Justice for Victims of Terrorism Act comes info force in Canada

By Christine Duhaime | March 13th, 2013

As anticipated, the federal Justice for Victims of Terrorism Act (the “Act“) came into force in Canada on March 13, 2013 without much fanfare.

The Act creates a cause of action that allows victims of terrorism to sue natural and legal persons (and of particular interest, listed entities) and certain foreign states, in a Canadian court for loss or damages suffered as a result of acts or omissions that are punishable under Part II.1 of the Criminal Code (the terrorism offences). The cause of action is available to victims who are Canadian, permanent residents or if none of those, if they can demonstrate a real and substantial connection between their claim and Canada.

Claims are available whether the loss occurred inside or outside Canada after January 1, 1985, however, if the loss occurs outside Canada, there must be a real and substantial connection to Canada. With respect to prospective defendants, under the Act a defendant is presumed to have committed the terrorist act if the listed entity caused or contributed to the loss or damage and the defendant committed the act for the listed entity.

The Act also suspends certain limitation periods where the victims are incapable of commencing an action because of physical, mental and psychological conditions, or when the victim is unable to ascertain the identity of a perpetrator.

The Act amends the State Immunity Act to create a new exception to state immunity, the general rule that prevents states from being sued in Canada’s domestic courts. The exception removes state immunity only if the state in question has been placed on a list established by Cabinet on the basis that there are reasonable grounds to believe that it has supported or currently supports terrorism.

The relaxation of state immunity is somewhat controversial. Under international law, states have customarily enjoyed complete immunity from being sued in the domestic courts of other states. This arises from the international law principle of the sovereign equality of states, which includes the principle that no one state be subject to the courts of another. This principle has been modified for years in the context of maritime law as a result of commercial necessity.

The Act is of questionable constitutionality because it allows victims to recover for tortious conduct which is a matter of provincial, not federal, competence under §92(13) of the Constitution Act, 1867. No doubt the first defendant will challenge the constitutionality of the Act.

The U.S. is the only other country with similar legislation – the Anti Terrorism and Effective Death Penalty Act of 1996.

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