Don’t let Russia hide behind immunity

Russia is a state supporter of terrorism as it both supports individuals and entities that have carried out terrorist activities and engages in such activities itself.

Indeed, Russia’s military and mercenaries, supported by the state, are resorting to summary executions, torture, sexual violence, starvation, nuclear sabre-rattling and targeted missile and kamikaze drone attacks on hospitals, schools, religious buildings, cultural sites, railway stations, homes and critical civilian infrastructure to cut access to gas, electricity, food, water and the internet with the clear aim of terrorizing the Ukrainian population into submission.

Russia has not succeeded in this heinous endeavour since the Ukrainian population is united in a common cause of defending the territorial integrity of Ukraine as well as European values, and fully supports the armed forces of Ukraine in their heroic battle against the Russian aggressor.

However, Russia must be held accountable and punished for its flagrant violations of international law and universally accepted principles of justice, and Canada needs to ensure that state supporters of terrorism, such as Russia, are not unduly protected against the victims of their terrorism before Canadian courts.

Canada has already issued sanctions related to Russia under the Special Economic Measures Act in response to Russia’s severe violation of the sovereignty and territorial integrity of Ukraine. This law provides for an asset freeze and dealings prohibition with sanctioned individuals and entities.

Russia’s assets should not only be frozen, but they should also be available to indemnify Ukraine and its people for the tremendous damage caused by Russia since the beginning of its unprovoked war against Ukraine in 2014.

In order to enable victims of Russia’s crimes to seek awards for damages and enforce such awards against Russian assets frozen under the Special Economic Measures Act, victims will need to bring judicial proceedings against the Russian Federation before Canadian courts.

Pursuant to the State Immunity Act, however, when foreign states are sued in Canada, Canadian courts must enforce immunity rights conferred on a sovereign state, even where such state fails to act in such judicial proceedings.

Fortunately, this law also provides some notable exceptions, including where a foreign state supports and engages in terrorist activities itself. Indeed, the State Immunity Act stipulates that such state is “not immune from the jurisdiction of a court in proceedings against it for its support of terrorism on or after Jan. 1, 1985 (or) that relate to terrorist activity by the state.”

On Nov. 23, 2022, the European Parliament adopted a resolution stating that it “recognizes Russia as a state sponsor of terrorism and as a state which uses means of terrorism.”

Jan. 30, Canada’s House of Commons adopted a motion stating that “given reports of human rights abuses and attacks on civilians in Ukraine and other parts of the world by the Russian-supported Wagner Group, the House call upon the government to immediately designate the Wagner Group as a terrorist entity.” The next day, the Senate of Canada also adopted such motion.

On Jan. 30, Brantford-Brant MP Larry Brock presented petition No. 441-01073 to the House of Commons recalling that the “European Parliament, the PACE, and the NATO Parliamentary Assembly have declared the Russian Federation to be sponsoring acts of terrorism in Ukraine” and calling “upon the Government of Canada to immediately and publicly designate the Russian Federation as a state sponsor of terrorism.”

Canada should designate Russia as a state supporter of terrorism and thereby allow the victims of terrorist activities committed by Russia and its mercenaries to institute actions for damages against the Russian Federation before Canadian courts, and prevent Russia from misusing Canada’s legislation to unjustly shield itself behind the cloak of state immunity.