JVTA FAQs:
1. Why is this bill focused on terrorism as opposed to other types of illicit state-related violence?
Terrorism is more than a particularly pernicious form of organized crime. It is different in its scope, intent, method and impact. Unlike organized criminality, terrorism is often a function of state policies aimed at the citizens of other sovereign states. Its primary objective is not economic or personal gain in a criminal sense. Whereas the primary interest of most criminals is not to destroy themselves or society as a whole, the objective of terrorist attacks is to inflict maximum damage and horror on society for generations – for political, military and/or ideological purposes.
Other types of human rights violations committed by foreign countries, such as torture and war crimes, are unequivocally deplorable. However, unlike terrorism, these phenomena generally do not present a clear and immediate danger to Canada as a country, to Canadians living in Canada, or even necessarily to Canadians living in the country of the offending state. As opposed to terrorist leaders like Osama Bin Laden, the perpetrators of other types of human rights violations have generally not declared “war” against Canada, its allies or its way of life. They would not necessarily embrace the destruction of the West or other nation states as a theological or ideological imperative that supersedes other priorities (including their own survival), nor have they declared the utilization of WMD against the international order as the preferred tactic and weapon of choice.
The same cannot be said of terrorism and its perpetrators. Despite some of the obvious overlap between the dynamics governing terrorism and other types of human rights violations, the scope, intent, method and impact of terrorist activity set it apart as a distinct category of transnational threat.
As a result, the legal remedies and mechanisms that must be crafted to deal with terrorism will differ substantively from those used to deal with other human rights abuses. It would be inappropriate – and arguably even counter-productive – to attempt to integrate other types of violations into a bill providing civil recourse for victims of terrorism.
For those seeking to lift state immunity for torture and crimes against humanity, we suggest that an entirely separate piece of legislation be drafted and targeted specifically for those crimes. We refer to former Minister of Justice Irwin Cotler, who made the following statements in the House of Commons in October 2009 during debate of Bill C-35 (a precursor to the JVTA):
…I think that victims of torture deserve a right of civil redress no less than do victims of terror. My only point was that from a legal point of view we could not commingle the two principles in the same bill without doing a disservice to both. Therefore, I introduced a private member’s bill with respect to providing a civil remedy for victims of terror and I will be introducing shortly a private member’s bill to provide a civil remedy for victims of torture. In that way we will have two distinguishable, though related, bills with respect to the matter of principle, but in the matter of process we will be able to go forward effectively to secure the rights of victims of torture and terror respectively.
2. Why should victims of terror be given special consideration under the law?
While victims of terror may be targeted as members of a particular ethnic or social group, the attacks are seldom delivered with any surgical precision. These victims are generally targeted as representatives of a group, society or country. And while criminals for the most part avoid large-scale massacres of uninvolved persons, the primary purpose of terrorist activity is to create victims – the more the better – because victims are the vehicle through which terrorist goals are achieved. Crime can exist without mass murder and may in fact benefit from avoiding it; terrorism cannot.
Terror victims, therefore, are not collateral damage in a conventional war between states. They are not by-products of another circumstance. They were neither caught accidentally in a drive-by shooting, nor targeted personally for the purpose of a specific gain – be it economic or otherwise. The experience of Canadian terror victims is both personal and national in nature. Those who have been murdered or injured in terrorist attacks have often been victimized in the context of a larger conflict of global dimension involving states, sub-national groups and non-state entities. France has formally recognized this special status with legal provisions that provide terror victims with the rights and advantages accorded to civilian war victims by the disabled military pension code. France has also created a fund that offers financial compensation to these victims. Similarly, the U.S. government has established a fund for victims of certain categories of terrorism and crime.
Canadian government policy should also reflect the unique status of terror victims in this unprecedented conflict. Failing our victims is not only an injustice. It is a failure to deal with what terrorism is, and a failure to strengthen our society against terrorist success. The front-line soldiers in this new war are unarmed civilians who have little defence against the agents of terror, and the experience of these victims will define the contours of this battle. Indeed, the extent to which we can limit the impact on the victims will dictate the impact of terrorism on our society and the confidence of our society to weather this storm. Our ability to diminish that impact must therefore be a central component in any policy deliberations regarding terrorism. In addressing this issue, CCAT’s legislative initiative effectively provides another vehicle for undermining terrorism itself.
3. Is there any international consensus emerging on the special status of terror victims?
This very question was the subject of a symposium sponsored by the Secretary-General of the United Nations in September 2008. This was pursuant to the adoption of the UN Global Counter-Terrorism Strategy by Member States in 2006, which urged an end to the dehumanization of terrorism victims. Under the strategy, countries committed themselves to: consolidating their systems of assistance to promote the needs of victims and their families and facilitate the normalization of their lives; promoting international solidarity in support of victims; and protecting victims’ rights.
In a press conference prior to the symposium, UN Secretary-General Ban Ki-moon noted the key role that victims must play in the battle against terrorism:
Almost exactly two years ago, the General Assembly took a historic step forward in adopting the United Nations Global Counter-Terrorism Strategy. For the first time, Member States came together and took a common stand on the issue of terrorism. And they acknowledged that terrorism cannot be defeated without the help of those who suffer most, the victims and their families….[i]
The Secretary-General also called for open dialogue on the issue of terror victims between governments, the UN, civil society and the victims themselves:
…By giving a human face to the painful consequences of terrorism, you help build a global culture against it.… You deserve support and solidarity. You deserve social recognition, respect and dignity. You deserve to have your needs addressed…. Still too often there are gaps in addressing the needs of survivors and their families…. Still too often victims are registered only as numbers and not as human beings that bear witness to stories of immense injustice. Still too often we pay more attention to the voices of terrorists than those of their victims.[ii]
Asked whether he supported the granting of a recognized international status for victims, the Secretary-General said he would certainly discuss that and all specific proposals resulting from the Symposium with his advisors and bring them to the attention of Member States.
France has formally recognized this special status with legal provisions that provide terror victims with the rights and advantages accorded to civilian war victims by the disabled military pension code. France has also created a fund that offers financial compensation to these victims. Similarly, the U.S. government has established a fund for victims of certain categories of terrorism and crime.
4. Doesn’t Canadian law preclude civil suits against foreign states in all circumstances?
No, the State Immunity Act does not provide unlimited protection for foreign countries. It already allows an individual to sue a foreign state in a Canadian court regarding commercial activity, and for personal injury, death and damage to property suffered on Canadian soil. If one can sue a state for breach of contract, surely one should be able to sue a state for its role in sponsoring those who murder or injure Canadian citizens abroad.
Furthermore, state immunity is widely understood as applying only to sovereign acts of state (acta jure imperii). Various rulings have recognized that the legal parameters of acta jure imperii are subject to change. The International Court has noted that this definition is “not fixed in stone” and “is subject to changing interpretation which varies with time reflecting the changing priorities of society.”[iii] Similarly, in Rahimtoola v. Nizam of Hyderabad, [1958] AC 379, Lord Reid noted: “The principle of sovereign immunity is not founded on any technical rules of law; it is founded on broad considerations of public policy, international law and comity.” In another case, Denning M.R. of the English Court of Appeal held that, “Each country delimits for itself the bounds of sovereign immunity. Each state creates for itself the exceptions from it. It is, I think, for the courts of this country to define the rule as best they can, seeking guidance from the decisions of the courts of other countries, from the jurists who have studied the problem, from treaties and conventions and, above all, defining the rule in terms which are consonant with justice rather than adverse to it.”[iv]
Terrorism cannot be defined as a legitimate sovereign act of state. Rather, the prohibition against terror must be seen as a peremptory norm of international law (jus cogens) “accepted and recognized by the international community of States as a norm from which no derogation is possible”, as defined in the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, Article 53. Therefore, it can be argued that a foreign state should automatically lose its immunity when it engages in terrorist conduct.
As the law already recognizes that state immunity is not absolute, C-CAT has only contended that the special case of terrorism be explicitly included in the exceptions to the law. Terrorism is a transnational phenomenon which presents unique challenges to the democratic world, and it requires special measures that reflect the scope and magnitude of the danger to Canadian society as a whole.
5. Have other countries enacted laws allowing for lawsuits against sponsors of terror?
The JVTA is primarily modeled on American legislation, albeit with important differences in structure and language. For instance, whereas the United States employs multiple statutes to deal with various facets of suing terrorists and their sponsors, the JVTA is intended to be a consolidated piece of legislation.
The U.S.’s Anti-Terrorism Act permits a U.S. national who is injured “in his or her person, property or business by reason of an act of international terrorism” to sue individuals and corporations for his or her loss. The Anti-Terrorism and Effective Death Penalty Act (AEDPA) creates an exception to the Foreign Sovereign Immunities Act, lifting the sovereign immunity of foreign states for perpetrating or providing material support for an act leading to “personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking.” The Civil Liability for Acts of State-Sponsored Terrorism Amendment (the Flatow Amendment) clarifies that a cause of action is created against foreign states.
In contrast, the JVTA, which focuses exclusively on terrorism, 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.
While various countries have general laws of civil responsibility that allow suits against local wrongdoers (as evidenced by the Omagh civil action in Northern Ireland), only the United States currently allows suits against foreign states as well.
There is some precedent for the JVTA’s basic intent within international law provisions. For instance, Article 5 of the 1999 International Convention for the Suppression of the Financing of Terrorismstipulates that, “Each state party shall ensure … that legal entities liable in accordance with [provisions of the Convention] are subject to effective, proportionate and dissuasive criminal, civil, or administrative sanctions.” And Article 8 stipulates that each signatory should consider establishing mechanisms whereby the funds from terrorism-related forfeitures are utilized to compensate the victims of terrorist offenses.
Canadian law also contains provisions that acknowledge a need for providing compensation to victims. Subsection 83.14(5.1) of Canada’s Criminal Code stipulates that any proceeds that arise from the disposal of property related to terrorist groups or activities may be used to compensate victims of terrorist activities. Furthermore, British Columbia, Ontario, Manitoba and Alberta have all introduced legislation that gives the government the right to seize the proceeds of criminal conduct. British Columbia’s legislation, for instance, authorizes the conversion of seized assets into cash that can be used to compensate the victims of the illegal activity. Michael Mulligan, a lawyer in British Columbia, told The Lawyers Weekly (March 25, 2005) that the legislation “has a lower burden of proof – on a balance of probabilities,” and “allows for forfeiture even where a person is acquitted of the offence or never charged…. In some circumstances it places the burden on the person who owns the property to prove it was not obtained from the proceeds of unlawful activity.”
6. Prior to the passage of the JVTA did terror victims have the right to sue terror sponsors in Canadian courts?
Currently, Canadian law does not permit suits against foreign states for terror sponsorship. The proposed legislation would amend the State Immunity Act to allow civil suits against foreign states for this conduct. But Canadian individuals and organizations that have perpetrated or have otherwise been implicated in a terrorist attack could presently be subject to civil suits under existing tort law in a Canadian court. Nevertheless, passage of the legislation will create a specific legal basis for doing so, by carving out a cause of action for breach of the Criminal Code anti-terrorism laws, which refers specifically to terror sponsorship (among other types of terror-related conduct) rather than requiring victims to rely on the general law of civil responsibility or tort law in each province. This will facilitate the execution of these suits – and with the amendments adopted by the House of Commons Standing Committee on Justice and Human Rights, plaintiffs will also be able to make their case before Canadian courts more easily than they would under the general principles of civil liability or tort law. (For instance, one JVTA provision creates a presumption of causation, i.e., a presumption that the defendant caused the damage, if certain conditions are met).[v]
7. Is it constitutional for the federal government to legislate on matters related to civil law?
[vi]Sections 91 and 92 of The Constitution Act, 1867 set out the matters in which the federal parliament has authority to legislate, and those falling under the jurisdiction of provincial legislatures. The creation of a civil remedy is generally understood to be a matter of provincial jurisdiction under its “property and civil rights” power. Yet the JVTA, a piece of federal legislation, creates a civil cause of action against local and state sponsors and perpetrators of terrorism. Whether this interferes with the constitutional division of powers is a significant consideration, particularly in light of the recent Supreme Court of Canada decision that the government’s proposed Securities Act fell outside the scope of federal jurisdiction.[vii]
The federal government is armed with strong arguments in its favor. For example, although The Constitution Act, 1867 establishes a division of powers, the Supreme Court of Canada has acknowledged: “The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers.”[viii] If the federal Parliament enacts a law whose essence falls under federal jurisdiction, that law may be able to impact on matters ordinarily falling within provincial jurisdiction.[ix] Thus, the Supreme Court of Canada held in General Motors v.City National Leasing that the federal Competition Act could contain a civil remedy for loss suffered as a result of activities in violation of that act.[x] In the case of the JVTA, the federal
government could argue that it is validly legislating under its criminal law power, its implicit foreign affairs power, and its “peace, order and good government” power.
The federal criminal law power is located in subsection 91(27) of The Constitution Act, 1867. The federal government could point out that the JVTA creates a civil cause of action for a breach of Criminal Code laws. Insofar as criminal prosecutions have enjoyed very limited success in defeating terror sponsorship, the civil remedy is necessary to deter and even punish this type of criminal activity. Indeed, section 3 of the JVTA describes the objective of the legislation in this way: “The purpose of this Act is to deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters.” Moreover, the fact that the JVTA is part of Bill C-10, an omnibus crime bill, strengthens the notion that the JVTA is considered to fall within federal legislative authority on the basis of the criminal law power.
A foreign affairs power is implied from the explicitly granted federal authority over matters that affect the country as a whole and have an international dimension, such as “Militia, Military and Naval Service, and Defence,” “Navigation and Shipping,” “Ferries between a Province and any British or Foreign Country or between Two Provinces,” and “Naturalization and Aliens.” Terrorism is an international issue, affecting Canadians inside and outside the country. Certainly the lifting of state immunity under the State Immunity Act, and even the creation of a civil remedy against foreign states, should be seen to fall under federal jurisdiction. But arguably a civil remedy against local sponsors of terror could also be viewed as a federal matter, particularly when the local terror sponsor has an international component (terror financing networks can be complex, spanning banks, organizations, individuals and states throughout the world).
Lastly, section 91 of The Constitution Act, 1867 allows for the federal Parliament to “make Laws for the Peace, Order, and good Government of Canada.” One aspect of this power is the “national concern” branch, which, according to the Supreme Court of Canada, “applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since … become matters of national concern.[xi] If it can be shown that terrorism and terror financing in Canada possess the “singleness, distinctiveness and indivisibility that clearly distinguishes [them] from matters of provincial concern,”[xii] the federal government may be able to enact the JVTA under this power. One important indicator of the requisite “singleness, distinctiveness and indivisibility” is whether “provincial failure to deal effectively with the intraprovincial aspects of the matter could have an adverse effect on extraprovincial interests.”[xiii] Indeed, the federal Parliament can argue that failure of one or more provinces to establish the civil remedy against terror sponsors would render the law ineffective. On that basis, federal jurisdiction may be necessary.
With these arguments in its arsenal, the federal government is well situated to assert its jurisdiction to enact the JVTA.
Note: Prior to the government’s adoption of the JVTA as a government bill, C-CAT had structured the legislation differently. The C-CAT model consisted of amendments to two existing statutes – the State Immunity Act and the Criminal Code).
8. How is this legislation consistent with an effective Canadian foreign policy?
Responsible Legislation: The legislation protects Canada’s key allies and trading partners from being subject to the implications of this legislation, while successfully targeting egregious offenders.
Consistent Policy: As for those countries which may be affected, the legislation represents a rather modest addition to a whole series of measures already enacted by Canada since 9/11, which have challenged the preexisting norms of many areas in domestic and foreign policy. Like other countries, Canada has passed tough and controversial anti-terror legislation, revisited its immigration policies, and banned terrorist organizations. All of these measures were pursued despite the potential consequences for winning elections and other foreign and domestic policy considerations.
This shift in policy reflects the recognition that terrorism represents a unique transnational threat requiring unique responses. Canadians and all those who are deemed enemies by global terrorism are now being targeted internationally – a situation that is fundamentally incompatible with the long-term policy interests of any democracy.
Moreover, Canada has enacted other principled policies in the past, despite the obvious difficulties they seemed to pose to Canada’s foreign policy or economic interests. One such example was cutting off highly lucrative economic ties with South Africa in the 1970s and 1980s in order to pressure that country to end apartheid. In fact, Brian Mulroney was the first world leader to take this action despite the potential economic fallout not only from South Africa but also from other Canadian trading partners. Other countries soon followed Canada’s lead, however, and apartheid was ultimately abolished. Additional examples include insisting that human rights concerns be addressed with China despite the implications for Canada’s multi-billion dollar trade relationship with China; and the banning Hizbullah as a terrorist body despite the warnings from Raymond Baaklini, the Lebanese ambassador to Canada, regarding the consequences for Canada and the potential danger to Canadians who may be touring the Middle East.[xiv]
But perhaps most significantly, Canada has taken a leadership role since 2001 in the military campaign against al-Qaeda and the Taliban in Afghanistan. This deployment has not only cost the lives of Canadian soldiers, but it has also identified Canada as a prime target for retaliation. Nevertheless, Canada –under both Liberal and Conservative governments – has pursued its principled policy in this conflict.
These moves reflect the recognition that, as articulated by the Ontario Court of Appeal, terrorism is a crime “that has no equal,” and therefore “must be dealt with in the severest of terms.”[xv] In comparison to some of the decisions described above, the proposed legislation poses far less risk to Canada’s foreign policy.
Principled and Practical Policy: Ultimately, fear of retaliation (whether through violence or reciprocal civil suits) and risk to foreign policy cannot be Canada’s sole guiding principle of diplomacy. If this were so, Canada could never take a meaningful and principled human rights stand against any totalitarian regime other than those deemed inconsequential to Canadian interests.
Furthermore, this argument – that a stronger posture vis-à-vis state sponsors of terror would compromise foreign policy interests – has provided terror-sponsoring states with the ideal political and diplomatic environment to promote terror against the West, while simultaneously benefiting from relationships with the West. Ultimately, this policy neither deterred terrorist attacks against those states, nor did it mollify the animosity of those who sympathized with their goals. The resulting loss of thousands of lives and billions of dollars bodes ill for the long-term policy interests of any democracy, and clearly justifies the short-term implications of taking appropriate steps to eradicate the danger.
Lastly, it should be pointed out that current Canadian law already allows suits against foreign states for certain conduct such as breach of commercial contract and loss or injury to person or property committed on Canadian soil. Canadian relations with other countries have not been impaired as a result. The proposed legislation only seeks to add one more limited exception to state immunity.
9. Will the legislation compromise Canadian business interests?
Terror experts agree that military and diplomatic initiatives against terror can only be fully effective if the international financial base of terrorist activity is destroyed. Achieving this goal may involve certain disruptions in business. But terrorism is no less a scourge than apartheid, which, unlike terrorism, did not present a clear and immediate danger to Canada. Economic sanctions proved necessary and effective in defeating that system, and they are a critical component in the overall strategy to defeat terrorism.
Furthermore, one of the single most potent threats to the economic health of Canada and the global community is international terrorism. As scholars and experts have pointed out, the global “terror economy” has destabilized the economies of weaker states and has inflicted hundreds of billions of dollars of damage and costs on the global economy.
The economic consequences of terrorism are not of secondary import to the strategic intentions of the perpetrators. Terrorists have deliberately chosen economic targets to commit their outrages. The two attacks on the World Trade Center, the brutal attacks on
India’s business centre in Mumbai, and the thwarted plans of the Toronto 18 – which included an attack on Toronto’s business district[xvi] – were not only designed to murder and maim large numbers of people. They were also meant to target countries as a whole by undermining their economies. Osama bin Laden has boasted of his success in severely damaging the Western economy for only a small investment on his part.
Terrorism must therefore be defeated even at potential short-term economic costs in order to protect the citizens and the long-term economic interests of the West, which are precariously vulnerable to terrorist attacks. As senior Pentagon analyst Marc Thiessan has pointed out, “We’re bombarded with bad news – the credit markets could freeze, millions more could lose their jobs, and today’s recession could turn into a depression. But the danger we aren’t hearing about could outweigh them all: the increased risk of a catastrophic terrorist attack.”[xvii] Another 9/11 level attack would cripple any recovery or stimulus program, regardless of its merits.
In an era when Canada and the rest of the world are struggling to find an antidote to unstable and fragile economies, the stated intent of terrorist groups to destroy the economy must be taken with the utmost seriousness. Our weakened economy has become a security liability – a weakness that has not gone unnoticed in the terrorist world. Consider the following statements:
Osama bin Laden (undated): “Jihad against America will continue, economically and militarily. By the grace of Allah, America is in retreat and its economy is developing cracks ever-increasingly. But more attacks are required. I advise the youth to find more of America’s economic hubs. The enemy can be defeated by attacking its economic centers.”[xviii]
Osama bin Laden (December 2001): “If their economy is destroyed, they will be busy with their own affairs rather than enslaving the weak peoples. It is very important to concentrate on hitting the US economy through all possible means.”[xix]
Ayman al-Zawahiri (Bin Laden’s second in command) (September 2002): “We will also aim to continue, by the permission of Allah, the destruction of the American economy.”[xx]
Sheikh Omar Bakri Mohammed (November 25, 2002): “In a matter of time, you will see attacks on the stock market. That is what al-Qaeda is skilful with. I would not be surprised if tomorrow I hear of a big economic collapse because of somebody attacking the main technical systems in big companies. I would advise those who doubt al-Qaeda’s interest in cyber-weapons to take Osama bin Laden very seriously. The third letter from bin Laden was clearly addressing using technology in order to destroy the economy of the capitalist states.”[xxi]
10. What if a terror victim is unable to collect on a judgment against a terror sponsor?
The Canadian legal system provides individuals seeking legal redress with the option of pursuing civil actions in an effort to obtain justice, vindication, and compensation for their losses. The law allows for a plaintiff to seek damages despite the fact that in some instances, the damages awarded may not be collectable. This is because the intent of civil suits is not only to provide a mechanism for financial redress, but also to give individuals an alternate avenue to pursue justice in the form of an officially sanctioned and public finding of liability against the perpetrator of an injustice. In this respect, civil lawsuits can effectively realize the very goals of criminal trials: they promote justice through a public finding of liability, and they act as a deterrent by highlighting the costs and consequences of certain modes of behaviour.
The O.J. Simpson case is one high-profile example of the efficacy of civil suits. Simpson’s criminal trial forthe murders of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman culminated on October 3, 1995 in a verdict of “not guilty”. There has since been significant criticism of the prosecution, the police, the jury and the defence team. In the subsequent 1997 civil action against Simpson, the jury concluded – using the preponderance of the evidence test applicable in civil cases – that he had wrongfully caused the death of the victims. The jury ruled against Simpson on each of the eight technical questions of liability it was asked to consider, and ordered the defendant to pay compensatory damages of $8.5 million and punitive damages of $25 million.
The civil suit provided an opportunity for the victims’ families to seek a measure of justice by “punishing” Simpson through a highly publicized finding of liability. This court decision has doggedly pursued him throughout the years,[xxii] despite the fact that collecting damages from him has proven difficult.[xxiii] The civil trial also provided an important public service by highlighting the issue of domestic violence, and making clear that some measure of justice can be achieved even when celebrities, armed with the best legal teams available, have managed to avoid criminal liability. In this case, like many others, successful collection was not essential to achieving many of the desired effects of the civil action.
Similarly, the successful collection of a defendant’s assets is not the only motivation for bringing a civil action against a terror sponsor. Accordingly, the issue of “collectability” must not be the determining factor in the consideration of the proposed legislation. For while the collection of damages awards is an important component of the bill’s utility for assisting victims and deterring terrorists and their sponsors, the bill has many other benefits. Even when collection is difficult or not possible, the civil process still has immense value for the victims, the justice system and society as a whole. It provides effective deterrence and a sense of justice for victims by publicly identifying and exposing terror sponsors. It also holds terror sponsors civilly accountable and blocks their access to Canada’s financial system, utilizing the discovery process to unravel the illegal sponsorships that terror sponsors so desperately try to obscure. The civil process
additionally establishes as a matter of public record the victimization of the plaintiffs by the defendants and society’s revulsion for terrorist conduct.
Civil suits also provide another benefit – one that a criminal proceeding does not. Regardless of whether collection is successful, they provide a real voice for victims and their families in the legal system. Criminal proceedings are brought by the Crown, not by the victim. Victims and their families have little or no control over how criminal proceedings are managed. In contrast, victims and their families are the plaintiffs in civil suits; they are responsible for initiating the process and deciding how to proceed.
Canadian terror victims, who have suffered from some of the most heinous acts of violence, must be granted the same opportunity as other victims of crime to have their voices heard in a civil court. If the government is unwilling to create a compensation fund for victims like the U.S., France and Israel have done, and has been unwilling or unable to distribute seized terror-related assets to terror victims as suggested by the law,[xxiv] then at the very least, the government should provide the victims themselves with the option of pursuing justice and compensation in a civil proceeding.
The terror victims who have been at the forefront of advocating for this legislation have been clear that the “collectability” of damages awards should not be a determining factor in Canada’s adoption of the legislation. “Collectability” is not a governmental concern, but a factor that will be considered by plaintiffs and their counsel before initiating a suit – just as in any other civil suit. Each case will invariably be unique. In some cases, there will be significant assets to pursue, along with a good chance of collection.
In other cases, a lack of accessible assets will preclude further action, while in yet other cases, the availability of assets will be inconsequential.
The arbitration clause only applies where a victim wants to sue a foreign state when the terrorist attack occurred on the soil of that foreign state. It is unlikely that this clause will be used often, as it is rare for a foreign state to launch a terrorist attack on its own soil.
Furthermore a short overview of a U.S. court’s response in 2001[xxv] indicates that terror sponsors would not be able to derail proceedings against them with this provision. In Simpson v. Socialist People’s Libyan Arab Jamahiriya the plaintiff sued Libya on the grounds that she and her husband had been taken hostage and tortured by Libya after being forcibly removed from a cruiser, and had been detained for several months. Libya argued that (i) the plaintiff failed to make a timely offer to arbitrate as the offer was not made prior to or concurrent with the filing of her complaint, and (ii) when the plaintiff
finally offered to arbitrate, the offer was not reasonable. Libya further claimed that these failures deprived the court of subject-matter jurisdiction.
Libya interpreted the language of the statute to mean that offering to arbitrate is a “condition precedent to the filing of a complaint”. However, Libya failed to provide any case-law to support this argument. The court pointed out that the statute does not specify the time at which the offer must be made. Thus, the court determined that the relevant question was “not whether the plaintiff offered to arbitrate prior to or concurrent with the filing of her complaint, but whether the plaintiff has afforded the defendant a reasonable opportunity to arbitrate.” The court held that the plaintiff did indeed afford Libya a reasonable opportunity to arbitrate. The plaintiff filed her complaint pro se on July 21, 2000. Libya filed a return of service affidavit on March 27, 2001. The plaintiff mailed her offer to arbitrate to Libya on April 19, 2001, which Libya received five days later. This was almost two months before Libya filed the motion to dismiss. The court stated that “from late April 2001 to the present, Libya has had the opportunity to contemplate and respond to the plaintiff’s proposal for arbitration. Libya has not responded to the plaintiff’s offer, however, and this court will not postpone the adjudication of this case indefinitely.” The court determined that with regard to the defendant’s timing argument, the plaintiff provided Libya with a reasonable opportunity to arbitrate.
Libya also asserted that the plaintiff’s offer to arbitrate was unreasonable because it included the condition that the plaintiff remains in the United States. Insofar as Libyan government officials were not permitted in the United States and would therefore be unable to participate in arbitration in the country, Libya argued that the offer was unreasonable. The plaintiff pointed out that “arbitration agents can negotiate for principles, travel, and communicate with other parties or agents by the phone.” In her arbitration offer, the plaintiff required that “the arbitration…be conducted by a third-party organization with extensive experience in arbitrating international disputes.” Although the plaintiff refuses to leave the United States, she did not demand that Libyan officials enter the United States. The court held that “it is reasonable to infer from the plaintiff’s required for an experienced international arbitrator that the plaintiff planned to proceed ‘in accordance with accepted international rules of arbitration’.” The court qualified its decision by granting Libya the ability to
present the court with evidence as to why it has delayed responding to the plaintiff’s offer, any compromises it has attempted to reach with the plaintiff regarding her geographical requirements, and why this court should stay the case until Libya communicates with the plaintiff about her offer.
The lessons which flow from this case suggest that adding in a comparable clause to the proposed amendments to the State Immunity Act would not unduly hinder the process of successfully suing states which sponsor listed terrorist entities. First, it appears that while the arbitration clause can delay the adjudication of a case, the courts are not prepared to
wait indefinitely for the defendant to respond. Two months was deemed sufficient time for the defendant to reply. Second, in terms of the content of an offer to arbitrate, the offer that the arbitration be conducted by an experienced third-party arbitrator was held to be acceptable. Furthermore, the parties are not required to leave their respective countries. Third, the offer to arbitrate need not be made prior to or concurrent with the filing of the complaint.
12. Is there precedent for creating a bill that is retroactive and extends the limitations period for commencing a civil suit?
Yes. Consider Ontario Bill 155, Tobacco Damages and Health Care Costs Recovery Act, 2009:
Limitation Periods
6. (1) No action that is commenced within two years after the coming into force of this section by,
(a) the Crown in right of Ontario;
(b) a person, on his or her own behalf or on behalf of a class of persons; or
(c) a person entitled to bring an action under section 61 (right of dependants to sue in tort) of the Family Law Act, for damages, or the cost of health care benefits, alleged to have been caused or contributed to by a tobacco related wrong, is barred under the Limitations Act, 2002 or any other Act.
(2) Any action described in subsection (1) for damages alleged to have been caused or contributed to by a tobacco related wrong is revived, if the action was dismissed before the coming into force of this section merely because it was held by a court to be barred or extinguished by the Limitations Act, 2002 or any other Act.
Retroactive Effect
10. When brought into force under section 13, a provision of this Act has the retroactive effect necessary to give the provision full effect for all purposes including allowing an action to be brought under subsection 2 (1) arising from a tobacco related wrong, whenever the tobacco related wrong occurred.
13. Why is the legislation retrospective to January 1, 1985?
The terms “retrospectivity” and “retroactivity” are often – but incorrectly – used interchangeably. Itis C-CAT’s view that the legislation is retrospective rather than retroactive because it imposes liability for past events but does not change the law as of the time that those events occurred. Even if the legislation were retroactive, however, the following arguments would still apply.
From a legal standpoint, the legislature may enact retroactive and retrospective legislation provided that its intent to do so is expressed clearly in the language of the law.[14] The legislation we are dealing with here contains such express language, and is therefore valid.
From a policy perspective, retrospectivity is crucial if the legislation is to achieve its intended goals. One such goal is to hold wrongdoers accountable even where the criminal justice system has failed. Without retrospectivity, those responsible for the long litany of terror attacks that occurred prior to the passage of the bill would be granted immunity. It is clearly 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 is also critical to fulfilling the deterrence objective of the legislation. The civil remedy must apply to past terrorist activity in order to make previous and potential wrongdoers think twice about future involvement in terrorist activity. To do otherwise would create a “deterrence vacuum”. As noted earlier, the criminal justice system has limited capacity to convict in these cases, and if the legislation were not retrospective the civil litigation process would be limited by the date of Royal Assent. This means that neither process would be able to hold terror sponsors accountable and achieve any meaningful level of deterrence. 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 be a mistake for Canada to enact legislation that would exclude its largest body of victims – the Air India families. Such a decision would add further hurt to a large Canadian constituency that has already endured too much additional and unnecessary pain over
the last 25 years. This would be the latest chapter in a long series of traumatic events in the aftermath of the bombing, including: a general lack of adequate government response to the families of Air India victims after the attack; the failure to obtain criminal convictions against the perpetrators of the attack; the 18-year delay in listing Babbar Khalsa as a terrorist group in Canada despite its apparent involvement in the attack; and the 21-year delay in establishing a commission of inquiry to examine alleged governmental failures.
If there are still concerns about the bill’s retrospectivity, then it should be decided by the courts themselves. A court ruling that the legislation cannot be utilized retrospectively is very different – and less hurtful to the affected victims – than a pre-emptive parliamentary decision to that effect.
14. Why is the comity clause important?
The importance of comity was analyzed in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 [Morguard], in which La Forest J. explained that modern states do not live in isolation and must give effect to foreign judgments in appropriate circumstances. Moreover, the doctrine must be permitted to evolve “in the light of a changing world order.” Building on this idea, Major J. wrote in Beals v. Saldanha [2003] 3 SCR 416 [Beals] that “…the reality of international commerce and movement of people continue to be ‘directly relevant to determining the appropriate response of private international law to particular issues, such as the enforcement of monetary judgments.”
The unique phenomenon of terrorism, that has already been recognized by Canadian courts, must also be taken into account. Terrorists, terror attacks and terrorist financing flow freely across international borders, and in order to effectively combat the threats they pose, countries such as Canada should honour and enforce foreign anti-terror judgments that can interdict or freeze terrorist assets and deter terrorist activity.
The proposed provision is consistent with United Nations Security Council Resolution 1373 (2001) – “to combat by all means … threats to international peace and security caused by terrorist acts,…to work together urgently to prevent and suppress terrorist acts … to complement international cooperation by taking additional measures to prevent and suppress …the financing and preparation of any acts of terrorism…, [to] prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens.…”
15. Are there limitations on enforcing a foreign judgment?
Yes. The comity provision does not require a Canadian court to enforce the judgment of a foreign court. Rather, enforcement is only permitted if certain conditions are met. The term “full faith and credit” was employed by La Forest J. in Morguard in the context of interprovincial reciprocity, and means that enforcement should only occur if the original court had “properly, or appropriately, exercised jurisdiction in the action.” In Beals, Major J. decided that the discussion is “equally applicable to judgments made by courts outside Canada.”
Expanding on the issue of comity, Major J. held that while foreign judgments from similar legal systems are generally enforceable in Canada, the enforcing court must first determine whether the foreign court had a real and substantial connection to the action or the parties. The presence of the traditional indicia of jurisdiction (attornment, agreement to submit, residence and presence in the foreign jurisdiction) will help demonstrate this real and substantial connection. If a foreign court did not properly take jurisdiction, a Canadian court will not enforce the judgment. Even if the real and substantial connection is established, the defendant is still entitled to rely on common law defences such as:
(a) Defence of Fraud – Fraud going to jurisdiction can always be raised in a Canadian court, while fraud going to the merits of a foreign judgment can only be raised if the defendant is able to alert the enforcing court to “new and material facts” which “could not have been discovered by the exercise of due diligence prior to the obtaining of the foreign judgment”. If a defendant can successfully prove the existence of either type of fraud, the Canadian court will not recognize and enforce the foreign judgment.
(b) Defence of Natural Justice – A Canadian court can also refuse enforcement if the defendant proves that “the foreign proceedings were contrary to Canadian notions of fundamental justice.” A critical aspect of fundamental justice is the granting of fair process, which includes procedural safeguards including judicial independence and fair ethical rules governing the participants in the judicial system.” The review of the form of the foreign procedure may be difficult, but Major J. deems it mandatory. If the procedure does not accord with Canada’s notion of natural justice, a Canadian court must not enforce the foreign judgment.
(c) Defence of Public Policy – A defendant who successfully argues that the foreign judgment was founded on laws which are contrary to the Canadian concepts of justice and basic morality can convince a Canadian court to refuse enforcement. The public policy defence also prevents the enforcement of a judgment rendered by a foreign court which is corrupt or biased. The defence has a narrow application, and “is not meant to bar enforcement of a judgment rendered by a
foreign court with a real and substantial connection to the cause of action for the sole reason that the claim in that foreign jurisdiction would not yield comparable damages in Canada.” Rather, the defence can only be used to prevent an injustice that would offend the Canadian sense of morality.
(d) Forum Non Conveniens –The court has the discretion to dismiss or (more commonly) to stay conditionally proceedings if it determines that, although it has jurisdiction to decide the dispute, there is “some other forum more convenient and appropriate for the pursuit of the action and for securing the ends of justice.”[xxvi] The doctrine of forum non conveniens refers to the analysis whereby the court before which proceedings have been instituted determines which court is the more convenient forum for adjudicating the dispute. The factors to be applied when considering the doctrine of forum non conveniens were listed by Justice Dillon in Procon Mining & Tunnelling Ltd. v. Waddy Lake Resources Ltd (2002), 16 CPC (5th) 30 (BCSC):
The factors to consider within forum conveniens include: where each party resides, where each party carries on business, where the cause of action arose, where the loss or damage occurred, any juridical advantage to the plaintiff in this jurisdiction, any juridical disadvantage to the defendant in this jurisdiction, convenience or inconvenience to any witnesses, cost of conducting the litigation in this province, applicable substantive law and whether or not there are parallel proceedings in another jurisdiction… This is not an arithmetic calculation but a balancing function in the exercise of discretion.
This doctrine would considerably limit the number and types of lawsuits that would be adjudicated by Canadian courts. The domestic forum is deemed forum conveniens only when a court concludes that there is no other more suitable forum.
(f) Res Judicata – A court will not grant jurisdiction to a claimant if the same question has already been heard in a foreign court.
16. Will the legislation trigger a rash of frivolous suits?
C-CAT does not anticipate a rash of frivolous suits under the JVTA. The focus of the JVTA is very narrow, applying only to the special case of terrorism, not to other types of violations committed by state entities. Furthermore, the costs of civil lawsuits can be
considerable – and there is a “loser pays” system in Canada, meaning that plaintiffs in an unsuccessful claim (even if it is not frivolous) can be liable for 40 to 100% of the defendant’s legal fees. Plaintiffs will consider their options carefully before initiating proceedings that could incur such significant and unnecessary costs.
It should also be noted that there has been no flood of vexatious suits against states for matters relating to commercial activity or for death or injury to body or property
occurring in Canada, which was already possible under its state immunity laws. Similarly, nothing in Canadian law prevented such civil suits against local entities prior to the passage of the JVTA (the JVTA simply clarified and strengthened the process for doing so).
The JVTA also contains numerous mechanisms, reviewed below, that will provide ample protection against reckless use of litigation:
a. Narrow Application – Suits can only be launched against listed “state sponsors of terror”. Cabinet decides, according to a specific formula, which states should be listed as such. The listed
state can only be sued if for the benefit of or otherwise in relation to the listed entity, it 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.
b. Intent – The JVTA creates a civil cause of action based on conduct contrary to the Criminal Code. As per ordinary standards under the Code, mens rea is necessary. Thus, a plaintiff would need to show that a defendant (whether a foreign state, a local organization, or individual) committed the act “knowingly” or with intent.
c. Pre-trial Obstacles – The JVTA arbitration provision allows the court to refuse to hear a claim against a foreign state if the loss or damage to the plaintiff occurred in the foreign state and the plaintiff has not given the foreign state a reasonable opportunity to submit the dispute to arbitration in accordance with accepted international rules of arbitration.
d. Limited Jurisdiction – A court may hear the case only if the action has a real and substantial connection to Canada (the jurisdiction simpliciter test)[xxvii] or the plaintiff is a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act. 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.[xxviii]
Footnotes
[i] http://www.un.org/apps/sg/offthecuff.asp?nid=1200
[ii] http://www.un.org/apps/news/story.asp?NewsID=27983&Cr=terror&Cr1#
[iii] Arrest Warrant Case, International Court of Justice (14 February 2002), Concurrence of Judges Higgins, Kooijmans and Buergenthal at para. 72
[iv] Trendtex v. Central Bank of Nigeria, [1977] 2 W.L.R. 356 at 364 (C.A.)
[vi] Sheryl Saperia, The Justice for Victims of Terrorism Act, P. 135.
[vii] Reference re Securities Act, [2011] SCC 66.
[viii] Ontario (Attorney General) v. OPSEU, [1987] 2 SCR 2, para. 27.
[ix] Peter W. Hogg, Constitutional Law of Canada 5th ed. (Toronto: Thomson Carswell, 2006),
§15.5(a).
[x] [1989] 1 SCR 641.
[xi] R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401, para. 33
[xii] Ibid.
[xiii] Ibid., para. 35.
[xiv] Ziad K. Abdelnour, “The Lebanese-Canadian Crisis,” Middle East Intelligence Bulletin,
Jan. 2003.
[xv] R. v. Khawaja, 2010 ONCA 862, para. 24.
[xvi] R. v. Amara, [2010] O.J. No.181, [2010] ONSC 441. In the ruling, Judge Durno stated that plot had “the potential for loss of life on a scale never before seen in Canada,” and that “there can be no legitimate suggestion that this was not the real thing.” “The “Toronto 18” had ordered 6600 pounds of ammonium nitrate fertilizer – more than three times the amount used in the Oklahoma bombings — for use in truck bombs in front of Canada’s main stock exchange and two government buildings. The plan also included attacks on Parliament and beheading the Prime Minister.
[xvii]Marc Thiessan. “Watch out for Al Qaeda.” LA Times 15 February 2009 http://articles.latimes.com/2009/feb/15/opinion/oe-thiessen15
[xviii] James J.F. Forest. Homeland Security, Protecting America’s Targets, Volume III: Critical Infrastructure. (Greenwood Publishing, 2006), 47.
[xix] James J.F. Forest. Homeland Security, Protecting America’s Targets, Volume II: Public Spaces and SocialInstitutions. (Greenwood Publishing, 2006), 42
[xx] Words of Ayman al-Zawahiri, Vol. I. (Alexandria: Tempest Publishing, 2008), 14.
[xxi] Dan Verton. “Experts: Don’t Dismiss Cyberattack Warning,” Computerworld, November 18, 2002,www.computerworld.com/…/Experts_Don_t_dismiss_cyberattack_warning?
[xxii] For example, a New Hampshire intellectual property attorney, William B. Ritchie, challenged the validity of Simpson’s trademarks under a federal statute that bars immoral, deceptive, or scandalous subject matter. Ritchie argued that because of the whole sequence of events from 1994 through 1997, Simpson’s very name had become immoral and scandalous and thus could not be protected as a trademark. Ritchie convinced the Court of Appeals for the Federal Circuit that he had standing to challenge Simpson’s trademarks under the Lanham Act. Simpson has since abandoned his trademarks. More recently, on March 13, 2007, a judge prevented Simpson from receiving any further compensation from a cancelled book deal and TV interview. He ordered the bundled book rights to be auctioned. It was also reported that Simpson’s Heisman Trophy was seized as an asset to pay the judgment.
[xxiii] California law protects pensions from being used to satisfy judgments, so Simpson was able to continue much of his lifestyle based on his NFL pension. He subsequently moved from California to Miami, Florida. In Florida, a person’s residence cannot be seized to collect a debt under most circumstances.
[xxiv] Criminal Code, section 83.14(5.1)
[xxv] http://www.leagle.com/xmlResult.aspx?xmldoc=2001258180FSupp2d78_1247.xml&docbase=CSLWAR2-1986-2006
[xxvi] Antares Shipping v. The Ship Capricorn, SCC
[xxvii] In Bouzari v. Iran, (2004), 71 O.R. (3d) 675 [Bouzari], the Court of Appeal for Ontario was asked to decide whether Houshang Bouzari, a citizen of Iran, could sue Iran in an Ontario court for the damages he suffered from being abducted, imprisoned and tortured by agents of the Islamic Republic of Iran. In that case, Goudge J.A. confirmed that the “test for determining whether the Ontario court should take jurisdiction over an action like this” involved the real and substantial connection test and the forum conveniens test.
[xxviii] It is very unlikely that a Canadian court would assert jurisdiction over the case merely because there is no other forum for a plaintiff to bring the case. For instance, in Deuruneft Deutsche-Russische Mineralol Handelsgesellschaft MBH v. Bullen, 2003 ABQB 743, McMahon J. held that:
…the Respondents forcefully argue that this court should consider the potentiality that there may be no other forum within which they may bring their claims. I agree with the Court in Jordan that this is not a factor that ties the Respondents’ cause of action to this jurisdiction. Accordingly, it is a factor that is more appropriately considered in the forum conveniensanalysis once the issue of jurisdiction is determined. I would note that the Respondents concede that if there is no real and substantial connection between the forum and the Counterclaim otherwise, the possibility that there may be no other forum does not provide one.
It appears, therefore, that a Canadian court will refuse jurisdiction when there is no real and substantial connection to Canada, even in the absence of any other available forum for the plaintiff to bring the claim.