From Liberal MP Irwin Cotler:
While much has been written about the Conservative government’s omnibus
crime bill, C-10, little attention has been paid to one of its nine
constituent bills, the Justice for Victims of Terrorism Act, landmark
legislation that would allow – for the first time – Canadian victims of
terror to sue their terrorist perpetrators in Canadian courts.
I supported this legislation and had even proposed something similar in a
Private Member’s Bill during a previous Parliament. Regrettably, the
Government’s legislation was flawed in several major respects. As but one
example, the proposed legislation would not have allowed suits against the
state perpetrators of terrorism themselves, as against their terrorist
proxies. Therefore, a Government directly engaging in a terrorist atrocity
could hide behind certain agents of its criminality and not be liable for
actions it itself committed, such as Libya in the Lockerbie bombing.
When I proposed my amendments at legislative committee – where I explained
that each sought only to strengthen the bill – all were summarily rejected
by the Conservatives, as were all opposition amendments. There was no debate
or consideration; indeed, I was accused of obstruction and delay for merely
suggesting these changes and, at the next meeting, the Government moved to
shut down debate entirely.
Yet, in an ironic twist, the Government eventually realized the merit of
these amendments and proposed them later in the House as their own, only to
have them ruled out of order by the Speaker as being matters that could have
been dealt with at committee – and indeed that is where they ought to have
been addressed.
Certainly, it is not against the rules for a party to use its majority on a
committee to further its legislative agenda. The problem is when, in its
haste to act, the Government makes mistakes while rejecting attempts to
correct them. Indeed, the Government found itself required to propose some
amendments – accepted by the committee – to correct flaws in its drafting of
the bill, though some drafting errors still remain, including some
translation inconsistencies between the English and French versions of the
bill.
Moreover, despite the Government’s repetition that the constituent elements
of the omnibus bill had been debated in the House and during the election
campaign, this transformative anti-terrorism proposal had never been
discussed in the House prior to C-10’s introduction. For this very reason –
let alone its importance and complexity – it should not have been bundled
with other pieces of legislation into the omnibus bill.
As it currently stands, Canadian law allows persons to sue foreign states
when it comes to commercial transactions – such as a breach of contract –
but not when it comes to death or injury resulting from an act of terror. As
such, our law 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. Simply put, we must rectify this inversion of rights
and remedy, this inversion of law and morality.
As well, 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.
While we are now in a situation whereby these amendments are likely to be
proposed in the Senate, this could have been avoided if the Government
simply considered the amendments instead of rejecting them out of hand out
of pure partisanship. Changes to the legislation in the Senate will mean
that the bill must still come back to the House – not only delaying the
enactment of this important remedy to bring justice for victims of terror,
but doing so in circuitous fashion.
Simply put, while justice delayed is often justice denied, in this case,
legislation rushed translates into justice denied. The Government would do
well to heed this lesson and carefully consider the proposals before it,
instead of regarding Parliament, the opposition, and committee as but mere
roadblocks in the way of its partisan pursuits.
Irwin Cotler is the Liberal Justice and Human Rights Critic. He is the
former Minister of Justice and Attorney General of Canada and a Professor of
Law (Emeritus) at McGill University.
Unlike Mr. Cotler, I’ve had no training in reading legal texts, so I hope I may be forgiven if I misinterpret the legalese. That being said, it appears Mr. Cotler has omitted a couple of salient facts.
In his letter, Mr. Cotler chastizes the Government for not being open to his amendments, saying he had previously tried to introduce those amendments in a private member’s bill. But nowhere does he mention that similar amendments to the State Immunity Act and the Criminal Code (terrorist activity) had also been introduced in a number of previous government bills.
It seems those proposed amendments have a long history, but not Mr. Cotler’s alone:
http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?source=library_prb&ls=S7&Parl=40&Ses=3&Language=E&Mode=1
“Bill S-7, An Act to deter terrorism and to amend the State Immunity Act (the Justice for Victims of Terrorism Act1 or JVTA) was introduced in the Senate on 21 April 2010 by the Leader of the Government in the Senate, the Honourable Marjory LeBreton. The bill creates a cause of action (i.e., grounds to sue) that allows victims of terrorism to sue individuals, organizations and terrorist entities for loss or damage suffered as a result of acts or omissions that are punishable under Part II.1 of the Criminal Code2 (the part of the Code dealing with terrorism offences) and which have been committed by these individuals, organizations or entities. It also allows victims of terrorism to sue foreign states that have supported terrorist entities which have committed such acts, in certain circumstances. The victim’s loss or damage can have occurred inside or outside Canada but must have occurred on or after 1 January 1985. If the loss or damage occurs outside Canada, there must be a “real and substantial” connection to this country. Bill S-7 also amends the State Immunity Act3 to create a new exception to state immunity, the general rule that prevents states from being sued in Canada’s domestic courts. However, the new exception serves to remove state immunity only when the state in question has been placed on a list established by Cabinet on the basis that there are reasonable grounds to believe that it has supported or currently supports terrorism.
Bill S-7 is identical to Bill C-35, which was introduced during the 2nd Session of the 40th Parliament on 2 June 2009, by the former Minister of Public Safety, the Honourable Peter Van Loan.4 It is also similar to a number of private members’ bills and senators’ public bills that have been introduced in Parliament since 2005.5 The primary difference between the previous private members’ bills and senators’ public bills and Bill S-7 is that the former bills sought to include the cause of action in the Criminal Code, whereas Bill S-7 creates a free-standing civil cause of action. …”
A list of bills proposing amendments follows …
In Footnote #5 (link above) the various bills introduced to amend the State Immunity Act and the Criminal Code (terrorist activity) are listed:
Here they are in chronological order, with appropriate links. Please note that 5 Conservatives (Senators LeBreton & Tkachuk and MPs Day, Grewal, and Van Loan) and 2 Liberals (MPs Kadis and Cotler) proposed their own version of the required amendments. It thus appears Mr. Cotler is not the only politician who sought amendments to allow for a civil action against terrorists or terrorist states.
Bill C-367 – April 19, 2005
http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&Bill=C367&Parl=38&Ses=1
An Act to amend the State Immunity Act and the Criminal Code (terrorist activity)
Sponsor: Stockwell Day (Okanagan—Coquihalla)
Mr. Day then amended his own bill by introducing C-394 on May 17, 2005
http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&Bill=C394&Parl=38&Ses=1
Mr. Day stated http://openparliament.ca/bills/38-1/C-394/
“Like Bill C-367, this bill would remove the immunity for states that have been able to hide behind that immunity, states that sponsor terrorism, by amending the State Immunity Act, that would allow victims of terrorism to civilly sue the perpetrators of terrorist acts by amending the Criminal Code. …”
Bill S-35 – May 18, 2005
http://www.parl.gc.ca/legisinfo/BillDetails.aspx?billId=4772609&Language=E&Mode=1
An Act to amend the State Immunity Act and the Criminal Code (terrorist activity)
Sponsor: Conservative Sen. David Tkachuk
http://www.parl.gc.ca/legisinfo/BillDetails.aspx?billId=4772629&Language=E&Mode=1
Bill S-218 – June 15, 2006
An Act to amend the State Immunity Act and the Criminal Code (civil remedies for victims of terrorism)
Sponsor: Conservative Sen. David Tkachuk
Last Stage Completed: Second Reading in the Senate (2006-11-02)
Bill C-272 May 10, 2006
http://www.parl.gc.ca/LEGISInfo/BillDetails.aspx?billId=2153853&Language=E&Mode=1
An Act to amend the State Immunity Act and the Criminal Code (terrorist activity)
Sponsor: Liberal MP Susan Kadis (Thornhill)
C-346 – June 22, 2006
http://www.parl.gc.ca/LEGISInfo/BillDetails.aspx?billId=2282244&Language=E&Mode=1
An Act to amend the State Immunity Act and the Criminal Code (terrorist activity)
Sponsor: Conservative MP Nina Grewal (Fleetwood—Port Kells)
S-225 – Dec 14, 2007
http://www.parl.gc.ca/LEGISinfo/BillDetails.aspx?billId=4772654&Language=E&Mode=1
An Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism)
Sponsor: Conservative Sen. David Tkachuk
Last Stage Completed: Second Reading in the Senate (2008-04-09)
More to follow …
Here are the remaining bills …
S-233 – April 28, 2009
http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=4772717
An Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism)
Sponsor: Conservative Sen. David Tkachuk
Last Stage Completed: Introduction and First Reading in the Senate (2009-04-28)
C-35 – June 2, 2009
http://www.parl.gc.ca/LEGISInfo/BillDetails.aspx?Language=E&Mode=1&billId=3935154
An Act to deter terrorism, and to amend the State Immunity Act
Short Title: Justice for Victims of Terrorism Act
Sponsor: then Minister of Public Safety Peter Van Loan
Last Stage Completed: Introduction and First Reading in the House of Commons (2009-06-02)
C-408 – June 4, 2009
http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?billId=4328148&Language=E&Mode=1
An Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism)
Sponsor: Liberal MP Irwin Cotler (Mount Royal)
Last Stage Completed: Introduction and First Reading in the House of Commons (2009-06-04)
S-7 – April 21, 2010
http://www.parl.gc.ca/LEGISInfo/BillDetails.aspx?Language=E&Mode=1&billId=4448172
An Act to deter terrorism and to amend the State Immunity Act
Short Title: Justice for Victims of Terrorism Act
Sponsor: Leader of the Government in the Senate Sen. Marjory LeBreton
Last Stage Completed: First Reading in the House of Commons (2011-02-08)
So, it appears Mr. Cotler’s contention that “… despite the Government’s repetition that the constituent elements of the omnibus bill had been debated in the House and during the election campaign, this transformative anti-terrorism proposal had never been discussed in the House prior to C-10′s introduction” is questionable.
Never discussed?
In fairness, though, what would be needed is a comparison of the proposals contained in each bill listed above to see where and how they differ, if at all. Any volunteers?