Quebec Court of Appeal Upholds State Immunity for Torture

The Quebec Court of Appeal in Islamic Republic of Iran c. Hashemi, 2012 QCCA 1449 (CanLII) has upheld state immunity for torture of Canadian citizens abroad. The judgment was delivered by Morrisette J.A. (Wagner and Gascon JJ.A. concurring).

During the month of June 2003, Zahara Kazemi, an Iranian-Canadian photographer and independent journalist, who held dual citizenship in Canada and Iran was arrested by local authorities after taking photographs of protesters outside the Evin Prison in Teheran. Under orders from Tehran’ s Chief Public Prosecutor, Ms. Kazemi was arrested and detained and was beaten, sexually assaulted and tortured by Iranian authorities. Only Iranian officials had access to Ms. Kazemi during her detention.Ms. Kazemi was later transferred unconscious from the Evin Prison to a hospital,  ultimately diagnosed as suffering from a brain injury. She went into a coma and was moved to intensive care. Although her daughter was permitted to visit her in the hospital, efforts by the Canadian government in Ottawa and by the Canadian embassy in Teheran to provide consular assistance to Ms. Kazemi were stymied by Iranian authorities. On July 10th, 2003, Ms. Kazemi was taken off  life support and pronounced  dead, “in direct contravention of the wishes of the Kazemi family”. On July 12th, the Iranian authorities officially announced her death.

The Quebec Court of Appeal held that s. 3 of the SIA is a complete codification of state immunity and exceptions thereto:

“[42]        The Estate and some of the interveners invite us not to adopt the interpretation of s. 3(1) the SIA which the Court of Appeal for Ontario favoured in Bouzari v. Islamic Republic of Iran.[15] In my view, what Goudge J.A. wrote on behalf of the Court in paragraphs [56] to [59] of his reasons is entirely apposite – in fact, it coincides with most of the preceding observations on the SIA. I therefore see no reason to depart from his reasoning: the exceptions to state immunity in Canadian positive law are those set out in the SIA, not in some remnant of a hypothetical common law doctrine that would coexist with the Act, or in some rule of customary international law that might modulate the interpretation of a statutory phrase which in fact is in no need of interpretation. Such a rule of customary international law, if it existed, could easily have been integrated in the SIA by a legislative amendment but Parliament did not do so.

Citing with approval the recent  judgment of the International Court of Justice (“ICJ”) in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening  Quebec Court of Appeal noted a  lack of connection between the jus cogens doctrine and state immunity and held:

[55]        In my respectful opinion, this judgment of the ICJ provides a conclusive refutation of the arguments against jurisdictional immunity which several parties in this case based on customary international law and on a jus cogens protection of human rights.

[58]        In oral argument, the Estate and some interveners brought to the attention of the Court an “advanced unedited version” (dated May/June 2012) of the observations of the Committee against Torture on the implementation of the Convention in Canada. This committee is formed pursuant to article 17 of the Convention and it operates under the auspices of the Office of the United Nations High Commissioner for Human Rights. Among other functions, it monitors the measures taken to give effect to the Convention by studying the reports which each individual signatory of the Convention is required to submit to the Committee every four years. The Committee’s observations include the following passage:

Civil redress and state immunity

15.      The Committee remains concerned at the lack of effective measures to provide redress, including compensation, through civil jurisdiction to all victims of torture, mainly due to the restrictions under provisions of the State Immunity Act (SIA). (art. 14)

The State party should ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture occurred and regardless of the nationality of the perpetrator or victim. In this regard, it should consider amending theState Immunity Act to remove obstacles to redress for all victims of torture.

One may consider that, in making these observations (still in their advanced, unedited form), the Committee points to a “possible or even hoped for future” of conventional international law – to borrow the words of Goudge J.A. in Bouzari. But the judgment of the ICJ in Germany v.Italy makes abundantly clear that customary international law is far from having reached that stage of development. Indeed, Italy was found in breach of international law for having failed to grant jurisdictional immunity to Germany in circumstances which, at least in some cases in Canada, would have fallen under the “territorial tort” exception contained in the SIA.

[59]        The members of the Committee against Torture, I have no doubt, well understand the distinction between de lege lata and de lege feranda. Their invitation to “the State party” to amend de SIA points to what in their opinion would be a desirable change, though not one mandated by an existing obligation under conventional international law; a change, in other words, that would require a legislative initiative. But this Court cannot amend legislation.

*      *      *      *      *

[60]        In view of the foregoing, I shall continue the analysis on the basis that the SIA is a complete codification of the law of state immunity in Canada, that no exceptions to immunity other than those contained therein[35] may be invoked by a party suing a foreign state in a Canadian court and that state immunity may apply to acts of torture

The Quebec Court of Appeal rejects the argument that the exception to state immunity under  s. 6(a) of the SIA applies, denying Mr. Kazemi’s son, Mr. Hashemi’s right to sue in his personal capacity. Morrissette J.A. mirrors the restrictive approach of other Canadian appellate courts on the meaning of the phrases “occurs in Canada” and ““proceedings that relate to … personal or bodily injury” under s. 6(a) of the SIA:

It seems to me that, if the result intended by Parliament had been what the defendants suggest, the simple and unambiguous way of accomplishing this end would have been to borrow the formulation, already well known at the time, of the United Kingdom legislation. That is not what was done. Apart from the fact that not everyone agrees that USC § 1605(a)(5) is ambiguous  (Judge Edwards certainly did not share that opinion [citing Persinger v. Islamic Republic of Iran 729 F. 2d 835 (1984), at 844], or that it is phrased differently from s. 6(a) SIA (which contains no mention of a “tortious act or omission”, words that might be thought to refer to concepts of domestic law), the language it uses (“that occurs in Canada” – “survenus au Canada”) is not inherently ambiguous, as I explained above in paragraph [62]) and we do not have an extrinsic source, in the form of a Congressional Report or Parliamentary Paper, to suggest that an interpretation consistent with Persinger is warranted under the SIA. As for the policy of the rule, Judge Edwards’ view seems to me as coherent as Judge Bork’s view: a policy choice had to be made and the language of the statute, first and foremost, is what we have here to inform ourselves about the choice that was made by Parliament. Consequently, the defendants’ argument on this point must fail.

[84]        In this instance, the motion to institute proceedings is deficient either way. As shown in paragraph [20] of these reasons, the relevant allegations of Mr. Hashemi’s claim merely refer to general notions of trauma, psychological trauma or psychological and emotional prejudice. The motion judge noted that this alleged trauma may, in the end, touch upon Mr. Hashemi’s physical integrity and that the evidence at trial may indicate that he suffered bodily injury as a result. He therefore opined that this was sufficient to allow the claim to go to trial. I respectfully disagree. Even if taken as averred, the allegations of Mr. Hashemi’s claim fall short of establishing any breach of physical integrity; accordingly, they fail to bring into play the exception set out in s. 6(a). It would have been easy for Mr. Hashemi to properly articulate the extent, if any, of the breach of physical integrity that he may have suffered. Still, he elected not to do so. He had, after all, the burden of establishing that the s. 6(a) exception applied here.

Disappointingly, the Quebec Court of Appeal extends the state immunity defence to the two individual Iranian defendants who were complicit in Ms. Kazemi’s illegal detention, torture and death, stating:

[96]        The plaintiffs’ argument here is identical to one raised by the appellant in Jaffe [Jaffe v. Miller (1993), 13 O.R. (3d) 745 (Ont. C.A.)] and which Finlayson J.A., who discarded it, first summarized as follows: “the tortious acts themselves were of such an egregious nature that the employees were not entitled to shelter under the immunity of the State”.[Jaffe at p. 760]. The argument does not sit well with the very notion of torture as it is apprehended in various legal instruments: torture usually connotes an idea of official action or acquiescence. Thus, the Convention referred to in paragraph [56] above defines torture in these terms:

1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’

And under Canadian law, s. 269.1 of the Criminal Code, pursuant to which torture constitutes an indictable offence, is aimed at “[e]very official, or every person acting at the instigation of or with the consent or acquiescence of an official.”

At paragraph 97 of the judgment, Morrissette J.A. expressly rejects the appellants’ alternative argument of illegality:

In my view, Lord Hoffmann in [ Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya   [2007] 1 A.C. 270 at 300-306] with the concurrence of the other members of the Appellate Committee, offers a complete and cogent refutation of this argument, and the motion judge was correct to adopt the same reasoning. [citations omitted].

Finally, the Quebec appeal court rejects the argument that parts of the SIA inoperative or invalid under either the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms.

[120]     I believe that, in effect, that is what we are asked to decide: does Mr. Hashemi’s “liberty interest” protected by s. 7 of the Charteroverride s. 3(1) of the SIA when he begins proceedings against the defendants? No authority directly on point and supporting such a proposition was brought to our attention. Bouzari[108] is the only case which addresses a similar point and the plaintiffs, understandably but erroneously, contend that it was wrongly decided. It was not. In light of my review of the cases invoked by Mr. Hashemi, I conclude that this argument must fail, and that s. 3(1)SIA did not infringe here an enshrined right to liberty or right not to be deprived thereof otherwise than in accordance with principles of fundamental justice.

[121]     On the facts as alleged, Zahra Kazemi, a blameless Canadian, fell victim to a pattern of vicious misconduct by the agents of a rogue state. Such a situation causes instant revulsion in anyone who adheres to a genuine notion of the rule of law. But these acts took place in Iran and what consequences they had in Canada do not set in motion the exceptions to state immunity.

[122]     In the result, therefore, I would allow the defendants appeal and I would dismiss the Estate’s appeal. As there is no reason to depart from the motion judge’s conclusion as to costs, there will be no order for costs.

Unless the Canadian federal SIA is amended to create a general “torture” or “human rights abuse” exception, the only way to bring an international human rights claim in Canada appears to be where the plaintiff’s torture or abuse occurs in the context of a commercial or employment relationship. (For a discussion of Part 1 of Bill C-10 which includes a new Act, the “Justice for Victims of Terrorism Act and to amend the State Immunity Act” [“JVTA”]), see my previous post.

For a recent Ontario decision that similarly upheld Iran’s state immunity for torture, see Steen v. Islamic Republic of Iran, 2011 ONSC 6464 (CanLII (currently under appeal to the Court of Appeal for Ontario). See also my previous post: Rough Landing: Supreme Court of Canada ejects Iraq’s State Immunity Defence: Kuwait Airways Corp v. Iraq.

While the Supreme Court of Canada did not expressly endorse the “forum of necessity” exception to the reformulated “real and substantial connection” test in Van Breda (see my post here), Canadian citizens who are victims of human rights abuses and torture abroad will find the doors to a Canadian courthouse firmly shut and locked.

For a more in-depth discussion of Canada’s approach to state immunity, see my recent article entitled, “Adjudicating International Human Rights Claims in Canada”, (2011), 8(3) Cdn. Int. Lawyer 117-133 (pdf).

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