Summary of the JVTA’s Provisions
The JVTA is composed of two parts. The first portion is a stand-alone act, which creates a civil cause of action against any listed entity or other person that causes loss or damage by contravening the Criminal Code’s anti-terrorism provisions, as well as against a foreign state, listed entity, or other person that breaches those provisions for the benefit of a listed entity. The second part of the bill amends the State Immunity Act to lift the immunity of certain foreign states in civil proceedings that relate to the sponsorship of terrorism. The JVTA is loosely modeled on American legislation, albeit with important differences in structure and language.
A Closer Look:
Creating a Civil Cause of Action – The JVTA creates a civil cause of action for anyone who has suffered loss or damage as a result of a breach of the Criminal Code’s anti-terrorism provisions.
[i]Section 4 of the JVTA sets out the scope of the new civil cause of action. Subsection 1 provides:
Any person that has suffered loss or damage in or outside Canada on or after January 1, 1985 as a result of an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code, may, in any court of competent jurisdiction, bring an action to recover an amount equal to the loss or damage proved to have been suffered by the person and obtain any additional amount that the court may allow, from any of the following:
- any listed entity, or foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or other person that committed the act or omission that resulted in the loss or damage; or (b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or listed entity or other person that – for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a) – committed an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.
Subsection 4(1) allows a person who has suffered loss or damage as a result of a breach of laws found in the terrorism section of the Criminal Code to bring an action. The suit can be brought against any person, listed entity, or foreign state (who has lost its immunity under the State Immunity Act, as explicated below) that committed the act responsible for the damage. The term “person” includes an organization, as defined in section 2 of the Criminal Code. “Listed entity” is a term defined in subsection 83.05(1) of the Criminal Code. It refers to an individual or group that has been designated by the Governor in Council (Cabinet), on the recommendation of the minister of public safety, as being associated with terrorism. An individual or group can become a listed entity if it has (a) “knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity,” or (b) “knowingly acting on behalf of, at the direction of or in association with an entity referred to in paragraph (a).”
Under paragraph (b), persons, listed entities, and foreign states which have lost their immunity under the State Immunity Act can also be sued for causing loss or damage that results from violating any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code for the benefit of or otherwise in relation to the responsible listed entity.
Lifting State Immunity – The JVTA amends the State Immunity Act (“SIA”) to permit claims in Canada against certain foreign states that provide support to any individual or group listed as a terrorist entity by the government of Canada. Prior to the passage of the JVTA the SIA permitted claims for proceedings related to commercial activity, and personal injury, death and damage to property that occur in Canada, but not for sponsoring terrorist entities that kill Canadians abroad.
[ii]Definition of State Sponsorship of Terrorism – Section 2.1 is added to the State Immunity Act to define the contours of state sponsorship of terrorism: “For the purposes of this Act, a foreign state supports terrorism if it commits, for the benefit of or otherwise in relation to a listed entity as defined in subsection 83.01(1) of the Criminal Code, an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.” (This definition of the support of terrorism contains the same language found in the JVTA’s creation of the civil cause of action against a foreign state. The foreign state is found to support terrorism only if it violates certain Criminal Code anti-terror provisions in relation to a listed terrorist entity. Direct involvement in terrorist activity or support to a non-listed terrorist organization would not fall under the set definition.
A New Exception to State Immunity – Subsection 6.1(1) carves out a new exception to state immunity: “A foreign state that is set out on the list referred to in subsection (2) is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism on or after January 1, 1985.” This provision contains two key elements: the support of terrorism on or after January 1, 1985 is conduct that threatens state immunity, but only those states that appear on a list will actually lose their immunity in any related civil proceedings.
The Listing Process – Subsection 6.1(2) details the listing process. It allows the Governor in Council to “establish a list on which the Governor in Council may, at any time, set out the name of a foreign state if, on the recommendation of the Minister of Foreign Affairs made after consulting with the Minister of Public Safety and Emergency Preparedness, the Governor in Council is satisfied that there are reasonable grounds to believe that the foreign state supported or supports terrorism.” In other words, Cabinet has the ability, but is not required, to list states that support terrorism.
Subsections 3 to 9 provide further details on the listing process: the list must be established within six months of the bill’s passage (although there is no obligation to place a single state on the list); the foreign state can apply to be removed from the list; the ministers of foreign affairs and public safety must make a decision about that application, and inform the state of their decision; the foreign state cannot re-apply to be removed unless there have been material changes in its circumstances since the last review; the list of states must be reviewed every two years, although the review does not affect the validity of the current list; and notice that the review has been completed must be published in the Canada Gazette.
Enforcement of Foreign Judgments – The intent of the provision is to confirm as a matter of Canadian public policy, foreign anti-terror judgments from similar jurisdictions and legal systems to Canada’s will generally be enforceable in Canada.
Subsection 4(5) of the JVTA provides: “A court of competent jurisdiction must recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or damage referred to in subsection (1). However, if the judgment is against a foreign state, that state must be set out on the list referred to in subsection 6.1(2) of the State Immunity Act for the judgment to be recognized.”
Two points are made by this language. First, a foreign judgment will be enforceable in Canada only for a successful victim-plaintiff. Second, any judgment against a foreign state will be enforceable only if that state has been designated under subsection 6.1(2) of the State Immunity Act as a supporter of terrorism.[iii]
Retrospectivity – The JVTA is “retrospective”. It provides a civil cause of action to those who were harmed by acts proscribed by the Criminal Code’s terrorism section on or after January 1, 1985.
[iv]The JVTA should be seen as “retrospective” rather than “retroactive” — two terms that are erroneously used interchangeably. In Benner v. Canada, Justice Iacobucci endorsed statutory interpretation expert E.A. Driedger’s understanding of the distinction:
A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted.[v]
Applied to the JVTA, the effect of past terrorist involvement would not be affected from the time it occurred. Rather, a successful lawsuit would impose liability for past events of terrorist activity or sponsorship as of the date of judgment. However, even if the JVTA were found to be retroactive, it should still be valid because the legislature has the right to enact such legislation provided that its intent to do so is expressed clearly in the language of the law. In other words, any presumption that may exist against retrospectivity or retroactivity for a non-criminal law[vi] applies only when there is no clear legislative intent to the contrary.[vii]
From a policy perspective, retrospectivity is crucial if the legislation is to achieve its intended goals. One such goal is to hold wrongdoers accountable. Without retrospectivity, those responsible for terrorist attacks that occurred prior to the passage of the bill would effectively be granted immunity. It is in the public interest to ensure that those involved in the past sponsorship of terror resulting in the loss of Canadian life be subject to the provisions of this law.
Retrospectivity also helps to fulfill the deterrence objective of the legislation. The civil remedy should apply to past terrorist activity in order to make previous and potential wrongdoers think twice about future involvement in terrorist activity. Moreover, without retrospectivity Canada would be in the absurd position of being forced to wait for a terror attack to occur before the proposed laws, designed for deterring the very attack that has just occurred, could become effective. This would clearly undermine the intent and efficacy of the law.
Finally, without the retrospectivity clause it is very uncertain whether the hundreds of Canadian victims of terror attacks perpetrated prior to the enactment of the legislation could sue the perpetrators and receive financial compensation. It would be contrary to the intent of the legislation to restrict its application to future terror victims at the expense of those whose past suffering inspired its creation. In particular, it would have been a mistake for Canada to enact legislation that would exclude its largest body of victims – the Air India families.
Causation – Insofar as “terrorist organizations do not maintain open books”[viii], it will ordinarily be unfeasible to obtain evidence demonstrating that a particular dollar paid for the particular bullet that caused harm. Thus, it is very difficult to establish “causation”, a necessary element for successfully suing terror sponsors. It was therefore important to ensure that victims would not be saddled with the unreasonable burden of proving that the alleged sponsor of the terrorist entity was directly responsible for the specific terrorist action committed by that entity, which resulted in the loss suffered by the victim.
Subsection 4(2.1) of the JVTA creates a presumption that the defendant caused the plaintiff’s loss or damage when a court finds that (a) a listed entity caused harm to the plaintiff by committing an act punishable under the terrorism section of the Criminal Code, and (b) the defendant breached certain Criminal Code laws for the benefit of or otherwise in relation to that listed entity (such as providing monetary funds). Legal presumptions can be rebutted by the defendant if there is proof to the contrary.[ix]
In other words, if the plaintiffs can prove that the defendant donated money to a listed entity and the same listed entity shot their loved ones, this is sufficient proof of causation. The plaintiffs need not prove that the defendant paid for the very bullets that killed their loved ones.
As the U.S. court in Humanitarian Law Project held, “Congress explicitly incorporated a finding into the statute that ‘foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.’ It follows that all material support given to such organization aids their unlawful goals.…Therefore, when someone makes a donation to them, there is no way to tell how the donation is used.…Even contributions earmarked for peaceful purposes can be used to give aid to the families of those killed while carrying out terrorist acts, thus making the decision to engage in terrorism more attractive.”[x]
Somewhat analogous provisions have been added to the Ontario Securities Act. Where a person buys or sells securities after there has been a misrepresentation by the issuer (and before the misrepresentation has been corrected), they have a right of action for damages – regardless of whether the person or company actually relied on the misrepresentation.[xi]
Limitation Periods – Limitation periods establish a cut-off date for seeking legal redress for a particular event. The JVTA limitation clause suspends the running of the limitation period while the victim is unable to commence proceedings due to a physical, mental or psychological condition or because the identity of the wrongdoer could not be determined. This provision acknowledges that a victim may need time to recover from the loss sustained in a terrorist attack before mobilizing to seek justice. The clause also compensates for the difficulties encountered in establishing the culpability of a given terrorist body in the execution of a specific terrorist act. The clause will be particularly beneficial for victims of past terrorist attacks whose limitation period may have otherwise expired.
[xii]Subsection 4(3) sets out the limitation period for an action brought under the JVTA. The clock starts running on the day the bill comes into force, but is suspended for any period in which the victim is unable to commence proceedings (a) due to a physical, mental or psychological condition, or (b) because the identity of the wrongdoer could not be ascertained. Paragraph (a) is reminiscent of the Ontario Limitations Act, which suspends the limitation period for claims “based on assault or sexual assault during any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.”[xiii] Paragraph (b) has support in the Supreme Court of Canada’s determination in M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, that “The reasonable discoverability rule … should be applied and the limitations period should begin to run only when the plaintiff has a substantial awareness of the harm and its likely cause.”[xiv]
Jurisdiction – Subsection 4(2) of the JVTA provides that the case in question can be heard in Canadian court only if it has a real and substantial connection to Canada, or if the plaintiff is a Canadian citizen or permanent resident. The intent of this provision is to clarify that universal jurisdiction, which would allow any plaintiff to bring a claim against any defendant in a Canadian court, is not being established. Rather, a significant connection must be demonstrated between the cause of action and the court in which the claim is brought.
There are sufficient jurisdictional safeguards to prevent cases being brought in Canadian courts that have no relation to Canada or Canadians, including:
(1) whether there is a real and substantial connection between the dispute and the jurisdiction (the jurisdiction simpliciter test);
(2) if the court passes the jurisdiction simpliciter test, whether there is a more appropriate forum in which to hear the case (the forum non conveniens test); and
(3) whether “a reasonable measure of fairness and justice sufficient to meet the standards of international comity” will be upheld if the court exercises its jurisdiction.
The “Lockerbie Amendments” – narrowly broadens the scope of conduct for which a foreign state can be sued in a Canadian court. These amendments enable foreign states already designated by Cabinet as terror-sponsoring states, to be sued for direct terrorist activity on the condition that a Canadian court had already determined that the state supports or has supported terrorism. In other words, once a court finds that a foreign state has supported terrorism and therefore loses its immunity, that foreign state will also not be immune from the court’s jurisdiction in proceedings against it that relate to its direct terrorist activity.
C-CAT successfully advocated the inclusion of this new subsection to the State Immunity Act, providing:
6.1(11) Where a court of competent jurisdiction has determined that a foreign state, set out on the list in subsection (2), has supported terrorism, that foreign state is also not immune from the jurisdiction of a court in proceedings against it that relate to terrorist activity by the state.
Prior to adoption of this amendment (dubbed the “Lockerbie Amendments” by advocates) the JVTA allowed civil suits against a listed foreign state only if it sponsored a listed entity, but not if that same listed foreign state had directly committed a terrorist act. This would create the following absurd scenario: A foreign state already listed under the JVTA as a state sponsor of terror – decides to launch a terrorist attack by blowing up two planes of civilian passengers, which include Canadian citizens. The state attacks the first aircraft using a listed terrorist entity. It assaults the second aircraft using its own government agents. The JVTA would have permitted Canadians on the first plane to sue the responsible state because it sponsored a listed terrorist group to blow up the plane. Canadians on the second plane, though, would be unable to sue because the state committed the act directly. In other words, the pre-amended JVTA created a situation in which the same government planned for the mass murder on two planes – but would be immune to suit in the second case only because it chose to commit the atrocity through its own officials rather than a listed terrorist entity.
For example in the 1988 Lockerbie bombing case, Libya used its own officials to blow up a Pan Am flight killing 243 passengers and 16 crew members. Under such circumstances, even if Libya had been previously listed as a state sponsor of terror, Libya could not have been sued under the JVTA. Only if it had used a listed entity to commit the act, rather than its own officials, could victims file a civil claim against the state.
C-CAT therefore proposed its “Lockerbie Amendments”, which carefully and narrowly sought to broaden the scope of conduct for which a foreign state can be sued in a Canadian court. These amendments enable foreign states (only those states designated by Cabinet as terror-sponsoring states) to be sued for direct Lockerbie-type terrorist activity on the condition that a Canadian court had already determined that the state supports or has supported terrorism. These amendments broaden the scope of conduct for which a foreign state can be sued in a Canadian court, but does so carefully and narrowly. It does not create a new trigger for lifting state immunity. Rather, the new subsection is more properly described as an extension of the initial trigger, the support of terrorism. Once a listed state has lost immunity for its support of terrorism, it should also be liable for direct terrorist activity. “Terrorist activity,” in turn, has the same meaning that is already provided in section 83.01 of the Criminal Code, and applies to acts or omissions on or after January 1, 1985.[xv]Parliament accepted the C-CAT’s amendment and subsection 6.1(11) was then added to the State Immunity Act.
Assistance from the government – in locating the financial assets of state sponsors of terror
Section 12.1 enables a successful victim-plaintiff to solicit assistance from the minister of finance in locating the financial assets of the state that are within Canada, and from the Minister of Foreign Affairs in identifying and locating the property of the state that is within Canada. It reads: “At the request of any party in whose favour a judgment is rendered against a foreign state in proceedings referred to in section 6.1, the Minister of Finance or the Minister of Foreign Affairs may, within the confines of his or her mandate, assist, to the extent that is reasonably practical, any judgment creditor in identifying and locating the following property….”
However, there are several caveats. First, the ministers are permitted, but not obligated, to offer any assistance. Second, assistance may not be offered if the foreign affairs minister believes that doing so “would be injurious to Canada’s international relations,” or if “either Minister believes that to do so would be injurious to Canada’s other interests.”[xvi]
Arbitration – In a case where the terrorist act occurs on the soil of a foreign state, subsection 4(4) of the JVTA offers the court discretion to refuse to hear a claim if the plaintiff fails to provide that foreign state with the opportunity to arbitrate the matter “in accordance with accepted international rules of arbitration” prior to pursuing the claim in court.[xvii]
[xviii]The encouragement to arbitrate first, modeled after a similar U.S. provision in the Antiterrorism and Effective Death Penalty Act (AEDPA), has three benefits:
1. The provision allows a foreign state to settle the matter in a less public forum.
2. Arbitration is a potentially faster and more flexible means of adjudicating a dispute, which may deliver a more positive outcome than traditional litigation.
3. The provision represents one more hurdle for plaintiffs to overcome in order to demonstrate serious intent, and to prevent frivolous suits.
Footnotes
[i] Sheryl Saperia, “The Justice for Victims of Terrorism Act, P. 126
[ii] Ibid. P. 130.
[iii] Ibid P. 129.
[iv] Ibid P. 129.
[v] Benner v. Canada, [1997] 1 SCR 358. Sherul 129
[vi] This rule is found in section 11(g) of the Charter, which prohibits a person from being criminally charged for an act or omission that was not considered a criminal offence at that time. The proposed legislation carves out civil, not criminal, liability for terrorist conduct, and is therefore not subject to this section of the Charter.
[vii] Some legal analysts assert that there is a common law presumption against the retroactive application of legislation, but not against the retrospective application of legislation, which is valid regardless of explicit legislative intent. (Ruth Sullivan, Sullivan and Deidger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 547.) According to this model, the retrospective application of the proposed legislation is entirely legitimate and requires no further justification. Others hold that the presumption against retrospectivity is only somewhat less rigorous than the presumption against the retroactive operation of a law. (Johnstone v. Wright, 2002 BCCA 406) A third view is that nothing practical turns on the distinction of retrospectivity and retroactivity, as both forms of temporal application are subject to the same legal principles.
C-CAT contends that the 1985 starting point is valid regardless of whether the legislation is found to be retrospective or retroactive (and therefore regardless of whether a common law presumption against retrospectivity exists). In other words, any presumption against the retroactive or even retrospective application of a law applies only if there is no clear legislative intent to the contrary.
This principle has been expressed by the courts in many cases and in a variety of ways. For example, the court in Gustavson Drilling (1964) Ltd. v. M.N.R (1975) ([1977] 1 S.C.R. 271) held that “the general rule that statutes are not to be construed as retrospective may be rebutted if such a construction is expressly or by necessary implication required by the language of the statute.”
The provisions that render C-CAT’s proposed legislation applicable to acts of terror occurring on or after January 1, 1985 are explicit, unambiguous and therefore legally valid. That is, the imposition of retrospective (or even retroactive) liability is effected by an express provision, and a court would adhere to the instructions of the legislature. Thus, the “general rule that statutes are not to be construed as retrospective” would not be operative.
The law is similar in the United States. In Flatow v. The Islamic Republic of Iran (999 F.Supp. 1, United States District Court, District of Columbia), a civil case launched against Iran by the father of a young woman killed in a terrorist attack, the operating legislation was the Anti-terrorism and Effective Death Penalty Act. The court referenced a note from Congress in the statute which provided that “The amendments made by this subtitle [28 USC 1605] shall apply to any cause of action arising before, on, or after the date of the enactment of this Act.” Citing that note, the court held that although the events complained of in the case occurred more than a year prior to the enactment of the statute, the retroactive application was acceptable due to clear congressional intent.
There are also several examples of statutes in Canada that contain clear legislative intent for retrospective and retroactive application. Several years ago, the province of Ontario passed An Act to amend the Workplace Safety and Insurance Act, 1997 with respect to firefighters and certain related occupations. This legislation was enacted to ensure that “Ontario firefighters are treated with the respect and dignity they deserve when filing occupational disease claims with the Workplace Safety and Insurance Board.” The legislation would be applied to all relevant claims back to January 1, 1960. Any firefighter’s claim for an identified cancer diagnosed or heart injury suffered within 24 hours of fighting a fire on or after that date would be covered. Any claim that had been denied or is still pending during this period could be reopened and reassessed by the Workplace Safety and Insurance Board.
[viii] Judge Kozinski (the United States Court of Appeals for the Ninth Circuit)in the Humanitarian Law Project, 205 F.3d at 1136
[ix] Sheryl Saperia, The Justice for Victims of Terrorism Act, P. 128.
[x] The Humanitarian Law Project, 205 F.3d at 1136 (citations and footnotes omitted) (emphasis added).
[xi] [see for example ss. 130(1); 130.1]
[xii] Sheryl Saperia, The Justice for Victims of Terrorism Act, P. 128.
[xiii] Limitations Act, 2002, S.O. 2002, Chapter 24, Schedule B, section 7.
[xiv] M.(K.) v. M.(H.), [1992] 3 SCR 6.
[xv] Sheryl Saperia, The Justice for Victims of Terrorism Act, P. 132, 133.
[xvi] Ibid. P. 132.
[xvii] This is borrowed from the United States Foreign Sovereign Immunities Act 1610(f)(2)(A): “At the request of any party in whose favor a judgment has been issued with respect to a claim for which the foreign state is not immune under section 1605(a)(7), the Secretary of the Treasury and the Secretary of State should make every effort to fully, promptly, and effectively assist any judgment creditor or any court that has issued any such judgment in identifying, locating, and executing against the property of that foreign state or any agency or instrumentality of such state.”
[xviii] Sheryl Saperia, The Justice for Victims of Terrorism Act, P. 128.