This country is signatory to international agreements whose aim is to uphold human rights. But there is a Canadian statute that some say actually helps terrorists and rogue states escape justice

February 10, 2008
Debra Black
Staff Reporter

On Sept. 11, 2001 Maureen Basnicki's world came crashing down. Her husband Ken was killed in New York City when two planes crashed into the Twin Towers of the World Trade Centre.

Now, some six years later, Basnicki wants the right to sue, here in Canada, terrorists or foreign states or organizations that support terrorists. But something is stopping her: a Canadian law. The State Immunity Act prohibits taking sovereign states or individuals from abroad into court in Canada unless it's for business reasons.

Basnicki believes that's wrong. She feels she has been denied her civil rights to seek redress in a Canadian court. "I don't want the most obvious crimes against humanity to be protected by state immunity," she says. She's worked over the past six years, along with the Canadian Coalition Against Terror, to get changes to the State Immunity Act. Now Basnicki is hoping a private member's bill, introduced in the Senate late last year, will be passed, amending the act to allow her and other victims of terrorism to sue here in Canada.

Basnicki isn't the only one who wants to see the State Immunity Act changed. Many others – including Ottawa-based Amnesty International Canada and human rights lawyers Lorne Waldman and Mark Arnold – would like to see the act amended so that those who have experienced gross violations of human rights and torture are also allowed to have their day in court.

Alex Neve, secretary-general of Amnesty International Canada, believes the State Immunity Act is "an obstacle to survivors of serious human rights violations abroad" and prohibits them from being able to seek redress and compensation, which is their right under both Canadian and international law.

Says Neve: "When people experience torture or other grave human rights abuses it's not just a good thing or a nice thing they be allowed to pursue a remedy. It's a right itself."

That right is enshrined in international human rights law in the United Nations International Covenant on Civil and Political Rights and the U.N. Convention against Torture, Neve says. Canada is a signatory to both treaties, which makes the State Immunity Act problematic, he believes.

And in a shrinking world, he continues, the pursuit of legal redress to human rights violations or abuses abroad is becoming increasingly important – a modern-day phenomenon that needs a place to be heard.

"When someone has experienced torture in Syria, in Iran, in Egypt or perhaps Ethiopia," Neve says, "it would be a good thing if they could pursue justice in the country it happened in. But with the state of justice in those countries that's an illusion."

The question remains however: Does the fact justice is an illusion in many countries mean a person should have nowhere to turn?

The international community – including Canada – has long recognized that all countries have a responsibility to ensure there is justice when it comes to human rights abuses such as torture and that there should be universal jurisdiction over those crimes. Yet the State Immunity Act precludes that here. "It says that you cannot turn to the courts to sue another foreign government except for commercial matters," says Neve. "It doesn't create an exemption for torture, genocide, war crimes, crimes against humanity."

Last November, Waldman decided to put the State Immunity Act to the test, challenging it in the Ontario's Superior Court. He filed a lawsuit against the Ethiopian government and two Ethiopian officials for violating the human rights of Bashir Makhtal, a Canadian who has been detained in jail in Addis Ababa without being charged or being allowed to see a lawyer. Makhtal has been held incommunicado for over a year. He was rendered from Kenya to Ethiopia via Somalia just over a year ago. Waldman hopes the case will lead to changes in the State Immunity Act, and pressure the Canadian and Ethiopian governments to resolve Makhtal's case and perhaps return his freedom.

For Waldman, the bottom line is simple: Canadians who have been subjected to violations of human rights abroad – particularly in countries where there is no due process and no way of seeking legal redress – are being denied any opportunity to seek legal redress here, because of the State Immunity Act.

Canada isn't the only country that doesn't allow foreign countries to be sued at home. Britain . doesn't allow for it, as Canadian-born William Sampson found out when he tried to sue Saudi Arabia for torture he experienced in jails there. His case was at first supported but then rejected by the British House of Lords.

"There are a lot of people who are going to be denied the right to seek redress in Canadian courts for violations in foreign jurisdictions because of lack of due process," Waldman says. Maher Arar – the Canadian rendered to Syria, kept in prison for a year and tortured – is a case in point, he adds. He was not allowed to seek redress in Syria, or in Canada or the United States, for those human rights violations.

Similarly, Bashir Makhtal is being denied fundamental human rights in Ethiopia, says Waldman. All the Ethiopian government has said to Canadian officials is that when it has finished its investigation of Makhtal he will be allowed to see Canadian officials, notes his cousin Said Maktal, who has been fighting to free Bashir. Said Maktal plans to meet with government officials and foreign affairs critics in Ottawa in another attempt to get the Canadian government to secure his brother Bashir's release.

Without political will in Canada to help him or legal redress in Ethiopia, Bashir Makhtal has no choice but to try to sue here in Canada, says Waldman. "The Ethiopian government won't even follow its own constitution and give him due process. The judicial system is not fair and impartial there."

Waldman is hoping Canadian courts will allow Makhtal's case to be heard here. If not, he hopes Ottawa will amend the State Immunity Act to allow eventual prosecution of cases like Makhtal's or Arar's in Canadian courts, especially if Parliament and the Senate end up passing Basnicki's proposed amendment. "We're hopeful there will be some amendment," he says. Neve hopes that when a judge reviews the case involving Bashir Makhtal and his civil suit against the Ethiopian government he or she will carve out an exemption allowing cases to proceed. Otherwise the State Immunity Act will continue to stand in the way of justice for people experiencing unlawful imprisonment and possibly torture.

If the courts turn Makhtal's case away, they will essentially be saying a Canadian citizen cannot use the courts as a vehicle to bring human rights violations in another country to an end, Neve says. There may be no recourse but for Parliament to intervene and pass legislation that would not only allow Canadians to sue countries that support terrorism but also countries that violate human rights.

Some fear if the act is changed to allow cases like Makhtal's, it might trigger a bureaucratic and judicial nightmare as Ottawa tried to come to grips with how decisions would be enforced, how governments and or organizations might pay damages, and who would ultimately be responsible for enforcing any decisions from a Canadian court on international protagonists.

A legal challenge to the State Immunity Act has not worked in the past. Toronto human rights lawyer Mark Arnold represented Houshang Bouzari – a Toronto-area man imprisoned and tortured in Iran – in a series of legal challenges, including one in 2005. The Ontario Court of Appeal rejected the argument that liability for torture was an exemption under the act. And the Supreme Court of Canada refused to hear the appeal.

A serious problem is that other countries' legal systems bear little resemblance to Canada's. "The law should be changed particularly with respect to countries that don't have a judicial system similar to ours," says Arnold.

For the most part, federal politicians have been reluctant to step into the fray, arguing it would interfere with the affairs of another country. But lawyers Arnold and Waldman, and Amnesty International's Neve, say it is necessary to be able to sue foreign states in Canadian courts when it comes to human rights.

They argue that in a world where terrorism and human rights abuses and torture are becoming part of everyday life, the act must be changed. The United Nations Committee on Torture is in agreement, recommending Canada review its compliance with the Convention Against Torture so victims have a way to seek compensation in this country's civil courts.


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