By Craig Forcese
Cross-Referencing: ch. 8, pp. 493 et seq.
In January, 2011, the Quebec Superior Court released its reasons in Kazemi (Estate of) c. Islamic Republic of Iran, 2011 QCCS 196. This matter stems from the torture and killing of Zahra Kazemi by Iranian government officials in 2003. Ms. Kazemi was a Canadian (born in Iran and considered Iranian by Iran). The case was brought by Ms. Kazemi's Canadian (and Canadian domiciled) son, seeking damages for Ms. Kazemi's death and also the injury suffered by the son as a result of that death.
The court dismissed the plaintiffs claims against Iran and the Iranian government officials responsible for Ms. Kazemi's maltreatment insofar as they related to Ms. Kazemi's own treatment. However, it refused to dismiss the lawsuit insofar as it related to the son's own alleged injuries.
In dismissing the claims relating to Ms. Kazemi, the court concluded that the State Immunity Act precluded such lawsuits against states and state employees, where the injuries were suffered abroad. In so doing, it declined to construe narrowly the circumstances in which state employees may invoke state immunity. One possible theory is that state employees may only be clothed with official authority (and thus attract state immunity) where they act in a manner consistent with the functions and actions permissible to such employees as a matter of international law (and thus state immunity would not extend to whatever internationally unwlawful depredations domestic law might permit them to undertake). Such a theory would constitute one possible extrapolation of the famous House of Lords Pinochet decision regarded torture by state actors. However, the House of Lords itself, in the Jones decision, was hostile to such an approach.
Perhaps not surprisingly, the Quebec Superior Court followed a similar course as the Jones case, and extended state immunity to state employees acting officially notwithstanding the internationally illicit nature of their activity.
The Kazemi case is kept alive, however, by the court's finding that insofar as Ms. Kazemi's son's injury is concerned, that harm arose in Canada (albeit as a consequence of actions occurring in Iran), and thus is captured by a standing exception to state immunity; namely, personal injury occurring in Canada.