The JVTA: Selected Parliamentary Testimony
C-CAT Testimony before the Senate Committee on Legal and Constitutional Affairs
February 20, 2012
Sheryl Saperia — C-CAT Advisor
Honourable Senators … in C-CAT’s last committee appearance before C-10 is voted on — I would like to offer a big picture perspective on what you – as Canadian parliamentarians — would be accomplishing by turning the JVTA into law. …
Civil suits have the potential to financially impair the terrorist infrastructure through successful court judgments. And even the possibility of being named in a civil suit may deter potential sponsors, who rely on anonymity, from supplying funds. In turn, a terrorist group will have trouble recruiting and training its members, purchasing weapons, and launching attacks if it or its sponsors have been forced to spend their money paying out damages awards. The JVTA, demanding the lower civil burden of proof, can hold terror sponsors accountable even when the criminal justice system has been unable to do so. Civil suits can also garner the attention of government regulators to illegal conduct that they had not detected themselves. For example, lawsuits filed in 2004 against the Jordan-based Arab Bank for allegedly distributing compensation money to families of terrorist suicide bombers, triggered a probe by US bank regulators and a Justice Department criminal investigation.
Lawsuits can additionally deprive terrorists of a key promotional asset. Jason McCue, a lawyer for the Omagh family members in their civil action against the Real IRA in Northern Ireland, has pointed out that conventional state counterterrorism measures can be manipulated into David vs. Goliath propaganda victories that advance the terrorists’ agenda. A civil suit, however, deprives terrorists of this opportunity. Terrorists cannot portray themselves as victims, when parents who have lost their children in a terrorist attack take the stand in court.
Perhaps most notably, the JVTA will end the impunity enjoyed by state sponsors of terror. As Dr. Peter Leitner, a noted counterterrorism expert, has pointed out,
There is something fundamentally absurd with the current legal arrangement in Canada that allows lawsuits against Iran [for a commercial breach – like] selling you rotten pistachios, but bars legal action against them for sponsoring terrorist acts which kill Canadian citizens abroad.
Lastly, passage of the legislation should help facilitate the execution of suits against local terror sponsors and perpetrators. The JVTA carves out a specific cause of action, rather than relying on general tort principles. The bill’s retrospectivity and limitation period will also be helpful to existing terror victims in filing claims against their local wrongdoers.
I conclude by quoting a passage from an email written by a Canadian recently convicted of terrorism offences:
…. [w]e have to come up with a way that we can drain their economy of all its resources, cripple their industries, and bankrupt their systems… Imagine if there were 10 Sept 11’s, wouldn’t that accurately bring America down, never to rise again? Yes, I understand that innocent human beings died, but there is absolutely no other way of achieving the same objective with the same effect.
The JVTA turns these malicious ideas on their head by attempting to cut off the terror economy in order to save, rather than wreak havoc on, innocent lives. Moreover, victims take their fight to a court of law, without advocating for violence. Senators, by providing a civil remedy for the contravention of terrorism-related criminal laws, private citizens are poised to strengthen Canada’s efforts in confronting terrorism and terror financing.
Testimony from Committee Hearings for Bill S-7 (a precursor to the JVTA) before the Special Senate Committee on Anti-terrorism
July 5, 2010
Aaron Blumenfeld, C-CAT Legal Counsel
The Chair: … We are pleased to have witnesses from the Canadian Coalition Against Terror with us. C-CAT is a strong citizen advocacy group that has been working on this issue. C-CAT is a non-profit organization and was active in support of a prior iteration of this bill, which was considered by a prior Parliament.… Please proceed with your opening statement, Mr. Blumenfeld.
Aaron Blumenfeld, Counsel, Canadian Coalition Against Terror: …I have practiced commercial litigation since 1993 with Borden Ladner Gervais LLP in Toronto, and I will bring some of that experience to bear in my remark….
The bill’s conceptual framework starts with the underlying principle that money is the lifeblood of terrorism, and, therefore, the sponsorship of terrorism is an integral component of the terrorist economy, which has an annual turnover of many billions of dollars.
The money spent on terrorist attacks is just the tip of the iceberg of the terrorist economy. Many
terrorist groups spend the vast majority of their money and resources on winning over the hearts and minds of people by funding hospitals, employment programs and, of course, schools, where they teach their political and religious ideologies.
Osama bin Laden, for example, spent hundreds of millions of dollars on infrastructure and regime support in Afghanistan and the Sudan, including building a highway from Khartoum to the Red Sea. He did this to ingratiate himself with the local populace and leadership, which gave him safe haven while he planned attacks elsewhere. He had a network of financiers who transferred money to his organization through charities and non-governmental organizations, NGOs, to pay for this. Without a sanctuary from which to organize and recruit, al Qaeda could not have launched its attacks.
Bill S-7 uses the definition of listed terrorist entity found in sections 83.01 and 83.05 of the Criminal Code. There are currently 43 such listed entities, and many operate in ways similar to al Qaeda.
In some cases, terrorist groups funded by certain states gradually take power in parts of other states. Such state sponsorship of terrorism is fundamentally an attack on another nation’s sovereignty, which has legal implications, as we will come to.
Thus, terror financing is inseparable from and essential to the terrorism itself. Therefore, if you can cut off the money supply, the terrorist groups will wither away, and Bill S-7 aims to do that in Canada.
…The premise for this bill is that state immunity is founded on a universal respect for the international community of states and the rule of law but that terrorist attacks are actions against the integrity of the international public order, in effect an attack on all states, because they undermine that order. Thus, terror sponsorship is an attack on society as a whole that transcends the impact on the immediate victims. Therefore, a foreign state does not deserve immunity when it sponsors terrorism.
As you know, and as the previous witness indicated, the law recognizes that state immunity is not absolute. There are several exceptions in clauses 4 to 8 of the bill, such as the right to sue foreign states in Canadian courts for breach of contract and personal injury in Canada. Such claims against foreign states routinely come before our courts, and they generally do not even make the news, and any state can be sued.
If states are not immune from suit in their commercial undertakings, it does not make sense that they should be immune for sponsoring terrorism. In summary, Bill S-7 is a necessary and modest exception to state immunity to address the new realities of the 21st century….
We are particularly concerned about terrorism sponsorship. It is difficult to obtain a criminal conviction because of the mens rea requirement and because sponsors abroad are typically not pursued criminally. While the Financial Transactions and Reports Analysis Centre of Canada, FINTRAC, reports hundreds of millions of dollars a year in suspected terrorist financing in CanAda, there have only been two successful prosecutions for terror financing here.
Civil claims have advantages over criminal charges in these cases. Apart from the lower burden of proof, in criminal cases you cannot compel the accused to testify or turn over information because of the right against self-incrimination. You can do this in civil suits, however. In contrast to the dearth of criminal convictions against terror financiers, expert witnesses in many U.S. civil cases have successfully demonstrated the flow of funds from states to terrorist groups, and terror sponsors have been found liable for their actions. Further, in civil claims, the victim and her narrative is an essential part of the process as a party.
The colossal costs and high stakes of criminal trials can discredit the government and counterterrorism efforts if they fail, such as with the Air India bombing trial. Civil cases are at the very least an effective complement to this.
We have distributed some materials…. One of them is an article from The New York Times on Ron Motley, the lead plaintiffs’ lawyer in the 9/11 litigation in the U.S. He describes some of the creative methods he has used to gather evidence around the globe on the sponsorship of al Qaeda – evidence the FBI did not get.
Lest you wonder whether civil terrorism suits are effective, Mr. Motley was so committed that he spent $12 million in the first two years investigating the case. Before that, he was the lead lawyer, representing 25 states, who secured a $246 billion settlement with Big Tobacco. He is a leading American lawyer.
There are good reasons why leading American lawyer are suing and exposing terrorist sponsors: the litigation is powerful, and they have been successful.
…By way of other examples, according to the Congressional Research Service, U.S. terror victims received $97 million from blocked Cuban assets; $377 million from an Iranian foreign military sales account; and over $90 million from Iraqi government assets, all held by the U.S. government.
The amount collected by plaintiffs’ lawyers, other than from foreign assets held by the government, is unknown. We have a couple of examples of that, but plaintiffs’ lawyers typically keep this information guarded because if one discovers, for example, an Iranian asset that may be in a different name in one court district, any publicity may result in that being shared with other judgment holders.
In 2008, the United States Congress passed amendments that will make collection easier. Among other things, the Justice for Victims of Terrorism Act makes it easier to pursue banks associated with terror sponsors; enables victims to collect on state sponsors’ hidden commercial assets if a sufficient connection to the country is established; and creates an automatic lien when the claim is started over any real or tangible property in the control of the defendant state in the judicial district. It is quite strong.
A few months after this legislation was passed, the victims of the 1983 bombing of the U.S. marine barracks in Lebanon, which killed 241 servicemen, tied up $2 billion in a clearing house account called Clearstream, which was held with Citibank in New York. The U.S. Department of the Treasury, with court permission, provided information to the plaintiffs that linked the money to Iran, which the court had earlier found sponsored the attack. This court file is under seal and almost no information is publicly available, but in your package you will find an article from late last year in The Wall Street Journal entitled “U.S. Freezes $2 Billion in Iran Case,” which describes this.
You may wonder why Iran would be transferring $2 billion through the U.S., assuming that it is Iranian money, which, as far as I know, has not been found by a court at this point. If you want to exchange U.S. dollars into another currency, you must generally go through the large clearing houses in the U.S. It is not easy to operate in global markets without the ability to trade in U.S. dollars.
Imagine the impact that this approach could have if it were exported to other major currencies, for example, the Canadian dollar, the euro, the British pound, and so on.
Finally, we have distributed one other letter from the head of the Israel Law Center, which specializes in this type of litigation. That one firm placed $600 million in liens on terrorist assets or state assets and collected $72 million for victims of terror. They reference a case last week in which the New York State Court of Appeals affirmed an award to terror victims of a New York property owned by an Iranian bank….
Sheryl Saperia, C-CAT Senior Advisor
…In my remaining time, I wish to briefly address some issues that have been raised and that may require clarification….
[The Arbitration Clause] [S]ome discussion has taken place about the arbitration clause, especially by Senator Furey, which is in clause 4(4) of the bill and which requires the victim to pursue arbitration with the foreign state before being able to sue. I would like to clarify once again that this 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. Therefore, I would not worry about this provision.
[Impact on Foreign Relations] Lastly, I would like to address the question of the bill’s impact on our foreign relations.
First, Canada’s key allies will not be subject to this legislation because, simply put, the listing process precludes such an eventuality. Second, the legislation represents a modest addition to a whole series of measures already enacted by Canada since 9/11. Similar to other countries, Canada has passed tough and controversial anti-terror legislation, revisited immigration policies and banned terrorist organizations. We even went to war in Afghanistan. All of these measures were pursued despite risk to our foreign policy. This shift reflects the recognition that terrorism represents a unique transnational threat requiring unique responses….
Third, the depth of Canada’s standing in the international arena will not be undermined by allowing for litigation that leading Canadian lawyers have confirmed is only actionable in carefully defined cases of clear-cut and egregious state sponsorship of terror. Fourth, fear of retaliation, whether through violence or reciprocal lawsuits, as Senator Wallin mentioned earlier, cannot be Canada’s sole guiding principle of diplomacy. As John Norton Moore, a professor of law at the University of Virginia and the director of the Center for National Security Law, has explained, the retaliation argument does not recognize the responsive nature of the context. He says that it is bizarre to worry about a few terrorist nations allegedly proceeding against our assets in a setting where they are willing to kill and torture us and to participate broadly against us to harm us in every way possible. The real issue, as with any defensive response, is whether we should be effectively fighting back using the tools at our disposal. Senators, I have spoken to you as advocate for the victims, who have been the driving force behind this effort. As I mentioned earlier, this is the tenth time that a bill of this sort has been introduced. There is a growing urgency amongst the victims and the communities that have supported them. As one Air India victim pointed out recently, victims are dying waiting for this bill to be passed….
The Chair: …Colleagues, we have some time for questions…
Senator Furey: …Ms. Saperia, thank you for pointing out that issue with respect to the arbitration clause. If it has to be used at all, which would certainly be in unusual circumstances, if we leave it in there, are we not creating two classes of plaintiffs? Because of a certain quirk of circumstances, we are requiring one set of plaintiffs, if it is used, to go through what I consider to be a laborious and expensive process. If you agree, do you think it would diminish the act in any way if we were to remove it?
Ms. Saperia: I personally am not married to this provision. If you, as a group, decide that this provision ought not to be there, I do not believe that removing it will be overly detrimental to the bill. I very much appreciate your concern, which is for the victims. You do not want an extra obstacle that a foreign state can take advantage of to cause a delay.
I like that this wording strongly suggests only that the plaintiff give the foreign state a reasonable opportunity to submit the dispute to arbitration. That does not mean that the arbitration procedure must be completed; it means that there must be a reasonable attempt to submit it. I hope that a court would look at the context of the situation so that if there had been a reasonable attempt and the foreign state was not responding, the court would accept the case to be heard there.
Victor D. Comras, Former UN Diplomat
and Terror Financing Expert
Victor Comras has served as a member of the UN Security Council’s Panel of Experts on North Korea sanctions. He is a renowned expert on sanctions and terror financing who served under appointment by Secretary General Kofi Annan, as one of five international monitors to oversee the implementation of Security Council measures against terrorism. He is a recipient of 10 Superior and Meritorious Honor Awards from the United States Department of State and the President’s Medal of Honor.
Senator Furey: Mr. Comras, it is quite obvious from your presentation and your resumé that you have been very heavily involved in the issue of terrorist financing. I find one issue in particular troublesome, bothersome and quite puzzling. Doing a bit of Monday morning quarterbacking, if we look back at the 9/11 event, the London bombings and even the Toronto 18, we see that all the financing for the participants was through small amounts of money. For example, the terrorist Hani Hanjour who was involved in 9/11 received a number of wire transfers over four or five months in 1998, all under $2,500. He paid cash for pilot training in $200 allotments and things of that nature. The situation was much the same for some of the other terrorists involved.
Given these small numbers, what can we do to improve the terrorist financing legislation that we have in place in Canada, with which you are familiar? I am not sure that anything we have in place will catch the frontline terrorists when they are dealing with numbers that small.
Mr. Comras: You are quite right that the cost of launching a terrorist attack itself can be very minor. The cost of creating, maintaining, soliciting, recruiting and indoctrinating is considerably higher. The terrorism budget for any terrorist organization usually runs into the millions of dollars. Terrorism is big business, even if the last part, the cost of the attack itself, might be quite minor.
Cutting off the funds that create the foundation for terrorists is essential. That can be done, I think, by getting at material support and inhibiting those who would provide such material support to terrorist organizations, which actively seek to raise the considerable funds needed through every means possible.
Since the funds used for attacks are small, the best we can do is to identify them and use them as an investigative tool. We need to follow the money to the cell before it is able to use the small amounts of money to do what it means to do. We are becoming increasingly effective at that. Cutting off the financial support for terrorism cuts off the indoctrination, recruitment, maintenance and training of terrorists….
Selected Testimony Regarding S-7 from Committee Hearings “on matters relating to anti-terrorism” before the Special Senate Committee on Anti-terrorism
June 21, 2010
Prof. Tom Quiggin, Terrorism Expert
The Chair: …Professor Tom Quiggin spent 15 years in the Armed Forces, including five years on the operational side and 10 years in the intelligence branch. This has included service to the Crown on the ground during the war in Bosnia and Croatia, as well as work in Russia, Belarus, Poland, Ukraine, Albania and many other countries. He has worked in an intelligence capacity for a number of government organizations, including the Privy Council Office, Citizenship and Immigration Canada, War Crimes Intelligence, Canada Border Services Agency, the Canada Revenue Agency, and the Department of Justice Canada. He has worked for the International War Crimes Tribunal for the former Yugoslavia and did intelligence and evidence training for the defence lawyers who were part of the Guantanamo Bay Military Commission….
Tom Quiggin: … Senator Segal mentioned at the start that Bill S‑7 has received second reading and is now at committee stage. This is the bill that was sponsored by C‑CAT, the Canadian Coalition Against Terror. It is a brilliant and relentlessly pragmatic idea because within terrorist groups there are three groups of people. There are the terrorists themselves. These are the people who plan the attacks and make and plant the bombs. The second ring around that are the supporters. These are financial and logistics people, members of the community who will provide safe houses, tickets, et cetera. There is a third loose ring of people around that who are willing to throw them a few dollars and turn a blind eye.
It is extremely difficult to deter terrorists themselves through legislative authority because they are committed to a cause, they tend to be true believers, and they tend to believe they are above or beyond the law anyway. However, most critical is that the second ring of people are members of the community who have investments, businesses and positions in the community, and they do not like to be in the public limelight. They do not have the courage to actually get involved in terrorist activities, so they tend to stay in the backrooms. Bill S‑7, if enacted the way it is, would shine a bright light on those people, and those people do not want to be publicly exposed. In my view as an ex‑military person and one who has worked in law enforcement and analysis, I would say that Bill S‑7 would have a very strong deterrent effect on those people who are enabling terrorism. In other words, cut off the money, cut off the support and it becomes very difficult to be a terrorist.
In closing, it is unfortunate that we did not have a bill like Bill S‑7 in 1984. Had we, the whole Air India situation and the fallout of it would look much different than it does today. In other words, following the Air India bombing, 9/11, and a series of other attacks, this bill would have been an extremely useful civil litigation tool to go after, not the terrorists, but the people who make terrorism possible through funding support….
Selected Testimony from Committee Hearings for Bill S-225 (a precursor to the JVTA) before the Senate Standing Committee on Legal and Constitutional Affairs
June 18, 2008
Victor Comras, Former UN Diplomat
Victor Comras has served as a member of the UN Security Council’s Panel of Experts on North Korea sanctions. He is a renowned expert on sanctions and terror financing who served under appointment by Secretary General Kofi Annan, as one of five international monitors to oversee the implementation of Security Council measures against terrorism. He is a recipient of 10 Superior and Meritorious Honor Awards from the United States Department of State and the President’s Medal of Honor.
(i) [On the efficacy of existing measures for combating terror financing]
Victor Comras: …[W]e are falling short in this task. It is true that there are many rules 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…as supporting terrorism. Yet, in actual fact, few steps have been taken to put these entities out of business…. [M]any continue today to run their businesses, lead their charities and carry out their financial transactions.
(ii) [On the efficacy of the criminal justice system in prosecuting terror financing crimes]
Victor Comras: …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. We had to drop 46 cases for lack of sufficient evidence. Why? 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…. I do not cite these statistics as criticism but, rather, as an indication of the sheer difficulty… in establishing beyond a reasonable doubt the knowledge and subjective intent of those shielding their terrorism financing activities under the guise of charitable giving…. The message to the terrorists and to their funders is clear: The road is open and the risks are few.
(iii) [On the efficacy of civil suits in stopping the funding of terror]
Victor Comras: …If I can, let me read something to you… I was really taken by this statement that comes from Jeffrey Breinholt, who heads the U.S. Department of Justice’s office that deals with terrorism cases…
…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.
Victor Comras: …As to the resources that you 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 there are committed public groups willing to get involved and that includes a broad spectrums of experts – even beyond what often is available for the governments – from think tanks in the United States and overseas, and from academic institutions. Such cases bring together some of the best expertise, and some of the most valuable insights we have today on terrorism – particularly on financing of terrorism – this comes from the briefs that have been filed in these cases, some of which are phenomenal and the information incredibly detailed and valuable.
(iv) [On whether Bill S-225 should be be amended to resemble its American predecessor that contains a list of states that can be sued]
Victor Comras: …[W]hat we did on this was a mistake. It was a putting-our-toe-in-the-water kind of thing with sovereign immunity. We were 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 we would try to limit it to those states which were specifically designated as state sponsors of terrorism by the 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 from lawsuits. 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. … 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….
…You add five and say, “Listen, I put five on there.” What you did not really mean to say is, “I kept 168 off.” …Right now the legislation appears to indicate that if the defendant country is not one of the five, they have sovereign immunity…. I do not believe that we meant to give every country a defense for their support of terrorism. We did not mean to do that…. Please learn from our lesson… do not make the same mistake.
June 21, 2008
MP Bob Rae, Liberal Foreign Affairs Critic
(i) [On supporting Bill S-225]
Bob Rae: I support the legislation and, as I see it, the legislation basically says this: If you are a Canadian businessman doing business in Columbia and you are kidnapped and then killed by FARC guerrillas, you have a right of action against whatever government you think is actually funding the guerrillas. If the families can find out who is funding them, can trace it and can take that activity through and prove in a court of law that it was, in fact, supported by a state, I do not know why we would not bring that state to justice. I do not know why we would not do it through our civil courts.
…The victims are any one of us and any one of our fellow citizens going about their daily business. Those are the victims of terrorism. They have done nothing. They are not soldiers. They are not participants in a battle. They are going to work in the morning. They are getting on a plane to see their families. They are carrying on their daily business in a marketplace. They are living their lives. They are regular people. This legislation, it seems to me, is saying that regular people have rights. If they get into a car accident, they have a right. If something else terrible happens to them, they have rights. Just because terrorism is a complicated, politically motivated event does not mean they lose their rights to a civil action. They have rights. If we can prove that we know who did it and we know who funded them, then we should be able to take them to court and hold them responsible.
(ii) [On why the pursuit of terror sponsors should not be left solely to the government]
Bob Rae: There is a diplomatic argument that is made, and I am certainly familiar with it. It says: “Mr. Rae, that is all very well and well meaning in its own way. However, that should be left to governments and states. We really cannot interfere with the Congress of Vienna rules. We have to play the game the way it is supposed to be played.” I think that, in the 21st century, we cannot restrict the rule of law in that way. We must give it the full force of real life. In that real life, citizens had their life taken away unjustly. If we can trace how that was done and discover who was responsible for doing it, then we should do it and pursue it.
(iii) [On whether Bill S-225 should be amended to resemble its American predecessor]
Bob Rae: The suggestion has been made that this legislation should follow the American legislation and should do the same thing. I take issue with that. Ironically, I want to take issue
with it because I think it is not very smart, diplomatically. It seems we should not get into the business of necessarily naming, off the top, the governments and the countries which we believe have a record of funding terrorist activity. It seems we should follow the outline which is set out in the legislation, which is to say countries with which we do not have any extradition treaties and so on; essentially, countries which are not allied to us and which do not share our system of law. It is inconceivable that other governments that are friendly to us would be doing this. There are a limited number of governments which would be doing this. I do not believe we should artificially restrict the naming of the governments doing this. The legislation proposed will do a better job of that than would otherwise be the case.
(iv) Senator Andreychuk: One of the difficulties I have is that states do not stay the same; they change…. Do you hold accountable the government of the day, which has some of the trappings of the government but already shows some positive movement? In other words, does the government of the day carry forward the legacies of those past?
Bob Rae: …[S]uccessor governments are responsible. If a corporation that pollutes is succeeded by a new administration of the corporation, the corporation is responsible. The Government of Canada, under Mr. Harper, yesterday apologized for activities that it had nothing to do with and took responsibility for them. Ultimately, that is the way it is. Insofar as you are looking where the legal responsibility lies, I do not think you can avoid it. Would a legal successor to a bad regime have responsibility? Yes. The post-1945 government of Germany paid reparations to the Government of Israel. Were there people in their government who committed bad things? No. They were taking a collective responsibility for what had taken place. I do not have any problem with that.
(v) [On the contribution of civil suits in stopping terror financing]
Bob Rae: [W]ithout citizens doing this, and without courts getting into the game, which I think needs to happen, then I do think a lot of information and evidence will be swept under the carpet. I think we will then not know what happened and how things happened and how things were allowed to happen. I do believe that one of the principles of public policy is not only that we are against terrorism but also that we believe that the financing of terrorism must be stopped and the financing of terrorism must be traced. If you do not give the citizens some right to invoke the jurisdiction of the courts to trace the financing, I do not think we will get to the bottom of the matter with respect to how certain activities have and are being financed today.
(iv) Senator Joyal: Would it be possible to apply similar reasoning and take the principle of this bill to another level so it not only binds Canada but other countries that are signatory to international conventions for the suppression of terrorism and they could join Canada in these efforts?
Bob Rae: Is this a principle that has broader application ultimately for our international public policy and should we be encouraging other governments to go in this direction? Yes. I think this is an example where Canada can be a leader, where we can say that people have to take this seriously. The one great trend in Canadian public policy that I think we can all be proud of is that we are a country that is profoundly committed to the rule of law, not only nationally but internationally. That is who we are as Canadians. As we try to extend this, I think we are doing a good thing.
(vii) Senator Joyal: Would there be, in your opinion, short-term negative impact for Canada’s diplomatic service abroad if such a bill were adopted?
Bob Rae: I do not think so. I think some people would say this bill makes our lives more complicated. My answer to that would be, that is life. The world is complicated, and this happens to be a reality for our fellow citizens. I am trying to give you practical examples.
If Canadians doing business in the Middle East lose their lives because of where they were, or are the target of kidnapping or something else, I do not believe those governments should feel they can carry on that activity with impunity. I do not believe that we should leave it entirely up to governments, because it is not only the governments that have suffered the consequences of this action. Individuals and families have suffered. It does make consular work more difficult, but that is not a reason not to do it.
(viii) [On whether Bill S-225 would trigger a flurry of suits]
Bob Rae: …Frankly, that is an outlandish proposition. This is a law that would, one hopes, be used incredibly rarely and only in circumstances where there was a clear and undeniable line of proof that went from line A to line B to line C in terms of which government was responsible. It will be very difficult to prove. The hurdles are high, which is arguably appropriate. Due to cost and because of the difficulties of moving it through, it will not lend itself to that kind of activity.
June 18, 2008
Dr. Bal Gupta, Chairman of the Air India 182 Victims Families Association
… I am chair of Air India 182 Victims Families Association [AIVFA] 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, entitled, An Act to amend the State Immunity Act and the Criminal Code….
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 182 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 except P.E.I. – Newfoundland, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia. They came almost from all religions, Buddhist, Hindu, Christian, 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 182 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. But 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 followed the murders of two important and prominent potential witnesses who were supposed to be very key first-hand witnesses to the pending Air India trial: Mr. Tara Singh Hayer, in British Columbia, Canada; and Mr. Tarsem Purewal, in the U.K.
As we all know, the intelligence agencies could not prevent the Air India 182 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 182 bombing, the largest act of terrorism in Canada, was not even recognized as a Canadian tragedy for a long time. The Anti-terrorism Act was passed, and some terrorist entities – and, the Chair said it was about 40 – were banned only after 9/11 took place in Canada, about 18 years ago. They were banned in 2003, after Canada experienced the Air India 182 bombing.
As families of the victims of the terrorist bombing of Air India 182, 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 182 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, 7/7 transit bombing in U.K., the school bombing in Russia in 2004, blasts in Delhi in 2005, the blast in Jordan in 2005 and many, 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, but 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 182 victims against the sponsors of terrorism. Moreover, by choosing 1985 as the starting point, the bill will more readily recognize that the Air India 182 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 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. Thank you, madam chair, and honourable senators.
June 18, 2008
Dr. Sherri Wise, C-CAT Member and Terror Victim
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 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 traveling 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 on the dental clinic, I decided to have lunch at an outdoor cafe … in central Jerusalem that is always teeming with hundreds of people….
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 were going 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 percent 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 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 like 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. Thank you for your time today.
June 18, 2008
Maureen Basnicki, C-CAT Cofounder and 9/11 Family Member
… Most of you know the story of 9/11…. My husband Ken was on the 106th 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. I was there on a layover in my capacity as a flight attendant for Air Canada. My husband, Ken, 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 who said as follows: “…[t]here 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 C-CAT … 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 ponsor 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 … I believe that as a society we have had difficulty looking terror in the eye, even when terror is standing 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. Thank you.