S-233
Second Session, Fortieth Parliament,
57-58 Elizabeth II, 2009
SENATE OF CANADA
BILL S-233
An Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism)
first reading, April 28, 2009
THE HONOURABLE SENATOR TKACHUK
3810449
SUMMARY
This enactment amends the State Immunity Act to prevent a 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.
It also amends the Criminal Code to provide victims who suffer loss or damage as a result of conduct that is contrary to Part II.1 of the Criminal Code (Terrorism) with a civil remedy against the person who engaged in the terrorist-related conduct.
Available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
2nd Session, 40th Parliament,
57-58 Elizabeth II, 2009
senate of canada
BILL S-233
An Act to amend the State Immunity Act and the Criminal Code (deterring terrorism by providing a civil right of action against perpetrators and sponsors of terrorism)
Preamble
Whereas United Nations Security Council Resolution 1373 (2001) reaffirms that acts of international terrorism constitute a threat to international peace and security, and reaffirms the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts;
Whereas Canada ratified the 1999 International Convention for the Suppression of the Financing of Terrorism (the “Convention”) on February 15, 2002;
Whereas article 4 of the Convention requires Canada as a signatory to take the necessary measures against any person that by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out offences under the Convention;
Whereas article 5 of the Convention states that each State Party shall ensure that legal entities liable in accordance with provisions of the Convention are subject to effective, proportionate and dissuasive criminal, civil or administrative sanctions that may include monetary sanctions;
Whereas the prohibition against terrorism, as well as the prevention, repression and elimination of terrorism, are peremptory norms of international law (jus cogens) accepted and recognized by the international community of States as a whole as norms from which no derogation is possible;
Whereas state immunity is generally accepted as being restrictive or relative, applying only to sovereign acts of state (acta jure imperii);
Whereas the support and financing of terrorism, which are criminal acts under international law, are not sovereign acts for which a state is entitled to immunity;
Whereas the Convention and the United Nations Declaration on Measures to Eliminate International Terrorism encourage states to review urgently the scope of existing international legal provisions on the prevention, repression and elimination of terrorism with the aim of ensuring that there is a comprehensive legal framework covering all aspects of the matter;
Whereas the victims of terrorist acts include the individuals who are physically, emotionally or psychologically injured by the terrorist acts, as well as their family members;
Whereas hundreds of Canadians have been murdered or injured in terrorist attacks;
Whereas the Government of Canada reported to the Security Council that fighting terrorism is of the highest priority for the Government of Canada;
Whereas it is a policy priority of the Government of Canada to deter and prevent terrorist attacks against Canada and Canadians;
Whereas terrorism is dependent on financial and material support;
Whereas it is in the public interest to enable plaintiffs to bring civil lawsuits against terrorists and their sponsors, which will have the effect of impairing the functioning of terrorist groups, thereby deterring and preventing future terror attacks;
And whereas it is in the public interest that judicial awards against persons who engage in terrorist activities are sufficiently large to deter future such conduct;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. S-18
STATE IMMUNITY ACT
1. The State Immunity Act is amended by adding the following after section 2:
Meaning of engaging in the support of terrorism
2.1 (1) For the purposes of this Act, a foreign state engages in the support of terrorism if the foreign state knowingly or recklessly provides, directly or indirectly, material support to a listed entity as defined in subsection 83.01(1) of the Criminal Code, or to a terrorist group as defined in subsection 83.01(1) of the Criminal Code that acts on behalf of, at the direction of or in association with a listed entity.
Definition of “material support”
(2) In this section, “material support” means currency or monetary instruments, financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, but does not include medicine or religious materials.
2. The Act is amended by adding the following after section 6:
Support of terrorism
6.1 (1) A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to the support of terrorism engaged in by the foreign state on or after January 1, 1985.
Engagement in terrorist activity
(2) A foreign state that, on or after January 1, 1985, engaged or engages in the support of terrorism is not immune from the jurisdiction of a court in any proceedings that relate to terrorist activity as defined in subsection 83.01(1) of the Criminal Code engaged in by the foreign state on or after January 1, 1985.
Exception
(3) Subsections (1) and (2) do not apply in respect of a foreign state that is
(a) designated as an extradition partner in the schedule to the Extradition Act; or
(b) bound by a bilateral extradition treaty with Canada.
3. Subsection 11(3) of the Act is replaced by the following:
Application of section
(3) This section does not apply to an agency of a foreign state or in respect of proceedings that relate to terrorist activity or the support of terrorism engaged in by a foreign state.
4. (1) Paragraph 12(1)(b) of the Act is replaced by the following:
(b) the property is used or is intended for a commercial activity, terrorist activity or the support of terrorism;
(2) Subsection 12(1) of the Act is amended by adding “or” at the end of paragraph (c) and by adding the following after that paragraph:
(d) the attachment or execution relates to a judgment rendered in any proceedings that relate to terrorist activity or the support of terrorism.
5. The Act is amended by adding the following after section 12:
Assistance for judgment creditors
12.1 (1) At the request of any party in whose favour a judgment is rendered against a foreign state in proceedings referred to in section 6.1, the Minister of Finance and the Minister of Foreign Affairs shall, within the scope of their powers and to the extent that is reasonably practicable, assist any judgment creditor or the court that has rendered the judgment in identifying and locating the property of that foreign state or any agency or instrumentality of the foreign state.
Definition of “instrumentality”
(2) In this section, “instrumentality”, in respect of a foreign state, means a legal entity
(a) that is separate from the foreign state; and
(b) in which the foreign state has a direct or indirect controlling or majority ownership interest.
6. Subsection 13(2) of the Act is replaced by the following:
Application of subsection (1)
(2) Subsection (1) does not apply to an agency of a foreign state or in respect of proceedings that relate to terrorist activity or the support of terrorism engaged in by a foreign state.
R.S., c. C-46
CRIMINAL CODE
7. The Criminal Code is amended by adding the following after section 83.33:
Action for Loss or Damage
Definition of “person”
83.34 (1) In this section, “person” includes a foreign state as defined in the State Immunity Act.
Action
(2) Any person, other than a foreign state, who has suffered loss or damage on or after January 1, 1985 as a result of conduct by any person that is contrary to any provision of this Part, whether the conduct occurred in or outside Canada, may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct an amount equal to the loss or damage proved to have been suffered by the person, together with any additional amount that the court may allow.
Deeming
(3) In any action under subsection (2), the defendant’s conduct is deemed to have caused or contributed to the loss or damage to the plaintiff if the court finds that
(a) a listed entity caused or contributed to the loss or damage to the plaintiff by engaging in conduct that is contrary to any provision of this Part, whether the conduct occurred in or outside Canada; and
(b) the defendant engaged in conduct that is contrary to any of sections 83.02 to 83.04, 83.08, 83.1, 83.11 or 83.18 to 83.231 for the benefit of or otherwise in relation to that listed entity.
Suspension of limitation period
(4) The running of any limitation period in respect of an action brought under subsection (2) is suspended during any period in which the person who suffered the loss or damage
(a) is incapable of commencing a proceeding by reason of any physical, mental or psychological condition; or
(b) is unable to ascertain the identity of the person who engaged in the conduct that resulted in the loss or damage.
Refusal to hear claim
(5) The court may refuse to hear a claim against a foreign state under subsection (2) if the loss or damage to the plaintiff occurred in the foreign state against which the action has been brought and the plaintiff has not afforded the foreign state a reasonable opportunity to arbitrate the dispute in accordance with accepted international rules of arbitration.
Judgments of foreign courts
(6) Any court of competent jurisdiction shall give full faith and credit to a judgment or order of any foreign court in favour of a person, other than a foreign state, who has suffered loss or damage as a result of conduct that is or, had it occurred in Canada, would be contrary to any provision of this Part.
Extradition partners
(7) For greater certainty, no proceedings may be brought under this section against a foreign state referred to in subsection 6.1(3) of the State Immunity Act.
Liability and burden of proof
(8) For greater certainty,
(a) criminal liability under this Part is not required to establish civil liability under this section; and
(b) the burden of proof in proceedings under this section shall be the balance of probabilities.
Jurisdiction
(9) For greater certainty,
(a) universal jurisdiction is not created in respect of the cause of action referred to in this section;
(b) this section does not affect the common law requirement that a real and substantial connection exist between the cause of action and Canada; and
(c) it is sufficient to establish that the plaintiff is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act in order to establish the existence of a real and substantial connection between the cause of action and Canada.
Published under authority of the Senate of Canada
Explanatory Notes
State Immunity Act
Clause 1: New.
Clause 2: New.
Clause 3: Existing text of subsection 11(3):
(3) This section does not apply to an agency of a foreign state.
Clause 4: Relevant portion of subsection 12(1):
12. (1) Subject to subsections (2) and (3), property of a foreign state that is located in Canada is immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture except where
. . . 
(b) the property is used or is intended for a commercial activity; or
(c) the execution relates to a judgment establishing rights in property that has been acquired by succession or gift or in immovable property located in Canada.
Clause 5: New.
Clasue 6: Existing text of subsection 13(2):
(2) Subsection (1) does not apply to an agency of a foreign state.
Criminal Code
Clause 7: New.