Archive for the ‘justice’ Category

Supreme Court of Canada grants leave to appeal in Kazemi v. Rep. of Iran torture case

March 7, 2013

Zahra Kazemi shown before her arrest.

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.

Stay tuned.

Steen v. Islamic Republic of Iran (Ont. C.A.): A Silver Lining in the State Immunity Playbook?

January 22, 2013

The Court of Appeal for Ontario has again reinforced state immunity for torture and human rights abuses in Steen v. Islamic Republic of Iran, 2013 ONCA 30 (Ont. C.A.), aff’g   2011 ONSC 6464 (CanLII (Ont. S.C.J.). (“Steen“). (more…)

Cut-and-Paste Justice

November 20, 2012

I previously blogged about Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center2011 BCCA 192,  where the British Columbia Court of Appeal ordered a new trial and overturned a five million dollar judgment awarded to an infant plaintiff who suffered brain damage during his birth at the BC Women’s Hospital and Health Care Center. The Supreme Court of Canada subsequently granted leave to appeal and the Court’s decision is under reserve following oral arguments on November 13, 2012.

The issues before the Court in Cojocaru are:

If a trial judge adopts the submissions of only one party into his or her reasons for judgment, is the presumption of judicial integrity and impartiality so fundamentally displaced so as to render the trial unfair (or a nullity) in the absence of cogent evidence of bias?

Whether the trial judge committed a palpable and overriding error by failing to conduct an independent assessment of the evidence and in failing to consider the respondents’ causation defence.

Is this an isolated incident or is there a judicial trend toward “cut-and-paste justice”? (more…)

Duty of Judges to Give Written Reasons: Harrison v. Burns (Ont. C.A.)

October 25, 2011

The Court of Appeal for Ontario decision in  Harrison v. Burns, 2011 ONCA 664, deals with procedural justice and the duty of judges to give written reasons. (more…)

Trust, but verify: Why reasons are required in leave application process

May 9, 2011
Supreme Court of Canada

Image via Wikipedia

In today’s Canadian Lawyer article, “Trust not reasons, required in leave application process: A response to Philip Slayton“,  Jean-Marc Leclerc responds to Phillip Slayton’s Canadian Lawyer article entitled Justice is in the details.  Slayton’s key argument rests on lack of judicial transparency: (more…)


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