Kazemi Estate v. Islamic Republic of Iran

On appeal from the judgment of the Quebec Court of Appeal, 2012 QCCA 1449, pronounced August 15, 2012.

Kazemi, a Canadian citizen, visited Iran in 2003 as a freelance photographer and journalist. She was arrested, detained and interrogated by Iranian authorities. During her detention, she was beaten, sexually assaulted and tortured. She later died as the result of a brain injury sustained while in the custody of Iranian officials. Despite requests made by Kazemi’s son, Hashemi, that her remains be sent to Canada for burial, she was buried in Iran. Although a report commissioned by the Iranian government linked members of the judiciary and the Office of the Prosecutor to Kazemi’s torture, only one individual was tried. That person was acquitted following a trial marked by a lack of transparency. In short, it was impossible for Kazemi and her family to obtain justice in Iran.

In 2006, Hashemi instituted civil proceedings in Quebec seeking damages on behalf of himself and his mother’s estate against the Islamic Republic of Iran, its head of state, the Chief Public Prosecutor of Tehran and the former Deputy Chief of Intelligence of the prison where Kazemi was detained and tortured. Hashemi sought damages on behalf of K’s estate for her physical, psychological, and emotional pain and suffering as well as damages for the psychological and emotional prejudice that he sustained as the result of the loss of his mother. Both Hashemi and the estate also sought punitive damages. The Iranian defendants brought a motion in Quebec Superior Court to dismiss the action on the basis of state immunity. In response, Hashemi and Kazemi’s estate raised certain exceptions provided in the State Immunity Act  (“SIA ”), and challenged the constitutionality of certain provisions of that Act.

The Quebec Superior Court dismissed the constitutional challenge to the SIA , allowed the defendants’ motion to dismiss the action with respect to the claim brought by Kazemi’s estate but dismissed the motion with respect to the recourse sought by Hashemi personally. The court held that the SIA exhaustively captures the law of state immunity and that there are no unwritten exceptions to state immunity at common law, in international law, or in international treaties that would allow the claims to proceed. However, it found that Hashemi’s personal action could potentially fall within a statutory exception to state immunity applicable to proceedings relating to personal injury that occurs in Canada. The Quebec Court of Appeal dismissed the estate’s appeal and allowed the Iranian defendants’ appeal with respect to Hashemi’s claim.

At issue in this appeal is whether the Islamic Republic of Iran, its head of state and the individuals who allegedly detained, tortured and killed Kazemi in Iran are entitled to immunity by operation of the SIA. The resolution of that issue rests on the scope of the SIA , the impact that the evolution of international law since the SI ’s adoption might have on its interpretation, and whether the Act is constitutional. An overarching question, which permeates almost all aspects of this appeal, is whether international law has created a mandatory universal civil jurisdiction in respect of claims of torture, which would require Canada to open its courts to the claims of victims of acts of torture that were committed abroad. Moreover, this Court is asked to determine whether torture may constitute an official act of a state and whether public officials having committed acts of torture can benefit from immunity.

Held (6:1): The appeal should be dismissed. (Abella J. dissenting) Section 3(1)  of the State Immunity Act, is not inconsistent with s. 2(e) of the Canadian Bill of Rights and does not infringe s. 7 of the Charter.

Per McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.:

Neither Hashemi nor Kazemi’s estate may avail themselves of a Canadian court in order to sue Iran or its functionaries for the torture that Kazemi endured. Furthermore, the challenges brought by the appellants based on s. 2(e) of the Canadian Bill of Rights and s. 7  of the Charter  should be dismissed.

State immunity is not solely a rule of international law, it also reflects domestic choices made for policy reasons, particularly in matters of international relations. Canada’s commitment to the universal prohibition of torture is strong. However, Parliament has made a choice to give priority to a foreign state’s immunity over civil redress for citizens who have been tortured abroad. That policy choice is not a comment about the evils of torture, but rather an indication of what principles Parliament has chosen to promote.

In Canada, state immunity from civil suits is codified in the SIA . That Act is a complete codification of Canadian law as it relates to state immunity from civil proceedings. It provides an exhaustive list of exceptions to state immunity and it does not contain an exception to immunity from civil suits alleging acts of torture committed abroad. For that reason, reliance need not, and indeed cannot, be placed on the common law,jus cogens norms or customary international law to carve out additional exceptions to the immunity granted to foreign states pursuant to the SIA . Although there is no doubt that the prohibition of torture has reached the level of a peremptory norm, the current state of customary international law regarding redress for victims of torture does not alter the SIA , nor does it render it ambiguous.

Hashemi seeks to avail himself of the “personal or bodily injury” exception to state immunity set out at s. 6 (a) of the SIA. If Hashemi’s psychological suffering is captured by the personal injury exception to state immunity set out at s. 6 (a), his claim would be allowed to proceed. However, when the words of s. 6 (a) are examined in conjunction with the purpose of the Act, it becomes apparent that the exception applies only where the tort causing the personal injury or death has occurred in Canada. It does not apply where the impugned events, or the tort causing the personal injury or death, did not take place in Canada. Accordingly, Hashemi’s claim is barred by the SIA  because the alleged tort did not “occur in Canada”. His claim is also barred by the SIA  on the further ground that the “personal or bodily injury” exception does not apply where the injury allegedly suffered by the plaintiff does not stem from a physical breach of personal integrity. Only when psychological distress manifests itself after a physical injury will the exception to state immunity be triggered. In the present case, Hashemi did not plead any kind of physical harm nor did he claim to have suffered an injury to his physical integrity.

A further issue to be determined is whether the respondents Mortazavi and Bakhshi are immune from legal action by operation of the SIA . Section 3(1)  of the SIA provides that a “foreign state” is immune from the jurisdiction of any court in Canada. The definition of “foreign state” at s. 2  of the SIA includes a reference to the term “government”. The absence of an explicit reference to “public officials” in the SIA requires that the term “government” be interpreted in context and against the backdrop of international law. Following such an exercise, it becomes clear that public officials must be included in the meaning of “government” as it is used in the SIA. States are abstract entities that can only act through individuals. Excluding public officials from the meaning of government would completely thwart the purposes of the SIA, as allowing civil claims against individual public officials would require Canadian courts to scrutinize other states’ decision‑making as carried out by their public officials. Accordingly, public officials, being necessary instruments of the state, are included in the term “government” as used in the SIA. However, those public officials will only benefit from state immunity when acting in their official capacity.

The acts of torture allegedly committed by Mortazavi and Bakhshi have all the bearings of official acts, and no suggestion was made that either of these public officials were acting in their personal capacity or in a way that was unconnected to their roles as state functionaries. The heinous nature of these acts of torture does not transform the actions of Mortazavi and Bakhshi into private acts, undertaken outside of their official capacity. By definition, torture is necessarily an official act of the state. It is the state‑sanctioned or official nature of torture that makes it such a despicable crime. There continues to be very strong support for the conclusion that immunity from civil suits extends to public officials engaging in acts of torture, and it is not yet possible to conclude that either a consistent state practice or opinio juris to the contrary effect exists. As a result, given that Mortazavi and Bakhshi were public officials acting in their official capacity, they are captured by the term “government” found at s. 2  of the SIA . By virtue of that statute, they are immune from the jurisdiction of Canadian courts.

Parliament has given no indication whatsoever that Canadian courts are to deem torture an “unofficial act” and that a universal civil jurisdiction has been created allowing foreign officials to be sued in our courts. Creating this kind of jurisdiction would have potentially considerable impact on Canada’s international relations. This decision is to be made by Parliament, not the courts.

The SIA withstands constitutional scrutiny despite the fact that it prevents Hashemi and his mother’s estate from suing Iran or its functionaries in Canada for the torture that Kazemi endured. The challenge brought by the appellants based on s. 2(e) of the Bill of Rights should be dismissed as that provision is not engaged in the present case. Section 2(e) guarantees fairness in the context of proceedings before a Canadian court or a tribunal. It does not create a self‑standing right to a fair hearing where the law does not allow for an adjudicative process. Accordingly, in order to engage s. 2(e), a court or tribunal must properly have jurisdiction over a matter. As previously discussed, the existence of state immunity means that no jurisdiction exists in Canada to adjudicate the appellants’ claims.

Similarly, the appellants’ challenge of the SIA  pursuant to s. 7  of the Charter  must fail. Insofar as it prevents victims of torture or their next of kin from finding closure by seeking civil redress, it is arguable that s. 3(1) of the SIA might cause such serious psychological prejudice that the security of the person is engaged and violated. However, it is not necessary to decide whether s. 3(1) of the SIA engages the security of the person interest under s. 7 of the Charter  because that provision of the SIA  does not violate any principles of fundamental justice.

Not all commitments in international agreements amount to principles of fundamental justice. When a party points to a provision in an international treaty as evidence of a principle of fundamental justice, a court must determine (a) whether there is significant international consensus regarding the interpretation of the treaty, and (b) whether there is consensus that the particular interpretation is fundamental to the way in which the international legal system ought to fairly operate. The absence of such consensus weighs against finding that the principle is fundamental to the operation of the legal system. Although the appellants argue that art. 14 of theConvention Against Torture requires Canada to ensure that a civil remedy be available to victims of torture committed in foreign countries and allege that this obligation is a principle of fundamental justice within the meaning of s. 7, they have not argued, let alone established, that their interpretation of art. 14 reflects customary international law, or that it has been incorporated into Canadian law through legislation. There appears to be no consensus that art. 14 should be interpreted in the manner the appellants suggest. In fact, the language of art. 14 as well as the interpretation of that provision by some party states and by international and domestic judicial authorities support a conclusion that art. 14 ensures redress and compensation for torture committed within the forum state’s own territorial jurisdiction.

While the prohibition of torture is certainly a jus cogens norm from which Canada cannot derogate and is also very likely a principle of fundamental justice, the peremptory norm prohibiting torture has not yet created an exception to state immunity from civil liability in cases of torture committed abroad. At this point in time, state practice and opinio juris do not suggest that Canada is obligated by the jus cogensprohibition on torture to open its courts so that its citizens may seek civil redress for torture committed abroad. Consequently, failing to grant such access would not be a breach of the principles of fundamental justice.

In conclusion, the SIA , in its present form, does not provide for an exception to foreign state immunity from civil suits alleging acts of torture occurring outside Canada. Consequently, a foreign state and its functionaries cannot be sued in Canadian courts for acts of torture committed abroad. This conclusion does not, however, freeze state immunity in time. Parliament has the power and the capacity to change the current state of the law on exceptions to state immunity, just as it has done in the past, and to allow those in situations like H and his mother’s estate to seek redress in Canadian courts.

Per Abella J. (dissenting):

The doctrine of sovereign immunity is not entirely codified under the State Immunity Act. The only individuals expressly included in the definition of a “foreign state” are “any sovereign or other head of the foreign state . . . while acting as such in a public capacity”. There is no reference to public officials apart from heads of state. That silence creates an ambiguity as to whether the State Immunity Act applies to lower‑level officials. Resolving that ambiguity is assisted by reference to customary international law and the significant development of the principle of reparation under public international law.

The prohibition on torture is a peremptory norm — jus cogens— under international law. That means that the international community has agreed that the prohibition cannot be derogated from by any state. The question then is how can torture be an official function for the purpose of immunity under international law when international law itself universally prohibits torture? This poses challenges for the integrity of international law and leaves this Court with a choice about whether to extend immunity to foreign officials for such acts.

Under international law generally, the protection for and treatment of individuals as legal subjects has evolved dramatically. With that evolving protection has come the recognition of a victim’s right to redress for a violation of fundamental human rights. The claims for civil damages brought by Kazemi’s estate and her son Hashemi are founded on Canada’s and Iran’s obligations under international human rights law and the jus cogens prohibition against torture. These claims must be situated in the context of the significant development of the principle of reparation under public international law throughout the twentieth century. At its most fundamental, the principle of reparation means that when the legal rights of an individual are violated, the wrongdoer owes redress to the victim for harm suffered. The aim of the principle of reparation is restorative.

While early international criminal proceedings did little to recognize victims’ rights, several international courts now recognize victims’ rights to reparation against individual perpetrators of international crimes. This shift is, in part, the result of the recognition of the principle of reparation as a general principle of international law in the enabling treaties and statutes of these courts. The treatment of immunity for civil claims should not be different from that for criminal proceedings.

The development and international acceptance of the principle of reparation demonstrates that an individual’s right to a remedy against a state for violations of his or her human rights is now a recognized principle of international law. There is also growing acceptance that jus cogens violations such as torture do not constitute “official acts” justifying immunity for individual state officials.

The purpose of the Convention Against Torture is consistent with a broad obligation to protect victims’ rights to remedies for torture regardless of where it occurred. The Conventionestablished a shared commitment to “make more effective the struggle against torture . . . throughout the world”. On a plain reading, Article 14 imposes an obligation on state parties to ensure that all victims of torture from their countries can obtain “redress and ha[ve] an enforceable right to fair and adequate compensation”. The text provides no indication that the “act of torture” must occur within the territory of the state party for the obligation to be engaged. If a state undertakes to ensure access to a remedy for torture committed abroad, this necessarily implicates the question of the immunity of the perpetrators of that torture.

In the face of the universal acceptance of the prohibition against torture, concerns about any interference with sovereignty which may be created by acting in judgment of an individual state official who violates this prohibition, necessarily shrink. The very nature of the prohibition as a peremptory norm means that all states agree that torture cannot be condoned. Torture cannot, therefore, be an official state act for the purposes of immunity ratione materiae.

Under customary international law, there is a distinction between the blanket immunity ratione personae of high‑ranking individuals such as the head of state, and the immunity ratione materiae for former heads of state and lower‑ranking officials which applies only in respect of official acts performed for or on behalf of the state. These doctrines recognize the unique role and responsibility of heads of state. At present, state practice reveals a palpable, albeit slow trend in the international jurisprudence to recognize that torture, as a violation of a peremptory norm, does not constitute officially sanctioned state conduct for the purposes of immunity ratione materiae.

In light of the equivocal state of the customary international law of immunity, the long‑standing international acceptance of the principle of reparation manifested in Article 14 of theConvention Against Torture, and almost a century of increasing international recognition that human rights violations threaten global peace and stability, there is no reason to include torture in the category of official state conduct attracting individual immunity. Equivocal customary international law should not be interpreted so as to block access to a civil remedy for what is unequivocally prohibited.

The State Immunity Act  therefore does not apply to Mortazavi and Bakhshi. They are not immune from the jurisdiction of Canadian courts and the claims against them should be allowed to proceed.

Reasons for decision of the majority written by LeBel J. Dissenting reasons by Abella J. Neutral Citation 2014 SCC 62.