Skip to main content

As allies go, Iran, Ayatollah Sayyid Ali Khameni and two alleged Iranian torturers would seem an undesirable choice next to the son of the Canadian woman they put to death.

But the Canadian government threw in its lot Thursday with Iran in a Montreal courtroom in an attempt to block Stephan Hashemi from having his day in court over the death of his mother, photojournalist Zahra Kazemi.

Mr. Hashemi, a Canadian, is trying to sue Iran for $17-million in Canada for the torture and death of Ms. Kazemi in a Tehran prison in 2003.

Iran and Canada are trying to have the case tossed out, saying the federal State Immunity Act protects foreign governments from such lawsuits.

"Canada is not on trial, but it is, in a way, in that they didn't protect my mother and now they're trying to bury this affair by any means possible," Mr. Hashemi said during a break in court proceedings.

Similar lawsuits by Maher Arar against Syria and Houshang Bouzari against Iran failed after courts ruled that international law banning torture doesn't compel Canada to grant exemptions.

Mr. Hashemi's lawyers are trying a new tactic, attempting to strike down the law on the grounds that it contravenes their client's right to a fair hearing under Canada's Bill of Rights and guarantee in the Charter of Rights and Freedoms of life, liberty and security.

"The Iranian justice system is incapable of hearing the case," said Mr. Hashemi's lawyer, Kurt Johnson. "If we can't do it here, we're in a legal black hole and that can't be an acceptable result in a country where we have a protected right to a fair hearing."

A lawyer for the federal Department of Justice took pains in a court filing to say Ottawa is defending only Canadian law, which is part of its obligations under international law.

"The Attorney-General of Canada is only intervening in this case for the end of defending the constitutionality of the State Immunity Act," federal lawyer Bernard Letarte said.

"Canada is against all forms of torture and supports the efforts of the international community to ban and eliminate the tactic."

The Iranians made the first arguments in court yesterday. Prominent Montreal lawyer James Woods said striking down the law would lead to international legal chaos.

"Would Canada accept civil suits that are launched in Poland against the RCMP over the tasering death of [Robert]Dziekanski?" said Mr. Woods.

But some experts in international law and human rights say the law is evolving toward allowing civil suits in cases where rogue states with shabby legal systems fail to provide due process.

Some countries, like the United States, already allow such suits.

Liberal MP Irwin Cotler, a former justice minister, has introduced amendments to the act that would allow lawsuits in cases of torture, murder, crimes against humanity and war crimes. His bill has found some support among all four parties in Parliament.

"I find it absurd that the State Immunity Act had an exception for commercial activity but not for torture or international crime," he said in an interview. "It's morally and legally absurd." He also blasted the Conservative government for spending public money to protect the law.

Kaveh Moussavi, an expert on Iranian law and a fellow at the University of Oxford Centre for Socio-Legal Studies, noted the Iranians usually ignore such lawsuits in foreign countries. In this case, they've hired high-powered lawyers.

"They never do that. I take it the reality of the law is starting to catch up with the leadership of the Islamic Republic of Iran," said Dr. Moussavi, who was hired as an expert by Mr. Hashemi's legal team.

Follow related authors and topics

Authors and topics you follow will be added to your personal news feed in Following.

Interact with The Globe