Estate of the Late Zahra (Ziba) Kazemi, et al. v. Islamic Republic of Iran, et al.

(Quebec) (Civil) (By Leave)




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Canadian Charter of Rights and Freedoms - Public International Law - Jurisdictional immunity - Appellants beginning legal proceedings in Quebec against Iran and Iranian officials in relation to alleged torture and death of Canadian citizen in Iran - Whether appellants’ actions against Iranian respondents are barred by application of State Immunity Act? - Whether s. 3(1) of the Act is inconsistent with either s. 2(e) of Bill of Rights or s. 7 of Charter? - Whether, in light of Canada’s obligations under U.N. Convention against Torture, s. 3(1) of the Act conforms to principles of fundamental justice? - Whether foreign public officials, sued in their individual capacity, are immune from jurisdiction of Canadian courts in civil proceedings for acts of torture? - State Immunity Act, R.S.C., 1985, c. S-18, s. 3

In 2003, Zahra Kazemi, a Canadian citizen and photographer, was arrested and detained while in Iran. She was allegedly tortured and sexually assaulted by State authorities in Iran. She later died of her injuries.

Mrs. Kazemi’s Estate and her son each filed a civil liability claim in Quebec against Iran, the Iranian Head of State, the Chief Public Prosecutor as well as the former Deputy Chief of Intelligence for the prison in which Mrs. Kazemi was held. The claims of the Estate were for damages for the pain and suffering of Mrs. Kazemi in relation to her abuse, sexual assault, torture and death. Her son’s claim sought damages for his own pain and suffering provoked by the arrest, torture and death of his mother. Exemplary and punitive damages were also sought by both the Estate and the son.

The Iranian respondents brought a motion to dismiss the actions. They alleged that the actions were barred by the principle of state immunity, set out at s. 3 of the State Immunity Act, R.S.C. 1985 c. S-18 (“SIA”). As a general principle, that Act prohibits lawsuits against foreign states before Canadian courts. The appellants countered with a constitutional challenge alleging that, if the SIA barred their claims, that Act was contrary to s. 2(e) of the Canadian Bill of Rights as well as s. 7 of the Charter insofar as the SIA would deprive them of the right to seek a civil remedy against Iran in Canada. The Attorney General of Canada participated in the legal proceedings for the sole purpose of defending the constitutional validity of the SIA.

Lower Court Rulings

January 25, 2011
Superior Court of Quebec

2011 QCCS 196, 500-17-031760-062
Estate’s Statement of claim against respondents, dismissed; Mr. Hashemi’s statement of claim against the respondents, allowed to proceed; Motion challenging constitutionality to State Immunity Act dismissed; Act found not be contrary to ss. 2(a) and 2(e) of the Canadian Bill of Rights and to ss. 7 and 9 of the Charter.
August 15, 2012
Court of Appeal of Quebec (Montréal)

2012 QCCA 1449, 500-09-021440-110, 500-09-021457-114
Estate’s appeal dismissed; Respondents’ appeal allowed and action of applicant Hashemi dismissed.