Joginder Singh Toor writes from Toronto

FIGHTING terrorism is supposed on the top of agenda of every country bitten by it; in ways different, means varying, goals less achieved than claimed. The world is ripped apart, people horrified, politicians puzzled and political thinkers standing on different podiums miles away from each other.

The government of Canada “committed to fighting terrorism” and “holding the supporters and perpetrators of terrorism accountable for their actions” has introduced Bill C 35 for passing The Justice for Victims of Terrorism Act for complimenting and supplementing “The Canada’s existing counter terrorism measures aimed at deterring terrorism.” The bill has been introduced “respondent to calls from victims, and demonstrating Canada’s leadership against supporters of terrorisms around the world” as claimed by Minister of Public Safety in his introductory note of June 2nd 2009 and a link to Bill C 35.

The Bill creates a cause of action for victims of terrorism, allowing them to sue perpetrators and supporters of terrorism. The legislation will allow any person who can demonstrate a real and substantial connection between their cause of action and Canada. The claim for compensation can be filed against any state in a court of Canada if the plaintiff is able to prove the link between Canada and the plaintiff as well as the defendant and other parties. The courts in Canada are being given powers to hear cases against foreign states who are the perpetrators of terrorism for cause of action arising anywhere in the world if a link is shown between the two.

In litigation against a foreign state in any country, the state raises the plea of “sovereign immunity” from being sued in a foreign country. The Bill C 35 seeks to amend the State Immunity Act so as to deprive the foreign states, listed by the government of Canada from claiming immunity, deemed to have supported terrorist activities. As a result the plaintiff can seek redress for terrorist acts committed anywhere in the world on or after January 1, 1985. The date has been chosen so as to cover the case of victims of air India flight 182 disaster of June 23, 1985.

The problem of enforcement of judgment passed by the court in Canada, against a foreign state, individual or institution, is sought to be solved by declaring that the defendant including the foreign state is under an obligation to comply with the court’s decision. Failure to do so would expose the foreign state’s seizure of assets and property in Canada including the money lying in banks. The plaintiff can seek the help of Ministers of Foreign Affairs and Finance to identify and locate the assets of the state under Canadian jurisdiction. The ministers however will consider Canada’s interests and international relations in determining if and to what extent they may provide assistance.

If the defendant has assets located in foreign jurisdictions he will have to follow the process himself in locating the assets and recognition of the judgment.

Canada’s initiative is aimed at and inspired by the threat to Canada’s political institutions, the stability of the economy and general welfare of the nation. It is in conformity of United Nations Resolution 1373 (2001) reaffirming the apprehension from terrorism as a threat to international peace. Canada has ratified the 1999 international convention for the suppression of financing terrorism. The need is aggravated by the fact that many Canadians have been murdered or injured as a result of terrorist acts, supported, financed and perpetrated by certain foreign states.

There is on going controversy on certain provisions in legal circles in Canada. One is that of identifying the states supporting terrorism. The USA currently as listed Cuba, Syria, Iran and Sudan as terror sponsors. In some of the countries USA has identified certain groups, institutions, and political parties as terror sponsors not the country itself. The current legislation Bill C 35 empowers the ministers of Public Safety and Foreign Affairs to recommend to the Governor-in-Counsel the names of the states to be so declared or deleted. Canada proposes to empower courts to pass judgments against non-extradition treaty states also if so listed by the government.

A private member Bill C408 tabled by Liberal former Justice Minister Irwin Cotler intends to broaden the number of states that could be sued.

There is apprehension that Canadian courts would be flooded by such litigation which apprehension by some circles is thought to be baseless as in their view Canadian courts do not entertain frivolous litigation.

The measure is hard to achieve but if passed it can set a pace for other countries to follow, particularly India, grievously hurt by terrorism supported by adjoining countries to groups operating in India from inside and outside.

To know exactly what the crux of the litigation is, it is contained in section 4 of the act.

Cause of Action;

4. (1) Any person that has suffered loss or damage in or outside Canada on or after January 1, 1985 as a result of an act or omission that is, or had it been committed in Canada would be, punishable under Part II. 1 of the Criminal Code, may, in any court of competent jurisdiction, bring an action to recover an amount equal to the loss or damage proved to have been suffered by the person and obtain any additional amount that the court may allow, from any of the following:

(a) any listed entity or other person that committed the act or omission that resulted in the loss or damage; or

(b) a foreign state or listed entity or other  person that—for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a)—committed an act or omission that is, or had it been committed in Canada would be, punishable under sections 83.02 to 83.04 or 83.18 to 83.23 or the Criminal Code.

(2) A court may hear and determine the action referred to in subsection (1) only if the action has a real and substantial connection to Canada.

(3) A limitation or prescription period in respect of an action brought under subsection (1) does not begin before the day on which this section comes into force and is suspended during any period in which the person that suffered the loss or damage

(a) is incapable or beginning the action because of any physical, mental or psychological condition; or

(b) is unable to ascertain the identity of the listed entity person or foreign state referred to in paragraph (1)(a) or (b).

(4) the court may reuse to hear a claim against a foreign state under subsection (1) if the loss or damage to the plaintiff occurred in the foreign state and the plaintiff has not given the foreign state a reasonable opportunity to submit the dispute to arbitration in accordance with accepted international rules of arbitration.

Section 6 of The State of Immunity Act along with some other sections shall also stand amended so as to read, “A foreign state that is set out on the list referred to subsection 2 is not immune from the jurisdiction of the court in proceeding against it for its support to terrorism on or after January 1, 1985.”

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court, jogindersingh_toor@yahoo.com Mobile 91-98151-33530]

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