Canadians fight for the right to sue foreign states over torture

MONTREAL, Canada - Legal scholars and human rights advocates are calling on Canada to allow torture victims and their families to sue foreign states after a Canadian lost a Supreme Court appeal to sue Iran for the death of his mother.

The court ruled in a 6-1 decision on October 10 that Stephan Hashemi could not launch a civil lawsuit against the Iranian government in Canadian courts for the alleged torture and death of his mother, photojournalist Zahra Kazemi, in 2003.

The court based its ruling on Canada's State Immunity Act, which provides foreign governments immunity from civil lawsuits in Canadian courts. It argued only parliament "has the ability to change the current state of the law on exceptions to state immunity, just as it did in the case of terrorism", referring to a 2012 amendment to the act that now allows victims of terrorist attacks to seek damages from perpetrators of terrorism and their state backers.

"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," wrote Justice Louis LeBel.

Cariole Saindon, a media relations officer at the Ministry of Justice, told Al Jazeera the ministry was examining the court's ruling, and was "not in a position to comment" at this time.

Human rights defenders say they are hoping Hashemi's well-publicized case will rally Canadians to pressure lawmakers to create an exemption to the State Immunity Act (SIA) in torture cases abroad.

"In the end, the direction from the court was to go back to parliament to amend the SIA, and I really do hope that this decision will mobilize Canadians," said Renu Mandhane, director of the international human rights program at the University of Toronto's faculty of law, one of the interveners in the case.

Mandhane said the decision was surprising in that it not only barred Hashemi from seeking justice from the Iranian government, but also from Iranian officials allegedly involved in his mother's death. "You can't sue the state, but you also can't sue … the people who committed the torture. The breadth of the decision is pretty remarkable," she told Al Jazeera.

An Iranian-Canadian, Zahra Kazemi was arrested while photographing anti-government protests outside the notorious Evin Prison in the capital, Tehran. She was allegedly tortured, sexually assaulted, and beaten in jail, and later died of her injuries.

A Tehran court ruled Kazemi's death was caused by an "accidental fall", saying her hunger strike and the resulting reduction in blood pressure led to her loss of balance and eventual death.

Attempts to contact Iranian officials in Canada for comment were unsuccessful. Ottawa closed its embassy in Tehran in 2012, cut diplomatic relations, and ordered all Iranian diplomats to leave Canada after accusing the Islamic Republic of being the "most significant threat to world peace".

Speaking in 2004, Iran's then Foreign Ministry spokesman Hamid Reza Asefi told journalists in Tehran court proceedings into Kazemi's death were transparent, and Iran wouldn't accept international pressure. "We have to be accountable to Iranian citizens about this case, not to a foreign country," he said at the time.

Hashemi's son Stephan filed a civil lawsuit in the province of Quebec in 2006, seeking damages from the Iranian government and its head of state, Tehran's chief public prosecutor, and the former deputy chief of intelligence at the prison where Kazemi was held.

In response, the Iranian defendants urged the court to dismiss the lawsuit because of Canada's State Immunity Act.

After the Quebec Superior Court and Quebec Court of Appeal dismissed Hashemi's lawsuit, basing their decisions on the act, he took the case to the Supreme Court. Now, Hashemi has no other legal avenues to seek damages in Canadian courts.

Hashemi is not the only Canadian who has challenged state immunity for torture. In another prominent case, Canadian citizen Maher Arar attempted to sue Jordan and Syria for damages after US border officials transferred him to Syria, where he was imprisoned and tortured for nearly a year.

Arar argued his treatment violated Canada's Charter of Rights and Freedoms - particularly Article 7, which states that, "everyone has the right to life, liberty and security" - but his lawsuit was thrown out on the basis of the State Immunity Act.

In many of these cases, Amnesty International reported, the Canadian government has "successfully argued that the prohibition against torture … does not extend to a requirement to provide the right to a civil remedy for torture committed abroad by a foreign state".

"The immunity enjoyed by foreign governments furthers impunity for the torture they have ordered or tolerated," Amnesty said.

In its 2012 review of Canada, the UN Committee against Torture raised concern "at the lack of effective measures to provide redress, including compensation, through civil jurisdiction to all victims of torture", and urged Ottawa to amend the State Immunity Act to provide victims with access to an effective remedy.

According to Canadian Centre for International Justice legal director Matt Eisenbrandt, the Supreme Court's decision in the Kazemi case "effectively ends a path to justice for torture survivors in Canada".

"It basically says that Canada, at this moment, values its relationships with countries like Iran more than it does in providing justice for torture survivors," Eisenbrandt told Al Jazeera.

Eisenbrandt added, however, that Canada has been chipping away at foreign state immunity for years, as evidenced by the 2012 terrorism amendment, and the fact that states can be held accountable for commercial dealings, or any death, physical harm, and property damage that occurs in Canada.

"We are looking to parliament to take action and obviously there will be a number of efforts on that front I'm sure coming up," he said. "It's important now that parliament pay attention to this issue and look at it with a seriousness it deserves."