Kazemi Estate v. Islamic Republic of Iran

Kazemi Estate v. Islamic Republic of Iran
Collection
Supreme Court Judgments
Date
2014-10-10
Neutral citation
2014 SCC 62
Report
[2014] 3 SCR 176
Case number
35034
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 35034
Decision Content
SUPREME COURT OF CANADA
Citation: Kazemi Estate v. Islamic Republic of Iran,
2014 SCC 62, [2014] 3 S.C.R. 176
Date: 20141010
Docket: 35034
Between:
Estate of the Late Zahra (Ziba) Kazemi and Stephan (Salman) Hashemi
Appellants
and
Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei, Saeed Mortazavi, Mohammad Bakhshi and Attorney General of Canada
Respondents
- and -
Canadian Lawyers for International Human Rights, Amnistie internationale, Section Canada francophone, Redress Trust Ltd., Canadian Association of Refugee Lawyers, British Columbia Civil Liberties Association, Canadian Bar Association, Canadian Civil Liberties Association, Canadian Centre for International Justice, David Asper Centre for Constitutional Rights, International Human Rights Program at the University of Toronto Faculty of Law and Iran Human Rights Documentation Center
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Reasons for Judgment:
(paras. 1 to 171)
Dissenting Reasons
(paras. 172 to 231)
LeBel J. (McLachlin C.J. and Rothstein, Cromwell, Moldaver and Karakatsanis JJ. concurring)
Abella J.
kazemi estate v. iran, 2014 SCC 62, [2014] 3 S.C.R. 176
Estate of the Late Zahra (Ziba) Kazemi and
Stephan (Salman) Hashemi Appellants
v.
Islamic Republic of Iran, Ayatollah Sayyid
Ali Khamenei, Saeed Mortazavi, Mohammad Bakhshi
and Attorney General of Canada Respondents
and
Canadian Lawyers for International Human Rights,
Amnistie internationale, Section Canada francophone,
Redress Trust Ltd., Canadian Association of Refugee
Lawyers, British Columbia Civil Liberties Association,
Canadian Bar Association, Canadian Civil Liberties
Association, Canadian Centre for International Justice,
David Asper Centre for Constitutional Rights, International
Human Rights Program at the University of Toronto Faculty
of Law and Iran Human Rights Documentation Center Interveners
Indexed as: Kazemi Estate v. Islamic Republic of Iran
2014 SCC 62
File No.: 35034.
2014: March 18; 2014: October 10.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for quebec
Public international law — Sovereign immunity — Civil proceedings initiated in Quebec against Iran, Iranian head of state and two state officials in relation to alleged torture and death of Canadian citizen in Iran — Whether proceedings are barred, in whole or in part, by application of State Immunity Act — Whether international law requires State Immunity Act to be interpreted to include exception in cases of torture — Whether immunity extends to foreign public officials acting in their official capacity — Whether torture may constitute an official act of a state — State Immunity Act, R.S.C. 1985, c. S-18, s. 3(1) .
Constitutional law — Charter of Rights — Bill of Rights — Right to security of person — Right to a fair hearing — Sovereign immunity — Civil proceedings initiated in Quebec against Iran, Iranian head of state and two state officials in relation to alleged torture and death of Canadian citizen in Iran — Proceedings barred by application of s. 3(1) of State Immunity Act — Whether s. 3(1) of State Immunity Act inconsistent with s. 2(e) of Bill of Rights or infringes s. 7 of Charter — State Immunity Act, R.S.C. 1985, c. S-18, s. 3(1) — Canadian Bill of Rights, R.S.C. 1985, App. III, s. 2(e) — Canadian Charter of Rights and Freedoms, s. 7 .
K, 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 K’s son, H, 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 K’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 K and her family to obtain justice in Iran.
In 2006, H 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 K was detained and tortured. H 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 H 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, H and K’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 K’s estate but dismissed the motion with respect to the recourse sought by H 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 H’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 H’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 K 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 SIA ’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 (Abella J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.: Neither H nor K’s estate may avail themselves of a Canadian court in order to sue Iran or its functionaries for the torture that K 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.
H seeks to avail himself of the “personal or bodily injury” exception to state immunity set out at s. 6 (a) of the SIA . If H’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, H’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, H 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 M and B 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 M and B 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 M and B 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 M and B 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 H and his mother’s estate from suing Iran or its functionaries in Canada for the torture that K 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 the Convention 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 cogens prohibition 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 K’s estate and her son H 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 Convention established 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 the Convention 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 M and B. They are not immune from the jurisdiction of Canadian courts and the claims against them should be allowed to proceed.
Cases Cited
By LeBel J.
Referred to: Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p. 99; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 3; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Al-Adsani v. United Kingdom (2001), 34 E.H.R.R. 273; Jones v. United Kingdom, Nos. 34356/06 and 40528/06, ECHR 2014; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14; Re Canada Labour Code, [1992] 2 S.C.R. 50; Kuwait Airways Corp. v. Iraq, 2010 SCC 40, [2010] 2 S.C.R. 571; Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Jones v. Ministry of the Interior of Saudi Arabia, [2006] UKHL 26, [2007] 1 A.C. 270; Prosecutor v. Anto Furund’ija, Case No. IT-95-17/1-T, December 10, 1998, aff’d Case No. IT-95-17/1-A, July 21, 2000; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610; R. v. Finta, [1994] 1 S.C.R. 701; Alcom Ltd. v. Republic of Columbia, [1984] 1 A.C. 580; Daniels v. White, [1968] S.C.R. 517; Persinger v. Islamic Republic of Iran, 729 F.2d 835 (1984); Island of Palmas Case (Or Miangas), United States of America v. Netherlands, Award (1928), II R.I.A.A. 829; Castle v. United States Department of Justice (Attorney General) (2006), 218 O.A.C. 53; Cinar Corporation v. Robinson, 2013 SCC 73, [2013] 3 S.C.R. 1168; R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 611; Prosecutor v. Blaškić (1997), 110 I.L.R. 607; Jaffe v. Miller (1993), 13 O.R. (3d) 745; Samantar v. Yousuf, 560 U.S. 305 (2010); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); Yousuf v. Samantar, 699 F.3d 763 (2012); Matar v. Dichter, 563 F.3d 9 (2009); Belhas v. Ya’alon, 515 F.3d 1279 (2008); Ye v. Zemin, 383 F.3d 620 (2004); Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Amaratunga v. Northwest Atlantic Fisheries Organization, 2013 SCC 66, [2013] 3 S.C.R. 866; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Tibi v. Ecuador (2004), Inter-Am. Ct. H.R. (Ser. C) No. 114; Bámaca Velásquez v. Guatemala (2002), Inter-Am. Ct. H.R. (Ser. C) No. 91; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Fang v. Jiang, [2007] N.Z.A.R. 420; Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441.
By Abella J. (dissenting)
Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269; Jaffe v. Miller (1993), 13 O.R. (3d) 745; Case Concerning the Factory at Chorzów (1928), P.C.I.J. (Ser. A) No. 17; Godínez-Cruz v. Honduras, July 21, 1989 (Reparations and Costs); Yousuf v. Samantar, 699 F.3d 763 (2012); Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 3; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p. 99; Jones v. United Kingdom, Nos. 34356/06 and 40528/06, ECHR 2014; Xuncax v. Gramajo, 886 F.Supp. 162 (1995); Cabiri v. Assasie-Gyimah, 921 F.Supp. 1189 (1996); Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422; Jones v. Ministry of the Interior of Saudi Arabia, [2006] UKHL 26, [2007] 1 A.C. 270; Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1985, App. III, s. 2(a), (e).
Canadian Charter of Rights and Freedoms, ss. 7 , 9 , 12 , 15 .
Criminal Code, R.S.C. 1985, c. C-46, s. 269.1 .
Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. § 1603, 1605(a)(5).
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 10.
State Immunity Act, R.S.C. 1985, c. S-18, ss. 2 “agency of a foreign state”, “foreign state”, “political subdivision”, 3, 4, 5, 6, 6.1, 7, 8, 14(1)(c), 18.
State Immunity Act 1978 (U.K.), 1978, c. 33, s. 16(4).
Torture Victim Protection Act of 1991, Pub. L. 102-256, 106 Stat. 73, 28 U.S.C. § 1350.
Treaties and Other International Instruments
American Convention on Human Rights, 1144 U.N.T.S. 123, arts. 10, 25(1).
Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, G.A. Res. 60/147, U.N. Doc. A/Res/60/147, December 16, 2005.
Charter of the International Military Tribunal, 82 U.N.T.S. 279, art. 8.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, Preamble, arts. 1, 2, 3, 4, 5(1)(a), (c), (2), 11, 12, 13, 14, 16, 17, 19.
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, arts. 3, 5(5), 13.
Convention on the Rights of the Child, 1577 U.N.T.S. 3, art. 39.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. Doc. A/Res/40/34, November 29, 1985.
Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452 (XXX), U.N. Doc. A/3452/XXX, December 9, 1975, art. 3.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, arts. 2, 7, 9 to 14.
International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, art. 6.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, U.N. Doc. A/Res/45/158, December 18, 1990, arts. 15, 16(9), 18(6), 83.
Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998.
United Nations Convention on Jurisdictional Immunities of States and Their Property, s. 2(1)(b)(iv). New York: United Nations, 2004 [not yet in force].
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), arts. 5, 8.
Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art. 40, 53, 79.
Authors Cited
Arbour, J.-Maurice, et Geneviève Parent. Droit international public, 6e éd. Cowansville, Qué.: Yvon Blais, 2012.
Bassiouni, M. Cherif. “International Recognition of Victims’ Rights” (2006), 6 Hum. Rts. L. Rev. 203.
Batros, Ben, and Philippa Webb. “Accountability for Torture Abroad and the Limits of the Act of State Doctrine: Comments on Habib v. Commonwealth of Australia” (2010), 8 J.I.C.J. 1153.
Beaulac, Stéphane. “‘Texture ouverte’, droit international et interprétation de la Charte canadienne”, in Errol Mendes and Stéphane Beaulac, eds., Canadian Charter of Rights and Freedoms , 5th ed. Markham, Ont.: LexisNexis, 2013, 191.
Besner, Jennifer, and Amir Attaran. “Civil liability in Canada’s courts for torture committed abroad: The unsatisfactory interpretation of the State Immunity Act 1985 (Can)” (2008), 16 Tort L. Rev. 150.
Bradley, Curtis A., and Laurence R. Helfer. “International Law and the U.S. Common Law of Foreign Official Immunity” (2010), Sup. Ct. Rev. 213.
Brierly, James L. The Law of Nations: An Introduction to the International Law of Peace, 6th ed. Oxford: Clarendon Press, 1963.
Brunnée, Jutta, and Stephen J. Toope. “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002), 40 Can. Y.B. Int’l L. 3.
Byrnes, Andrew. “Civil Remedies for Torture Committed Abroad: An Obligation under the Convention against Torture?”, in Craig M. Scott, ed., Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation. Oxford: Hart, 2001, 537.
Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 60, 1st Sess., 32nd Parl., February 4, 1982, p. 32.
Canada. Library of Parliament. Parliamentary Information and Research Service. Legislative Summary of Bill C-10: An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code , the Controlled Drugs and Substances Act , the Corrections and Conditional Release Act , the Youth Criminal Justice Act , the Immigration and Refugee Protection Act and other Acts, by Laura Barnett et al., Legal and Legislative Affairs Division, and Julie Béchard, Social Affairs Division, October 5, 2011, revised February 17, 2012.
Cassese, Antonio. International Law, 2nd ed. Oxford: Oxford University Press, 2005.
Currie, John H. Public International Law, 2nd ed. Toronto: Irwin Law, 2008.
Currie, John H., Craig Forcese, Joanna Harrington and Valerie Oosterveld. International Law: Doctrine, Practice, and Theory, 2nd ed. Toronto: Irwin Law, 2014.
Dwertmann, Eva. The Reparation System of the International Criminal Court: Its Implementation, Possibilities and Limitations. Leiden, The Netherlands: Martinus Nijhoff, 2010.
Emanuelli, Claude. Droit international public: Contribution à l’étude du droit international selon une perspective canadienne, 3e éd. Montréal: Wilson & Lafleur, 2010.
Forcese, Craig. “De-immunizing Torture: Reconciling Human Rights and State Immunity” (2007), 52 McGill L.J. 127.
Fox, Hazel. “State Immunity and the International Crime of Torture”, [2006] E.H.R.L.R. 142.
Fox, Hazel, and Philippa Webb. The Law of State Immunity, 3rd ed. Oxford: Oxford University Press, 2013.
Gattini, Andrea. “Reparations to Victims”, in Antonio Cassese, ed., The Oxford Companion to International Criminal Justice. New York: Oxford University Press, 2009, 487.
International Law Association. Committee on International Human Rights Law and Practice. Interim report on the impact of the work of the United Nations human rights treaty bodies on national courts and tribunals, 2002 (online: http://hdl.handle.net/1885/41106).
Koh, Harold Hongju. “Memorandum Opinion on the Geographic Scope of the Convention Against Torture and Its Application in Situations of Armed Conflict”, U.S. Department of State, January 21, 2013.
Koh, Harold Hongju. “Transnational Public Law Litigation” (1991), 100 Yale L.J. 2347.
Larocque, François. Civil Actions for Uncivilized Acts: The Adjudicative Jurisdiction of Common Law Courts in Transnational Human Rights Proceedings. Toronto: Irwin Law, 2010.
Larocque, François. “La Loi sur l’immunité des États canadienne et la torture” (2010), 55 McGill L.J. 81.
LeBel, Louis, and Gloria Chao. “The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law” (2002), 16 S.C.L.R. (2d) 23.
MacCormick, Neil. Legal Right and Social Democracy: Essays in Legal and Political Philosophy, chapter 11, “The Obligation of Reparation”. Oxford: Clarendon Press, 1982.
Mazzeschi, Riccardo Pisillo. “Reparation Claims by Individuals for State Breaches of Humanitarian Law and Human Rights: An Overview” (2003), 1 J.I.C.J. 339.
Nowak, Manfred, and Elizabeth McArthur, with the contribution of Kerstin Buchinger et al. The United Nations Convention Against Torture: A Commentary. Oxford: Oxford University Press, 2008.
O’Flaherty, Michael. “The Concluding Observations of United Nations Human Rights Treaty Bodies” (2006), 6 Hum. Rts. L. Rev. 27.
Perry, Stephen R. “The Moral Foundations of Tort Law” (1992), 77 Iowa L. Rev. 449.
Ranganathan, Prasanna. “Survivors of Torture, Victims of Law: Reforming State Immunity in Canada by Developing Exceptions for Terrorism and Torture” (2008), 71 Sask. L. Rev. 343.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
Trumbull, Charles P., IV. “The Victims of Victim Participation in International Criminal Proceedings” (2008), 29 Mich. J. Int’l L. 777.
United Nations. Commission on Human Rights. Report of the independent expert on the right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms, Mr. M. Cherif Bassiouni, submitted pursuant to Commission on Human Rights resolution 1998/43. U.N. Doc. E/CN.4/1999/65, February 8, 1999.
United Nations. Commission on Human Rights. Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117. U.N. Doc. E/CN.4/Sub.2/1996/17, May 24, 1996.
United Nations. Commission on Human Rights. Summary prepared by the Secretary-General in accordance with Commission resolution 18 (XXXIV). U.N. Doc. E/CN.4/1314, December 19, 1978.
United Nations. Committee against Torture. Consideration of reports submitted by States parties under article 19 of the Convention. U.N. Doc. CAT/C/CR/34/CAN, July 7, 2005.
United Nations. Committee against Torture. Consideration of reports submitted by States parties under article 19 of the Convention. U.N. Doc. CAT/C/CAN/CO/6, June 25, 2012.
United Nations. Committee against Torture. General comment No. 3 (2012): Implementation of article 14 by States parties. U.N. Doc. CAT/C/GC/3, December 13, 2012.
United Nations. International Law Commission. Guide to Practice on Reservations to Treaties, Report of the International Law Commission, U.N. Doc. A/66/10/Add.1 (2011).
United Nations. Report of the Committee against Torture. U.N. Doc. G.A. A/55/44 (2000).
United Nations. Review of Canada’s Sixth Report on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2012 (online: http://www.pch.gc.ca).
United Nations. Treaty Collection. Status of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, MTDSG Database, Status of Treaties, Chapter IV (9.), PDF (online: https://treaties.un.org).
United States. Senate Report No. 249, 102nd Cong., 1st Sess. (1991).
van Ert, Gib. Using International Law in Canadian Courts, 2nd ed. Toronto: Irwin Law, 2008.
Weinrib, Ernest. “The Special Morality of Tort Law” (1989), 34 McGill L.J. 403.
Zegveld, Liesbeth. “Victims’ Reparations Claims and International Criminal Courts: Incompatible Values?” (2010), 8 J.I.C.J. 79.
APPEAL from a judgment of the Quebec Court of Appeal (Morissette, Wagner and Gascon JJ.A.), 2012 QCCA 1449, [2012] R.J.Q. 1567, 265 C.R.R. (2d) 265, 354 D.L.R. (4th) 385, [2012] AZ-50886272, [2012] Q.J. No. 7754 (QL), 2012 CarswellQue 8098, reversing in part a decision of Mongeon J., 2011 QCCS 196, 330 D.L.R. (4th) 1, 227 C.R.R. (2d) 233, [2011] AZ-50714217, [2011] Q.J. No. 412 (QL), 2011 CarswellQue 488. Appeal dismissed, Abella J. dissenting.
Kurt A. Johnson, Mathieu Bouchard, Audrey Boctor and David Grossman, for the appellants.
No one appeared for the respondents the Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei, Saeed Mortazavi and Mohammad Bakhshi.
Bernard Letarte and René LeBlanc, for the respondent the Attorney General of Canada.
Christopher D. Bredt and Heather Pessione, for the amicus curiae.
Jill Copeland and Emma Phillips, for the intervener the Canadian Lawyers for International Human Rights.
François Larocque and Alyssa Tomkins, for the intervener Amnistie internationale, Section Canada francophone.
Written submissions only by Azim Hussain, Rahool P. Agarwal and Maureen R. A. Edwards, for the intervener Redress Trust Ltd.
Written submissions only by Daniel Sheppard and Tamara Morgenthau, for the intervener the Canadian Association of Refugee Lawyers.
Michael Sobkin, for the intervener the British Columbia Civil Liberties Association.
Written submissions only by David Matas, Monique Pongracic-Speier and Noemi Gal-Or, for the intervener the Canadian Bar Association.
Christopher A. Wayland and Simon Chamberland, for the intervener the Canadian Civil Liberties