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Lawsuit puts Iran, Canada on same side Print E-mail

Zahra Kazemi, a freelance photographer who died in Iran in 2003

 Graeme Hamilton, National Post  Published: Wednesday, December 02, 2009

Canwest News Service Zahra Kazemi, a freelance photographer who died in Iran in 2003

MONTREAL -- After Montreal photojournalist Zahra Kazemi was killed in 2003 while in Iranian custody, the Canadian government restricted diplomatic relations with Iran and expressed outrage at her "brutal murder." In 2006, Peter MacKay, then minister of foreign affairs, denounced the "culture of impunity that prevails in Iran."

But on Wednesday, as for the first time an open court began considering Ms. Kazemi's torture and death, the Attorney-General of Canada found itself in the awkward position of supporting the Iranian government's bid to stop the trial before any evidence is heard.

At stake is a civil suit brought in Quebec Superior Court by Ms. Kazemi's estate and her son, Stephan Hashemi, against the Islamic Republic of Iran, the country's supreme leader Ayatollah Sayyid Ali Khamenei and two senior Iranian officials implicated in her death, Saeed Mortazavi and Mohammad Bakhshi. The plaintiffs are seeking $14-million in damages for Ms. Kazemi's death.

But a Canadian law called the"State Immunity Act" [read the Act here] declares that except in specific circumstances, foreign states are immune from the jurisdiction of Canadian courts. Lawyers representing the Iranian state are invoking the law to have the lawsuit dismissed, and the Attorney-General has intervened to defend the constitutionality of the 1985 law.

Teaming up with the Ayatollah has federal lawyers walking on eggshells. The Attorney-General's written submissions begin by stating that "Canada is opposed to all forms of torture" and that it is committed to eliminating its practice. The document later argues: "As deplorable and condemnable as the alleged facts might be in the present matter, taken as proven for the purpose of the present debate, the Court must resist the temptation of ‘judicial activism.' "

Questioned outside the courtroom about the Attorney- General's involvement in the case, considering Iran's record of human-rights abuses, federal lawyer Bernard Letarte said he is defending not Iran but the law. "State immunity benefits all countries. There are no exceptions," he said.

The plaintiffs are arguing that the State Immunity Act contravenes Canada's Charter of Rights and Freedoms as well as the 1960 Bill of Rights. They maintain that the Iranian justice system has shown no interest in bringing those responsible for Ms. Kazemi's death to justice, and their civil suit would never receive a fair hearing in an Iranian court. Granting Iran immunity in Canadian courts, they say, would remove the only forum left to defend, posthumously, Ms. Kazemi's right to life, liberty and security of the person, her right to a fair hearing, and her right not be arbitrarily imprisoned.

"If we can't do it here, we're in a legal black hole, and that can't be an acceptable solution in a country where we have as a protected right, the right to a fair hearing," Kurt Johnson, a lawyer for Mr. Hashemi, said outside the courtroom. Kaveh Moussavi, an Oxford University law professor flown in as an expert witness for the plaintiffs, said in an interview that "there is no such thing as a recognizable justice system" in Iran.

In a document filed with the court, Mr. Johnson details the circumstances of Ms. Kazemi's death after she was held incommunicado in Tehran's notorious Evin prison. She underwent repeated interrogations and suffered injuries including fractured bones, lacerations, broken nails and trauma to the genital area consistent with sexual assault, the document says. Ms. Kazemi, 54, fell into a coma, which Iranian authorities originally attributed to a stroke, before dying in hospital.

The plaintiffs, joined by lawyers for Amnesty International and the Canadian Centre for International Justice, argue that it is wrong to offer immunity from civil suits to states that torture. "The story of Zahra Kazemi, as tragic as it is, offers an opportunity for the Canadian justice system to recognize victims of torture and their families and to afford them a real measure of redress, albeit incomplete and limited to monetary compensation, where no other venue exists," Mr. Johnson concludes in the document.

The legal hurdle appears high, however, as there are several recent cases in Canadian and foreign courts upholding the principle of state immunity. Houshang Bouzari was unsuccessful in bringing a suit against Iran for torture allegedly suffered there in the 1990s before he immigrated to Canada. The Ontario Court of Appeal ruled that Iran was protected by state immunity, and the Supreme Court of Canada refused to hear his appeal. Similarly, Maher Arar failed in an attempt to sue Syria for torture suffered there.

James Woods, a Montreal lawyer representing the Iranian government, said Iran is contesting the Canadian courts' authority "to decide whether torture was used or not." He told Justice Robert Mongeon that chaos would result if there were no state immunity. He suggested that Canada would object strenuously if the family of Robert Dziekanski, a Polish citizen who died in Vancouver after being tasered by RCMP officers, sued the Canadian government in a Polish court.

Evidence will be heard only if Justice Mongeon rejects Iran's motion to dismiss the lawsuit. Mr. Hashemi acknowledged that even if he wins, recovering damages from Iran will not be easy. But he said money is not the main objective. "The condemnation of their crime by a Canadian court is very important for me and all people paying attention to such crimes," he said.

National Post



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