The Supreme Court of Canada recently released a decision
-Kazemi Estate v. Islamic Republic of Iran 2014 SCC62 - that concluded that foreign states and their functionaries cannot be sued in Canada for acts of torture committed abroad. The Court held that the State Immunity Act (“SIA”) in its present
form, does not provide for an exception to foreign state immunity from civil suits
alleging acts of torture occurring outside Canada.
As the Court commented, the facts of this case are
horrific. Zahra Kazemi, a Canadian citizen, visited Iran in 2003 as a
freelance photographer and journalist. In June of 2003, Ms. Kazemi
attempted to take photographs of individuals protesting against the arrest and
detention of their family members outside the Evin Prison in Tehran. Ms.
Kazemi was ordered arrested and detained by Saeed Mortazavi, Tehran’s Chief
Public Prosecutor.
During her time in custody, Ms. Kazemi was not permitted to
contact counsel, the Canadian Embassy, or her family. She was
interrogated by Iranian authorities. She was beaten. She was
sexually assaulted. She was tortured.
Sometime prior to July 6, 2003, Ms. Kazemi was taken from
the prison and transferred to a hospital in Tehran. She was unconscious
upon her arrival. She had suffered a brain injury and numerous other
injuries including strip-like wounds on her back, the back of her legs,
fractured bones, broken nails on her hands and toes and extensive trauma on and
around her genital area.
Ms. Kazemi died of the injuries that she had sustained.
Ms. Kazemi’s son, Stephan (Salman) Hashemi, requested that
his mother’s remains be sent to Canada for burial. Despite such request,
Ms. Kazemi was buried in Iran.
In late July, 2003, the Iranian government commissioned an
investigation into Ms. Kazemi’s death. Despite a report linking members
of the judiciary and the Office of the Prosecutor to Ms. Kazemi’s torture and
death, only one individual, Reza Ahmadi, was tried. The trial was marked
by a lack of transparency. Mr. Ahmadi was acquitted.
In commenting on these facts, the Supreme Court, in a
decision written by Mr. Justice LeBel, concluded that it was impossible for Ms.
Kazemi and her family to obtain justice in Iran.
In 2006, Mr. Hashemi instituted civil proceedings in Quebec
seeking damages on behalf of himself and his mother’s estate against the
Islamic Republic of Iran, its Head of State, the Chief Public Prosecutor of
Tehran and the former Deputy Chief of Intelligence of the prison where Ms.
Kazemi was detained and tortured. Mr. Hashemi sought damages on behalf of
his mother’s estate for her physical, psychological and emotional pain and
suffering as well as on his own behalf for the psychological and emotional
prejudice that he sustained as a result of the death of his mother. Both
Mr. Hashemi and the estate sought punitive damages.
The Iranian defendants brought a motion in Quebec Superior
Court to dismiss the action on the basis of state immunity. The
plaintiffs raised exceptions provided in the SIA and challenged the
constitutionality of certain provisions of that act.
The Quebec Superior Court dismissed the constitutional
challenge to the SIA and dismissed the action with respect to the claim brought
by Ms. Kazemi’s estate. However, it allowed Mr. Hashemi’s action to
proceed on the basis that it could potentially fall within a statutory
exception to the state immunity applicable to proceedings related to personal
injury that occurs in Canada. The Quebec Court of Appeal allowed the
Iranian defendants' appeal with respect to Ms. Hashemi’s claim. The matter
was further appealed to the Supreme Court of Canada.
Justice LeBel held that an over-arching question which
permeated all aspects of the appeal was whether international law had created a
mandatory universal civil jurisdiction in respect of claims of torture, which
would require Canada to open its courts to the claims of victims of acts of
torture which were committed abroad. In addition, the court was asked to
determine whether torture could constitute an official act of a state and
whether public officials having committed acts of torture can benefit from
immunity.
The majority of the court (Madam Justice Abella dissented),
held that neither Mr. Hashemi nor Ms. Kazemi’s estate could avail themselves of
a Canadian court in order to sue Iran or its functionaries for the torture that
Ms. Kazemi had endured. Further, there are challenges based on the
Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights should
be dismissed.
In coming to this conclusion, the Supreme Court held that
state immunity is not solely a rule of international law, it also reflects
domestic choices made for policy reasons, particularly in matters of
international relations. Canada’s commitment to the universal prohibition
of torture is strong. However, Parliament has made a choice to give
priority to a foreign state’s immunity over civil redress for citizens who have
been tortured abroad. That policy choice is not a comment about the evils
of torture but rather an indication of what principles Parliament has chosen to
promote.
With respect to Mr. Hashemi’s claim for “personal or bodily
injury”, the Court held that the exception to the SIA only applied where the tort causing the
personal injury or death had occurred in Canada. It does not apply where
the impugned events or the tort causing the personal injury or death did not
take place in Canada.
Further, the Court held that the SIA provides that a
“foreign state” is immune from the jurisdiction of any court in Canada. The
definition of “foreign state” includes a reference to the term
“government”. Public officials must be included in the meaning of
“government” as that term is used in the SIA. States are abstract
entities that can only act through individuals. However, public officials
will only benefit from state immunity when acting in their official
capacity. The heinous nature of the acts and torture did not transform
the actions of the individual defendants into private acts undertaken outside
of their official capacity. By definition, torture is necessarily an
official act of the state.
The Court reasoned that Parliament has given no indication the Canadian courts are
to deem torture an “unofficial act” and creating this kind of jurisdiction
would potentially have considerable impact on Canada’s international
relations. This decision is to be made by Parliament and not the courts.
The Supreme Court held out one ray of hope in concluding that the fact that a foreign state
and its functionaries cannot be sued in Canada for acts of torture committed
abroad does not freeze state immunity in time. It stated that Parliament has the power
and the capacity to change the current state of the law on exceptions to state
immunity, just as it has done in the past, and to allow those in situations
like Mr. Hashemi and his mother’s estate to seek redress in Canadian courts.
Time will tell as to whether Canada's Parliament will find the courage to take such action
Regards,
Blair
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