Zahra Kazemi, a photojournalist with dual Canadian and Iranian citizenship, was arrested at a protest in Teheran and treated brutally during her detention. She died some weeks later. Her son, Stephan Hashemi, sued the Islamic Republic of Iran, its supreme leader and two officials who were alleged to have overseen and participated, in an official capacity, in her interrogation and torture. The claims were made on behalf of Kazemi’s estate and by Hashemi personally.
The Quebec Superior Court dismissed the estate’s claims on the grounds that the State Immunity Act (SIA) granted the defendants full immunity from suit, but allowed Hashemi’s personal claims for emotional distress and loss of a close relation to proceed. The Iranian state appealed, on the grounds that the SIA also barred Hashemi’s personal claims: Islamic Republic of Iran v Hashemi, 2012 QCCA 1449. Hashemi argued that his claims fell under an exception in the SIA which provides that a foreign state is not immune where the proceedings relate to injury, or damage to or loss of property that occurs in Canada. The constitutionality of the SIA was also challenged.
In the Quebec Court of Appeal, Morissette JA observed that the trial judge was certainly correct that the estate’s claims could not be advanced in Canada, since they related to events which occurred in Iran. The trial judge was also correct to hold that the SIA is a complete code and does not admit of further exceptions even where these would be consistent with customary international law, international conventions on torture, the Bill of Rights and the Charter. State immunity applies to acts of torture. The wording of the exception relied on by Hashemi is not crystal-clear but it seems to apply to breaches of physical integrity and resulting psychological injury, not the latter alone. Sovereign immunity clearly applied to the Islamic Republic and its supreme leader; less certain was its application to the two named officials, although in the end Justice Morissette concluded that they were also immune, even where their official acts involved torture. The SIA withstood constitutional scrutiny. The judge obviously felt some discomfort with the result: ‘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.
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