The son of a Montreal photojournalist who died after allegedly being sexually assaulted and tortured by Iranian authorities will ask the Supreme Court of Canada on Tuesday for permission to sue the Iranian government and its officials.
Zahra Kazemi, a dual citizen of Iran and Canada, was covering protests in front of the notorious Evin prison in Tehran in 2003 when she was arrested. Two days later the 54-year-old was in a coma after suffering a brain hemorrhage. Iran acknowledged she was beaten, but no one has ever been convicted in her death.
For her son Stephan Hashemi of Montreal, now in his mid-30s, "it's about some form of justice," his lawyer, Mathieu Bouchard, said in an interview. Although Mr. Hashemi is unlikely to collect any damages from Iran in the $17-million lawsuit, Mr. Bouchard said that's not the point.
"The point is to have an official recognition by an independent court of what happened, and the damage it caused, to his mother and to him. He suffered tremendously as a result of those events. He's still suffering."
Federal law in Canada expressly grants foreign states immunity from being sued, and the Canadian government argues that, if Mr. Hashemi is permitted to sue Iran, Canada could lose its immunity abroad, and its relationships with other countries would suffer. But Mr. Bouchard quotes a British judge's reaction to a similar argument: "I'm not impressed by arguments based on the practical undesirability of upsetting foreign regimes which may resort to torture."
Even so, Mr. Bouchard acknowledges that allowing the lawsuit to go ahead would set Canada apart from other nations. A Quebec judge dismissed Mr. Hashemi's suit because of the federal law on immunity, a decision upheld by that province's highest court. Ontario's top court threw out a lawsuit in 2004 for similar reasons, in another torture case involving Iran. And courts in Britain and New Zealand have come to similar decisions. But Mr. Bouchard argues that the Supreme Court has the legal tools to put Canada at the forefront of international human rights law. The United Nations' Convention Against Torture requires that nations allow for legal redress in cases of torture; the Canadian Charter of Rights and Freedoms protects security of the person from breaches of fundamental justice (Mr. Bouchard argues that Mr. Hashemi's suffering at being denied legal accountability violates his security); and the rarely used 1960 Bill of Rights protects the right to a fair process.
He says suing in Iran is impossible, and taking action against Iran in other forums is also impossible because Iran is not a party to the Convention Against Torture, and does not recognize the jurisdiction of the International Court of Justice.
"We have some very solid foundations for this. We're saying that in the case of torture, when the foreign state does not afford any way for redress, then Canada should take jurisdiction."
He added, "Torture is probably the worst form of human rights breach that we can deal with, on a par with genocide and slavery. There aren't a lot of crimes of that nature around. These three are of a special nature and require special treatment."
Iran will not be sending a lawyer to present arguments. The Supreme Court has appointed Toronto constitutional specialist Christopher Bredt to ensure that all arguments that Iran might make are heard. He will argue that the 1987 Convention Against Torture obliges Canada only to permit lawsuits over torture committed within its borders.
Several rights groups, including the Canadian Association of Refugee Lawyers, will back Mr. Hashemi's case and argue that the court should permit the lawsuit to go ahead.