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 viber database 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.