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Anti-Terrorism Bill

State Immunity Act
Criminal Code

Bill to Amend—Second Reading—Debate Adjourned

Honourable senators, I wish to speak today to Bill S-225. This bill is intended to help deter terrorism by amending the State Immunity Act and the Criminal Code and, by so doing, provide victims a civil right of action against perpetrators and sponsors of terrorism.

Honourable senators will recognize that this bill is the successor to my private bill, Bill S-218, from the last session and that in turn was the successor to Bill S-35, which I presented in May 2005. With each pause this bill has been improved but the motivation and the rationale remains the same.

Terrorism is a modern-day scourge that not only targets the innocent but also seeks to destroy the democratic principles we hold dear. It strikes at the heart of modern societies and, indeed, civilization. Terrorism is a weapon wielded by evil people who seek to destroy the way we live. It is a phenomenon that we need to fight with every resource available to us in our democratic society, and sometimes that means creating new resources.

Honourable senators, this bill is a sincere effort to create another resource to put at the disposal of those who have been most closely affected by terrorist attacks — the victims of terror and their families. The intent of this bill is to make the sponsors of terror think twice before supporting or sponsoring these acts.

Honourable senators will be familiar with the main elements of the bill which remain the same as they were in Bill S-218 and Bill S-35. I will not go into great detail since I have spoken to it twice already. For honourable senators who would like to refresh their memory, I would ask them to refer to the Debates of the Senate from June 7, 2005, for Bill S-35; and June 22, 2006, for Bill S-218.

In short, the bill aims to amend the State Immunity Act so that foreign states that knowingly and recklessly sponsor listed terrorist entities can no longer claim immunity for their actions. This bill also makes amendments to the Criminal Code to allow civil claims against local and state sponsors of terrorism. These claims can be brought by people who have suffered loss or damage as a result of conduct that is contrary to the existing anti-terrorism provisions of the Criminal Code.

Honourable senators will note that I use the words "knowingly and recklessly." These words have been added to the bill to protect against frivolous lawsuits. The sponsors of terrorism will have to have been aware or conscious of the fact that they were providing material support to a listed entity and proceeded anyway. The term "material support" has been added as a further protection in this regard to subsection 2.1(1) of the State Immunity Act. The definition of "material support" is found in subsection 2.1(2).

In addition, the plaintiff in a lawsuit is encouraged to provide the foreign state with the opportunity to arbitrate before the plaintiff can pursue the matter in court if the terrorist act causing harm to the plaintiff occurred in the foreign state.

(1510)

Another protection added to the bill is that foreign states are precluded from making use of the civil remedy as plaintiffs. This, again, is designed to avoid mischief and is accomplished with very specific language in proposed section 83.34(2), as follows:

Any person, other than a foreign state, who has suffered loss or damage on or after January 1, 1985 . . . may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct an amount equal to the loss or damage proved to have been suffered by the person, together with any additional amount that the court may allow.

In order to protect our democratic friends and allies who abide by the rule of law, as we interpret it, proposed section 83.34(7) of the Criminal Code directs the court to refuse to hear a claim against a foreign state with which Canada has entered into a bilateral extradition treaty, or that has been designated an extradition partner in the schedule to the extradition treaty. This is to prevent frivolous lawsuits against innocent foreign states that, as I said, abide by the rule of law.

Finally, proposed section 83.34(9) has been added to confirm explicitly that the legislation does not create a universal jurisdiction. This means that plaintiffs in a lawsuit must have a demonstrated connection to Canada.

Honourable senators, these are the most substantial improvements that have been made to the bill, and now it is time to get this legislation passed in the Senate. Four years have gone by since Canadian victims of terror launched their effort in support of this bill. They formed the Canadian Coalition Against Terror to try to prevent what happened to them happening to other Canadians. They have personally felt the tragedy and loss that few others have felt, and that all of us would like to avoid. They are the victims of Air India, 9/11 and other terrorist attacks.

In the four years we have been working to see this bill passed, the high standard of evidence required for a criminal conviction has meant that no one in Canada has been criminally convicted of financing terrorism. Not one person has been convicted in spite of the fact that FINTRAC has located hundreds of millions of terror-related dollars in this country.

Bill S-225 will ensure that those sponsors of terror that escape the clutches of the criminal justice system could still be successfully pursued through civil suits. This legislation will surely have a deterrent effect among those who think they can sponsor terror with impunity.

It is time, honourable senators — and I ask this on behalf of myself and Senator Grafstein, who has agreed to second this bill — to pass this bill at second reading and to send it to committee so that we can move another step closer to putting this tool in place for the victims of terror.