Canadian Supreme Court holds Iran immune from torture charges

Kazemi Estate v Islamic Republic of Iran [2014] 3 SCR 176 (10 October 2014)

On 10 October 2014, the Supreme Court of Canada dismissed proceedings brought by the son of a woman tortured in Iran against the Iranian head of state and two other public officials. The Court held that the Iranian officials were immune from the jurisdiction of Canadian courts by virtue of the State Immunity Act RSC 1985, c. S-18 (‘SIA’). In particular, the operation of the SIA does not deprive a person of a right to a fair hearing in accordance with the principles of fundamental justice, nor does it impinge on the right not to be deprived of life, liberty and security of the person.

Facts

In 2003, Canadian citizen Zahra Kazemi visited Iran where she was arrested, detained, sexually assaulted and tortured, and later died. Only one individual was tried (and acquitted) despite an Iranian Government report implicating a number of Iranian officials.

Ms Kazemi's son, Stephen Hashemi, brought proceedings in Quebec on behalf of Ms Kazemi's estate and in his personal capacity against the Islamic Republic of Iran, Iran's head of state, the Chief Public Prosecutor of Tehran, and the former Deputy Chief of Intelligence at the prison where Ms Kazemi was tortured. Mr Hashemi sought punitive damages, and damages for his own psychological and emotional prejudice, and Ms Kazemi's physical, psychological and emotional pain.

The defendants applied to dismiss the claim, pleading immunity from the jurisdiction of Canadian courts. At first instance, the Quebec Superior Court allowed the motion to dismiss with respect to the estate of Ms Kazemi, but denied the motion in respect of Mr Hashemi's claims. On appeal, the Quebec Court of Appeal upheld the motion to dismiss with respect to the estate of Ms Kazemi, and allowed the motion to dismiss in relation to Mr Hashemi's claim. Mr Hashemi and Ms Kazemi's estate appealed to the Supreme Court of Canada.

Issues

The disputed issues turned on the interpretation and application of the SIA, which provides that a foreign state is immune from the jurisdiction of any Canadian court. 'Foreign state' includes any sovereign or other head of the foreign state while acting in a public capacity, and governments and agencies of the foreign state. An exception to immunity was provided where proceedings related to ‘personal or bodily injury’ occurring in Canada.

The Court considered:

• the ambit of the immunity set out in the SIA;
• the SIA in light of section 2(e) of the Canadian Bill of Rights RSC 1985, App. III, which provides that no Canadian law should be construed or applied so as to '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'; and
• the SIA in light of section 7 of the Canadian Charter of Rights and Freedoms, which provides that '[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice'.

Decision

Justice LeBel, handing down the majority decision, dismissed the appeals.

SIA immunity

His Honour held that because states act through public officials, the reference to 'government' in the definition of 'foreign state' extended to public officials including the Chief Public Prosecutor and former Deputy Chief of Intelligence. If this were not so, state immunity would always be able to be circumvented by suing named officials, thus thwarting the purpose of the SIA.

Justice LeBel accepted that the defendants were acting in their ‘official capacities’ in their interactions with Ms Kazemi, including when committing torturous acts. The fact that torture is a 'heinous' act does not undermine its official nature. Rather:

[u]nsurprisingly, the very definition of torture contained in the [Convention against Torture] requires that it be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity"…

His Honour did not accept that there exists a rule of customary international law that courts have universal civil jurisdiction to hear civil cases alleging acts in violation of a peremptory norm or jus cogens rule (such as an act of torture).

While Justice Lebel acknowledged that ambiguous provisions of the SIA could be read in light of international law, his Honour held that the SIA was unambiguous in its statement that it completely codifies the law regarding state immunity in civil proceedings. Accordingly, only exceptions expressly provided in the SIA may be applied, and reliance cannot be placed on the common law, peremptory norms or international law to carve out additional exceptions.

His Honour rejected the appellants' contention that the ‘personal or bodily injury’ exception in the SIA applied. Read in light of the SIA’s purposes, this exception requires the alleged tort to have occurred in Canada.

In making these observations and rejecting arguments based on international law, Justice LeBel emphasised that it is for Parliament to balance the competing priorities of a foreign state's immunity with civil redress for citizens who have been tortured aboard. In view of this, his Honour cautioned that courts should exercise restraint in developing the common law:

The common law should not be used by the courts to determine complex policy issues in the absence of a strong legal foundation or obvious and applicable precedents that demonstrates that a new consensus is emerging. To do otherwise would be to abandon all certainty that the common law might hold. Particularly in cases of international law, it is appropriate for Canadian courts only to follow the 'bulk of the authority' and not change the law drastically based on an emerging idea that is in its conceptual infancy.

Bill and Charter

Justice Lebel did not accept that the SIA infringes section 2(e) of the Bill of Rights. To engage section 2(e), a court must have jurisdiction over a matter; the section does not 'create a self-standing right to a fair hearing'. Here, where the court otherwise lacked jurisdiction, section 2(e) could not apply.

His Honour stated that a breach of section 7 of the Charter required:

• Mr Hashemi’s psychological prejudice to be serious;
• a sufficient causal connection between the psychological prejudice and Canada's actions; and
• a violation of a ‘principle of fundamental justice’.

His Honour accepted that it was arguable that the inability to seek civil redress in Canada for torturous acts overseas may cause significant psychological harm, and that Canada's actions may provide a sufficient causal link to the psychological prejudice.

However, his Honour did not accept, as a principle of fundamental justice, that Canada must ensure that victims of torture committed in other jurisdictions can obtain legal redress. This argument was based on the obligation set out in article 14 of the Convention against Torture, to which Canada is a party. His Honour stated that not all international commitments amount to principles of fundamental justice. If they did, that may cast aside the principles of parliamentary sovereignty and democracy.

Further, whilst the prohibition against torture, as a jus cogens norm, is likely a principle of fundamental justice, that norm does not extend to require each state to provide a civil remedy for torture committed abroad.

Dissenting judgment

Justice Abella held that the Chief Public Prosecutor and the former Deputy Chief of Intelligence were not immune from Canadian legal action as engaging in torture cannot be an official function for the purposes of immunity. Her Honour interpreted the SIA by reference to two key international principles: first, the principle of reparation, which requires wrongdoers to provide redress to their victims, and, secondly, the international trend to recognise that torture, as a violation of a jus cogens norm, does not constitute officially sanctioned state conduct.

Commentary

The right to liberty and security of person set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) is substantially different to its Canadian counterpart. Nevertheless, if a Victorian law prevented redress for a victim of a human rights violation in another jurisdiction, the comments of the Canadian Supreme Court, in particular regarding the seriousness of psychological prejudice required and the causal link between the harm and the actions of the state, may be of some guidance.

Further, Australia and Canada have similar approaches to the incorporation of international obligations into domestic law. Accordingly, the Court’s observations regarding the proper role of international law when interpreting Canadian legislation may have relevance to many Australian cases involving statutory interpretation and human rights.

The full text of the decision can be found here.

Angela Gibbs is an Associate at Allens.