Canadian law denies son right to sue Iran for mother’s death
Foreign states immune to prosecution, Supreme Court rules
OTTAWA — Canadians tortured or abused by governments overseas can’t sue their assailants in court here unless Parliament passes exemptions to a law that grants immunity to foreign states, the country’s top court says.
The Supreme Court of Canada ruled Friday that the family of Canadian journalist Zahra Kazemi, who died after being tortured while imprisoned in Iran in June 2003, can’t sue that country for damages.
Kazemi, a Canadian of Iranian origin, was sexually assaulted, tortured and beaten into a coma by her captors before dying two days later. Iranian authorities had arrested her for taking photos outside the notorious Evin prison in Tehran.
Kazemi was buried in Iran, despite requests from her son, Stephan Hashemi, that her remains be returned to Canada.
Hashemi waged an eightyear legal battle to sue the Islamic Republic of Iran; its head of state, Grand Ayatollah Ali Khamenei; and a prosecutor and prison official involved in Kazemi’s torture. But it ended with the high court ruling that Iran was protected by Canada’s State Immunity Act.
The court said Parliament could change the law, but has so far decided not to do so.
“Parliament has the ability to change the current state of the law on exceptions to state immunity ... and allow those in situations like Mr. Hashemi and his mother’s estate to seek redress in Canadian courts,” Justice Louis LeBel wrote for the majority.
“Parliament has simply not chosen to do it yet.”
The family’s legal team and opposition MPs urged the government to amend the law.
“The government has nowhere to hide,” said NDP foreign affairs critic Paul Dewar. “Either they are standing with victims of torture or they’re not. It’s that clear cut.”
A spokeswoman for Justice Minister Peter MacKay said the government is reviewing the decision.
Before 1982, Canadian courts adhered to the idea that foreign states held complete immunity from prosecution, but made exemptions on a case- by- case basis.
When Parliament enacted the State Immunity Act in 1985, it limited immunity in only a few cases, including cases where someone was injured or died in Canada at the hands of a foreign state actor.
That phrase, “in Canada” was a key reason the Supreme Court upheld two lower court rulings that said Hashemi couldn’t sue Iran.
Kazemi family lawyers had argued before the court that Canada had to allow the lawsuit to proceed, in order to fulfil its obligations under an international agreement.
Signatories to the United Nations Convention on Torture are required to ensure victims can sue their assailants in civil court, they argued.
But the top court, in a 6- 1 ruling, sided with arguments from the Iranian and Canadian governments, saying that the State Immunity Act in its present form doesn’t allow civil suits in cases where torture has taken place outside Canada.
“Parliament has made a choice to give priority to a foreign state’s immunity over civil redress for citizens who have been tortured abroad,” LeBel wrote. “That policy choice is not a comment about the evils of torture, but rather an indication of what principles Parliament has chosen to promote.”
The lone dissenting judge, Justice Rosalie Abella, argued that two of the key figures in the family’s lawsuit — former Tehran prosecutor Saeed Mortazavi and prison official Mohammad Bakhshi — shouldn’t receive any state immunity.
“I see no reason to include torture in the category of official state conduct attracting individual immunity,” Abella wrote.