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Public International Law: State Immunity

immunity
In Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 (35034), the Supreme Court of Canada ruled state immunity is constitutional.

" K, a Canadian citizen, visited Iran in 2003 as a freelance photographer and journalist. She was arrested, detained and interrogated by Iranian authorities. During her detention, she was beaten, sexually assaulted and tortured. She later died as the result of a brain injury sustained while in the custody of Iranian officials. Despite requests made by K’s son, H, that her remains be sent to Canada for burial, she was buried in Iran. Although a report commissioned by the Iranian government linked members of the judiciary and the Office of the Prosecutor to K’s torture, only one individual was tried. That person was acquitted following a trial marked by a lack of transparency. In short, it was impossible for K and her family to obtain justice in Iran.

In 2006, H instituted civil proceedings in Quebec seeking damages on behalf of himself and his mother’s estate against the Islamic Republic of Iran, its head of state, the Chief Public Prosecutor of Tehran and the former Deputy Chief of Intelligence of the prison where K was detained and tortured. H sought damages on behalf of K’s estate for her physical, psychological, and emotional pain and suffering as well as damages for the psychological and emotional prejudice that he sustained as the result of the loss of his mother. Both H and the estate also sought punitive damages. The Iranian defendants brought a motion in Quebec Superior Court to dismiss the action on the basis of state immunity. In response, H and K’s estate raised certain exceptions provided in the State Immunity Act (“SIA ”), and challenged the constitutionality of certain provisions of that Act.

The Quebec Superior Court dismissed the constitutional challenge to the SIA , allowed the defendants’ motion to dismiss the action with respect to the claim brought by K’s estate but dismissed the motion with respect to the recourse sought by H personally. The court held that the SIA exhaustively captures the law of state immunity and that there are no unwritten exceptions to state immunity at common law, in international law, or in international treaties that would allow the claims to proceed. However, it found that H’s personal action could potentially fall within a statutory exception to state immunity applicable to proceedings relating to personal injury that occurs in Canada. The Quebec Court of Appeal dismissed the estate’s appeal and allowed the Iranian defendants’ appeal with respect to H’s claim.

At issue in this appeal is whether the Islamic Republic of Iran, its head of state and the individuals who allegedly detained, tortured and killed K in Iran are entitled to immunity by operation of the SIA . The resolution of that issue rests on the scope of the SIA , the impact that the evolution of international law since the SIA ’s adoption might have on its interpretation, and whether the Act is constitutional. An overarching question, which permeates almost all aspects of this appeal, is whether international law has created a mandatory universal civil jurisdiction in respect of claims of torture, which would require Canada to open its courts to the claims of victims of acts of torture that were committed abroad. Moreover, this Court is asked to determine whether torture may constitute an official act of a state and whether public officials having committed acts of torture can benefit from immunity."

The S.C.C. (6:1) dismissed the appeal.

Justice LeBel wrote as follows (at paras. 2, 169-170):

" … the current state of the law does not allow the appellants to sue the respondents for damages in a Canadian court. Foreign states, as well as their heads of state and public officials, are immune from civil suit in Canada except as expressly provided in the SIA .The SIA does not withdraw immunity in cases alleging acts of torture committed abroad. Put differently, the Parliament of Canada has chosen to embrace principles of comity and state sovereignty over the interests of individuals wishing to sue a foreign state in Canadian courts for acts of torture committed abroad. I conclude that this choice is not contrary to international law, the Canadian Bill of Rights, R.S.C. 1985, App. III (“Bill of Rights”), or the Canadian Charter of Rights and Freedoms . Accordingly, I would dismiss the appeal.



State immunity is a complex doctrine that is shaped by constantly evolving international relations. Determining the exceptions to immunity requires a thorough knowledge of diplomacy and international politics and a careful weighing of national interests. Since the introduction of the SIA , such a task belongs to Parliament or the government, though decisions and laws pertaining to international affairs may be subject to constitutional scrutiny under the Charter . In this sense, there is no Charter free zone and the courts may have to play a part, as they have done in the past (Operation Dismantle v. The Queen,[1985] 1 S.C.R. 441; Canada (Prime Minister) v. Khadr. It is not, however, this Court’s task to intervene in delicate international policy making.

Parliament has the power and the capacity to decide whether Canadian courts should exercise civil jurisdiction. Parliament has the ability to change the current state of the law on exceptions to state immunity, just as it did in the case of terrorism, and allow those in situations like Mr. Hashemi and his mother’s estate to seek redress in Canadian courts. Parliament has simply chosen not to do it yet."

Note: This summary is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.


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