The Justice for Victims of Terrorism Act, part of the Conservative's omnibus crime bill, has worrisome implications for certain charitable organizations.
There has been surprisingly little commentary on the Justice for Victims of Terrorism Act (the Act), part of the Harper government’s omnibus crime bill – surprising because the Act has the potential to deter Canadians from giving charitably in support of worthy endeavours in any part of the world under the control of groups the government deems “terrorist.”
In a recent article in The Lawyers Weekly, David Quayat, Brendan Green, and Hilary Young state that, while the Act is long on symbolism, it will, “at best, be ineffective (and potentially unconstitutional), and, at worst, give emotionally vulnerable victims of terrorism false hope of achieving ‘justice’ through Canada’s tort system.” While such arguments may be correct, if ultimately tested in the courts, they ignore the “fear factor” inherent in the Act.
The stated purpose of the Act is to impair the functioning of terrorist groups in order “to deter and prevent acts of terrorism against Canada and Canadians.” Under this legislation, victims of terrorism will be able to seek compensation – the justice referred to in the title of the Act. In order to achieve these ends, the Act proposes lifting the immunity of state sponsors of terrorism, allowing plaintiffs to bring actions and execute judgments against them. The provisions that have the potential to kill off charitable giving are those that create a private cause of action for a number of terrorism-related offences, as defined in Part II.1 of the Criminal Code, including the supply of “financial or other related services.”
The Act provides that a person may bring an action to recover damages for any act that would be punishable in Canada under sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code. One such section (Section 83.03) provides: “Every one who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services … is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.”
With this in mind, suppose that a Canadian visitor to Israel is killed or injured in a bomb blast blamed on Hamas. Further suppose that a Canadian citizen or organization has donated to a charity to support purchase of, say, a kidney machine to be supplied to a hospital in Gaza. In order to get that kidney machine installed in the Gaza hospital, negotiations have taken place with the Hamas-controlled Ministry of Health. Perhaps the funds were even funnelled through that ministry as the most efficient way to achieve the desired goal.
The Canadian government lists Hamas as a terrorist organization. Once the Act becomes law, and its ramifications become known, it cannot be doubted that the “fear factor” (particularly as induced by the sections mentioned above) will considerably diminish the pool of donors willing to risk lawsuits, not to mention the possibility of imprisonment. Some would say this argument is far-fetched, particularly as the relevant sections of the Criminal Code require there be “intent” or “knowledge” that funds will be used for terrorism-related purposes or activity. Consider, for instance, that the Canadian government denied former British MP George Galloway entry to Canada because of his alleged financial support for Hamas. The Federal Court, in an opinion strongly critical of the government, disagreed, finding that Galloway had no intent to support Hamas in his attempts to provide aid to the civilian population of Gaza, which necessarily had to be administered through the Hamas authorities.
However, consider another case: Since 1998, the International Relief Fund for the Afflicted and Needy (IRFAN) has distributed millions of dollars a year for the provision of health, educational, and relief services to the poor and needy. Despite this, in 2011, the Canada Revenue Agency (CRA) revoked its charitable status because, “IRFAN is an integral part of a fundraising effort to support Hamas.” As evidence, the CRA listed 15 cases of organizations and individuals in the Gaza Strip and West Bank that it said are affiliated with Hamas, or that Israel lists as unlawful associations, with whom IRFAN has had unlawful contact. IRFAN has denied the allegations, or said that there are reasonable explanations. In some cases, as in the example given above, it was necessary for IRFAN to liaise with Hamas-controlled entities in order to facilitate specific projects or provide equipment, none of which, by any stretch of the imagination, could have been used for terrorist purposes. This argument, however, has been made to no avail. IRFAN continues to raise funds for charitable purposes as a not-for-profit, but, with the loss of the ability to provide tax receipts, its efforts are severely hampered.
If the Act, which has the strong support of Jewish advocacy groups, is passed, what chance does IRFAN, which the CRA has already deemed a financial supporter of Hamas, have of raising another dime? Furthermore, in order to encompass the Air India bombing and the 9/11 attacks on the World Trade Center, the Act will be retroactive to 1985. IRFAN, and those who have supported its charitable endeavours for the past 26 years, is looking down the barrel of potentially ruinous lawsuits, and possibly worse.
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