canadian policy.
I have provided a written brief and will speak a bit to the issues in it. I will not, however, repeat its contents precisely. You can read my, hopefully, eloquent, or at least entertaining, prose and get something out of it.
I will divide my comments this morning into three parts. I will address the changing nature of international law, which senators asked Mr. Rae about. I will talk about the place of sovereign immunity law within the general rubric of the rule of law, which is another issue this committee was inquiring about this morning. I will finish with a few words on terrorism and politics and what I believe is the very well-thought-out design of this bill to address those issues.
On the changing nature of international law, it is true that it is not the fastest moving body of law in the world. I teach it at the University of Toronto, and we do have to update our case materials every year. It does move at a visible pace.
The well-known 1977 Trendtex Trading case before England's appeal court was a sovereign immunity case. It had to do with whether England would move from the old absolute immunity standard to a more restrictive immunity standard, that is to say, to exempt the commercial activities of sovereign states from the sovereign immunity rule.
England had not legislated on the subject, so the appeal court had to look around for advice on what to do about it. The mercurial Lord Denning, always good for a one-liner, said, "I would use of international law the words which Galileo used of the earth: `But it does move.'''
It does move. We might not always see it; we might have to take some perspective on it. Eventually though, it does move, and we are ready, in this bill, for yet another move, or at least for Canada to implement one of international law's new moves.
In 1999, the English House of Lords said that it moved again with the Pinochet case, that is to say, there can be no sovereign immunity for criminal charges based on gross violation of international human rights. Sovereign immunity theoretically would have applied to General Pinochet because sovereign immunity and head of state immunity are directly linked in the classical international law frame of mind. The sovereign is literally the head of state, so what is good for the sovereign as a collectivity, as an embodiment of the nation, is also applicable to the sovereign himself or herself as head of state. The House of Lords said that they would not go that route, that they would not give him sovereign immunity from a criminal charge of gross violation of international human rights, which led to a reopening of the world of international criminal law.
After the Pinochet case, we had the impetus for negotiating the International Criminal Court; and international criminal law as a field of legal endeavour has really taken off, springboarding from the Pinochet case, from that movement in international law.
After the Pinochet case, the next logical move would be the removal of sovereign immunity when it comes to civil liability for gross violations of international human rights. That case has been argued in Ontario in a well-known case called Bouzari. Mr. Bouzari brought an action against Iran, and his point was that there should be no liability from civil actions for gross violations of human rights law. It was thoroughly canvassed in the Ontario courts, both at the trial level and at the Court of Appeal.
I will read to you a few sentences from the Ontario Superior Court's judgment in the Bouzari case. I am reading it for a couple of reasons, which will become obvious. Justice Swinton of the Ontario Superior Court of Justice, at paragraph 36 of her 2002 judgment in the Bouzari case, says:
To assist me with the international law issues under this heading, as well as the Charter arguments, expert opinion evidence on international law was given by Ed Morgan, an Associate Professor of International Law at the University of Toronto, on behalf of the plaintiff, and Christopher Greenwood, Q.C., who holds the Chair in International Law at the London School of Economics, on behalf of the intervenor, the Attorney General of Canada.
The Attorney General of Canada had intervened standing in the shoes of Iran. Iran did not appear to defend itself, but the Attorney General of Canada intervened and carried the sovereign immunity defence on behalf of the defendant.
In paragraph 52, Justice Swinton says:
In my view, Mr. Greenwood's opinion with respect to the interpretation of the Convention, as well as other issues of international law, is more persuasive than Mr. Morgan's.
You win a few, you lose a few.
Speaking of terrifying experiences, Justice Swinton, who I think is a brilliant jurist, was my professor of constitutional law in my first year of law school, so it was a fun experience all around.
Justice Swinton continues:
Mr. Morgan described Mr. Greenwood's approach as "too conservative'', since it describes where international law has been, but not where it is going.
I teach this case every year. I like to think that if you have to lose a case that your students have to study, this is the best way to lose it, that is to say, I was too progressive and slightly ahead of my time.
Justice Swinton goes on to say:
During his testimony, Mr. Morgan candidly admitted that he was advocating a position where international law was going (and, in his view, should be heading).
That was five and a half years ago, and I hope we have evolved a bit in a half decade.
The next sentence in the judgment is the giveaway. Her Honour says:
At one point, he indicated that a trend was occurring, but no first step had been taken by any state to assert extraterritorial civil jurisdiction over a foreign state for acts of torture.
That is not quite accurate. That is to say, the United States has legislation that would address this type of situation.
What she meant to say is that no court has done it in the absence of legislative authorization. Courts around the world are waiting for their legislatures to take those steps. I know this because courts have said so in precisely so many words, following up on the Pinochet case, in which we find the House of Lords saying that there will be no sovereign immunity for criminal liability.
The Al-Adsani case asked the same question for civil liability. The House of Lords specifically said that the problem with the Al-Adsani case was that not only had England not legislated appropriately for this type of civil liability, but also what Lord Denning did in the Trendtex case could not be done. If a survey was taken around the world, not enough countries would be found that would have created an international custom. They are waiting for countries such as England. A few have been found, such as the United States. However, they are waiting for countries to legislate this. Courts will not do it on their own.
That is effectively what the courts of Ontario said. Justice Swinton's judgement was confirmed by the Ontario Court of Appeal, which stated that we have to wait for the legislature to implement this lifting of sovereign immunity for the purposes of civil liability.
My submission today is that international law norms and international law rules do move. However, they do not get pushed there by courts. Courts will reflect what governments and legislatures do. It is up to this body and to Parliament, generally, to set this in motion. Courts will reflect this once it is set in motion, but we cannot rely on judicial developments alone. Judicial developments have to fall on the heels of legislative developments.
That is only fair, given that this is a matter of important public policy and has a political element to it. We do not want courts to take these initiatives completely on their own. We want them to take the signal that Parliament gives them. That is my first point about the moving of international law; it is waiting for Parliament to move it.
My second point deals with the rule of law, which leads to the question of why we have sovereign immunity. Also, in terms of the rule of law and the international rule of law, what are we doing to international legal theory when we restrict sovereign immunity or add yet one more exemption to the usual sovereign immunity rule?
I can best illustrate the debate here and tell you what this is all about and where the rule of law fits in by telling you about two cases decided by the Supreme Court of Canada, both in the same year, in 1943. Interestingly, two sovereign immunity cases came before the Supreme Court of Canada in 1943. Both were straight-up sovereign immunity questions and the Supreme Court — the same bench — went different ways on the two questions in the same year. The two cases are Reference re Foreign Legations and Reference re U.S. Forces. They were two sovereign immunity cases with two different conclusions.
In my opinion, neither is right and neither is wrong. They are both equally right under the circumstances and under their context. I will give you the quick versions of them.
In the Foreign Legations case, the question before the court was as follows: Can Ottawa sue foreign embassies to collect a property tax bill? Chief Justice Duff in 1943 addressed this by looking at first principles; looking through the entire history of sovereign immunity law, back to the judgment of Chief Justice Marshall in the Supreme Court of the United States in the famous Schooner Exchange case in 1812.
Chief Justice Duff repeated what Chief Justice Marshall said that sovereign immunity comes from the notion of the equality of states. That is why we have sovereign immunity. One state's courts are not supposed to sit in judgment of the acts of another state. No state can compel a foreign state to be a defendant in its own process.
Today in Ontario, we have modernized all the forms of action. However, if you recall — those of you who are lawyers or who practiced in the courts prior to the civil procedure reform in, I believe, 1984 — we used to have the old writ of summons.
You would start off a legal action with a writ of summons, which they still have in England. In any ordinary civil suit, the writ of summons commands the defendant in the name of Her Majesty to appear at such a place at such a date.
This is just an illustration of why we have sovereign immunity. Her Majesty cannot command her equal. Her Majesty is not supposed to be commanding a foreign sovereign to appear in her courts. That is what Chief Justice Duff said in the Foreign Legations case.
The international rule of law is that all sovereigns are equal. That is where sovereign immunity originates. We are not supposed to subject a sovereign to the commands of a foreign sovereign to appear and be judged by its sovereign equal. International law is where sovereigns are equal. We know they are not equal in international politics, in economics or in military strength. However, law is the one place where each sovereign is supposed to have equal rights and stature. The consequence of this strict equality, as I said, is no passing judgment by one sovereign in the courts of another.
If there is a complaint, sovereigns are supposed to deal with that as equals on the diplomatic level or in international forums. Therefore, to protect this notion of the international rule of law and the equality of states, we have traditionally given each state immunity in the other state's domestic arena. That was the conclusion of Chief Justice Duff in the Foreign Legations case.
The other 1943 case was a case called Reference re U.S. Forces. It raised the problem of the potential criminal liability of American soldiers who commit crimes while stationed here in Canada. During the Second World War, in 1943, due to the coordinated war effort, many American soldiers were stationed across bases in Canada or in naval bases in Canada.
A soldier in uniform is a classic appendage of his or her sovereign. A soldier in uniform might also be subject to sovereign immunity for his or her criminal acts. Again, the Supreme Court went into a review of what sovereign immunity is all about. This time Justice Rand wrote the judgment of the Supreme Court. He more or less said that granting the foreign soldiers stationed here sovereign immunity for acts that they commit while in the confines of their own base — albeit, that the base is on Canadian territory — is fine. That conforms to the idea that we have invited in our sovereign equal on an equal playing field, and we will let them take care of their own internal disciplinary and prosecutorial matters.
However, when it comes to a crime that an American soldier might have committed in Canada while off base or off duty, among Canadian civilians, that version of sovereignty immunity in effect, Justice Rand felt, would put the American soldiers and American sovereignty above the law. Those of you who have looked at Canadian constitutional law, will know Justice Rand is the great champion of the rule of law; the classic Albert Venn Dicey's version of the rule of law that everyone is equal before the law, and no one is above the law not even the domestic Crown. That was Dicey's version of the rule of law in England.
In Canada, in the famous Roncarelli case, not even Maurice Duplessis was above the law. Everyone from a prime minister or premier on down must face the law as equals. The rule of law in Canada, in English constitutional tradition, means equality before the law. Everyone answers to the courts on an equal footing: Our government, as Justice Rand said, as well as foreign governments and every individual who comes before the courts; every citizen and every foreign individual.
For the sake of our domestic constitutional version of the rule of law, the Supreme Court said that we had to restrict sovereign immunity for crimes against Canadians, even if committed by an agent of a foreign state, at least when those crimes were committed inside Canada. That was 1943.
We are now ready for the next step. If agencies or agents sponsored by a foreign state commit crimes against Canadians outside of Canada, we are also ready for this version of the rule of law and will subject them to our courts.
We have two versions. When we lift sovereign immunity, many international lawyers will say that we are abandoning the international notion of equality of states.
We are not abandoning the international rule of law; we are simply replacing it with our domestic constitutional law. Justice Rand understood 60 years ago that this is a valid option for a rule of law society because we have to at some point stop the international notion of equality and trigger the domestic rule of equality. Otherwise, sovereign immunity on the international level becomes sovereign immunity on the domestic level. That is where this bill fits into the rule of law. We are simply embracing our constitutional notions of the rule of law.
The Chair: This is absolutely fascinating, but we do want to ask you questions.
Mr. Morgan: Give me two minutes on my last point of politics and terrorism and the good drafting of this bill.
Virtually everyone will say at some generic level that terrorism violates the most basic norms of human rights law. The prohibition against terrorism is what they call a jus cogens prohibition. That we know. It is a gross violation of human rights law. Professor Cutler calls it a Nuremberg crime in some of his writings. We know it is also notoriously hard to define. Some of the questions earlier were getting at this.
In my view, it is a very good piece of draftsmanship that this bill targets the sponsors of listed terrorist entities. I take your earlier point, Madam Chair, that the list is limited; it is not an endless list. I would agree that it is not that easy for a new entity to get on this list. There should be some debate about this. I fully support the definition of terrorism that we have in section 83.01 of the Criminal Code. It is a very good definition. It is sound. It is based on international conventional definitions and the convention against terrorism financing. The Supreme Court adopted it for immigration law purposes in the Suresh case. It is a very good definition, but it does not solve all of the problems. Inevitably, there is some political element in assessing who is and is not a terrorist. Thinkers all over the world have tried to do this, and it is virtually impossible to entirely eliminate political value judgments in that equation, which is why we have a public process for listing terrorist organizations. To use the published list is a good thing because the published list is a transparent list.
The last controversial organization placed on the list was the Tamil Tigers. Substantial public debate took place about whether the Tamil Tigers truly belong on the list or not. That is appropriate. This is a good question for the government to be answering. We should not leave that to the courts. We should let the government, because it is transparently political, make that assessment first. The government makes it for the purposes of the Superintendent of Financial Institutions, our financial regulator. It makes it for the purposes of immigration law and for all kinds of purposes, and it should make it for these purposes as well. The courts can come to the already established list and find civil liability where there is the appropriate evidentiary record. Those are my submissions.
Senator Baker: Welcome to the committee. You have extensive experience, not just in being a recognized expert in international law but also in our courts, mostly at the level of the appeal court but certainly in the Superior Court of Justice, before the Supreme Court of Canada and in a variety of areas. For example, I recall you represented the Law Society of Upper Canada on the rules of insurance and the Epilepsy Association of Canada in an interesting case on the use of marijuana for medical purposes.
As a recognized expert in international law, you had to go through a procedure, first in the Superior Court, to be recognized as an expert before the court — which is a procedure in itself — and then to be recognized under the definition, I presume, of R v. Finta as an expert in international law and its applicability to domestic law in Canada. Now that you are an expert, the next case you go in, you are a recognized expert. As you know, that is the way of the system.
With the passage of this bill, as a recognized expert to be called in any future case that deals with a matter that arises out of this law, what would your opinion to the court be if we were to enact this measure as it is today, as it applies to a civil course of action in damages against a foreign state or an agent of the state?
Mr. Morgan: What would my opinion be?
Senator Baker: Yes. In other words, were you to be called by the applicant, would your opinion be that we have overcome the problems of the Bouzari case that you cited a moment ago? You said a date. To be exact, you said the Court of Appeal, 2002. It was 2004.
Mr. Morgan: I was quoting from the trial judgment.
Senator Baker: Have we overcome the problems that were identified by the Superior Court judge in the Bouzari case so that this action would be successful?
Mr. Morgan: The Bouzari case was a human rights violation, not terrorism per se, so it is not precisely applicable. However, if we put the Bouzari case in the terrorism context, I would say so. That is to say, we have overcome that Iran could no longer take advantage of the sovereign immunity defence for having sponsored an act of terrorism.
Senator Baker: There was some concern in a previous meeting we had about the process by which one brings the action under the State Immunity Act, which has a set of rules unto itself written into the act, in section 9, in which service of the originating document would be in a manner agreed to by the state or in a manner provided in subsection 9(2). The manner provided in subsection 9(2) is that the originating document would be delivered to the Deputy Minister of Foreign Affairs or a person designated by him for that purpose who shall transmit it to the foreign state. It goes on to say that the service of the document to the foreign state is at the date that the Deputy Minister of Foreign Affairs has certified that a copy of the document has been transmitted to the foreign state.
There was some concern raised here in the committee that perhaps the Deputy Minister of Foreign Affairs would refuse to serve the document on the foreign state. It was suggested by one of the members that perhaps, in that case, one would seek an order of mandamus to order the Deputy Minister of Foreign Affairs to serve the document. Do you have any thoughts on that?
Mr. Morgan: I had not thought about this before you raised the question, but now that you mention it, this would not be different in a terrorism case than it is in a commercial case. Currently, you can sue a foreign sovereign state for a commercial wrongdoing. It is common now, because sovereign states and their agencies are engaged in market transactions. We have many lawsuits against foreign sovereigns, and we use the mechanism of the deputy minister to effect service for commercial claims.
This new exemption to foreign sovereign immunity would not add anything new, but you may be flagging it as a concern that if it is more sensitive than a commercial lawsuit, maybe the deputy minister would exercise some political discretion that he is not supposed to be doing. The deputy minister is a mechanism for service for convenience sake, if nothing else. It is not supposed to be a moment to exercise political judgment. If I were advising a plaintiff or a plaintiff's lawyer who encountered problems with service, the easier route than seeking an order of mandamus, which could get you into a legal battle with the ministry itself, would be to ask for alternative service; that is, to seek leave from the court for an alternative form of service and simply serve the foreign sovereign state in the way you would serve a corporate entity.
This has been done in the United States. Because they have a lot of terrorism civil suits going through the courts in the United States, in particular against Iran, plaintiffs' lawyers have a hard time serving the Iranian government in the United States. Even the U.S. postal service will not take a courier package there. They seek leave for alternative service, and they use all sorts of other mechanisms. They have someone serve the Iranian ambassador in London instead of doing it through the U.S. Department of State, because the U.S. Department of State does not want to have any connection with Iran, even to sue them.
Alternatives exist, and courts are flexible in handling those difficulties.
Senator Baker: In conclusion, the professor is always right on these matters, and he is right again. Section 9(4) of the State Immunity Act says:
Where service on an agency of a foreign state cannot be made under subsection (3), a court may, by order, direct how service is to be made.
Subsection (3) refers to the deputy minister.
That is the procedure we will be following after the passage of this bill.
Senator Di Nino: Welcome, Mr. Morgan. Your experience shows. You are very well-versed in these issues, much more so than most of us.
The issue of definition of terrorist conduct has been discussed at this committee, and I am not sure it has been totally resolved. When the Canadian Coalition Against Terror, C-CAT, representatives appeared before us, they proposed amending Bill S-225 by replacing the words "terrorist conduct'' with the words "terror sponsorship.'' Will you give us your opinion on whether that would best serve the proposed objective of this bill?
Mr. Morgan: You are talking about the amendments in this bill to the State Immunity Act?
Senator Di Nino: Yes, I believe it is proposed new section 2.1(1).
Mr. Morgan: I see, because it might not be direct terrorist conduct engaged in by the foreign state; it would be an indirect form of terrorist conduct, namely, the sponsorship or financing.
I hate to answer something such as this off the top of my head because words inevitably reverberate elsewhere, and we should all think about every word used in a statute such as this. I do see the point.
Sometimes we are, of course, accusing foreign states of direct acts of terrorism. We all may remember the Ahani case. Mr. Ahani was an agent of the Iranian Ministry of Intelligence and Security, the notorious MIS, which was found by the Federal Court of Canada to be a terrorist organization, and Mr. Ahani was found to be a terrorist agent on its behalf.
In that instance, you have a government agency engaging in direct terrorism. However, more typically, it is not the direct terrorist conduct. I do take the point that that seems to imply a directness that we are not talking about in most of these lifting of sovereign immunity cases. Sponsorship is more in line with what we are saying, but it may be both conduct and sponsorship.
I would have to think more about this.
Senator Di Nino: I would be happy if you undertook, if you wish, to give us a written opinion in the next few days. That would be just as valuable.
The Chair: Yes, we would very much appreciate that.
This question arose when we first began asking about this new phrase in our law, "terrorist conduct.'' Previously, in the Anti-terrorism Act, we referred to "terrorist activity,'' and we grappled with why the language here is not the same. At the same time, as Senator Di Nino has mentioned, the suggestion was made that the words "terrorist conduct,'' which appear several times in the portions of this bill dealing with the State Immunity Act, should be changed to "terrorist sponsorship,'' which perhaps raises more questions, as you suggest. Your learned opinion would be very welcome.
Senator Di Nino: I appreciate that, Mr. Morgan.
Another area on which some discussion has taken place is the involvement of the two ministers. Clause 5 of Bill S- 225 specifically states in the proposed new section 12.1(1) the following:
. . . the Minister of Finance and the Minister of Foreign Affairs shall, to the fullest extent practicable, assist any judgment creditor or the court that has rendered the judgment in identifying, locating, and executing against the property of that foreign state or any agency or instrumentality of the foreign state.
That raises a number of questions as to whether that is appropriate, and we think that if it is a law, it is appropriate. Do you agree with that?
Mr. Morgan: I do think it is appropriate. I do not think it is dramatic, that is to say, it does not give the ministers any new powers. It simply asks them to use their best efforts and good offices to help the judgment creditor realize judgment on the debtor. It is more of an information-sharing mandate than an actual creation of new powers.
In that respect, I would say that there is nothing inappropriate about it. It is not easy. I know that plaintiffs who have achieved judgments against state sponsors of terror in U.S. courts have a hard time locating the assets.
I keep referring to Iran because that is the country with the most cases against it at the moment. Iran has oil dealings all over the world and is heavily engaged in international trade, but under a cloak of confidentiality and secrecy that parastatal organizations can have. They operate through state organizations, not through publicly traded entities. It is not easy to locate the assets of such states and pin them down at any given time.
If the Minister of Foreign Affairs could use whatever good offices and information he or she has to locate at least assets in Canada, that would be helpful. However, I do not think it gives the minister any extra powers to seize assets. That has to be done in accordance with normal judicial process.
Senator Di Nino: Another question that was raised with regard to this is the potential refusal by the Minister of Finance or the Minister of Foreign Affairs to provide these types of assistance. What would your view be on that, assuming that this bill passed and that became part of the amended State Immunity Act?
Mr. Morgan: It says "shall,'' not "may.'' The way it is drafted, it is mandatory for the two ministers to come to the assistance of the plaintiff. An amount of flexibility is there, obviously, with the words "to the fullest extent practicable.'' It is hard to say in any given circumstance, without a concrete illustration, what is practicable to a minister and what is not. I suppose there may be some circumstances that are so politically or economically sensitive that it is not practicable to help out.
As I said, this is only an assistance. Typically, you will find judgment creditors hiring investigators to try to figure out where the next ship is pulling into port or where the next shipment of oil belonging to the foreign sovereign state against which you have a judgment is located. The minister can help you possibly as much as a private investigator or possibly not as much. It is not always certain that the ministers will know anything. The ministers typically do not track foreign assets; they track foreign policies and foreign relations.
My prediction would be that you will not find ministers adamantly refusing to assist. You may find them invoking the practicality point, that it is not practicable under the circumstances for us to start have investigating a foreign government's assets or the location of their assets.
Senator Di Nino: I want to finish with a suggested amendment from the C-CAT.
C-CAT suggested in their appearance before the committee removing the obligation to assist with the execution against the property, in effect, asking the two ministers for assistance in identifying and locating the property, again, to the fullest extent possible. In your opinion, would that weaken the bill in its objective or would that be, in effect, a better way of involving the ministers?
Mr. Morgan: I do not think it would weaken it substantially.
It is quite helpful to a judgment creditor to have ministerial assistance in identifying and locating assets. There may be some out there, but I have to confess that I cannot think of a parallel example of ministerial assistance in executing assets.
The bill would be perfectly sound with or without it.
Senator Joyal: I would like to address the scope of the bill. Clause 1 of Bill S-225, which adds proposed new section 2.1(1) of the State Immunity Act, says:
For the purposes of this Act, a foreign state engages in terrorist conduct if that foreign state knowingly and recklessly provides, directly or indirectly, material support to an entity that is a listed entity as defined in subsection 83.01(1) of the Criminal Code.
If I understand the triggering of responsibility of the foreign state, it is when that state uses a listed entity. Let me provide a scenario.
Since we have that now, any state that wants to sponsor a terrorist initiative would simply have to go beyond the listed entities. For example, Libya could essentially commission their bombing through an entity that is not covered within the definition of the Criminal Code. Therefore, it would be easy for any rogue state to sponsor terrorist activities and not incur the responsibility if they did not use one of the entities. In other words, you lock the front door, but there are still many small windows open around the house.
If I understand the American legislation the way it was presented to us, the United States is one notable exception because it allows lawsuits against certain foreign states; in other words, the states per se that are listed, not the entities.
Mr. Morgan: That is correct.
Senator Joyal: You see the difference. If we want to be effective, should we not say, "any foreign state that engages in terrorist activity, as defined in section 83.01(1) of the Criminal Code, or in terrorist conduct''?
Then, we would block the opportunity for a state to choose a vehicle other than a terrorist listed entity.
Mr. Morgan: Your point is a valid one. The listing of terrorist entities is not a perfect mechanism. It is wise to rely on the Government of Canada's assessment of who is a terrorist organization and to somehow control this because it is very difficult for courts to engage in it if the government has not opined on this issue. If it is simply left to the courts to figure out whether this was a terrorist activity or a terrorist organization, the courts will get into the same debate that the government has to go through when we ask them to list a terrorist organization.
In my view, it is better for the government to engage in that debate than it is for the courts. I would like to think that in our legal definitions of terrorism, we have put to rest the so-called relativity of the definition of terrorism where one person's terrorist is the next person's freedom fighter.
In fact, it is hard to put that ghost to rest. Therefore, I would rather we rely on the government's assessment of who the relevant organizations are and then have the courts follow that lead rather than have the courts take the lead.
Senator Joyal: Let me make my point in a different way.
Section 83.01(1) of the Criminal Code provides definitions relating to terrorism. It defines terrorist activity, and then defines a terrorist group as follows:
(a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or
(b) a listed entity
In other words, the terrorist groups that are covered by this bill are essentially listed entities but not an entity as stated in definition (a) above.
That is why I am telling you, if I am a rogue state — I do not want to name any and start pinpointing — I know there are listed entities. Therefore, I would find an entity that falls under the first definition of terrorist group and not the second because with those in the second definition, I know that my civil liability will be called upon. However, that is not the case with those in the first definition. That is what the Criminal Code clearly says in the definition of terrorism.
Mr. Morgan: Hopefully, the listed groups cover all the groups engaging in the first definition.
Senator Joyal: Yes, but there are terrorists who are not members of a group.
Mr. Morgan: I cannot deny that. I completely agree with you that there will be terrorist activities that are not covered by this listing.
Senator Joyal: Let me give you the example of 9/11. At that time, they were not part of a group that was listed. Now they are listed. To form a group, you do not need to be incorporated under the Canada Corporations Act.
That seems to be an important point if we want to be effective in suing those rogue states that might want to sponsor terrorist activities not only through listed groups, but through other groups that they might form for the sake of one specific terrorist objective.
The Chair: Senator Joyal, a couple senators want to pose supplementary questions on this point.
Senator Tkachuk: It is a very good point you raise. Would the definition of terrorist activity cover that?
That terrorist group may at some time be put on the terrorist entities list because of its actions. Once it becomes involved in the process of terrorist acts, sooner or later, states have debates about whether it should be put on the list. Once it is put on the list, a suit can be filed.
The Chair: Can it?
No one is disputing that it is a terrorist act. However, if the act in question is committed before the entity is on the list, do the victims have the recourse provided by this bill?
Mr. Morgan: I hate to be a law professor and say that I can see the arguments both ways. However, one of these days a court will probably have to ask that question. I see the point that once the government has made its assessment that the entity should be a listed entity, then all of the past conduct also counts because all that changed is the listing, not the offensive nature of the conduct.
Usually, we bridle at retroactive law because people can be expected to obey the law. If the law changes, we cannot hold them to the new standard of conduct that did not apply prior to that new standard.
We are not here to change standards of conduct. If you bombed a civilian plane but were not on a list, you still bombed a civilian plane. Simply because now we have put you on a list, I do not see the principle against retrospectivity applying to this. Now we have simply lifted that immunity that you had. You still engaged in offensive conduct and a gross violation of human rights.
The principle of retrospectivity, it seems to me, should not block this type of civil action.
Senator Joyal: I agree with you. However, the loophole still exists. Let us make a hypothesis: I am a rogue state. I want to commission a terrorist activity such as the one of 9/11. I identify a certain number of persons — let us say 15 — and each one of those persons has a role to play. They perform their terrorist activity, which causes thousands of deaths and so forth.
They are not an entity, and some of them disappear; some might be killed and some disappear. They will not form any new entity after that. However, we know they have caused damages. Additionally, suppose we have the proof they have been sponsored.
Mr. Morgan: It is clearly a loophole. Having said that, I will point out that I do not think we are being narrow and formalistic when we identify who belongs to what group. We do not know who the shareholders and constituents of al Qaeda are. It is a loose network of groups.
I am convinced that our court are at least open-minded, understanding and flexible enough that they would say that if you have identified this group as a loose part of an al Qaeda-style network, al Qaeda is a listed group and, therefore, the sponsors of this group can be sued. If we are completely narrow-minded and formalistic as to who is a member of al Qaeda and who is not, of course we will diminish the effectiveness of this piece of legislation down to nothing because we will only have bin Laden and a couple of his associates.
However, you will have expert evidence coming in. If a retired CSIS officer is coming in and testifying as to who is really part and parcel of that amorphous al Qaeda network, you will have a more fulsome understanding of who is within a listed group and who is not.
That is not to say that your point will not, at some point, be valid. You can manipulate our list. It is true that the list follows events. It typically does not come in in advance of events. Therefore, if a new group does form, we may be caught off-guard. Generally speaking, I think our method of listing groups under generic names is effective enough. We do not know who is in Hezbollah and who is just another militant engaging in Hezbollah-like or Hezbollah- sympathetic violence. However, if we are broad-minded enough in identifying who is really part of a listed group, we will cover nine tenths of the cases that come before us.
Senator Joyal: I am not saying that the section is not effective in using the listed entity avenue. I am just saying that those listed entity are important groups, but they are not the only groups that perform terrorism. Since we will be pinning the listed entity now, a rogue state wanting to perform terrorism that tries to avoid or escape the civil responsibility could decide to use another route and "get away with murder,'' as the expression goes.
Mr. Morgan: Yes, literally.
Senator Andreychuk: If I understand you correctly, the purpose of the bill is not to say that state X has gone out and said that it will find a person to be an agent to that extent; rather, it has thrown a lot of money around in the hope that some of it bears fruit. Therefore, if that is the philosophy of the bill, obviously there will be gaps. However, you are getting at what seems to be the most invasive, pervasive or insidious activity by states.
It would be easier to say that they are employing agents. We have had states that have done that. However, the terrorist activity that we are aware of now is more about having access to resources.
The Chair: What is the supplementary?
Senator Andreychuk: It is a philosophical difference: Do you want to target absolutely every terrorist agent and, therefore, the state, or are you going after the state to try to curtail its activity that, in some ways, has a guise of legitimacy when it is put out there under development, et cetera? We know that it has another motive.
Mr. Morgan: You put it very well. This is probably aimed at the more commonplace terrorist sponsorship today. It is not the sponsorship of a single action, of a single act of violence; it is the sponsorship of a group over a number of years. That seems to be what this is aimed at.
I am not a police officer or an intelligence officer, so it is hard for me to say that that seems to be more commonplace. However, as a newspaper reader and a follower of these events, that seems to be the policy issue we are addressing here.
Senator Joyal: My approach to this is that I support the principle of the bill. If we are to be effective and go the route of creating new international law, as you have stated in your first point — and we will be at pains to do that for a certain period of time — let us be sure that we cover everything we can.
By defining "terrorist conduct'' in a way that is directly or indirectly supporting a listed entity, and not "terrorist activity'' as defined in the meaning of the Criminal Code, it seems that we should be covering the largest spectrum. With that, the end result is that we will have a bill that will really give to any state that is involved in terrorist activity and terrorist conduct the same responsibility.
That is essentially what I am after. I am not against the bill. I just want to be sure that, if we are to legislate on this and take international initiatives to ensure that this initiative is recognized by others and spills over to become one day the way you said with some judges saying that now it is the way states recognize that this is the way to behave, I think it should cover everything.
Mr. Morgan: My view is that, yes, if you did that, you would certainly cover everything. However, you might open up some other problems that you have closed off by not doing that. You will open up the conduct of groups that we have specifically, for good policy reasons, left off the list.
There is a political assessment to be made here. Mr. Rae alluded to it earlier. The conduct of the African National Congress is a good example. If you look at the Supreme Court's judgment in the Suresh case, they posed this as the problem in defining who is a terrorist. They specifically said that there was once a period of time when Nelson Mandela and the entire African National Congress were branded as terrorists, not just by the apartheid government in South Africa, but many governments around the world, including our government.
They pose this as the problem to address in coming up with a definition of terrorism because today we see the ANC and Mandela as the most laudable, praiseworthy international liberation movement, not one to be condemned for criminal activity.
Having said that, the African National Congress did have a military wing and did put a bomb in a public square or shopping mall. It did engage in what would, if it were today a listed entity, be "terrorist conduct.''
The government has decided for good policy reasons to delist the African National Congress. It should be delisted. It has transformed itself and its own country into a peaceful country. We do not want to be encouraging civil suits against supporters of that organization anymore. Therefore, we have delisted it. We allow the government to do that.
If we did not allow the government to expand and contract the list as it sees fit from time to time, we would not be able to have that level of control over who the civil suits are against.
That would not necessarily be a bad thing, but you would be opening up a whole host of issues that you have closed off by limiting the targets to the sponsors of the listed entities. There are problems there, too; loopholes have been opened, but a host of other political issues have been closed off.
Senator Joyal: As you know, the definition of terrorism or the model of terrorism — for "a political, religious or ideological purpose'' — is in court at this point in time. The first decision, as you know, is that it should be removed from the definition of terrorism for the very specific reasons that you have mentioned. I mean "terrorist activity'' the way it is defined in the Criminal Code, not "terrorist conduct.''
As I said, it deserves a balancing of what we want to target in the end. I am not against the term "terrorist conduct,'' even though there is a problem with the French version that we might want to solve at some point in time. "Activité terroriste'' in French is "terrorist activity.'' In the English version, it is defined as "terrorist conduct.'' An adjustment must be made at some point in time. That is one of the fundamental issues of the policy.
Mr. Morgan: I have undertaken to provide a brief opinion to the committee as to the meaning of "terrorist conduct,'' but only the English meaning, despite receiving an A in high school French in 1972.
Senator Joyal: It is a side drafting issue. However, it has an important impact on the substance of the definition of the crime.
On the first aspect of your presentation, when you say, quite properly, that the judge will recognize only what is the usual practical of states. If we, as a country, are to be the first to legislate on that basis, what is the next step we should take at the international level to ensure that this initiative will, at some point in time, reach the level of consensus among governments and states so that it will be seen in the court as being compelling, internationally?
Mr. Morgan: That is a good question. It will be the second such piece of legislation, not the first, because the Americans have not the identical piece of legislation but one that is similar in principle.
I would be proud for Canada to be out there among the leaders in this movement. The best action for us to take would be to lobby, to have discussion, to raise it or pursue some advocacy about it, in particular with other common law countries because it is a very legal initiative. English common law countries, England and Australia in particular, have the right type of legal system for these types of lawsuits. This might be partly my ignorance, but I do not know enough about the civil law jurisdictions to know whether this is specifically appropriate to them.
There have been one or two cases of attempts to enforce American judgments against sovereign states; one was in France. A French court did say in first instance that it will enforce a judgment against a sovereign state that had its immunity lifted under the parallel U.S. legislation. That was then overturned on a full hearing. They froze the assets of the foreign state on a first instance motion and then, when it went to a full hearing, it was overturned because they had not legislated any similar type of immunity. Therefore, it remains to be seen whether the civil law countries will follow suit.
The common law countries are so similar to what the Americans and now Canada will be doing, and they face very similar policy issues with respect to terrorism and its prosecution in the courts, that it should be our first stop; England, Australia and New Zealand, the countries that share the English common law legal tradition, would be the first ones to raise this with and hopefully they will follow suit.
The Chair: Thank you. It was a very interesting session, Professor Morgan. We are very grateful. If you could write us a letter, that would be extremely helpful.
Colleagues, our next meeting will be in this room next Wednesday at 4 o'clock or when the Senate rises. At that time, we shall continue our consideration of this bill.
The committee adjourned.