Kazemi Estate v. Islamic Republic of Iran, (2014) 463 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 18, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 463 N.R. 1 (SCC);2014 SCC 62

Kazemi Estate v. Iran (2014), 463 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.R. TBEd. OC.016

Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei, Saeed Mortazavi, Mohammad Bakhshi and Attorney General of Canada (respondents) and Canadian Lawyers for International Human Rights, Amnistie internationale, Section Canada francophone, Redress Trust Ltd., Canadian Association of Refugee Lawyers, British Columbia Civil Liberties Association, Canadian Bar Association, Canadian Civil Liberties Association, Canadian Centre for International Justice, David Asper Centre for Constitutional Rights, International Human Rights Program at the University of Toronto Faculty of Law and Iran Human Rights Documentation Center (interveners)

(35034; 2014 SCC 62; 2014 CSC 62)

Indexed As: Kazemi Estate v. Islamic Republic of Iran

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

October 10, 2014.

Summary:

A Canadian citizen, Zahra Kazemi, a freelance photographer, died after being arrested and detained in Iran. Stephan Hashemi, her son, instituted an action for damages on behalf of himself and his mother's estate against (1) the Islamic Republic of Iran, (2) Iran's head of state, the Ayatollah Sayyid Ali Khamenei, (3) Saeed Mortazavi, the Chief Public Prosecutor of Tehran, and (4) Mohammad Bakhshi, the former Deputy Chief of Intelligence of the Evin Prison (the defendants). Hashemi alleged that the defendants detained, tortured and killed his mother. The action sought: (a) $5,000,000 for Ms. Kazemi's estate as a result of her physical, psychological, and emotional pain and suffering, plus $5,000,000 in punitive damages, and (b) $5,000,000 for the psychological and emotional prejudice caused to Mr. Hashemi personally by the loss of his mother, plus $2,000,000 in punitive damages. The defendants brought a motion to dismiss the action on the basis of state immunity. Mr. Hashemi and Ms. Kazemi's estate responded to the motion by raising exceptions provided for in the State Immunity Act (SIA) and by challenging the constitutionality of certain provisions of the SIA. The motions were heard together.

The Quebec Superior Court, in a case with neutral citation 2011 QCCS 196, allowed the defendants' motion to dismiss the action with respect to Ms. Kazemi's estate on the basis of state immunity. The court, however, dismissed the motion with respect to the recourse sought by Mr. Hasehmi personally. Mr. Hashemi, having suffered his injuries in Canada, could potentially fall within the exception in s. 6(a) of the SIA. The court rejected Mr. Hashemi's arguments based on the Canadian Bill of Rights and s. 7 of the Charter. Ms. Kazemi's estate appealed and the defendants appealed with respect to Mr. Hashemi's claim.

The Quebec Court of Appeal, in a decision with neutral citation 2012 QCCA 1449, dismissed the appeal of the estate of Ms. Kazemi and allowed the defendants' appeal with respect to Mr. Hashemi's claim. Mr. Hashemi and Ms. Kazemi's estate (the appellants) appealed. Although named as respondents, the Islamic Republic of Iran, the Ayatollah Sayyid Al Khamenei, Saeed Mortazavi and Mohammad Bakhshi did not present written or oral arguments. The Attorney General of Canada was represented at the appeal but presented argument only on some of the issues. Amicus curiae was appointed to address issues raised by the appellants on which the Attorney General of Canada took no position. The following constitutional questions were stated:

"1) Is s. 3(1) of the State Immunity Act, R.S.C. 1985, c. S-18, inconsistent with s. 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44?

"2) If so, is s. 3(1) of the State Immunity Act, R.S.C. 1985, c. S-18, inoperable by reason of such inconsistency?

"3) Does s. 3(1) of the State Immunity Act, R.S.C. 1985, c. S-18, infringe s. 7 of the Canadian Charter of Rights and Freedoms?

"4) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?"

The Supreme Court of Canada, Abella, J., dissenting, answered questions one and three in the negative and found it not necessary to answer questions two and four. LeBel, J., writing for the majority of the court stated that "Despite the tragic fate of Ms. Kazemi, the current state of the law does not allow the appellants to sue the respondents for damages in a Canadian court. Foreign states, as well as their heads of state and public officials, are immune from civil suit in Canada except as expressly provided in the SIA. The SIA does not withdraw immunity in cases alleging acts of torture committed abroad. Put differently, the Parliament of Canada has chosen to embrace principles of comity and state sovereignty over the interests of individuals wishing to sue a foreign state in Canadian courts for acts of torture committed abroad. I conclude that this choice is not contrary to international law, the Canadian Bill of Rights ... or the Canadian Charter of Rights and Freedoms. Accordingly, I would dismiss the appeal."

Civil Rights - Topic 1370.5

Security of the person - Inmates and prisoners (incl. their families) - Torture - Section 3(1) of the State Immunity Act (SIA) provided for state immunity, subject to enumerated exceptions - The Act made no exception to foreign state immunity from civil suits alleging acts of torture occurring outside Canada - At issue was whether s. 3(1) infringed s. 7 of the Charter because it prohibited individuals from seeking redress after they or a family member had been tortured - The Supreme Court of Canada held that while it was arguable that s. 3(1) of the SIA might cause such serious psychological prejudice that the security of the person was engaged and violated, it was not necessary to decide whether s. 3(1) engaged the security of the person interest under s. 7 because the operation of s. 3(1) did not violate any identifiable principle of fundamental justice - Section 7 was not infringed - See paragraphs 121 to 167.

Civil Rights - Topic 1370.5

Security of the person - Inmates and prisoners (incl. their families) - Torture - Art. 14(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment required state parties to provide a means by which victims of torture could obtain redress - It was argued that art. 14 required Canada to ensure that a civil remedy be available to victims of torture committed in foreign countries and that this obligation was a principle of fundamental justice within the meaning of s. 7 - The Supreme Court of Canada rejected this interpretation of art. 14 - See paragraphs 136 to 167.

Civil Rights - Topic 1370.5

Security of the person - Inmates and prisoners - Torture - [See Civil Rights - Topic 3840.8 ].

Civil Rights - Topic 3840.8

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Torture - The Supreme Court of Canada stated that torture was blatantly contrary to s. 12 of the Charter and was also likely contrary to s. 7 - See paragraph 52.

Civil Rights - Topic 8006

Canadian or provincial Bill of Rights - Principles of operation and interpretation - Right to fair hearing in accordance with principles of fundamental justice - Section 3(1) of the State Immunity Act (SIA) provided for state immunity - At issue was whether s. 3(1) was inconsistent with s. 2(e) of the Canadian Bill of Rights (i.e., the right to a fair hearing in accordance with the principles of fundamental justice) - The Supreme Court of Canada held that the challenge based on s. 2(e) should be dismissed on the basis that s. 2(e) did not create a self-standing right to a fair hearing where the law did not otherwise allow for an adjudicative process - Instead, s. 2(e) guaranteed fairness in the context of a hearing before a Canadian court or a tribunal - See paragraphs 111 to 121.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - [See first and second Civil Rights - Topic 1370.5 ].

Common Law - Topic 3221

Variation - Judicial variation - General - The Supreme Court of Canada stated that "... the development of the common law should be gradual and that it should develop in line with norms accepted throughout the international community. As was determined in Canada (Attorney General) v. Bedford, 2013 SCC ... '[c]ertainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies' ... The common law should not be used by the courts to determine complex policy issues in the absence of a strong legal foundation or obvious and applicable precedents that demonstrate that a new consensus is emerging. To do otherwise would be to abandon all certainty that the common law might hold. Particularly in cases of international law, it is appropriate for Canadian courts only to follow the 'bulk of the authority' and not change the law drastically based on an emerging idea that is in its conceptual infancy ..." - See paragraph 108.

Courts - Topic 28

Stare decisis - Authority of judicial decisions - Common law - Modification or extension of common law rule - [See Common Law - Topic 3221 ].

International Law - Topic 2200

Sovereignty - Incidents of - Immunity - General - The Supreme Court of Canada discussed generally the concept of state or sovereign immunity - The court stated that "Functionally speaking, state immunity is a 'procedural bar' which stops domestic courts from exercising jurisdiction over foreign states ... In this sense, state immunity operates to prohibit national courts from weighing the merits of a claim against a foreign state or its agents ... Conceptually speaking, state immunity remains one of the organizing principles between independent states ... It ensures that individual nations and the international order remain faithful to the principles of sovereignty and equality ... Sovereignty guarantees a state's ability to exercise authority over persons and events within its territory without undue external interference. Equality, in international law, is the recognition that no one state is above another in the international order ... The law of state immunity is a manifestation of these principles ..." - See paragraphs 34 and 35.

International Law - Topic 2200

Sovereignty - Incidents of - Immunity - General - The Supreme Court of Canada discussed generally the concept of state or sovereign immunity - The court stated that "Beyond sovereign equality, other justifications for state immunity are grounded in the political realities of international relations in an imperfect world. One justification is that because it is 'practical[ly] impossib[le]' to enforce domestic judgments against foreign states, domestic courts are not truly in a position to adjudicate claims in the first place ... In this sense, it is counterproductive for a court to review the decisions of foreign states when doing so risks rupturing international relations without providing much hope of a remedy ... Two other justifications for state immunity are comity and reciprocity ... Just as foreign states do not want to have their executive, legislative or public actions called into judgment in Canadian courts, so too Canada would prefer to avoid having to defend its actions and policies before foreign courts" - See paragraphs 36 and 37.

International Law - Topic 2200

Sovereignty - Incidents of - Immunity - General - The Supreme Court of Canada discussed generally the concept of state or sovereign immunity - The court stated that "State immunity plays a large role in international relations and has emerged as a general rule of customary international law ... To be considered customary international law, a rule must be supported by state practice as well as opinio juris, an understanding on the part of states that the rule is obligatory as a matter of international law ... The I.C.J. [International Court of Justice] has confirmed that the principle of state immunity meets both of these requirements ... Given the presence of both state practice and opinio juris, it is now settled and unequivocal that immunity is more than a courtesy; it has a firm place in the international legal landscape ..." - See paragraph 38.

International Law - Topic 2200

Sovereignty - Incidents of - Immunity - General - The Supreme Court of Canada discussed generally the concept of state or sovereign immunity - In doing so, the court discussed how the concept of state immunity had evolved over time and the codification of immunity respecting civil suits in the State Immunity Act - The court also noted the exceptions to the broad scope of state immunity included in the Act - See paragraphs 39 to 43.

International Law - Topic 2200

Sovereignty - Incidents of - Immunity - General - [See Civil Rights - Topic 8006 ].

International Law - Topic 2201.9

Sovereignty - Incidents of - Immunity - Exceptions - General - The Supreme Court of Canada stated that the State Immunity Act (SIA) was a complete codification of Canadian law as it related to state immunity from civil proceedings - In particular, the court held that s. 3(1) of the Act exhaustively established the parameters for state immunity and its exceptions - The court disagreed with the academic view that the SIA was not truly exhaustive, and that despite the express language found in s. 3(1), the common law and international law necessarily informed its interpretation - Therefore, reliance need not, and indeed could not, be placed on the common law, jus cogens norms or international law to carve out additional exceptions to the immunity granted to foreign states pursuant to s. 3(1) - The SIA, in its present form, did not provide for an exception to foreign state immunity from civil suits alleging acts of torture occurring outside Canada - See paragraphs 54 to 58.

International Law - Topic 2201.9

Sovereignty - Incidents of - Immunity - Exceptions - General - The Supreme Court of Canada stated that "... the words of s. 3(1) of the SIA completely oust the common law and international law as a source of potential exceptions to the immunity which it provides. The plain and ordinary meaning of the words 'except as provided by this Act' is that it is the Act, and the Act alone, that may provide exceptions to the immunity granted pursuant to s. 3(1) of the SIA ... Words as explicit as 'except as provided by this Act' demonstrate that Parliament intended for the legislation to displace the common law ... I cannot think of words that could be more 'irresistibl[y] clea[r]' ..." - See paragraph 58.

International Law - Topic 2203

Sovereignty - Incidents of - Immunity - Exceptions - Death, personal injury, torture and hostage taking - The Supreme Court of Canada stated that "... in drafting the SIA [State Immunity Act], Canada has made a choice to uphold state immunity as the oil that allows for the smooth functioning of the machinery of international relations. Canada has given priority to a foreign state's immunity over civil redress for citizens who have been tortured abroad. This policy choice is not a comment about the evils of torture, but rather an indication of what principles Parliament has chosen to promote given Canada's role and that of its government in the international community. The SIA cannot be read as suggesting that Canada has abandoned its commitment to the universal prohibition of torture. This commitment is strong, and developments in recent years have confirmed it" - See paragraph 46.

International Law - Topic 2203

Sovereignty - Incidents of - Immunity - Exceptions - Death, personal injury, torture and hostage taking - Section 3(1) of the State Immunity Act (SIA) provided for state immunity, subject to enumerated exceptions - The Act made no exception to foreign state immunity from civil suits alleging acts of torture occurring outside Canada - The Supreme Court of Canada stated that "The current state of international law regarding redress for victims of torture does not alter the SIA, or make it ambiguous. International law cannot be used to support an interpretation that is not permitted by the words of the statute. Likewise, the presumption of conformity does not overthrow clear legislative intent ... Even if an exception to state immunity in civil proceedings for acts of torture had reached the status of a customary rule of international law, which ... it has not, such an exception could not be adopted as a common law exception to s. 3(1) of the SIA as it would be in clear conflict with the SIA ... Moreover, the mere existence of a customary rule in international law does not automatically incorporate that rule into the domestic legal order ... Should an exception to state immunity for acts of torture have become customary international law, such a rule could likely be permissive - and not mandatory - thereby, requiring legislative action to become Canadian law" - See paragraphs 59 to 63.

International Law - Topic 2203

Sovereignty - Incidents of - Immunity - Exceptions - Death, personal injury, torture and hostage taking - Section 6(a) of the State Immunity Act (SIA) provided for an exception to state immunity where proceedings related to any death or personal or bodily injury that occurred in Canada - The Supreme Court of Canada interpreted s. 6(a) - The court stated that when the words of s. 6(a) were examined in conjunction with the purpose of the Act it became apparent that it was necessary for the tort or delict which caused the death or personal injury to have occurred in Canada in order for the exception to immunity to apply - Also, the court held that the "personal or bodily injury" exception to state immunity did not apply where the alleged injury did not stem from a physical breach of personal integrity - See paragraphs 64 to 78.

International Law - Topic 2203

Sovereignty - Incidents of - Immunity - Exceptions - Death, personal injury, torture and hostage taking - A Canadian citizen, Zahra Kazemi, a freelance photographer, died after being arrested and detained in Iran - Her son, Mr. Hashemi, sued the Islamic Republic of Iran et al. (the defendants) alleging that the defendants detained, tortured and killed his mother - He claimed damages for the psychological and emotional prejudice caused to him personally - The Supreme Court of Canada held that Mr. Hashemi's claim was barred by the State Immunity Act because: (1) the alleged tort did not occur within Canada within the meaning of the Act; and (2) Mr. Hashemi did not claim any "dommag[e] corpore[l]" which could potentially have brought him within the exception stated at s. 6 (a), had the tort occurred in Canada (i.e., the alleged injury did not stem from a physical breach of personal integrity) - See paragraphs 64 to 78.

International Law - Topic 2203

Sovereignty - Incidents of - Immunity - Exceptions - Death, personal injury, torture and hostage taking - A Canadian citizen, Zahra Kazemi, a freelance photographer, died after being arrested and detained in Iran - Her son, Mr. Hashemi, and Ms. Kazemi's estate sued Iran, Iran's head of state, the Chief Public Prosecutor of Tehran (Mortazavi), and the former Deputy Chief of Intelligence of the Evin Prison (Bakhshi) for damages, alleging that the defendants detained, tortured and killed Ms. Kazemi - At issue was whether the State Immunity Act (SIA) applied to Bakhshi and Mortazavi - The Supreme Court of Canada held that public officials acting in their official capacity were included in the term "government" as it was used in the SIA - Mortazavi and Bakhshi were acting in their official capacity in their interactions with Ms. Kazemi - Acts of torture could be "official acts" for the purposes of the SIA - Therefore, Mortazavi and Bakhshi were immune from civil suit in the underlying claim pursuant to s. 3(1) of the SIA - See paragraphs 79 to 110.

International Law - Topic 2203

Sovereignty - Incidents of - Immunity - Exceptions - Death, personal injury, torture and hostage taking - [See first and second Civil Rights - Topic 1370.5 and first International Law - Topic 2201.9 ].

International Law - Topic 2203.3

Sovereignty - Incidents of - Immunity - Exceptions - Support of terrorism - State Immunity Act (SIA), s. 6.1 - The Supreme Court of Canada noted that in 2012 Parliament amended the SIA to include an exception to state immunity for certain foreign states that had supported terrorist activity (s. 6.1) - The court stated that "Although no argument concerning the nature or constitutionality of the terrorism exception was advanced before this Court, it is nonetheless relevant to the case at hand. If nothing else, it reveals that Parliament can and does take active steps to address, and in this case pre-empt, emergent international challenges ... thereby reinforcing the conclusion, discussed below, that the SIA is intended to be an exhaustive codification of Canadian law of state immunity in civil suits. I also note in passing, with all due caution, that when the terrorism exception bill, was before Parliament, it was criticized on numerous occasions for failing to create an exception to state immunity for civil proceedings involving allegations of torture, genocide and other grave crimes ... Indeed, Private Member Bill C-483 proposed to create such an exception but it never became law. More broadly, the amendment to the SIA brought by Parliament in 2012 demonstrates that forum states (i.e. states providing jurisdiction) have a large and continuing role to play in determining the scope and extent of state immunity" - See paragraph 44.

International Law - Topic 2207

Sovereignty - Incidents of - Immunity - Functionaries of a foreign state or state officials - Section 3(1) of the State Immunity Act (SIA) provided that a "foreign state" was immune from the jurisdiction of any court in Canada - Section 2 defined "foreign state" as including any "government" of the foreign state - The Supreme Court of Canada concluded that public officials acting in their official capacity were included in the term "government" as it was used in the definition of "foreign state" in s. 2 of the SIA - See paragraphs 80 to 93.

International Law - Topic 2207

Sovereignty - Incidents of - Immunity - Functionaries of a foreign state or state officials - [See fifth International Law - Topic 2203 ].

International Law - Topic 6005

International relations - Prohibition against torture - The Supreme Court of Canada stated that the prohibition of torture was a peremptory international norm (a peremptory norm, or jus cogens norm, was a fundamental tenet of international law that was non-derogable) - "But, in Canada, torture is also clearly prohibited by Conventions and legislation. Canada is a party to the CAT [Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], which has been in force for over twenty years. The CAT serves many purposes. In part, it defines torture (art. 1), and requires that state parties take legislative and administrative measures to prevent acts of torture (arts. 2, 3 and 4), investigate potential acts of torture believed to have been committed on its territory (art. 12), and provide means by which victims of torture may obtain redress (art. 14)" - See paragraph 49.

International Law - Topic 6005

International relations - Prohibition against torture - Section 14 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, required states to provide a means by which victims of torture could obtain redress - The Supreme Court of Canada rejected the notion that s. 14 required Canada to implement a universal civil jurisdiction for acts of torture - The court stated that "If the Canadian government were to carry out acts of torture, such conduct would breach international law rules and principles that are binding on Canada, would be illegal under the Criminal Code, and would also undoubtedly be unconstitutional. As was held in Suresh, the adoption of the Charter confirmed Canada's strict opposition to government-sanctioned torture. In particular, torture is blatantly contrary to s. 12 of the Charter ... Torture is also likely contrary to s. 7 of the Charter. Canada does not condone torture, nor are Canadian officials permitted to carry out acts of torture" - See paragraphs 50 to 53.

International Law - Topic 6005

International relations - Prohibition against torture - The Supreme Court of Canada stated that "Unsurprisingly, the very definition of torture contained in the CAT [Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] requires that it be 'inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity" (art. 1). For clarity, ... it is the official nature of the conduct which gives rise to torture, and not the opposite ..." - See paragraph 96.

Words and Phrases

Except as provided by this Act - The Supreme Court of Canada discussed the meaning of this phrase as used in s. 3(1) of the State Immunity Act, R.S.C. 1985, c. S-18 - See paragraph 58.

Words and Phrases

Government - The Supreme Court of Canada discussed whether public officials acting in their official capacity were included in the term "government" as it was used in the definition of "foreign state" in s. 2 of the Statute Immunity Act, R.S.C. 1985, c. S-18 - See paragraphs 80 to 93.

Words and Phrases

Personal or bodily injury - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in s. 6(a) of the State Immunity Act, R.S.C. 1985, c. S-18 - See paragraphs 64 to 78.

Cases Noticed:

Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269; 292 N.R. 250; 164 O.A.C. 354; 2002 SCC 62, appld. [paras. 18, 176].

Germany v. Italy, [2012] I.C.J. Reports 99 (Int. C.J.), refd to. [paras. 26, 204, footnote 5].

Congo (Democratic Republic) v. Belgium, [2002] I.C.J. Reports 3, refd to. [paras. 34, 203].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 35].

Al-Adsani v. United Kingdom (2002), 34 E.H.R.R. 273, refd to. [para. 37].

Jones v. United Kingdom, [2014] ECHR 34356/06, refd to. [paras. 38, 206].

Jones v. United Kingdom, [2014] ECHR 40528/06, refd to. [paras. 38, 206].

Nicaragua v. United States of America, [1986] I.C.J. Reports 14, refd to. [para. 38].

Reference Re Canada Labour Code and State Immunity Act (Can.), [1992] 2 S.C.R. 50; 137 N.R. 81, refd to. [para. 39].

Kuwait Airways Corp. v. Iraq (Republic) et al., [2010] 2 S.C.R. 571; 407 N.R. 145; 2010 SCC 40, refd to. [para. 41].

Bouzari et al. v. Islamic Republic of Iran (2004), 220 O.A.C. 1; 71 O.R.(3d) 675 (C.A.), refd to. [paras. 42, 226].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [paras. 47, 172, footnote 1].

Jones v. Saudi Arabia, [2007] 1 A.C. 270; 358 N.R. 349; [2006] UKHL 26, refd to. [paras. 48, 220].

Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al., [1990] 1 S.C.R. 1298; 109 N.R. 321; 66 Man.R.(2d) 81, refd to. [para. 58].

Goodyear Tire & Rubber Co. of Canada v. Eaton (T.) Co., [1956] S.C.R. 610, refd to. [para. 58].

R. v. Finta (I.), [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241, refd to. [para. 61].

Alcom Ltd. v. Republic of Columbia, [1984] 1 A.C. 580, refd to. [para. 63].

Daniels v. White, [1968] S.C.R. 517, refd to. [para. 63].

Persinger v. Islamic Republic of Iran (1984), 729 F.2d 835, refd to. [para. 71].

United States of America v. Netherlands (1928), II R.I.A.A. 829, refd to. [para. 72].

Castle v. United States Department of Justice (Attorney General) (2006), 218 O.A.C. 53 (C.A.), refd to. [para. 73].

Cinar Corp. et al. v. Robinson et al., [2013] 3 S.C.R. 1168; 452 N.R. 123; 2013 SCC 73, refd to. [para. 77].

R. v. Clarke (C.) (2014), 456 N.R. 43; 316 O.A.C. 384; 2014 SCC 28, refd to. [para. 77].

Prosecutor v. Blaskic (1997), 110 I.L.R. 607, refd to. [para. 86].

Jaffe v. Miller et al. (1993), 64 O.A.C. 20; 13 O.R.(3d) 745 (C.A.), refd to. [paras. 88, 185].

Samantar v. Yousuf (2010), 560 U.S. 305 (Sup. Ct.), dist. [para. 91].

Sosa v. Alvarez-Machain (2004), 542 U.S. 692 (Sup. Ct.), refd to. [paras. 103, 223].

Yousuf v. Samantar (2012), 699 F.3d 763 (4th Cir., D.C. Cir.), refd to. [paras. 106, 201].

Matar v. Dichter (2009), 563 F.3d 9 (2nd Cir. Sup. Ct.), refd to. [para. 106].

Belhas v. Ya'alon (2008), 515 F.3d 1279 (D.C. Cir.), refd to. [para. 106].

Ye v. Zemin (2004), 383 F.3d 620 (7th Cir. Sup. Ct.), refd to. [para. 106].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 108].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 117].

Amaratunga v. Northwest Atlantic Fisheries Organization, [2013] 3 S.C.R. 866; 451 N.R. 1; 338 N.S.R.(2d) 360; 1071 A.P.R. 360; 2013 SCC 66, refd to. [para. 119].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 119].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 125].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 125].

Tibi v. Ecuador (2004), Inter-Am. Ct. H.R. (Ser. C.) No. 114, refd to. [para. 129].

Bamaca Velasquez v. Guatemala (2002), Inter-Am. Ct. H.R. (Ser. C.) No. 91, refd to. [para. 129].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 131].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 139].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 149].

Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al., [1978] 2 S.C.R. 141; 18 N.R. 181, refd to. [para. 149].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 150].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 150].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 151].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 151].

Fang v. Jiang, [2007] N.Z.A.R. 420 (H.C.), refd to. [para. 156].

Black v. Breeden et al., [2012] 1 S.C.R. 666; 429 N.R. 192; 291 O.A.C. 311; 2012 SCC 19, refd to. [para. 160].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 164].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 164].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 169].]

Pinochet, Re, [2000] 1 A.C. 147; 237 N.R. 225 (H.L.), refd to. [para. 173].

R. v. Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte - see Pinochet, Re.

Chorzow Factory Case, [1928] P.C.I.J., Ser. A., No. 17, refd to. [para. 191].

Xuncax v. Gramajo (1995), 886 F. Supp. 162 (D. Mass.), refd to. [para. 207].

Cabiri v. Assasie-Gyimah (1996), 921 F. Supp. 1189 (S.D.N.Y.), refd to. [para. 207].

Belgium v. Senegal, [2012] I.C.J. Reports 422, refd to. [para. 213].

Statutes Noticed:

American Convention on Human Rights, 1144 U.N.T.S. 123, art. 10, art. 25(1) [para. 196].

Canadian Bill of Rights, R.S.C. 1985, App. III, sect. 2(e) [para. 111].

Canadian Charter of Rights and Freedoms, sect. 7 [para. 121]; sect. 12 [para. 52].

Criminal Code, R.S.C. 1985, c. C-46, sect 269.1 [para. 51].

Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. sect. 1603 [para. 92];  sect. 1605(a)(5) [para. 71].

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, art. 15, art. 16(9), art. 18(6), art. 83 [para. 196].

State Immunity Act, R.S.C. 1985, c. S-18, sect. 2 [paras. 80, 182]; sect. 3(1) [paras. 54, 178], sect. 4 [para. 43]; sect. 5; sect. 6 [para. 18]; sect. 6(a) [para. 64]; sect. 6.1 [para. 44]; sect. 7, sect. 8 [para. 43]; sect. 18 [para. 104].

State Immunity Act (U.K.), 1978, c. 33, sect. 16(4) [para. 104].

Torture Victim Protection Act of 1991, Pub. L. 102-256, 106 Stat. 73, generally [paras. 106, 202].

United Nations, Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, G.A. Res/60/147, U.N. Doc. A/Res/60/147, December 16, 2005, generally [para. 198].

United Nations, Charter of the International Military Tribunal, 82 U.N.T.S. 279, art. 8. [para. 40].

United Nations, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, Preamble, art. 1, art. 2 [para. 48]; art. 2(1) [para. 216]; art. 3, art. 4 [para. 48]; art. 5(1)(a) [para. 216]; art 5(1)(c) [para. 145]; art. 5(2), art. 11; art. 12 [paras. 48, 216]; art. 13 [para. 216]; art. 14 [para. 97 et seq.]; art. 16 [para. 216].

United Nations, Convention on the Rights of the Child, 1577 U.N.T.S. 3, art. 39 [para. 196].

United Nations Convention on Jurisdictional Immunities of States and Their Property (2004), sect 2(1)(b)(iv) [para. 86].

United Nations, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. Doc. (1985), generally [para. 197].

United Nations, Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452 (XXX), U.N. Doc. A/10034 (1975), art. 3 [para. 48].

United Nations, European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 3 [para. 48]; art. 5(5), art. 13 [para. 196].

United Nations, International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 2 [para. 196]; art. 7 [para. 48]; art. 9, art. 10, art. 11, art. 12, art. 13, art. 14 [para. 196].

United Nations, International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, art. 6 [para. 196].

United Nations, Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, generally [para. 194].

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 5 [para. 48]; art. 8 [para. 196].

Vienna Convention on the Law of Treaties, Can. T.S. 1980, No. 37, art. 40 [para. 218]; art. 53 [para. 47]; art. 79 [para. 218].

Authors and Works Noticed:

Arbour, J.-Maurice, and Parent, Geneviève, Droit international pubic (6th Ed. 2012), pp. 500 to 508.3 [para. 43]; 508.1 to 508.3 [para. 44].

Bassiouni, M. Cherif, International Recoginition of Victims' Rights (2006), 6 Hum. Rts. L. Rev. 203, generally [para. 199, footnote 4].

Batros, Ben, and Webb, Philippa, Accountability for Torture Abroad and the Limits of the Act of State Doctrine: Comments on Habib v. Commonwealth of Australia (2010), 8 J.I.C.J. 1153, p. 1169 [para. 210].

Beaulac, Stéphane, "Texture ouverte", droit international et interpretation de la Charte canadienne, in Mendes, Errol, and Beaulac, Stéphane, Canadian Charter of Rights and Freedoms (5th Ed. 2013), pp. 231 to 235 [para. 60]; 231 to 239 [para. 150].

Besner, Jennifer, and Attaran, Amir, Civil liability in Canada's courts for torture committed abroad: The unsatisfactory interpretation of the State Immunity Act 1985 (Can.) (2008), 16 Tort L. Rev. 150, p. 160 [para. 226].

Bradley, Curtis A., and Hefler, Laurence R., International Law and the U.S. Common Law of Foreign Official Immunity (2010), Sup. Ct. Rev. 213, pp. 247 to 248 [para. 103].

Brierly, James L., The Law of Nations: An Introduction to the International Law of Peace (6th Ed. 1963), pp. 59 to 60 [para. 187].

Brunée, Jutta, and Toope, Stephen J., A Hesitant Embrace: The Application of International Law by Canadian Courts (2002), 40 Can. Y.B. Intl. L. 3, pp. 50 to 51 [para. 186].

Byrnes, Andrew, Civil Remedies for Torture Committed Abroad: An Obligation under the Convention against Torture?, in Scott, Craig M., Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (2001), pp. 546, 548 [para. 218].

Canada, House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, No. 60, 1st Sess., 32nd Parliament (February 4, 1982), p. 32 [para. 184].

Cassese, Antonio, International Law (2nd Ed. 2005), p. 98 [para. 175].

Cassese, Antonio, The Oxford Companion to International Criminal Justice (2008), p. 487 [para. 190].

Currie, John H., Forcese, Craig, Harrington, Joanna, and Oosterveld, Valerie, International Law: Doctrine, Practice, and Theory (2nd Ed. 2014), pp. 116 [para. 187]; 539 to 541 [para. 39]; 541 [para. 41]; 554 to 555 [para. 186].

Currie, John H., Public International Law (2nd Ed. 2008), pp. 235 [para. 149]; 365 [para. 34]; 371 to 373 [para. 41]; 395 to 400 [para. 43]; 583 [para. 47].

Dwertmann, Eva, The Reparation System of the International Criminal Court: Its Implementation, Possibilities and Limitations (2010), generally [para. 190]; p. 22 [para. 193].

Emanuelli, Claude, Droit international public: Contribution ུ l'étude du droit international selon une perspective canadienne (3rd Ed. 2010), pp. 168 to 169 [para. 47]; 294 [para. 35]; 346 to 349 [para. 43].

Forcese, Craig, De-immunizing Torture: Reconciling Human Rights and State Immunity (2007), 52 McGill L.J. 127, pp. 133 to 134 [para. 36]; 135 [para. 37].

Fox, Hazel, and Webb, Philippa, The Law of State Immunity (3rd Ed. 2013), pp. 2 [para. 38]; 17 [para. 45]; 21 [para. 161]; 25 [para. 35]; 26 [para. 39]; 32 [para. 41]; 38 to 39 [para. 34]; 74 [para. 72]; 76 [para. 35]; 82 [para. 34]; 462 [para. 72]; 569 [para. 205].

Fox, Hazel, State Immunity and the International Crime of Torture, [2006] E.H.R.L.R. 142, p. 155 [para. 73].

Gattini, Andrea, Reparations to Victims, in Cassese, Antonio, The Oxford Companion to International Criminal Justice (2008), p. 487 [para. 190].

International Law Association, Committee on International Human Rights Law and Practice, Interim report on the impact of the work of the United Nations human rights treaty bodies on national courts and tribunals (2002), generally [para. 224].

Koh, Harold Hongju, Memorandum Opinion on the Geographic Scope of the Convention Against Torture and Its Application to Situations of Armed Conflict (2013), pp. 16 to 20 [para. 216].

Koh, Harold Hongju, Transnational Public Law Litigation (1991), 100 Yale L.J. 2347, p. 2365 [para. 168].

Larocque, Franུois, Civil Actions for Uncivilized Acts: The Adjudicative Jurisdiction of Common Law Courts in Transnational Human Rights Proceedings (2010), pp. 236 [paras. 34, 35]; 237 [para. 34]; 238 [para. 39]; 239 to 241 [para. 41]; 258 [para. 72]; 261 [para. 145]; 262 to 263 [para. 222].

Larocque, Franུois, La Loi sur l'immunité des Etats canadienne et la torture (2010), 55 McGill L.J. 81, pp. 92 to 93, 94, 100 to 102 [para. 55].

LeBel, Louis, and Chao, Gloria, The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law (2002), 16 S.C.L.R.(2d) 23, pp. 35, 36 [para. 61].

MacCormick, Neil, Legal Right and Social Democracy: Essays in Legal and Political Philosophy (1982), c. 11, generally [para. 189].

Mazzeschi, Riccardo Pisillo, Reparation Claims by Individuals for State Breaches of Humanitarian Law and Human Rights: An Overview (2003), 1 J.I.C.J. 339, generally [para. 190].

Mendes, Errol, and Beaulac, Stéphane, Canadian Charter of Rights and Freedoms (5th Ed. 2013), pp. 231 to 235 [para. 60]; 231 to 239 [para. 150].

Nowak, Mandred, McArthur, Elizabeth, and Buchinger, Kerstin, The United Nations Convention Against Torture: A Commentary (2008), pp. 492, 502 [para. 141]; para. 15 [para. 217].

O'Flaherty, Michael, The Concluding Observations of United Nations Human Rights Treaty Bodies (2006), 6 Hum. Rts. L. Rev. 27, generally [para. 224].

Perry, Stephen R., The Moral Foundations of Tort Law (1992), 77 Iowa L. Rev. 449, pp. 450 to 451 [para. 189].

Ranganathan, Prasanna, Survivors of Torture, Victims of Law: Reforming State Immunity in Canada by Developing Exceptions for Terrorism and Torture (2008), 71 Sask. L. Rev. 343, pp. 350 [para. 41]; 386 [para. 44].

Scott, Craig M., Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (2001), pp. 546, 548 [para. 218].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 244 [para. 92]; 310 to 312 [para. 71].

Trumbull, Charles P., The Victims of Victim Participation in International Criminal Proceedings (2008), 29 Mich. J. Intl. L. 777, p. 780 [para. 194].

United Nations, Commission on Human Rights, Report of the independent expert on the right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms 1998/43, U.N. Doc. E/CN.4/1999/65, generally [para. 197, footnote 2].

United Nations, Commission on Human Rights, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law 1995/117, U.N. Doc E/CN.4/Sub.2/1996/17, generally [para. 197, footnote 2].

United Nations, Commission on Human Rights, Summary prepared by the Secretary-General in accordance with Commission resolution 18 (XVIII), U.N. Doc. E/CN.4/1314, para. 45 [para. 50].

United Nations, Committee Against Torture, Consideration of reports submitted by States parties under article 19 of the Convention, U.N. Doc. CAT/C/CR/34/Can (July 7, 2005), para. 4(g) [para. 226].

United Nations, Committee Against Torture, Consideration of reports submitted by States parties under article 19 of the Convention, U.N. Doc. CAT/C/CAN/CO/6 (June 25, 2012), para. 15 [para. 226].

United Nations, Committee Against Torture, Implementation of article 14 by State parties, General Comment No. 3 (2012), paras. 22, 42 [para. 146].

United Nations, International Law Commission, Guide to Practice on Reservations to Treaties (2011), paras. 2.9.8 to 2.9.9 [para. 221].

United Nations, Report of the Committee Against Torture, U.N. Doc. G.A. A/55/44 (2000), para. 178 [para. 225].

United Nations, Review of Canada's Sixth Report on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2012), para. 339 [para. 141].

United Nations, Treaty Collection, Status on Convention Against Torture, p. 7 [para. 219]; fn. 26 [para. 220].

United States of America, Senate Report, No. 249, 1st Sess., 102nd Congress (1991), p. 6 [para. 202].

van Ert, Gib, Using International Law in Canadian Courts (2nd Ed. 2008), pp. 29 [para. 151]; 218 to 223 [para. 61].

Weinrib, Ernest, The Special Morality of Tort Law (1989), 34 McGill L.J. 403, p. 413 [para. 189].

Zegveld, Liesbeth, Victims' Reparations Claims and International Criminal Courts: Incompatible Values? (2010), 8 J.I.C.J. 79, generally [para. 190]; pp. 82, 83 [para. 195].

Counsel:

Kurt A. Johnson, Mathieu Bouchard, Audrey Boctor and David Grossman, for the appellants;

No one appeared for the respondents, the Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei, Saeed Mortazavi and Mohammad Bakhshi;

Bernard Letarte and René LeBlanc, for the respondent, the Attorney General of Canada;

Christopher D. Bredt and Heather Pessione, for the amicus curiae;

Jill Copeland and Emma Phillips, for the intervener, the Canadian Lawyers for International Human Rights;

François Larocque and Alyssa Tomkins, for the intervener, Amnistie internationale, Section Canada francophone;

Written submissions only by Azim Hussain, Rahool P. Agarwal and Maureen R. A. Edwards, for the intervener, Redress Trust Ltd;

Written submissions only by Daniel Sheppard and Tamara Morgenthau, for the intervener, the Canadian Association of Refugee Lawyers;

Written submissions only by Michael Sobkin, for the intervener, the British Columbia Civil Liberties Association;

Written submissions only by David Matas, Monique Pongracic-Speier and Noemi Gal-Or, for the intervener, the Canadian Bar Association;

Christopher A. Wayland and Simon Chamberland, for the intervener, the Canadian Civil Liberties Association;

John Terry and Sarah Shody, for the intervener, the Canadian Centre for International Justice;

John Norris and Carmen Cheung, for the interveners, the David Asper Centre for Constitutional Rights and the International Human Rights Program at the University of Toronto Faculty of Law;

Babak Barin and Payam Akhavan, for the intervener, the Iran Human Rights Documentation Center.

Solicitors of Record:

Irving Mitchell Kalichman, Montreal, Quebec, for the appellants;

Attorney General of Canada, Ottawa, Ontario, for the respondent, the Attorney General of Canada;

Borden Ladner Gervais, Toronto, Ontario, appointed by the Court as amicus curiae;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, the Canadian Lawyers for International Human Rights;

Juristes Power Law, Ottawa, Ontario; CazaSaikaley, Ottawa, Ontario, for the intervener, Amnistie internationale, Section Canada francophone;

Norton Rose Fulbright Canada, Montreal, Quebec, and Toronto, Ontario, for the intervener, Redress Trust Ltd.;

Sack Goldblatt Mitchell, Toronto, Ontario; Waldman & Associates, Toronto, Ontario, for the intervener, the Canadian Association of Refugee Lawyers;

Branch, MacMaster, Vancouver, British Columbia; Michael Sobkin, Ottawa, Ontario, for the intervener, the British Columbia Civil Liberties Association;

David Matas, Winnipeg, Manitoba; Ethos Law Group, Vancouver, British Columbia; Noemi Gal-Or Inc., Vancouver, British Columbia, for the intervener, the Canadian Bar Association;

McCarthy Tétrault, Toronto, Ontario, and Montreal, Quebec, for the intervener, the Canadian Civil Liberties Association;

Torys, Toronto, Ontario, for the intervener, the Canadian Centre for International Justice;

Simcoe Chambers, Toronto, Ontario; University of Toronto, Toronto, Ontario, for the interveners, the David Asper Centre for Constitutional Rights and the International Human Rights Program at the University of Toronto Faculty of Law;

Barin Avocats, Montreal, Quebec; McGill University, Montreal, Quebec, for the intervener, the Iran Human Rights Documentation Center.

This matter was heard on March 18, 2014, by McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on October 10, 2014, and included the following opinions:

LeBel, J. (McLachlin, C.J.C., Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., concurring) - see paragraphs 1 to 171;

Abella, J., dissenting - see paragraphs 172 to 231.