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.
Redress for Victims of International Crimes Act
On November 26, 2009, MP Irwin Cotler 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, on April 30, 2009, 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. Video and
audio recordings and a transcript of the CCIJ's testimony are available
on the committee's website.
On June 2, 2009, the Canadian government introduced legislation to amend the State Immunity Act and allow suits against countries that support terrorism. The CCIJ called on the government to remove also immunity in cases of torture, genocide, crimes against humanity and war crimes.
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 family of Iranian-Canadian photojournalist Zahra Kazemi is now pursuing a lawsuit against Iran for her torture and murder in 2003. Iran has claimed immunity and the CCIJ is attempting to intervene in the case to offer arguments about the state immunity issue.
- Read about the Bouzari case, dismissed on state immunity grounds
- Read about the CCIJ's attempt to intervene 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.
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. The CCIJ continues to monitor developments in cases and to discuss with other experts whether law reform is needed in this area.
