Estate of the Late Zahra (Ziba) Kazemi v. Stephan (Salman) Hashemi, 2014 SCC 62

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

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United Kingdom, Nos. 34356/06 and 40528/06, ECHR 2014; Military andParamilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14;Re Canada Labour Code, (SCC), [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), (ON CA), 71 O.R. (3d) 675; Suresh v. Canada (Minister of Citizenship andImmigration), 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, (SCC), [1990] 1 S.C.R. 1298;Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., (SCC), [1956] S.C.R. 610; R. v. Finta, (SCC), [1994] 1 S.C.R. 701; Alcom Ltd. v. Republic of Columbia, [1984] 1 A.C. 580; Daniels v. White, (SCC), [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 Americav. Netherlands, Award (1928), II R.I.A.A. 829; Castle v.

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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.

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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 Association.

John Terry and Sarah Shody , for the intervener the Canadian Centre for International Justice. John Norris and Carmen Cheung , for the interveners the David Asper Centre for Constitutional Rights and the International Human Rights Program at the University of Toronto Faculty of Law. Babak Barin and Payam Akhavan , for the intervener the Iran Human Rights Documentation Center. The judgment of McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. was delivered by LeBel J. — I. Introduction [ 1 ] The death of Ms. Zahra Kazemi in Iran was nothing short of a tragedy.

In an attempt to seek relief and redress, Ms. Kazemi’s son and only child, Stephan Hashemi, instituted an action for damages on behalf of himself and his mother’s estate against the Islamic Republic of Iran, its head of state, and two of its government officials. Mr. Hashemi and his mother’s estate have appealed to this Court for a ruling that those who allegedly detained, tortured and killed Ms. Kazemi not be entitled to immunity by operation of the State Immunity Act , R.S.C. 1985, c. S-18 (“ SIA ” or “Act”), in order that their underlying claims be allowed to proceed. [ 2 ] Despite the tragic fate of Ms.

Kazemi, the current state of the law does not allow the appellants to sue the respondents for damages in a Canadian court. Foreign states, as well as their heads of state and public officials, are immune from civil suit in Canada except as expressly provided in the SIA . The SIA does not withdraw immunity in cases alleging acts of torture committed abroad. Put differently, the Parliament of Canada has chosen to embrace principles of comity and state sovereignty over the interests of individuals wishing to sue a foreign state in Canadian courts for acts of torture committed abroad.

I conclude that this choice is not contrary to international law, the Canadian Bill of Rights , R.S.C. 1985, App. III (“ Bill of Rights ”), or the Canadian Charter of Rights and Freedoms . Accordingly, I would dismiss the appeal. II. Facts

[ 3 ] The facts, taken as true in the court of first instance, are horrific. [ 4 ] Zahra Kazemi, a Canadian citizen, visited Iran in 2003 as a freelance photographer and journalist. On or about June 23, 2003, Ms. Kazemi went to take photographs of individuals protesting against the arrest and detention of their family members outside the Evin prison in Tehran. During that time, Ms. Kazemi was ordered arrested and detained by Mr. Mortazavi, Tehran’s Chief Public Prosecutor. She was detained in the very prison that she was photographing. [ 5 ] During her time in custody, Ms.

Kazemi was not permitted to contact counsel, the Canadian embassy, or her family. She was interrogated by Iranian authorities. She was beaten. She was sexually assaulted. She was tortured. [ 6 ] Eventually, some time prior to July 6, 2003, Ms. Kazemi was taken from the prison and transferred to a hospital in Tehran. She was unconscious upon her arrival. She had suffered a brain injury.

Other injuries included a fractured nose, a crushed eardrum, strip-like wounds on her back and the back of her legs, fractured bones and broken nails on her hands and toes, and extensive trauma on and around her genital area. [ 7 ] While Ms. Kazemi was in hospital, no attempt was made by the Iranian authorities to notify Canadian consulate officials or Ms. Kazemi’s family members of her condition. Even after Ms. Kazemi’s mother, a resident of Iran, was unofficially informed that her daughter was in hospital, she was largely forbidden from having contact with her.

However, with the knowledge that her daughter was hospitalized, Ms. Kazemi’s mother and other members of her family in Iran began to contact Canadian consular officials and Ms. Kazemi’s son. [ 8 ] On or about July 10, 2003, Canadian officials visited the hospital in which Ms. Kazemi was receiving care. Doctors informed these officials that Ms. Kazemi was medically brain dead and had no expectation of recovery. During this time, Ms. Kazemi’s son and mother attempted to obtain independent medical assistance for Ms. Kazemi and to arrange for her transport to Canada for further treatment.

Despite their wishes, the medical staff at the hospital removed Ms. Kazemi from life support and pronounced her dead. On July 12, the Iranian government officially announced Ms. Kazemi’s death through the Islamic Republic News Agency. A later report confirmed that Ms. Kazemi had died as a result of sustaining a blow to the head while in custody. [ 9 ] After her death, the Iranian government ordered an autopsy. In doing so, the government did not consult with Ms. Kazemi’s family. Further, officials did not release the results of the autopsy to Ms. Kazemi’s family or Canadian officials. Following the autopsy, Ms.

Kazemi was buried in Iran, despite her son’s requests that her remains be sent to Canada for burial. [ 10 ] In late July, the Iranian government commissioned an investigation into Ms. Kazemi’s death. Despite a report linking members of the judiciary and the Office of the Prosecutor to Ms. Kazemi’s torture and subsequent death, only one individual, Mr. Reza Ahmadi, was tried. The trial was marked by a lack of transparency. Mr. Ahmadi was acquitted. In short, it was impossible for Ms. Kazemi and her family to obtain justice in Iran. [ 11 ] In June 2006, Mr.

Hashemi moved to institute proceedings in the Superior Court of the Province of Quebec on his own behalf and in his capacity as liquidator for the estate of his mother. Mr. Hashemi brought proceedings against (1) the Islamic Republic of Iran,

(2) Iran’s head of state, the Ayatollah Sayyid Ali Khamenei,

(3) Saeed Mortazavi, the Chief Public Prosecutor of Tehran, and

(4) Mohammad Bakhshi, the former Deputy Chief of Intelligence of the Evin Prison. The action sought: (a) $5,000,000 for the estate of the late Zahra Kazemi as a result of her physical, psychological, and emotional pain and suffering, plus $5,000,000 in punitive damages, and (b) $5,000,000 for the psychological and emotional prejudice caused to Mr. Hashemi personally by the loss of his mother, plus $2,000,000 in punitive damages. [ 12 ] The defendants, named as respondents in this appeal, brought a motion to dismiss the action on the basis of state immunity. The defendants appointed counsel and took

part in the litigation in the Superior Court and in the Court of Appeal in order to argue the absence of jurisdiction of Canadian courts. They were not represented in the appeal to this Court. [ 13 ] Mr. Hashemi and Ms. Kazemi’s estate responded to the motion to dismiss both by raising exceptions provided in the SIA and by challenging the constitutionality of certain provisions of the SIA . [ 14 ] The motion to institute proceedings, the motion to dismiss, and the matter of the constitutionality of the Act were decided by Mongeon J. of the Quebec Superior Court on January 25, 2011. III.

Relevant Statutory Provisions [ 15 ] As was the case before the lower courts, the constitutionality of ss. 3 and 6 of the SIA is at issue in this appeal. The following provisions are relevant to this appeal: State Immunity Act , R.S.C. 1985, c. S-18 2. In this Act , . . . “foreign state” includes (

a) any sovereign or other head of the foreign state or of any political subdivision of the foreign state while acting as such in a public

capacity, (

b) any government of the foreign state or of any political subdivision of the foreign state, including any of its departments, and any agency of the foreign state, and (

c) any political subdivision of the foreign state; . . . 3.

(1) Except as provided by this Act , a foreign state is immune from the jurisdiction of any court in Canada.

(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings. . . . 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 or bodily injury, or (

b) any damage to or loss of property that occurs in Canada. IV. Judicial History A. Quebec Superior Court, 2011 QCCS 196 , 330 D.L.R. (4th) 1 [ 16 ] In the Superior Court, Mongeon J. addressed four main issues:

(1) Are there any unwritten exceptions to state immunity which might allow the plaintiffs’ action to proceed?

(2) Assuming that the SIA is constitutionally valid, can the plaintiffs invoke the exception to immunity under s. 6 (

a) of the SIA ?

(3) Does the SIA , assuming that it is constitutionally valid, grant immunity to the defendants Mr. Mortazavi and Mr. Bakhshi?

(4) If the claim cannot proceed against all the defendants, are the barring provisions of the SIA constitutionally valid? [ 17 ] In response to the first issue, Mongeon J. concluded that the SIA exhaustively captures the law of state immunity. In

his view, all of the legal principles surrounding state immunity, and all of the exceptions to state immunity, are expressly contained in the Act (para. 48). In Mongeon J.’s opinion, based on current case law and the wording of the SIA , no unwritten exceptions to state immunity at common law, in international law, or in international treaties would allow the plaintiffs’ claims to proceed. [ 18 ] With regard to the exception to immunity found in s. 6 (

a) of the SIA , Mongeon J. drew a distinction between the claim of Ms. Kazemi’s estate and her son’s claim. While the bodily injuries of Ms. Kazemi were suffered in Iran, Mr. Hashemi suffered his injuries in Canada. As a result, Mongeon J. held that Ms. Kazemi’s estate could not raise the exception to state immunity under s. 6 ( a ). However, he concluded that Mr. Hashemi’s personal action could potentially fall within that exception. Relying on Schreiber v.

Canada (Attorney General) , 2002 SCC 62 , [2002] 3 S.C.R. 269 , Mongeon J. acknowledged that mental distress could be considered a “personal . . . injury” within the meaning of the Act if the alleged injury manifested itself physically. In Mongeon J.’s view, if Mr. Hashemi could prove that the psychological trauma he suffered affected his physical integrity, or was equivalent to “nervous shock”, the exception set out at s. 6 (

a) would apply and the defendants would be deprived of immunity (para. 92). As a result, Mongeon J. was not prepared to summarily dismiss Mr. Hashemi’s case against the defendants. [ 19 ] Next, Mongeon J. considered whether the SIA grants immunity to the individual defendants Saeed Mortazavi and Mohammad Bakhshi. He addressed the issue of whether “employees of the state acting in their capacity as employees” were included in the statutory definition of “foreign state” (para. 105).

In his view, granting immunity to a governmental department, yet withholding immunity from its functionaries, “would render the State Immunity Act ineffective and inoperative” (para. 112). Mongeon J. concluded that the immunity provisions of the SIA should apply to the individual defendants regardless of the nature of the acts they are alleged to have committed. [ 20 ] Finally, Mongeon J. addressed the constitutionality of the SIA . In particular, he considered whether s. 3(1) of the SIA contravenes ss. 2(

e) and 2(

a) of the Canadian Bill of Rights and ss. 7 and 9 of the Charter . [ 21 ] Mongeon J. concluded that s. 2(

e) of the Bill of Rights does not create a right to recourse where the law does not otherwise provide for such recourse. Rather, in his view, s. 2(

e) merely ensures that when a hearing procedure is foreseen, it will be conducted fairly before an administrative body or tribunal. Having found that the plaintiffs did not have the right to sue a foreign authority except as provided by the exceptions of the SIA , Mongeon J. held that s. 2(

e) did not assist them. [ 22 ] Mongeon J. also determined that the plaintiffs’ claim under s. 2(

a) of the Bill of Rights had no merit. In his view, the SIA did not “authorize” Ms. Kazemi’s detention. The SIA only prevents the plaintiffs from claiming damages in Canada in the aftermath of such detention. [ 23 ] Mongeon J. then went on to consider the Charter . In his view, the causal connection between the plaintiffs’ suffering and the action of the Canadian government was insufficient. He found that the application of the SIA did not cause the breach of Mr. Hashemi’s or Ms.

Kazemi’s s. 7 Charter rights. [ 24 ] In the result, Mongeon J. allowed the defendants’ motion to dismiss the action with respect to the estate of Ms. Kazemi but dismissed the motion with respect to the recourse sought by Mr. Hashemi personally. B. Quebec Court of Appeal, 2012 QCCA 1449 , [2012] R.J.Q. 1567 [ 25 ] The Quebec Court of Appeal dismissed the appeal of the estate of Ms. Kazemi and allowed the defendants’ appeal with respect to Mr. Hashemi’s claim.

Morissette J.A., writing for a unanimous court, addressed the same issues as those determined by Mongeon J. [ 26 ] Morissette J.A. rejected the argument made by Mr. Hashemi and the estate that the language of the SIA is ambiguous because current customary international law, which has evolved subsequent to the enactment of the statute, recognizes exceptions to state immunity that are not included in the Act (para. 40).

In the view of Morissette J.A., the language of the statute was clear and unambiguous: the only exceptions to state immunity recognized in Canada are those that are explicitly set out in the SIA (para. 42). Further, relying on the recent case of Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) , Judgment, I.C.J. Reports 2012, p. 99 (“ Germany v.

Italy ”), before the International Court of Justice (“I.C.J.”), Morissette J.A. confirmed that there is no rule of customary international law which overrides state immunity for serious international crimes, even when there are no alternative means for securing redress (para. 55). Finally, on this issue, Morissette J.A. added that art. 14 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , 1465 U.N.T.S. 85 (“ CAT ”) and the Committee against Torture’s

interpretation of that

article offered no assistance to the appellants. In his view, art. 14 was largely ambiguous, and the Committee against Torture’s

interpretation of the

article did not have the force of law (paras. 57-59). [ 27 ] Morissette J.A. made two further conclusions pertaining to s. 6 (

a) of the SIA . First, he rejected the argument that, for the exception in s. 6 to apply, the tortious act causing the injury must necessarily have occurred in Canada. Rather, the s. 6 exception could apply where the acts causing the injury had taken place in a foreign state but where the injury manifests itself in Canada. However, Morissette J.A. ultimately found that s. 6 (

a) was of no assistance to Mr. Hashemi because that

section requires the claimant to have suffered “a breach of physical integrity, not simply psychological or psychic integrity” (para. 82 (emphasis deleted)). Mr. Hashemi suffered no such injury. [ 28 ] Next, Morissette J.A. considered whether the defendants Mr. Mortazavi and Mr. Bakhshi should benefit from state immunity. In his view, Mongeon J. was correct in concluding that “individual agents of a foreign state” are granted immunity by the Act (para. 93). He also rejected the argument that the treatment of Ms.

Kazemi at the hands of the foreign officials was so egregious that those actions could not fall under the umbrella of “official activity” which attracts immunity (para. 97). In his view, the concept of torture itself necessarily involves the acquiescence or direction of those in an official capacity or position of authority. [ 29 ] Morissette J.A. then went on to consider the constitutionality of the SIA . At the Court of Appeal, Mr. Hashemi and the estate challenged the constitutionality of s. 3(1) of the SIA only in relation to s. 2(

e) of the Bill of Rights and s. 7 of the Charter . Morissette J.A. rejected their Bill of Rights argument, confirming as Mongeon J. had before him, that s. 2(

e) does not “creat[e] a self-

standing right to a fair hearing” (para. 109). Morissette J.A. similarly dismissed the s. 7 argument, determining that an alleged violation of the “liberty interest” claimed by Mr. Hashemi (the ability to bring a civil suit against Iran in the forum of his choice) did not render s. 3(1) of the SIA unconstitutional. In his view, there was no s. 7 violation (para. 120). [ 30 ] Mr. Hashemi and Ms. Kazemi’s estate appealed the decision of the Quebec Court of Appeal to this Court.

Although named as respondents, the Islamic Republic of Iran, the Ayatollah Sayyid Ali Khamenei, Saeed Mortazavi and Mohammad Bakhshi did not present written or oral arguments. The Attorney General of Canada was represented at the appeal but presented argument only on some of the issues. Amicus curiae was appointed to address issues raised by the appellants on which the Attorney General of Canada took no position. V. Issues [ 31 ] The following constitutional questions were stated:

(1) Is s. 3(1) of the State Immunity Act , R.S.C. 1985, c. S-18, inconsistent with s. 2 (

e) of the Canadian Bill of Rights , S.C. 1960, c. 44?

(2) If so, is s. 3(1) of the State Immunity Act , R.S.C. 1985, c. S-18, inoperable by reason of such inconsistency?

(3) Does s. 3(1) of the State Immunity Act , R.S.C. 1985, c. S-18, infringe s. 7 of the Canadian Charter of Rights and Freedoms ?

(4) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? [ 32 ] The answers to those questions can be found in the

interpretation of the SIA . Essentially, 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. An overarching question, which permeates almost all aspects of this case, is whether international law has created a mandatory universal civil jurisdiction in respect of claims of torture which would require states to open their national courts to the claims of victims of acts of torture that were committed outside their national boundaries. [ 33 ] For clarity, I have broken the case down into five core issues :

(1) Is s. 3(1) of the SIA a complete codification of state immunity from civil suits in Canada? Does international law render s. 3(1) ambiguous or otherwise require it to be interpreted to implicitly include an exception to state immunity in cases of torture?

(2) Does the exception to state immunity set out at s. 6 (

a) of the SIA apply to Mr. Hashemi’s claim?

(3) Are the respondents Mr. Mortazavi and Mr. Bakhshi entitled to immunity by virtue of the SIA ?

(4) If there is no exception for torture in the SIA , is s. 3(1) of that Act inconsistent with s. 2(

e) of the Bill of Rights ? If so, is s. 3(1) inoperable by reason of such inconsistency?

(5) If there is no exception for torture in the SIA , does s. 3(1) of that Act infringe s. 7 of the Charter ? If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter ? VI. Analysis A. Background

(1) State or Sovereign Immunity [ 34 ] Functionally speaking, state immunity is a “procedural bar” which stops domestic courts from exercising jurisdiction over foreign states (J. H. Currie, Public International Law (2nd ed. 2008), at p. 365; H. Fox and P. Webb, The Law of State Immunity (3rd ed. 2013), at pp. 38-39; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) , Judgment, I.C.J. Reports 2002, p. 3, at para. 60; Germany v. Italy , at para. 58).

In this sense, state immunity operates to prohibit national courts from weighing the merits of a claim against a foreign state or its agents (Fox and Webb, at p. 82; F. Larocque, Civil Actions for Uncivilized Acts: The Adjudicative Jurisdiction of Common Law Courts in Transnational Human Rights Proceedings (2010), at pp. 236-37). [ 35 ] Conceptually speaking, state immunity remains one of the organizing principles between independent states ( R. v. Hape , 2007 SCC 26 , [2007] 2 S.C.R. 292, at para. 43 ).

It ensures that individual nations and the international order remain faithful to the principles of sovereignty and equality (Larocque, Civil Actions for Uncivilized Acts , at p. 236; C. Emanuelli, Droit international public: Contribution à l’étude du droit international selon une perspective canadienne (3rd ed. 2010), at p. 294). Sovereignty guarantees a

state’s ability to exercise authority over persons and events within its territory without undue external interference. Equality, ininternational law, is the recognition that no one state is above another in the international order (Schreiber, at para. 13). The law of stateimmunity is a manifestation of these principles (Hape, at paras. 40-44; Fox and Webb, at pp. 25 and 76; Germany v. Italy, at para. 57). [36] Beyond sovereign equality, other justifications for state immunity are grounded in the political realities ofinternational relations in an imperfect world.

One justification is that because it is “practical[ly] impossib[le]” to enforce domesticjudgments against foreign states, domestic courts are not truly in a position to adjudicate claims in the first place (Fox and Webb, at p.31). In this sense, it is counterproductive for a court to review the decisions of foreign states when doing so risks rupturing internationalrelations without providing much hope of a remedy (ibid.; C.

Forcese, “De-immunizing Torture: Reconciling Human Rights and StateImmunity” (2007), 52 McGill L.J. 127, at pp. 133-34). [37] Two other justifications for state immunity are comity and reciprocity (Forcese, at p. 135; Al-Adsani v. UnitedKingdom (2001), 34 E.H.R.R. 273, at para. 54).

Just as foreign states do not want to have their executive, legislative or public actionscalled into judgment in Canadian courts, so too Canada would prefer to avoid having to defend its actions and policies before foreigncourts. [38] State immunity plays a large role in international relations and has emerged as a general rule of customaryinternational law (Jones v. United Kingdom, Nos. 34356/06 and 40528/06, ECHR 2014, at para. 89; Fox and Webb, at p. 2).

To beconsidered customary international law, a rule must be supported by state practice as well as opinio juris, an understanding on the part ofstates that the rule is obligatory as a matter of international law: Hape, at para. 46; Military and Paramilitary Activities in and againstNicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, at para. 207. The I.C.J. has confirmedthat the principle of state immunity meets both of these requirements (Germany v. Italy, at paras. 55-56).

Given the presence of both statepractice and opinio juris, it is now settled and unequivocal that immunity is more than a courtesy; it has a firm place in the internationallegal landscape (Fox and Webb, at p. 2). [39] The content of state immunity has evolved over time. In its earliest incarnation, state immunity was understood to bea complete and absolute bar on the ability of one state to subject another to any scrutiny (Fox and Webb, at p. 26).

This absoluteprohibition is thought to have derived from the historical personal imperviousness of “monarchs and their representatives” (Larocque,Civilized Actions for Uncivilized Acts, at p. 238). Over time, this immunity was transferred to the nation state as the head of state came toembody the state itself (ibid.). Any subjection of a foreign state to domestic courts was seen as incompatible with sovereign equality (J.H. Currie, C. Forcese, J. Harrington and V.

Oosterveld, International Law: Doctrine, Practice and Theory (2nd ed. 2014), at pp. 539-41;Re Canada Labour Code, (SCC), [1992] 2 S.C.R. 50, at p. 71). [40] In the wake of the Second World War, the idea that a state and its officials could be immune from criminalproceedings appeared particularly incongruous in view of the atrocities that had been committed. The Nuremberg International MilitaryTribunal, in particular through art. 8 of its Charter, 82 U.N.T.S. 279, laid the foundations for a new approach to restricting stateimmunity in criminal proceedings.

That approach has been evolving ever since. [41] In parallel, the complete bar on bringing civil proceedings against a foreign state in domestic courts has alsogradually relaxed. State immunity, once referred to as absolute immunity, slowly came to be qualified as “restrictive” immunity (Currie,Forcese, Harrington and Oosterveld, at p. 541).

This transition was in part due to the greater role that states began to play in commercialand financial matters, and is reflected in the well-known distinction between the acta imperii of a state (acts of a governmental nature)and its acta gestionis (acts of a commercial nature) (Currie, at pp. 371-73; P. Ranganathan “Survivors of Torture, Victims of Law:Reforming State Immunity in Canada by Developing Exceptions for Terrorism and Torture” (2008), 71 Sask. L. Rev. 343, at p. 350).

Asthe international community began to accept that not all acts or decisions of states were quintessentially “sovereign” or “public” innature, but that, at times, states behaved as “private” actors, the idea of an absolute bar on suing a foreign state became obsolete(Larocque, Civil Actions for Uncivilized Acts, at pp. 239-41; Currie, Forcese, Harrington and Oosterveld, at p. 541; Fox and Webb, at p.32).

Many states, including Canada, have legislated this version of restrictive immunity through a commercial activity exception to stateimmunity (SIA, s. 5; Re Canada Labour Code, at p. 73; Schreiber, at para. 33; Kuwait Airways Corp. v. Iraq, 2010 SCC 40, [2010] 2S.C.R. 571, at paras. 13-17). [42] In Canada, state immunity from civil suits is codified in the SIA. The purposes of the Act largely mirror the purposeof the doctrine in international law: the upholding of sovereign equality.

The “cornerstone” of the Act is found in s. 3 which confirmsthat foreign states are immune from the jurisdiction of our domestic courts “[e]xcept as provided by th[e] Act” (Bouzari v. IslamicRepublic of Iran (2004), (ON CA), 71 O.R. (3d) 675 (C.A.), at para. 42; SIA, s. 3). Significantly, the SIA does notapply to criminal proceedings, suggesting that Parliament was satisfied that the common law with respect to state immunity shouldcontinue governing that area of the law (SIA, s. 18). [43] When enacting the SIA, Parliament recognized a number of exceptions to the broad scope of state immunity.

Besidesthe commercial activity exception, canvassed above, Canada has chosen to include exceptions to immunity in situations where a foreignstate waives such right, as well as for cases involving: death, bodily injury, or damage to property occurring in Canada; maritime matters;and foreign state property in Canada (SIA, ss. 4, 6, 7 and 8; Currie, at pp. 395-400; Emanuelli, at pp. 346-49; J.-M. Arbour and G.

Parent,Droit international public (6th ed. 2012), at pp. 500-8.3). [44] In 2012, Parliament amended the SIA to include an additional exception to state immunity for certain foreign statesthat have supported terrorist activity (Arbour and Parent, at pp. 508.1-8.3). Under this new legislative regime, a foreign state may be suedin Canada if (1) the act that the state committed took place on or after January 1, 1985 and (2) the foreign state accused of supportingterrorism is included on a list created by the Governor in Council (SIA, s. 6.1; Library of Parliament, Legislative

Summary of Bill C-10(2012), at s. 2.2.2.1). Although no argument concerning the nature or constitutionality of the terrorism exception was advanced beforethis Court, it is nonetheless relevant to the case at hand. If nothing else, it reveals that Parliament can and does take active steps toaddress, and in this case pre-empt, emergent international challenges (Ranganathan, at p. 386), thereby reinforcing the conclusion,discussed below, that the SIA is intended to be an exhaustive codification of Canadian law of state immunity in civil suits. I also note inpassing, with all due caution, that when the terrorism exception bill was before Parliament, it was criticized on numerous occasions for

failing to create an exception to state immunity for civil proceedings involving allegations of torture, genocide and other grave crimes(Legislative

Summary of Bill C-10, s. 2.1.4). Indeed, Private Member Bill C-483 proposed to create such an exception but it neverbecame law. More broadly, the amendment to the SIA brought by Parliament in 2012 demonstrates that forum states (i.e. states providingjurisdiction) have a large and continuing role to play in determining the scope and extent of state immunity. [45] It follows that state immunity is not solely a rule of customary international law. It also reflects domestic choicesmade for policy reasons, particularly in matters of international relations.

As Fox and Webb note, although immunity as a general rule isrecognized by international law, the “precise extent and manner of [the] application” of state immunity is determined by forum states (p.17). In Canada, therefore, it is first towards Parliament that one must turn when ascertaining the contours of state immunity.

(2) Torture [46] As discussed below, in drafting the SIA, Canada has made a choice to uphold state immunity as the oil that allowsfor the smooth functioning of the machinery of international relations. Canada has given priority to a foreign state’s immunity over civilredress for citizens who have been tortured abroad. This policy choice is not a comment about the evils of torture, but rather anindication of what principles Parliament has chosen to promote given Canada’s role and that of its government in the internationalcommunity.

The SIA cannot be read as suggesting that Canada has abandoned its commitment to the universal prohibition of torture. Thiscommitment is strong, and developments in recent years have confirmed it. [47] In 2002, in the case of Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3,although there were “compelling indicia” to confirm that the prohibition of torture had reached peremptory status, the Court did notmake a binding statement to this effect (paras. 62-65).

Twelve years later, our Court cannot entertain any doubt that the prohibition oftorture has reached the level of a peremptory norm (a peremptory norm, or jus cogens norm is a fundamental tenet of international lawthat is non-derogable: Currie, at p. 583; Emanuelli, at pp. 168-69; Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art.53). [48] There are a number of multilateral instruments which explicitly prohibit torture (see Universal Declaration ofHuman Rights, G.A. Res. 217 A (III), U.N. Doc.

A/810, at 71 (1948), art. 5; Declaration on the Protection of All Persons from BeingSubjected 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; European Convention for the Protection of Human Rights and Fundamental Freedoms, 213U.N.T.S. 221, art. 3; International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 7; and generally the United NationsCAT).

International jurisprudence also recognizes the prohibition of torture as a non-derogable norm (see Ranganathan, at pp. 381-82).For instance, the House of Lords in the case of Jones v. Ministry of the Interior of Saudi Arabia, [2006] UKHL 26, [2007] 1 A.C. 270,concluded that “there is no doubt that the prohibition on torture” is a peremptory norm (para. 43; see also Al-Adsani v. United Kingdom,at para. 61; Prosecutor v. Anto Furund’ija, Case No. IT-95-17/1-T, December 10, 1998 (International Criminal Tribunal for the formerYugoslavia), aff’d Case No.

IT-95-17/1-A, July 21, 2000). [49] The prohibition of torture is a peremptory international norm. But, in Canada, torture is also clearly prohibited byconventions and legislation. Canada is a party to the CAT, which has been in force for over twenty years. The CAT serves manypurposes.

In part, it defines torture (art. 1), and requires that a state party take legislative and administrative measures to prevent acts oftorture (arts. 2, 3 and 4), investigate potential acts of torture believed to have been committed on its territory (art. 12), and provide meansby which victims of torture may obtain redress (art. 14). [50] I note in passing that, unlike my colleague Justice Abella, I cannot interpret art. 14 of the CAT as requiring Canada toimplement a universal civil jurisdiction for acts of torture.

The Travaux Préparatoires leading to the signing of the CAT do not clearlysuggest a purposeful abandonment by party states of the territoriality restriction which at one point was contained in the draft language ofart. 14. Indeed, the change in the language which led to the removal of the territoriality restriction appears to have been prompted by asuggestion made by the United States which sought to harmonize art. 14 with the definition of torture contained at art. 1 by broadeningits language (U.N. Commission on Human Rights,

Summary prepared by the Secretary-General in accordance with Commissionresolution 18 (XXXIV), U.N. Doc. E/CN.4/1314, December 19, 1978, at para. 45). The European Court of Human Rights reached thesame conclusion recently, albeit for different reasons (Jones v. United Kingdom, at para. 208). [51] Torture is also a criminal offence in Canada.

Section 269.1 of the Criminal Code, R.S.C. 1985, c. C-46, states that“[e]very official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on anyother person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” [52] If the Canadian government were to carry out acts of torture, such conduct would breach international law rules andprinciples that are binding on Canada, would be illegal under the Criminal Code, and would also undoubtedly be unconstitutional.

Aswas held in Suresh, the adoption of the Charter confirmed Canada’s strict opposition to government-sanctioned torture. In particular,torture is blatantly contrary to s. 12 of the Charter. The Court stated: A punishment is cruel and unusual if it “is so excessive as to outrage standards of decency”: see R. v. Smith, (SCC),[1987] 1 S.C.R. 1045, at pp. 1072-73, per Lamer J. (as he then was). It must be so inherently repugnant that it could never be anappropriate punishment, however egregious the offence. Torture falls into this category.

The prospect of torture induces fear and itsconsequences may be devastating, irreversible, indeed, fatal. Torture may be meted out indiscriminately or arbitrarily for no particularoffence. Torture has as its end the denial of a person’s humanity; this end is outside the legitimate domain of a criminal justice system. . . . As such, torture is seen in Canada as fundamentally unjust. [para. 51] Torture is also likely contrary to s. 7 of the Charter. [53] Canada does not condone torture, nor are Canadian officials permitted to carry out acts of torture.

However, the issuein the present case is not whether torture is abhorrent or illegal. That is incontestably true. The question before the Court is whether onecan sue a foreign state in Canadian courts for torture committed abroad. The answer to that question lies in the

interpretation of the SIA,and its interaction with international law, the Charter and the Bill of Rights.

B. Section 3(1) of the State Immunity Act

(1) Is Section 3(1) of the State Immunity Act a Complete Codification of State Immunity From Civil Proceedings in Canada? [54] In my view, the SIA is a complete codification of Canadian law as it relates to state immunity from civil proceedings.In particular, s. 3(1) of the Act exhaustively establishes the parameters for state immunity and its exceptions. [55] There is academic support for the view that the SIA is not truly exhaustive, and that despite the express languagefound in s. 3(1), the common law and international law necessarily inform its

interpretation (F. Larocque, “La

Loi sur l’immunité desÉtats canadienne et la torture” (2010), 55 McGill L.J. 81, at pp. 92-93). In Professor Larocque’s opinion, nothing in the Act expresslyexcludes the application of the common law (p. 94). In his view, to understand the SIA as a comprehensive code without consideration ofthe common law is to freeze state immunity in time, and to foreclose its development in line with international norms (pp. 100-2). [56] With all due respect, I am of the view that the SIA provides an exhaustive list of exceptions to state immunity.

Forthat reason, reliance need not, and indeed cannot, be placed on the common law, jus cogens norms or international law to carve outadditional exceptions to the immunity granted to foreign states pursuant to s. 3(1) of the SIA. The SIA, in its present form, does notprovide for an exception to foreign state immunity from civil suits alleging acts of torture occurring outside Canada. This conclusion doesnot freeze state immunity in time. Any ambiguous provisions of the Act remain subject to

interpretation, and Parliament is at liberty todevelop the law in line with international norms as it did with the terrorism exception. [57] Certain of the interveners rely on a statement made in Kuwait Airways as evidence that the evolution of common lawmay have led to new exceptions to the principles of immunity from jurisdiction (see Kuwait Airways, at para. 24). This reliance ismisplaced.

In Kuwait Airways, the only conclusion was that, in that particular case, it was unnecessary to determine whether the SIA isexhaustive “or whether the evolution of international law and of the common law has led to the development of new exceptions to theprinciples of immunity from jurisdiction and immunity from execution” (ibid.). The time has now come to answer that question. [58] In my opinion, the words of s. 3(1) of the SIA completely oust the common law and international law as a source ofpotential exceptions to the immunity which it provides.

The plain and ordinary meaning of the words “[e]xcept as provided by this Act”is that it is the Act, and the Act alone, that may provide exceptions to the immunity granted pursuant to s. 3(1) of the SIA (Bouzari, atpara. 57). Words as explicit as “[e]xcept as provided by this Act” demonstrate that Parliament intended for the legislation to displace thecommon law (Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, (SCC),[1990] 1 S.C.R. 1298, at p. 1319). I cannot think of words that could be more “irresistibl[y] clea[r]” (Goodyear Tire and Rubber Co. ofCanada v. T.

Eaton Co., (SCC), [1956] S.C.R. 610, at p. 614).

(2) Does International Law Render Section 3(1) Ambiguous or Otherwise Require it To Be Interpreted to Include an Exception toState Immunity in Cases of Torture? [59] A number of interveners argue that s. 3(1) of the Act is ambiguous and should therefore be interpr

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