Tort au canadien: a proposal for Canadian tort legislation on gross violations of international human rights and humanitarian law.

• Author: Davidson, Caroline

ABSTRACT

Despite Canada's strong rhetoric on the protection of human rights, Canada lacks a meaningful tort scheme for gross human rights violations akin to that of the United States. This Article argues that legislation to facilitate tort suits for gross violations of international human rights and humanitarian law can be consistent with, and in fact supports, Canada's commitments to human rights, the rule of law and multilateralism. In particular, provincial tort legislation should be one of a panoply of mechanisms in place to punish and deter violations of international humanitarian and human rights law. This Article proposes the shape of the legislation with respect to such key considerations as jurisdiction, sovereign immunity, and exhaustion. It contends that to comport with Canada's strong backing for the international rule of law and emphasis on multilaterism and international cooperation, this "transnational" human rights legislation must be firmly grounded in international law with respect not only to the human rights norms covered but also to the jurisdictional principles to be applied.

 TABLE OF CONTENTS

1. INTRODUCTION II. OVERVIEW OF U.S. HUMAN RIGHTS TORT LEGISLATION AND CASE LAW A. ATCA B. TVPA C. Transnational Litigation III. LOOKING SOUTH: SHOULD CANADIANS HAVE ATCA- AND TVPA-STYLE LEGISLATION? A. Canada as Human Rights Champion and Good International Citizen 1. Canada as Multilateralist and Proponent of International Law 2. Canada as Human Rights Champion B. Tort Suits as a Means of Dealing with Gross

   Violations of Human Rights 1. The Benefits of Tort Suits for Human Rights Violations 2. The Drawbacks of Tort Suits for Human Rights Violations C. Would Tort Suits Work in the Canadian Context? 1. Constitutionality of Canadian Legislation. 2. Do ATCA-style Suits Translate Into Canadian? 3. Choice of Law 4. Will the United States Let Canada Get Away with this Sort of Legislation? IV. RECONCILING CANADA'S COMMITMENT TO HUMAN RIGHTS AND ITS INTERNATIONALISM A. Jurisdiction and Jurisdictional Immunities

   1. Universal Jurisdiction 2. Sovereign immunity

   2. Conduct Covered C. Non-State Actors as Possible Defendants

   4. Exhaustion Requirement E. Forum Non Conveniens F. Balancing Approach V. CONCLUSION

      I. INTRODUCTION

   Canadians pride themselves on their commitment to internationalism and human rights. Canada is a member of almost every international agency and organization. As one author has commented, "[N]o country belongs to more clubs." (1) In addition, Canada views itself as a champion of human rights. Canada's Department of Foreign Affairs and International Trade (DFAIT) proclaims on its website:

    A priority field of international concern and action for Canadians has been and remains that of human rights. The Government regards respect for human rights not only as a fundamental value, but also as a crucial element in the development of stable, democratic and prosperous societies

   at peace with each other. (2)

   Yet despite Canada's international inclinations and vociferous support for human rights, Canadian courts are much more closed to cases arising out of violations of international human rights law than are the courts of its purportedly more isolationist and international law-scoffing neighbor to the south.

   This seeming contradiction has caused something of a stir in the past year. Torture of Canadians abroad has garnered a great deal of attention in the Canadian press. Canadian headlines have been filled with reports of incidents of human rights violations: the torture and killing of an Iranian-Canadian journalist in Iranian custody in 2003, (3) the United States' rendition to Syria of a Syrian Canadian who was then tortured for months, (4) Saudi Arabia's detention and torture of a Canadian for thirty-one months (5) and others. Canadians have also been in the news as perpetrators of human rights violations. A Canadian oil company, Talisman, has come under fire for its role in human rights violations in the Sudan. (6) In the not so distant past, Canadian soldiers were also the alleged perpetrators of gross violations of human rights, particularly the torture of Shidane Arone in the Canadian military compound in Somalia. (7)

   Should these victims try to file suit in Canadian courts, they are likely to encounter some hurdles. Canadian law does not make bringing tort suits based on gross human rights violations easy. Canada has no equivalent to the U.S. Alien Tort Claims Act (ATCA) or Torture Victim Protection Act (TVPA), (8) which provide jurisdiction for violations of the "law of nations" and a cause of action for torture, respectively. (9)

   A recent case illustrates the difficulty of tort suits based on human rights violations in Canada. Houshang Bouzari, a prominent Iranian businessman and Canadian citizen, was jailed and tortured in Iran for eight months. Bouzari then sued Iran in an Ontario trial court for torture. (10) To the dismay of the human rights community in Canada, the case was dismissed on grounds of sovereign immunity. (11)

   Alternative human rights enforcement mechanisms in Canada are likewise inadequate. To comply with its obligations as a state party of the International Criminal Court (ICC), Canada passed domestic implementing legislation: the Crimes against Humanity and War Crimes Act (CAHWCA). (12) CAHWCA provides that genocide, crimes against humanity, and war crimes are indictable offenses under Canadian law, whether committed inside or outside of Canada. (13) CAHWCA "asserts universal jurisdiction, allowing Canada to prosecute anyone (regardless of nationality) present in Canada for the crimes listed in the CAHWCA." (14) So far, no cases have been brought under the CAHWCA. (15)

   Prior to CAHWCA, Canada unsuccessfully attempted to criminally prosecute and deport Canadian citizens found guilty of war crimes in Nazi-occupied Europe. (16) Canada amended its criminal code to allow extraterritorial jurisdiction for prosecution of war crimes or crimes against humanity if the accused is a Canadian citizen, if the accused is a citizen of a country at war with Canada, or if the victim is a Canadian citizen or a citizen of one of Canada's allies. (17) In 1994, in the first case to come before it under the amendment, the Supreme Court acquitted the defendant, Imre Finta, who was accused of war crimes and crimes against humanity against Hungarian Jews during World War II. (18) By January 1995, the Canadian government had announced a shift in its approach for dealing with individuals accused of war crimes and crimes against humanity who were present in Canada. (19) This shift stemmed in part from the perception that the Finta case established a burden of proof that was impossible to meet. (20) The government announced a new policy, whereby it "would respond with administrative actions seeking the denaturalization, revocation of citizenship, and/or deportation of offenders" in lieu of prosecution. (21)

   Unfortunately, immigration law is a blunt tool for holding human rights violators accountable for their transgressions and for providing victims with a legal voice. The government has allowed a great number of violator-deportees to escape. (22) In addition, as in criminal cases, victims play no role in directing the government's immigration and deportation proceedings against human rights violators.

   International mechanisms are similarly limited: most afford an individual victim no means by which to bring a case. As one scholar has explained,

    [i]nstitutions based on the U.N. Charter, international multilateral treaties, or regional agreements typically address state responsibility and norm compliance but do not assign liability

   to individual defendants, generate enforceable remedies, or provide

   victims with a judicial forum in which to bear witness and confront

   their abusers. (23)

   Ad hoc criminal tribunals are plagued by budgetary concerns and can process relatively few claims. (24) The ICC lacks money (and, notoriously, U.S. support) and has very limited jurisdiction. (25)

   This Article argues that Canada should enact legislation that provides universal jurisdiction for tort suits involving gross violations of international human rights law, akin to the U.S.'s TVPA. This Article gives an overview of the shape the legislation should take. Part II discusses the U.S.'s ATCA, (26) the TVPA, and the emerging field of transnational public law litigation. Part III examines whether such legislation would be appropriate and feasible in Canada and concludes that it is. Provincial tort legislation should be one of a panoply of mechanisms to punish and deter violations of humanitarian and human rights law. Part IV proposes the shape of the legislation with respect to such key considerations as jurisdiction, sovereign immunity, and exhaustion. Such legislation should be firmly grounded in international law with respect to both human rights and jurisdictional norms. This "transnational" legislation is consistent with Canada's various identities as protector of human rights, rule-abiding international player, and proponent of multilateral solutions to international problems.

2. OVERVIEW OF U.S. HUMAN RIGHTS TORT LEGISLATION AND CASE LAW

   1. ATCA

      The United States has been the host to a variety of tort suits for human rights abuses since the 1980s. The ATCA, which provides that federal district courts "shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States," (27) has played a central role in these human rights suits. For roughly two hundred years, "the statute was largely ignored, rarely cited, and relied upon in only two cases." (28) The history and intended purpose of the statute are hotly debated. (29) As one judge put it, "[t]his old but little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act ... no one seems to know whence it came."...