2012 QCCA 1449, 2012 QCCA 1449

Islamic Republic of Iran c. Hashemi 2012 QCCA 1449 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021440-110 500-09-021457-114 (500-17-031760-062) DATE: August 15, 2012 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. RICHARD WAGNER, J.A. CLÉMENT GASCON, J.A. No: 500-09-021440-110 THE ISLAMIC REPUBLIC OF IRAN AYATOLLAH SAYYID ALI KHAMENEI SAEED MORTAZAVI MOHAMMAD BAKHSHI APPELLANTS – Defendants v.

STEPHAN (SALMAN) HASHEMI RESPONDENT – Plaintiff and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded Party and ESTATE OF THE LATE ZAHRA (ZIBA) KAZEMI IMPLEADED PARTY – Plaintiff and AMNISTIE INTERNATIONALE (SECTION CANADA FRANCOPHONE) CANADIAN CENTRE FOR INTERNATIONAL JUSTICE THE REDRESS TRUST LTD. THE CANADIAN CIVIL LIBERTIES ASSOCIATION INTERVENERS – Interveners _____________________________________________________________________ No: 500-09-021457-114 ESTATE OF THE LATE ZAHRA (ZIBA) KAZEMI APPELLANT – Plaintiff v.

THE ISLAMIC REPUBLIC OF IRAN AYATOLLAH SAYYID ALI KHAMENEI SAEED MORTAZAVI MOHAMMAD BAKHSHI RESPONDENTS – Defendants and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded Party and STEPHAN (SALMAN) HASHEMI IMPLEADED PARTY – Plaintiff and AMNISTIE INTERNATIONALE (SECTION CANADA FRANCOPHONE) CANADIAN CENTRE FOR INTERNATIONAL JUSTICE INTERVENERS – Interveners and THE REDRESS TRUST LTD. THE CANADIAN CIVIL LIBERTIES ASSOCIATION INTERVENERS JUDGMENT [ 1 ] THE COURT : On the appeals from the judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Robert Mongeon) rendered on January 25 th , 2011, that dismissed the exception to dismiss of the Appellants the Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei, Saeed Mortavazi and Mohammad Bakhshi against Respondent Stephan (Salman) Hashemi, and granted the exception to dismiss of Respondents the Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei, Saeed Mortavazi and Mohammad Bakhshi against Appellant the estate of the late Zahra (Ziba) Kazemi; [ 2 ] For the reasons of Morissette, J.A., with which Wagner and Gascon, JJ.A. agree; [ 3 ] DISMISSES the appeal of the Appellant the estate of the late Zahra (Ziba) Kazemi, without costs; [ 4 ] ALLOWS the appeal of the Appellants the Islamic Republic of Iran, Ayatollah Sayid Ali Khamenei, Saeed Mortavazi and Mohammad Bakhshi, without costs;

[ 5 ] SETS ASIDE the judgment dismissing the Appellants’ motion to dismiss; [ 6 ] DISMISSES the action of the Respondent Stephan (Salman) Hashemi, without costs. YVES-MARIE MORISSETTE, J.A. RICHARD WAGNER, J.A. CLÉMENT GASCON, J.A. Mtre James A. Woods Mtre Sarah Woods WOODS For The Islamic Republic of Iran Ayatollah Sayyid Ali Khamenei Saeed Mortazavi Mohammad Bakhshi Mtre Kurt A.

Johnson Mtre Mathieu Bouchard Mtre Audrey Boctor Irving Mitchell Kalichman For Estate of the Late Zahra (Ziba) Kazemi Stephan (Salman) Hashemi Mtre Bernard Letarte Department of Justice Canada For Attorney General of Canada Mtre François Larocque Mtre Alyssa Tomkins, CAZA SAIKALEY For Amnistie internationale (Section Canada francophone) Mtre David Grossman Irving Mitchell Kalichman For Canadian Centre for International Justice Mtre Christopher Wayland Mtre Simon Chamberland McCarthy TÉTRAULT For The Canadian Civil Liberties Association Mtre Richard Desgagnés Mtre Rahool Agarwal Norton Rose Canada F or The Redress Trust Ltd.

D Date of hearing: June 13, 2012 REASONS OF MORISSETTE, J.A. [ 7 ] Torture of a human being is evil and abhorrent. Under Canadian law such conduct attracts severe criminal and civil sanctions. Several parties appearing in this case base their appeal or their intervention on a rule of international law and jus cogens which prohibits torture and which, according to them, requires civil remedies against a sovereign state to proceed unhindered by any notion of immunity where this state caused or allowed its agents to engage in torture.

But another rule of international law, one which the Parliament of Canada incorporated into its legislation, extends to sovereign states a jurisdictional immunity in foreign courts and appears to limit the exceptions to the principle of state immunity. [ 8 ] This case and this appeal result from a possible conflict between these two rules. They raise the question whether either one of these rules should prevail over the other.

In my view, there is no conflict between these rules: they apply independently of one another. [ 9 ] I am also of the view that the jurisdictional immunity extended by Canadian legislation to the several parties who appeared as defendants in the Superior Court of Quebec entails that they were entitled to have their exception to dismiss granted in full, a point on which I respectfully disagree with the Superior Court. Furthermore, I believe that the legislation in question is operative and constitutionally valid. My reasons are as follows. I. Nature of the case A.

Procedural history [ 10 ] In case no. 500-17-031760-062, still pending in the Superior Court, the plaintiff Stephan (Salman) Hashemi (“Mr. Hashemi”) began an action against the Islamic Republic of Iran (“Iran”) and three named defendants. He did so, initially, in his personal capacity and in his capacity as liquidator of his late mother Zahra (Ziba) Kazemi’s estate (“the Estate”).

According to the allegations set out in his motion to institute proceedings, the named defendants had ordered, tolerated or actually caused the detention, torture and mortal injuries of his mother while they purported to act, arguably in error, in an official capacity on behalf of Iran and within its territory. Mr.

Hashemi’s claim for damages relates to harm allegedly inflicted to his mother in Iran and to himself in Canada. [ 11 ] The two appeals now before the Court were brought against a judgment of January 25 th , 2011, rendered by the Honourable Robert Mongeon of the Superior Court. [1] This judgment granted in part a dual exception to dismiss raised by Iran and by the named defendants against the action of Mr. Hashemi and the Estate. The sole basis of the defendants’

exception to dismiss was the State Immunity Act [2] (“the SIA ”). [ 12 ] Sitting as a motion judge, Mr. Justice Mongeon held that the SIA barred the claim of the Estate against the defendants, but that Mr. Hashemi’s personal claim against them could proceed under an exception to state immunity explicitly provided for in the SIA . [ 13 ] On February 22 nd , 2011, Iran and the named defendants applied for leave to appeal against the dismissal of their exception to dismiss Mr. Hashemi’s personal claim (appeal file no. 500-09-021440-110). Their application was granted [3] on March 2 nd .

On a parallel course, and on behalf of the Estate, Mr. Hashemi filed an inscription in appeal on February 25 th (appeal file no. 500-09-021457-114). [ 14 ] The appeals in files no. 500-09-021440-110 and no. 500-09-021457-114 were consolidated and heard together. I will refer collectively to the appellants in file no. 500-09- 021440-110 as “the defendants”. In file no. 500-09-021457-114, Mr. Hashemi as appellant and liquidator of his mother’s estate takes a position consistent with the argument he presents as the respondent in file no. 500-09-021440-110; in the following pages, when the Estate and Mr.

Hashemi in his personal capacity are mentioned together, I will refer to them as “the plaintiffs”. [ 15 ] The Attorney General of Canada appeared in the Superior Court as an impleaded party and argued alongside the defendants that the SIA grants them full immunity and that it is a constitutionally valid and operative statute; the same line of argument was pressed again on appeal by this party.

Two parties intervened in the proceedings in the Superior Court, where they supported on different grounds the plaintiffs’ position: Amnistie Internationale (Canada, Francophone) (“AICF”) and the Canadian Centre for International Justice (“CCIJ”). On appeal, they were joined by two additional interveners which also sided with the plaintiffs: the Canadian Civil Liberties Association (“CCLA”) and the Redress Trust Ltd (“RTL”). B. Issues raised on appeal [ 16 ] At both levels, the parties raised a broad range of arguments sounding in statutory, common, civil, constitutional and international law.

For a better understanding of the case, however, it appears both logical and convenient to formulate as follows the four principal issues, or cluster of issues, argued on appeal: ― A. What is the reach of s. 3 of the SIA ? Does the SIA contain a complete codification of state immunity and exceptions thereto? Is the notion of immunity inherently applicable to acts of torture? ― B. Does the exception to state immunity contained in s. 6 (

a) of the SIA apply in this case, so as to allow the action by Mr. Hashemi in his personal capacity? ― C. Are the named defendants Mortazavi and Bakhshi covered by state immunity? ― D. Are the relevant parts of the SIA inoperative or invalid under either the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms ?

Addressing these questions in the proceedings below, the motion judge first concluded that the SIA is exhaustive; he then gave an affirmative answer to the second and third questions (it being understood that the exception to state immunity deprived the named defendant of their argument on the motion to dismiss) and answered the fourth in the negative. [ 17 ] The judgment appealed from, which is of an unusual length for a ruling on a motion to dismiss, is particularly thorough and very carefully written.

It is in the nature of things that, on appeal in a case such as this one, the plaintiffs, the defendants, the impleaded party and the interveners challenge in a number of ways the soundness of several conclusions reached by the motion judge and which they do not find to their liking. In the reasons which follow, I shall focus first and foremost on the errors which, according to these parties, undermine the findings of the motion judge.

Where, however, his reasons already contain an effective refutation of what was contended in the Superior Court and often reiterated on appeal, it will not be necessary here to repeat his analysis in extenso : a succinct discussion of the issues and a reference to the reasoning I adopt will suffice. II. Facts as alleged in the pleadings [ 18 ] It is trite law that, on an exception to dismiss under paragraph 4 of

article 165 C.c.p. , the facts alleged must be taken as true. This rule, like many rules, can be stretched beyond reason. I do not believe, for instance, that a court of law would be bound to treat as true a bare allegation that the earth is flat. [4] But no such complication arises here : there can be no doubt that the allegations as phrased amount to a rational account of provable facts.

It is therefore this procedural rule which, at this early stage, will determine the fate of the case – whether it will proceed further or end here – and the application of that rule calls for a careful reading of the re-amended motion to institute proceedings. I will summarize some of the alleged facts but will quote verbatim the allegations which are most susceptible of bearing directly on the defendants’ exception to dismiss. A. The Estate’s claim [ 19 ] Zahara Kazemi was a photographer and independent journalist who held dual citizenship in Canada and Iran at the time she travelled to Iran in 2003.

During the month of June 2003, while she was taking photographs of protesters outside the Evin Prison in Teheran, she was arrested by the local authorities. Paragraph 17 of the amended motion to institute proceedings describes the circumstances as follows: 17. At the order of Tehran’ s Chief Public Prosecutor, Mr. Mortazavi, Ms. Kazemi was arrested and detained while taking photographs outside Evin Prison. During her detention, Ms. Kazemi was beaten, sexually assaulted and tortured by Iranian authorities. No one other than Iranian officials had access to Ms.

Kazemi during her detention[.] [ 20 ] At some point thereafter, but prior to the 6 th of July 2003, Ms. Kazemi was transferred from the Evin Prison to a hospital, where she lay unconscious on arrival. She was diagnosed at first with gastro-intestinal bleeding, but it later became apparent that she had suffered a brain injury. She went into a coma and was moved to intensive care. Though initially denied access to her daughter, Ms. Kazemi’s mother, who resides in Iran, managed to see her in hospital and was able to observe “the extent of the physical trauma evident on various parts of her body”. Mr.

Hashemi, who was then in Canada, learned of his mother’s condition on July 7 th . [ 21 ] Steps taken by the Canadian government in Ottawa and by the Canadian embassy in Teheran to provide assistance to Ms. Kazemi remained ineffective because of the Iranian authorities’ refusal to allow any contact with her. On or about the 10 th of July, “medical staff at the hospital took Ms. Kazemi off life support and pronounced her dead”, an action which was “in direct contravention of the wishes of the Kazemi family”.

On July 12 th , the Iranian authorities officially announced her death. [ 22 ] The harmful acts which the defendants allegedly committed against Ms.

Kazemi and her Estate are her arrest and detention at the Evin Prison and the facts that she was subjected to extensive interrogation and torture, that she was transferred unconscious to a hospital without notification to her family, that access to her as well as independent medical assistance or examination were denied during her hospitalization, that her wrongful death happened during this period of custody and that the autopsy and burial in Iran occurred against her family’s wishes. [ 23 ] Paragraphs 43 to 50 of the motion to institute proceedings are reproduced verbatim at paragraph [21] of the judgment a quo ; they detail the severity of the physical injuries inflicted on Ms.

Kazemi and the suspect attitude of the Iranian authorities in the aftermath of her detention and her death. [ 24 ] The amended motion to institute proceedings describes in these terms the prejudice suffered by Ms. Kazemi personally as a consequence of the defendants’ alleged faults : 91. Ms. Kazemi suffered extreme prejudice from the moment of her arrest by Iranian authorities until her death in their custody, including but not limited to the following elements: 92. Ms.

Kazemi suffered the indignity of being wrongfully arrested and detained, an indignity which was compounded by her inability to make contact with counsel, Canadian consular officials or her family; 93. Ms. Kazemi suffered the extreme psychological, emotional and physical harm of interrogations, beatings, rape and torture, all in the knowledge that she had committed no crime. Ms. Kazemi would have realized that she faced torture and interrogation for a potentially unlimited period since she was not in possession of information capable of bringing such treatment to an end; 94. Ms.

Kazemi’s suffering would have been heightened by her knowledge that no one apart from Iranian authorities was aware of her arrest and detention and that there was therefore no possibility of her receiving any assistance or reprieve from such treatment; 95. Even when her physical suffering became severe, Ms. Kazemi was denied medical attention while in detention. Only once her condition had deteriorated to the point of losing consciousness was she finally transferred to hospital;

96. Ms. Kazemi eventually suffered the ultimate prejudice of loss of life when she was removed from life support by Iranian authorities on July 10[.] [ 25 ] With regard to the damages claimed as compensation for the aforementioned prejudice and other consequences of the defendants’ faults, the Estate’s allegations state: 113. As a direct result of the Defendants’ abuse, sexual assault and torture of Ms. Kazemi, which led directly to her death, the Plaintiffs are entitled to claim, and do hereby claim against the Defendants, both jointly and severally, the following damages:

a) for the Estate of the late Zahra (Ziba) Kazemi, for the physical, psychological and emotional pain and suffering undergone by Ms. Kazemi from the time of her arrest until the time of her death: $5,000,000; […]

c) for the Estate of the late Zahra (Ziba) Kazemi, exemplary and punitive damages due to the Defendants’ unlawful and intentional interference with Ms. Kazemi’s rights and freedoms: $5,000,000; […]

e) expenses for the disinterment of the remains of the late Zahra Kazemi, for their return to Canada, and for their burial in Canada following an independent autopsy, such amount to be perfected at trial;

f) reimbursement for legal expenses incurred by the Plaintiffs in the preparation of the present proceedings[.] B. Mr. Hashemi’s claim [ 26 ] It will already be well apparent from the allegations concerning Ms. Kazemi that those events, if true as described in the plaintiffs’ pleadings, would have inflicted on her son, Mr. Hashemi, an injury to feelings fitting the classical definition of solatium doloris (and paragraphs 85 to 90 motion to institute proceedings, quoted below, agree with this observation). But there is more. Here are the relevant paragraphs of the motion which concern the prejudice suffered by Mr.

Hashemi – I underline the words which appear to have had a decisive importance in the judgment appealed from: 81. Mr. Hashemi suffered considerable prejudice in the period leading up to Ms. Kazemi’s death and continues to suffer as a result of that death. This prejudice includes but is not limited to the following elements: 82. Mr. Hashemi suffered the initial psychological trauma of learning of his mother’s hospitalization in Iran and of the fact she was in a coma; 83.

He suffered considerable trauma as a result of the knowledge that Iranian authorities would not grant either his grandmother or Canadian authorities access to his mother, or provide information about the circumstances that had led to her hospitalization. This trauma was exacerbated by the unwillingness of Iranian authorities to allow for independent medical assistance or examination of Ms. Kazemi; 84. Mr.

Hashemi suffered the further trauma of learning that Iranian authorities had decided to remove his mother from life support while he was attempting to arrange for independent medical [care] and her eventual transportation to Canada for further medical care; 85. Mr. Hashemi suffered in the knowledge that his mother’s death had occurred in suspicious circumstances, and received only conflicting information regarding the cause of death and an unwillingness on the part of lranian authorities to provide the family with information concerning the circumstances leading to Ms. Kazemi’s death; 86.

As evidence of torture was found, Mr. Hashemi suffered the extreme prejudice of learning that his mother had been severely beaten, tortured and sexually abused while in Iranian custody; 87. Despite having made his wishes clear through official diplomatic channels, Mr. Hashemi suffered the further prejudice of seeing his wishes ignored in relation to the holding of an independent autopsy and subsequent repatriation of his mother’s body to Canada for burial; 88. Mr.

Hashemi has suffered tremendous prejudice by the unwillingness of Iranian authorities to properly and transparently investigate the circumstances of his mother’s death. The various alleged attempts to do so have all been marred by intervention or complete lack of cooperation on the part of those in a position to provide answers regarding Ms. Kazemi’s treatment; 89. Mr. Hashemi has suffered the loss of an ongoing, close relationship with his mother, a loss made more acute by the fact that he was an only child of divorced parents, and that he and his mother had emigrated to Canada on their own; 90.

The ongoing unwillingness of Iranian authorities to adequately investigate Ms. Kazemi’s death and to prosecute those in positions of authority who ordered, participated in and subsequently hid the circumstances leading to her death has necessitated that Mr. Hashemi dedicate much of the past three years to the pursuit of justice on his mother’s behalf from his home in Canada; Reverting now to the claim of damages already cited above in paragraph [25], we see that those allegations of prejudice lead to the following further allegations: 113.

As a direct result of the Defendants’ abuse, sexual assault and torture of Ms. Kazemi, which led directly to her death, the Plaintiffs are entitled to claim, and do hereby claim against the Defendants, both jointly and severally, the following damages: […]

b) for Stephan Hashemi, son and only child of the late Zahra Kazemi, for the loss of his very close relationship with his mother and for the psychological and emotional prejudice occasioned by this loss: $5,000,000; […]

d) for Stephan Hashemi, son and only child of the late Zahra Kazemi, exemplary and punitive damages due to the Defendants’ unlawful and intentional interference with Mr. Hashemi’s rights: $2,000,000;

e) expenses for the disinterment of the remains of the late Zahra Kazemi, for their return to Canada, and for their burial in Canada following an independent autopsy, such amount to be perfected at trial;

f) reimbursement for legal expenses incurred by the Plaintiffs in the preparation of the present proceedings[.] III. Relevant statutory and constitutional provisions [ 27 ] Though the case raises issues which transcend domestic law, it nonetheless centers on the notion of state immunity under Canadian law. It is therefore appropriate to quote the legislative and constitutional provisions which according to the parties may delineate the scope of this notion in domestic law and as it may apply to the plaintiffs’ case. [ 28 ] The SIA provides as follows: 2. In this Act, 2. Les définitions qui suivent s’appliquent à la présente loi.

“agency of a foreign state” means any legal entity that is an organ of the foreign state but that is separate from the foreign state; “commercial activity” means any particular transaction, act or conduct or any regular course of conduct that by reason of its nature is of a commercial character; “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; « activité commerciale » Toute poursuite normale d’une activité ainsi que tout acte isolé qui revêtent un caractère commercial de par leur nature. « État étranger » Sont assimilés à un État étranger :

a) le chef ou souverain de cet État ou d’une subdivision politique de celui- ci, dans l’exercice de ses fonctions officielles;

b) le gouvernement et les ministères de cet État ou de ses subdivisions politiques, ainsi que les organismes de cet État;

c) les subdivisions politiques de cet État. « organisme d’un État étranger » Toute entité juridique distincte qui constitue un organe de l’État étranger. “political subdivision” means a province, state or other like political subdivision of a foreign state that is a federal state. « subdivision politique » Toute pro​- vin​ce, tout état ou toute autre subdivision politique similaire d’un État étranger à régime fédéral. 3.

(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada. 3.

(1) Sauf exceptions prévues dans la présente loi, l’État étranger bénéficie de l’immunité de juri​diction devant tout tribunal au 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.

(2) Le tribunal reconnaît d’office l’immunité visée au paragraphe (1) même si l’État étranger s’est abstenu d’agir dans l’instance. 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. 5. L’État étranger ne bénéficie pas de l’immunité de juridiction dans les actions qui portent sur ses activités commerciales. 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. 6. L’État étranger ne bénéficie pas de l’immunité de juridiction dans les actions découlant :

a) des décès ou dommages corporels survenus au Canada;

b) des dommages aux biens ou perte de ceux-ci survenus au Canada. For their part, the Canadian Bill of Rights (the “ Bill of Rights ”) in s. 2 and the Canadian Charter of Rights and Freedoms (the “ Charter ”) in s. 7 state: 2. Every law of Canada shall, unless it expressly declared by

an Act of the parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights , be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […] 2.

Toute loi du Canada, à moins qu’une loi du Parlement du Canada ne déclare expressément qu’elle s’appliquera nonobstant la Décla​- ration canadienne des droits , doit s’interpréter et s’appliquer de manière à ne pas supprimer, restreindre ou enfreindre l’un quelconque des droits ou des libertés reconnus et déclarés aux présentes, ni à en autoriser la suppression, la diminution ou la transgression, et en particulier, nulle loi du Canada ne doit s’interpréter ni s’appliquer comme […] (

e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

e) privant une personne du droit à une audition impartiale de sa cause, selon les principes de justice fondamentale, pour la définition de ses droits et obligations; 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the prin​ciples of fundamental justice. 7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale. IV.

Merits [ 29 ] The four issues mentioned above, should they all need to be addressed, will have to be considered in the order in which they appear in paragraph [16]. It therefore seems appropriate to explain at the outset why these are the essential issues in the two appeals. A brief

summary of the main contentions from all parties will show how, on its merits, the case necessarily focuses on these questions, taken in that order. [ 30 ] As I mentioned above, the judgment appealed from dealt with a dual exception to dismiss which the defendants based on the state immunity provided for by s. 3 of the SIA . That argument hinges on the proposition that the SIA provides a complete and clear codification of the law of state immunity in Canada.

In their factum as respondents in the Estate’s appeal, the defendants develop this proposition, as does the Attorney General of Canada as the impleaded party. The Estate, AIFC, CCIJ and CCLA challenge the same proposition from different angles. First, according to them, recent developments in domestic and in international law point to the conclusion that there is now afoot an exception to

immunity governed by the common law and international law, and which would apply to grievous violations of human rights such as torture. Second, they also contend that torture cannot be characterized as a sovereign act. According to them, s. 3 of the SIA is ambiguous and must be interpreted in accord with the Charter as well as the jus cogens , so as to allow the claims of both the Estate and Mr. Hashemi. [ 31 ] If, however, s. 3 of the SIA properly interpreted does extend an immunity to the defendants, it becomes necessary to consider whether the exception to immunity set out in s. 6 allows Mr. Hashemi’s claim.

The motion judge held that it does. The defendants in their appeal argue that, for the immunity to apply, the fault alleged must have occurred in Canada, the damage inflicted must “relate” to the said fault, such damage must take the form of “personal or bodily injury” – and they take the position that Mr. Hachemi’s claim fulfills none of these three conditions. Mr. Hashemi replies that the motion judge correctly interpreted the SIA and he disputes each one of the defendants’ arguments.

Supporting the latter position, RTL agrees with the motion judge’s characterization and adds that, in light of certain international authorities, Mr. Hashemi must be considered a direct victim of the fault or cluster of faults on the basis of which he is suing. [ 32 ] In addition to the scope of s. 6 of the SIA , another issue arises regarding the extension of s. 3 to the defendants Mortazavi and Bakhshi. On this point, Mr. Hashemi endorses the argument of RTL and CCIJ.

For various reasons (such as the fact, among them, that s. 3 of the SIA does not explicitly include low-level state officials, or that torture is not

an act that can be committed in a public capacity) they press the view that the defendants Mortazavi and Bakhshi cannot take advantage of any official immunity benefiting the Islamic Republic of Iran and its Supreme Leader. In their factum as respondents in the Estate’s appeal, the named defendants rely on Canadian and British authorities to buttress the motion judge’s conclusion on this point. [ 33 ] Affirmative answers to the first three questions leave the door open to two final lines of argument advanced by the Estate as appellant and by Mr. Hashemi as respondent. For the former, the immunity extended to the defendants violates the Estate’s right to a fair hearing guaranteed by s. 2 (

e) of the Bill of Rights , there is no justification for such an infringement and, as a declaration of inoperability of the SIA in this case would not breach Canada’s international obligations, that declaration must issue. For the latter, s. 3 of the SIA , if it bars the claim, interferes with Mr. Hashemi’s right to liberty entrenched in s. 7 of the Charter , and does so in a manner which cannot be justified under s. 1 of the Charter .

The defendants and the Attorney General of Canada take issue with these arguments and assert that, on the contrary, neither the Bill of Rights nor the Charter compels the outcome sought by the plaintiffs. A. What is the reach of s. 3 of the SIA ? Does the SIA contain a complete codification of state immunity and exceptions thereto? Is the notion of immunity inherently applicable to acts of torture? [ 34 ] It is beyond doubt that, facially, the Estate’s claim falls outside the four corners of s. 6 of the SIA : this is so for the precise reason that all the allegations concerning Ms.

Kazemi refer to events which occurred in Iran, including the “death or personal or bodily injury” inflicted on her. And it is nowhere argued by any of the parties that, by itself, the claim for “reimbursement for legal expenses incurred by the [the Estate] in the preparation of the present proceedings” qualifies under s. 6 (

b) as a claim for “damage to or loss of property … that occurs in Canada”. Such an argument, were it made, would distort beyond recognition the language used by Parliament, for it would extend the exception to immunity in Canada whenever a person’s death was wrongfully caused outside of Canada by the action of a state now being sued in Canada by that person’s estate. The motion judge was therefore right when he wrote early in his reasons: [53] Assuming that the SIA is constitutionally valid, and upon a plain and ordinary reading thereof, it would appear that the exception of

section 6(

a) SIA could not be raised by the Estate of Zahra Kazemi, inasmuch as her personal and/or bodily injuries as well as her death as a consequence, occurred in Iran and not in Canada. Later on, he added along the same line: [93] The recourse of the Estate of Zahra Kazemi upon its face, cannot be salvaged by application of section 6(1) [5] SIA. All of the physical assaults suffered by Zahra Kazemi did not occur in Canada but in Iran.

In coming to this conclusion, the motion judge assumed that the SIA is constitutionally valid, a matter which will be dealt with below in the answer to question D. [ 35 ] On the completeness or exhaustiveness of the SIA , the motion judge first expressed his view in the following terms at paragraph [51] : “The SIA is a complete statute which suffers no intrusion from the common law, international law or Canada's international treaty obligations.” In the concluding paragraphs of the judgment, he added this comment : [213] There are no exceptions to the general principle of state immunity other than those specifically mentioned in the SIA.

Our legal system does not permit any importation of non-codified principles of common law or international law. The purpose of the SIA was precisely to enunciate legal rules applicable to the subject of state immunity. This legislation is restrictive in nature and should be narrowly interpreted and applied even though exceptions to a restrictive statute should, generally speaking, be more liberally interpreted and applied. Here, given the statutory wording used which calls for exceptions to be specifically identified, no additional exceptions not specifically mentioned in the SIA may be considered.

The intervener AICF specifically targets this conclusion, which it regards as erroneous. AICF argues on the basis of recent or relatively recent judgments of the Supreme Court of Canada that, in the absence of an express statutory derogation from prohibitive rules of customary international law, “the courts may look [to such rules] to aid in the

interpretation of Canadian law and the development of the common law” . [6] The Estate, CCIJ and CCLA endorse these views in varying degrees and they contend that the SIA must be interpreted in a manner which is consistent with external sources, namely customary international law and jus cogens as it is absorbed by the common law or, in the case of CCLA, made mandatory in Canadian law by the Charter . 1. The completeness of the exceptions set out in the SIA [ 36 ] This argument gravitates around the first six words of s. 3(1) of the SIA .

As I understand the argument, it posits that there has now come into existence a rule of customary international law which prohibits states from engaging in torture, that an exception to the principle of state immunity – not mentioned in the SIA – has simultaneously emerged in international law, that it avails against states in breach of this prohibitive rule, and that in interpreting the SIA and the development of Canadian common law, a court may, or perhaps even must, look to such rules to achieve an outcome in harmony with international law. [ 37 ] AICF, CCIJ and CCLA find support for this argument in a passage of the Supreme Court of Canada’s judgment in Kuwait Airways Corporation v.

Iraq. Writing for a unanimous court, Justice LeBel observed: [7] As I mentioned above, the SIA represents a clear rejection of the view that the immunity of foreign states is absolute. It reflects a recognition that there are now exceptions to the principle of state immunity and in so doing reflects the evolution of that principle at the international level.

But I need not determine here whether the SIA is exhaustive in this respect or whether the evolution of international law and of the common law has led to the development of new exceptions to the principles of immunity from jurisdiction and immunity from execution (on this issue and the controversies it has generated, see F. Larocque, "La

Loi sur l'immunité des États canadienne et la torture" (2010), 55 McGill L.J. 81). It will suffice to determine whether the commercial activity exception applies in the case at bar. This passage, according to the intervener, confirms that the SIA is not exhaustive on exceptions to the principle of state immunity. But the passage can just as well be understood to mean that, for the purpose of disposing of Kuwait Airways’ appeal, the Court considers it unnecessary to delve into the issue of whether the SIA is so exhaustive.

While the Court notes in passing that a doctrinal controversy may exist on this topic, its judgment stands for the narrower proposition that, on a proper legal characterization of the nature of the acts for which Kuwait Airways had sued the Republic of Iraq in England, the commercial activity exception of s. 5 SIA applied and, consequently, the exception to dismiss Kuwait Airways’ action could not succeed on state immunity grounds. [ 38 ] I can see why, when interpreting the terms of the SIA which were in issue in Schreiber v. Canada (Attorney General) [8] and which again come up for

interpretation in this case, the Court held that “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 Act, the object of the Act and the intention of Parliament”. [9] There is nothing particularly new in this statement : I take it to mean that, when the issue is to determine whether a given set of circumstances comes within the purview of words as inherently laden with meaning as “personal or bodily injury” and “dommages corporels”, one should draw on all the resources of statutory

interpretation to resolve the matter. [ 39 ] But the situation here is quite different. Any party arguing that the SIA leaves intact and self-standing at common law an open-ended list of exceptions to state immunity would have to offer an especially strong argument to traverse successfully the words “[e]xcept as provided by this Act” – “[s]auf exceptions prévues dans la présente loi” in s. 3(1) of the SIA . No context is needed to elucidate the meaning of these words, a meaning which, as sometimes happens in statutes, is perfectly plain.

I do not see that the plaintiffs or interveners have levelled against this straightforward reading of the statute the sort of specially strong argument that might prevail over it and open the door to exceptions not provided for in the Act. [ 40 ] The existence of a “genuine ambiguity” is a precondition for interpreting a statute in a manner consistent with values or legal principles (including, where appropriate, principles of international law) extrinsic to the text itself. In Bell ExpressVu Ltd. Partnership v.

R. , Justice Iacobucci aptly made the point in these terms: [10] Statutory enactments embody legislative will. They supplement, modify or supersede the common law. More pointedly, when a statute comes into play during judicial

proceedings, the courts (absent any challenge on constitutional grounds) are charged with interpreting and applying it in accordance with the sovereign intent of the legislator. In this regard, although it is sometimes suggested that “it is appropriate for courts to prefer

interpretations that tend to promote those [ Charter ] principles and values over

interpretations that do not” (Sullivan, supra, at p. 325), it must be stressed that, to the extent this Court has recognized a “Charter values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible,

interpretations. The plaintiffs and the interveners in this case do offer arguments based on the Bill of Rights and on the Charter . They invite the Court to declare the SIA inoperative because of an alleged clear conflict of norms, constitutional or quasi-constitutional on one side, statutory on the other. These arguments, if need be, will be reviewed below in answer to question D. , where the issue is whether “the sovereign intent of the legislator”, to borrow Justice Iacobucci’s words, survives a “challenge on constitutional grounds”. But the argument developed in answer to question A. is different.

It amounts to saying, in effect, that the language of the statute is ambiguous because rules of customary international law which came into existence after the passing of the SIA recognize another exception to state immunity.

Assuming that this exception does exist, the alleged incompatibility does not engender a “genuine ambiguity” in the SIA itself, it simply underscores a contradiction between the SIA and a principle of international law. [ 41 ] Such a contradiction does not afford a justification for scaling down the obvious “interpretation”, or perhaps more accurately, the “reading” of a clear statutory rule. In the Schreiber case [11] , Justice LeBel quotes Justice Pigeon in an earlier judgment of the Supreme Court of Canada, Daniels v.

White : [12] ... this is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. It is a rule that is not often applied, because if a statute is unambiguous, its provisions must be followed even if they are contrary to international law... In other words, this rule of construction comes into play only in the presence of an ambiguous statutory provision.

I do not think it could be disputed that the rule in question continues to apply in Canadian law. Where as here a statute contains a provision which is clear and is inconsistent with binding principles of customary international law, this provision may, in the words of Justice LeBel in Hape , [13] “violate international law and offend the comity of nations”, but Parliament in the exercise of its sovereignty does have the power to enact it in that form. [14] [ 42 ] The Estate and some of the interveners invite us not to adopt the

interpretation of s. 3(1) the SIA which the Court of Appeal for Ontario favoured in Bouzari v. Islamic Republic of Iran . [15] In my view, what Goudge J.A. wrote on behalf of the Court in paragraphs [56] to [59] of his reasons is entirely apposite – in fact, it coincides with most of the preceding observations on the SIA . I therefore see no reason to depart from his reasoning: the exceptions to state immunity in Canadian positive law are those set out in the SIA , not in some remnant of a hypothetical common law doctrine that would coexist with the Act, or in some rule of customary international law that might modulate the

interpretation of a statutory phrase which in fact is in no need of

interpretation. Such a rule of customary international law, if it existed, could easily have been integrated in the SIA by a legislative amendment but Parliament did not do so. 2. The scope of jurisdictional immunity and the SIA [ 43 ] So far, I have limited my analysis to arguments centering on the words “[e]xcept as provided by this Act” – “[s]auf exceptions prévues dans la présente loi” in s. 3(1) of the SIA , that is, arguments aimed at demonstrating whether the exceptions to state immunity explicitly contained in the SIA exhaust the list of enforceable exceptions.

My view, as I have said above, is that the list is exhaustive. But the Estate and the interveners AICF, CCIJ and CCLA all rely on another argument which the Estate, in its factum, announces in these terms : Appellant submits that there are emerging, continuing and compelling developments in the customary international law of state immunity which stand for the clear proposition that the SIA cannot apply to acts of torture.

The real focus of this argument, which the interveners develop from different angles, is the notion of immunity in and of itself or, if one prefers to tie it to the language of the SIA , the meaning and reach of the words “immune from jurisdiction” and “immunité de juridiction” in s. 3(1). [ 44 ] Normally, one would first determine what is the true scope of a principle or rule – in this case, state immunity – and, having reached a conclusion on that first question, one would then proceed, if necessary, to consider whether any known exception – such as, in many cases of state immunity, “commercial activities” – may apply to the case at hand.

In the present case, that order was reversed : the thrust of the plaintiffs’ and interveners’ argument in the Superior Court was that today, in Canada, a common law exception to state immunity, supported by international law or the Charter , coexists with the SIA . On appeal, the plaintiffs and the interveners argued that the codified exceptions of the SIA are incomplete (that is primarily a question of statutory

interpretation), but also that, in any event, the customary international law rule of state immunity fed into the SIA no longer extends to torture (that is a question of international law as it applies here), so that the enforcement of any codification of that rule under Canadian law must take this development into account. Substantively, however, the questions to consider remain the same, regardless of the order in which they are examined. [ 45 ] The motion judge did not address this second question directly in his reasons, although he did quote at length the cases of Bouzari , [16] Al-Adsani v.

United Kingdom [17] and Jones v. Kingdom of Saudi Arabia [18] (where the matter is touched upon more than once) and he made clear that he agreed with these authorities. Commenting later on the Jones case and what forms the substance of question C. in this opinion, he wrote: [142] Not only does the House of Lords clarify that the nature of the acts should not be discussed as long as those acts have been taken in the course of an official’s duties but it further maintains that the nature of torture as a jus cogens prohibition in international law does not relax state immunity.

According to what the interveners and the Estate argued on appeal, this is an erroneous conclusion. [ 46 ] The judgment below is dated January 25 th , 2011. The parties in the Court of Appeal filed their factums between July 28 th and October 31 st , 2011. Neither the motion judge nor the parties, therefore, had the benefit of the recent judgment rendered by the International Court of Justice (“ICJ”) on February 3 rd , 2012, in the case styled Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) [19] (“ Germany v. Italy ”) .

In preparation for the hearing on appeal, the parties were informed by the Court that they would be invited to comment on this judgment, and they did. The importance of this recent precedent cannot be underestimated.

I will now devote some time to explaining why it is relevant for our present purposes, and what it stands for. [ 47 ] The Federal Republic of Germany brought this case before the ICJ because the Italian Court of Cassation ( Corte di Cassazione ) had denied Germany’s claims of immunity in various proceedings instituted in Italy by Italian nationals, and by Greek nationals trying to enforce in Italy judgments they had obtained in Greece against Germany.

These proceedings all related to substantive violations of international law which had occurred between 1943 and 1945 while German military forces were present in Italy and in Greece. It was not disputed, for example, that in Italy during that period German forces had “ perpetrated many atrocities against the population […] including massacres of civilians and the deportation of large numbers of civilians for use as forced labour”. [20] The ICJ remarks on this point: “In the present case, the violation of the rules prohibiting murder, deportation and slave labour took place in the period 1943-1945.

The illegality of these acts is openly acknowledged by all concerned.” [21] [ 48 ] The case gave rise to several issues of international law, only one of which is directly pertinent here. Yet this issue concerns the principal question addressed by the ICJ in its judgment.

Germany sought from the ICJ a declaration that the Italian Republic: [22] by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II from September 1943 to May 1945, to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law[.] The parties disagreed on the relevant time-frame for the ICJ’s determination.

Germany took the view that its claim of immunity had to be adjudged pursuant to international law as it stood at the time of the acts complained of (1943-45) whereas Italy asserted that the law applicable was the law on state immunity in existence during the period when the immunity was denied to Germany (2004-2008).

The ICJ agreed with Italy on this point and it made clear that the international law in force at the time of denial of immunity governed the case. [23] [ 49 ] The balance of the case, insofar as it relates to issues debated before this Court, pertains to the scope of state immunity under customary international law (for there existed on the subject of immunity no treaty, bilateral or multilateral, between Italy and Germany). Italy had two lines of argument: (1) the territorial tort principle and (2) the subject-matter and circumstances of the claims in respect of which immunity was denied.

The ICJ, by a majority vote of twelve of its fifteen members, holds that Germany is entitled to the declaration sought because neither line of argument justifies the denial of immunity. [ 50 ] On the first score, the ICJ describes the essence of Italy’s argument in those terms: “… customary international law has developed to the point where a State is no longer entitled to immunity in respect of acts occasioning death, personal injury or damage to property on the territory of the forum State, even if the act in question was performed jure imperii ”. [24] I note that this contention rests on the assumption that the damage inflicted occurred in the forum State (in our case, Canada). [ 51 ] After an extensive review of all relevant sources, [25] the ICJ concludes on this first line of argument that customary international law does not support Italy’s position.

The

ICJ said, inter alia : [26] State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State. […] In light of the foregoing, the Court considers that customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict.

In effect, the immunity stands, even if the substantive violation took place in the forum State. This description of the current state of customary international law is not of much help, and perhaps of no help at all, to the plaintiffs and the interveners.

But I would hesitate to draw a definitive conclusion against their position on that basis alone: one significant component of this part of the case before the ICJ was that the acts complained of involved military personnel engaged qua military personnel in hostilities which occurred during World War II – in other words, there was a strong element of acta jure imperii (belligerent action in time of war) in the events in question, which element may not have been as tangible and preponderant in the plaintiffs’ case. [ 52 ] Italy’s second line of argument rested on three points: (

i) the inherent gravity of the violations which amounted to crimes under international law (such as murder), (ii) the peremptory status of the rules of customary international law (or jus cogens ) infringed by these violations and (iii) the fact that all other attempts to compensate the victims of these violations had failed (from which it could be inferred that the proceedings in the Italian courts were the only means of redress available to them). [ 53 ] One can point to an obvious analogy between this second line of argument and the course of reasoning advanced by the Estate and the interveners in their written submissions.

They coincide on all three points: torture leading to a homicide is as grave a violation of customary international law as were the actions of German military personnel in Italy and elsewhere, and in the motion to institute proceedings there are ample allegations to the effect that a civil suit in Canada is the only means of redress available to the plaintiffs.

It therefore appears appropriate to borrow a few extended quotations from the majority judgment of the ICJ, for it answers authoritatively all the points about the jus cogens which were raised in the case at hand. [ 54 ] The ICJ first comments as a matter of methodology on the logical flaw which results from linking the denial of immunity to the seriousness of the violations complained of: [27] At the outset […] the Court must observe that the proposition that the availability of immunity will be to some extent dependent upon the gravity of the unlawful act presents a logical problem.

Immunity from jurisdiction is an immunity not merely from being subjected to an adverse judgment but from being subjected to the trial process. It is, therefore, necessarily preliminary in nature. Consequently, a national court is required to determine whether or not a foreign State is entitled to immunity as a matter of international law before it can hear the merits of the case brought before it and before the facts have been established.

If immunity were to be dependent upon the State actually having committed a serious violation of international human rights law or the law of armed conflict, then it would become necessary for the national court to hold an enquiry into the merits in order to determine whether it had jurisdiction. If, on the other hand, the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect be negated simply by skilful construction of the claim.

The ICJ then reviews the state of customary international law on state immunity and it draws the following conclusions (I underline certain key words): [28] That said, the Court must nevertheless inquire whether customary international law has developed to the point where a State is not entitled to immunity in the case of serious violations of human rights law or the law of armed conflict.

Apart from the decisions of the Italian courts which are the subject of the present proceedings, there is almost no State practice which might be considered to support the proposition that a State is deprived of its entitlement to immunity in such a case. […] In addition, there is a substantial body of State practice from other countries which demonstrates that customary international law does not treat a State’s entitlement to immunity as dependent upon the gravity of the act of which it is accused or the peremptory nature of the rule which it is alleged to have violated . […] That practice is particularly evident in the judgments of national courts.

Arguments to the effect that international law no longer required State immunity in cases of allegations of serious violations of international human rights law, war crimes or crimes against humanity have been rejected by the courts in Canada ( Bouzari v. Islamic Republic of Iran , Court of Appeal of Ontario,

(2004) Dominion Law Reports (DLR) 4th Series, Vol. 243, p. 406; ILR , Vol. 128, p. 586; allegations of torture), [as well as in France, Slovenia, New Zealand, Poland and the United Kingdom]. Particular emphasis is laid on the lack of connection between the jus cogens invoked by Italy and the issue of state immunity: [29] This argument therefore depends upon the existence of a conflict between a rule, or rules, of jus cogens , and the rule of customary law which requires one State to accord immunity to another. In the opinion of the Court, however, no such conflict exists.

Assuming for this purpose that the rules of the law of armed conflict which prohibit the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour are rules of jus cogens , there is no conflict between those rules and the rules on State immunity . The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State.

They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful. That is why the application of the contemporary law of State immunity to proceedings concerning events which occurred in 1943- 1945 does not infringe the principle that law should not be applied retrospectively to determine matters of legality and responsibility (as the Court has explained in paragraph 58 above).

For the same reason, recognizing the immunity of a foreign State in accordance with customary international law does not amount to recognizing as lawful a situation created by the breach of a jus cogens rule, or rendering aid and assistance in maintaining that situation, and so cannot contravene the principle in

Article 41 of the International Law Commission’s Articles on State Responsibility. […] To the extent that it is argued that no rule which is not of the status of jus cogens may be applied if to do so would hinder the enforcement of a jus cogens rule, even in the absence of a direct conflict, the Court sees no basis for such a proposition.

A jus cogens rule is one from which no derogation is permitted but the rules which determine the scope and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus cogens which would require their modification or would displace their application. The Court has taken that approach in two cases, notwithstanding that the effect was that a means by which a jus cogens rule might be enforced was rendered unavailable.

In Armed Activities , it held that the fact that a rule has the status of jus cogens does not confer upon the Court a jurisdiction which it would not otherwise possess ( Armed Activities on the Territory of the Congo (New Application: 2002), Judgment, I.C.J. Reports 2006 , p. 6, paras. 64 and 125).

In Arrest Warrant , the Court held, albeit without express reference to the concept of jus cogens , that the fact that a Minister for Foreign Affairs was accused of criminal violations of rules which undoubtedly possess the character of jus cogens did not deprive the Democratic Republic of the Congo of the entitlement which it possessed as a matter of customary international law to demand immunity on his behalf ( Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, I.C.J. Reports 2002 , p. 3, paras. 58 and 78).

The Court considers that the same reasoning is applicable to the application of the customary international law regarding the immunity of one State from proceedings in the courts of another. Finally, turning to the unavailability of other means of redress for the victims, the ICJ explains why it cannot treat this circumstance as legally significant: [30] … the Court cannot accept Italy’s contention that the alleged shortcomings in Germany’s provisions for reparation to Italian victims, entitled the Italian courts to deprive Germany of jurisdictional immunity.

The Court can find no basis in the State practice from which customary international law is derived that international law makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress . Neither in the national legislation on the subject, nor in the jurisprudence of the national courts which have been faced with objections based on immunity is there any evidence that entitlement to immunity is subjected to such a precondition.

States also did not include any such condition in either the [ European Convention on State Immunity ] or the [ United Nations Convention on the Jurisdictional Immunities of States and their Property ]. [ 55 ] In my respectful opinion, this judgment of the ICJ provides a conclusive refutation of the arguments against jurisdictional immunity which several parties in this case based on customary international law and on a jus cogens protection of human rights. [ 56 ] There remains, lastly, the contention founded on the Convention against Torture and Other Cruel, Inhuman or Degrading Punishment (“the Convention ”).

Signed by Canada in 1985, and ratified in 1987, the Convention entered into force in June of 1987. It includes the following provision:

Article 14

1. Each State Party shall ensure in its legal system that the victim of

an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of

an act of torture, his dependants shall be entitled to compensation. 2. Nothing in this

article shall affect any right of the victim or other persons to compensation which may exist under national law. When Bouzari v. Iran was heard in the Superior Court of Justice of Ontario [31] , Swinton J. dealt with this question in paragraphs 43 to 54 of her reasons, relying by preference on the expert opinion of Mr. Christopher Greenwood Q.C. of the London School of Economics (as he then was) rather than on the opinion of Professor Ed Morgan of the University of Toronto (as he then was).

These conclusions of Swinton J. were later endorsed by the Court of Appeal [32] and the case of Bouzari is twice mentioned in the judgment of the ICJ. [33] [ 57 ] It may well have been the case that, as Goudge J.A. remarked in the Court of Appeal, Swinton J. had “properly accepted expert evidence that focused on the present state of international law, rather than its possible or even hoped for future.” [34] It is impossible to conclude, however, that any binding development of international law has materialized since that time and that it now dictates a different

interpretation of

article 14. The provision itself remains, at best, ambiguous. [ 58 ] In oral argument, the Estate and some interveners brought to the attention of the Court an “advanced unedited version” (dated May/June 2012) of the observations of the Committee against Torture on the implementation of the Convention in Canada. This committee is formed pursuant to

article 17 of the Convention and it operates under the auspices of the Office of the United Nations High Commissioner for Human Rights. Among other functions, it monitors the measures taken to give effect to the Convention by studying the reports which each individual signatory of the Convention is required to submit to the Committee every four years. The Committee’s observations include the following passage: Civil redress and state immunity 15.

The Committee remains concerned at the lack of effective measures to provide redress, including compensation, through civil jurisdiction to all victims of torture, mainly due to the restrictions under provisions of the State Immunity Act (SIA). (art. 14) The State party should ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture occurred and regardless of the nationality of the perpetrator or victim. In this regard, it should consider amending the State Immunity Act to remove obstacles to redress for all victims of torture.

One may consider that, in making these observations (still in their advanced, unedited form), the Committee points to a “possible or even hoped for future” of conventional international law – to borrow the words of Goudge J.A. in Bouzari . But the judgment of the ICJ in Germany v. Italy makes abundantly clear that customary international law is far from having reached that stage of development.

Indeed, Italy was found in breach of international law for having failed to grant jurisdictional immunity to Germany in circumstances which, at least in some cases in Canada, would have fallen under the “territorial tort” exception contained in the SIA. [ 59 ] The members of the Committee against Torture, I have no doubt, well understand the distinction between de lege lata and de lege feranda .

Their invitation to “the State party” to amend de SIA points to what in their opinion would be a desirable change, though not one mandated by an existing obligation under conventional international law; a change, in other words, that would require a legislative initiative.

But this Court cannot amend legislation. * * * * * [ 60 ] In view of the foregoing, I shall continue the analysis on the basis that the SIA is a complete codification of the law of state immunity in Canada, that no exceptions to immunity other than those contained therein [35] may be invoked by a party suing a foreign state in a Canadian court and that state immunity may apply to acts of torture. B. Does the exception to state immunity contained in s. 6 (

a) of the SIA apply in this case, so as to allow the action by Mr. Hashemi in his personal capacity? [ 61 ] As I explained previously in paragraph [34], the Estate’s claim clearly is not covered by the exception in s . 6(

a) of the SIA. One intervener, CCIJ, adroitly argues that allowing the defendants to have the benefit of the immunity in the present case permits them to take advantage of their own dereliction. Had they not detained Ms. Kazemi and caused her to die in Iran, she would have returned to Canada and she (or her estate in the event of her subsequent death) could have sued the defendants under that very same subsection of the SIA . Consequently, the exception to dismiss should be barred by a fin de non-recevoir . This reading of the statue, in my view, turns s. 6 (

a) upside down. This provision deviates from customary international law: had Germany in the Germany v. Italy case been subject to a legislated rule similar to s. 6 (a) , jurisdictional immunity would have been denied in at least some of the cases authorized by the Italian Court of Cassation.

But, be that as it may, creating a fin de non-recevoir patterned after CCIJ’s argument would unduly extend the legislated exception to customary international law for it would mean that, in most if not all cases where a resident of Canada dies abroad as a result of a foreign state’s fault, that person’s estate can sue the foreign state in Canada. I cannot believe that such a self-defeating rule was what Parliament contemplated when it formulated the SIA as it did.

It is the death or the admissible damage which must have occurred in Canada.The next outstanding question, therefore, is whether the allegations of fact cited in paragraph [26] above disclose a triable cause of action against the defendants in respect of which the defendants cannot claim the immunity afforded under the SIA . 1. Meaning of “occurs in Canada” – “survenus au Canada” [ 62 ] The defendants’ first argument in this regard is that the exception of s. 6 (

a) cannot apply here because the impugned events – that is, the fault or series of faults which caused the damage - did not take place in Canada. In my view, given the wording of s. 6 (a) , this argument is untenable. The words “that occurs in Canada” – “survenus au Canada” might, under other circumstances, give rise to difficulties of

interpretation, but in this instance, they are as plain and straightforward as “[e]xcept as provided by this Act” – “[s]auf exceptions prévues dans la présente loi”. In the last thirty or forty years, different countries legislated in different ways with a view to codifying the law of state immunity as it would apply within their territory. The history of this evolution, and of the emergence of several exceptions to absolute immunity, is traced in Judge Keith’s concurring opinion in Germany v. Italy .

I understand from this evolution that, here as probably elsewhere, one must first look to the statute, and apply it as worded, if one desires to be faithful to the legislative intent, for not all legislative formulas are the same. [ 63 ] One formula which, with respect to damages, resembles the SIA , but differs on the specific point at issue here, is the formula incorporated in the State Immunity Act 1978 of the United Kingdom. The relevant

section of that Act, which came into force several years before the SIA , states (I underline): 5. A State is not immune as respects proceedings in respect of— (

a) death or personal injury; or (

b) damage to or loss of tangible property, caused by

an act or omission in the United Kingdom . The defendants also quote Australian, Singaporean and South African statutes (“caused by

an act or omission in…”), as well as Argentinian legislation (“damages from crimes or offences committed in…”), as evidence of what they contend was the real intended reach of the exception to immunity. [ 64 ] I do not see how several instances of foreign legislation worded differently, and in a significant way, from the SIA , can weigh in favour of an “interpretation” of the SIA which departs from its natural meaning.

Implicit in this argument is the dubious suggestion that Parliament made a mistake in opting for a different wording. [ 65 ] On the other hand, add the defendants, as far as the situs requirement is concerned, one provision which more closely resembles the SIA will be found in the United States Code, under “general exceptions to the jurisdictional immunity of a foreign state”. [36] This provision reads as follows (again, I underline): (

a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— […] (5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to— (

A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or (

B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights[.]

In Persinger v. Islamic Republic of Iran , the United States Court of Appeals for the District of Columbia considered this provision in a case involving a suit brought against Iran. Persinger had been held hostage in Teheran for over 14 months. Upon his release and return to the United States, he and his parents began an action against Iran in which his parents claimed for mental and emotional distress. [ 66 ] Interpreting

section 1605(a)(5), Judge Bork, with the concurrence of Judge Bazelon, wrote : [37] The claims brought by Sergeant Persinger's parents present a variation on the issue just discussed. They seek to recover for mental and emotional distress suffered within the continental United States. Such injuries are said to be actionable because

section 1605(a) (5) requires only that the injury be suffered in the United States but does not require that the tortious act or omission occur here.

Section 1605(a)(5) is ambiguous on this point. It states that immunity is removed in actions "for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission" of a foreign state. It is thus unclear whether both the tort and the injury must occur here or whether the tort may occur abroad and be actionable so long as the injury is suffered here. Compare Frolova v. Union of Soviet Socialist Republics , 558 F. Supp. 358, 362 (N.D. Ill. 1983) (act or omission must occur in the United States), and In re Sedco, Inc. , 543 F. Supp. 561, 567 (S.D.

Tex. 1982), with Letelier v. Republic of Chile , 488 F. Supp. 665, 674 (D.D.C. 1980) (only tortious injury need occur in the United States). See generally, McKeel v. Islamic Republic of Iran , 722 F.2d at 589-90 n.10. The ambiguity goes no deeper than the surface of the text, however, for the briefest consideration of the purposes of the statute shows that the first alternative must be chosen: both the tort and the injury must occur in the United States. We have shown that the proper construction of the statute deprives the district court of jurisdiction to entertain Sergeant Persinger's claim.

Iran is immune from tort suits here for actions taken by it on its own territory. It would be anomalous to say that Congress intended to deny a remedy to him — a hostage imprisoned and physically abused for more than a year — and yet also intended to expose Iran to a suit by his parents for their emotional distress.

Indeed, appellants' argument would have the result that had one hostage died in Tehran and another been released and died in the United States, both deaths being due to injuries inflicted while they were held hostage, the district court would have jurisdiction over the second suit but not over the first. Such results would deprive the statute of any policy coherence.

Our reading of the statute is further supported by the following passage in the House Report: It [section 1605(a) (5)] denies immunity as to claims for personal injury or death, or for damage to or loss of property, caused by the tortious act or omission of a foreign state or its officials or employees, acting within the scope of their authority; the tortious act or omission must occur within the jurisdiction of the United States . . . House Report at 21 (emphasis added).

But Judge Edwards, writing in dissent, added: [38] I find the language of this provision unambiguous and clearly applicable on its face to the parents' claim. In particular, the statute plainly requires that only the injury , and not the tortious act or omission, occur in the United States. I see no reason to resort to the legislative history to clarify the plain language of the statute. Congress never enacted the language of the House Report that "the tortious act or omission must occur within the jurisdiction of the United States." H.R. REP. NO. 1487, 94th Cong., 2d Sess. 21 (1976).

Moreover, I do not find that the case law persuasively supports the reading of the statute adopted in the majority opinion. Only one case, In re Sedco, Inc. , 543 F. Supp. 561, 567 (S.D. Tex. 1982), holds that the tortious act or omission must occur in the United States. The Sedco court reached its conclusion primarily on the basis of the language of the House Report. A second case cited in the majority opinion, Frolova v. Union of Soviet Socialist Republics , 558 F. Supp. 358, 362 (N.D. Ill. 1983), merely states, without any analysis, that the tortious act or omission must occur in the United States.

That statement is pure dictum because the court expressly declined to decide the Foreign Sovereign Immunities Act issue. I am also not convinced that it is anomalous to allow Persinger's parents to recover damages for mental and emotional injuries suffered by virtue of their son's confinement, but not to allow Persinger himself to recover damages for his own confinement.

As a policy matter, Congress might easily have determined to give American courts jurisdiction over claims for damages caused by tortious acts or omissions occurring outside the United States only to the extent that those acts or omissions produce effects within the United States. It seems to me that, if the result intended by Parliament had been what the defendants suggest, the simple and unambiguous way of accomplishing this end would have been to borrow the formulation, already well known at the time, of the United Kingdom legislation. That is not what was done.

Apart from the fact that not everyone agrees that USC § 1605(a)(5) is ambiguous (Judge Edwards certainly did not share that opinion), or that it is phrased differently from s. 6 (

a) SIA (which contains no mention of a “tortious act or omission”, words that might be thought to refer to concepts of domestic law), the language it uses (“that occurs in Canada” - “survenus au Canada”) is not inherently ambiguous, as I explained above in paragraph [62]) and we do not have an extrinsic source, in the form of a Congressional Report or Parliamentary Paper, to suggest that an

interpretation consistent with Persinger is warranted under the SIA . As for the policy of the rule, Judge Edwards’ view seems to me as coherent as Judge Bork’s view: a policy choice had to be made and the language of the statute, first and foremost, is what we have here to inform ourselves about the choice that was made by Parliament. Consequently, the defendants’ argument on this point must fail. 2.

Meaning of “proceedings that relate to … personal or bodily injury” – “actions découlant des … dommages corporels” [ 67 ] In my opinion, it is possible to approach together under the same heading the second and third arguments of the defendants on the scope of s. 6 (a) . [ 68 ] Their second argument, which directs the attention to the words “relate to” – “découlant de” in s. 6 (

a) and which, I regret to say, is not the easiest to understand, posits that the proceedings mentioned in that provision must, in the defendants’ own words, relate to “a Canadian-based injury”, and that the motion judge failed to take this requirement into account. [ 69 ] This second argument turns ultimately on a distinction between immediate and collateral victims as it arose in the judgment of this Court in Tarquini v. Montréal (Ville de) . [39] Tarquini’s husband, whose family name was Martin, had died in a cycling accident for which the City, according to Tarquini, bore the full responsibility.

A preliminary issue arose in the case as to whether Tarquini’s action was prescribed. She claimed it was not because of

article 2930 C.c.Q. , a provision which imposes a three year prescription for “action[s] … founded on the obligation to make reparation for bodily injury”. The City, on the other hand, argued that since it was Martin, not Tarquini, who had died as a result of the a

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