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Gabarit de jugement pour la cour d'appel

Islamic Republic of Iran c. Hashemi

2012 QCCA 1449

























 August 15, 2012
















No:          500-09-021440-110












APPELLANTS - Defendants








RESPONDENT - Plaintiff






IMPLEADED PARTY - Impleaded Party


















INTERVENERS - Interveners






No:          500-09-021457-114






APPELLANT - Plaintiff














RESPONDENTS - Defendants






IMPLEADED PARTY - Impleaded Party














INTERVENERS - Interveners

















[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 25th, 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.



















Mtre James A. Woods

Mtre Sarah 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


For The Canadian Civil Liberties Association


Mtre Richard Desgagnés

Mtre Rahool Agarwal

Norton Rose Canada

For The Redress Trust Ltd.




Date of hearing:    June 13, 2012








[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 25th, 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 22nd, 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 2nd. On a parallel course, and on behalf of the Estate, Mr. Hashemi filed an inscription in appeal on February 25th (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 6th 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 7th.

[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 10th 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 12th, 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 pro­vin­ce, 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 juri­diction 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 […]


 Toute loi du Canada, à moins qu’une loi du Parlement du Canada ne déclare expressément qu’elle s’appliquera nonobstant la Décla­ration 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 prin­ciples 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 25th, 2011. The parties in the Court of Appeal filed their factums between July 28th and October 31st, 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 3rd, 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 accident, she could not claim that her action was founded on the obligation to make reparation for bodily injury. The prescription, for material and moral injury, was therefore the standard six month prescription applicable in suits against municipalities. On this first issue, the panel was split, Pelletier and Otis JJ.A. finding in favour of Tarquini, Chamberland J.A. against her. On the second and substantive issue - whether the action was well founded on its merits - the panel split again, Pelletier and Chamberland JJ.A. allowing the appeal and finding that the trial judge had committed an overriding and palpable error in upholding the claim of fault on the part of the City, Otis J.A. dismissed the appeal because she disagreed that such an error was apparent in the judgment. The conclusion on the first issue being a necessary premise of a judgment adjudicating on the merits of the action, it can thus be said that a judgment of this Court stands for the proposition that, on those facts, Tarquini was suing “to make reparation for bodily injury”.

[70]        The crucial point which the defendants appear to draw from this case is best captured, I believe, in two short passages from the concurring opinions of Pelletier and Otis JJ.A., respectively (I underline):[40]

Avec le plus grand respect pour l’opinion de mon collègue Chamberland, je ne vois pas au nom de quel principe de logique il faudrait réserver le qualificatif « corporel » à la seule victime immédiate. En effet, contrairement à la compréhension première qu’on peut en avoir, la victime atteinte dans son intégrité physique n’est pas la seule à subir un préjudice qui réponde à la définition dégagée ci-haut, même si elle est la seule à subir le préjudice moral qui découle de l’existence de la blessure elle-même.


En l'espèce, il ne faut pas restreindre l'analyse aux chefs de dommages réclamés par l'intimée pour elle-même mais, bien au contraire, il convient de revenir à l'événement qui fonde son droit d'action. En s'attachant uniquement aux chefs de réclamation de l'intimée, il me semble qu'on s'éloigne de l'objet de la loi, de ses «véritables sens, esprit et fin». Le terme «préjudice corporel» n'est pas le chef de la réclamation, mais bien la source de l'action. L'article 2930 C.c.Q. vise donc à protéger l'obligation de réparer tout dommage dont le préjudice corporel est la cause, peu importe les chefs de réclamation.

According to this analysis, or at any rate to Otis J.A.’s analysis as understood by the defendants, Mr. Hashemi is a collateral victim, or “victime médiate”, of a “préjudice corporel”, suffered in Iran, not in Canada, by Ms Kazemi, and the proceedings cannot be said to relate to such a “préjudice” that occurs in Canada. One should separate the damages claimed, or the loss, from the original injury.[41]

[71]        One author writing in 1993 had foreseen the difficulties which would arise in the application of the notion of bodily injury. Professor Nathalie Vézina published a prescient and often quoted article[42] in which she predicted that the issue at the core of Tarquini would arise sooner or later and would demand a careful analysis. Describing how the notion had come to light, she wrote (I quote here a passage from her article, incorporating footnote 7 into the quotation):[43]

Une catégorie propre au préjudice corporel, c’est-à-dire portant sur les pertes pécuniaires et non pécuniaires découlant d’une atteinte à l’intégrité corporelle, s’imposait donc d’elle-même. On peut être tenté de parler d’atteintes à l’intégrité physique : [P.-A. Crépeau et autres, Dictionnaire de droit privé et lexiques bilingues, 2e éd., Cowansville : Éditions Yvon Blais, 1991] vo « dommage corporel ». Pourtant, une tendance récente - manifeste dans certaines lois particulières - voit la protection de l’intégrité corporelle dans un sens global, incluant à la fois l’intégrité physique et psychique de la personne.

For reasons which should become apparent in my analysis of the defendants’ third argument, I am very reluctant to tie the interpretation of s. 6(a) to any creeping “tendance récente[44] posterior to the coming into force of the SIA, often found in provincial “lois particulières”, not demonstrably incorporated into the SIA (whether by legislation such as the Federal Law - Civil Law Harmonization Act[45] of 2001 or otherwise), and perhaps not compatible - that remains to be explored - with what was held in Schreiber,[46] the guiding Supreme Court precedent on the SIA, and subsequent cases that followed it.

[72]        Nor am I persuaded that anything decisive will be found in another judgment of this Court which relied on Tarquini, namely Andrusiak v. Montréal (Ville de). In this case, which also turned on article 2930 C.c.Q., Baudouin J.A. wrote:[47]

            Dans le présent dossier donc, comme mon collègue, je n'ai pas d'hésitation, suivant ainsi la jurisprudence dominante, à dire qu'une atteinte psychologique aussi légère soit-elle consécutive à une atteinte physique au corps humain doit rentrer dans cette catégorie. La personne humaine doit, en effet, être considérée comme un tout, c'est-à-dire dans son aspect matériel (le corps, la santé physique) mais aussi dans son aspect psychologique ou immatériel (le bien-être, la santé mentale). Dès qu'il y a donc atteinte à l'intégrité physique d'un individu, quelle qu'elle soit et quel que soit son degré, et que celle-ci entraîne des conséquences sur le plan psychologique, il y a préjudice corporel au sens de la loi.

As seemingly all-encompassing as this statement looks, it still does not resolve, in my opinion, the issue presented to us under s. 6(a) of the SIA.

[73]        I consider, therefore, that I do not have to decide here whether the notion of “bodily injury” as developed in the majority judgment in Tarquini should guide us in the interpretation of the SIA, which after all is a federal statute on an issue deeply rooted in a quintessentially federal and public law area of jurisdiction. The obvious angle of approach to a solution must be a thorough examination of what Schreiber, and cases decided in its wake, tell us on the issue at hand.

[74]        The facts of Schreiber, it will be recalled, were simple. Schreiber was wanted in the Federal Republic of Germany (“Germany”) in connexion with various tax and other offences. Germany, acting under an extradition treaty with Canada, had requested that he be provisionally arrested pending his extradition. A court granted a warrant to the Canadian authorities and Schreiber spent eight days in jail before his release on bail. Some time later, he began an action against Germany in which he claimed a substantial amount of damages for “personal injuries” resulting from his arrest and detention. Germany’s request that the action be dismissed on the basis of the SIA was granted in the Ontario Superior Court and the Court of Appeal[48] upheld this decision. Schreiber then appealed to the Supreme Court of Canada. After the judgment of the Court of Appeal, but before the hearing of Schreiber’s appeal in the Supreme Court, the SIA was amended (I reproduced the amended and current version of s. 6 in paragraph [28] above). I now quote the earlier version, and I underline the passages that were modified in 2001:


6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) any death or personal 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 matériels survenus au Canada.

In effect, paragraph (a) of the English version of the Act changed in 2001 from “any death or personal injury, or … ” to “any death or personal or bodily injury, or …” and paragraph b) of the French version changed from “des dommages matériels survenus au Canada” to “des dommages aux biens ou perte de ceux-ci survenus au Canada”. Obviously, the 2001 amendments were asymmetrical.

[75]        In his Statement of claim, Schreiber had phrased in the following terms his central allegation about the prejudice he imputed to Germany:

All of the foregoing conduct has caused Mr. Schreiber personal injury, including mental distress, denial and restriction of liberty and damage to reputation, for which the Defendants are liable. The full particulars of Mr. Schreiber's damages will be provided before trial.

One key consideration in the Court of Appeal’s judgment was the use, in the French version of the SIA, of the terms “dommages corporels” in s. 6(a). Schreiber had argued that “personal injury” in the pre-2001 English version of s. 6(a) extended to injuries unrelated to breaches of a person’s physical integrity.[49] But “personal injury”, explained Doherty J.A., had to be read in harmony with its French vis-à-vis, “dommages corporels”, and that provided certain elements (there were others as well) of an answer to Schreiber’s claim:[50]

    The French text literally provides that the foreign state enjoys no sovereign immunity in claims related to "bodily injury": P.-A. Crépeau, ed., Private Law Dictionary and Bilingual Lexicon, 2nd ed. (Cowansville, Que.: Yvon Blais, 1991). The word "corporel", as applied to claims for compensatory damages is well-known in the civil law of Quebec. The Civil Code of Quebec, S.Q. 1991, c. 64, lists three categories of compensable harm that may arise from delictual responsibility, these being "corporel, moral ou matériel" (arts. 1457, 1607 C.C.Q.). "Corporel" has been interpreted to mean physical injury to the body. Purely non-physical injuries are captured by the term "moral": see Michaud v. Quebec (Attorney General), [1998] R.R.A. 1065 at paras. 20-22 (Sup. Ct.); Joncas v. Sept-Iles (Town), [2000] J.Q. No. 5191 (Sup. Ct.).

The Court of Appeal for Ontario decided Schreiber before our Court decided Tarquini.[51] At that time, Doherty J.A.’s observations accurately described how the words “dommages corporels” pointed to a particular conclusion on the scope of the exception contained in s. 6(a). Here is how he formulated this conclusion:[52]

            The phrase "personal injury" is broader and more ambiguous than the phrase "dommages corporels". While "personal injury" might mean non-physical injuries, "dommages corporels" speaks more clearly to physical injury. In my opinion, physical injury is the shared meaning of the two versions of the statute.

            I also find some support for interpreting "personal injury" as meaning physical injury by its combination in s. 6(a) with the word "death". The two read in combination connote physical harm to the person.

[76]        It bears emphasis that, to this day, the words “dommages corporels” remain unchanged in the French version of the SIA.

[77]        I already indicated, in paragraph [71], how Professor Vézina had detected in 1993 a “tendance récente” which expanded the scope of “préjudice corporel” so as to bring within the purview of the concept, not only interferences with a person’s “intégrité physique”, but also with his “intégrité psychique”. And Tarquini appeared to lend support to this expanded view, though the reasoning there served primarily to clarify the import of a distinction between direct and collateral victims. There can be no doubt, however, that when the SIA was adopted, the concept of “dommage corporel” was narrower in scope than the “tendance récente” noted by Professor Vézina. The use of the word “corporel” came from French law where, as explained by Chamberland J.A. in his opinion in Tarquini,[53] it connoted the idea of a breach of physical integrity. Doherty J.A. refers in his opinion to a definition which coincides with this view and which, quoted in full, states:[54]

Dommage corporel (Obl.) Dommage qui consiste en une atteinte à l’intégrité physique de la personne humaine. « L’antithèse classique est celle du dommage matériel et du dommage moral. Mais une troisième catégorie s’est aujourd’hui détachée des précédentes : le dommage corporel, qui a des aspects à la fois matériels et moraux. » (Jean Carbonnier, Droit civil, vol. 4, Les Obligations, 13th ed., Paris : Presses universitaires de France, 1988).

More recently, a French source made the same point in perhaps an even blunter way:[55]

Dommage - corporel. Dommage portant atteinte à l’intégrité physique d’une personne.


Préjudice - Syn. de dommage dans l’usage régnant : dommage subi par une personne dans son intégrité physique (préjudice corporel, esthétique) dans ses biens (préjudice patrimonial, pécuniaire, matériel), dans ses sentiments (préjudice moral) qui fait naître, chez la victime, un droit à réparation; plus précisément, pour le dommage corporel, ensemble des chefs de préjudice qui en résultent, pour celui qui en est la victime directe ou indirecte.

An early mention of “préjudice corporel” in Quebec legislation, indeed the first ever, was the amendment of 1974 to the Civil Code of Lower Canada. Article 2260a. was added to establish a three year prescription in medical or hospital responsibility cases involving “bodily or mental prejudice” - “le préjudice corporel ou mental”. Either the phrase is redundant, or the words “bodily prejudice” - “le préjudice corporel” necessarily connotes the idea of a physical, as opposed to mental, interference.[56]

[78]        I believe that these last views are consistent with the Supreme Court of Canada’s interpretation in Schreiber of the terms “bodily prejudice” - “dommages corporels” in the SIA.

[79]        There is, first of all, the fact that Schreiber’s appeal was dismissed, even though he had alleged “mental distress” in his Statement of Claim. Even assuming, for the sake of argument, that there is a difference between “mental distress” and “psychological trauma”, that difference is one of degree, not of kind.

[80]        Secondly, the Supreme Court explicitly agreed with Doherty J.A. on his reading of a key precedent weighing in favour of a restrictive interpretation of s. 6(a). Justice LeBel writes: “I further agree that Doherty J.A. was correct when he chose to rely on Friedland in reaching his decision to dismiss the appellant’s appeal …”[57] The reference is to United States of America v. Friedland,[58] a case in which the Court of Appeal for Ontario, in a per curiam judgment, commented in these terms on an obiter dictum in the earlier case of Walker v. Bank of New York Inc.:[59]

            In our view, s. 6(a) does not assist Friedland. The obiter statement of McKinlay J.A. in Walker, at p. 510, that "the scope of personal injury covered by s. 6 . . . could include mental distress, emotional upset, and restriction of liberty" does not mean that s. 6 extends to mental distress or emotional upset in all cases. Otherwise, a party could invoke s. 6(a) merely by claiming damages for alleged mental distress or emotional upset, an interpretation that would expand the exception far beyond its intended scope and render the doctrine of sovereign immunity ineffective. We agree with counsel for the appellants that the "personal injury" exception refers primarily to physical injury and that s. 6(a) extends to mental distress and emotional upset only in so far as such harm arises from or is linked to a physical injury. This interpretation is consistent with the generally accepted international understanding of the "personal injury" exception to sovereign immunity.

[81]        Third, Justice LeBel was well aware of the “tendance récente” in the civil law of Quebec, as illustrated by the case of Tarquini[60] to which he refers in his reasons. He did mention a doctrinal opinion according to which “the emphasis [had] shifted from the consideration of the damages arising out of the injury to that of the nature of the injury itself”[61] (in paragraph [70] above, I alluded to the reason why, in my opinion, this shift in emphasis would be of no assistance to Mr. Hashemi in this case). But he saw no need to enter into that particular debate for the core of the case before the Court was elsewhere: “…these issues need not be discussed here, as the only question relevant to this appeal is the definition of "préjudice corporel" itself.”[62]

[82]        Finally, he elaborated on this last notion in a manner which, in my view, makes the exception of s. 6(a) dependant on more than mere mental distress or a psychological shock or trauma. Granted, the notion is not limited “to narrow situations where blood was drawn or bruises appeared on the body[63]. But he also added:[64]

            On the other hand, the requirement to show an actual breach of physical integrity means that interferences with rights properly characterized as being of a moral nature will not be included within this class of claims. Interferences with fundamental rights such as freedom, privacy or reputation interests may give rise to claims characterized as moral or material, depending in the personal interests affected. The shock caused by an unjustified arrest was thus held to give rise to a claim for moral damages, but not to an action for "préjudice corporel": see Michaud v. Québec (Procureur général), [1998] R.R.A. 1065 (Sup. Ct.); and Gardner, supra, at p. 22. Absent other forms of damage involving the physical integrity of the person, the loss of personal freedom caused by illegal police or state action with the attendant sense of humiliation, the loss of the ability to act independently, and the psychological stresses that flow from such situations, is assimilated into a form of moral damage and must be compensated as such. See: J.-L. Baudouin and P. Deslauriers, La responsabilité civile (5th ed. 1998), at p. 288.

            Based on the provisions of the C.C.Q. and the relevant case law and doctrine set out above, I believe that the civil law concepts of "préjudice corporel - bodily injury", despite their flexibility, incorporate an inner limitation to the potential ambit of s. 6(a) of the Act, requiring some form of interference with physical integrity. Although the terms "death" or "personal injury" found in the English version allow the possibility of non-physical injury to be captured within the s. 6(a) exception, the civil law concept of "dommages corporels" found in the French version of s. 6(a) does not. As the French version is the clearer and more restrictive version of the two, it best reflects the common intention of the legislator found in both versions.

And finally, in a concluding passage:[65]

            Therefore, the guiding principle in the interpretation of the s. 6(a) exception, more consonant with the principles of international law and with the still important principle of state immunity in international relations, is found in the French version of the provision. It signals the presence of a legislative intent to create an exception to state immunity which would be restricted to a class of claims arising out of a physical breach of personal integrity, consistent with the Quebec civil law term "préjudice corporel". This type of breach could conceivably cover an overlapping area between physical harm and mental injury, such as nervous stress; however, the mere deprivation of freedom and the normal consequences of lawful imprisonment, as framed by the claim, do not allow the appellant to claim an exception to the State Immunity Act. This claim seems to be more in line with a Canadian Charter claim of deprivation of rights and is properly dismissed against the respondent, Germany.

In my considered opinion, these clarifications, when read together, show that allegations of a breach of physical integrity, not simply psychological or psychic integrity, are a prerequisite if a claim is to survive an exception to dismiss under the SIA.

[83]        This requirement, I would assume, serves a specific purpose, namely to objectify any claim of “bodily injury” - “dommages corporels” by making it dependent on the allegation of facts ascertainable and provable by evidence other than the mere ipse dixit of the victim. In an age when media reporting from foreign countries yields almost on a daily basis some very graphic and emotionally disturbing news (one thinks, for example, of recent live reporting of events in Tunisia, Egypt, Libya or Syria, not to mention earlier and devastating events in Rwanda), news that can directly involve persons closely related to Canadian residents, bare allegations of mental or emotional distress, or indeed “psychological trauma”, on the part of a Canadian resident are not enough; something more tangible ought to be alleged. It is not necessary here to determine whether the breach of physical integrity to which I refer must be a cause or may also be an effect - whether, in other words, it must be the cause of resulting mental or psychological anguish, or whether it can also be a consequence, in the form of a physical manifestation (such as prolonged prostration, fainting, vomiting or, in an extreme case, a heart attack, etc.) of a pre-existing and severe mental or psychological shock. Suffice it to say that there is no known precedent in Canadian law of an exception to state immunity resting on the latter basis (i.e. psychological trauma or mental distress) alone.

[84]        In this instance, the motion to institute proceedings is deficient either way. As shown in paragraph [20] of these reasons, the relevant allegations of Mr. Hashemi's claim merely refer to general notions of trauma, psychological trauma or psychological and emotional prejudice. The motion judge noted that this alleged trauma may, in the end, touch upon Mr. Hashemi's physical integrity and that the evidence at trial may indicate that he suffered bodily injury as a result. He therefore opined that this was sufficient to allow the claim to go to trial. I respectfully disagree. Even if taken as averred, the allegations of Mr. Hashemi's claim fall short of establishing any breach of physical integrity; accordingly, they fail to bring into play the exception set out in s. 6(a). It would have been easy for Mr. Hashemi to properly articulate the extent, if any, of the breach of physical integrity that he may have suffered. Still, he elected not to do so. He had, after all, the burden of establishing that the s. 6(a) exception applied here.

[85]        I consider that this view is consistent with other Canadian decisions, such as Greco v. Holy See (State of Vatican City),[66] P.(R.) v. Westwood,[67] Ritter v. Donell[68] and Castle v. United States Department of Justice (Attorney General).[69] These cases, two of which were decided after Schreiber, may constitute with Schreiber what Professor Ruth Sullivan once called “unenacted law”[70] - or what might be called “droit prétorien” in French. But they also constitute, in my view, a safer guide to the intended meaning and effect of the SIA than any appeal to an “essentialist”[71] concept of civil law, such as “préjudice corporel”, as it is today understood in Quebec private law as a result of the unenacted law announced in Tarquini while the Court was interpreting article 2930 C.c.Q.

[86]        I therefore turn to the third issue on appeal.


C. Are the named defendants Mortazavi and Bakhshi covered by state immunity?

[87]        It is not contested that, if state immunity is applicable, the Islamic Republic of Iran and its Supreme Leader Ayatollah Sayyid Ali Khamenei, are entitled to claim it. The plaintiffs argue in the alternative that the named defendants Mortazavi and Bakhshi do not qualify to claim the immunity.

[88]        Saeed Mortazavi, I repeat, was the Chief Public Prosecutor of Tehran at the time of the events, and Mohammad Bakhshi was the Deputy Chief of Intelligence at the Evin Prison. In this respect, we must again take at face value the allegations in the motion to introduce proceedings. As regards Mortazavi’s actions, the plaintiffs make several allegations at different points in their motion; they have much less to say about Bakhshi’s involvement. But two generic allegations sum up their position in respect of these two defendants and they are sufficient to let the case go forward if state immunity does not apply:

101.     The Defendant, Mr. Mortazavi, the Chief Public Prosecutor for Tehran, ordered, oversaw and actively participated in Ms. Kazemi's interrogation and torture;

102.    The Defendant, Mohammad Bakhshi, in his former role as Deputy Chief of Intelligence for Evin Prison in Tehran, interrogated, physically assaulted and tortured Ms. Kazemi [.]

There can be no doubt that those are triable allegations of fact.

[89]        The motion judge devotes paragraphs [105] to [153] to this issue which, as it is argued by the plaintiffs, has two facets or raises two questions: can individuals in the situation of Mortazavi and Bakhshi claim the benefit of s. 3 of the SIA and, if so, did the actions of Mortazavi and Bakhshi, by their nature, disentitle them to the immunity?

[90]        On the first of these points, the motion judge reviewed closely the two most relevant authorities, Jaffe v. Miller[72] and Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya,[73] and he contrasted the view taken in these cases with the position of the Supreme Court of the United States under the American Foreign Sovereign Immunities Act (“the FSIA”),[74] as illustrated by the case of Samantar v. Yousuf.[75] I agree with this analysis and see no reason to repeat it at length.

[91]        It may be true, of course, that the definitions of “foreign state”, “agency of a foreign state” and “political subdivision” in s. 2 of the SIA present more of a resemblance with the definitions of “foreign state” and of “agency or instrumentality of a foreign state” in §. 1603 (a) and (b) of the FSIA than they do with the description of what constitutes a “state entitled to immunities and privileges” in s. 14 of the United Kingdom State Immunity Act 1978. But this terminological similarity is superficial: there are a number of significant differences between these statutes, enough to lead one to the conclusion that each of them must be read and interpreted on its own terms. In Samantar, for example, Justice Stevens, writing on this point with the concurrence of all the other members of the Court, refers to §. 1605(a)(5) of the FSIA (already quoted in paragraph [65], above) and comments as follows: “[i]f the term "foreign state" by definition includes an individual acting within the scope of his office, the phrase "or of any official or employee ..." in 28 U.S. C. §1605(a)(5) would be unnecessary.”[76] The inference which Justice Stevens draws here is clear: the expression “foreign state” does not, by itself, include “officials” or “employees” of a foreign state, or else the use of these terms in §. 1605(a)(5) would be repetitious. As Justice Stevens also points out, the enumeration in §§. 1605A(a)(1) and 1605A(c) of a “foreign state”, but also of any “official, employee or agent of that foreign state”, reinforces the inference based on the wording of §. 1605(a)(5). The SIA, by contrast, contains no mention of “officials”, “employees” or “agents” of a state; it cannot be said, therefore, that the defendants’ argument on the inclusiveness of “foreign state” in the SIA renders redundant words appearing elsewhere in the Act. And the use of the words “includes” and “means” in s. 2 indicates that the notion of “foreign state”, unlike the other terms defined in that section, is open-ended.

[92]        Samantar v. Yousuf centers on a distinctive feature of American law not shared by Canadian law - namely that a common law immunity for individual agents of foreign states at the request of the government of the United States continues to coexist with the FSIA. And indeed, in Samantar, the Supreme Court remanded the case for further proceedings in the District Court to determine the position of the government.[77] Obviously, Canadian law differs here and Samantar is not a safe indication of what solution avails under the SIA.

[93]        In light, however, of a number of persuasive authorities from other jurisdictions, I am satisfied that the motion judge was correct in holding that the SIA applies to individual agents of a foreign state. Already, this question had been thoroughly examined by Finlayson J.A. in Jaffe, decided by the Court of Appeal for Ontario in 1993. In Jones, decided thirteen years later, the House of Lords reversed a judgment of the Court of Appeal of England which had adopted the line of argument now developed by the plaintiffs in this case. The following passage from Lord Bingham of Cornhill’s speech (with which Lords Hoffman, Rodger of Earlsferry, Walker of Gestingthorpe and Carswell concurred) describes the state of authorities in England and other jurisdictions:[78]

While the 1978 Act explains what is comprised within the expression "state", and both it and the 1972 European Convention [on State Immunity] govern the immunity of separate entities exercising sovereign powers, neither expressly provides for the case where suit is brought against the servants or agents, officials or functionaries of a foreign state ("servants or agents") in respect of acts done by them as such in the foreign state. There is, however, a wealth of authority to show that in such case the foreign state is entitled to claim immunity for its servants as it could if sued itself. The foreign state's right to immunity cannot be circumvented by suing its servants or agents. Domestic authority for this proposition may be found in Twycross v Dreyfus (1877) 5 Ch D 605, 618-619; Zoernsch v Waldock [1964] 1 WLR 675, 692; Propend Finance Pty Ltd v Sing (1997) 111 ILR 611, 669; R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, 269, 285-286; Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1583. Courts in Germany, the United States, Canada and Ireland have taken the same view: see Church of Scientology Case (1978) 65 ILR 193, 198; Herbage v Meese (1990) 747 F Supp 60, 66; Jaffe v Miller (1993) 13 OR (3d) 745, 758-759; Schmidt v Home Secretary of the Government of the United Kingdom (1994) 103 ILR 322, 323-325. The International Criminal Tribunal for the Former Yugoslavia has also taken the same view: Prosecutor v Blaskic (Subpoenae) (1997) 110 ILR 607, 707. In the UN Convention [on Jurisdictional Immunities of States and Their Property] of 2004 already referred to, this matter is expressly addressed in article 2 where "state" is defined in (1)(b)(iv) to mean "representatives of the state acting in that capacity". It is further provided, in article 6(2)(b), that

“A proceeding before a court of a state shall be considered to have been instituted against another state if that other state ... (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other state.”

In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent of the state, had a sufficient connection with the state to entitle it to claim immunity for his conduct. But these are not borderline cases. Colonel Abdul Aziz is sued as a servant or agent of the Kingdom and there is no suggestion that his conduct complained of was not in discharge or purported discharge of his duties as such. The four defendants in the second action were public officials. The conduct complained of took place in police or prison premises and occurred during a prolonged process of interrogation concerning accusations of terrorism (in two cases) and spying (in the third). There is again no suggestion that the defendants' conduct was not in discharge or purported discharge of their public duties.

With the possible exception of Herbage v. Meese, a case which now appears at odds with the subsequent holding of the Supreme Court of the United States in Samantar v. Yousuf, Lord Bingham’s account remains accurate; to borrow a phrase used earlier in his speech, it “demonstrates international thinking on the point”. That settles the first question.

[94]        But do the actions of Mortazavi and Bakhshi, by their nature, prevent these defendants from claiming the benefit of state immunity?

[95]        I believe, again, that this point is already well settled by relevant authorities, the most recent of which is, once more, the Jones case.

[96]        The plaintiffs’ argument here is identical to one raised by the appellant in Jaffe, and which Finlayson J.A., who discarded it, first summarized as follows: “the tortious acts themselves were of such an egregious nature that the employees were not entitled to shelter under the immunity of the State”.[79] The argument does not sit well with the very notion of torture as it is apprehended in various legal instruments: torture usually connotes an idea of official action or acquiescence. Thus, the Convention referred to in paragraph [56] above defines torture in these terms:

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

And under Canadian law, s. 269.1 of the Criminal Code, pursuant to which torture constitutes an indictable offence, is aimed at “[e]very official, or every person acting at the instigation of or with the consent or acquiescence of an official.”

[97]        According to the alternative argument pressed by the plaintiffs, the treatment to which Ms. Kazemi was subjected was so illegal that it must fall outside the scope of official activity and, consequently, of state immunity. In my view, Lord Hoffmann in Jones, with the concurrence of the other members of the Appellate Committee, offers a complete and cogent refutation of this argument,[80] and the motion judge was correct to adopt the same reasoning.

[98]        I therefore now turn to the fourth issue.

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?

[99]        In the Superior Court, the plaintiffs raised arguments based on the Charter which they trimmed down on appeal. We are left with a two-prong argument invoking the Bill of Rights in the case of the Estate qua appellant and relying on the Charter in the case of Mr. Hashemi qua respondent. I will begin with the Bill of Rights.

1.         Compatibility of s. 3(1) of the SIA with s. 2(e) of the Bill of Rights

[100]     The Bill of Rights in s. 2(e), provides that no law of Canada shall be construed or applied so as to “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” (which I will refer to as “the right to a fair hearing”).

[101]     The Estate’s contention, which it formulates in its factum as a “theorem”, is said by its counsel to flow from the decision of the Ontario Superior Court of Justice in Aristocrat v. National Bank of the Republic of Kazakhstan.[81] Before I consider the basis of the holding in that case, I will quote as it appears in its factum the appellant’s argument on the absence of any justification for the alleged infringement of its right to a fair hearing:

Appellant’s submissions […] are based on the following theorem:

a)    Where civil redress is sought by a Canadian litigant before a Canadian court against a foreign state as a result of that state’s violation of a peremptory norm of international law that has both substantive and procedural content, such as the prohibition of torture; and

b)    The courts of the foreign state do not offer a forum where such a claim may be fairly entertained and no other meaningful venue for redress exists;

Canada is not violating customary international law on state immunity by allowing the case to proceed before its own courts.

I have already explained in paragraphs [47] to [55], above, why proposition a) on which this argument is premised cannot stand.

[102]     In Aristocrat, the plaintiff had bought shares in Alembank, a financial institution operating in Kazakhstan. The defendant, which was the central bank of that country, exercised its regulatory powers and merged Alembank with another institution at a substantial loss for the plaintiff. He sued the defendant in Ontario and faced a motion to dismiss based on the SIA. Granger J. allowed the motion on the ground, inter alia, that the exception for commercial activity in s. 5 of the SIA did not apply. But he also made the following observations in his reasons:[82]

            Section 2 [of the Bill of Rights] states that every law of Canada shall not "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 ... 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." The term "authorize" denotes a difference between actual federal legislation that deprives an individual of his rights and deprivation done by another actor under the authority of the federal government. The action by an actor that deprives an individual of his rights or freedoms, or deprives the latter of a fair hearing would be a violation of s. 2 of the Bill.

            Section 2 could be relied on by Dr. Aristocrat to argue that in this case the State Immunity Act unlawfully deprives him of his property by prohibiting action against a party who allegedly denied the plaintiff a fair hearing. The State Immunity Act, in essence, transfers the requirement of a fair hearing to the State of Kazakhstan because it prevents an action in Canada by legislative authority of the Federal government. Therefore, if Dr. Aristocrat could prove that there was a reasonable apprehension of bias: see Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 per Sopinka J. arising from the proceedings in Kazakhstan, he could argue that there was a failure to provide a fair hearing as guaranteed under s. 2 of the Bill of Rights. Such a failure even if in Kazakhstan would result in the provisions of the State Immunity Act being inoperative and allowing him to pursue his action in Ontario.

The Estate relies on this passage to support its submissions under the Bill of Rights.

[103]     I should note first that these remarks of Granger J. seem to have been made arguendo and that, at best for the Estate, they amount to an obiter dictum. The paragraph which follows immediately the preceding passage leaves little doubt on this point:[83]

            I am not persuaded that there is any evidence of bias or a reasonable apprehension of bias in the material before me on this motion. The effects of inflation cannot be used as a basis for an apprehension of bias. On all of the material it appears that Dr. Aristocrat was afforded a fair hearing in Kazakhstan. There is no evidence that he was prevented from calling witnesses or was denied the right to cross examine witnesses. Dr. Aristocrat does not quarrel with the findings of the Courts in Kazakhstan but objects to the amount of money he recovered in Canadian dollars. As a result the State Immunity Act, res judicata, the doctrine of real and substantial connection between the cause of action and the forum non conveniens would all support an order for permanently staying this action in Ontario.

And indeed, the Attorney General was not a party to these proceedings and therefore was not afforded an opportunity to dispute any argument on the inoperability of the SIA founded on the Bill of Rights.

[104]     But in any event, on closer examination, one cannot escape the conclusion that the argument based on the Bill of Rights is flawed.

[105]     In Authorson v. Canada (Attorney General),[84] the Supreme Court of Canada allowed the appeal from a judgment which had declared inoperative a section of the Department of Veterans Affairs Act.[85] Two provisions of the Bill of Rights, ss. 1(a) and 2(e), were at stake, and Authorson’s argued that he had been deprived of property without due process of law and without a fair hearing in accordance with the principles of fundamental justice. The challenged provision barred any claim for interest on moneys administered by the Department of Veterans Affairs prior to January 1st, 1990. It was not disputed that, prior to that date, the Crown had owed a fiduciary duty to disabled veterans whose moneys were administered by the Department, that the veterans in question were entitled to recover interest on moneys in trust or that Parliament had not afforded them a hearing when it had adopted the Department of Veterans Affairs Act which denied their claims.

[106]      Writing for the seven members of the Court who heard the appeal, Justice Major dismissed the challenges based on ss. 1(a) and 2(e). Wisely in my view, the Estate here does not contend that the immunity conferred by the SIA engages one or several of the rights mentioned in s. 1(a) (presumably, the rights to life, liberty, security of the person and the right not to be deprived thereof except by due process of law). It does invoke, however, the right to a fair hearing in accordance with the principles of fundamental justice set out in s. 2(e).

[107]     On this latter right, Justice Major’s comments, though terse, are nonetheless potent:[86]

            […] s. 2(e) applies only to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determines individual rights and obligations. That this is the case becomes more obvious by examining the other guarantees of s. 2 […]. All of these protections are legal rights applicable in the context of, or prior to, a hearing before a court or tribunal.

            The French version of s. 2(e) makes this distinction clearer. A fair hearing is translated as "une audition impartiale de sa cause". According to Le Grand Robert de la langue française (2nd ed. 2001), the term "cause" means "[a]ffaire, procès qui se plaide". This definition confirms the legalistic nature of the "fair hearing".

            Section 2(e) of the Bill of Rights does not impose upon Parliament the duty to provide a hearing before the enactment of legislation. Its protections are operative only in the application of law to individual circumstances in a proceeding before a court, tribunal or similar body.

By parity of reasoning, Parliament was under no duty here to provide a hearing before it adopted the SIA. Of course, if the SIA infringed a Charter right - a possibility that will be addressed below - Canadian Courts would have jurisdiction to consider such an issue, along with any argument under s. 1 of the Charter, draw all necessary legal conclusions and, if need be, fashion an appropriate redress to remedy the infringement. But such is not the case under the Bill of Rights.

[108]     As is abundantly clear from the reasons of Justice Major, the context in which s. 2(e) will be made to apply presupposes that a court, tribunal or similar body makes a decision on “the determination of [a person’s] rights and obligations”. I note in passing that the words “similar body” can encompass a broad range of situations. Canadian courts have not been reluctant to subject to the rules of natural justice, or to a duty to act fairly, quasi-judicial or administrative processes which impose obligations or which affect rights, even rights in a comparatively inchoate state.

[109]     This said, I do not think that s. 2(e) creates a self-standing right to a fair hearing or that it can be relied upon to initiate a novel “determination of [a person’s] rights and obligations” where the law (including the common law pertaining to the judicial review of administrative action) does not itself already allow for such process. In the instant case, we face one of two situations. On the one hand, if the Estate’s claim is that the imprisonment, torture and wrongful death of Ms. Kazemi require a determination in Canada of her estate’s resulting rights, the claim is met as follows: s. 3(1) of the SIA provides that the defendants are “immune from the jurisdiction of any court in Canada”, no rule of jus cogens dictates a different result and no exception to immunity avails here. No determination of the Estate’s rights is therefore contemplated by the relevant law and s. 2(e) of the Bill of Rights cannot apply. To accept the Estate’s claim would amount to importing into Canadian law a form of substantive due process which the Supreme Court of Canada discarded in Authorson.[87] On the other hand, if the Estate claims that it is entitled to a determination of its rights under the SIA, which in my view it certainly is, the answer is that nothing in the process that took place in the Superior Court - or in this court, for that matter - departs in any way from what is understood to be in Canadian law “a fair hearing in accordance with the principles of fundamental justice”. In either case, the argument based on the Bill of Rights fails.

2.         Compatibility of s. 3(1) of the SIA with s. 7 of the Charter

[110]      This argument is said to be rooted in s. 7 of the Charter, which guarantees Mr. Hashemi’s “right to … liberty … and the right not to be deprived thereof except in accordance with the prin­ciples of fundamental justice”. In support of this argument, Mr. Hashemi’s factum refers to R. v. Morgentaler,[88] B. (R.) v. Children’s Aid Society of Metropolitan Toronto,[89] Godbout v. Longueuil (City)[90] and Blencoe v. British Columbia (Human Rights Commission)[91], cases which contain several passages on the scope of the right to liberty protected by the Charter. I take it as indisputable now that “liberty” has a meaning or content distinguishable from those of “life” and “security of the person”.[92]

[111]      Given the generality of the language found in s. 7, it should come as no surprise that the case-law interpreting it also contains a number of broad propositions outlining what one could describe as different conceptual approaches for giving full effect to this potent constitutional safeguard. In my view, however, it is important not to lose sight of the precise interests (or the particular species of “liberty”) which in the case-law connect these broad propositions to the matter at issue and to reality. Often, though evidently not always, analogies with what was actually at stake in a case - i.e. its concrete outcome - are more useful than lexical extrapolations from broad proposition pitched at a high level of abstraction. With this last observation in mind, I will review the excerpts from the above-mentioned authorities which Mr. Hashemi quotes in his factum.

[112]     Morgentaler was a complex case on the constitutionnality of a provision of the Criminal Code prohibiting abortion. In a separate opinion (which concurred in the result with the majority of the Court), Justice Wilson wrote:[93]

Thus, an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state. This right is a critical component of the right to liberty. Liberty, as was noted in Singh, is a phrase capable of a broad range of meaning. In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance.

This “degree of autonomy in making decisions of fundamental personal importance” concerned here a woman’s decision to have an abortion. As Justice McIntyre observes in a dissenting opinion written with the concurrence of Justice La Forest:[94]

The judgment of my colleague, Wilson J., is based upon the proposition that a pregnant woman has a right, under s. 7 of the Charter, to have an abortion. The same concept underlies the judgment of the Chief Justice. He reached the conclusion that a law which forces a woman to carry a foetus to term, unless certain criteria are met which are unrelated to her own priorities and aspirations, impairs the security of her person.

I do not think that the accuracy of Justice McIntyre’s observation can be doubted - such was indeed the species of “liberty”, or of “security of the person”, which triggered the protection of the Charter in this case.

[113]     Children’s Aid Society, also a complex case, involved the purported right of parents to object for religious reasons to the use of blood transfusions in the medical treatment of their infant daughter. The parents relied on the right to liberty in s. 7 and challenged the constitutionality of two temporary wardship orders made in favour of the Children’s Aid Society. On the scope of s. 7, Justice La Forest, with whom Justices Gonthier, McLachlin and L’Heureux-Dubé agreed, made the following comments, before quoting the words of Justice Wilson I have already cited in paragraph [112]:[95]

The above-cited cases give us an important indication of the meaning of the concept of liberty. On the one hand, liberty does not mean unconstrained freedom; see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (per Wilson J., at p. 524); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (per Dickson C.J., at pp. 785-86). Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. On the other hand, liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance. In R. v. Morgentaler, [1988] 1 S.C.R. 30, Wilson J. noted that the liberty interest was rooted in the fundamental concepts of human dignity, personal autonomy, privacy and choice in decisions going to the individual's fundamental being.

The “personal autonomy to live [one’s] own life and to make decisions that are of fundamental personal importance” took the form, here, of “the right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care”,[96] all of which were said to be part of the liberty interest of a parent. In Justice La Forest’s opinion, while the wardship orders granted by the Provincial Court deprived the parents of their right to liberty under s. 7, they did so in accordance with the principles of fundamental justice. For Justices Cory, Iacobucci and Major, who wrote separately, the liberty interest in s. 7 was not infringed where parents refuse to permit a treatment of the type considered here. In a third opinion, Chief Justice Lamer developed the view that the constitutional protection afforded by the notion of “liberty” in s. 7 was connected with the physical dimension of the word and did not extend to the rights identified by Justice La Forest. Finally, for Justice Sopinka, who delivered his own reasons, “it was unnecessary to determine whether a liberty interest was engaged because the threshold requirement of a breach of the principles of fundamental justice was not met.”[97]

[114]     Godbout concerned the validity of a muncipal resolution requiring all new permanent employees to reside within the territorial limits of the municipality. Writing for Justices L’Heureux-Dubé, McLachlin and himself, Justice La Forest said:[98]

The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. I must emphasize here that, as the tenor of my comments in B. (R.) should indicate, I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs. Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B. (R.), that individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please. Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as "private". Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. As I have already explained, I took the view in B. (R.) that parental decisions respecting the medical care provided to their children fall within this narrow class of inherently personal matters. In my view, choosing where to establish one's home is, likewise, a quintessentially private decision going to the very heart of personal or individual autonomy.

While it is unanimous in the result, the judgment includes two other opinions. Justice Major (with Chief Justice Lamer and Justice Sopinka) begins his reasons with a reference to the opinion of Justice Cory (with Justice Gonthier and Iacobucci) and he comments:[99]

I have read the reasons of my colleagues Justice La Forest and Justice Cory and I agree with Cory J. that the appeal should be dismissed on the basis that the residence requirement imposed by the appellant infringes the respondent's right to privacy under s. 5 of the Quebec Charter of Human Rights and Freedoms, R.S.Q. , c. C-12, and is not justified under s. 9.1. This is sufficient to dispose of the appeal. With respect to those of my colleagues who hold the contrary view, I agree with Cory J. that it is unnecessary and perhaps imprudent to consider whether the residence requirement infringes s. 7 of the Canadian Charter of Rights and Freedoms in the absence of submissions from interested parties and I too express no opinion on this issue.

Section 5 of the Quebec Charter of Human Rights and Freedoms provides that “[e]very person has a right to respect for his private life”. To the necessarily limited extent to which it could be said to rest on an interpretation of s. 7 of the Charter, Godbout focussed on a specific interest, that of choosing where to establish one's home.

[115]     In Blencoe, complaints of discrimination (and of sexual harassment) had been laid against Blencoe in the summer of 1995 with the British Columbia Human Rights Commission. Following an investigation by the Commission, hearings were scheduled to commence in the Human Rights Tribunal more than 30 months after the initial complaints. Blencoe applied for judicial review and asked that the complaints be stayed on the ground that the Commission had lost jurisdiction because of the unreasonable delay in processing them. A majority of the Court of Appeal of British Columbia found in his favour and concluded that his s. 7 right to security of the person had been infringed. The Supreme Court of Canada reversed the Court of Appeal’s judgment by a majority of five of its nine judges. Writing for the majority (with Chief justice McLachlin and Justices L’Heureux-Dubé, Gonthier and Major), Justice Bastarache revisited what Morgentaler, Children’s Aid Society and Godbout had had to say on the “liberty interest”,[100] and he placed a special emphasis on Justice La Forest’s remarks in Godbout, quoted above in paragraph [114].[101] Those are some of the broad propositions I mentioned earlier. In the net result, however, Justice Bastarache concluded that the “liberty interest” was not engaged:[102]

Although an individual has the right to make fundamental personal choices free from state interference, such personal autonomy is not synonymous with unconstrained freedom. In the circumstances of this case, the state has not prevented the respondent from making any "fundamental personal choices". The interests sought to be protected in this case do not in my opinion fall within the "liberty" interest protected by s. 7.

And he further observed:[103]

To summarize, the stress, stigma and anxiety suffered by the respondent did not deprive him of his right to liberty or security of the person. The [page366] framers of the Charter chose to employ the words, "life, liberty and security of the person", thus limiting s. 7 rights to these three interests. While notions of dignity and reputation underlie many Charter rights, they are not stand-alone rights that trigger s. 7 in and of themselves. Freedom from the type of anxiety, stress and stigma suffered by the respondent in this case should not be elevated to the stature of a constitutionally protected s. 7 right.

My conclusion that the respondent is unable to cross the first threshold of the s. 7 Charter analysis in the circumstances of this case should not be construed as a holding that state-caused delays in human rights proceedings can never trigger an individual's s. 7 rights. It may well be that s. 7 rights can be engaged by a human rights process in a particular case. I leave open the possibility that in other circumstances, delays in the human rights process may violate s. 7 of the Charter.

Justice LeBel, writing with the concurrence of Justices Iacobucci, Binnie and Arbour, expressed his views in the following terms:[104]

The application of the general principles of administrative law would have justified the intervention of the trial court without any need to demonstrate a breach of an interest protected by s. 7 of the Charter. As I think that this matter should have been resolved on the basis of administrative law principles, I do not think I have to express a definite opinion on the application of s. 7 of the Charter in the present case.

In short, whatever broad propositions on the reach of s. 7 appeared in the judgment of the majority, they were not broad enough to cover Blencoe’s case. As for the minority, it deliberately expressed no firm opinion on the subject.

[116]     “General propositions”, Justice Oliver Wendell Holmes once famously wrote, “do not decide concrete cases”.[105] Perhaps on one reading of the phrase “fundamentally or inherently personal matters such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence”,[106] such evocative but somewhat vacuous words from Godbout might be thought an adequate description of Mr. Hashemi’s decision to sue the defendants. On another reading of the same phrase, however, these words do not seem an apt description at all. The phrase is couched in such abstract terms as to be essentially indeterminate: it might apply to virtually anything and consequently it designates nothing in particular. And one thing is certain: it is not the language of s. 7 of the Charter itself, it is an interpretive gloss several steps removed from the word “liberty”. These and other broad formulations have been used, occasionally, to bring within the purview of s. 7 certain personal prerogatives which courts considered worthy of a constitutional protection. Mostly, however, such formulations are devoid of prescriptive force for the future. If they are taken au pied de la lettre, anything that is thought by the subject to be an attribute of his or her liberty (or freedom) would arguably be enshrined in s. 7. An absurd proposition, if I may say so.

[117]     The freedom of choice of a pregnant woman wanting or not to abort, the freedom of choice of parents wanting or not their child to undergo certain medical treatments, or the freedom of choice of an individual in deciding where to establish his or her home, are hard to analogize with the freedom to choose a forum where to sue one’s choice of foreign defendants.

[118]     During oral argument, counsel for the plaintiffs was invited to clarify the breadth of an argument expressed in these terms in Mr. Hashemi’s factum:

54.       This tragic story is replete with instances of state interference with inherently personal and fundamentally important choices of the Respondent. First, in Iran, not only when his mother was taken off life support, despite the Respondent’s express wishes to the contrary, but also when her remains were unceremoniously buried, despite Mr. Hashemi’s request that her body be repatriated to Canada.

55.       Second, in Mr. Hashemi’s home state, Canada, where s. 3(1) SIA effectively prevents him from pursuing justice and accountability for and on behalf of his late mother, giving rise, in Respondent’s respectful submission, to an infringement of his right to liberty enshrined by s. 7 of the Charter.

Is it your contention, he was asked, that s. 7 enshrines a general right to sue? He answered in the negative and stated that what is protected by the Charter is “the right to seek accountability”.


[119]     Does this shift from a hypothetical but enshrined “right to sue” (a delicate notion, I would have thought)[107] to a hypothetical “right to seek accountability”, bring us closer to the “liberty interest” in s. 7? I have a great deal of difficulty in reaching the conclusion that it could. The gist of Mr. Hashemi’s case is that the motion judge was correct when he allowed his recourse against all defendants to proceed. In other words, what he wants to exercise is the right to sue these defendants in Canada, not simply to “seek accountability”. And as regards accountability itself, there is no question that the grave allegations he makes against Iranian authorities point to an organized cover-up meant to conceal what really happened to his mother. But I do not see that anything similar is alleged against Canadian authorities - on the contrary, efforts were made by several Canadian officials to obtain from Iranian authorities information, relevant to the case, access to Ms. Kazemi and later the release of her remains. Any interference with the right to seek accountability, assuming it exists in this form, came from the defendants, not from Canada. Why then not call a spade a spade and debate whether an enshrined right to sue is what can be subsumed under “liberty interest” in s. 7?

[120]     I believe that, in effect, that is what we are asked to decide: does Mr. Hashemi’s “liberty interest” protected by s. 7 of the Charter override s. 3(1) of the SIA when he begins proceedings against the defendants? No authority directly on point and supporting such a proposition was brought to our attention. Bouzari[108] is the only case which addresses a similar point and the plaintiffs, understandably but erroneously, contend that it was wrongly decided. It was not. In light of my review of the cases invoked by Mr. Hashemi, I conclude that this argument must fail, and that s. 3(1) SIA did not infringe here an enshrined right to liberty or right not to be deprived thereof otherwise than in accordance with principles of fundamental justice.

[121]     On the facts as alleged, Zahra Kazemi, a blameless Canadian, fell victim to a pattern of vicious misconduct by the agents of a rogue state. Such a situation causes instant revulsion in anyone who adheres to a genuine notion of the rule of law. But these acts took place in Iran and what consequences they had in Canada do not set in motion the exceptions to state immunity.

[122]     In the result, therefore, I would allow the defendants appeal and I would dismiss the Estate’s appeal. As there is no reason to depart from the motion judge’s conclusion as to costs, there will be no order for costs.

*    *    *    *    *

[123]     Before I conclude, I wish to express on this panel’s behalf its appreciation of the great professionalism of counsel on all sides in this difficult and sad case. They performed their duties in a most disciplined manner, they canvassed a vast expanse of domestic, foreign and international law, and throughout they presented their arguments, in writing and then orally, within the limits of length and time fixed by the Court. In short, they did honour to the appellate bar.






[1]     Kazemi (Estate of) v. Islamic Republic of Iran, 2011 QCCS 196.

[2]     R.S.C. 1985, c. S-18.

[3]     Islamic Republic of Iran v. Kazemi (Estate of), 2011 QCCA 413.

[4]     The example is not as far-fetched as it may seem: see Langevin, 2012 QCCS 613.

[5]     This is obviously a typographical error - the judge is obviously referring to s. 6(a).

[6]     R. v. Hape, [2007] 2 R.C.S. 292, par. 39.

[7]     [2010] 2 S.C.R. 571, par. 24.

[8]     [2002] 3 S.C.R. 269.

[9]     Ibid., par. 54.

[10]    [2002] 2 S.C.R. 559, par. 62. The reference is to Professor Ruth SULLIVAN, Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994.

[11]    Supra, note 8, par. 50.

[12]    [1968] S.C.R. 517, at p. 541.

[13]    Supra, note 6, par. 68.

[14]    Jutta BRUNNÉE and Stephen TOOPE make the same point in “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002), 40 Canadian Yearbook of International Law 3.

[15]    (2004), 71 O.R. (3d) 675.

[16]    Supra, note 15.

[17]    [2001] ECHR 761.

[18]    [2007] 1 AC 270.

[19]    Jurisdictional Immunity of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012, online: International Court of Justice, http:www.icj-cij.org/docket/files/143/16883.pdf

[20]    Ibid., par. 21.

[21]    Ibid., par. 94.

[22]    Ibid., par. 16.

[23]    Ibid., par. 77 and 78.

[24]    Ibid., par. 62.

[25]    A review supplemented by the concurring opinion of a member of the ICJ, judge Kenneth Keith.

[26]    Ibid., par. 77 and 78.

[27]    Ibid., par. 82.

[28]    Ibid., par. 83, 84 and 85.

[29]    Ibid., par. 93 and 95.

[30]    Ibid., par. 101.

[31]    [2002] O.J. No. 1624.

[32]    Supra, note 15, par. 69 to 81.

[33]    Supra, note 19, par. 85 and 96.

[34]    Ibid., par. 75.

[35]    This is also the view expressed by the Ontario Superior Court of Justice in Steen v. Islamic Republic of Iran (2011), 108 O.R. (3d) 301.

[36]    28 USC § 1605.

[37]    729 F. 2d 835 (1984), p. 842-3.

[38]    Ibid., p. 844.

[39]    [2001] R.J.Q. 1405.

[40]    Ibid., par. 102 and 185.

[41]    This is the path followed by Professor Sophie MORIN in her essay Le dommage moral et le préjudice extrapatrimonial, Cowansville: Éditions Yvon Blais, 2011, at page 175 and fol., and 216 and fol., though I am not sure that the analysis, as rigorous as it is, dispels the terminological confusion which appears to be rife in this area of law.

[42]    “Préjudice matériel, corporel et moral: variations sur la classification tripartite du préjudice dans le nouveau droit de la responsabilité” (1993), 24 Revue de droit de l’Université de Sherbrooke 161.

[43]    Ibid., p. 167.

[44]    I do not mean this as a pejorative phrase, far from it. It is interesting in this regard to consult Daniel GARDNER, Le préjudice corporel, 3rd ed., Cowansville: Éditions Yvon Blais, 2009, a work of considerable scholarship, and to trace back to the second edition (2002), and to the first edition (1994 - from which the section I mention here is all but absent), a section entitled “La qualification du préjudice corporel” - p. 12 to 33 in the 2009 edition.

[45]    S.C. 2001, c. 4.

[46]    Supra, note 8.

[47]    [2004] R.J.Q. 2655. par. 17.

[48]    (2001), 52 O.R. (3d) 577.

[49]    Ibid., par. 28: he was alleging that he had suffered “personal injury, including mental distress, denial and restriction of his liberty, and damage to his reputation as a result of Germany's deliberate, reckless, or negligent failure to adhere to its treaty with Canada, the Extradition Act and the Charter. Schreiber has not alleged that he suffered any physical injury”.

[50]    Ibid., par. 54.

[51]    Supra, note 39.

[52]    Supra, note 48, par. 56 and 57.

[53]    Supra, note 39, par. 36.

[54]    Centre de recherche en droit privé et comparé du Québec, Dictionnaire de droit privé et lexiques bilingues, 2e éd. Cowansville: Éditions Yvon Blais, 1991. This dictionary also offers “bodily injury” as one of several translations of “dommage corporel”, and it notes elsewhere that “préjudice corporel” is a synonym of “dommage corporel”.

[55]    Gérard CORNU, Vocabulaire juridique, 8th ed., Paris : Presses Universitaires de France, 2007.

[56]    Justice Pelletier makes a similar point in par. 88 of Tarquini, supra, note 39.

[57]    Supra, note 8, par. 42.

[58]    (1999), 46 O.R. (3d) 321.

[59]    (1994), 16 O.R. (3d) 504, par. 25.

[60]    Supra, note 39.

[61]    Supra, note 8, par. 61.

[62]    Ibid.

[63]    Ibid., par. 63.

[64]    Supra, note 8, par. 64 and 65.

[65]    Ibid., par. 80.

[66]    [2000] O.J. No. 5293 (S.C.J.).

[67]    [2003] B.C.J. No. 1944 (S.C.).

[68]    [2005] A.J. No. 958 (Q.B.).

[69]    [2006] O.J. No. 4897 (C.A.).

[70]    See Ruth SULLIVAN, “The Challenges of Interpreting Multilingual, Multijural Legislation” 2003-2004) Brooklyn Journal of International Law 986, p. 1042. Professor Aline Grenon appears to be in broad agreement with Professor Sullivan: see “Le bijuridisme canadien à la croisée des chemins? Réflexions sur l’incidence de l’article 8.1 de la Loi d’interprétation” (2011), 56 McGill Law Journal 775, p. 784.

[71]    Professor Sullivan’s word, again - Ibid., p. 1030.

[72]    (1993), 13 O.R. (3d) 745 (Ont. C.A.).

[73]    [2007] 1 A.C. 270.

[74]    See supra, note 36, for the reference to the codified version.

[75]    130 S.Ct. 2278, (2010).

[76]    Ibid., p. 2288.

[77]    See Yousuf v. Samantar, 2011 U.S. Dist. LEXIS 155280.

[78]    In his discussion of the first issue raised in Jaffe, supra, note 72, pp. 756-760, Finlayson J.A. reaches substantially the same conclusion.

[79]    Supra, note 72, p. 760.

[80]    Supra, note 73, pp. 300-306.

[81]    [2001] O.J. No. 2876.

[82]    Ibid., par. 32 and 33.

[83]    Ibid., par. 34.

[84]    [2003] 2 S.C.R. 40.

[85]    R.S.C. 1985, c. V-1, s. 5.1(4).

[86]    Supra, note 84, par. 59, 60 and 61.

[87]    Supra, note 84, at par. 47 to 57.

[88]    [1988] 1 S.C.R. 30.

[89]    [1995] 1 S.C.R. 315.

[90]    [1997] 3 S.C.R. 844.

[91]    [2000] 2 S.C.R. 307.

[92]    The point was made by Justice Wilson in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 204, and adopted by a majority of the Court, per Justice Lamer, as he then was, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 500.

[93]    Supra, note 88, p. 166.

[94]    Ibid., p. 141.

[95]    Supra, note 89, par. 80.

[96]    Ibid., par. 83.

[97]    Ibid., par. 207.

[98]    Supra, note 90, par. 66.

[99]    Ibid., par. 1.

[100]   Supra, note 91, par. 49 to 53.

[101]   In this quotation, Justice Bastarache underlines these words: “Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.”

[102]   Ibid., par. 54.

[103]   Ibid., par. 97 and 98.

[104]   Ibid., par. 187.

[105]   Lochner v. New York, 198 U.S. 45, p. 76 (1905) (in dissent).

[106]   These are the words of Jutice La Forest in Godbout, supra, par. [114].

[107]   There are several sets of procedural rules across Canada, and some substantive rules as well, which determine who can be sued, by whom, when and where. Whether de jure or de facto, these rules limit, and sometimes preclude altogether (for example in the case of persistently vexatious litigants), the possibility of bringing an action exactly as one might wish. The idea that such rules may all amount to potential infringements of a “right to sue” subsumed under s. 7 of the Charter strikes me as highly problematic.

[108]   Supra, note 15.

Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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