Schreiber v. Canada (Attorney General)

Schreiber v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2002-09-12
Neutral citation
2002 SCC 62
Report
[2002] 3 SCR 269
Case number
28543
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
International law
Statutes
Notes
SCC Case Information: 28543
Decision Content
Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62
Karlheinz Schreiber Appellant
v.
The Federal Republic of Germany and
the Attorney General of Canada Respondents
and
United States of America and
Amnesty International Interveners
Indexed as: Schreiber v. Canada (Attorney General)
Neutral citation: 2002 SCC 62.
File No.: 28543.
2002: April 16; 2002: September 12.
Present: McLachlin C.J. and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
International law -- Sovereign immunity -- Attornment to Canadian court’s jurisdiction exception -- Germany initiating extradition process against Canadian citizen -- Citizen arrested by RCMP and spending eight days in jail -- Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada -- Whether Germany immune from jurisdiction of Canadian courts -- Whether attornment to Canadian court’s jurisdiction exception applicable so as to deprive Germany of its immunity from instant action -- Whether Germany waived its immunity from lawsuits in Canadian courts when it initiated extradition process -- State Immunity Act, R.S.C. 1985, c. S-18, s. 4(2) (b).
International law -- Sovereign immunity -- Personal injury exception -- Scope of exception -- Germany initiating extradition process against Canadian citizen -- Citizen arrested by RCMP and spending eight days in jail -- Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada -- Whether Germany immune from jurisdiction of Canadian courts -- Whether personal injury exception applicable so as to deprive Germany of its immunity from instant action -- Whether exception distinguishes between jure imperii and jure gestionis acts -- Whether exception applies only to claim of physical injury -- State Immunity Act, R.S.C. 1985, c. S-18, s. 6 (a).
Statutes -- Interpretation -- Bilingual statutes -- Personal injury exception to state immunity -- Meaning of expression “personal injury” -- Whether French version best reflects common intention of legislator found in both versions -- Whether amendment made by Federal Law-Civil Law Harmonization Act to English version substantively changed the law -- Purpose of harmonization legislation -- State Immunity Act, R.S.C. 1985, c. S-18, s. 6 (a) -- Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121 .
In 1999, a court in the Federal Republic of Germany issued a warrant for the appellant’s arrest. Pursuant to the Extradition Treaty between the two countries, Germany then requested that Canada provisionally arrest the appellant for the purpose of extraditing him in relation to tax evasion and other offences. A provisional arrest warrant was granted and the appellant was arrested. He spent eight days in jail before being released on bail. The appellant commenced an action against Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada. Germany’s request that the action be dismissed on the basis of its sovereign immunity under the State Immunity Act was granted by the Ontario Superior Court. The Court of Appeal upheld the decision.
Held: The appeal should be dismissed. The exceptions in ss. 4 and 6 (a) of the State Immunity Act did not deprive Germany of the immunity from actions in Canadian courts to which it is entitled under s. 3(1) of the Act.
States have incorporated the principle of sovereign immunity into their domestic legal order in two ways: domestic courts do not exercise jurisdiction in actions brought against foreign states; and states have allowed foreign states a privilege, as a matter of comity, to appear as plaintiffs in domestic courts, if they so choose. Despite the increasing number of exceptions, the general principle of sovereign immunity remains an important part of the international legal order, except when expressly stated otherwise, and there is no evidence that an international peremptory norm has been established to suggest otherwise. Sovereign immunity has been incorporated into the Canadian domestic legal order through the enactment of the State Immunity Act and can be raised by a defendant state in a preliminary motion, on summary judgment, or at trial.
Under s. 4 of the State Immunity Act , a foreign state is not immune from the jurisdiction of a Canadian court if it initiates the proceedings in the court. Here, Germany did not initiate the judicial proceedings. It initiated the extradition process, which led to the Minister of Justice authorizing the Attorney General to apply for an arrest warrant. The appellant’s tort action against Germany is separate and distinct from the extradition process, and any step taken in one does not amount to a step taken in the other. It would be contrary to the concepts of comity and mutual respect between nations to hold that a country that calls upon Canada to assist in extradition only does so at the price of losing its sovereign immunity and of submitting to the domestic jurisdiction of Canadian courts in matters connected to the extradition request, and not only in respect of the extradition proceeding itself.
Nor does the “personal injury” exception under s. 6 (a) of the State Immunity Act apply to limit Germany’s immunity. Whatever mental distress, denial of liberty and damage to reputation the appellant claims to have suffered from wrongful arrest and imprisonment, it did not constitute “personal injury” within the meaning of s. 6 (a). The term “personal injury” in that provision applies only to claims of physical injury. Section 6 (a) extends to mental distress and emotional upset only insofar as they are linked to a physical injury. The “personal injury” exception to immunity does not depend on the nature of the conduct underlying the claim. It is applicable to both jure imperii and jure gestionis acts. An alternate interpretation would deprive the victims of the worst breaches of basic rights of any possibility of redress in national courts, which would jeopardize potentially important progress in the protection of the rights of the person, at least in Canada. Although some forms of incarceration may conceivably constitute international human rights violations, incarceration is a lawful part of the Canadian justice system. Without evidence of physical harm, lawful incarceration cannot amount to compensable mental injury under s. 6 (a). While mental injury may be compensable in some form at international law, the right to the protection of mental integrity and to compensation for its violation has not risen to the level of a peremptory norm of international law which would prevail over the doctrine of sovereign immunity and allow domestic courts to entertain such a claim in the circumstances of this case.
There is no conflict between the principles of international law, at the present stage of their development, and those of the domestic legal order. International law sets out some general principles with respect to the origins and uses of sovereign immunity, but the domestic law sets out very specific exceptions to the general rule of sovereign immunity in the State Immunity Act . The questions at stake fall within the purview of the domestic legislation, and the case turns on the interpretation of the bilingual versions of s. 6 (a) rather than the interpretation of international law principles.
The proper way to construe s. 6 (a) is to read its words in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the State Immunity Act , its object and the intention of Parliament. Where the meaning of the words in the two official versions differs, the task is to find a meaning common to both versions that is consistent with the context of the legislation and the intent of Parliament. Here, the terms “death” or “personal injury” found in the English version allow the possibility of non-physical injury to be captured within the s. 6 (a) exception, while the civil law concept of “dommages corporels” found in the French version does not. Since the French version is the clearer and more restrictive version of the two, it best reflects the common intention of the legislator found in both versions. It signals a legislative intent to create an exception to state immunity which would be restricted to a class of claims arising out of a physical breach of personal integrity. This type of breach could conceivably cover an overlapping area between physical harm and mental injury, such as nervous stress; however, the mere deprivation of freedom and the normal consequences of lawful imprisonment would not bring the appellant within s. 6 (a). This interpretation of s. 6 (a) is consistent with the concept of “préjudice corporel” and the classifications of damages in Quebec civil law. The amendment made to s. 6 (a) by the Federal Law-Civil Law Harmonization Act, No. 1 did not substantively change the law. This amendment, which adds the expression “or bodily injury” to the phrase “any death or personal injury” in the English version of s. 6 (a), was made to clarify the limited scope of the exception for the anglophone civil law audience by using wording that better reflects the civil law tradition.
Cases Cited
Approved: United States of America v. Friedland (1999), 182 D.L.R. (4th) 614; distinguished: Walker v. Bank of New York Inc. (1994), 16 O.R. (3d) 504; referred to: Jaffe v. Miller (1993), 13 O.R. (3d) 745; Re Canada Labour Code, [1992] 2 S.C.R. 50; Gouvernement de la République démocratique du Congo v. Venne, [1971] S.C.R. 997; R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827; Daniels v. White, [1968] S.C.R. 517; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Lamy, [2002] 1 S.C.R. 860, 2002 SCC 25; R. v. Mac, [2002] 1 S.C.R. 856, 2002 SCC 24; Tupper v. The Queen, [1967] S.C.R. 589; R. v. Dubois, [1935] S.C.R. 378; Maurice Pollack Ltée v. Comité paritaire du commerce de détail à Québec, [1946] S.C.R. 343; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; Regent Taxi and Transport Co. v. Congrégation des Petits Frères de Marie, [1932] A.C. 295; Montréal (Ville de) v. Tarquini, [2001] R.J.Q. 1405; Dubé v. Québec (Procureur général), [1997] R.R.A. 555; Michaud v. Québec (Procureur général), [1998] R.R.A. 1065; Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd., [1973] S.C.R. 596.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7 .
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 1.
Civil Code of Lower Canada, arts. 2260a, 2262.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 3, 1457, 1458, 1614, 2930.
European Convention on State Immunity, 11 I.L.M. 470 (1972), Art. 11.
Extradition Act, S.C. 1999, c. 18, s. 13 .
Extradition Treaty between Canada and Germany, Can. T.S. 1979 No. 18.
Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121 .
State Immunity Act, R.S.C. 1985, c. S-18, ss. 3(1) , 4 , 5 , 6 [am. 2001, c. 4, s. 121].
State Immunity Act , S.C. 1980-81-82-83, c. 95.
Authors Cited
Arbour, J.-Maurice. Droit international public, 3e éd. Cowansville, Qué.: Yvon Blais, 1997.
Atiyah’s Accidents, Compensation and the Law, 5th ed. By Peter Cane. London: Butterworths, 1993.
Baudouin, Jean-Louis, et Patrice Deslauriers. La responsabilité civile, 5e éd. Cowansville, Qué.: Yvon Blais, 1998.
Brownlie, Ian. Principles of Public International Law, 5th ed. Oxford: Clarendon Press, 1998.
Canada. Department of Justice. Bijural Terminology Records. Ottawa: Department of Justice, 2001.
Canada. Department of Justice. The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, booklet 4 (Bijuralism in Canada: Harmonization Methodology and Terminology) by Louise Maguire Wellington. Ottawa: Department of Justice, 2001.
Canada. House of Commons. House of Commons Debates, vol. 137, 1st sess., 37th Parl., May 7, 2001, p. 3640.
Canada. Senate. Debates of the Senate, vol. 139, 1st sess., 37th Parl., February 7, 2001, pp. 83-88, April 4, 2001, pp. 572-76, and April 26, 2001, pp. 684-90.
Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 12, April 9, 1981, p. 12:9.
Cooper-Stephenson, Kenneth D. Personal Injury Damages in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1996.
Cooper-Stephenson, Kenneth D., and Iwan B. Saunders. Personal Injury Damages in Canada. Toronto: Carswell, 1981.
Côté, Pierre-André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Council of Europe. Explanatory Reports on the European Convention on State Immunity and the Additional Protocol. Strasbourg: Council of Europe, 1972.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger on the Construction of Statures, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Dukelow, Daphne A., and Betsy Nuse. The Dictionary of Canadian Law, 2nd ed. Scarborough, Ont.: Carswell, 1995, “personal injury”.
Emanuelli, Claude. Droit international public: contribution à l’étude du droit international selon une perspective canadienne. Montréal: Wilson & Lafleur, 1998.
Gardner, Daniel. L’évaluation du préjudice corporel, 2e éd. Cowansville, Qué.: Yvon Blais, 2002.
Latin for Lawyers, 2nd ed. London: Sweet and Maxwell, 1937.
Oppenheim’s International Law, vol. I, 9th ed. By Sir Robert Jennings and Sir Arthur Watts. London: Longman, 1996.
United Nations. International Law Commission. “Draft Articles on Jurisdictional Immunities of States and Their Property and Commentaries Thereto” in Report of the International Law Commission on the work of its forty-third session, U.N. Doc. A/46/10, in Yearbook of the International Law Commission 1991, vol. II, Part Two. New York: United Nations, 1994, 13.
United Nations. International Law Commission. Fifth Report on Jurisdictional Immunities of States and their Property, U.N. Doc. A/CN.4/363 and Add.1, in Yearbook of the International Law Commission 1983, vol. II, Part One. New York: United Nations, 1985, 25.
Vézina, Nathalie. “Préjudice matériel, corporel et moral: variations sur la classification tripartite du préjudice dans le nouveau droit de la responsabilité” (1993), 24 R.D.U.S. 161.
APPEAL from a judgment of the Ontario Court of Appeal (2001), 52 O.R. (3d) 577, 196 D.L.R. (4th) 281, 142 O.A.C. 27, 152 C.C.C. (3d) 205, 4 C.P.C. (5th) 1, [2001] O.J. No. 524 (QL), affirming a judgment of the Superior Court of Justice (2000), 48 O.R. (3d) 521, 187 D.L.R. (4th) 146, [2000] O.J. No. 1813 (QL). Appeal dismissed.
Edward L. Greenspan, Q.C., and David Stratas, for the appellant.
Ed Morgan, for the respondent the Federal Republic of Germany.
Brian J. Saunders and Michael H. Morris, for the respondent the Attorney General of Canada.
Malcolm N. Ruby, for the intervener the United States of America.
David Matas and Michael Bossin, for the intervener Amnesty International.
The judgment of the Court was delivered by
LeBel J. --
I. Introduction
1 This appeal pits the interests of an individual wishing to sue a foreign state in Canadian courts against the state’s enjoyment of sovereign immunity to preclude such actions. Originating from international customary law, the principle of sovereign immunity and the exceptions thereto are incorporated into domestic law by the enactment of the federal State Immunity Act, R.S.C. 1985, c. S-18 (the “Act ”). The issues at bar are whether or not the specific exceptions found in ss. 4 and 6 (a) of the Act apply such as to limit the general principle of sovereign immunity set out in s. 3 of the Act .
II. Facts
2 The appellant, Karlheinz Schreiber, is a businessman and a Canadian citizen. On May 7, 1999, a court in the Federal Republic of Germany issued a warrant for his arrest. On August 27, 1999, Germany requested that Canada, under the provisions of the Extradition Treaty between Canada and Germany, Can. T.S. 1979 No. 18, entered into force September 30, 1979, provisionally arrest the appellant for the purpose of extraditing him in relation to tax evasion and other offences.
3 On August 30, 1999, an official of the Canadian Department of Justice authorized the Attorney General of Canada to apply to a judge under s. 13 of the Extradition Act, S.C. 1999, c. 18 , for a provisional arrest warrant. Such warrant was granted and on August 31, 1999, the appellant was arrested by the Royal Canadian Mounted Police. The appellant then spent the next eight days in jail until he was released on bail.
4 On November 12, 1999, the appellant commenced an action against the respondents, Germany and the Attorney General of Canada, seeking damages in the amount of CAN$1 000 000 for personal injuries suffered as a result of his arrest and detention in Canada. The action is based on the following causes of action as pleaded in the statement of claim: breaches of duties of care, abuse of public office, bad faith and breach of the plaintiff’s rights under the Canadian Charter of Rights and Freedoms .
5 The respondents brought two motions in the proceeding initiated by the appellant. First, Germany requested that the action be dismissed on the basis that it enjoys sovereign immunity by virtue of the State Immunity Act . Secondly, the Attorney General of Canada sought a stay of the action pending the determination of proceedings between the appellant and Germany. The Ontario Superior Court of Justice allowed both motions, dismissing the appellant’s claim against Germany and staying the action against the Attorney General of Canada.
6 The appellant appealed the decision of the Superior Court of Justice, bringing two separate appeals to the Court of Appeal for Ontario. The Court of Appeal for Ontario unanimously dismissed the appeal concerning the claim against Germany. The majority allowed the appeal concerning the stay, which is not now before this Court.
III. Relevant Statutory Provisions
7 State Immunity Act, R.S.C. 1985, c. S-18
3. (1) Except as provided by this Act , a foreign state is immune from the jurisdiction of any court in Canada.
4. (1) A foreign state is not immune from the jurisdiction of a court if the state waives the immunity conferred by subsection 3(1) by submitting to the jurisdiction of the court in accordance with subsection (2) or (4).
(2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it
. . .
(b) initiates the proceedings in the court; or
(c) intervenes or takes any step in the proceedings before the court.
(3) Paragraph 2(c) does not apply to
(a) any intervention or step taken by a foreign state in proceedings before a court for the purpose of claiming immunity from the jurisdiction of the court;
. . .
(4) A foreign state that initiates proceedings in a court or that intervenes or takes any step in proceedings before a court, other than an intervention or step to which paragraph (2)(c) does not apply, submits to the jurisdiction of the court in respect of any third party proceedings that arise, or counter-claim that rises, out of the subject-matter of the proceedings initiated by the state of in which the state has so intervened or taken a step.
(5) Where, in any proceedings before a court, a foreign state submits to the jurisdiction of the court in accordance with subsection (2) or (4), that submission is deemed to be a submission by the state to the jurisdiction of such one or more courts by which those proceedings may, in whole or in part, subsequently be considered on appeal or in the exercise of supervisory jurisdiction.
5. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.
6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to
(a) any death or personal injury, or
(b) any damage to or loss of property
that occurs in Canada.
Section 6 after June 1, 2001, as amended by the Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121
6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to
(a) any death or personal or bodily injury, or
(b) any damage to or loss of property
that occurs in Canada. [Emphasis added.]
IV. Judgments Below
A. Ontario Superior Court of Justice (2000), 48 O.R. (3d) 521
8 Nordheimer J. dismissed the appellant’s claim against Germany, finding that Germany was entitled to rely upon the immunity it enjoyed from the jurisdiction of Canadian courts, pursuant to s. 3(1) of the State Immunity Act , and that the exceptions found in ss. 4 and 6 did not apply. With respect to the waiver of immunity exception set out in s. 4 , Nordheimer J. held that none of the conditions for waiver were met. In particular, Germany had not submitted explicitly or implicitly to the jurisdiction of the court whether by written agreement or otherwise (s. 4(2) ); Germany did not intervene or take any step in this proceeding, other than by bringing this motion to assert its claim of immunity (s. 4(3) ); and the claim did not involve a third party proceeding or counterclaim arising out of the subject-matter (s. 4(4) ).
9 Nordheimer J. also rejected the appellant’s argument that the arrest itself could amount to a physical injury. He thus found that the s. 6 (a) exception did not apply.
B. Court of Appeal for Ontario (2001), 52 O.R. (3d) 577
10 Writing for a unanimous court, Doherty J.A. affirmed the order of Nordheimer J. dismissing the action against Germany. The appellant’s counsel argued that Nordheimer J. should not have addressed the ultimate question as to the meaning of the statutory provisions but should only have decided whether it was “plain and obvious” and “beyond doubt” that Germany was entitled to claim sovereign immunity in relation to the allegations made in the statement of claim. Doherty J.A. held that, although the sovereign immunity cases decided by the Court of Appeal for Ontario have not specifically discussed the test to be applied on a motion to dismiss based on sovereign immunity, all have proceeded on the premise that the motion judge had to determine the immunity claim on its merits and all have applied a correctness standard in reviewing the decision of the motion judge.
11 Doherty J.A. then went on to reject the appellant’s arguments based on ss. 4 and 6 (a) of the Act . He agreed with Nordheimer J.’s finding that extradition proceedings are separate and distinct from the appellant’s private civil suit and as such, the exception in s. 4 did not apply. Doherty J.A. further agreed with Nordheimer J.’s finding that the “personal injury” exception found in s. 6 (a) is limited to physical injury. As the appellant did not allege that he suffered any physical injury, the s. 6 (a) exception could not apply.
V. Issues
12 Do the exceptions in either s. 4 or s. 6 (a) of the State Immunity Act apply so as to deprive Germany of the immunity from actions in Canadian courts to which it is otherwise entitled under s. 3(1) of the Act ?
VI. Analysis
A. Origins and Scope of Sovereign Immunity
13 The principle of sovereign immunity originated somewhat obscurely centuries ago in a period when the sovereign personified the state, and when sovereign interventions were generally limited to matters of public order, the conduct of international affairs and the defence of the state, see: C. Emanuelli, Droit international public: contribution à l’étude du droit international selon une perspective canadienne (1998), at p. 303. Sovereign immunity developed from the doctrine of the law of nations, which governs the international community of states based on the notions of sovereignty and equality of states; see: I. Brownlie, Principles of Public International Law (5th ed. 1998), at p. 289, and Sir R. Jennings and Sir A. Watts, eds., Oppenheim’s International Law (9th ed. 1996), vol. I, at pp. 341-43. These notions form the basis of an old Latin maxim: “Par in parem imperium non habet”, which translates as “An equal has no authority over an equal”; see: J.-M. Arbour, Droit international public (3rd ed. 1997), at p. 286, and Latin for Lawyers (2nd ed. 1937), at p. 217.
14 States have incorporated the principle of sovereign immunity into their domestic legal order in two ways. First, state practice has generally established that domestic courts do not exercise jurisdiction in actions brought against foreign states. Secondly, states have generally allowed foreign states a privilege, as a matter of comity, to appear as plaintiffs in domestic courts, if they so choose, see: Jennings and Watts, supra, at pp. 342-43, and Brownlie, supra, at pp. 324-26.
15 Over the years, the general principle of sovereign immunity has been attenuated somewhat, and certain exceptions to the general rule have emerged. Some authors have interpreted the emergence of exceptions to sovereign immunity as evidence of a new, restrictive immunity. Brownlie, supra, remarks that the ratification of the European Convention on State Immunity, 11 I.L.M. 470 (1972), opened for signature on May 16, 1972, and ratified by eight states as of September 8, 2002, “provides further evidence of the trend toward a restrictive approach to immunity” (p. 339).
16 Emanuelli, supra, makes the same observations at pp. 304-5, noting that various jurisdictions, including the Council of Europe, the United States, the United Kingdom, Australia, as well as Canada, have adopted a restrictive immunity approach in their domestic legislation. The International Law Commission’s “Draft Articles on Jurisdictional Immunities of States and their Property” (reproduced in Yearbook of the International Law Commission 1991 (1994), vol. II, Part Two, at p. 13), provisionally adopted by the International Law Commission in 1986, also indicates a trend towards the restrictive immunity approach: see Emanuelli, supra, at p. 306; and Jennings and Watts, supra, at pp. 344-45.
17 Despite the increasing number of emerging exceptions, the general principle of sovereign immunity remains an important part of the international legal order, except when expressly stated otherwise, and there is no evidence that an international peremptory norm has been established to suggest otherwise. Indeed, Brownlie, supra, notes at pp. 332-33 that:
It is far from easy to state the current legal position in terms of customary or general international law. Recent writers emphasize that there is a trend in the practice of states towards the restrictive doctrine of immunity but avoid firm and precise prescriptions as to the present state of the law. [Emphasis in original.]
As observed at the outset of these reasons, this principle of international law has been incorporated into the Canadian domestic legal order through the enactment of the federal State Immunity Act .
18 The defence of sovereign immunity can be raised by a defendant state to be determined in a preliminary motion, as a matter for summary judgment or at trial. As noted by Doherty J.A., a number of sovereign immunity cases before the Court of Appeal for Ontario have been determined on a preliminary motion on the premise that the motion judge was obligated to determine the immunity claim on its merits: see Jaffe v. Miller (1993), 13 O.R. (3d) 745 (C.A.); Walker v. Bank of New York Inc. (1994), 16 O.R. (3d) 504 (C.A.); and United States of America v. Friedland (1999), 182 D.L.R. (4th) 614 (Ont. C.A.). However, even if a defendant state fails in its bid to dismiss the action at a preliminary motion, it is not precluded from raising the immunity defence sometime during the trial, as the case develops.
B. Does the Attornment to the Canadian Court’s Jurisdiction Exception under Section 4 Apply to Limit Germany’s Immunity?
19 The appellant submits that s. 4 of the State Immunity Act reflects the policy that if a foreign state invokes Canadian processes, it cannot claim immunity from later Canadian processes concerning the same matter. The appellant’s argument under the s. 4 exception is two-fold. First, the appellant argues that the exception in s. 4(2) (b) applies because Germany initiated the proceedings in a Canadian court. Although the appellant issued the statement of claim, he submits that the proceedings were in fact initiated by Germany’s request that Canadian authorities go before the Ontario Superior Court of Justice on behalf of Germany to arrest and imprison him.
20 Section 4(2) (b) of the Act reads as follows:
4. . . .
(2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it
. . .
(b) initiates the proceedings in the court;
21 Germany responds that it did not submit to the jurisdiction of Canadian courts. The only step taken by Germany in these proceedings has been to bring the motion challenging the court’s jurisdiction that is the subject of the present appeal. In Germany’s view, that step may not be construed as a waiver of sovereign immunity under the express wording of s. 4(3)(a), which provides that:
4. . . .
(3) Paragraph (2)(c) does not apply to
(a) any intervention or step taken by a foreign state in proceedings before a court for the purpose of claiming immunity from the jurisdiction of the court;
Germany submits that the extradition proceedings initiated pursuant to the Extradition Treaty and the present civil action for damages are separate legal actions and any step taken in one does not amount to a step taken in the other.
22 The respondent Attorney General of Canada notes that the waiver exception at issue in s. 4(2) (b) applies only where a foreign state initiates proceedings in a Canadian court and, in this manner, submits to the court’s jurisdiction in respect of those proceedings. No ambiguity arises on the face of s. 4(2) (b). It argues that the short answer to the appellant’s argument is that Germany did not initiate the proceedings at issue.
23 The respondents further submit that waiver does not extend to fresh or distinct actions even if they are on the same or a related subject matter as the proceeding initiated by the foreign state. Had Parliament intended to waive the immunity for all proceedings prompted by or in any way related to the foreign state’s proceeding, it would not have referred to specific types of proceedings in s. 4(4), which provides that:
4. . . .
(4) A foreign state that initiates proceedings in a court or that intervenes or takes any step in proceedings before a court, other than an intervention or step to which paragraph (2)(c) does not apply, submits to the jurisdiction of the court in respect of any third party proceedings that arise, or counter-claim that arises, out of the subject-matter of the proceedings initiated by the state or in which the state has so intervened or taken a step.
24 I agree with the submissions of both respondents with respect to the interpretation of s. 4(2) (b). In particular, it is my view that Germany did not initiate the judicial proceedings as its request to arrest and imprison the appellant was made to the executive branch of government pursuant to the Extradition Treaty. It was the Minister of Justice who authorized the Attorney General to apply for an arrest warrant. The appellant’s tort liability action against the government of Germany is an action that is separate and distinct from the extradition process initiated by Germany. There is nothing in the wording of the legislation or in the Extradition Treaty, to suggest that Germany would impliedly waive its sovereign immunity from law suits in the Canadian courts every time it exercised its treaty-based right to request extradition.
25 As an alternative argument, the appellant submits that s. 4(5) applies because the Superior Court of Justice is only exercising a “supervisory jurisdiction” over the arrest warrant proceedings initiated by Germany, the legality of which is now challenged by the appellant. Section 4(5) reads as follows:
4. . . .
(5) Where, in any proceedings before a court, a foreign state submits to the jurisdiction of the court in accordance with subsection (2) or (4), that submission is deemed to be a submission by the state to the jurisdiction of such one or more courts by which those proceedings may, in whole or in part, subsequently be considered on appeal or in the exercise of supervisory jurisdiction.
26 I agree with the Attorney General’s submission that s. 4(5) simply extends the waiver of immunity arising from proceedings that fall within s. 4(2) or s. 4(4) to include appeals from, or judicial review of, those proceedings. As the appellant’s lawsuit does not fall within either s. 4(2) or s. 4(4) , it is outside the scope of s. 4(5).
27 As noted by Doherty J.A., it would be contrary to the concepts of comity and mutual respect between nations to hold that a country that calls upon Canada to assist in extradition only does so at the price of losing its sovereign immunity and of submitting to the domestic jurisdiction of Canadian courts in matters connected to the extradition request, and not only in respect of the extradition proceeding itself.
C. Does the Personal Injury Exception under Section 6 (a) Apply to Limit Germany’s Immunity?
28 The appellant submits that the mental distress, denial of liberty and damage to reputation he suffered due to his wrongful arrest and imprisonment was a “personal injury” under the exception in s. 6 (a) of the State Immunity Act , and that it therefore limits Germany’s immunity. The argument in relation to the s. 6 (a) exception can be divided into four parts: (1) development of common law, statutory, and international law principle of sovereign immunity; (2) whether wrongful arrest and imprisonment constitute “personal injury”; (3) application of international human rights law; and (4) interpretation of bilingual provisions, the Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4 (“Harmonization Act ”) and Quebec civil law.
(1) Development of Common Law, Statutory, and International Law Principle of Sovereign Immunity
29 The appellant observes that initially at common law, foreign states were immune from any suit and that this was consistent with the common law with respect to Crown immunity. Around the middle of the 20th century, exceptions to foreign state immunity developed. By 1975, foreign states could be sued in Canadian courts in proceedings concerning lands in Canada, debts arising from services performed for the foreign state’s lands in Canada, trust funds for the payment of creditors and matters arising from commercial transactions. The appellant submits that although a distinction between acts of government (acta jure imperii) and acts of a commercial nature (acta jure gestionis) began to emerge in common law, with the latter not being subject to immunity, this distinction does not seem to have been accepted in Canada: see Re Canada Labour Code, [1992] 2 S.C.R. 50, and Gouvernement de la République démocratique du Congo v. Venne, [1971] S.C.R. 997.
30 The intervener, the United States of America, brought up an argument that neither of the respondents raised which would severely restrict the scope of application of the exception. The United States asserts that a distinction must be made between acta jure imperii and acta jure gestionis in determining whether any of the exceptions to immunity under the State Immunity Act are applicable. Each of the exceptions to immunity depends, it is submitted, on the nature of commercial or other private law conduct underlying the claim. The intervener relied on the reference before this Court in Re Canada Labour Code, supra, where La Forest J. writing for the majority, stated that the common law developed a new theory of restrictive immunity under which courts extended immunity “only to acts jure imperii and not to acts jure gestionis” (p. 71). He went on to observe that the State Immunity Act was a “codification that is intended to clarify and continue the theory of restrictive immunity, rather than to alter its substance” (p. 73). According to the intervener, this comment implies that the jure imperii/jure gestionis distinction which underlies the theory of restrictive immunity applies to the entire Act .
31 In reply to this submission, the appellant argued that when Parliament enacted the State Immunity Act in 1982, S.C. 1980-81-82-83, c. 95, it codified that distinction in s. 5 of the Act . It also created a new exception, the death or personal injury exception at s. 6 (a), that did not exist at common law. Had Parliament intended to limit the exception in s. 6 by the jure imperii and jure gestionis distinction, it would have incorporated the distinction into the statutory exception.
32 I accept the appellant’s argument on the irrelevance of the jure imperii/jure gestionis distinction for a number of reasons. First, the wording of s. 6 (a) clearly states that this exception applies to all torts committed by a foreign state which cause death or personal injury. This express wording seems consistent with the evidence presented before the Standing Senate Committee on Legal and Constitutional Affairs, by M. L. Jewett, Constitutional and International Law Section, Department of Justice, on April 9, 1981, where he explained that:
. . . dealing with the distinction between acts jure imperii and acts jure gestionis, these terms, which are really only the functional equivalent of sovereign acts and commercial acts, in themselves are not free from difficulty. We felt that rather than relying on perhaps outdated Latin terminology, focusing on commercial activity and talking about the nature of the activity would make it much easier for the courts to adapt this kind of test and bring it within the role which they perform to a day-to-day basis.
One of the problems inherent in the purpose test, and carried through in the concept of acts jure imperii is the whole notion that a state always acts, in one sense at least, in a sovereign capacity. It cannot act in any other capacity.
(Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 12, at p. 12:9)
33 Secondly, in my view, Re Canada Labour Code, supra, is inconclusive on this issue. In that reference, the Court considered only s. 5 of the Act (the commercial activity section), which does indeed codify the restrictive theory of immunity but does not deal directly with any other of the exceptions under the Act .
34 Furthermore, most of the international law authorities cited by the parties appear to accept that the personal injury exception does not distinguish between jure imperii and jure gestionis acts. See for example, Art. 11 of the European Convention on State Immunity, which states that:
A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, or if the author of the injury or damage was present in that territory at the time when those facts occurred.
35 Article 12 of the “Draft Articles on Jurisdictional Immunities of States and their Property”, provides a number of exceptions to sovereign immunit