Supreme Court of Canada bolsters impunity by denying access to justice for torture victims
“Today’s Supreme Court decision dismissing claims for redress by torture survivors and their families’ against foreign governments in Canadian courts benefits no-one except government officials who torture,” said Amnesty International.
In the case of the Kazemi Estate v. Islamic Republic of Iran, the Supreme Court of Canada ruled that Stephan Hashemi, whose mother was tortured in Iran and later died of her injuries, could not sue the government officials who tortured her or the government of Iran.
“The Canadian government must amend the State Immunity Act and permit victims of torture and their families to sue States and government officials who torture,” said Béatrice Vaugrante, Director General of Amnesty International Canada’s Francophone Branch. “Instead of protecting the rights of victims of torture and their families, this decision provides succour to those who torture, and it sends a signal that they may continue to do so with impunity.”
The ruling upheld a Quebec Court of Appeal judgment that had applied Canada’s State Immunity Act (SIA) to Stephan Hashemi’s lawsuit against Iran and Iranian officials for the torture, rape and murder of his mother, Zahra Kazemi, an Iranian-Canadian photojournalist who died in custody in Tehran in July 2003. Over eleven years later, no one has been held accountable for her torture and death. Today’s ruling effectively terminates the case in Canada.
In a 6-1 decision, the Supreme Court of Canada held that the SIA constitutes an absolute bar to civil claims against foreign states and their officials with respect to torture perpetrated outside Canada. The judgment affirms that the SIA is constitutional, and constitutes a complete code that permits no exceptions at common law for torture, regardless of the Supreme Court of Canada’s recognition that the prohibition against torture at international law is a “jus cogens norm” – meaning that no exceptions are permitted under any circumstances. Justice Abella, the sole dissenting judge, found that “equivocal customary international law should not be interpreted so as to block access to a civil remedy for what is unequivocally prohibited.”
François Laroque, a University of Ottawa Law professor representing Amnesty International Canada’s francophone branch in the case, said: “it is highly regrettable that the SCC missed the opportunity to correct this glaring imbalance of favouring the impersonal dignity of the State over the very real and personal dignity of a human being.”
“It is time for Canada’s commitment and obligation to ensure justice for victims of torture to result in changes to the law of state immunity. The fact that the principle of state immunity, which is grounded in the notion of the sovereignty and equality of states is a feature of international relations recognized by international law, should not trump the jus cogens prohibition on torture,” said Béatrice Vaugrante. “Immunity must not lead to impunity.”
Parliament has the ability to change the current state of the law on exceptions to state immunity and allow individuals in situations like Mr. Hashemi and his mother’s estate to seek redress in Canadian courts. UN human rights bodies such as the Committee against Torture have called on Canada to make that change.
“For close to fifteen years, Amnesty International has been calling on the Canadian government to amend the State Immunity Act so that people like Stephan Hashemi can turn to Canadian courts for redress for torture,” said Alex Neve, Secretary General of Amnesty International Canada’s English Branch. “With this ruling the need to do so is fully back in front of Parliamentarians. They must amend Canadian law to ensure that when it comes to torture, genocide, crimes against humanity, war crimes and other crimes under international law, immunity does not stand in the way of justice.”
Amnistie Internationale Canada Francophone was an intervening party in the proceedings before the Supreme Court of Canada.
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