Bill C-35: An Act to deter terrorism, and to amend the State Immunity Act

C-35 Second Session, Fortieth Parliament, 57-58 Elizabeth II, 2009 HOUSE OF COMMONS OF CANADA BILL C-35 An Act to deter terrorism, and to amend the State Immunity Act first reading, June 2, 2009 MINISTER OF PUBLIC SAFETY 90515 SUMMARY This enactment creates, in order to deter terrorism, a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters. The enactment also amends the State Immunity Act to prevent a foreign state from claiming immunity from the jurisdiction of Canadian courts in respect of actions that relate to its support of terrorism. Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca .vis1 {position: absolute;display:block;} .vis2 {position: static;} 2nd Session, 40th Parliament, 57-58 Elizabeth II, 2009 house of commons of canada BILL C-35 An Act to deter terrorism, and to amend the State Immunity Act Preamble Whereas Canadians and people everywhere are entitled to live their lives in peace, freedom and security; Whereas Parliament recognizes that terrorism is a matter of national concern that affects the security of the nation and considers it a priority to deter and prevent acts of terrorism against Canada and Canadians; Whereas acts of terrorism threaten Canada’s political institutions, the stability of the economy and the general welfare of the nation; Whereas the challenge of eradicating terrorism, with its sophisticated and trans-border nature, requires enhanced international cooperation and a strengthening of Canada’s capacity to suppress and incapacitate acts of terrorism; 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 acts of terrorism; Whereas Canada ratified the 1999 International Convention for the Suppression of the Financing of Terrorism on February 15, 2002; Whereas hundreds of Canadians have been murdered or injured in terrorist attacks; Whereas terrorism is dependent on financial and material support; Whereas certain states that support terrorism should not benefit from state immunity in this regard; And whereas Parliament considers that it is in the public interest to enable plaintiffs to bring lawsuits against terrorists and their supporters, which will have the effect of impairing the functioning of terrorist groups in order to deter and prevent acts of terrorism against Canada and Canadians; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title 1. This Act may be cited as the Justice for Victims of Terrorism Act. INTERPRETATION Definitions 2. The following definitions apply in this Act. “foreign state”« État étranger » “foreign state” has the same meaning as in section 2 of the State Immunity Act. “listed entity”« entité inscrite » “listed entity” has the same meaning as in subsection 83.01(1) of the Criminal Code. “person”« personne » “person” includes an organization as defined in section 2 of the Criminal Code. PURPOSE Purpose 3. The purpose of this Act is to deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters. CAUSE OF ACTION 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 of the Criminal Code. Real and substantial connection to Canada (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. Suspension of limitation or prescription period (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 of 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). Refusal to hear claim (4) The court may refuse 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. Judgments of foreign courts (5) A court of competent jurisdiction must recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or damage referred to in subsection (1). However, if the judgment is against a foreign state, that state must be set out on the list referred to in subsection 6.1(2) of the State Immunity Act for the judgment to be recognized. R.S., c. S-18 AMENDMENTS TO THE STATE IMMUNITY ACT 5. The heading before section 2 of the French version of the State Immunity Act is replaced by the following: Explanatory NotesState Immunity Act Clause 5: Existing text of the heading: INTERPRETATION Notes explicativesLoi sur l’immunité des États Article 5 : Texte de l’intertitre : DÉFINITIONS DÉFINITIONS ET INTERPRÉTATION 6. The Act is amended by adding the following after section 2: Clause 6: New. Article 6 : Nouveau. Meaning of supports terrorism 2.1 For the purposes of this Act, a foreign state supports terrorism if it commits, for the benefit of or otherwise in relation to a listed entity as defined in subsection 83.01(1) of the Criminal Code, 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 of the Criminal Code. 7. The Act is amended by adding the following after section 6: Clause 7: New. Article 7 : Nouveau. Support of terrorism 6.1 (1) A foreign state that is set out on the list referred to in subsection (2) is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism on or after January 1, 1985. List of foreign states (2) The Governor in Council may, by order, establish a list on which the Governor in Council may set out the name of a foreign state if, on the recommendation of the Minister of Foreign Affairs made after consulting with the Minister of Public Safety and Emergency Preparedness, the Governor in Council is satisfied that there are reasonable grounds to believe that the foreign state supported or supports terrorism. Application to be removed from list (3) On application in writing by a foreign state, the Minister of Foreign Affairs must, after consulting with the Minister of Public Safety and Emergency Preparedness, decide whether there are reasonable grounds to recommend to the Governor in Council that the applicant no longer be set out on the list. Notice of decision to applicant (4) The Minister must without delay give notice to the applicant of the Minister’s decision respecting the application. New application (5) A foreign state set out on the list may not make another application under subsection (3), unless there has been a material change in its circumstances since the foreign state made its last application or the Minister has completed the review under subsection (6). Review of list (6) Two years after the establishment of the list, and every two years after that, the Minister of Foreign Affairs must review the list in consultation with the Minister of Public Safety and Emergency Preparedness to determine whether there are still reasonable grounds, as set out in subsection (2), for a foreign state to be set out on the list and make a recommendation to the Governor in Council as to whether the foreign state should remain set out on the list. The review does not affect the validity of the list. Completion of review (7) The Minister must complete the review as soon as feasible, but in any case within 120 days, after its commencement. After completing the review, the Minister must without delay cause a notice to be published in the Canada Gazette that it has been completed. 8. Subsection 11(3) of the Act is replaced by the following: Clause 8: Existing text of subsection 11(3): (3) This section does not apply to an agency of a foreign state. Article 8 : Texte du paragraphe 11(3) : (3) Le présent article ne s’applique pas à un organisme d’un État étranger. Exception (3) This section does not apply either to an agency of a foreign state or to a foreign state that is set out on the list referred to in subsection 6.1(2) in respect of an action brought against that foreign state for its support of terrorism. 9. (1) Paragraph 12(1)(b) of the Act is replaced by the following: Clause 9: (1) and (2) 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 Article 9 : (1) et (2) Texte du passage visé du paragraphe 12(1) : 12. (1) Sous réserve des paragraphes (2) et (3), les biens de l’État étranger situés au Canada sont insaisissables et ne peuvent, dans le cadre d’une action réelle, faire l’objet de saisie, rétention, mise sous séquestre ou confiscation, sauf dans les cas suivants : [...] b) les biens sont utilisés ou destinés à être utilisés dans le cadre d’une activité commerciale; (b) the property is used or is intended to be used for a commercial activity or, if the foreign state is set out on the list referred to in subsection 6.1(2), is used or intended to be used by it to support 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 foreign state is set out on the list referred to in subsection 6.1(2) and the attachment or execution relates to a judgment rendered in an action brought against it for its support of terrorism and to property other than property that has cultural or historical value. 10. The Act is amended by adding the following after section 12: Clause 10: New. Article 10 : Nouveau. 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 or the Minister of Foreign Affairs may, within the confines of his or her mandate, assist, to the extent that is reasonably practical, any judgment creditor in identifying and locating the following property, unless the Minister of Foreign Affairs believes that to do so would be injurious to Canada’s international relations or either Minister believes that to do so would be injurious to Canada’s other interests: (a) in the case of the Minister of Finance, the financial assets of the foreign state that are held within Canadian jurisdiction; and (b) in the case of the Minister of Foreign Affairs, the property of the foreign state that is situated in Canada. Disclosure of information (2) In exercising the power referred to in subsection (1), the Minister of Finance or the Minister of Foreign Affairs, as the case may be, may not disclose (a) information that was produced in or for a government institution, without the authorization of the government institution; and (b) information produced in circumstances other than those referred to in paragraph (a), without the authorization of the government institution that first received the information. Definition of “government institution” (3) In subsection (2), “government institution” means any department, branch, office, board, agency, commission, corporation or other body for the administration or affairs of which a minister is accountable to Parliament. 11. Subsection 13(2) of the Act is replaced by the following: Clause 11: Existing text of subsection 13(2): (2) Subsection (1) does not apply to an agency of a foreign state. Article 11 : Texte du paragraphe 13(2) : (2) Le paragraphe (1) ne s’applique pas aux organismes des États étrangers. Exception (2) Subsection (1) does not apply either to an agency of a foreign state or to a foreign state that is set out on the list referred to in subsection 6.1(2) in respect of an action brought against that foreign state for its support of terrorism. Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada