Bill S-7 Suing Terror Sponsors


Make Them Pay

Canadian Business

By Jack Mintz

Jack Mintz is the President and CEO of the C.D. Howe Institute.

Many Canadians believe terrorism will not affect their lives. That’s despite the fact that history has shown we are far from being immune from such actions–remember the horrific Air India incident. Al-Qaida has put Canada on its list as one of the countries targeted for “retaliation,” owing to our military involvement in Afghanistan. We should not be complacent.

The increased violence perpetrated against innocents in recent years has made it necessary to develop new rules of the international relations game, in order to forestall terrorist acts here. One is a proposed parliamentary amendment to the State Immunity Act that would allow Canadian citizens who have been injured by state-sponsored terrorism to sue for compensation. That would apply to Canadian lives lost anywhere in the world, not just Canada. It is a bill worth passing. But other initiatives should also be considered to try to make terrorism less viable financially.

When my family lived in Ottawa during the 1980s, a cardinal rule was to avoid having an accident with a car bearing red licence plates. Why? Those cars belonged to diplomats, and a long-standing international convention protected them from prosecution by citizens of other countries. Rules have evolved. A 2001 incident in Ottawa involving a drunk-driving diplomat, who killed a Canadian in an accident, made it clear that state immunity should have bounds. Canadians have the right to sue foreign states in a Canadian court for breach of contract, or for bodily or personal injury suffered on Canadian soil. But such protection does not extend to Canadians injured on foreign soil.

Why is redress important when Canadians are injured abroad? Clearly, a case can be made that a Canadian passport guarantees some protection by Canada for its citizens. When harm is done, the parties involved–even if they are state governments that sponsor terrorism–should be made responsible for damages.

It is not just a matter of fairness; it is also a matter of deterrence. It is hard to stop terrorism, after all–those who are determined to terrorist acts are probably unlikely to be dissuaded. But to the extent that costs can be imposed on those who sponsor terrorism–those who have to devote resources to litigation and penalties–Canadians are better protected. It is a matter of making sure that the perceived benefits of promoting terrorism are swamped by the costs.

The amendment that Parliament is considering to the State Immunity Act in Bill C-394 would permit Canadians to sue states that sponsor terrorism resulting in injury or death on foreign soil. In this day and age, it makes sense to extend protection for Canadians. Governments that willfully fund terrorists should be liable for injury, just like that diplomat who hurts a Canadian by running her over in a car.

Curtailing state-sponsored terrorism is not the only issue. For example, the family of Ken Basnicki, who died at the World Trade Center in September 2001, is pressing Parliament for the right to sue under civil law organizations that sponsor terrorism. If allowed, the Basnicki family would have rights similar to those granted by a U.S. law now in place.

There are other policies that could be considered. The United States has created a special fund to assist families coping with expenses arising from terrorism, including exempting two years of family income from taxation. Canada provides some tax relief to military personnel who are harmed in conflicts abroad (such as Afghanistan), so why not extend relief for a limited period to those who lose a family member to a terrorist act? As Danny Eisen, representing the Canadian Coalition Against Terror, eloquently put it, terrorism has become a war on civilians and citizens need some opportunities to fight back.

None of this will mean terrorism will go away. It is fair to say, however, that Canada should do its utmost to help victims recoup some losses resulting from actions taken by terrorists. To extend war to innocents is unfair, and governments should do their utmost not only to provide security and support, but also to ensure that terrorists and states who sponsor them bear some of the costs.