Immunity or impunity?

The justices of the Supreme Court of Canada heard an unusual access-to-justice case this week – one that also touches upon the accountability of those who commit human rights abuses.

In The Estate of Zahra Kazemi et al. v. Iran, et al, the top court will have to decide whether or not Iran should be held liable under Canadian law for torture and murder committed on their soil.

The origins of the case date back to 2003, when Iran-Canadian journalist Zahra Kazemi was tortured to death in an Iranian prison. Her son, Stephan Hashemi, filed a lawsuit three years later against the state and the officials who he says are responsible for her death.

Hashemi asked for $17 million in damages, on behalf of both himself and the estate of his late mother, from three Iranians — Saeed Mortazayj, Chief Public Prosecutor; Mohammed Bakhshi, Deputy Chief of Intelligence for the prison, in which Kazemi died, and Ayatollah Ali Khamenei, the Supreme Leader of Iran.

Hashemi alleges that he suffered psychological suffering at the hands of those three men — the man who pressed the trumped-up charges, the man who interrogated and allegedly beat, raped and killed his mother, and the man who runs the state — and that Canada, as a signatory to the UN Convention Against Torture, has a duty to act.

Lawyers for the plaintiff, Irving Mitchell Kalichman and Mathieu Bouchard, partners at Montreal-based Irving Mitchell Kalichman, had a narrow legal case to make.

Under the State Immunity Act, foreign states are immune from prosecution in Canadian courts, civil or criminal, unless those bringing the case forward can squeeze themselves into one of the exceptions set out in the act — commercial activity, international shipping, maritime law, terrorism, or torture and murder.

Counsel for Iran quickly moved to dismiss the case.

To save it, Johnson and Bouchard tried to convince Quebec Superior Court Justice Robert Mongeon of three things: that the estate of Kazemi should be given standing to pursue justice for her murder; that Hashemi’s psychological pain and suffering endured in Canada constitutes an exception under the Act; and, notwithstanding both of those things, that the State Immunity Act acts as an unconstitutional limitation on the right to a fair trial as laid out in the Charter of Rights and Freedoms, and the Canadian Bill of Rights

Mongeon accepted that psychological pain constituted an exception under the act, and allowed Hashemi’s case to go forward. The Quebec Court of Appeal wasn’t so generous. It ruled in favour of Iran’s motion to dismiss and quashed the whole of Hashemi’s claim.

On Tuesday, the two lawyers made the case that the Supreme Court must cast aside the State Immunity Act and let the case go forward.

Hashemi’s lawyers, and a slew of interveners — including Amnesty International, the Canadian Centre for International Justice, and international anti-torture organization REDRESS — made the case that psychological suffering, in this case, ought to qualify for the exempt under section 6 of the State Immunity Act: “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.” Justice Rosalie Abella, however, interjected to suggest that Hashemi may be trying to claim a “derivative right,” given that the torture was not directed at him, and came as a consequence of his mother’s imprisonment.

But if the court does, in fact, find that Hashemi’s Section 7 rights under the Charter were infringed by the actions of those Iranian officials, Johnson and Bouchard say the courts must be pulled into acting.

“Canadian courts constitute not merely a forum of necessity in this case, but indeed a forum of last resort for the Appellants,” they argued.

And if the courts cannot hear the case, they figure, their client has effectively lost the right to a “fair hearing in accordance with the principles of fundamental justice,” as envisioned in the Bill of Rights.

“We raise the right to a remedy for torture,” argued Johnson before the Justices.

Indeed, the UN Convention Against Torture — which Canada ratified in 1987 — reads that “each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences…when the alleged offender is a national of that State,” and further that “each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.”

The plaintiffs note that the UN committee tasked with ensuring that the convention is enforce found in 2012 that “granting state immunity for torture is in direct conflict with this obligation.” To that end, Bouchard told the court, torture, like terrorism, is “unique” and should not be shielded by state immunity.

The Canadian Bar Association also intervened in the case to argue that the committee’s findings, which called upon states to give victims of torture an avenue for redress, should inform the court’s decision.

Bouchard told reporters outside the courtroom that giving the courts more leeway to define the Act might not be so unprecedented.

“In state immunity, it’s not the lawmakers who’ve made the changes. In state immunity traditionally, it’s courts who first recognize the immunity, that created the immunity, and it’s the courts in different countries that created the exceptions,” Bouchard says. “There are only 10 countries around the world that have enacted the State Immunity Act, every other country around the world relies on their court to define the boundaries on state immunity, on a case-by-case basis. So Canada is in a very exceptional situation here, and we shouldn’t be afraid to create new exceptions when that was always the province of the court.”

John Terry, counsel for the Canadian Centre for International Justice and a partner at Torys LLP, made the case that the court could find room to allow the case to proceed without toying with the constitutionality of the State Immunity Act.

“There is room, without going to the Charter […] for the court to make a decision,” he said, making the case that while the act applies to the actions of a nation, it need not necessarily apply to the illegal actions of its employees.

“You may find that the state is immune, here, but that we can proceed against these officials,” he told the court. “The torture and killing of Zahra Kazemi does not fall within the official duties of these officials.

“Acts that violate jus cogens cannot be official acts.”

The Attorney General flatly contradicted that, in intervening to protect the constitutionality of the act, expressly arguing that expanding the statutory exceptions would run contrary to the intentions of Parliament.

“There is no obligation in international law to provide victims of torture with a civil remedy for acts of torture committed abroad,” they argue.

During the three-and-a-half hour hearing, both sides trotted out a slew of international case law that sent conflicting messages on the intersection between the jurisprudence of state immunity and international law on torture and redress.

One Supreme Court of Canada case did continue to pop up, however: Schreiber v. Canada, wherein businessman Karlheinz Schreiber attempted to stay an extradition order back to his native Germany, where he was wanted on fraud charges. Justice Louis Lebel, writing for the unanimous court, had found that while Schreiber’s motion was without merit, there remains real exceptions to the act — especially in the French version.

“It signals the presence of a legislative intent to create an exception to state immunity which would be restricted to a class of claims arising out of a physical breach of personal integrity, consistent with the Quebec civil law term préjudice corporel.  This type of breach could conceivably cover an overlapping area between physical harm and mental injury, such as nervous stress,” Lebel wrote.

However the court rules, it has vast implications, and not just for the interpretation of the State Immunity Act.

If the justices do rule in favour of Hashemi, the monetary costs will not be a symbolic sum — given that there are millions of dollars in Iranian assets frozen in Canada, some of which have already been tapped by victims of terrorism seeking compensation.