Statement made on 16 November 2010 by Senator Mobina Jaffer
Hon. Mobina S.B. Jaffer:
Honourable senators, I rise today to speak on Bill S-7, An Act to deter terrorism and to amend the State Immunity Act.
Bill S-7 deals with deterring terrorism and terrorist financing by holding those entities and/or foreign states that commit or support terrorism accountable in a Canadian court of law. This bill creates an extraterritorial right of action that allows Canadian victims of terrorism to sue individuals, organizations and terrorist entities for loss or damage suffered as a result of acts or omissions that would be punishable under the Criminal Code of Canada and which have been committed by these individuals, organizations or entities. Further, this bill allows victims of terrorism to sue foreign states that have supported terrorist entities.
Bill S-7 also amends the State Immunity Act to create a new exception to the idea of state immunity so that a foreign state's immunity can be removed 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 the said state has supported or currently supports terrorism.
Honourable senators, I would like to thank Senator Segal, Senator Tkachuk and Senator Furey, and all honourable senators who were on the Special Committee for Anti-Terrorism, for the work that was done on this bill. As well, I would like to thank all the witnesses involved.
Two weeks ago, Senator Tkachuk rose on behalf of the government and presented amendments to this bill. Senator Tkachuk has worked hard on this issue of protecting victims of terrorism, and I want to thank him for this. I also want to thank Senator Furey, who has worked closely with Senator Tkachuk on this issue.
I have had a chance to examine the amendments of the government. I am pleased to tell honourable senators that I am content in one regard, but I am disappointed in another. Let me explain.
During our last committee meeting, held on July 12, 2010, I submitted three specific amendments to this very bill. I proposed the following:
First, that the general criteria concerning how a country is posted on the list of foreign states that support terrorism be made public knowledge.
Second, there should be a creation of a new bill that creates a fund and compensates victims in situations where the victim wins the case, but the accused is unable to pay. We need a similar act to the U.S. Victims of Trafficking and Violence Protection Act of 2000, or the Victims Trust Fund created by the International Criminal Court.
The Americans have two acts: one, to enable the victim to sue, and another that makes provisions to compensate the victim financially.
We are now working on the bill to enable the victim to sue, but not to help to compensate the victims.
The third amendment I proposed was that a country should not be removed from the list of foreign states that support terrorism during an ongoing legal proceeding. If the country is removed, the victim should still be able to proceed with their trial against the said country. If a country is delisted post-trial but is still found guilty, then the individual should be able to attain compensation. If at any point there is a delisting, then our government should take over the trial.
Honourable senators, I am very thankful that the government accepted my third amendment. I am also grateful that the government expanded the amendment so that it is more comprehensive. The new amendment, in clause 7, section 10, reads:
Where proceedings for support of terrorism are commenced against a foreign state that is set out on the list, the subsequent removal of the foreign state from the list does not have the effect of restoring the state's immunity from the jurisdiction of a court in respect of those proceedings or any related appeal or enforcement proceedings.
This matter of delisting a country during an ongoing legal proceeding was a crucial concern for not only me, but for many other honourable senators, during the committee proceedings because the process, as set out in the bill, was confusing, unclear and contradictory. Even some of our witnesses from Public Safety Canada admitted to this.
On July 5, for example, in regard to the question of "If a state is removed from the list, what would happen for the plaintiff, should the plaintiff be successful in their case?" a legal representative from Public Safety stated:
If a state is listed, the plaintiff would commence proceedings. Before a judgment is rendered, if the state is delisted, without being able to predict exactly what the court would say, it is probable that the state would likely benefit from the immunity again.
Honourable senators, this was a very problematic issue in the bill because it meant that in certain situations we could not hold foreign states that support terrorism accountable for their actions. However, now this unfairness has been fixed, and I thank the government for this correction.
The challenge I now have, however, is that neither my first nor my second amendment was implemented in this bill, the first of which is in regard to making public general criteria of how a country is posted on the list of foreign states that support terrorism.
The list in question is a fundamental aspect of the bill. It determines which countries can or cannot be pursued in terms of their association with terrorism. However, one flaw I observed during committee, and which still exists today, is that we do not know the criteria for how a country gets on the list. All we know is that the basis for listing a foreign state is that there are reasonable grounds to believe that the state in question supported or supports terrorism. However, I ask: What are these reasonable grounds?
The government has presented new amendments, which state that "the name of a foreign state can be listed at any time" and that "the list must be established within a specific time frame from the day in which this section comes into force."
However, honourable senators, this still does not address the fundamental issue of how the country listing process works. In the current framework, three parties have the ability to deal with the creation of the list — the Governor-in-Council, the Minister of Foreign Affairs, and the Minister of Public Safety — and in the current framework, none is required to show any transparency behind their decisions.
As Minister Toews said on June 28, 2010, during our committee meeting:
There must be, in my opinion, a very deliberate consideration by government as to whether or not state immunity should be lifted in respect of any particular country.
Undoubtedly, there must be deliberate consideration, but this deliberate consideration, and other relevant considerations, I believe, must be made transparent. Because of the seriousness of listing specific countries as having relations to terrorism, and the diplomatic effects it can have on Canada, we must be transparent in terms of the criteria used to deem if a country is to be on the list.
Honourable senators, in my second proposed amendment I suggested that a new bill — similar to the United States Victims of Trafficking and Violence Protection Act of 2000, or the Trust Fund for Victims established by the International Criminal Court — be created so as to compensate victims in a situation where they may win a case, but the accused is unable to pay.
As with many forms of litigation, a case as such may take a great deal of time and thus a great deal of money.
As the second report on this bill, which was released on October 5, stated:
This type of litigation "is likely to be both complex and expensive, requiring victims of terrorism to engage the services of expert witnesses, such as for example forensic accountants and/or intelligence experts to demonstrate the link between the activities of the foreign state and the activities of the terrorist entities."
Given the fact that these trials can be costly and ultimately in the end, an accused — whether it be a terrorist entity or a nation state — may not be able to pay, there is a need to create a backup financial framework such as exists in the United States or with the International Criminal Court, which can compensate a victim if they are successful in their claim.
The U.S. system is set up for such a situation through the Victims of Trafficking and Violence Protection Act of 2000. We need to create a similar framework here in Canada to deal with this issue. We need a system that will justly serve Canadian victims.
I am disappointed that the government did not include this amendment. Without a financial framework in place, a Canadian can win a case against a country or a terrorist entity but not receive the financial support they deserve.
Terrorism in the 21st century is an unfortunate reality. Every single day we see the impact terrorism has on our society. The introduction of Bill S-7 undoubtedly will help in both addressing our current set of circumstances with terrorism-related issues as well as work to prevent future tragedies.
However, I feel if this bill is to be fully effective in protecting Canadians, it needs to address its current set of shortcomings as soon as possible. Specifically, there needs to be transparency in terms of determining how a country is put on the list of foreign states that support terrorism. This process should not take place behind closed doors. It should be made public because of the seriousness of the matter.
Second, a bill needs to be created that can compensate victims in situations where they are successful in their claims but the accused is unable to pay.
Honourable senators, we all know that the victims of terrorism have suffered enough. Victims not only have to prove their case, but further, they have to find ways to be compensated.
Honourable senators, I thank the government for implementing one of my amendments into this bill. However, I encourage them to re-examine my other two amendments in the other place and incorporate them into this important piece of legislation. By incorporating these amendments, we will serve the best interests of Canadians, especially those Canadians who have suffered at the hands of terrorists and the countries that support them.