Canada’s Much Better and Very Different Alien Tort Statute

Canada’s Much Better and Very Different Alien Tort Statute

Over at EJIL Talk!, Professors Joanna Harrington and Rene Provost note the passage of what Provost has dubbed “Canada’s Alien Tort Statute.”

As for the details, the new Canadian law will now allow Canadian citizens and permanent residents of Canada who are victims of terrorism, as well as others if the action has a real and substantial connection to Canada, to seek redress by way of a civil action for terrorist acts committed anywhere in the world on or after 1 January 1985.

With all due respect to Professor Provost, this does not sound like the U.S. Alien Tort Statute at all. How is it different?

  • Unlike the ATS, which is limited to suits by aliens, the Canadian law is limited to suits by Canadians and permanent residents of Canada
  • Unlike the ATS, which many have argued creates “universal civil jurisdiction,” the Canadian law is limited to actions that have a “real and substantial connection to Canada.”  Prof. Provost suggests this is not a very restrictive standard, but it is still more restrictive that the US universal jurisdication approach.
  • Unlike the ATS, whose substantive causes of action are governed by international law, the new Canadian law is limited to victims of terrorism and “terrorist activity” as defined in the Canadian Criminal Code,
  • Unllike the ATS, the Canadian law makes clear than an “entity” other than a natural person may be subject to suit
  • Finally, unlike the ATS, the Canadian law lifts immunity for foreign states in certain circumstances, whereas the ATS doesn’t do so at all.

In almost every respect, this Canadian statute is superior to the ATS.  It has many of the aspects that the ATS should have, but doesn’t.  So if this is the Canadian ATS, there are more differences with our neighbors to the north than I thought

[Ed. – Professor Provost’s name has been corrected, as pointed out by Guillermo in the comments]

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Rene Preval is the former president of Haiti. The author of the EJIL blog entry is professor René Provost.

Mike 71
Mike 71

Will this affect Canadians tortured by foreign governments? Will those foreign governments be amenable to the jurisdiction of Canadian Courts?

If that is the case, then Maher Arar has a valid cause of action against the government of the United States for kidnapping, rendition to Syria, which Arar had no contact with since immigrating to Canada at age 17 and torture, which was conducted by proxy, at the instigation of the United States!