The CCIJ is involved in two important policy areas concerning the opportunity for survivors to pursue compensation through civil litigation in Canadian courts. This option is important for survivors because criminal prosecutions normally require the participation of the Canadian government which results in only a small number of cases. Since the Crimes Against Humanity and War Crimes Act was passed in 2000 to empower Canadian criminal courts to try suspects accused of committing atrocities abroad, the Canadian government has convicted only one person. The federal War Crimes Program tasked with pursuing these cases has not received a funding increase at any time during its ten-year existence. Civil litigation can be initiated by the survivors themselves, giving them greater control over a case, and provides the possibility of compensation.
Reform of the State Immunity Act
Canada's State Immunity Act generally gives foreign governments immunity in Canadian courts, making it very difficult for survivors to seek compensation for torture and other atrocities committed by those governments.
Several years ago, an amendment to the State Immunity Act was proposed by several Canadian organizations and individual lawyers but was not pursued again after the federal elections of 2006. Now, based on the conclusions reached at an important workshop of experts in 2008, the CCIJ is leading an effort to seek other means for amending the State Immunity Act.
Bill C-483: Redress for Victims of International Crimes Act
On March 3, 2010, MP Irwin Cotler re-introduced a bill in Parliament to deny immunity to countries and officials alleged to be responsible for atrocities. The bill would create a human rights exception to the State Immunity Act's general rule that foreign governments cannot be sued in Canadian courts. The exception would remove the key barrier to lawsuits involving torture, genocide, war crimes and crimes against humanity.
Leading up to the introduction of the bill, the CCIJ testified before the House of Commons Subcommittee on International Human Rights as part of the Subcommittee's series of hearings on human rights in Iran. The CCIJ expressed to the committee the need to amend the State Immunity Act to allow survivors of torture to seek redress and compensation against governments and officials responsible for their torture. Transcripts, video and audio recordings of the CCIJ's testimony are available on the committee's website.
The Subcommittee released its report in December 2010 and recommended that the Government of Canada remove immunity in cases of gross violations of human rights law.
CCIJ again appeared before the International Human Rights Subcommittee March 2011 to advocate for the passage of Bill C-483. Transcripts, video and audio recordings of the CCIJ's testimony are available on the committee's website.
Iran has become a centerpiece of the state immunity debate in Canada because the country has twice been sued for its involvement in torture. In 2004, the Ontario Court of Appeal ruled that the State Immunity Act prevented torture survivor Houshang Bouzari from pursuing a case against Iran. The son of Iranian-Canadian photojournalist Zahra Kazemi is now pursuing a lawsuit against Iran for her torture and murder in 2003.
- Read about the Bouzari case, dismissed on state immunity grounds
- Read about the CCIJ's intervention on the state immunity issue in the Kazemi case
Following the ruling in the Bouzari case, the United Nations Committee Against Torture, the body tasked with overseeing the implementation of the Convention Against Torture, has signaled that Canada has incorrectly interpreted its legal obligations under the treaty. In 2006, Canada told the Committee it was only obligated to provide legal remedies to people tortured in Canada. The Committee rejected this interpretation and instead told Canada it must provide remedies to all torture survivors.
In November 2010, the Senate passed legislation to amend the State Immunity Act and allow suits against countries that support terrorism. The CCIJ had previously called on the government to also remove immunity in cases of torture, genocide, crimes against humanity and war crimes.
Although the bill did not pass the House of Commons before the 2011 election, the provisions removing immunity in cases of terrorism were included in the Omnibus Crime Bill (C-10) that was passed into law in 2012.
U.N. Committee against Torture
In April 2012, CCIJ submitted a report to the United Nations Committee against Torture, the institution responsible for interpreting and implementing the Convention against Torture. CCIJ's report focused on Canada's application of immunity and its ongoing violation of obligations under the Convention to provide civil redress to survivors of torture.
The Committee examined Canada on May 21 and 22, 2012. The Canadian Press reported that Canadian officials expected to be "grilled" about several subjects relating to torture. Talking points for Canada's delegation on the issue of civil redress for survivors of torture that occurred outside Canada show that the Canadian government continues to cling to the claim - already thoroughly rejected by the Committee - that the Torture Convention does not obligate Canada to provide survivors access to Canadian courts. The talking points then assert that providing access to the courts would contravene principles of state immunity. However, the talking points go on to discuss the passage of Bill C-10 and its elimination of immunity in cases of terrorism without addressing why that particular contravention of the principles of state immunity is permissible.
In its Concluding Observations, the Committee made several favourable comments concerning the issues CCIJ addressed. In particular, “The Committee remains concerned at the lack of effective measures to provide redress, including compensation, through civil jurisdiction to all victims of torture, mainly due to the restrictions under provisions of the State Immunity Act (art. 14). The State party should ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture occurred and regardless of the nationality of the perpetrator or victim. In this regard, it should consider amending the State Immunity Act to remove obstacles to redress for all victims of torture.”
CCIJ highlighted those comments in a report to Heritage Canada.
Civil Litigation Workshop
On November 7 and 8, 2008, the CCIJ, along with the University of Ottawa and Amnesty International-Canada, hosted Universal Jurisdiction and Canadian Civil Courts: Strategic Directions, a workshop about civil litigation remedies for torture survivors in Canada. The workshop brought together practitioners, academics and other experts to discuss a comprehensive strategy to improve the access of survivors to Canadian courts. Participants discussed various proposals for pursuing test cases and law reform and outlined the steps that need to be taken in a number of areas including the State Immunity Act and the types of claims that survivors can pursue.
Legislation Permitting Suits
Even if the immunity barrier is removed, at present the only option to obtain compensation in Canadian courts for atrocities committed abroad is through provincial tort law. (Someone commits a "tort" when he/she harms another person’s body, property or legal rights or breaches some legal duty to another person.) Often this includes claims such as assault, battery, infliction of emotional distress, wrongful death and others. Using existing tort law to pursue redress for atrocities committed abroad gives rise to some potential barriers, sometimes including the need to initiate the case within a short time frame. Some cases, however, are now trying to bring international law claims in domestic tort cases and arguing that Canada's common law should recognize the international law claims, such as torture. The CCIJ continues to monitor developments in cases and to discuss with other experts whether law reform is needed in this area.