State Immunity Act (R.S.C., 1985, c. S-18)

Short Title

Marginal note:Short title

1 This Act may be cited as the State Immunity Act.

Interpretation

Marginal note:Definitions

2 In this Act,

agency of a foreign state

agency of a foreign state means any legal entity that is an organ of the foreign state but that is separate from the foreign state; (organisme d’un État étranger)

commercial activity

commercial activity means any particular transaction, act or conduct or any regular course of conduct that by reason of its nature is of a commercial character; (activité commerciale)

foreign state

foreign state includes

• (a) any sovereign or other head of the foreign state or of any political subdivision of the foreign state while acting as such in a public capacity,

• (b) any government of the foreign state or of any political subdivision of the foreign state, including any of its departments, and any agency of the foreign state, and

• (c) any political subdivision of the foreign state; (État étranger)

political subdivision

political subdivision means a province, state or other like political subdivision of a foreign state that is a federal state. (subdivision politique)

terrorist activity

terrorist activity in respect of a foreign state has the same meaning as in subsection 83.01(1) of the Criminal Code, provided that a foreign state set out on the list referred to in subsection 6.1(2) does the act or omission on or after January 1, 1985. (activité terroriste)

Marginal note:Meaning of supports terrorism

2.1 For the purposes of this Act, a foreign state supports terrorism if it commits, for the benefit of or otherwise in relation to a listed entity as defined in subsection 83.01(1) of the Criminal Code, an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.

State Immunity

Marginal note:State immunity

• 3 (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

• Marginal note:Court to give effect to immunity

  (2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.

Marginal note:Immunity waived

• 4 (1) A foreign state is not immune from the jurisdiction of a court if the state waives the immunity conferred by subsection 3(1) by submitting to the jurisdiction of the court in accordance with subsection (2) or (4).

• Marginal note:State submits to jurisdiction

  (2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it

  • (a) explicitly submits to the jurisdiction of the court by written agreement or otherwise either before or after the proceedings commence;

  • (b) initiates the proceedings in the court; or

  • (c) intervenes or takes any step in the proceedings before the court.

• Marginal note:Exception

  (3) Paragraph (2)(c) does not apply to

  • (a) any intervention or step taken by a foreign state in proceedings before a court for the purpose of claiming immunity from the jurisdiction of the court; or

  • (b) any step taken by a foreign state in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained before the step was taken and immunity is claimed as soon as reasonably practicable after they are ascertained.

• Marginal note:Third party proceedings and counter-claims

  (4) A foreign state that initiates proceedings in a court or that intervenes or takes any step in proceedings before a court, other than an intervention or step to which paragraph (2)(c) does not apply, submits to the jurisdiction of the court in respect of any third party proceedings that arise, or counter-claim that arises, out of the subject-matter of the proceedings initiated by the state or in which the state has so intervened or taken a step.

• Marginal note:Appeal and review

  (5) Where, in any proceedings before a court, a foreign state submits to the jurisdiction of the court in accordance with subsection (2) or (4), that submission is deemed to be a submission by the state to the jurisdiction of such one or more courts by which those proceedings may, in whole or in part, subsequently be considered on appeal or in the exercise of supervisory jurisdiction.

Marginal note:Commercial activity

5 A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.

Marginal note:Death and property damage

6 A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

• (a) any death or personal or bodily injury, or

• (b) any damage to or loss of property

that occurs in Canada.

Marginal note:Support of terrorism

• 6.1 (1) A foreign state that is set out on the list referred to in subsection (2) is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism on or after January 1, 1985.

• Marginal note:List of foreign states

  (2) The Governor in Council may, by order, establish a list on which the Governor in Council may, at any time, set out the name of a foreign state if, on the recommendation of the Minister of Foreign Affairs made after consulting with the Minister of Public Safety and Emergency Preparedness, the Governor in Council is satisfied that there are reasonable grounds to believe that the foreign state supported or supports terrorism.

• Marginal note:Establishment of list

  (3) The list must be established no later than six months after the day on which this section comes into force.

• Marginal note:Application to be removed from list

  (4) On application in writing by a foreign state, the Minister of Foreign Affairs must, after consulting with the Minister of Public Safety and Emergency Preparedness, decide whether there are reasonable grounds to recommend to the Governor in Council that the applicant no longer be set out on the list.

• Marginal note:Notice of decision to applicant

  (5) The Minister of Foreign Affairs must without delay give notice to the applicant of that Minister’s decision respecting the application.

• Marginal note:New application

  (6) A foreign state set out on the list may not make another application under subsection (4), unless there has been a material change in its circumstances since the foreign state made its last application or the Minister of Foreign Affairs has completed the review under subsection (7).

• Marginal note:Review of list

  (7) Two years after the establishment of the list, and every two years after that, the Minister of Foreign Affairs must

  • (a) review the list in consultation with the Minister of Public Safety and Emergency Preparedness to determine whether there are still reasonable grounds, as set out in subsection (2), for a foreign state to be set out on the list and make a recommendation to the Governor in Council as to whether the foreign state should remain set out on the list; and

  • (b) review the list in consultation with the Minister of Public Safety and Emergency Preparedness to determine whether there are reasonable grounds, as set out in subsection (2), for a foreign state that is not set out on the list to be set out on the list and make a recommendation to the Governor in Council as to whether the foreign state should be set out on the list.

• Marginal note:Effect of review

  (8) The review does not affect the validity of the list.

• Marginal note:Completion of review

  (9) The Minister of Foreign Affairs must complete the review as soon as feasible, but in any case within 120 days, after its commencement. After completing the review, that Minister must without delay cause a notice to be published in the Canada Gazette that it has been completed.

• Marginal note:Effect of removal from list on proceedings

  (10) If proceedings for support of terrorism are commenced against a foreign state that is set out on the list, the subsequent removal of the foreign state from the list does not have the effect of restoring the state’s immunity from the jurisdiction of a court in respect of those proceedings or any related appeal or enforcement proceedings.

• Marginal note:Terrorist activity

  (11) Where a court of competent jurisdiction has determined that a foreign state, set out on the list in subsection (2), has supported terrorism, that foreign state is also not immune from the jurisdiction of a court in proceedings against it that relate to terrorist activity by the state.

Marginal note:Maritime law

• 7 (1) A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

  • (a) an action in rem against a ship owned or operated by the state, or

  • (b) an action in personam for enforcing a claim in connection with a ship owned or operated by the state,

  if, at the time the claim arose or the proceedings were commenced, the ship was being used or was intended for use in a commercial activity.

• Marginal note:Cargo

  (2) A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

  • (a) an action in rem against any cargo owned by the state if, at the time the claim arose or the proceedings were commenced, the cargo and the ship carrying the cargo were being used or were intended for use in a commercial activity; or

  • (b) an action in personam for enforcing a claim in connection with any cargo owned by the state if, at the time the claim arose or the proceedings were commenced, the ship carrying the cargo was being used or was intended for use in a commercial activity.

• Marginal note:Idem

  (3) For the purposes of subsections (1) and (2), a ship or cargo owned by a foreign state includes any ship or cargo in the possession or control of the state and any ship or cargo in which the state claims an interest.

Marginal note:Property in Canada

8 A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to an interest or, in the Province of Quebec, a right of the state in property that arises by way of succession, gift or bona vacantia.

Procedure and Relief

Marginal note:Service on a foreign state

• 9 (1) Service of an originating document on a foreign state, other than on an agency of the foreign state, may be made

  • (a) in any manner agreed on by the state;

  • (b) in accordance with any international Convention to which the state is a party; or

  • (c) in the manner provided in subsection (2).

• Marginal note:Idem

  (2) For the purposes of paragraph (1)(c), anyone wishing to serve an originating document on a foreign state may deliver a copy of the document, in person or by registered mail, to the Deputy Minister of Foreign Affairs or a person designated by him for the purpose, who shall transmit it to the foreign state.

• Marginal note:Service on an agency of a foreign state

  (3) Service of an originating document on an agency of a foreign state may be made

  • (a) in any manner agreed on by the agency;

  • (b) in accordance with any international Convention applicable to the agency; or

  • (c) in accordance with any applicable rules of court.

• Marginal note:Idem

  (4) Where service on an agency of a foreign state cannot be made under subsection (3), a court may, by order, direct how service is to be made.

• Marginal note:Date of service

  (5) Where service of an originating document is made in the manner provided in subsection (2), service of the document shall be deemed to have been made on the day that the Deputy Minister of Foreign Affairs or a person designated by him pursuant to subsection (2) certifies to the relevant court that the copy of the document has been transmitted to the foreign state.