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Speech at Second Reading of S-233, Deterring Terrorism by Creating a Civil right of Action against Sponsors and Perpetrators

 

Honourable senators, I will be speaking today on the anti-terrorism bill. Before beginning, however, I would like to acknowledge two people who are in the gallery, Maureen Basnicki and Danny Eisen from the Canadian Coalition Against Terror, C-CAT, which has been behind this anti-terrorism bill for the last four years. I would like to acknowledge their hard work and dedication to the cause.

Last week at the trial of the leader of the Toronto 18, a group of would-be terrorists arrested in 2006, video and other evidence was released. It indicated that the group was planning to create three explosions, each on the scale of the Oklahoma City bombing. The explosions were to take place in truck bombs parked outside the Toronto Stock Exchange, the CSIS regional office in Toronto and at a military base between Toronto and Ottawa. Plans were also afoot to attack the Parliament Buildings.

Police collected evidence that included bags of fertilizer, like that used in the Oklahoma bombing, cellphones that would be used as detonators, and batteries. They confiscated a video of one of the accused trying out a cellphone detonator. Another video shown on television last week caught two of the terrorists unloading ammonium nitrate just before police stormed in on them.

Honourable senators, this group was bent on wreaking havoc here in Canada, but that was in 2006. In the time since, the threat seems to have remained dormant and the tendency has been to grow complacent about the terrorist threat. We would do well to remember that just last week a man was arrested in Massachusetts and charged with planning to carry out terrorist attacks in and outside the United States. His was among what the newspaper called the latest in a rash of homegrown terror cases brought to light in recent weeks.

Terrorism is far from dead, and it is an issue, as these recent arrests and the trial in Toronto tell us, about which we can scarcely afford to grow complacent. In fact, its methods are so insidious that we need to be constantly on the alert. Fighting it requires vigilance and ingenuity, and the resort to every democratic means at our disposal. Just as innocent victims are terrorism's primary target, so must innocent victims have a right to participate, and participate actively, in the fight against terrorism.

Bill S-233 is a weapon in the hands of terrorism's innocent, but no longer defenceless, victims. Its aim, as is apparent in the bill's title, is to provide terror victims and their families with a civil right of action against terrorism's perpetrators and their sponsors.

In previous sessions, I have spoken to this bill in its earlier incarnations: Bill S-35, Bill S-218 and Bill S-225. I hesitate to speak to it at length, but there are now quite a few more new, friendly and welcome faces around the chamber, and I would be remiss if I did not say at least a few words in its elaboration.

Bill S-233, as did its predecessors, amends both the State Immunity Act and the Criminal Code. It amends the former to prevent states that either sponsor or engage directly in terrorist activity from claiming immunity in Canadian courts. In other words, they can be sued for damages in a Canadian civil court of law, irrespective of any criminal proceedings. The rationale is that money is the lifeblood of terrorism. Without the resources to carry out their crimes, terrorists would be unable or, at the very least, be limited in their ability to plan and execute their operations.

The bill also amends the Criminal Code to allow those who have suffered a loss or damage as a result of an attack to launch a civil suit against those who knowingly or recklessly sponsored the attack. This is critical. Civil suits will allow for the pursuit of terror sponsors who often evade the criminal justice system due to the high standards of evidence required for conviction.

In civil proceedings, evidence that establishes a defendant's status as a supporter of terror, which may not be sufficient for conviction in a criminal proceeding, can be enough to establish liability and to obtain a damages award.

Civil actions also provide a platform for educating the public about the threat and consequences of supporting terrorism.

They can also serve to deter future acts of violence in two ways: first by bankrupting or financially-impairing the infrastructure through successful judgments; and, second, by causing terror sponsors to refrain from future sponsorship out of fear of the publicity and exposure that would result from a civil suit.

As it now stands, Canadian law permits civil action against foreign states for breach of contract, personal injury, death or damage to property that occurs in Canada, but it does not allow it in cases where sponsoring terrorist acts results in the murder of Canadians abroad.

There is such an exception in the United States law, however, allowing civilians to seek money damages against foreign states that either perpetuate or support terrorist acts. Indeed, such suits have had success in the United States and family members of victims have been awarded damages. Notable in this regard is the successful suit against Iran arising out of the 1983 bombing of the U.S. marine barracks in Lebanon. Also in Chicago in 2004, the Boim family was awarded damages by the federal court against Chicago-based Islamic organizations, the same organizations that provided material support to the Hamas killers who gunned down their son in Israel 10 years earlier.

Honourable senators, as I indicated, this is the fourth version of this bill. Bill S-233, therefore, has the extra benefit of its predecessor having been discussed at the Standing Senate Committee on Legal and Constitutional Affairs. This, in my estimation, has had two beneficial effects. First, the government last June tabled at first reading in the House of Commons Bill C-35. This bill is very similar in tone and intent, and was in fact inspired by the bill we have before us today. It is worth noting as well that Liberal MP Irwin Cotler has tabled his own private member's bill in the house, Bill C-408, which again is virtually identical to Bill S-225.

The second beneficial effect is that this bill has been redrafted in light of the many and expert comments and suggestions made by the members of the Standing Senate Committee on Legal and Constitutional Affairs when they reviewed its predecessor. I can safely say that even in its earlier form, this bill had all-party support both here and in the other place. This is important to point out, because we so recently learned that it is certainly not always the case.

Nevertheless, refinements based on discussions that took place in committee have been made. The result is a better bill. Let me run through some of the changes.

As I mentioned, and as originally drafted, the legislation 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 action. It 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.

In response to comments made in committee on the previous version of the bill, clause 2 of this bill proposes a new subsection 6.12 to be added to the State Immunity Act. This would allow the foreign state's immunity to be lifted for a new type of behaviour. It will lose its immunity, not only for providing material support to terrorism, but for itself engaging in terrorist activity, such as executing an attack.

This change was in response to the Senate committee's comment that victims of a Lockerbie-type case in which Libya was directly involved in the attack, rather than sponsoring a terrorist group to commit the attack, would not be able to sue Libya under our previous bill.

Another change is that the bill now lifts state immunity not only for providing support to these groups identified in the Criminal Code as a listed entity, but it also lifts immunity for those who might act on behalf of, in association with, or at the direction of a listed entity.

This was in response to the Senate committee's suggestion that we expand the scope of the bill. In other words, it lifts the immunity of a state not only when it provides assistance to listed entities, but also to other terrorist groups that are not listed entities.

The committee also suggested that we more specifically define the role of the Ministers of Foreign Affairs and Finance in assisting the execution of judgments.

(1540)

Previously, the bill required the ministers to assist to the fullest extent practicable in identifying and locating the property of a foreign state, agent, or instrumentality. That has been changed. Now the ministers are required to assist within the scope of their powers and to the extent that is reasonably practicable.

Another change is that the bill previously used the term "terrorist conduct" to describe the proscribed activity that could trigger a lawsuit against those who sponsored it. That has been changed to the words "support of terrorism." The easiest way to illustrate the difference is to look at the summaries of the bill.

In Bill S-225, the previous version of the bill and the one examined by committee, the summary read:

This enactment amends the State Immunity Act to prevent a foreign state from claiming immunity from the jurisdiction of Canadian courts in respect of the proceedings that relate to terrorist conduct engaged in and by the foreign state.

In Bill S-233, the bill before you, the summary reads:

This enactment amends the State Immunity Act to prevent the foreign state from claiming immunity from the jurisdiction of Canadian courts in respect of proceedings that relate to the support of terrorism or terrorist activity engaged in by the foreign state.

The wording is more specific and explicitly makes clear that states that not only sponsor but engage in terrorist attacks themselves are not immune from suit.

Honourable senators, I would like to thank the chair, Senator Fraser, and other members of the Legal and Constitutional Affairs Committee for their hard work on the previous bill and of course for the suggestions and recommendations that resulted in the amendments to the new bill, which I presented in June.

Honourable senators, Bill S-233 has all-party support, both here and in the other place. It has benefited from the critical eyes of legal experts, including not only those who drafted it but those on both sides who sat in committee as senators and reviewed it. It is a better piece of legislation for it. As I mentioned, there is similar legislation in the House.

I look forward to moving ahead in this place with this bill in a way that takes into account what is happening in the other place so we can put the most effective tool in the hands of terrorism victims, a tool that provides them with the means not only to take effective action but that deters future acts of terrorism in that process. This is, after all is said and done, a victim's initiative championed by an organization called the Canadian Coalition Against Terror, CCAT, which represents Canadian terror victims. CCAT has played a critical role in drafting and advocating for this bill.

It is my understanding that the government bill in the house will be moved forward in the next two days, 48 hours, but I think it is important that these private members' bills also move forward so that we can keep some control of the situation, so to speak. We all know how these things can sometimes go a little astray. That is why I am pursuing this private member's bill and I am sure why Mr. Cotler is pursuing his private member's bill in the house. I urge all honourable senators to move this bill to the Legal and Constitutional Affairs Committee for the completion of their study.