Civil Remedies for Terrorism and State Immunity

• Author: François Larocque
• Pages: 425-457

425

Civil Remedies for Terrorism and

State Immunity

François Larocque

A. INTRODUCTION

The central theme of the Ottawa Principles is the protection of human

rights in the age of anti-terrorism. Most of the papers presented in the

course of the colloquium addressed the many thorny issues surrounding

access to information, investigation, arrest, detention, and prosecution

of persons suspected of planning acts of terrorism. To be sure, the man-

ner in which our legal system treats the civil liberties of suspected ter-

rorists represents one of the most delicate and pressing questions of our

time, challenging as it does our constitutional commitment to human

rights and to the rule of law. But quite apart from terror suspects, this

paper seeks to provoke a discussion about the rights of another import-

ant group: the survivors and victims of terrorism. Though few would

dispute that individual victims of terrorism and their families deserve

some form of reparation, there has been conspicuously little debate on

the nature or scope of such reparation in Canada in general and at the

Ottawa colloquium in particular. In fact, aside from the opening address

by Susheel Gupta, whose mother was killed in the Air India Flight 182

bombing, and my own short presentation on the topic, there was very

little mention of victims or civil remedies during the three-day confer-

ence. This is unfortunate. In my view, the exercise of delineating the

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appropriate scope of criminal law in preventing, deterring, and punish-

ing terrorism should not be undertaken without also considering the

prospect of using civil litigation and tort law as a possible part of a com-

prehensive response to terrorism; a response that sensibly pursues both

the societal imperatives of criminal justice and the equally important

principle that individual wrongs be righted and compensated.

To be fair, the Ottawa Principles on Anti-terrorism and Human Rights

are not entirely unmindful of civil remedies. Principle 4.4, for instance,

recognizes the right of terror suspects who have been tortured while in

detention to sue and obtain adequate compensation.1 Unimpeachable as

that proposition may be, the Ottawa Principles unfortunately say noth-

ing about the rights of victims of terrorism to seek civil redress. Nor

does the Canadian Anti-terrorism Act2 provide victims of terrorism with

a right to sue.3 Quite simply, both Canadian and international law largely

ignore the plight of victims of terrorism who, save for mournful memor-

ials and annual televised tributes, are left alone to cope with their loss.

The aim of this paper is thus to spark a thoughtful and long over-

due debate both about the right of victims of terrorism to obtain a

civil remedy in Canadian courts and about the procedural obstacles to

such redress posed by the doctrine of state immunity. As will be seen,

though clearly not the largest impediment to civil actions for terrorism,

state immunity is currently at the forefront of the civil redress debate

in light of recent legislative and jurisprudential developments, which

will be discussed at length below. Section B broaches the general topic

of civil remedies for terrorism and discusses the broader social value

of responding to terrorism simultaneously through the civil and crim-

inal legal process. The articles that, in my opinion, ought to have been

included in the Ottawa Principles are set out and explained in section

C. Section D describes the international and national legal context in

which civil redress for terrorism and state immunity collide, and ana-

lyzes relevant legislative and jurisprudential developments both within

Canada and abroad. Indeed, when debating whether Parliament should

1 See the Ottawa Principles on Anti-Terrorism and Human Rights in Part One of this

book [Ottawa Principles].

2 S.C. 2001, c. 41.

3 F. Larocque & M.C. Power, “Bill C-36 Lacks Civil Remedies” The Lawyer’s Weekly

21:30 (7 December 2001).

civil remedies for terrorism and state immunity 427

provide victims of terrorism with the right to sue and obtain compensa-

tion from terrorist organizations and their state sponsors, it is useful

to consider the manner in which other jurisdictions have so legislated.

In this connection, the civil remedies provisions of the United States

anti-terrorism legislation will be discussed in section E, along with the

judicial treatment they have received.

B. GENERAL REMARKS ON CIVIL REMEDIES FOR

TERRORISM

It is not uncommon in many legal systems for harmful conduct to attract

both criminal and civil liability. In Canada, for instance, a reckless driver

can be convicted under section 219 of the Criminal Code4 in addition to

being found negligent in tort. Environmental damage, assault, fraud, and

unlawful detention are further examples of injurious behaviour capable

of attracting both criminal and civil responsibility. The reason for this

dédoublement of legal means is rooted in the basic proposition that the

effects of certain wrongs are felt both publicly and privately. Publicly, the

community has a clear and pressing interest in deterring reckless driving

or fraud because such crimes are harmful to the community as a whole.

Privately, the victim of an automobile accident has an interest in the loss

of income and life enjoyment that may result from her injuries. Accord-

ingly, in simultaneous furtherance of these public and private interests,

the law employs distinct juridical methods and standards to determine

the liability of the offender and to restore the injured parties.

In addition to pursuing compensatory goals, civil litigation serves

several other functions. For instance, tort actions have a distributive ef-

fect.5 Indeed, once the injured person has been made whole by the award

of damages against the responsible party, it is assumed that the latter

will in turn transfer the cost of his responsibility to the wider commun-

ity, for example, by increasing prices (in case of manufacturers) or taxes

4 R.S.C. 1985, c. C-46, s. 219.

5 The “distributive justice” function of civil actions is to be distinguished from the

paradigm of “corrective justice.” The former seeks to compensate the injured party

not by virtue of the injurer’s fault, but rather on the basis of the membership of

the parties to the community. On corrective and distributive justice generally, see

Aristotle, Éthique à Nicomaque, trans. by J. Tricot (Paris: Vrin, 1990) at 219–20. See

also E. Weinrib, “Aristotle’s Forms of Justice” (1989) 2 Ratio Juris 211 at 214.