The latest legal battle pitting the family of slain photojournalist Zahra Kazemi against the Iranian government has ended in a draw.
A Quebec judge ruled this week that the estate of Zahra Kazemi can't sue Iran because of Canada's State Immunity Act, but that her son, Stephan Hashemi, can continue his civil suit because of a provision in the same act.
It's a mixed result in a case that has been inching its way through Quebec Superior Court since 2006.
The Iranian government is attempting to block the Kazemi family from suing for $17-million, arguing it is immune from legal action in Canada.
Iran argued the State Immunity Act prevents foreign governments from being sued civilly on Canadian soil, with very few exceptions.
Mr. Justice Robert Mongeon partly agreed in a written ruling dated Tuesday.
"Mr. Hashemi endured this traumatic prejudice while he was residing in Canada, and this is sufficient to trigger the exception," Judge Mongeon wrote.
"The recourse of the Estate of Zahra Kazemi … cannot be salvaged by application of [the same exception] All the physical assaults suffered by Zahra Kazemi did not occur in Canada but in Iran."
Ms. Kazemi was an Iranian-Canadian citizen who was beaten, raped and killed in 2003 after being arrested for photographing relatives of detainees outside Evin prison in Tehran.
She was never formally charged with any crime, and was quickly buried in Iran. Mr. Hashemi has tried unsuccessfully to have his mother's body repatriated.
Ottawa has had shaky relations with Iran since Ms. Kazemi's death and has routinely voiced its displeasure with officials in that country over the handling of the case and the lack of transparency.
The Canadian government intervened in the case and defended the constitutional legitimacy of the immunity act.
Lawyers for the Kazemi estate and Mr. Hashemi argued the case should proceed in Canada and that it would be impossible to get a fair hearing in Iran.
Judge Mongeon's ruling was met lukewarmly by Mr. Hashemi's defence team, and appeals might be forthcoming, lawyer Kurt Johnson said.
"On the whole, the reaction is mixed: we're delighted that Stephan's recourse has been allowed to proceed against all the defendants, but by the same token, we're disappointed the estate's recourse has been blocked by the State Immunity Act," Mr. Johnson said Thursday.
"We're going to look at our options in terms of having that part of the decision reviewed."
Both sides have 30 days to file leave to appeal.
Iran's legal team in Montreal had no comment.
In his 56-page decision, Judge Mongeon waded into the issue of whether Iran and its officials benefit from immunity from civil prosecution.
"There are no exceptions to the general principle of state immunity other than those specifically mentioned in the SIA," Judge Mongeon wrote.
"The 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."
The civil suit named the Islamic Republic of Iran; its leader, Grand Ayatollah Ali Khamenei; former Tehran prosecutor Saeed Mortazavi; and prison official Mohammad Bakhshi.
Judge Mongeon ruled that all defendants, including the individuals named in the suit, have a right to immunity.
The judge also dismissed a motion aimed at having the State Immunity Act declared unconstitutional.
"The statute is constitutionally valid and must be applied," Judge Mongeon wrote.
Matt Eisenbrandt of the Canadian Centre for International Justice said the mixed decision comes with a silver lining.
"This will allow for the first trial in Canadian courts concerning torture that happened abroad," Mr. Eisenbrandt said.
"It's important that Stephan [Hashemi]is going to finally get his day in court."
The ruling creates a situation where a relative might be able to sue because of torture but an actual victim potentially may not.
Previous attempts by victims to sue foreign countries for crimes against humanity have failed because the act doesn't allow much leeway for determining who can be sued.
In Ottawa, a private member's bill, Bill C-483, seeks to amend the State Immunity Act to create an exception to immunity for countries implicated in genocide, crimes against humanity, war crimes or torture.
The Conservatives introduced a bill last year that dealt specifically with creating an exception for terrorism cases.
Mr. Eisenbrandt said the decision this week cries out for a political response.
"If the government is serious about removing immunity for terrorism, then they should look at removing it for torture and other human-rights abuses to really clarify that Canadian courts are open to victims of those crimes," he said.
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