ARCHIVED — Vol. 146, No. 20 — September 26, 2012

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Registration

SOR/2012-170 September 7, 2012

STATE IMMUNITY ACT

Order Establishing a List of Foreign State Supporters of Terrorism

P.C. 2012-1067 September 7, 2012

Whereas the Governor in Council, on the recommendation of the Minister of Foreign Affairs made after consultation with the Minister of Public Safety and Emergency Preparedness, is satisfied that there are reasonable grounds to believe that each of the foreign states set out on the list established by the annexed Order supported or supports terrorism;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to subsection 6.1(2) (see footnote a) of the State Immunity Act (see footnote b), makes the annexed Order Establishing a List of Foreign State Supporters of Terrorism.

ORDER ESTABLISHING A LIST OF FOREIGN STATE SUPPORTERS OF TERRORISM

List

1. The list set out in the schedule is established for the purposes of section 6.1 of the State Immunity Act.

Coming into force

2. This Order comes into force on September 7, 2012.

SCHEDULE
(Section 1)

FOREIGN STATES

Islamic Republic of Iran

Syrian Arab Republic

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

1. Background

On March 13, 2012, the Safe Streets and Communities Act came into force. It enacted the Justice for Victims of Terrorism Act, which introduces a specific cause of action for victims of terrorism, allowing them to sue foreign states for loss or damage as a result of actions punishable under the Canadian Criminal Code.

The State Immunity Act was also amended by the Safe Streets and Communities Act in order to allow the Governor in Council to create a list of states for which there are reasonable grounds to believe they have supported terrorism since January 1, 1985. State immunity is the general rule of international law that prevents foreign states from being sued in Canada’s domestic courts. The amended State Immunity Act lifts the immunity of states listed by the Governor in Council for supporting terrorism, allowing them to be sued.

A foreign state is considered to support terrorism if it commits an act or omission for the benefit of, or otherwise in relation to, a terrorist entity listed in accordance with the Criminal Code, leading to a terrorist act punishable in Canada. There are currently 44 listed terrorist entities. The full list is available at www. publicsafety.gc.ca/prg/ns/le/cle-eng.aspx.

The Governor in Council is satisfied that there are reasonable grounds to believe that Iran and Syria have supported or continue to support terrorist entities. The Governor in Council therefore makes the Order Establishing a List of Foreign State Supporters of Terrorism (the “Order”) and places Iran and Syria on the list.

2. Issue

Generally, under the rules of customary international law, states enjoy immunity from the jurisdiction of the courts of other states. By creating a list of states that are considered to support terrorism, the Order lifts the immunity of those listed states in relation to suits brought against them in connection with their support of terrorism.

3. Objectives

The objective of the Order is to prevent listed states from invoking the defence of state immunity when faced with a suit resulting from a terrorist act that can be demonstrated to be linked to the state.

4. Description

The Order lists, in its Schedule, the states for which the Governor in Council is satisfied that there are reasonable grounds to believe they have supported or support terrorist entities. A state listed in the Schedule of the Order is no longer immune from the jurisdiction of a court in proceedings against it for its support of terrorism. Therefore, any person that has suffered loss or damage in or outside Canada as the result of a terrorist act since January 1, 1985, may bring, under certain conditions, an action against any state listed in the Schedule of the Order made pursuant to the State Immunity Act.

The State Immunity Act also allows otherwise immune property of a state to be seized in connection with a judgment against it. This includes financial assets of the listed state that are held in Canada, and any other property owned by the listed state in Canada.

However, property of a listed state that is of a military nature or of cultural or historic value will remain immune. Canada continues to respect the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. The diplomatic and consular property of a listed state remains inviolable and protected under the relevant, aforementioned conventions and pursuant to Canada’s Foreign Missions and International Organizations Act. Embassies, consulates and diplomatic staff quarters continue to enjoy immunity, as do the bank accounts of embassies and consulates.

The State Immunity Act provides that listed states may apply, in writing, to the Minister of Foreign Affairs requesting that the Minister begin consultations with the Minister of Public Safety and Emergency Preparedness with a view to determining whether there are reasonable grounds to recommend that the state no longer be listed. The Act also requires that the Minister of Foreign Affairs, in consultation with the Minister of Public Safety and Emergency Preparedness, undertake a review of the list every two years to determine whether there continue to be reasonable grounds for a foreign state to be listed or if there are other states that ought to be added to the list.

The Order Establishing a List of Foreign State Supporters of Terrorism came into force on September 7, 2012.

Background information on the Act can be found at www.publicsafety.gc.ca/media/nr/2011/nr20110208-1-eng.aspx.

5. Consultation

Consultations were undertaken with the Privy Council Office, the Department of Public Safety and Emergency Preparedness, the Canadian Security and Intelligence Service, the Royal Canadian Mounted Police, Citizenship and Immigration Canada, the Treasury Board Secretariat, the Department of Finance, the Department of Justice, Environment Canada, Communications Security Establishment Canada, the Canadian Revenue Agency, the Canada Border Services Agency, the Department of National Defence and the Canadian International Development Agency.

6. Small business lens

There are no expected impacts on small businesses.

7. Rationale

The Government of Canada is committed to fighting global terrorism and to holding the supporters and perpetrators of terrorism accountable for their actions.

To make the Order, the Governor in Council took into account the strength of linkages between the states listed in the Order and listed terrorist entities, as well as domestic and foreign policy considerations.

As required by the State Immunity Act, the Minister of Public Safety and Emergency Preparedness was consulted and confirmed that the legal threshold required to list Iran and Syria was met.

8. Implementation, enforcement and service standards

It will be up to each individual who has suffered or suffers a loss or damage as a result of a terrorist act to exercise his/her rights under the Justice for Victims of TerrorismAct. The Order does not impose an obligation, but rather removes state immunity from civil procedures if related to a terrorist action or support for a terrorist group.

9. Contact

Mr. Mark Berman
Director
International Crime and Terrorism
Department of Foreign Affairs and International Crime
125 Sussex Drive
Ottawa, Ontario
Telephone: 613-996-1430
Email: mark.berman@international.gc.ca

Footnote a
S.C. 2012, c. 1, s. 5

Footnote b
R.S., c. S-18