Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence for June 18, 2008
OTTAWA, Wednesday, June 18, 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 4:05 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study of Bill C-225.
We have the pleasure this afternoon of welcoming, as our first witness, Mr. Victor D. Comras, who is Special Counsel to the Eren Law Firm. Mr. Comras has enormous experience diplomatically representing the United States government in a long list of important positions, with particular experience at the United Nations, and at one point he was Director of Canadian Affairs at the U.S. Department of State.
Mr. Comras, you bring to this meeting a unique perspective and degree of skill and expertise on the subject we are considering.
Welcome to Canada and welcome to the Senate of Canada. The floor is yours.
Victor D. Comras, Special Counsel, Eren Law Firm, as an individual: Thank you for this opportunity to present my views on this very important counter-terrorism legislation that you now have under consideration. I will be brief and ask that you accept for the record a fuller written statement that I have prepared for this occasion, of which I hope you have already received copies.
For the past seven years, since leaving the U.S. Department of State, I have worked, written and worried about terrorism and the financing of terrorism. This includes serving for two years under appointment by UN Secretary- General Kofi Annan as one of five international monitors charged with overseeing and reporting on what countries were actually doing to implement the UN measures against al Qaeda, the Taliban and related terrorists.
My principal role was to report on the measures being taken to freeze their assets to stop them from acquiring funds and other economic resources that they needed to operate. This assignment was a real eye-opener and left me convinced that we are falling short in this task.
I have written and spoken about that since, and I very much appreciate you allowing me to have this opportunity to do so here. Despite our efforts to date, we have not been successful in halting the flow of funds to terrorist organizations, and we have not been successful in holding accountable those who knowingly provide material support and funding for terrorism.
It is true that many rules are in place almost everywhere to block transactions and to freeze al Qaeda and Taliban assets. Numerous individuals and entities, including charities and non-profits, have actually been identified and designated by the United Nations Security Council Committee known as the Al-Qaida and Taliban Sanctions Committee — which I worked under — as supporting terrorism. However, in actual fact, few steps have been taken to put these entities out of business or to hold them or their directors, managers and leaders accountable. Regrettably, many continue today to run their businesses, lead their charities and carry out their financial transactions.
Let me refer, for example, to the Al-Haramain Islamic Foundation, the Global Relief Foundation, Rabita Trust, Lashkar-e-Taiba, and to people such as Youssef Nada, Yasin Al Qadi, Wael Hamza Julaidan and Aqeel Abdulaziz Aqil. All of these people have been designated and all of them continue to operate. Many other names could be added to this list. Take, for example, the International Islamic Relief Organization, IIRO, which was used by some of its prominent members to channel funds to al Qaeda
We noted several years ago in our monitoring group report to the UN Security Council that the IIRO and its leadership were directly implicated in funding al-Jihad, a designated entity tied closely to al Qaeda. That group was responsible for bombing our embassies in Dar es Salaam, in Tanzania, and Nairobi. The IIRO has not yet been designated and is still in business with insufficient oversight but plenty of funding. In fact, they are still funding those same madrasas that are sending young boys under the age of 14 to be suicide bombers in Afghanistan.
The situation is even worse when it comes to the financing of other non-al Qaeda terrorist groups such as Hamas, Hezbollah, the Tamil Tigers, Babbar Khalsa, Euskadi Ta Askatasuna or the Revolutionary Armed Forces of Colombia, FARC. Even today, still no UN designation list exists that refers to these terrorist groups. In fact, several UN member countries still refuse to acknowledge that these groups employ terrorist tactics.
Most troubling also is the fact that several countries continue to support, supply and fund these terrorist groups under the guise of social welfare, religious education or national liberation.
The U.S. Department of State has specifically designated a small handful — five countries — as state sponsors of terrorism, with Iran at the top of the list. However, the list of states that condone or channel funds to favoured overseas groups that use terrorist tactics is much larger. Consider, for example, Yemen's or Saudi Arabia's open support and funding of Hamas, including the provision of financial funds to the families of suicide bombers; or think also of Pakistan's aid to terrorist groups fighting in India and Kashmir, or President Hugo Chavez's support for the FARC.
Canada and the United States are among a handful of countries that are actively seeking to crack down on these activities and to hold accountable those involved in providing material support to terrorists. Even here, our record is spotty, and new initiatives and measures are clearly indicated.
Let me cite a few examples from the U.S. experience. Since 9/11, the U.S. government has opened more than 108 material support prosecutions. We obtained jury convictions in only nine cases. We look pleas on lesser charges in another 42 cases. We had to drop 46 cases for lack of sufficient evidence because much of the evidence involved in these cases was highly classified and unusable in court. Eight defendants were acquitted and four cases were dismissed. Among the setbacks were such major cases as the Al-Arian case in Tampa, Florida, the Holy Land Foundation case in Dallas, Texas, and the Oregon Al-Haramain case, all of which involve funding for Hamas.
I would venture to say that similar and also disturbing statistics probably hold true for other countries. Canada, the United Kingdom and continental Europe are having the same problems in bringing these cases through.
The message to the terrorists and to their funders is clear: The road is open and the risks are few.
I do not cite these statistics as criticism but, rather, as an indication of the sheer difficulty prosecutors have in establishing beyond a reasonable doubt the knowledge and subjective intent of those shielding their terrorism financing activities under the guise of charitable giving. Added to this extreme difficulty is the fact that much of the evidence demonstrating guilt is highly classified and unusable in court.
This represents a major drawback for prosecutors who must connect the dots, showing the complex route that such transactions follow and, at the same time, demonstrating the subjective knowledge and intent of those who initiated or facilitated these transactions. Linking fungible funding to specific acts of terrorist violence is an overwhelmingly difficult task.
Experience has shown now that civil tort or tort-like litigation, even when the criminal justice system is unable, can still provide effective accountability and redress. The burden of proof in such cases is no longer "beyond a reasonable doubt,'' but rather a more achievable "preponderance of the evidence.'' Also, the rules of discovery in civil litigation cases are considerably broader and more liberal, and the hearsay rules more relaxed.
The judgments obtained in such cases can be so substantial as to bankrupt and put out of business — certainly deter — those who should be accountable. This factor alone might well convince many of those engaged in such activities to cease this type of conduct.
As one of my colleagues from the United States Department of Justice recently pointed out to me, civil litigation in such cases serves several important functions. It underscores the fact that terrorism is a violation of human civil rights. These civil litigation proceedings have a way, even beyond criminal cases, of ending up in the case books, along with their findings and with a record for all to see. The attorneys working these cases devote a great amount of hours and resources to ferreting out facts and useable evidence, while the judges in these cases have the duty of propounding clearly the bases for their rulings, establishing a factual record. Such a record can even be established when the foreign defendants do not show up. In fact, as he pointed out, these proceedings, in effect, serve as our truth commissions.
I am not suggesting that civil litigation is a substitute for criminal prosecution. Nothing can or should detract from the state's primary responsibility to protect its citizenry from terrorist acts and to prosecute and punish those responsible. I am only suggesting civil litigation is an important complementary action that can supplement these efforts and provide an important, additional course for assuring that those responsible for terrorism are held accountable.
Civil litigation can also be an important avenue in cases where the criminal prosecution cannot take place or is not practical, such as when the culprits are overseas or are foreign governments or state actors.
That brings us to the question of sovereign immunity. I believe it is now clear in international law, given the genocide cases we have seen and the legal actions that have been taken against the likes of Slobodan Milosevic, Radovan Karadzic, Augusto Pinochet and Manuel Noriega. They put to rest the sacrosanct, old idea of sovereign immunity. These crimes of genocide, torture, drugs and sex trafficking have reached that special level of illegality under international law that deprive them of the defence of sovereign immunity. Why should terrorism be treated any more lightly?
The legislation you are considering today will be, I believe, a major step toward holding those who fund terrorism accountable, including state sponsors of terrorism, and that is as it should be. The legislation is laudable also because it recognizes, as it should, the legitimate rights of the victims of terrorism to seek redress, compensation and justice. If you pass this legislation, you will be adding considerably to our common arsenal for combating international terrorism.
Senator Andreychuk: Thank you, Mr. Comras, for being here this afternoon. You have a wealth of knowledge and experience.
You were on an advisory committee for the United Nations tracking al Qaeda. I understand that the UN Security Council has the obligation of listing and monitoring terrorist activity.
How did you link up with them and why was there a special al Qaeda committee?
Mr. Comras: Resolution 1267 set up the Al-Qaida and Taliban Sanctions Committee, then known as the 1267 Committee. Resolution 1267, followed by Resolution 1390, also created an independent monitoring group. That monitoring group was to report to the Al-Qaida and Taliban Sanctions Committee as well as directly to the UN Security Council on its findings and recommendations concerning how the measures taken under the UN Security Council resolutions were actually being implemented by states.
That mandate lasted from early in 2002 until January 24, 2004. That is the monitoring group on which I sat. Our mandate came to an end in January 2004, and thereafter the Al-Qaida and Taliban Sanctions Committee itself took over our function with a monitoring team to advise it accordingly. The reporting function was removed from the monitoring group, of which I was a member, and given to the committee itself.
Senator Andreychuk: How did you work with the overall UN Security Council when you were particularly dealing with al Qaeda? The international response created a special position and attitude toward al Qaeda and all other terrorist groups. However, for the security of an individual, some of the others are equally important and equally difficult.
What distinction are you making in the UN between all the other terrorist organizations and al Qaeda?
Mr. Comras: I will try to explain that. Initially, two major UN Security Council resolutions dealt with terrorism. One was al Qaeda-specific. An international consensus deemed al Qaeda and the Taliban to be terrorist organizations, and a decision was taken to implement specific measures, including freezing their assets, denying them economic resources, stopping them from travelling or crossing international boundaries, and an arms and explosives embargo. That was directed specifically at al Qaeda and the Taliban and, under the resolution, all of those listed as associated therewith. They had to be on the consolidated list that was maintained by this committee and under UN Security Council purview.
The second resolution was Resolution 1373 which, in a more general way, outlawed terrorism. It said that states should take measures against any individual or entity that is involved in terrorist acts or provides material support for terrorism and that all states should act to criminalize such actions, freeze assets and take all the same actions that were called for under Resolution 1267.
The distinction was that there was no consolidated list; no specific target. Resolution 1373 seemed to fail due to its lack of definition of "terrorism.'' Every country was left free to decide for itself who were the terrorists and who were not. There could not be any oversight. If a country did not view a group as a terrorist group, for whatever reason, even though that group employed terrorist acts, there was no way of holding them accountable under UN Resolution 1373.
The resolution that dealt with al Qaeda served as a template, as an example of what should be expected of all states under Resolution 1373. That is where we see the lacuna; the failure of states to carry out the same types of obligations under Resolution 1373 that are so specifically detailed in Resolution 1267.
Senator Andreychuk: Can I draw the conclusion, then, that the more specific you are with definitions, the more successful you will be in tracking? In other words, if we have a definition of "terrorism'' or "terrorist activity'' and a proper listing, we will have better capability under either a criminal system or a civil system, since the trigger point is the identification of the target?
Mr. Comras: Identification is a critical factor in enforcement, but we cannot overdo it with respect to the prohibition itself.
One problem that we, as a monitoring group, had with the resolution — and we made recommendations in regard to this — was that the object should not be simply to apply these standards to those who are on the list. The object should be to apply these standards to those who carry out the terrorist acts, whether or not they are on the list. However, let us get them on the list to make enforcement easier. Do not think that you have a free ride because the individual is not on the list and, therefore, you can treat him as a non-terrorist when he employs terrorist tactics. Under Resolution 1373, when he employs terrorist tactics, he is a terrorist and should be considered as such. This is what we, as a monitoring group, told the UN Security Council.
Senator Andreychuk: Part of the difficulty in the discourse in international relations is that when you point out a government, or even a group, that is funding a known listed terrorist group, the rebuttal is always that they were not funding them; they were providing funds for innocent people, for development, for education, for humanitarian purposes or for food crises.
Has it been your experience that that has been the rebuttal?
Mr. Comras: You are precisely right. The guise of giving funds for social, educational, religious, humanitarian and cultural purposes has served as the traditional cover for terrorist funding and is used quite often today.
The great problem that we face is that we have very little in the way of transparency, oversight and accountability when those laudable purposes are abused to fund terrorism.
If we can construct a system that provides transparency and accountability to assure what is happening, then we will have a system that might work. That is why it is so important to be able to say at the end of the day that they abused that system. They abused the good-purpose of giving. They cheated the giver, the person who thinks he or she is doing something good by giving them funds, not knowing those funds will end up in the hands of terrorists.
When we give the giver the ability to hold the leaders of those organizations accountable, we take a step in the right direction. I strongly support the idea of civil litigation because that is one way of holding accountable those who abuse the system.
Senator Milne: Canada and the U.S. are partners and good friends in so many fields, but we, in Canada, do not have the same tradition of civil litigation that you have in the United States. We do not tend to be quite so litigious, although we are getting there.
Has the ability in the U.S. to sue state sponsors of terrorism caused any difficulties for you in terms of your relations with other states, and do you think it would for us?
Mr. Comras: The quick answer is to say that it has not. So many aspects are involved in foreign relations, but civil litigation in all the cases I can think of has perhaps had a more positive impact in the end on those relationships than otherwise.
For example, the litigation against Libya and the dialogue that ensued in the settlement of that case was one factor that, once Libya took the step of settling that case, allowed for an improvement in relations between Libya and the United States.
Our relations with Iran are sour whether or not litigation exists, so I cannot say that our litigation against Iran has complicated a very difficult relationship on so many other fronts.
We are all aware of the political nature of the relationship that the United States has with Cuba and of the specific relations and problems we have with North Korea. I do not think litigation with Syria has had the positive impact that it had with Libya.
Overall, the answer is, no; it has not been an impediment in any way to our relations with other countries. I think it helps clarify situations. Litigation is still underway with Saudi Arabia on whether Saudi Arabia should have sovereign immunity. The courts are currently trying to figure that out on appeal.
The relationships are mature and established in so many different ways that this will not be a factor. If it is, then it is an additional factor that I believe our government almost welcomes because it is administrative executive policy in the United States to put as much pressure as possible on the Saudis to do what they say they will do, to put in place a system that works.
Saudi Arabia does not have a system that works. They said that they created a financial intelligence unit, but they never staffed it. They told us many times along the way that they had done various things with their oversight of the Muslim World League and its affiliate the International Islamic Relief Organization, but they never did them. Saudi Arabia helped designate various individuals, but they never took any action against these individuals, who are still free to do what they want. We need to hold their feet to the fire, and that is now U.S. administration policy.
Senator Milne: How can you do that when they provide the oil that you need?
Mr. Comras: Many different factors come into play in relationships. Relationships in today's global economy are very broad. Saudi Arabia has interests, just as we do. They do not want to see the world economy collapse, regardless of what we do with respect to litigation. They do not want Iran to develop a nuclear weapon, regardless of what we do with litigation. Litigation is a way of putting their feet to the fire on issues for which they need to be held accountable.
Senator Milne: In Canada we already have quite a few laws on the books. We have the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Charities Registration (Security Information) Act and the Criminal Code, along with requirements for banks and other financial organizations to report to various organizations in Canada, which comply with various UN requirements about terrorism and terrorist financing.
Do you think that is sufficient?
Mr. Comras: I would have to say, regrettably, no. Canada and the United States are at the forefront of countries that have put in place broad and effective regulatory measures. Where we fail commonly is in our ability to devote the resources necessary to observe, monitor and enforce these regulations. We both often lack — and we recognize this in the United States — the ability to follow these complex financial transactions. The two factors that I consider the most important are missing: transparency and accountability.
We have always known about the problem of transparency. The only handle we have on transparency, apparently — which has its own sensitivities — is intelligence. However, that does not get us as far as we would like it to when it comes to the other part of that, which is accountability.
Senator Milne: It is secret. It is classified.
Mr. Comras: That is right. Canada and the United States have effectively used the system that we have in place to find the terrorist cells. We have been much better at finding the terrorist cells and putting them out of business than we have at finding, prosecuting or putting out of business those who are funding them. That is where we are really weak.
Senator Milne: If a country cannot do it, if a government cannot do it, how can we, under a bill such as this, expect individuals to be able to do it?
Mr. Comras: Two factors come into play on the civil litigation side. One is that we get away from "beyond a reasonable doubt,'' which is a very difficult burden in a criminal proceeding, as it should be. We need to reduce it to "preponderance of evidence,'' which basically creates a duel between two sides. On the one side, the plaintiffs present evidence, and then there is evidence on the other side. A record must be established on the other side.
It is the balance between these two that becomes the deciding factor. If you have more than they, that may well lead to a decision on your side, if all the other elements are in place.
The rules of the game in civil litigation are different, and that difference is particularly important, I believe, when dealing with the financers of terrorism. When we are dealing with those who carry out terrorist acts, the balance may be a little different, and the ability to prosecute greater. However, when we are dealing with those who finance terrorism, civil litigation can offer the key.
As to the resources that we develop, the experience in the United States, where we have had a lot of litigation against those who fund terrorism, is that in non-frivolous cases we would get committed groups involved who call upon broad spectrums of experts — even beyond what often is available for the governments — from think tanks in the United States and overseas to academic institutions. We bring together some of the best expertise, and some of the most valuable insights we have today on terrorism — particularly on financing of terrorism — come from the briefs that have been filed in these cases; some of which are phenomenal and the information incredible.
If I can, let me read something to you. I did include it in my written statement, but I was really taken by this statement because it comes from Jeffrey Breinholt, who heads the U.S. Department of Justice's office that deals with terrorism cases. I took it down because I thought it was so important. This was when he was on leave from the department for a short while. We were together on a panel, and the following is what he said:
. . . for a time after 9/11, I looked askance at the efforts by the American plaintiffs bar in bringing their own cases against people we were investigating, because I thought that they would get in the way of our prosecution and what we were doing in enforcing the material support statutes. . . . I am now convinced that I was wrong. I now believe these cases reflect American law at its best, and that we should do everything we can to encourage them.
. . . The conclusion emerges when these lawyers work on behalf of victims of atrocities, the findings go into the case books. Remember, American judges have to find factual support for the allegations, even if the foreign defendants never show up, which means there will always be facts developed and publicized. This means that the U.S. right now is simultaneously taking it upon itself — through its private lawyers — to run not one but several Truth Commissions . . . .
I can even envision of criminal-civil pincer movement, where we carve up the case, and a protocol to share government-developed information with private lawyers who demonstrate a particular capacity. We might be able to strike a major blow at people overseas who deserve it — to prosecute them criminally and, win or lose, to bankrupt them through civil litigation where the standards of proof are not so exacting.
These are the points that he made, and with which I agree.
Civil litigation strengthens our suit considerably, and that is why I am here and why I support this legislation.
Senator Di Nino: Mr. Comras, in extending a warm welcome, I have to admit you do not make me feel any better about this issue. Your comments generally paint a pretty bleak picture. Having said that, we have undertaken this obviously because we totally agree with the objective that I am sure you share with us in trying to deal with this issue.
Does the UN play a role in working with individuals or organizations through civil procedures as opposed to the other ways that states will do things? Is there a role for the UN in that?
Mr. Comras: The role of the UN is crucial. We need the UN to play a role in several specific areas. First, it creates the uniform international obligation. It places it on all states. There should not be a difference between what one state does and another state does. Terrorists are terrorists, and states have been obligated under UN resolution to take specific actions against terrorism.
Second, they are well-placed to help those countries that lack the resources to develop the programs that are needed. Under Resolution 1373, one of the parts that has grown over time is the group known as the Counter-Terrorism Committee Executive Directorate, CTED.
That linked with an international objective of the G8 called the Counter-Terrorism Action Group, CTAG, which decided on a strategy to put together a study of what countries actually need to do to improve their systems and match resources to those shortcomings. One of the two elements in this was to identify the shortcomings and to try to define if those shortcomings stemmed from a lack of resources and ability, technical capability or a lack of political will.
The answers to those two questions are very different. The UN is well-placed to help provide technical support and channel that technical support to those countries.
Political will has been a little more difficult to work on, but that is still something to which the UN committee and the G8 have committed, and to which we must all be committed.
Senator Di Nino: I think you have partially answered this. To be able to have that preponderance, it is very likely that incredibly large resource pools will be needed. The U.S. is probably the best example of a civil litigator in these areas. Where did the resources come from to achieve that? Does some other body provide resources to states and organizations that wish to pursue civil litigation against an organization that they feel is involved in terrorism?
Mr. Comras: Since 9/11, a new body of expertise has developed in the United States and beyond — in Europe and internationally — of people who have been taken by this issue of international terrorism and have begun to devote, for one reason or another, their minds and work in this area. I am talking about think tanks, academic institutions, law firms, private individuals and government leaders. This community is extremely large.
Even in the intelligence community in the United States, there is this recognition and reform of our intelligence apparatus. Then we begin to tap into this enormous resource base that is not classified, that is open and is, in large part, voluntary and academic.
The funds that have become necessary to support this have been there. The cost of litigation in some of these cases has been quite high. Ironically, it has been there. It has been available by donations, often on the Internet. It has been available by people devoting their time and effort on a pro bono basis. It has been there by experts willing to volunteer their time, effort and research to this end. It is a public effort, and that is what makes it so special.
Senator Di Nino: I am not sure that I would be comfortable in undertaking one of these cases in the hope that I would get lots of Internet donations.
Mr. Comras: If you have a good case, you will.
Senator Di Nino: Maybe you are right; I hope you are.
It has been suggested that the mere existence of this legislation is due to the preventative value of it. Have you seen that? Do you have any evidence or opinion on whether the preventative value actually works?
Mr. Comras: Based upon my experience and involvement in some of these cases, I see what they have done in the United States to create the need for so many charities to voluntarily open up and create transparency in order to seek from the Office of Foreign Assets Control of the U.S. Department of the Treasury a sort of cache to say, "We are a good and clean group, and we want to show that.''
It has established a new willingness by a large group of non-governmental organizations in the United States, particularly Islamic charities, to demonstrate, by showing transparency and by showing that they will abide by all these rules, that they deserve this special cache. That is a result of this litigation.
Senator Di Nino: You spoke about the difficulty with political will. Is there a way to deal with that? Are there ways in which other entities, be it the UN or others, are working that are more successful?
Mr. Comras: Having been a member of the original monitoring group, one thing that stayed with me, although this may be extreme, is the ability to name and shame in order to bring out transparency and demonstrate to the public and the international community at large when people are doing things poorly. That is a strong way of improving political will and getting accountability.
I personally thought the UN Security Council made a great mistake by ending our mandate because it allowed us to name and shame, something that the UN is not comfortable doing. We were replaced with a group that was unable to do that.
Creating international transparency on the one hand and accountability on the other is the main way we can create political will.
Senator Oliver: We are here to study Senator Tkachuk's Bill S-225. Have you read the bill? If so, I would like to hear your comments on its viability. Can it work?
Mr. Comras: Yes, I have read the bill. I have worked with Canada and somewhat understand the complexities of Canadian laws and institutions, although I understand better how the laws and institutions work in my own country.
In my view, the elements in this bill are profoundly important in strengthening Canada's role and ability in combating the financing and material support of terrorism.
Senator Oliver: I was shocked when you gave the figures of your lack of success in the United States. You conducted 108 material support prosecutions and only achieved nine jury convictions.
Mr. Comras: We had 42 pleas.
Senator Oliver: Forty-six cases were dropped for lack of sufficient evidence. That is rather shocking. They must have known something about the evidence they had. Is there a defect there that we should know about in these prosecutions?
Mr. Comras: Yes, and, no. There is not a defect in the decision of the prosecutors to prosecute.
Senator Oliver: They should have known in advance that much of the evidence they wanted to use was classified and that they would not get it, so why would they proceed?
Mr. Comras: They still believed that they had enough evidence to demonstrate beyond a reasonable doubt that these people had the intent and carried out these actions.
Of course, great legal minds are on the other side as well. All the other side needed to do was create a modicum of reasonable doubt. The prosecutors attempted to use some of the intelligence information but failed, not only because of its sensitive nature but also on the grounds of hearsay.
Many lessons can be drawn, particularly from the Al-Arian case, the Holy Land Foundation case and the Al- Haramain case. Many lessons are being taken home, and we will get better.
In the United States, we are now moving toward creating new units charged with using intelligence to develop usable evidence in order to close that gap. We need greater cooperation between the new materials that are coming from the think tanks and greater synergy between the civil and the criminal side.
It is a difficult route on the criminal side. It is difficult for us, for you, for the Europeans and for the British, but it ought not be a reason not to try.
Senator Oliver: In Senator Tkachuk's bill, he uses the words "right of action against perpetrators and sponsors of terrorism.'' You said today that you would like to get at, through civil litigation, those who finance terrorism. What is your civil cause of action in the United States against those who fund terrorism?
Mr. Comras: There are several, but the most important is aiding and abetting. Those involved in providing the funds have aided and abetted in the terrorist act.
Senator Oliver: That is your civil cause of action?
Mr. Comras: Yes.
Senator Oliver: What are some of the others?
Mr. Comras: We now have specific legislation that will make it easier, even on the prosecution side, for prospective cases. We have new legislation that makes it a crime to —
Senator Oliver: I am not interested in crimes; I am interested in civil litigation.
Mr. Comras: I am sorry, I am not fully following your thought.
Senator Oliver: In a criminal case, the burden is "beyond a reasonable doubt,'' as you have talked about. In a civil case, the burden is "on a preponderance of credible evidence.''
Mr. Comras: That is right.
Senator Oliver: What is your cause of action in the United States for a civil claim against, not a perpetrator, but one who funds terrorism?
Mr. Comras: I do understand.
On aiding and abetting, there is now specific legislation that makes it a crime to provide funding to designated organizations. The fact that you give money to a designated organization is a crime, and that crime, under the Anti- Terrorism Act of the United States, provides the basis for a civil lawsuit with triple damages against those who have violated that crime. The fact that one has violated that crime provides a cause of action under statute against those who violate that crime, with the potential of paying triple damages.
Senator Oliver: I do not know what "violating a crime'' means. I understand convictions.
Mr. Comras: Excuse me. One who is convicted.
Senator Oliver: Therefore, do you need a criminal conviction before you can start a civil suit?
Mr. Comras: No, if you are convicted, that bars you from defending. If you allege that they have violated the statute, you have a civil action. If you can show that they were convicted of that, they have no defence.
The Chair: May I intervene with a supplementary question?
Does the person who brings the suit have to have suffered damages?
Mr. Comras: Yes.
The Chair: Thank you.
Mr. Comras: It is a traditional tort-like sort of thing. One has to show damages. As in the Boim case, the plaintiff must show that the defendant contributed to a terrorist group, that the defendant knew what he or she was doing and shared some of the terrorist group's objectives, and as a result the plaintiff suffered injury or damage. Those factors must all be there, yes.
Senator Oliver: I am extremely interested in enforcement. Let us say that someone in the United States does get a judgment somehow, through aiding or abetting. Let us say they have a judgment for $1 million, and that person is in the Middle East. How can that judgment be enforced, and how will you get your $1 million in the United States?
Mr. Comras: There are many ways, through mutual legal assistance and comity, that you can apply for it. If there are not assets in the United States, it may be difficult to collect on the judgment initially. However, if that were the rationale for lawsuits where they would not be able to collect, then we would have a lot less litigation in the United States. There are many judgments that never get collected but have potential. Even a potential judgment is a deterring factor. Sometimes it establishes the record, which is just as important. The redress that you are giving the victim is not just the compensation, it is the recognition of the right that they were wronged and that you, as a judicial body, have found that they were wronged and that they deserve that compensation. Collection is an important but a separate issue, I think.
Senator Tkachuk: In Bill S-225, we are open-ended about the states that may receive a civil action, whereas in the United States they have a list that they produce. The U.S. Department of State produces a list of states that can be sued, of which Iran is at the top. I think there are five states now, but I am not sure of the exact number on the U.S. list.
Some people here have talked about the bill being amended to include a list, which I reject totally. I would like to hear your views on that. I would like to have a discussion about them here, at the table, if we could.
Mr. Comras: I may be wrong, but I view that what we did was a mistake. It was a putting-our-toe-in-the-water sort of thing with sovereign immunity. We were probably the first to go as far as we did with respect to sovereign immunity. We put our little toe in the water to see what would happen. We said that we would try to limit it to those states that were specifically designated as state sponsors of terrorism by the U.S. Department of State.
What did we end up with? Initially, six countries: Iran, Iraq, Sudan, Syria, North Korea and Cuba. It was as much a political statement as anything else.
It became extremely difficult for the administration to start thinking about how it would designate additional countries. That did not mean that these countries should get a free ride and that they should be protected. It meant that we were initially too cautious. We put our toe in the water and ended up with a system that was dissatisfying for everyone, including the executive. For many reasons, we would prefer to stay out of this type of civil litigation. They are not against civil litigation. I think the United States government does not have any problem with Saudi Arabia being sued; it has a problem with having to choose sides in that case. It would prefer to leave it to the judiciary. If we had to do it over again, I have no doubt we would have done it without a list.
The list has put us in a box. It has put our legal system and our courts in a box, and they recognize that.
That is why, today, there is an interesting appeal that is before the Seventh Circuit Court of Appeals. They are looking at the issue of Saudi Arabia in the 9/11 suit and whether or not they should be included and put under the exemption to sovereign immunity, based upon the fact that they are working with and, therefore, associates of charities, non-governmental organizations, commercial enterprises, banks and everything else with which they were so closely associated. It falls into the commercial-type exception. It could well be that the Seventh Circuit Court of Appeals wants to open that up enough so that we get out of the box that we are in, which is limited to five countries. This is a totally inadequate, unsatisfactory arrangement for the United States.
Senator Tkachuk: To be clear, because of the list, there is a case proceeding to increase the number of states; for example, Saudi Arabia.
Mr. Comras: To find a way around it.
Senator Tkachuk: To find a way around it, because the principle of the law would be that sovereign immunity is put aside for when they can be sued.
This restriction is a problem to the bill itself; is that correct?
Mr. Comras: In a sense, yes. Five countries were put on the list. In doing that, the intention was not to say that 168 were kept off. Now, the court has said that if a country is not one of the five on the list at the district court level, then that may mean it cannot be sued, that it still has the sovereign immunity. Countries are now trying to find a way to make that finding and argument that if they are not one of the five on the list, they therefore have sovereign immunity work in their favour. However, those countries may not have sovereign immunity now because we must find some other excuse. We did not mean to give everyone an excuse and defence for supporting terrorism. We did not mean to do that.
That was the result. Please learn from our lesson. We started it by putting our toe in the water; do not make the same mistake.
Senator Campbell: I support this bill. I want to return to the subject of civil litigation. At one time, I had some considerable experience in conspiracy cases. I am wondering if this is not the way to look at this.
I agree with Senator Tkachuk. I do not like this idea of naming a country before you actually can put the case together. I would like your opinion on this. It would seem there is a logical progression: First, you must determine that there is terrorism or that they are terrorists; second, you must determine that there is support from an entity; and, third, you must figure out the level of that support. Would that be fair?
Mr. Comras: That is fair. Again, what I like about the legislation here is that you are, if you will, taking the government — a political body — out of that equation and leaving it to the parties to demonstrate that in a judicial process. That, I believe, is a healthier method, rather than politicizing the issue. That is where we run into the political- will problem. You are then testing political will and putting countries in a situation where there are many other issues involved that are extraneous to the determination of what you just said.
Senator Campbell: Once they are in the box, it is virtually impossible to get out of that box.
Mr. Comras: I believe so.
Senator Campbell: I am concerned about the ability of a Canadian citizen to seek damages against a foreign power for a terrorist act that takes place outside of Canada. Two people coming here today are Canadian citizens who have suffered damages, one in New York and one in Jerusalem.
Mr. Comras: International law has evolved considerably over the last several hundred years. This idea of jurisdiction flowing from having a national injured overseas is a fairly well-recognized principle in international law. If a Canadian or an American is harmed overseas, there is still jurisdiction to deal with that case in the United States, and I believe in Canada as well.
The problem is the idea of immunity, namely, that that is true for the non-state actor, but should that be different for the state actor? That is the sovereign immunity issue, which also has evolved. In the old traditional view, the answer was an absolute, no. The new view in this modern world is that if they are involved in torture or certain other activities, states deprive themselves of sovereign immunity, and that is as it should be.
We are now all recognizing that there must be a forum for justice. If there is no other forum for justice, we need to create one. In creating a forum for justice, the first place to start is in the state itself. If a state wrongs an individual, that state should provide a forum for determining how that person should be redressed. If the state does not do it, they should be open to arbitration. Those things are in the bill. Only if there is no other way to do it should it be done here. That is the way it should be.
The Chair: You gave us interesting, although sobering, statistics on outcomes in criminal prosecution in the United States. In your written brief, you said that there were 200 civil cases. Do you have any indication of proportions of outcomes?
Mr. Comras: One complication in dealing with civil cases is that many of them, for one reason for another, continue through stages of appeal, and in some instances the same case goes back and forth a couple of times.
I will undertake, if I may, perhaps in writing, to provide you with those statistics. I may have some at home that may be useful. I am sorry that I did not include or bring them.
The Chair: Whatever you have would be helpful. It need not be the final, definitive word on every case.
There is an element of this bill that I continually go over in my mind. If this bill becomes law, in order for people to avail themselves of it, they will have to go after someone who has sponsored a listed entity. That is what we call "designated groups or persons.'' I understand that that is to provide clarity, to clear away possible grounds for dispute or confusion. Obviously, it would simplify establishing that case if the Canadian government had already demonstrated in solemn fashion that this is a terrorist person or entity.
My concern, which is confirmed by what you have said today, is that there are so many people and groups who are not listed or designated that do fund or engage in terrorist activity. I wonder if by confining this bill to listed entities, we are not getting into the same type of box that you were describing with the United States' list of countries.
Can you help me with that?
Mr. Comras: I must be honest and say that I do not fully know and understand how someone is designated in Canada.
The Chair: It is not easy, let me tell you. It is not a very long list.
Mr. Comras: In the United States there are many ways to be designated and many different designation lists.
The UN put together a consolidated list that is just related to al Qaeda and the Taliban. That is a minimum list that every country is required to respect.
The United States is quickly able to designate, where there are grounds to designate, reasonable cause. The Treasury Secretary can do it under one statute and the Secretary of State can do it under another. It is not a highly political and politicized act, particularly when talking about an entity or an individual rather than a state.
I do not know how it works in Canada, but I would hope that if a group is involved in a terrorist act, they will be designated. That is what designation is all about; namely, being able to say, "You have committed terrorism; you are a terrorist.'' There should be some way for the state, as it is done in the United States, to say, "This is a terrorist organization. This is a terrorist, a specially designated national that is acting for and on behalf of a terrorist.'' The state should be able to put these people on a list, publish their names and forewarn people in certain ways about them.
That is how it works in the United States. A group involved in terrorism should be designated. That is different from the designation that the UN has put in place. That is under a special set of circumstances and a special resolution.
The Chair: We call them "listed entities,'' and it is a list set up under the law.
Senator Tkachuk, you have the numbers.
Senator Tkachuk: There are 40 names on the Canadian list.
The Chair: It includes only 40 groups or people; it may be 41 now. We only very recently added the Tamil Tigers after years of pressure from police and security authorities. They have told committees in the Senate for years that they thought the Tamil Tigers should be listed, and it has only just now happened. That may give you some indication of the difficulty in getting groups on that list. It is not something that the Canadian government, for whatever reason, does quickly, which is why I am concerned about whether this bill will capture the people whom it is intended to capture, or whether all the people on the list could not set up a subsidiary some place, commit terrorist acts and then escape.
Mr. Comras: We have the principle of "for and on behalf,'' which is that those who act for and on behalf of a designated person ipso facto become a designated person.
The Chair: You have to prove that they are acting for and on behalf of a designated person.
We want to thank you very much for coming here today. This has been extremely enlightening. We wish you a safe journey home.
Mr. Comras: Thank you very much.
The Chair: We now have the privilege of welcoming, as individuals, Maureen Basnicki; Sherri Wise; and, representing the Air India 182 Victims Families Association, Bal Gupta.
Sherri Wise, as an individual: Good afternoon, honourable senators. Thank you for the opportunity to tell my story and for your consideration of Bill S-225, which I strongly endorse.
I live in Vancouver with my husband, Guy, and our one-year-old daughter, Eden. I have opened this statement with reference to my family not only to provide some personal context for this testimony but to highlight just how close this wonderful family of mine came to never existing at all.
I am a survivor of a triple suicide bombing that occurred on September 4, 1997, in Jerusalem. Appearing here today before this committee, I cannot help but think of all the others around me who perished that day and the families that they might have brought into being, had they had my good fortune to survive. I am here to tell their story, as well as mine.
That summer in 1997, I was thrilled to be travelling to Israel for the first time. I was going to volunteer as a dentist, providing free dentistry to underprivileged children, both Arabs and Jews. On my last day of volunteering at the dental clinic, I decided to have lunch at an outdoor cafe on Ben Yehuda Street. Ben Yehuda is a pedestrian-only walkway in central Jerusalem that is always teeming with hundreds of people — young and old, locals and tourists.
As I was enjoying my lunch with friends, I remember thinking what a glorious day it was. I was excited to be starting the vacation part of my trip. I thought about what a wonderful experience I was having, and I could not have been happier. As I was sitting having lunch, I saw an oddly large man dressed in women's clothing carrying two very large bags. It seemed a little strange to me, but I ignored it and continued speaking with my friends. Little did I know that he was about to set off the first of three separate explosions.
This suicide bomber was strapped with nail-studded bombs and detonated himself several steps from where I was sitting. At first, I had no idea what had just occurred. It seemed like it was all happening in slow motion. The first blast had thrown me from my seat. One minute I was sitting in a chair, and the next I was on the ground with bodies on top of me. I saw people screaming, but I could not hear anything. The explosions were so loud that I temporarily lost all my hearing. As I looked over my shoulder, I saw a second terrorist pull the detonator to the bomb attached to his chest, and I watched him explode. Many people were killed and dismembered, and I remember being struck in the head with a dismembered foot of the bomber.
My first instinct that day was of survival, and I kept saying to myself over and over that I did not want to die and that I would do whatever it took to stay conscious. I then realized I had lost my purse in all the commotion and that my passport was inside. I began to panic as I did not want anyone to find my purse and think I had died. If I was about to die, I wanted people to be able to identify me.
After searching through bodies, body parts and debris, I was able to find my purse. I grabbed it and waited for help to arrive. The blood-soaked street was utter chaos with people screaming, sirens blaring, people wailing, and limp bodies scattered everywhere. Over 20 people were murdered on that day and 196 were wounded, including me. I suffered second- and third-degree burns to 40 per cent of my body, and my hair was burnt off. I had over 100 nails lodged in my arms and legs and a bolt embedded in my foot, and I lost most of the hearing in my right ear. I was in the hospital in Israel for two weeks and then transferred back to Canada to my parents' home, where I remained for almost five months. I required over six months of continuous medical care before I could go back to Vancouver and live on my own.
After returning to Vancouver, I was able to resume my life and return to work. Time has healed some of the physical wounds, but there are things, many of them intangible, that the terrorists have taken from me that I will never be able to regain. I am not the same person I was that day. I still, to this day, suffer with tremendous survivor guilt and, in some form or another, post-traumatic stress disorder. To this day I still have many fears associated with loud noises, crowds and fireworks because of the loud, booming explosions.
However, I did not come here today to simply recount a personal tale of tragedy and survival. Rather, I believe my story is important to your deliberations because, in one form or another, it is the story of hundreds of other Canadian families that have lost loved ones to terrorism, and it could be the story of many others in this country who become victims of terrorism.
Passing Bill S-225 into law will hinder the efforts of those who fund, enable and support terrorist acts such as the one I survived. In my opinion, by exposing terror sponsors in civil suits and holding them responsible, this bill will not only help to protect our own children from becoming victims of terrorism but will also deter the sponsors of terror from turning the children in their own community into perpetrators of terrorism.
I hope my story has helped you understand why this bill is so important. Honourable senators and Madam Chair, please help pass Bill S-225 into law.
Bal Gupta, Air India 182 Victims Families Association: Madam Chair, honourable senators, I am the chair of the Air India 182 Victims Families Association and also one of the victims.
I do not speak as a legal expert or an intelligence expert or terrorism expert. I speak as a victim of terrorism with 330 other families in one incident.
Thank you very much for giving us an opportunity to testify. From the perspective of the victims impacted most directly by the terrorist bombing of Air India Flight 182 on June 23, 1985, Air India 182 Victims Families Association strongly supports Bill S-225.
The bill lifts state immunity for providing support to terrorist entities and provides a civil cause of action to those who were harmed, like me, by acts of terrorism occurring on or after January 1, 1985.
The Air India tragedy was as a result of a terrorist conspiracy conceived and executed on Canadian soil. A single, one-terrorist act killed 329 persons. Most of the victims were Canadians, from all provinces — Newfoundland, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia — except P.E.I. They came from almost all religions, Buddhist, Hindu, and Christians, everyone included.
Eighty-six victims were children travelling to meet their grandparents on holiday; 29 families, husband, wife and all children, were wiped out; and 32 persons were left alone — that is, lost their spouse and all children. Two children, around 10 years of age, lost both their parents in that tragedy.
This was the largest act of terrorism conceived and executed in Canada against Canadians, and it will continue to cause incalculable suffering and pain to thousands of friends and families for decades to come. In the Air India bombing, I lost my wife, Ramwati Gupta, to whom I was married for over 20 years. In a flash, in a tragic moment, I was left as a single parent with two young sons aged 12 and 18 at that time. Even today, our family cannot enjoy the best of the occasions, be it myself getting a fellowship or being elected a fellow of the Institute of Electronics and Electrical Engineers; or my son receiving, from the Deputy Minister of Justice, an award for humanitarian service for work with the underprivileged; or my elder son who, up to that time, was getting only Cs and Ds, getting third position in his school. He just finished grade 13 at that time. We cannot enjoy any moment. There is an underlying inner grief and pain even in the best of occasions. However, we were not alone.
On the same day, June 23, 1985, in a related act of terrorism involving a Canadian Pacific Air flight, a bomb explosion killed two luggage handlers in Narita airport in Japan. This bomb also originated in Canada. In later years, the murders of two important and prominent potential witnesses followed; they were supposed to be very key first- hand witnesses to the pending Air India trial: Mr. Tara Singh Hayer, in British Columbia; and Mr. Tarsem Purewal, in the U.K.
As we all know, the intelligence agencies could not prevent the Air India bombing. The eventual criminal trial in Canada, which took over 15 years to commence, failed to convict and punish any culprits. The alleged culprits, whoever was responsible or were responsible for this conspiracy, are still roaming free in Canada.
The Air India bombing, the largest act of terrorism in Canada, was not recognized as a Canadian tragedy for a long time. The Anti-terrorism Act was passed, and some terrorist entities — and the chair said that it was about 40 — were banned only after 9/11 took place in the United States. They were banned in 2003, 18 years after Canada experienced the Air India bombing.
As families of the victims of the terrorist bombing of Air India, we have suffered and continue to suffer incalculable pain and grief. We do not want such pain and grief to befall on any other Canadian in the future. The Air India victims were mostly Canadians of East Indian origin, but the victims of the next terrorist act, God forbid, could be anyone. Terrorism cares little about its victims' colour, creed, gender or age.
Today terrorism is an international phenomenon, and the terrorists in most cases may and do have worldwide connections. Well-known examples include the train bombing in Spain, the Bali bombing in Indonesia, the July 7, 2005 transit bombing in U.K., the 2004 school bombing in Russia, blasts in Delhi in 2005, the blast in Jordan in 2005 and many more. Courts all around the world have several prominent ongoing cases of suspected terrorists, but the criminal justice system, with its appropriately high burden of proof, has its limits in actually achieving justice when it comes to terrorism.
Of course, the intelligence agencies, criminal investigation agencies and the criminal justice system should continue to play their respective vital roles. However, the Canadian government must take all possible steps to deter terrorism, and civil suits can fill on important gap in our lives. Moreover, it is important that Bill S-225 focus on civil suits against the financial patrons of terror because this fits into one of the Air India commission's terms of reference, namely, whether Canada's existing legal framework provides adequate constraints on terrorism financing. In our opinion, Canada's present tools have not been effective in curtailing the flow of funds that are so essential to terrorist enterprise.
We believe that the passage of Bill S-225 will provide a new and vital avenue for defeating terrorist funding by harnessing the possibility of civil suits that will deprive terror sponsors and perpetrators of their funds and their anonymity.
It is imperative that the provisions of Bill S-225 be applicable to acts of terrorism on or after January 1, 1985. First, this will provide recourse to the Air India victims against the sponsors of terrorism. Moreover, by choosing 1985 as the starting point, the bill will more readily recognize that the Air India bombing was a Canadian tragedy, the largest and most heinous act of terrorism in Canadian history. It will send a strong message of warning to potential wrongdoers that the victims they create will not be powerless. It will also send a clear signal that terrorism is not acceptable in Canada and that Canada is ready to take any and all steps against terrorism.
Importantly, the bill represents a mechanism by which Canadian terror victims cannot only seek justice for themselves but can also do their part in protecting other Canadians.
Maureen Basnicki, as an individual: It is difficult following these stories. It makes me very emotional. Most of you know the story of 9/11. I will not go into it; I will recap. My husband, Ken, was on the one hundred and sixth floor of the North Tower of the World Trade Centre on the morning of September 11, 2001.
I watched that tower and my life, as I had known it, collapse on TV while sitting in a hotel room in Mainz, Germany. I was there on a layover in my capacity as a flight attendant for Air Canada. My husband was one of 24 Canadians who perished that day.
In most of my appearances before Parliament committees and the Air India Commission of Inquiry, I have testified on behalf of myself and other victims on issues related to counterterrorism and the rights of terror victims.
Today, I speak not only on behalf of the existing victims of terror but on behalf of those Canadians who are not yet victims of terror. I am here to speak about the basic and fundamental right of every Canadian, and in fact every human being — the right not to be a victim of a terrorist attack.
I fully concur with British Minister of State Ian Pearson who in the aftermath of the 2005 London bombings said, "there is no human right more sacred than the right to be alive. Without this human right all others are impossible.''
In my opinion, Bill S-225 speaks precisely to this right, and I believe that if this bill is effective, even once, in deterring a terrorist attack, it will have been worth the thousands of hours of effort that the Canadian terror victims and the Canadian Coalition Against Terror have invested in its passage over the last four years.
Senators, I believe that Bill S-225 is worthy of your support, not only because it is an effective deterrent, but also for how it seeks to achieve deterrence by utilizing the victims themselves to pursue terror sponsors in court.
This bill transforms every victim of terror into a potential liability for those who sponsor terror and, in doing so, takes aim at the core of terrorists' intent and method, which seeks to create as many powerless victims as possible as a weapon against society as a whole. By turning these victims of terror into victims over terror, Bill S-225 removes this weapon from the hands of terrorists and, in fact, turns it against them.
To conclude, senators, I believe that, as a society, we have had difficulty looking terror in the eye, even when terror is staring right back at us from close range. We must recognize that terrorism is not another form of organized criminality. Crime can exist without mass murder, and usually benefits from avoiding it. Terrorism cannot. It is different in its scope, intent, method and consequence and is often a function of state policies aimed at the citizens of other sovereign states.
Terrorism, therefore, cannot be treated as a social ill in any conventional sense. After all, it is the Canadian military that is fighting terrorism in Afghanistan, not the Canadian police force.
Clearly, new policies and legal structures are needed to protect the front-line soldiers — meaning you and me — in this new conflict. I have no illusions. This bill will not provide justice for every victim, nor is it the complete solution to the problem of terrorism, but I believe that Bill S-225 will make an invaluable contribution to that end.
As a Canadian terror victim representing other Canadians who have suffered similar tragedies, I ask that you support Bill S-225 as a very Canadian solution for a brutal threat that has yet to claim its last victim — a solution that does not infringe on anyone's basic rights and is soundly based on the rule of law.
The terrorists have deprived us of so much. All we are asking is that our government provide us with a basic legal tool to ensure that others do not share our fate.
The Chair: We thank you all very much. It is not easy to tell your stories for what must be the thousandth time, but it matters to us to have you come and bear witness, and we do thank you.
Senator Andreychuk: I certainly echo those sentiments. As the chair of the Anti-terrorism Committee, I have had the benefit of the testimony of Ms. Basnicki and Mr. Gupta before. I can assure you that it was helpful to remind us of the impact rather than the legalities that we sometimes get bogged down in. Your stories are as compelling today as they were last year and the year before. I thank you for your persistence.
Ms. Wise, I will speak to you because I have not had the opportunity previously. You have gone through this horrendous experience, and you have pointed out graphically how it has changed you.
If the bill is in place, or a bill similar to this, would you consider using it? Do you see it as a tool that would be helpful to you?
Ms. Wise: I definitely do. Whether or not anything was ever collected or any monetary rewards were ever given, my statement goes on record that I, as a Canadian citizen, was wronged. With that, and any compensation that went with it, it would eventually bankrupt the people who are funding the terrorism. I think it is the way to make the point that this was wrong and by law you are accountable.
Senator Andreychuk: Have you tried to pursue any claims in any other states?
Ms. Wise: Yes, I have. I was part of a lawsuit in the United States that was heard in the District of Columbia. I was listed on the lawsuit up until a week before it was supposed to go to trial. However, the trial judge there asked that my name be removed because I was a Canadian. I did go on to testify, and they were awarded an extremely large judgment in the area of $60 million. However, I was not on the lawsuit, so although I was part of the lawsuit up until then, the judgment was for nothing.
In Canada, I have contacted several lawyers through different organizations, but most lawyers say that it is not worth the time right now to pursue it because there is no law there to take it to a court of law. I have tried several times, but I think with the passing of this law, lawyers would be much more interested in taking on and doing the research for the case.
Senator Andreychuk: Obviously, you probably kept in touch with the others that were part of your lawsuit in the United States. How do they feel about the process? Have they collected on it, or is it an ongoing issue?
Ms. Wise: They have not collected anything as of yet, and, unfortunately, just due to other circumstances, I have not spoken with them since that lawsuit went to trial a few years ago.
Senator Andreychuk: Mr. Gupta and Ms. Basnicki, would you consider this type of law helpful in your case, or are you looking at it for others who would have more immediacy in proving their cases, should they ever be part of an attack?
Ms. Basnicki: Clearly, one of the most important things that I am searching for in the ability to launch civil suits against those financing terrorism is the deterrence factor. I always search to create a proper legacy for my late husband, and to know that I can do everything possible to prevent other Canadians from being in my situation would greatly help me.
I also seek a sense of justice. A day in court, albeit civil court, where we could follow the money trail and disrupt terrorist financing in any way, even just by exposing these financiers, would truly give me some sense of justice.
Then, of course, there is accountability. In my case, with the suicide bombers, obviously, I have no recourse there. In the United States, they have a system that we are all familiar with, the military system, with the so-called architects of 9/11. I do not see that, as a Canadian, as a way of seeking justice. I would like my day in Canadian court and to do everything possible to prevent future acts of terrorism from taking the lives of Canadians.
Mr. Gupta: You can call me cynical, if you like. However, sometimes I tell the victims' families, why, 23 years after the tragedy, we are still trying to do what we are trying to do, whether it is in the Air India commission or here. I tell them that on that tragic day in June of 1985, we lost things in the form of our loved ones, which were very precious to us.
Nothing that happens will make us winners. We shall remain losers. At the same time, we want to be losers with a bigger sense of jealousy that nobody else gets that title after us. We should be the last losers, and in that sense, this act will help in keeping our title as last losers intact. Hopefully, it will help.
The tragedy is that the intelligence system failed us. The justice system appears to have failed us as victims of the tragedy, but we can have this recourse against the organizations that have been named and people who supported those organizations. They have been identified by Justice Josephson very clearly. We can go after them, whether or not we collect anything. However, it will bring them out, and they will lose their anonymity. That will be a big deterrent. For the time being, people are still worshiping or glorifying the people who have been named by Justice Josephson in his final verdict as perpetrators of the crime.
For us, it is a living nightmare, and this act will help us in dealing with that, to some extent.
Senator Milne: I will not ask any questions because your stories stand by themselves. They are very difficult to respond to.
However, Ms. Basnicki, you did mention C-CAT. When C-CAT appeared before the committee just about a year ago, they proposed replacing the term "terrorist conduct'' in this bill, wherever it is found, with the term "terrorist sponsorship,'' as they were of the opinion that terrorist sponsorship more accurately represents the actual act of aiding and abetting terror, as the previous witness called it. How do you feel about that?
Ms. Basnicki: Personally, when you get into legalese and definitions, I understand the difficulty of that. I understand the UN has not even come up with an appropriate definition for terrorism. How you actually word this, I will leave it up to the lawyers to do that.
As a victim, I feel like saying, "Get on with it.'' Let us not spend so much time with the definition. While we are bickering about the definition, terrorists are planning another attack.
I would like to use the same amount of energy to disarm terrorists instead of spending so much time in semantics and definitions. The reality is that time is running out.
Senator Milne: Time is going on and these things are happening, as you say.
Since you are so eager to get on with the process, we should tell our witnesses quite frankly, Madam Chair, what the likelihood is of this bill passing very quickly.
Right now, it is a Senate bill, a private member's bill. It is in the Senate. It seems, from reading the newspapers, quite likely that perhaps the Prime Minister will prorogue Parliament sometime over the summer. Since the Senate will be through today, tomorrow, this week or next week, this will not pass the Senate before then, and it will not pass Parliament until Parliament is over, and then the process will have to start again. I think you should be warned fairly that this is likely to happen.
The Chair: Now, the good news, or the perhaps less bad news, is that if all that happens, if the bill has already gone through committee and been reported back to the Senate, it can be retabled. A bill that has already been considered by a committee and reported back to the Senate will usually, if it is referred back to the same committee, get expedited treatment because it is the same committee and the same bill.
Meanwhile, of course, there are other bills that we have not studied. Therefore, should this sequence play out, the process would not necessarily be as long and drawn out as it has been on this round.
I have had occasion to say to Ms. Basnicki before that there are no guarantees. However, realistically, it is appropriate that you be aware of these elements, since Senator Milne has raised the case.
Senator Campbell: I was extremely touched by all your statements. Ms. Wise, your husband and child must be incredibly proud of you; and, Mr. Gupta, your wife and, Ms. Basnicki, your husband must be incredibly proud looking down.
I echo the comments of the two senators, but I would like to point out that Senator Tkachuk will not be denied this bill, period. This is the third time we seem to have run into a prorogation or election. Senator Tkachuk is not here, and I feel bad because I am a Liberal speaking on behalf of a Conservative, but he will not give up on this bill, and we will not give up on this bill.
Ms. Wise: Thank you.
Mr. Gupta: Thank you.
Ms. Basnicki: Thank you.
Senator Di Nino: Bravo.
Senator Campbell: We have constraints in government, but we also have doggedness, and we get to stay a long time, so this bill will pass. Thank you so much for your stories.
The Chair: As you know, although this is not the first time the bill has been presented in the Senate, this is the first time it has made it to an actual committee study. There is progress.
It is often frustrating, for all of us, to live with the prolonged process of legislation. If there is any comfort at all to be offered, it is that when we fuss with the legalities, it is because we want a good bill, a good bill that will succeed in the House of Commons and out there in practice. It has happened more than once that, for the best of reasons, bills have been rushed through Parliament and have fallen to court challenge. Ideally, that would not happen with this bill. When we fuss, understand that we are not doing it for the sake of busy work and certainly not for the sake of delay; we are doing it to try to get a good bill; a good, robust bill, as they say — all of which, I am sure, is no comfort at all to you.
Ms. Basnicki: If I may add, Senator Fraser, I am so proud to be a Canadian right now. You heard from Victor Comras before, and he spoke about his country putting a toe in the water. I understand the debate. It is what Canada is about. We are sometimes slow, and we contemplate things, but the end result, I know, will be a signature piece of Canadian legislation.
I thank all of you for taking so much time. For us, this is a real journey. I am inspired by Mr. Gupta next to me. Air India happened in 1985. We are coming up to the 23rd anniversary.
Ms. Wise is one of many invisible Canadian victims of terrorism. You all recognize the story behind 9/11, and you recognize the story about Air India, but rest assured that there are many other Canadians out there who share a story such as that of Ms. Wise. It is for these victims of terrorism — Canadians — that we are here today.
It is indeed an honour, as Canadian citizens, to have the opportunity to be here in front of the Senate of Canada and to present a private members' bill and have you contemplate it. Thank you for your words of encouragement. I hear words of support. I really hope Parliament is not prorogued, and I really hope an election is not called soon. I want to get on with this. Thank you for your efforts.
The Chair: Thank you all very much indeed.
Honourable senators will recall that in the Committee of the Whole, I read into the record a letter that I received — I believe you have copies of it — from the Minister of National Defence, Peter MacKay. You will recall that in Committee of the Whole and at third reading, the Senate gave expedited passage of Bill C-60, and you will recall that a number of senators expressed their concern about having done so without having done the normal due diligence on this bill.
This committee has a history with the military justice system. As a consequence of all that, the minister wrote to me, as your chair, to ask that this committee consider studying the provisions and operations of Bill C-60 and report by December 31, 2008.
He undertook to have the government review these recommendations and provide a written response within 90 calendar days, and the response would include proposed amendments if we recommended them. When I pressed him on this in the chamber, he said that, yes, he was going as far as he could down the road of undertaking what he thought he should do once we looked at the bill. In exchange, I undertook to bring this letter and request from him to the committee at the earliest opportunity. That is why I am doing that today.
Senator Campbell: The only question I have is if there is a prorogation or an election, what is the status of the bill?
The Chair: The bill received Royal Assent today.
Senator Di Nino: It passed.
Senator Campbell: All right.
The Chair: The status of the study that we would do would be defunct, but we would have to go back and get another order of reference.
Senator Campbell: We are studying a bill that has already been passed.
The Chair: Yes, but there is precedence for this. The Special Committee on Anti-terrorism is doing the same thing.
Senator Campbell: I was just wondering.
The Chair: What you have before you is a draft notice of motion to authorize us to do that study.
I would propose to try to get that motion passed at the next sitting of the Senate because that would enable the clerk and the Library of Parliament to use the summer months not enjoying a well-earned rest but preparing for this study.
Senator Campbell: Would that be next Thursday?
The Chair: Yes, that would be next Thursday. I would seek leave to pass it, notwithstanding the specific rule in the Senate.
Senator Di Nino: You will table this motion today?
The Chair: I would seek leave to return to notices of motion.
Senator Di Nino: I would do that.
The Chair: You think so? That is fine.
Senator Di Nino: I would seek leave and, tomorrow —
The Chair: There is no tomorrow; there is one week from tomorrow.
Senator Di Nino: Perhaps next Thursday, then. I am happy to move this.
The Chair: All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
Colleagues, thank you very much. Before we break for the summer, I think it is even more important than usual to thank our long-suffering staff, researchers and reporters. This committee has been through the most extraordinary kaleidoscope of topics in the past few months, and they have all kept up with us. Ms. Bird, please thank your colleagues who are not here, to whom we are very grateful. Also thanks to the stenographers, translators and everyone.
Senator Campbell: Also thanks to the clerk.
The Chair: Yes, and to the clerk. He knows I love him, and we all love him. I hope you will join me in those sentiments, colleagues.
Senator Di Nino: Certainly a sincere and well-deserved thanks to the chair.
Hon. Senators: Hear, hear!
The Chair: May everyone have a wonderful summer.
The committee adjourned.