The Court unanimously denied the appeal. (more…)
Archive for the ‘international human rights’ Category
The Supreme Court of Canada today granted leave to appeal in Estate of the Late Zahra (Ziba) Kazemi et al. v. Islamic Replubic of Iran et al. (Que.) (Civil) (By Leave) (35034) Coram: McLachlin / Abella / Cromwell.
Here is the SCC summary:
Canadian Charter of Rights and Freedoms – Public International Law – Jurisdictional immunity – Applicants beginning legal proceedings in Quebec against Iran, Iranian Head of State and other state officials in relation to alleged detention, torture and death of Canadian citizen in Iran – Defendants bringing motion to dismiss action as barred by State Immunity Act – Whether State Immunity Act bars civil actions initiated in Canada against a foreign State for acts of torture – Whether Canada’s obligation under United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment requires it to provide civil remedy to victims of torture occurring in foreign state – Whether s. 3(1) of State Immunity Act infringes s. 2(e) of Bill of Rights or s. 7 of the Charter by barring proceedings filed by Applicants – Whether the psychological harm caused to a victim of torture by inability to seek redress is sufficient to attract protection of s. 7 of Charter – Whether jurisdictional bar created by s. 3(1) of State Immunity Act is compatible with principles of fundamental justice enshrined in Bill of Rights and Charter – Whether the Court of Appeal erred in determining that state immunity applies to lower level state officials allegedly responsible for acts of torture – Canadian Bill of Rights, S.C. 1960, c. 44, ss. 2(e) – State Immunity Act, R.S.C., 1985, c. S-18, ss. 3 and 6 – Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85
In 2003, Zahra Kazemi, a Canadian citizen, was allegedly arrested, detained, tortured and killed by State authorities in Iran. Against the wishes of her family and of Canadian authorities, her remains were buried in Iran.
Her son, Stephan Hashemi, acting in his capacity as liquidator of his mother’s estate as well as in his personal capacity subsequently filed a civil liability claim in Quebec against Iran, the Head of State, the Chief Public Prosecutor as well as the former Deputy Chief of Intelligence for the prison in which Mrs. Kazemi was held. The claims of the Estate were for damages for the pain and suffering of Mrs. Kazemi in relation to her abuse, sexual assault, torture and death. The claim filed by Mr. Hashemi in his personal capacity sought damages for his pain and suffering provoked by the arrest, torture and death of his mother. Exemplary and punitive damages were also sought by the Estate and by Mr. Hashemi for the alleged unlawful and intentional interference with the rights and freedoms of both Mrs. Kazemi and her son. Lastly, the action sought an order that the respondents be required to disinter and release Mrs. Kazami’s remains so that they may be returned to Canada for an autopsy and burial.
The respondents brought a motion to dismiss the action on the ground that the suit was unfounded in law, alleging that the action was barred due to the application of s. 3 of the State Immunity Act of Canada, R.S.C. 1985 c. S-18 (“SIA”) which, as a general principle, prohibits lawsuits against foreign States before Canadian courts. Mr. Hashemi and the Estate countered with a constitutional challenge alleging that, if the State Immunity Act barred their claims, that Act was contrary to s. 2(e) of the Canadian Bill of Rights as well as s. 7 of the Charter insofar as it would deprive them of the right to seek a civil remedy against Iran in Canada.
For an analysis of the Quebec Court of Appeal decision in Kazemi, see my previous post: Quebec Court of Appeal Upholds State Immunity for Torture.
- Supreme Court to decide whether it will hear case of son of slain photojournalist (sunnewsnetwork.ca)
- Family of Canadian photographer killed in Iran wins bid to appeal case (theglobeandmail.com)
- Steen v. Islamic Republic of Iran (Ont. C.A.): A Silver Lining in the State Immunity Playbook? (thetrialwarrior.com)
- Iran releases former prosecutor tied to Zahra Kazemi death (cbc.ca)
- Iran releases ‘butcher of the press’ prosecutor linked to Canadian photojournalist Zahra Kazemi’s death (news.nationalpost.com)
- Iran official’s arrest means ‘nothing,’ says son of slain Canadian journalist (theglobeandmail.com)
- Iranian prosecutor implicated in torture death of Canadian Zahra Kazemi jailed (vancouversun.com)
- Prosecutor linked to Kazemi death released (metronews.ca)
- Iran jails former prosecutor linked to Zahra Kazemi death (cbc.ca)
- Kazemi’s son finds no satisfaction in jailing of Iranian prosecutor (macleans.ca)
Here Today, Guatemala: HudBay Minerals withdraws forum non conveniens motion in Canadian international human rights caseFebruary 26, 2013
Jeff Gray at the Globe & Mail, reports on three pending cases involving HudBay Minerals Inc. ["HudBay"] brought by Mayan Q’eqchi’ individuals from Guatemala, who have alleged human rights abuses were committed against them by the subsidiaries of Canadian mining companies. The Guatemalan victims claim that security guards employed by HudBay’s subsidiary at a Guatemalan mine shot and killed one man, shot and beat another and gang-raped 11 women. According to the story, HudBay has withdrawn its motion to stay the action on forum non conveniens grounds, which plaintiffs’ counsel describes as a “breakthrough”:
[Plaintiffs' counsel] Mr. Klippenstein is pursuing a $55-million claim in Ontario Superior Court over clashes in 2009 between local Mayan people opposing the mine and security and police allegedly acting on behalf of HudBay’s former local subsidiary. HudBay, which sold its interest in the mine in 2011, denies the allegations, saying they are “without merit.”
HudBay had been preparing to argue that the case should be heard in Guatemala, not Canada, on jurisdictional grounds – an argument that Mr. Klippenstein was expected to counter by pointing to well-documented problems with the small Latin American country’s justice system.
But Mr. Klippenstein claims the company abruptly changed its strategy after hearing depositions from his clients, who flew to Toronto from Guatelmala in December.
The Globe & Mail article adds:
“Contrary to Mr. Klippenstein’s statement, HudBay’s voluntary decision to have the cases heard in the Ontario Superior Court was based on its desire to avoid the complications of trying the cases in Guatemala, particularly in terms of time and travel,” HudBay John Vincic, HudBay’s vice-president of investor relations and corporate communications, said in an e-mail.
“Our decision does not create precedent or change the law in any way. Based on the cross-examinations referred to by Mr. Klippenstein, HudBay is increasingly confident the cases are without merit and will be favourably resolved on the merits in Ontario.”
Recently, Madam Justice Carol J. Brown granted Amnesty International intervenor status in Choc v. Hudbay Minerals Inc. et al., 2013 ONSC 998 (CanLII). Carol J. Brown, J. concludes:
 I am satisfied that Amnesty has discharged its onus to establish that its presence can assist the court in determining certain of the issues in the motions, and in bringing to the attention of the court considerations of an international nature regarding the issues in play in these cases. I am satisfied that it can bring a perspective different from that of the parties, particularly given its expertise in the areas of international human rights abuse, international and transnational business accountability, and as a result of its involvement in and consultation with the UN Special Representative on the Issue of Human Rights and Transnational Corporations. Given that Amnesty International will not be involved in any of the evidentiary or factual aspects of the cases, I do not find that intervention by Amnesty will cause undue disruption or delay in the motions. Given that Amnesty will only be involved in providing a different view with respect to the legal considerations to be had in determining the issues in the motions, there will be no opportunity for it to use these motions as a “political platform” as argued by the defendants. While the actions involve private disputes, namely actions involving individuals and an international Corporation, with operations in the plaintiffs’ home state, the issues involved have international, transnational and public policy overlays which make them appropriate for intervention by Amnesty, which, I find, can make a useful legal contribution.
 Considering the issues raised in the pleadings, the nature of the three cases, and the nature of the interventions sought to be made by Amnesty, I grant leave to Amnesty to intervene. The intervention will be limited strictly to making submissions with respect to the issues of law, and particularly international law, standards and norms concerning the existence or scope of the duty of care.
The timing of the withdrawal of HudBay’s forum non conveniens motion is intriguing; but it may also have something to do with focusing arguments around ‘reverse veil piercing’ raised in Chevron/Lago Agrio enforcement proceedings in Ontario and elsewhere. Nevertheless, the defendants’ Rule 21 motion to dismiss the claims against them as disclosing no reasonable cause of action will proceed on March 4 and 5, 2013.
An interesting development in the Lago Agrio/Chevron litigation battle , which was the subject of my Guest Post: Comments on the Lago Agrio Plaintiffs Enforcement Action in Canada at Ted Folkman’s Letters Blogatory.
Via the Juicio Crudo Blog (original in Spanish):
An international arbitration court yesterday issued a ruling in which it concludes that the Republic of Ecuador has violated previous interim awards of the same court authorized under international law and a treaty between the United States and Ecuador to not attempt to prevent the execution of a sentence of 19,000 million against Chevron Corp. (NYSE: CVX). In previous decisions, the court warned that if the arbitration Chevron ended imposing “any loss arising from the implementation (of the judgment) would be losses for which (the Republic) would be responsible (with Chevron) under international law.”
Convened under the authority of the Bilateral Investment Treaty (BIT, according to its acronym in English) between the United States and Ecuador, and administered by the Permanent Court of Arbitration at The Hague, the tribunal found that Ecuador breached previous court rulings and ordered to explain why the Republic should not be ordered to pay compensation to Chevron for all damages resulting from attempts by plaintiffs to enforce a judgment arising out of an environmental lawsuit against the company in Lago Agrio, Ecuador. (more…)