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Irwin Cotler

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Courts No Longer Favour the Terrorist

Posted: 03/16/2012 12:29 pm

On Tuesday, Royal Assent was granted to the Conservative omnibus crime bill, C-10, making it law. While I've written elsewhere that this marks a sad day for Canadian criminal justice given, inter alia, the bill's reliance on constitutionally suspect and failed policies in the matter of mandatory minimum penalties, and its still-unknown cost to taxpayers, a small but significant silver lining can be found in one of the nine bills that comprised C-10, the Justice for Victims of Terrorism Act (JVTA).

The JVTA has received little attention thus far, yet this landmark legislation would allow -- for the first time -- Canadian victims of terror to sue their terrorist perpetrators in Canadian courts.

Currently, Canadian law prohibits states from being sued except in relation to commercial matters. As such, state sponsors of terror are shielded from civil redress, and Canadian tax dollars are used to finance the defending of that state's immunity from liability.

Thus, prior to the passage of the JVTA, we had a situation where Canadian law unconscionably favoured foreign states that aided, and abetted terrorists over those Canadians who are harmed by that terror. As I said when introducing my own legislation on the topic in a previous Parliament, "we must rectify this inversion of rights and remedy this inversion of law and morality".

I supported the principles of the JVTA, and looked forwarded to its passage; however, when the Government unveiled the provisions as part of C-10, it was evident the bill needed improvement.

For example, the proposed legislation would allow suits against terrorist proxies of states but not states themselves. As such, a government directly engaging in a terrorist atrocity could hide behind certain agents of its criminality and not be liable for actions it itself committed, such as Libya in the Lockerbie bombing.

To correct this and other problems with the legislation, I proposed a series of amendments at legislative committee, explaining that I sought only to strengthen the bill. All of my amendments were summarily rejected by the Conservatives, as were all opposition amendments. There was no debate or consideration; indeed, I was accused of obstruction, and delay for merely suggesting these changes. In fact, at the next meeting, the Government moved to shut down debate entirely.

The Government eventually realized the merit of these amendments, and proposed them later in the House as their own. Unfortunately for the Government, the Speaker ruled them out of order as matters that could have been dealt with at committee -- and indeed, that is where they ought to have been addressed. While it is encouraging that the Senate has made amendments that accomplished most of what I propose, one significant flaw remains with the bill.

As passed, it is up to the Minister to designate which states can, and cannot be sued in Canadian courts under the new legislation. This risks the potential for politicization of the process. Indeed, during Committee debate on similar legislation in the past, Victor Comras, a former senior official in the U.S. State Department, testified that maintaining a list of designated terrorist countries ended up undermining similar U.S. legislation.

In his testimony, Comras advised Canadian parliamentarians "Don't go there, don't enact that legislation." His exact words were, "If we had to do it over again, I have no doubt we would have done it without a list." He concluded his testimony with the words "Please learn from our lesson... do not make the same mistake."

Regrettably, the Government did not heed this advice and as such it may be that some Canadian victims of terrorism will not have their injustices redressed. Perhaps had this bill been stand-alone legislation and not rolled into the omnibus, this issue could have been debated and discussed properly.

Thus, while it may be imperfect -- and carries with it all that is flawed in the rest of C-10 -- Canadians should rejoice that they will now have a civil remedy against terrorism, a major step forward in the pursuit of justice, and holding perpetrators of terrorist acts to account.