magnify
Home Jurisdiction Alien Tort Statute Canada’s Alien Tort Statute

Canada’s Alien Tort Statute

Published on March 29, 2012        Author: 

Professor René Provost, Faculty of Law and Centre for Human Rights and Legal Pluralism, McGill University

A few days ago, Canada moved to follow the Alien Tort Statute model found in the United States and open the door to file suits in damages against foreign states and others linked to acts of terrorism. The new law provides for both a basis of jurisdiction of Canadian courts and removes the immunity of foreign states in certain circumstances (see also Joanna Harrington’s post).

Bill C-10, an Omnibus criminal law statute, was adopted by the Canadian Parliament last week. The bill generated intense political debate and media attention, but largely for another section which imposed mandatory minimum sentences for a series of criminal acts. The scope of the Bill is well illustrated by its full title: “An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts”. One of the nine distinct sections of the bill which attracted considerably less attention in the mainstream media – and indeed in Parliament itself – is the Justice for Victims of Terrorism Act The law brings Canada into the very small group of states in which it is possible to use domestic courts to seek redress for violations of international law. It is noteworthy that the Act is limited to responsibility for acts of terrorism, and does not cover other violations of international law such as torture and war crimes, despite some earlier calls for a wider ambit.

The first part of the Justice for Victims of Terrorism Act creates a cause of action in Canada for damage or loss which occurred anywhere in relation to a terrorist act, if certain conditions are met. If the plaintiff is a Canadian citizen or permanent resident, no further territorial link is required. The Act opens the door to a suit in damages even for plaintiffs who do not have a nationality or residency link to Canada if there is a “real and substantial connection” to the country. This refers to the standard adopted by the Supreme Court of Canada in Libman v. The Queen, [1985] 2 SCR 178 to establish a territorial basis for criminal prosecution, which was later relied upon in other areas as well. The connection demanded in order to satisfy the “real and substantial” test has been interpreted quite broadly, to include not only any phase of the crime but also its repercussions. As such, the door which is opened by the Act is overall quite broad. For instance, in Yassin v. Green Park International, the Québec Court of Appeal denied jurisdiction on the basis of forum non conveniens in the case of a suit in damages by Palestinian villagers against a construction company incorporated in Canada, for allegedly building condos in the Occupied Territories in violation of the Geneva Conventions. In that case, the Court found that there mere incorporation in Canada did not justify Canadian jurisdiction. While the case did not deal with an offence of terrorism, it is not unreasonable to imagine that a court presented with similar facts in relation to acts which do amount to terrorism would conclude that the more generous cause of action created in Canada for acts of terrorism committed abroad would lead to reject the exception of forum non conveniens. It is interesting to note that the Act may be relied upon in a civil suit in tort in the common law provinces of Canada, or in delict under the Québec Civil Code. There may be more flexibility in applying the broad civilian principle of responsibility for any fault than the more compartmentalised common law torts. At the same time, this point to the fact that civil liability is a matter constitutionally reserved for provincial legislation, perhaps opening the door to a federalism challenge to the constitutionality of the Act.

The second element to note in relation to the Victims of Terrorism Act is the target of the possible suit in damages: any person, “listed entity”, or foreign state whose immunity has been lifted may be subject to the jurisdiction of Canadian courts. Persons may be real or corporeal persons who committed the act or omission that resulted in the loss or damages in a manner related to an act of terrorism. What is interesting here is that a cause of action is created against potential respondents which are not vetted by the Canadian Government as authors or sponsors of terrorism. To go back to the scenario which played out in Yassin, the Act invites the court to investigate and come to its own conclusions as to whether a person or corporation can be held liable for an act falling within the definition of terrorism. This stands in contrast to the two other categories of potential respondents identified by the Act. The “listed entities” refer to terrorist organisations which have been identified as such by way of an order of the Governor in Council (the Federal executive), pursuant to section 83.05 of the Criminal Code of Canada. The list currently includes organisations such as the LTTE, Hizbullah, the FARC and some forty other groups. Because of the nature of these organisations, and in particular the secrecy under which most operate, they often will prove evanescent targets against which judgment may perhaps be obtained but will be very hard to execute.

The most radical innovation of the Act relates to the last potential category of respondent, foreign states whose immunity has been lifted. The Act modifies the Canadian State Immunity Act to lift the immunity of a foreign state that has been listed by the Governor in Council as a sponsor of terrorism. The Act refers to the Criminal Code section on terrorism to suggest what criteria might guide the Federal Government in determining whether the act or omission of a foreign state warrants the latter’s designation as a sponsor of terrorism. This is of course a model borrowed from the United States, which some years ago adopted a similar denial of immunity against designated states sponsors of terrorism. The US experience illustrates well the perils of such an approach. At the moment, there are four states official designated as sponsors of terrorism and denied foreign state immunity in the US: Cuba, Iran, Syria, and Sudan. This first country on the list, Cuba, has never been seriously linked to acts of terrorism. It is, on the other hand, a country led by a regime against which previous US administrations were keen to demonstrate their antipathy. Conversely, it has been suggested that other countries which are not there should appear on that list, including Saudi Arabia and Pakistan, two countries which the US is keen not to offend. The US model suggests that such a listing of states sponsors of terrorism by the executive branch is at best extraordinarily delicate and difficult, and at worst pure political manipulation. It remains to be seen how this will play out in Canada where the Act provides that a list must be drawn up within six months of its entry into force. There is a good case to make that the US list will influence the content of the Canadian one, and that Iran in any case is likely to appear at or near the top.

In lifting the immunity of foreign states, the Victims of Terrorism Act reverses the position which had been adopted by the Ontario Court of Appeal in Bouzari v. Iran and to some extent by the Quebec Superior Court in Khazemi v. Iran. In each case, an individual attempted to sue a foreign state on the basis of the violation of a fundamental norm of international law which occurred abroad, only to be turned away by Canadian courts on the basis of the clear immunity granted by the State Immunity Act. This was consistent with the approach taken by the European Court of Human Rights, which in 2001 found in Al-Adsani v. UK that the immunity of a foreign state from a suit in damages for torture did not amount to a breach of the European Convention on Human Rights.  There is some irony in the fact that Canada decided to lift the immunity of foreign states for acts of terrorism just a few days after the International Court of Justice declared for the first time that international law demands that such an immunity be given. In Jurisdictional Immunities of the States (Germany v. Italy), the ICJ rejected a series of arguments advanced by Italy to justify its decision to deny foreign state immunity to Germany in relation to violations of human rights and humanitarian law committed by German forces during the second world war. Specifically, the ICJ rejected an argument that a state could justify an exception to immunity in cases of violation of human rights by the foreign state. The Court further refused an argument that the jus cogens nature of the laws of armed conflict violated by Germany could justify an Italian lifting of the state immunity. It seems clear that Canadian courts will deny the immunity of a foreign state if it appears on the list of states sponsors of terrorism; it seems equally clear that this judicial decision will trigger the breach by Canada of its obligations under international law.

The Victims of Terrorism Act further specifies that property in Canada belonging to a foreign state may be stripped of its immunity to allow for the execution of a judgment pursuant to this statute. The Act also provides for the possibility of the recognition of a foreign award against a state for reasons which would have justified a similar decision in Canada, as long as the foreign state appears on the Canadian list of states sponsors of terrorism. This seems to be directed at eventual US court decisions applying the laws which provided the inspiration for the new Canadian statute. Finally, one section of the Act allows for longer limitation or prescription periods for actions under this Act.

In conclusion, three key points call for attention. First, the enlargement of causes of action against physical persons or corporations is significant, because in this respect there is no political control asserted by the Government over the list eventual targets of civil actions by way of listing entities or states as sponsors of terrorism. This leaves a door wide open for parties to frame their claims in term of terrorism, a legal concept famously resistant to tight legal definitions and open to political manipulation. Surely, in light of the Talisman and Kiobel litigation in US Federal Courts, Canadian companies will be wary of the manner in which their overseas operations will be characterised. Second, as noted earlier, the listing of states and, to a lesser degree, entities as sponsors of terrorism invites political manoeuvering and positioning which would not be consonant with the high ideals expressed in the preamble of the Victims of Terrorism Act. US practice suggests that the names on the list of states sponsors of terrorism reflect many factors, not all related to terrorism. Third, one has to wonder to what extent this will be taken as a model to follow by other countries. The Canadian imprimatur to what had been up to now a US approach may be taken as legitimizing a targeted and politicised process. If the number of countries with similar legislation multiplies, each with its own definition of terrorism and its specific political agenda for listing states denied immunity, there may be a systemic impact on diplomatic relations and the stability of international relations. We may wonder to what extent the Canadian Government was alert to these broader implications.

Print Friendly
 

9 Responses

  1. Dapo Akande

    Hi René and Jo,

    Many thanks for your posts on this very interesting development in Canada. I assume that this Act was one which was brought forward by the Canadian government. I am curious as to the justifications, if any, offered by the government for (i) providing this redress (ii) why the Act is limited to just terrorism and (iii) allowing redress against foreign States. Did questions of the compatibility of the Act with international law come up at all in debates in Parliament or in statements by the federal government?

  2. Joanna Harrington

    Hi Dapo,

    The proposal in some form or another has been around in Canada since 2005, as private member’s bills, senate public bills, and more recently, as government supported bills, sometimes focussed on terrorism, but other versions have included torture, crimes against humanity, and I think one version also included grave environmental offences. Terrorism as a focus has gained support from politicians in different political parties, and reducing the breadth of the previous proposals was perhaps a way to gain support cross-party support.

    As for the rationale, the usual rationale provided by those speaking for the government has been one of holding terrorists accountable, albeit that realistically a litigant is unlikely to get a result. There are also those (including the sponsoring Minister) who suggest that this new legislation will serve to deter terrorism. Perhaps rationales such as accountability and deterrence “spin” well. The new law gives an outlet for victims, even if realistically, there won’t be a practical result, with 9/11 victims having campaigned hard for this legislation. Some have also alleged that the perpetrators of the Air India bombing were one of the terrorist entities listed in our Criminal Code, and there has been a recent Commission of Inquiry into the Air India bombing which has placed the plight of the many victims in the minds of Canadians.

    But as for the extension to states, the government has gone ahead notwithstanding criticism that this will impact negatively on foreign policy and the use of diplomatic negotiations as a tool for resolution, especially vis-a-vis countries viewed as incubators of terrorism. The experience in the US has also not deterred the Canadian Parliament, with “defendant states” unlikely to recognize the jurisdiction of the Canadian courts. I seem to remember that the US experience has led to a whittled down list to about four states, down from the longer list originally envisioned. Note that at one point in Canada’s discussions, the suggestion was made to replace the list idea with countries that did not have an extradition treaty with Canada.

    As for compatibility with international law, it did come up at times during the discussions, although more in the past, given that this idea has been kicking around since 2005, and the latest version was a bolt on to a massive crime bill that the Government promised to get through Parliament in 100 days etc. The outcry about that bill has overshadowed any discussions about state immunity, and as I wrote my post, I hoped for others to comment. (Thank you Rene!)

    The proponents of these amendments may simply have exhausted their critics with their campaign. Towards the end, a few mentioned the Germany v. Italy case, but too late for further discussion when you have a majority Government intent on enactment. (Note too that the Act’s compatibility with constitutional law, from a federalism or division of powers perspective, also came up in the debates, which I omitted from my posting given the international audience – and recognizing that for some, arguing about how integral a civil cause of action must be to a federal scheme for valid federal enactment, can be akin to watching paint dry – even for Canadians).

    Best wishes, Jo

    The First Reading speech of the Minister of Justice is here:
    http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Hansard&Doc=17&Parl=41&Ses=1&Language=E&Mode=1#SOB-4263105

    The speech for the mover in the Canadian Senate can be found here:
    http://www.parl.gc.ca/Content/Sen/Chamber/411/Debates/039db_2011-12-08-e.htm#46

  3. Dapo Akande

    Jo,

    Thanks very much for the detailed reply and the link!

  4. JordanPaust

    What do critics have in mind by “compatibility with international law”? Certainly not the fact that universal jurisdiction pertains under international law for violations of customary international law (e.g., terrorism properly defined) and that related treaty-based jurisdiction pertains under certain treaties (especially the CAT with respect to torture –which can be relevant with respect to some forms of terroristic tactics, e.g., re: use of torture with the intent to produce terror and an outcome of terror as well).
    Readers here should recall that there are already 20 U.S. Supreme
    Court cases that have recognized that corporations and companies can have duties and rights under customary international law and treaties (my Va. J. Int’L L. “essay” last year, mentioned in a lead brief in Kiobel). We had an ASIL panel on Kiobel on Saturday last, but there were so many issues and points to discuss in a mere 1 1/2 hours that meant that not all were “covered” or even mentioned.

  5. p.s. I meant to convey the point that critics could not argue that Canada’s exercise of universal jurisdiction would be incompatible “with international law” and, therefore, that the fact that universal jurisdiction exists must not be what the critics have in mind.

  6. One major difference between the ATS and the JVTA is that the JVTA does not provide for universal jurisdiction: there must be a real and substantial connection or the plaintiff must be Canadian. Given the SCC’s recent decision in Van Breda, a real and substantial connection will often not exist in extraterritorial JVTA cases. And citizenship-based jurisdiction is constitutionally suspect. Add jurisdiction to the problems with the JVTA. I’m writing an article about jurisdiction and the JVTA — happy to discuss with anyone who’s interested.

  7. Chilenye Nwapi

    Thanks Young for pointing out the constitutionality of the JVTA. I would note that citizenship-based jurisdiction is well recognized in Canadian criminal law – see for instance section 8 of the Crimes Against Humanity and War Crimes Act. If it is not unconstitutional in the criminal context, it does not seem that it would be in the civil context.

    it seems to me that the main constitutional challenge will emanate from the Act’s compliance with section 92 of the Constitution Act 1867 which grants power to legislate over property and civil rights to the provinces. The federal government may invoke the peace, order and good government clause; but it is not clear how far that argument may go. Defendants may invoke the Re Anti-Inflation Case to argue that even though terrorism is of national concern, the national concern does not currently exhibit an emergency situation. plaintiffs may respond with the General Motors Canada Ltd v City of National Planning to argue that the provision of civil rights, even though not “truly necessary” or “integral” to the overall scheme of fighting terrorism, is functionally related to that fight in that redress for victims of terrorism is a reasonable objective in the fight against terrorism. Defendants may again respond that the Act is unconstitutional because its entire scheme is to create civil rights for victims of terrorism; that it seeks to combat terrorism exclusively through the provision of civil rights; that the amendments to the State Immunities Act are aimed solely at bolstering the enjoyment of the civil rights created under the Act; and that while the federal parliament is free to take steps to combat terrorism, it must do so through means that do not encroach upon provincial powers. Plaintiffs may yet again answer that the JVTA is not an isolated scheme, but part of a larger scheme at combating terrorism, so that the provision of civil rights is only incidental to that scheme even though it is realized through a single piece of legislation; and that the international relations issues terrorism raises makes provinces ill-suited to effectively address it and makes federal action not merely desirable but necessary. These are all potential arguments. Their success of course depends on how the courts view them.

    Young, I would be happy to read your paper if you have published it. I have sent out a paper on the subject for publication.
    CN.