Torture and State Immunity: The Difficult Case of Zahra Kazemi

“[T]his regrettable result is a necessary consequence of Canada’s commitment to policies of international comity and reciprocity. Any time sovereign immunity is asserted, the inevitable result is that certain domestic parties will be left without legal recourse. This is a policy choice implicit in the Act itself.”

Re Canada Labour Code, [1992] 2 S.C.R. 50 at 91, per La Forest J.

Last week, in a Montreal courtroom, Justice La Forest’s observation was put to the test. For the past three and a half years, Stephan Hashemi, the son of the late Canadian photojournalist Zahra Kazemi, has been seeking to hold legally accountable Iran and various of its functionaries, whom he claims are responsible for his mother’s torture and murder while in Iranian custody in 2003. The first major obstacle for the plaintiff, and the subject of this past week’s hearing, is the defendants’ motion to dismiss the proceeding on the grounds that they are immune from being sued in Canada.

As I have previously noted in this space, state immunity prevents a foreign state from being brought before a Canadian court without its consent, subject to certain exceptions. The core of the dispute over immunity in Kazemi (Estate of) v. Islamic Republic of Iran is exactly what those exceptions are, and where they can be found.

According to the defendants, the answer is simple. The law of state immunity in Canada in civil matters is comprehensively governed by the federal State Immunity Act (“Act”). The Act states:

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

The Act then sets out certain specific exceptions to immunity, including waiver, commercial activity, death or bodily injury in Canada, and several others. None of them apply, so the case must be dismissed. Quod erat demonstrandum.

The plaintiff, together with the interveners Amnistie internationale (Canada) and the Canadian Centre for International Justice, take a different and more subtle view. They rely, among other things, on customary international law, treaty law, the Canadian Charter of Rights and Freedoms (“Charter”), and the Canadian Bill of Rights. They argue that not only is the law governing immunity not found solely in the Act, but also that to deny the plaintiff a hearing on the merits would be contrary to the Constitution and fundamental rights.

But before we get to that, let’s take a step back for a bit of recent history, because this isn’t the first time a Canadian court has been faced with a civil proceeding based on allegations of torture by a foreign state. It’s not much of an oversimplification to say that the key challenge for the plaintiff in the Kazemi case can be summarized in a word: Bouzari.

Bouzari v. Iran: an inconvenient precedent

Bouzari v. Iran was a 2004 decision by the Ontario Court of Appeal, concerning a lawsuit brought by Houshang Bouzari, an Iranian émigré, for alleged torture he had suffered several years before in Iran, at the hands of the Iranian government. Though Iran failed to defend, the court in Bouzari – as it was expressly required to do by Section 3(2) of the Act – considered of its own motion the applicability of state immunity. (While this case obviously raised a more conventional jurisdictional objection, namely the arguable lack of any “real and substantial connection” between Ontario and a dispute over matters which happened before the plaintiff moved to Canada, the courts nonetheless decided the case solely on the basis of state immunity.)

In a decision widely cited internationally, and widely criticized by human rights advocates, the Court of Appeal held, in part, as follows:

• In Canada, the common law of state immunity (which incorporates customary international law) has now been expressly supplanted by the Act, in view of Section 3(1). Any exceptions to immunity must be found in the words of the Act, and any new exceptions must come by way of legislative action, not jurisprudential development.
• While both customary and conventional (treaty) international law clearly prohibit torture, neither requires that a state provide a civil remedy for torture committed abroad by a foreign state.
• The immunity of foreign states from civil remedy for torture committed does not result in a breach of the right to security of the person guaranteed under Section 7 of the Charter, and even if it did, it would be consistent with the rules of fundamental justice.

To get around Bouzari, then, the plaintiff in Kazemi must do one or more of the following:‪

• Distinguish Bouzari on the basis that international law has evolved since then.‬‪
• Successfully raise a legal argument under Canadian law which was not considered by the court in Bouzari, or which was not available on the facts of that case.
• Convince the court that Bouzari was wrongly decided.

The submissions of the plaintiff, together with those of the two interveners, attempt all of these approaches.

1) The evolution of international law

There is no doubt that there is more support now than there was five years ago for the proposition that international law requires Canada to provide an effective civil remedy for torture abroad, including by foreign states. Italian courts, in particular, have issued a number of decisions permitting the bringing of claims by its citizens in Italian courts against Germany for actions in WWII, beginning with the Ferrini case. In addition, the United Nations Committee Against Torture, in its 2005 report on Canada’s compliance with the 1984 UN Convention Against Torture, criticized Canada’s narrow interpretation of Article 14 of the Convention (providing civil remedies against torture) and by implication also the court in Bouzari, which had rejected the view that Article 14 required Canada to permit civil recourse against torture abroad by foreign states. This is doubly significant, as the absence of such UN statements was relied upon by the Ontario Court of Appeal in interpreting Article 14, and further statements by international bodies such as the UN are considered sources of international law.

However, it is also fair to say that there is as yet no international consensus in this area. The House of Lords decision in Jones v. Saudia Arabia, likely better known to Canadians as the William Sampson case, upheld the immunity of Saudi Arabia and several of its functionaries against civil suits brought in respect of the wrongful imprisonment and torture of four British citizens. (Ironically, the House of Lords relied in part on Bouzari to show the absence of an international custom permitting such a suit to proceed against a state.) In addition, the Italian cases have been the subject of vigorous protest from the German government, including a case launched against Italy a year ago at the International Court of Justice, where Germany seeks a finding that Italy is acting contrary to international law in failing to respect Germany’s immunity.

2) New legal arguments

The immediate challenge in raising new arguments is that, quite frankly, this is very well-tilled ground. Bouzari had four interveners (including the Attorney General of Canada, who, as in the Kazemi case, defended the constitutionality of the Act). While Bouzari has been the subject of extensive commentary and analysis, both positive and negative, I am not aware of anyone suggesting it was per incuriam. Bouzari was also followed in a decision by the Ontario Superior Court released eight months later, dismissing Maher Arar’s suit against Syria and Jordan on state immunity grounds, thereby also settling any question of whether the result in Bouzari might have been driven by the plaintiff not having been a citizen or resident of Canada at the time of the events.

Nonetheless, Kazemi has so far seen some new arguments, as well as new variations on old arguments, given the different facts.

The plaintiff’s chief submission is based on Section 2(e) of the Canadian Bill of Rights. That section states:

Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […]

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

In brief, the argument is that as the courts in Iran cannot provide a fair hearing, the application of state immunity would deprive the plaintiff of any hearing at all. The Act must be read to permit the plaintiff his day in court, or must be declared inoperative to the extent it cannot be so construed.

This argument is not without precedent. In Aristocrat v. National Bank of the Republic of Kazakhstan (2001), 21 C.P.C. (5th) 147 (Ont. Sup. Ct.), a self-represented plaintiff brought an action against the Kazakhstan central bank in relation to losses on shares he owned in a Kazakh private bank, which had been compulsorily purchased by the Kazakh government.

The court, of its own motion, considered whether the guarantee under Section 2(e) of the Canadian Bill of Rights might require an exception to the Act, where the foreign state in question cannot provide a fair hearing. Though the court left the issue undecided, as it had no evidence before it that Kazakhstan could not provide a fair hearing, it suggested that had there been evidence otherwise the Canadian Bill of Rights might render the Act inoperative and permit the plaintiff to bring his action in Canada.

Interestingly, Aristocrat appears to be the only case where the Canadian Bill of Rights has been raised in relation to state immunity. However, an analogous argument was raised in Bouzari based on the International Covenant on Civil and Political Rights, to which Canada is party. Section 14(1) is quite similar to Section 2(e) of the Canadian Bill of Rights, and reads in part as follows:

In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Both the Superior Court and the Court of Appeal rejected the plaintiff’s interpretation of Section 14(1), finding that it has not been interpreted as requiring contracting states to provide domestic remedies in respect of acts carried out abroad by foreign states.

It is worth noting, however, that this analysis is open to some debate.

First, the decision by the Superior Court to admit into evidence expert opinion on the state of international law, and the approach of the Court of Appeal to give “due deference” to the lower court’s finding, has come under criticism. Gib van Ert has cogently argued that treating international law as a factual issue for expert evidence is misconceived – rather, it is a question of law, which is subject to appellate review on a correctness standard.

Second, the court’s conclusions had found support from the 2001 decision of the European Court of Human Rights in Al-Adsani v. United Kingdom. That case arose after the plaintiff’s suit in the English courts, in respect of his wrongful imprisonment and torture by Kuwait, was dismissed on the grounds that Kuwait was immune under the UK State Immunity Act, 1978. The plaintiff then brought an action at the ECHR, alleging that the United Kingdom, by blocking his suit on grounds of state immunity, had breached his right under Section 6(1) of the European Convention on Human Rights. That section states in part:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Though the plaintiff was not successful, the court split on the matter 9 votes to 8. Given the evolution in international practice referred to above, it is not unreasonable to question whether the court would rule the same way were the issue to come before it again. And, as it happens, the issue is before the court again, as a result of Jones v. Saudia Arabia: in 2006, the unsuccessful plaintiffs subsequently filed suit against the United Kingdom at the ECHR, a proceeding which is still pending at the time of this writing.

Should the right to a fair hearing in international law be held to require, at least in certain cases, an exception to state immunity, what might be the implications in Canadian law? The Supreme Court has noted, in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, that “in seeking the meaning of the Canadian Constitution, the courts may be informed by international law […] We look to international law as evidence of these principles [of fundamental justice] and not as controlling in itself.” This would suggest that the scope of the “fair hearing” under Section 2(e) of the Canadian Bill of Rights might well be influenced by international practice.

The intervener CCIJ, in its submissions, has pushed this idea yet further. As noted above, in Bouzari, the plaintiff was unable to convince the court that his inability to bring an action even reached the level of a denial to his right to security of the person under Section 7 of the Charter. The courts therefore did not need to reach the issue of whether the denial of a hearing on the merits was in accordance with fundamental justice.

The facts in the Kazemi case, however, may be materially different for purposes of such an argument. CCIJ has argued that Canada, by prohibiting any remedy against the wrongful detention and murder of Canadians, has implicated itself in the actions of the foreign state, such that the Charter is engaged. Not only was Kazemi a citizen and a resident of Canada, but after her torture and hospitalization, the Iranian government, it is alleged, continued to refuse to allow her to return to Canada. Had she been permitted to return to Canada immediately, as the Canadian government and her family had requested, but nonetheless died as a result of her injuries, such death would have taken place in Canada, potentially lifting Iran’s immunity by virtue of Section 6(a) of the Act (death or bodily injury in Canada).

CCIJ notes that in cases such as Canada (Minister of Justice) v. Khadr, [2008] 2 S.C.R. 125, the courts have held that Canada may have an affirmative obligation to act in the face of unlawful actions by a foreign government, and that failure to do so may breach the Charter. Allowing Iran to avoid all accountability by immunizing it from civil suits, it argues, would implicitly encourage foreign states to compound any life-threatening crimes they may commit against Canadians abroad, by continuing to detain them – to ensure that if they die, they die abroad, so as to preserve the state’s immunity. By promoting such conduct, CCIJ asserts, the Act’s grant of immunity in these circumstances breaches the right to security of the person under Section 7 of the Charter.

It’s an intriguing and novel argument, in my opinion – but for this very reason, I would hesitate to speculate on its chances of success. Can pre-existing legislation of general application, such as the Act, be analogized to specific ministerial or executive action of the type at issue in Khadr, Suresh, and other cases? I’m not so sure. Or, might one instead liken it to Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, where the Court found that a Quebec ban on purchasing private insurance, forcibly subjecting patients to the risk of waiting lists, was an impermissible infringement of Section 7?

One possible argument which was not raised by either the plaintiff or the two interveners is waiver of immunity by the foreign state. The argument, essentially, is that a notorious breach of international law which results in a civil fault, where the state at fault clearly will not provide any remedy under its own law, should be deemed a waiver of immunity.

At first blush such an argument may seem implausible – after all, how can Iran have waived immunity when it has spent the last several years seeking to have Kazemi’s suit dismissed on precisely that basis? And yet, treating certain acts by a state as entailing waiver of immunity has a historical pedigree, finding parallels in the origin of the restrictive doctrine. The commercial activity exception arose as an extension of the principle that a state could waive its own immunity. Therefore, it was argued, acta jure gestionis, where the state acted as a private commercial party rather than as a sovereign entity, were understood as a form of waiver.

Section 4(2)(a) of the Act provides that a state waives its immunity where it “explicitly submits to the jurisdiction of the court by written agreement or otherwise”. This section has not, to my knowledge, received much judicial interpretation. However, in PSAC v. United States, 74 di 191 (C.L.R.B.), the Board (relying on international practice in this regard), held in obiter that “explicitly submitted by written agreement or otherwise” could include a treaty. The Federal Court of Appeal, to which the state immunity question was referred on a question of law, apparently agreed with this view: Re Canada Labour Code, [1990] 1 F.C. 332 at para 2 (C.A.), rev’d (without consideration of this point) [1992] 2 S.C.R. 50.

The “or otherwise” language in Section 4(2)(a) implies that waiver need not require a writing to that effect; arguably, then, if “written agreement” includes conventional international law, “or otherwise” could include customary international law‬, or even, in certain circumstances, a treaty to which Iran is not party. For example, in the context of arbitral awards against foreign states, my friend and former colleague Richard Desgagnés has recently argued that a foreign state’s submission to international arbitration should, at a minimum, be treated as a concomitant waiver of immunity for the recognition and enforcement of the resulting award in other states which are party to the 1958 New York Convention – regardless of whether the foreign state is itself a party to that convention.

Though Iran is not a party to the Convention Against Torture, the Convention is at least in part a codification of customary international law, including the jus cogens norm (a non-derogable mandatory rule of international law) against torture, which clearly does bind Iran. Iran, it is argued, has committed torture, failed to investigate and punish it, and failed to provide any domestic civil remedy, thereby infringing customary international law as codified under inter alia Articles 2, 12, 13, and 14 of the Convention. In addition, Canada is a party to that Convention, which, as already noted, requires states to provide an “enforceable right to fair and adequate compensation” for victims of torture.‬

By this logic, Iran’s alleged behaviour, where it knowingly, deliberately and repeatedly breached customary international law and jus cogens norms, could be taken as an explicit waiver of its immunity from civil recourse in Canada, which is the only jurisdiction where the plaintiff can effectively seek it (a fact which Iran must be deemed to have known).

A potential advantage of such an argument is that it avoids requiring the court to find that there exists a new norm of customary international law requiring states to provide civil remedies for torture by foreign states – as noted, while international jurisprudence appears to have evolved closer towards this view since Bouzari, it is still very uneven. Further, importing such a norm into the exceptions in the Act would require the court to not follow the Ontario Court of Appeal’s holding in Bouzari that Section 3(1) of the Act displaced the common law. While Amnistie Internationale has eloquently and forcefully argued against this view in its intervener’s factum in Kazemi, its argument closely parallels that of the intervener Canadian Lawyers for International Human Rights (CLAIHR) in Bouzari, which the Court of Appeal rejected – and, unlike for customary international law, one cannot plausibly argue that the interpretation of Section 3 of the Act has evolved since 2004.‬‪

3) Bouzari was wrong

Litigators typically would prefer to avoid arguing before a lower court that a recent appellate court case was wrongly decided, for obvious reasons. Yet, as noted above, in order to present any argument based on the evolving common law of state immunity, apart from constitutional arguments, the plaintiffs have no other choice. They must challenge, at the very least, Bouzari’s holding that Section 3 of the Act excludes any role for changes in international law from adding exceptions or limiting immunity.

Canadian jurisprudence on the role of international law is clear that (a) domestic law will be construed, to the extent possible, to be consistent with customary and conventional international law, but (b) it is open to the Canadian legislator to enact laws that contravene international law, so long as the intent to do so is clear: see R. v. Hape, [2007] 2 S.C.R. 292. That is, where domestic and international law are in conflict, domestic law takes precedence.

Accordingly, if the Quebec court rules that the Act is a comprehensive code that excludes any future exceptions to state immunity that might be recognized in international law, the only argument remaining to lift Iran’s immunity would rely on a challenge to the constitutionality of the Act, whether under the Charter or the Canadian Bill of Rights.

Future directions

The judicial strategy to challenge the immunity of foreign state torturers has been an uphill battle so far, without question. However, the battle has proceeded on another front as well: that of legislative reform. There have been a number of private member’s bills in Parliament over the last several years which would create a new exception to state immunity for state sponsors of terrorism, ultimately culminating in the government’s Bill C-35, which received first reading this past June.

A recent private member’s bill by Liberal MP Irwin Cotler would go considerably farther than this, however. Bill C-483, if passed, would create an exception to state immunity for acts of genocide, torture, war crimes, and crimes against humanity. Furthermore, the amendment would apply to “all proceedings pending and initiated” at the time of the Bill’s coming into force. While that language might benefit from some strengthening to make clear it applies to proceedings under appeal (as in this case, for example), it does certainly suggest that the Kazemi affair has concentrated minds on Parliament Hill.

Concluding thoughts

The hearing on state immunity in Kazemi has been adjourned until March, to permit the defendant and the Attorney General to respond to the arguments of the plaintiff and the interveners. A decision may not come until some months afterward, with the possibility of appeals to follow. Meanwhile, supervening legislative change cannot be ruled out. Irwin Cotler’s bill has attracted co-sponsors from members of the three other parties.

In addition, a major case on state immunity, Kuwait Airways Corp. v. Republic of Iraq, is currently pending before the Supreme Court of Canada, with the hearing scheduled for March 22. Though that case does not directly engage issues of human rights, the approach the Court takes to construing the Act will quite likely have ramifications for Kazemi. As well, jurisprudential trends abroad, such as the pending cases at the ECHR or the ICJ, may echo in Canada.

All this to say that this story is very far from over. Stephan Hashemi may yet have his day in court.