March 20, 2012 | The Huffington Post

Bill C-10 Will Finally Punish Terrorists AND Their State Sponsors

Bill C-10, the government's controversial omnibus crime bill, recently passed third reading in the Senate and has been sent back to the House of Commons for a final vote. The legislation is expected to pass as early as this week with the support of the ruling Conservatives.

Senate committee hearings were rife with diverse witnesses advocating for myriad modifications to the bill. Yet only six amendments were ultimately adopted. The media's reporting of these amendments betrays some confusion, and this article is intended to set the record straight.

All six amendments relate to one portion of the bill — the Justice for Victims of Terrorism Act (JVTA). The JVTA is the product of seven years of advocacy by Canadian terror victims who were determined to create a new tool aimed at deterring future terrorist attacks.

The idea is this: Defeating terrorism requires disruption of the financial aid that individuals, organizations, and foreign states provide to terrorist entities. The criminal justice system is the obvious candidate to tackle this issue, as the Criminal Code contains a plethora of prohibitions surrounding terrorism. However, owing to a poor record of criminal prosecutions and convictions of terror financing, the JVTA was needed to add a different mechanism — the civil justice system — to Canada's counterterrorism arsenal.

Under the JVTA, terror victims will be able to file civil lawsuits against any listed terrorist entity (an individual or group identified by Cabinet as being associated with terrorism) or other person that causes loss or damage to a victim by contravening the Criminal Code's anti-terrorism provisions, as well as against a foreign state, listed entity or other person that breaches those provisions (such as knowingly providing financial support or safe haven) in relation to a listed entity.

But prior to the adoption of the Senate amendments (which were dubbed by advocates as the “Lockerbie Amendments”), the JVTA would have allowed the following absurd scenario: A foreign state decides to launch a terrorist attack by blowing up two planes of civilian passengers, which include Canadian citizens. The state attacks the first aircraft using a listed terrorist entity. It assaults the second aircraft using its own government agents. The JVTA would have permitted Canadians on the first plane to sue the responsible state because it sponsored a listed terrorist group to blow up the plane. Canadians on the second plane, though, would be unable to sue because the state committed the act directly.

The pre-amended JVTA, in other words, created a situation in which the same government planned for mass murder on two planes — but would be immune to suit in the second case only because it chose to commit the atrocity through its own officials rather than a listed terrorist entity.

Indeed, in the 1988 Lockerbie bombing case, Libya used its own agents to blow up a Pan Am flight en route from London to New York, killing all 243 passengers and 16 crew members. Under such circumstances, Libya could not be sued under the pre-amended JVTA, even though it was a state that also provided meaningful support to listed terrorist entities on other occasions. Only if Libya had used one of those listed entities to commit the particular act could victims file a civil claim against the state under the JVTA.

The Canadian Coalition Against Terror (C-CAT) therefore proposed its “Lockerbie Amendments,” which carefully and narrowly sought to broaden the scope of conduct for which a foreign state can be sued in a Canadian court. These amendments enable foreign states (although only those states designated by Cabinet as terror-sponsoring states) to be sued for direct Lockerbie-type terrorist activity on the condition that a Canadian court had already determined that the state supports or has supported terrorism.

In other words, once a court finds that a foreign state has supported terrorism and therefore loses its immunity, that foreign state will also not be immune from the court's jurisdiction in proceedings against it that relate to its direct terrorist activity. “Terrorist activity,” in turn, is defined in the amendments as having the same meaning that is already provided in section 83.01 of the Criminal Code. The remaining amendments are consequential ones made to the JVTA and the State Immunity Act to ensure consistency in the language.

By adopting the Lockerbie Amendments, the Senate filled a significant gap in the proposed law and should be commended. The bill has been strengthened to carry out the original intent of the JVTA — the deterrence of terrorism and terrorism financing.

States, organizations, and individuals beware: If you support or commit terrorist acts that affect Canadians, you will not be immune in a Canadian court.

Terror victims take comfort: at least some measure of justice may be around the corner.

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