Kazemi Estate v. Republic of Iran, 2014 SCC 62 (CanLII)
Links: Factum [PDF] | Judgment [website]
In 2003, photojournalist Zahra (Ziba) Kazemi, an Iranian by birth but a naturalized Canadian citizen, was tortured to death in Iran. She had obtained a permit which enabled her to photograph the daily lives of Iranians. Nonetheless, government officials arrested her while she was taking pictures of protesters near a prison in Tehran. During her detention, Iranian prison authorities severely tortured her, breaking several bones and sexually abused her. Kazemi was eventually taken to a hospital with internal bleeding and a brain injury. While she was in a coma at the hospital, Iranian officials initially failed to contact Canadian consular officials and refused to allow Kazemi’s family access to her. After Kazemi died in hospital, the Iranian government ignored the wishes of Canadian officials and Kazemi’s family, refusing to return her remains to Canada for burial. To date, neither the government of Iran nor the individual Iranian officials involved in Kazemi’s detainment and death have been held accountable for her murder.
In 2006, Kazemi’s son, Stephan Hashemi, on his own behalf and on behalf of his mother’s estate, filed a civil lawsuit in Montreal against Iran and three individual Iranian officials: Ayatollah Ali Khamenei, Iran’s Supreme Leader; Saeed Mortazavi, Tehran’s Chief Public Prosecutor alleged to have ordered Kazemi’s arrest; and Mohammad Bakhshi, the former Deputy Chief of Intelligence for Evin Prison, the site of Kazemi’s abuse.
The defendants brought a motion to strike the statement of claim, arguing that the case should be dismissed because it is immune from suit under Canada’s State Immunity Act, RSC 1985, c S-18 (SIA). With the exception of a few limited circumstances, the SIA renders foreign governments immune from civil lawsuits, and, as the Ontario Court of Appeal found in Bouzari, described above, such immunity applies even in the face of torture.
In December 2009, the Quebec Superior Court heard arguments on the immunity issue. In January 2011, Justice Robert Mongeon issued his decision, allowing Hashemi’s individual claims to go forward given that he had suffered injuries in Canada (an exception under the SIA). However, the Court dismissed the claims in the name of Kazemi’s estate, as the related abuses were suffered only outside of Canada.
The case was appealed to the Quebec Court of Appeal which used the SIA to uphold the dismissal of the claims made in the name of Kazemi’s estate as well as to bar the claims made by Hashemi in his own name.
CLAIHR sought and was granted leave to intervene in the appeal to the Supreme Court of Canada. Jill Copeland and Emma Phillips of Sack Goldblatt Mitchell LLP represented CLAIHR on a pro bono basis. Oral argument was heard on March 18, 2014 before a panel of seven judges.
Ultimately the Supreme Court upheld the Quebec Court of Appeal decision dismissing the claims. Although the Supreme Court expressly found that the prohibition of torture is a jus cogens norm, or a norm of customary international law that permits no exceptions, it found that there was no requirement under international law that Canada open its courts to permit its citizens to seek redress through civil claims for torture committed abroad. The Supreme Court did not find any exceptions under the State Immunity Act that would permit the action before it to proceed, and it therefore dismissed the action. However, the Supreme Court expressly noted that Parliament has the power to change Canada’s laws, and could legislate to enable victims of torture or their estates to seek civil redress in the future.