The Solicitors Journal (UK) reports today that “Victims of international terrorist attacks can claim compensation”:
“Ministers announced in February that they would be cutting compensation for victims of domestic crime who currently qualify for compensation of £2,000 or less from the Criminal Injuries Compensation Scheme (see solicitorsjournal.com, 6 February 2012).
However, they said victims of overseas terrorist attacks, which took place from January 2002, would be entitled to apply for compensation on an ‘ex gratia’ basis.
The MoJ announced today that those caught up in six international incidents would be the first to be able to claim.
These are the nightclub bombing by Islamist extremists on the island of Bali, Indonesia, in October 2002, and the attack on Mumbai by Pakistan-based militants in November 2008.
Terrorist attacks on Red Sea resorts in Egypt, Sharm el Sheikh in 2005 and Dahab in 2006, and resorts in Turkey, Kusadasi in 2005 and Marmaris in 2006 complete the list.
A spokeswoman for the MoJ said people injured in other terrorist attacks abroad can apply to the foreign secretary, who will consider adding the incident to the scheme.”
The report cites a Ministry of Justice spokeswoman that the “[UK] government would introduce a statutory scheme for future terrorist incidents as soon as parliamentary time allowed.”
Back here in the Colonies, the Canadian government recently enacted Bill C-10 (short title: Safe Streets and Communities Act), an omnibus criminal law statute, which received Royal Assent on March 13, 2012.
Unlike the UK’s direct compensation scheme, Part 1 of Bill C-10 includes a new Act, the “Justice for Victims of Terrorism Act and to amend the State Immunity Act” [“JVTA”], which creates a specific cause of action for victims of terrorism, enabling them to sue for loss or damage as a result of actions punishable under the Criminal Code. This part also amends the State Immunity Act (“SIA”) lifting state immunity of foreign states that sponsor terrorism or terrorist activity.
Section 4 of the JVTA reads:
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 foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or other person that com¬mitted the act or omission that resulted in the loss or damage; or
(b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, 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 any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.
Conditions —hearing and determination of action by court (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 or the plaintiff is a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act.
Presumption (2.1) In an action under subsection (1), the defendant is presumed to have committed the act or omission that resulted in the loss or damage to the plaintiff if the court finds that
(a) a listed entity caused or contributed to the loss or damage by committing an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code; and
(b) the defendant — 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 any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.
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.
The JVTA further amends the SIA by adding the following definitions to section 2::
“terrorist activity” in respect of a foreign state has the same meaning as in subsection 83.01(1) of the Criminal Code, provided that a foreign state set out on the list referred to in subsection 6.1(2) does the act or omission on or after January 1, 1985.
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 any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.
Furthermore, section 6 is amended to include claims arising on after January 1, 1985:
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.
However, only states included in a list to be established by the Governor in Council will lose state immunity and may be sued ( JVTA, s.6(2)). The list must be established no later than six months after the day on which this section comes into force (JVTA, s. 6.1(3)). Clearly, the political winds of change will dictate who gets on, or stays off, the list.
The JVTA also removes previous barriers to enforcement, including restrictions on attachment and execution of foreign state property under ss. 11 and 12 of the SIA. The JVTA also empowers the Minister of Finance or the Minister of Foreign Affairs:
“within the confines of his or her mandate, [to] 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…”
For a more in-depth discussion of Canada’s approach to state immunity, see my recent article entitled, “Adjudicating International Human Rights Claims in Canada”, (2011), 8(3) Cdn. Int. Lawyer 117-133 (pdf).
Whether the legislative approach is to compensate victims directly or to lift state immunity and allow claimants to sue in the courts, the end result remains the same: access to justice. Nevertheless, until state immunity for torture and war crimes is also revoked, equal access to justice remains elusive.