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Speech at Third Reading of S-7: Justice for Victims of Terrorism Bill

I rise today to recommend that the Senate adopt, at third reading, Bill S-7, the Justice for Victims of Terrorism Act.

Before doing so, I would like to thank all who have played a part in helping to move Bill S-7 through the Senate, beginning with the Prime Minister and the Minister of Public Safety, who have taken up as a government initiative the private bill I introduced five and half years ago in this chamber.

I am grateful to senators on both sides for their support throughout this process and, in particular, to Senator Grafstein who, up until he retired, always seconded my bill in all its forms.

I include the members of the Standing Senate Committee on Legal and Constitutional Affairs, led by then chair Senator Joan Fraser, who studied my private member's bill, and most currently includes members of the Special Senate Committee on Anti-terrorism, led by Senator Hugh Segal, who studied Bill S-7.

I would like to thank the committee clerk, Barbara Reynolds, her staff and the library researchers, who were particularly helpful at the committee stage, and the law branch for their work on the three private bills that I introduced in previous sessions.

I would like to also acknowledge Maureen Basnicki and the Canadian victims of terror who pushed for this bill, Aaron Blumenfeld, Sheryl Saperia and Danny Eisen of the Canadian Coalition Against Terror, for their continuing advice.

We are reminded on a daily basis that the threat of terrorism is real and widespread, and the unfortunate reality is that Canada and Canadians remain vulnerable to this global threat.

Third reading debate on the bill is particularly timely, given Friday's events where terrorists used FedEx to get their explosives into passenger aircraft via the cargo hold. One plane from the United Arab Emirates had to be escorted as it flew over Canadian airspace.

We must remain steadfast in our efforts to stop the perpetrators of terrorism and their supporters.

Bill S-7 would create a cause of action for victims of terrorism and it would lift the immunity of states that support it. It would allow Canada to demonstrate leadership in the struggle against terrorism by holding terrorists and their supporters accountable for their actions. As importantly, it will provide victims with a means to have their voices heard.

First, it creates a new act, the Justice for Victims of Terrorism Act, allowing Canadians to take legal action against the perpetrators and their supporters, including foreign states.

They could sue for redress for terrorist acts that occurred anywhere in the world on or after January 1, 1985, provided that they can demonstrate a real and substantial connection between their action and Canada. Making the bill retroactive to 1985 sends a clear message to the world that those who perpetuate or support terrorist acts remain accountable to this day.

Second, the bill will allow victims to seek redress, not just from the perpetrators of terrorist acts, but also from their supporters, including designated foreign states. It does so by lifting the immunity now provided under the State Immunity Act for those states designated as supporters of terrorism. It will allow the Governor-in-Council to create, based on the recommendation of the Minister of Foreign Affairs and in consultation with the Minister of Public Safety, a list of states that have supported a terrorist entity listed pursuant to the Criminal Code.

Lifting the state's immunity is a significant foreign policy decision, one that cannot be taken lightly. That is why we would base such a decision on a rigorous mechanism and concrete criteria. Specifically, the criteria for listing a foreign state are whether there are "reasonable grounds to believe" that the foreign state supports, or supported, a terrorist entity listed pursuant to the Criminal Code. We believe that providing support to terrorist entities listed pursuant to the Criminal Code — a list that is determined through an established, detailed and effective analytical process — is an adequate criterion to justify the listing of a state.

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This bill will be a significant complement to Canada's counterterrorism framework. It will act as a deterrent to terrorists and their supporters, and will demonstrate Canada's leadership in combating terrorism. Indeed, by holding all these actors accountable, we are targeting something of the utmost importance to terrorist groups — money.

It is also important to note that this bill will finally address the needs of victims who have been waiting for too long now to have this right to seek redress.

If other civilized nations that are also governed by the rule of law were to pass similar measures, it would be difficult for terrorists to function. Why: because terrorists operate from, and are supported by, dysfunctional states that typically do not follow the rule of law. Terrorists are reluctant, therefore, to leave large sums of money in their own banks, as the money may not be safe, nor do they want to leave large sums of money in places such as the Congo, Somalia or Uzbekistan. Terrorists look for safe places, and generally that means countries like Canada, the United States and members of the European Union, countries that follow the rule of law.

If their terrorist activities were to mean that their assets in safe countries were potentially subject to court-ordered seizure, terrorists would have a serious problem, as they need cash to operate. This bill would not only put another resource in the hands of those harmed by terrorist actions; it would cause those who sponsor terrorists to think twice. That is why it is important to pass this bill, and I urge all honourable senators to support the timely passage at third reading.

Honourable senators, during our committee hearings, we heard constructive suggestions for technical changes that will add clarity to the bill. One concern is that, as drafted, while the language empowers the government to create a list of states for which state immunity does not exist, there is no requirement that the government do so.

Another concern is that the current text does not offer certainty that an action should continue if a state is taken off the list. Before committing to spending time and money, plaintiffs understandably want the assurances that an action will remain valid, as long as the state is listed when the legal action began.

A third concern is that the bill, as drafted, does not ensure periodic updates to the list. The amendment that I will move will provide for a biannual update, which would occur at the same time as the biannual review of terrorist activities. The government would also have the option of adding nations at any time should a nation begin to assist terrorist activities.

Therefore, I move —

The Hon. the Speaker: Order. This will be helpful to the house. Senator Tkachuk has moved third reading and indicated to the house that, as a result of work done in committee, a motion in amendment will be proposed. Rule 30 requires the leave of the house for him to make this motion. Of course, another senator can make the motion. Senator Tkachuk has indicated that he will make the motion.

Therefore, make the motion, with leave of the house.

Senator Tkachuk: Can I ask leave of the house to make the motion?

Hon. Senators: Agreed.

The Hon. the Speaker: Carried.

Motion in Amendment

Hon. David Tkachuk: Honourable senators, therefore, I move:

That Bill S-7 be not now read a third time but that it be amended in clause 7,

(a) on page 4,

(i) by replacing line 33 with the following:

"Council may, at any time, set out the name of a foreign state", and

(ii) by adding after line 40 the following:

"(3) The list must be established no later than six months after the day on which this section comes into force."; and

(b) on page 5,

(i) by renumbering subsections 6.1(3) to 6.1(6) as subsections 6.1(4) to 6.1(7) and any cross-references thereto accordingly,

(ii) by replacing lines 22 to 29 with the following:

"(a) whether there are still reasonable grounds, as set out in subsection (2), for a foreign state to be set out on the list and make a recommendation to the Governor in Council as to whether the foreign state should remain set out on the list; and

(b) whether there are reasonable grounds, as set out in subsection (2), for a foreign state that is not set out on the list to be set out on the list and, if so, make a recommendation to the Governor in Council as to whether the foreign state should be set out on the list.

(8) The review does not affect the validity of the list.

(9) The Minister must complete the review", and

(iii) by adding, after line 34, the following:

"(10) 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.".

The Hon. the Speaker: It has been moved by the Honourable Senator Tkachuk, seconded by the Honourable Senator Mockler, that Bill S-7 be not now read a third time but that it be amended in clause 7 —

Some Hon. Senators: Dispense.

The Hon. the Speaker: Is there debate on the amendment?

Hon. Mobina S.B. Jaffer: May I ask a question at this time?

I wish to thank Senator Tkachuk for what he has done. I know he has worked hard to bring amendments in relation to issues that arose during committee. I have not had the opportunity to see the amendments before today, so I would like a clarification.

One of the preoccupations I had during committee was the "in and out," in the sense that a country can be on the list, someone can start an action, and then suddenly the country is removed from the list by our government. What protection is there for the person who has brought this action?

As honourable senators may recall, at the end of our hearings, the lead person from the Department of Foreign Affairs and International Trade told us that the legislation was such that if the government removed a name from the list, they would then have immunity. With the amendments that the honourable senator has proposed, have we resolved that issue?

Senator Tkachuk: We have.

(On motion of Senator Jaffer, debate adjourned.)