2011 QCCA 1386, 2011 QCCA 1386
Opinion
Islamic Republic of Iran c. Hashemi 2011 QCCA 1386 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021440-110 500-09-021457-114 (500-17-031760-062) DATE: JULY 21, 2011 PRESIDING : THE HONOURABLE MARIE-FRANCE BICH, J.A. 500-09-021440-110 THE ISLAMIC REPUBLIC OF IRAN & ALS APPELLANTS / Defendants v. STEPHAN (SALMAN) HASHEMI RESPONDENT / Plaintiff and THE ESTATE OF THE LATE ZAHRA (ZIBA) KAZEMI IMPLEADED PARTY / Plaintiff and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY / Impleaded party and AMNISTIE INTERNATIONALE,
SECTION CANADA FRANCOPHONE and CANADIAN CENTRE FOR INTERNATIONAL JUSTICE INTERVENERS / Interveners in the first instance and THE REDRESS TRUST LTD. INTERVENER and THE CANADIAN CIVIL LIBERTIES ASSOCIATION PETITIONER 500-09-021457-114 THE ESTATE OF THE LATE ZAHRA (ZIBA) KAZEMI APPELLANT / Plaintiff v. THE ISLAMIC REPUBLIC OF IRAN & ALS RESPONDENTS / Defendants and STEPHAN (SALMAN) HASHEMI IMPLEADED PARTY / Plaintiff and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY / Impleaded party and CANADIAN CENTRE FOR INTERNATIONAL JUSTICE and AMNISTIE INTERNATIONALE,
SECTION CANADA FRANCOPHONE INTERVENERS / Intervener in the first instance and THE REDRESS TRUST LTD. INTERVENER and THE CANADIAN CIVIL LIBERTIES ASSOCIATION PETITIONER
JUDGMENT [ 1 ] Pursuant to art. 211 C.C.P. , the petitioner Canadian Civil Liberties Association seeks permission to intervene in files 500-09- 021440-110 and 500-09-021457-114 in order to make submissions to the Court on the following issues (para. 16 of the amended motion): (
a) That the prohibition against torture has become more than a mere norm of customary international law – it is jus cogens. Jus cogens consist of the very highest norms of international law recognized by States, from which no States are permitted to derogate. These peremptory norms embody the highest and most fundamental values of the international community. As such, all States are bound to respect these norms, including the prohibition against torture, which may be enforced, erga omnes , in national courts. Peremptory norms trump competing norms. (
b) State immunity is also an important norm of international law. It is enshrined in the State Immunity Act . However, while State immunity may apply to protect a State from prosecution or suit for the violation of the domestic laws of another state, or even for the violation of norms of customary international law, the CCLA will argue that it does not apply to acts that violate jus cogens. (
c) There is an important presumption that Canadian statutes are consistent with Canada’s international law obligations. Therefore, whenever it is possible to do so, Canadian statutes are interpreted, in accordance with this presumption, so as to make them consistent with Canada’s international law obligations. (
d) The State Immunity Act is silent on the issue of jus cogens . It therefore does not expressly provide that the immunity applies to acts, such as torture, that violate jus cogens. It is not at all clear that Parliament, in adopting the Act, intended to, or even contemplated that it would, thereby extend the notion of “State immunity” to cover contraventions by states of jus cogens. (
e) This conclusion is all the more compelling in the case of the prohibition of torture, which has become more entrenched as a peremptory norm of international law since the time when the State Immunity Act was first adopted. (…) (
f) Canada has signed and ratified the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment , Can. T.S. 1987 No. 36, and its content is reflected in our domestic legislation ( Criminal Code ) and Constitution ( Canadian Charter of Rights and Freedoms ) – these commitments, in addition to the jus cogens status of the prohibition against torture, further support the view that the State Immunity Act should not today be interpreted as barring this suit. (
g) Therefore , it is incumbent upon national courts to provide a forum in which the enforcement of the fundamental international prohibition of torture can occur. This issue is of particular importance before this honourable Court, because application of the Act to dismiss the case would (…) deprive the potential victim’s estate and family of the only available remedy given the absence of any alternate forum, and in so doing, to condone or appear to condone state impunity for alleged violation of the jus cogens prohibition against torture. (
h) Furthermore, the prohibition against torture, and the corresponding obligation to provide redress for victims, is not just a norm of international law. It also finds expression in sections 7 , 9 and 12 of the Canadian Charter of Rights and Freedoms . (
i) Accordingly, there is an important constitutional dimension to these appeals. The CCLA understands that the Respondent (Hashemi), in the appeal by Iran et al. , intends to raise these constitutional issues in its response to the appeal. The CCLA, which has extensive expertise with respect to the
interpretation and application of the Charter , is uniquely placed to address the issue of the relevance of the Charter to this Court’s
interpretation of the State Immunity Act . In this respect, the CCLA can make a unique and distinct contribution to the argument of the appeal. (
j) Therefore, the CCLA can make a distinct and important contribution to this appeal, by analysing the relevant international law, and proposing an
interpretation of the State Immunity Act , in light of the requirements of Canadian constitutional law, specifically the Charter . [ 2 ] Three other organizations (Amnistie internationale,
section Canada francophone, Canadian Centre for International Justice and The Redress Trust Ltd.) have already been authorized to intervene in the same files. The question arises as to the potentially repetitive character of the petitioner's intervention and the extent to which, as a result, it would prove useful to the Court. [ 3 ] Amnistie internationale's intervention is focused on the following issues (para. 18 of Amnistie internationale's motion for leave to intervene): (
a) L’historique législative, la structure et l’interprétation qu’il convient de donner à la
Loi sur l’immunité des états , LRC 1985, c S- 18 dans le cadre d’une poursuite civile pour la torture; (
b) Les canons d’interprétation applicables aux lois fédérales, comme la
Loi sur l’immunité des états , LRC 1985, c S-18, qui codifient partiellement un domaine relevant de la common law; (
c) Les canons d’interprétation applicables aux lois fédérales, comme la
Loi sur l’immunité des états , LRC 1985, c S-18 qui codifient partiellement les normes évolutives du droit international public;
(
d) L’interaction normative de la coutume et des conventions internationales et de la common law et de la législation canadiennes; (
e) L’état du droit international relativement à la prohibition impérative de la torture et des droits et obligations connexes qui en découlent; (
f) L’état du droit international relativement à la doctrine de l’immunité juridictionnelle des états et des fonctionnaires étatiques dans le contexte de poursuites civiles pour la torture au Canada; et (
g) L’état du droit international relativement au droit des victimes de torture à l’accès à la justice et à la réparation devant les tribunaux canadiens. [ 4 ] Aside from the Charter issues and despite the difference in wording, there appears to be, in substance, a substantial similarity between the topics that the petitioner and Amnistie internationale wish to address, and more precisely between subparas. 16 (
a) to (
e) of the petitioner's motion and subparas. 18 (
a) to (
g) of Amnistie internationale's motion. There also appears to be some overlap with the theme of The Redress Trust Ltd.'s intervention. [ 5 ] In addition, para. 16 (
f) of the petitioner's motion deals with an issue that is also at the core of the Canadian Centre for International Justice's intervention (see subpara. 26 (
a) of the latter's motion for leave to intervene): (
a) the international legal regime surrounding torture, including Canada’s own obligations under the Convention Against Torture and, in particular, Canada’s positive obligation pursuant to
article 14 to provide a Canadian forum for torture survivors and their families to seek civil remedies for torture; [ 6 ] This similarity is superficial, however. Indeed, the petitioner's motion in this regard appears to be focused not on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment per se but on the impact of this convention on the
interpretation and application of the Canadian Charter of Rights and Freedoms and then on the impact of the Charter on the
interpretation and application of the State Immunity Act . The issue of redress, in light of the Charter, is also to be discussed. These questions are not dealt with by the other interveners. It is true that they were raised by the parties themselves before the Superior Court and will likely be discussed by them in appeal, but the petitioner has shown that it will offer a new and different perspective on these issues and that its intervention will in all likelihood be useful to the Court. [ 7 ] Therefore, the motion will be granted only in part, that is to say with regards to subparas. 16 (
f) to (
j) of the motion, which are centered on Charter issues and redress issues in light of Canada's international law obligations. [ 8 ] The petitioner, during the hearing, indicated that its factum would not overlap with those of the other interveners or the parties and that it would coordinate with them in order to avoid any such overlap. The petitioner has also accepted in advance to comply with the timetable and conditions set forth by the judgment of Dufresne, J.A. on May 12, 2011.
Finally, in para. 20 of its motion, it states that: 20. […] The CCLA does not intend to file any additional evidence or extraneous materials beyond, with leave of the Court, a factum of no longer than 25 pages. […] [ 9 ] FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] GRANTS the amended motion for leave to intervene with respect to the following paragraphs only: (
f) Canada has signed and ratified the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment , Can. T.S. 1987 No. 36, and its content is reflected in our domestic legislation ( Criminal Code ) and Constitution ( Canadian Charter of Rights and Freedoms ) – these commitments, in addition to the jus cogens status of the prohibition against torture, further support the view that the State Immunity Act should not today be interpreted as barring this suit. (
g) Therefore, it is incumbent upon national courts to provide a forum in which the enforcement of the fundamental international prohibition of torture can occur. This issue is of particular importance before this honourable Court, because application of the Act to dismiss the case would (…) deprive the potential victim’s estate and family of the only available remedy given the absence of any alternate forum, and in so doing, to condone or appear to condone state impunity for alleged violation of the jus cogens prohibition against torture. (
h) Furthermore, the prohibition against torture, and the corresponding obligation to provide redress for victims, is not just a norm of international law. It also finds expression in sections 7 , 9 and 12 of the Canadian Charter of Rights and Freedoms . (
i) Accordingly, there is an important constitutional dimension to these appeals. The CCLA understands that the Respondent (Hashemi), in the appeal by Iran et al. , intends to raise these constitutional issues in its response to the appeal. The CCLA, which has extensive expertise with respect to the
interpretation and application of the Charter , is uniquely placed to address the issue of the relevance of the Charter to this Court’s
interpretation of the State Immunity Act . In this respect, the CCLA can make a unique and distinct contribution to the argument of the appeal. (
j) Therefore, the CCLA can make a distinct and important contribution to this appeal, by analysing the relevant international law, and proposing an
interpretation of the State Immunity Act , in light of the requirements of Canadian constitutional law, specifically the Charter . [ 11 ] AUTHORIZES the petitioner Canadian Civil Liberties Association, after having served one copy upon all parties and interveners, to file in the Office of the Court, no later than August 12, 2011 , four copies of a written argument not exceeding 20 pages , the amended motion for leave to intervene and the present judgment, as well as its authorities.
[ 12 ] As far as oral submissions are concerned, REFERS the matter to Dufresne, J.A. who is responsible for the management of the appeal. [ 13 ] Without costs. MARIE-FRANCE BICH, J.A. Mtre Alexandre-Philippe Avard Woods For The Islamic Republic of Iran & als Mtre Kurt A. Johnson Mtre Mathieu Bouchard Irving, Mitchell, Kalichman For The Estate of the Late Zahra (Ziba) Kazemi and Stephan (Salman) Hashemi Mtre Bernard Letarte Justice Canada For The Attorney General of Canada Mtre David Grossman Osler, Hoskin & Harcourt For Canadian Centre for International Justice Mtre Azim Hussain, absent Norton Rose For The Redress Trust Ltd. Mtre François Larocque, absent For Amnistie internationale,
section Canada francophone Mtre Christopher A. Wayland Mtre Simon Chamberland McCarthy Tétrault For The Canadian Civil Liberties Association Date of hearing: July 13, 2011
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