On Friday, the Supreme Court of Canada (SCC) affirmed that individuals cannot bring civil actions in Canada against a foreign state, which includes foreign officials, for acts of torture committed abroad. In the majority opinion in Kazemi Estate v Islamic Republic of Iran, Justice LeBel explained that this decision is political and “Canada has given priority to a foreign state’s immunity [the principles of comity and state sovereignty (para 2)] over civil redress for citizens who have been tortured abroad” (para. 47). This priority is derived from the State Immunity Act (SIA), which does not provide an exception to immunity for alleged acts of torture. The Court found that Canada’s “choice” of priorities is not contrary to international law, the Canadian Bill of Rights, or the Canadian Charter of Rights and Freedoms (Charter). The Kazemi decision follows a disappointing line of jurisprudence from the International Court of Justice and the European Court of Human Rights which similarly denied exceptions to state immunity for jus cogens violations.
To provide some context, in 2006, the Estate of the Late Zahra (Ziba) Kazemi and Ms. Kazemi’s son, Stephan (salman) Hashemi, brought a civil action in the Quebec Superior Court against the Islamic Republic of Iran, Iran’s head of State, the Chief Public Prosecutor of Tehran, and the former Deputy Chief of Intelligence of the Evin Prison seeking damages for the torture, sexual assault, and death of Ms. Kazemi in Iran. The Quebec Superior Court dismissed the action of the Estate on the basis of state immunity but found that Hashemi’s action fell within an exception to the SIA for injuries that occurred in Canada. The Quebec Court of Appeal affirmed the decision to dismiss the action of the Estate and reversed the decision that the son’s action could proceed, finding that the exception required a breach of physical—not simply psychological—integrity. The Estate and Hashemi sought leave to appeal to the Supreme Court of Canada (SCC). Leave was granted and, pursuant to Friday’s ruling, the appeal was dismissed.
The question before the SCC was whether an individual can sue in Canadian courts for torture committed abroad. Summarizing the various issues on appeal, Justice Lebel wrote, “the court is being asked to determine the scope of the SIA, the impact that the evolution of international law since the SIA’s adoption might have on its interpretation, and whether the act is constitutional” (para. 32).
The majority held that the SIA “provides an exhaustive list of exceptions to state immunity [and] … reliance cannot, be placed on the common law, jus cogens norms or international law to carve out additional exceptions.” (para. 56) The majority proceeded to find no inconsistency with Canada’s Bill of Rights, holding that the right to a fair hearing, s.2(e), does not create a right to a hearing where none otherwise exists (paras. 116–117). The Court also upheld the constitutionality of the SIA, finding no violation of a principle of fundamental justice. According to the majority, amending the SIA should be in the hands of Parliament and not the courts (para. 170).
The Potential silver lining for future plaintiffs in the majority opinion can be found in the Charter analysis. The majority found that enabling impunity for torture can deprive victims or family members of victims of the ability to heal from their trauma and, thus section 3(1) of the SIA, the exhaustive codification of exceptions, “might cause such serious psychological prejudice that the security of the person is engaged and violated.” (paras. 128–133) The majority, however, did not find a violation of a principle of fundamental justice; instead they found that: (1) the prohibition of torture does not include a requirement for a state to provide a civil remedy for torture committed abroad by a foreign state (paras. 152–157); and (2) access to an effective remedy is subject to procedural bars and does not satisfy the manageable standard requirement (paras. 160–165). This analysis leaves the door open to find a Charter violation in the future if and when, for instance, it is accepted that the jus cogens prohibition against torture includes an obligation for universal civil jurisdiction.
In disposing the remaining issues, the majority found that (1) the definition of “foreign state” includes public officials (paras. 84–92) and (2) that torture is an official act (paras. 95–109). This aspect of the decision upholds the distinction between universal jurisdiction for criminal and civil proceedings found in some international jurisprudence (paras. 103–105). On both issues, Justice Lebel distinguishes the Canadian context at hand from the U.S. Supreme Court decision in Samantar v Yousuf et al.,which found that the term “foreign state” does not include public officials (paras. 91–92) and from a Fourth Circuit Court of Appeal decision, which held that torture cannot be an official act for the purposes of immunity (paras. 106–107). Finally, the majority found that the exception for injuries in Canada requires that the acts causing the injury or death occur in Canada (para. 73) and the injury stem from a “physical breach of physical integrity.” (para. 74)
Justice Abella’s Dissent
Justice Abella wrote a dissenting opinion on the application of the SIAto public officials. Justice Abella found that the term “foreign state” does not include public officials (para. 184) and that torture is not an official act for the purposes of immunity ratione materiae (paras. 228–230). Her decision is based on the principle of reparation, which enshrines the individual right to a remedy and is found in domestic and international law (paras. 188–199), and the position that customary international law does not preclude a state from denying immunity for acts of torture (para. 211). In reaching her conclusion, Justice Abella recognized that “state practice is evolving” and also took issue with the distinction between immunity for civil and criminal proceedings, noting that many jurisdictions permit civil recovery against perpetrators in criminal proceedings (para. 210) and that civil universal jurisdiction is supported by the object and purpose of the Convention Against Torture and its Article 14 (paras. 212–226). Significantly, the majority pits principles of comity against the interests of individuals seeking redress for acts of torture committed abroad (para. 2). Justice Abella, however, citing Breyer J’s concurring opinion in Sosa v Alvarez-Machain, found that “civil jurisdiction over torture committed abroad will not impair the objectives sought to be protected by comity” (para. 230).
The Kazemi decision does not foreclose the possibility that Canada will be an appropriate forum for civil actions against a foreign state in the future. Parliament can still modify the SIA, and the decision highlights the need to renew legislative efforts. In 2010, MP Irwin Cotler introduced a Private Member’s Bill, which would have added an exception to the SIA for genocide, war crimes, crimes against humanity, and torture, but Parliament dissolved before this bill could proceed. The Kazemi decision may present a window to rejuvenate the Bill, or pursue new legislation. Additionally, the decision highlights the need for international clarity on the requirement for universal civil jurisdiction for jus cogens violations. While the decision is a disappointment for human rights advocates, and particularly victims and their family members, the door for justice is not closed.
Tamara was co-counsel for the Canadian Association of Refugee Lawyers in the Kazemi Estate v Islamic Republic of Iran appeal before the Supreme Court of Canada. This post was authored in her own personal capacity.