This case considers whether a Canadian court has jurisdiction over a civil suit for damages arising from the torture of a Canadian citizen by a foreign state, in a foreign state. At play are the limits of sovereign immunity and the scope of the universal anti-torture prohibition in the context of egregious human rights violations suffered by a Canadian citizen.
Zahra Kazemi was a dual Canadian and Iranian citizen, who lived in Montreal and worked around the world as a journalist and photographer. She was tortured and killed in Iranian custody in July 2003 after being arrested for taking photographs of protestors in front of Evin prison in Tehran. In 2006, Ms. Kazemi’s son Stephan Hashemi instituted proceedings against the Islamic Republic of Iran and other Iranian officials alleging that Ms. Kazemi was tortured and killed by Iranian authorities. The claim sought damages on behalf of Ms. Kazemi’s estate and for Mr. Hashemi.
The BCCLA intervened in this case at the Supreme Court of Canada and argued that the State Immunity Act of Canada must be interpreted in accordance with the Charter. An interpretation that prevents access to justice and imposes barriers to redress for the most serious human rights violations is contrary to Canada’s commitment in Article 14 of the Convention against Torture and to the values and principles underlying section 7 of the Charter.
The Supreme Court of Canada rejected the claims of both Mr. Hashemi and Ms. Kazemi’s estate, ruling that Parliament made a legislative choice in limiting the scope of the exceptions to state immunity, and that the State Immunity Act bars civil claims arising from acts of torture committed by a foreign sovereign state. The Court recognized that the prohibition against torture is absolute and universal, but found that it was up to Parliament to modify the state immunity legislation so that victims of torture could access meaningful and effective remedies in Canadian courts.
The BCCLA is represented by Ward K. Branch and Susan M. Precious of Branch MacMaster LLP.