The Ottawa Citizen

Canadian law should not favour nations that support terrorists over their victims

By Irwin Cotler, The Ottawa Citizen

Irwin Cotler is the MP for Mount Royal and is Opposition Special Counsel on human rights and international justice. He is a former minister of justice and attorney general of Canada and is a professor of law (on leave) at McGill University.

 In the shadow of 9/11, Canada enacted the Anti-Terrorism Act, while the UN undertook a series of initiatives to combat international terrorism. Regrettably, while the government legislated so as to criminalize terrorist activity, the rights of victims of terror went unacknowledged.

Today, there are two new measures before Parliament. Both recognize the foundational principle that victims of terror deserve a right of civil redress in Canadian courts against terrorist perpetrators. Both recognize that the exercise of this fundamental right is precluded by the operation of the State Immunity Act, which shields state sponsors of terror from civil redress.

Both affirm the necessity — in justice terms — for victims of terror to have legislation that addresses the evil of transnational terrorism, that targets the impunity of those states that perpetrate, sponsor or finance acts of terrorism, and that allows Canadian victims of terrorism to seek justice.

When a state engages in the sponsorship of terrorism, it deserves no protection from federal law, such as the State Immunity Act. When a state supports a terrorist group that targets Canadians, our Canadian tax dollars should not be spent on defending that state’s immunity from liability.

Ironically, there is an exception in the State Immunity Act for commercial activity, but there is no exception for terrorist activity. We have a situation where, simply put, our State Immunity Act unconscionably favours foreign states that aid and abet terrorists over Canadians who are harmed by that terror. It removes impunity with respect to commercial transactions, but it retains immunity with respect to terrorist actions. It is in this context that I introduced a private member’s bill to rectify this inversion of rights and remedy this inversion of law and morality.

Simply put, the objective of removing the shield behind which state sponsors of terror hide is a common objective. Accordingly, the government recently introduced S-7 in the Senate, amending the State Immunity Act, while I have also introduced a private member’s bill in this regard, C-408, before the House.

Where the government’s legislation and my own diverge dramatically relates to the crucial issue of listing. The government’s approach undermines the very purpose of its own legislation and ends up denying an effective right of civil redress to victims.

Simply put, the Conservative bill takes as its basic premise that state immunity should still operate, such that victims of terrorism will only be able to sue a state if the Canadian government has listed it as a terrorist country. Whether a foreign state is listed will always be the subject of political negotiations between governments. It will always be an issue of executive discretion. It will always have an element of arbitrariness about it; it will effectively take away the basic right of civil remedy from the victims themselves.

The basic premise of my legislation is that state immunity should not further an injustice by arbitrarily denying victims of terrorism their day in court.

I understand the government’s desire to prevent frivolous or vexatious lawsuits against our democratic allies. While my bill removes immunity from perpetrators of terrorism and its state sponsors, it seeks to address this concern by providing a limited carve-out for countries with whom Canada has an extradition treaty — that is, those democracies that respect the rule of law, that have an independent judiciary and that provide due process. Accordingly, victims of terrorism could seek redress in those countries precisely because of their democratic character and provision for due process. Given that such recourses would be available to victims with respect to these countries, it is not imperative to remove state immunity entirely.

Victor Comras, a former senior official in the U.S. state department who testified before a Senate standing committee for legal and constitutional affairs, explained how maintaining a list of designated terrorist countries ended up undermining similar U.S. legislation.

In his testimony, Comras advised Canadian parliamentarians “don’t go there, don’t enact that legislation.” His exact words were, “If we had to do it over again, I have no doubt we would have done it without a list.” He concluded his testimony with the words “Please learn from our lesson … do not make the same mistake.”

The government, which is invoking Victor Comras as the authority for its legislation, is making the exact mistake that Comras warned against. I invite the government to heed the very lessons of its own cited authority.

I would hope, therefore, that the government will reconsider its “listing” premise and either adopt the solution proposed by my bill or suggest an alternative in line with Comras’s admonition. This need not be a partisan issue. There is consensus to provide victims of terror with a civil remedy that will effectively deter terrorism, hold terrorists and their agents liable, and secure justice for victims of terror so they can have their day in court. We should give effect to that consensus.