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In 2003, photojournalist Zahra (Ziba) Kazemi, an Iranian by birth but a naturalized Canadian citizen, was tortured to death in Iran. She had obtained a permit allowing her to photograph the daily lives of Iranians but government officials arrested her while she was taking pictures of protesters near a prison in Tehran. During her detention, Iranian prison authorities severely tortured her, breaking several bones and sexually abusing her. Kazemi was eventually taken to a hospital with internal bleeding and a brain injury. While she was in a coma at the hospital, Iranian officials initially failed to contact Canadian consular officials and refused to allow her family access to her. After Kazemi died in hospital, the Iranian government ignored the wishes of Canadian officials and her family that her remains be returned to Canada for burial. To date, neither the government of Iran nor the individual Iranian officials involved in her murder have been held accountable.
In 2006, Zahra Kazemi’s son, Stephan, filed a civil lawsuit in Montreal against the Government of Iran and three individual Iranian officials: Ayatollah Ali Khamenei, Iran’s Supreme Leader; Tehran’s Chief Public Prosecutor, Saeed Mortazavi, who is alleged to have ordered Kazemi’s arrest; and Mohammad Bakhshi, the former Deputy Chief of Intelligence for Evin Prison where it is alleged he interrogated, physically assaulted and tortured Kazemi. The Government of Iran argued that the case should be dismissed because it is immune from suit under Canada’s State Immunity Act. That law provides immunity to foreign governments from civil lawsuits except in certain circumstances. A previous case brought in Ontario against the Government of Iran was dismissed when the courts found that the State Immunity Act applied even to charges of torture.
In December 2009, the Quebec Superior Court heard arguments on the immunity issue. The CCIJ intervened in the proceedings to offer our unique perspective on the need for survivors of atrocities to have access to redress through the Canadian courts. In January 2011, Justice Robert Mongeon issued his judgment. Finding that there is an exception to immunity when a person in Canada suffers nervous shock as a result of the mistreatment of a family member overseas, the court allowed Stephan’s individual claims to proceed to trial against the Government of Iran and the three individual officials. The court permitted Stephan’s claim on the basis of a specific exception written into the SIA that allows claims for injuries suffered in Canada. However, the claims by the Estate of Zahra Kazemi were dismissed because the abuses Ms. Kazemi suffered were only in Iran; she never suffered an injury inside Canada.
The case was appealed to the Quebec Court of Appeal. CCIJ again intervened, along with several other human rights organizations. In August 2012, the Court of Appeal upheld the application of immunity and dismissal of the Estate’s claims. The court rejected arguments that immunity should not be granted in cases of torture. The court also applied immunity to Stephan Kazemi’s claims, concluding that the exception in the SIA should not have applied to his case.
On March 18, 2014, the Supreme Court of Canada heard oral arguments in the case. CCIJ again intervened at the Supreme Court and provided oral submissions. On October 10, 2014, the Supreme Court upheld the judgment of the Court of Appeal and applied the State Immunity Act to Iran and the individual officials, effectively ending the case in Canada. In writing for the court, Justice LeBel pointed to Parliament’s responsibility for creating new exceptions to state immunity, including for torture.
CCIJ has been represented pro bono at different stages in the case by John Terry and Sarah Shody of Torys LLP; Sylvain Lussier of Osler, Hoskin & Harcourt LLP and David Grossman of Irving Mitchell Kalichman.
More information about Zahra Kazemi is available from the Ziba Kazemi Foundation at www.zibakazemi.org.
Supreme Court of Canada
Court of Appeal