State Immunity Act Drives SCC’s Decision on Kazemi

November 12th, 2014 by

Recently, the Supreme Court of Canada (“SCC”) released its decision in the case of Kazemi Estate v Islamic Republic of Iran. The decision has repercussions for those victims (or families of victims) who have been tortured abroad and seek to hold a foreign state responsible in the Canadian court system for the torture that took place. You can find the decision here.

In this particular case, Zahra Kazemi, a Canadian citizen, was detained in Iran after going there as a freelance photographer and journalist. While detained, she was tortured and later died as a result of the harm she sustained while in custody in Iran.

In 2006, Kazemi’s estate and her son, Stephan Hashemi, sued the Islamic Republic of Iran as well as other top ranking members of Iran’s government for what they claimed was the torture of Zahra. The Iranian defendants, however, sought to have the court action dismissed as a result of the State Immunity Act (“SIA”), which provides that a foreign state is immune from the jurisdiction of any Canadian court.

Prior to reading this case, I had never encountered the SIA. I never envisioned an individual taking on a foreign country in a civil proceeding. The power imbalance seems so great that I would have thought either the individual would be too intimidated to try, or the foreign state too big to care and therefore would not bother acknowledging or participating in the proceedings. While this case and the SIA have now made it clear that such proceedings are indeed possible, it has been made equally clear that it may only happen in particular instances.

Among those instances in which a foreign state is not immune from jurisdiction of courts in Canada is those proceedings regarding the commercial activity of the foreign states, or if the proceeding is connected to any death, personal/bodily injury, or damages to or loss of property that occurs in Canada

Whether a claim of torture committed abroad by a foreign state falls within the scope of the SIA was one of the main questions addressed by the SCC in the Kazemi case. The SCC found that torture did not fall within the scope of the SIA and that such an exclusion was intended by the Canadian government. This was clear as the Canadian government included in the SIA a list of circumstances where state immunity could not be claimed.  Torture, however, was not one of them.

At a glance this seems strange. A foreign country can be subject to the jurisdiction of Canadian court based on commercial activity that they may be involved in, but the court will lack jurisdiction if the country is alleged to have partaken in torture of a Canadian citizen abroad? If the SCC could make torture fall within the scope of the SIA, one would think that they would have in the case of Kazemi.

In arriving at its decision, however, the SCC made it clear that it does not have the power to amend the SIA and subject the country of Iran or any country to the jurisdiction of Canadian courts with regard to a claim for torture. It is Parliament that has the ability to amend the SIA. As statutes are creations of Parliament, an amendment to the SIA that would allow Canadians to pursue foreign states in Canadian courts for acts of terror committed abroad can only come from Parliament.

Whether or not Parliament will amend the SIA remains to be seen as the Kazemi decision was decided quite recently. However, the Kazemi decision is important, since it is another reminder of the respective realms of the government and the judiciary. It is up to Parliament to create and revise the law, while it is the job of the judiciary to interpret, apply and uphold it so long as it is constitutional. While some may disagree with the effect of the SCC’s decision (the allegations against Iran will not be able to be tested in a Canadian court), one cannot dispute that Canada’s highest court acted in accordance with what it is empowered to do. For those expecting something more than that, one should look to Parliament and not the court.

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