The SCC's Kazemi ruling

Canada’s State Immunity Act is exhaustive — for now.

In a lengthy decision that appears rather anti-climatic, a majority Supreme Court found that Stephan Hashemi could not file suit against Iranian state officials over the torture, and subsequent death, of his mother, Zahra Kazemi.

But the court made great effort in Kazemi Estate v. Islamic Republic of Iran to point out that a single act of Parliament could open Canadian courts to issue redress against foreign states that torture Canadians.

Kazemi was an Iranian-Canadian photojournalist who was arrested, tortured, and later killed while in a Tehran prison. Her son instigated civil proceedings against the officials he feels are responsible for her death.

The Iranian Government moved to dismiss the claim, only to go AWOL and stop appearing in court. The court-appointed amicus curiae continued the case from there, alongside federal lawyers, who were defending the validity of the State Immunity Act.

Intervening on Hashemi’s side was a litany of legal and human rights groups, including Amnesty International and the Canadian Bar Association.

Hashemi’s case rested on the claim that section 2(e) of the Canadian Bill of Rights ensures that his mother’s case can not be deprived of a hearing.

From there, Hashemi argued that the brutal torture that his mother endured, and the emotional and psychological pain he suffered as a result of her situation constitute a deprivation of their security, per section 7 of the Charter.

Hashemi was seeking $17 million in damages against two state functionaries that were instrumental in Kazemi’s jailing, and Ayatollah Ali Khamenei, Supreme Leader of Iran.

But the roadblock to the case was the State Immunity Act. That legislation protects states, and their functionaries, from being prosecuted in foreign courts, unless the claim falls into a narrow set of exceptions.

Hashemi’s case rested on one such exception.

Section 6 of the Act states that “a foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any death or personal or bodily injury.”

The Quebec Superior Court that first heard the case found that, while Kazemi’s claim could not be heard as the torture did not happen in Canada, Hashemi had standing to pursue his claim of psychological suffering. The Court of Appeal disagreed.

The justices of the Supreme Court noted the crucial caveat of that exemption — not just the injury, but the catalyst for the injury, must occur in Canada. “It does not apply where the impugned events, or the tort causing the personal injury to death, did not take place in Canada,” writes Justice Louis LeBel for the majority.

And, the court continued, the injuries cannot simply manifest themselves in Canada, as it may be legally convenient. Hashemi’s claim, that foreign actions injured him while in Canada, falls under that category.

“Such a situation would put the foreign state’s decisions and actions in its own territory directly under the scrutiny of Canada’s judiciary — the exact situation sovereign equality seeks to avoid,” writes Lebel.

But it was on the matter of just who is covered under the Act that the court split, 6-to-1, with Justice Rosalie Abella dissenting.

While the majority held that held that all three of the Iranian officials would be exempt, Abella found that the two lower functionaries — the chief of intelligence for the prison in which Kazemi was kept, and the public prosecutor for the area — could not claim the exemption.

The delineation, strangely, falls on whether the state itself is responsible for the torture.

Lebel writes that “the acts of torture allegedly committed by [the officials] have all the bearings of official acts, and no suggestion was made that either of these public officials were acting in their personal capacity or in a way that was unconnected to their roles as state functionaries…By definition, torture is necessarily an official act of the state.”

Abella, however, took a different tract.

“The question then is how can torture be an official function for the purpose of immunity under international law when international law itself universally prohibits torture?” She writes.

To the end, Abella found Iran’s Supreme Leader to be immune from prosecution, but would have allowed the claim to go forward on the two officials.

And while all of the justices generally agreed that the Act offers blanket protections for states, even if they disagreed over who exactly is covered under the umbrella, and when, they opened the door to changes.

In 2009, Parliament amended the Act to remove immunity for countries listed as state-sponsors of terrorism. The Court specifically notes that, if Ottawa wanted to allow cases like this to go through, they would have amended the Act then.

“State immunity is not solely a rule of international law,” Lebel writes. “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.”

The court concludes: “Parliament has the power and the capacity to decide whether Canadian courts should exercise civil jurisdiction. Parliament has the ability to change the current state of the law on exceptions to state immunity, just as it did in the case of terrorism, and allow those in situations like Mr. Hashemi and his mother’s state to seek redress in Canadian courts. Parliament has simply chosen not to do it yet.”

It’s exactly that idea that Irving Mitchell Kalichman — the firm representing Hashemi — endorsed.

“While we are extremely disappointed with the majority’s ruling and its treatment of the fundamental principle of access to justice in a case that the majority itself characterized as ‘horrific’, we echo the call to Parliament to amend the State Immunity Act to put an end to impunity for torture,” the firm wrote in a press release.

To that end, it’s quite possible that Parliament may bring forward exactly those amendments in the near future.