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Irwin Cotler, MP

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A call to reform the State Immunity Act

Posted on October 17, 2014

(As published in The National Post)

Last week, the Supreme Court of Canada refused to allow the state of Iran to be held accountable in Canadian court for the horrific 2003 torture, sexual assault and murder of a Canadian, the photojournalist Zahra Kazemi.

In a case that Justices called “nothing short of a tragedy,” the nation’s highest court determined that Parliament had cut off access to justice for Ms. Kazemi’s estate and her son through the State Immunity Act.

Faced with a law it considered unambiguous, the Court determined it had no choice but to follow it.

The Supreme Court’s decision is a call to action for Parliament, and one that must be heeded. As the Court noted, “Parliament has the power and capacity … to change the current state of the law … and allow those in situations [such as Ms. Kazemi and her son] to seek redress in Canadian courts. Parliament has simply chosen not to do it yet.”

The time to do it is now – indeed, it is long overdue.

International law criminalizes torture in the strongest possible terms. As stated by Lord Bingham of the United Kingdom, “there can be few issues on which international legal opinion is more clear than on the condemnation of torture.” Yet as the case of Ms. Kazemi illustrates, Canadian victims of torture cannot count on the states that committed these heinous offences to investigate and prosecute them impartially. If Canadian victims of torture are to obtain justice, they must be able to find it here.

Our present legislation criminalizes torture, but does not allow for a civil remedy when foreign states commit these criminal acts overseas against Canadians. Based on the doctrine of state immunity, Canadian courts are thereby instructed by Parliament not to adjudicate cases – including those involving the most heinous crimes – where the perpetrator is a foreign state.

Simply put, our State Immunity Act unconscionably favours the perpetrators of such evil, over the Canadians who are its victims.

But state immunity is not meant to be absolute. In Canada, the list of exceptions is growing: Canadians can sue for foreign states for supporting terrorism, for various claims relating to maritime law, and even for commercial activities.

It is absurd that Canadians can use Canadian courts to enforce commercial contracts against foreign states, but the doors of justice are closed on them when they seek compensation for acts of torture. We need legislation to address the evils of international crimes that are now shielded by Canadian law; to target the impunity of those states and officials that perpetrate these crimes; to remove the state immunity that operates to shield the perpetrators of such crimes; and to allow Canadian victims to secure justice while holding their perpetrators accountable.

In 2009, I introduced a private member’s bill in the House of Commons that did just this, with the support of Conservative, NDP and Bloc Québécois members of Parliament. Yet the bill was never passed.

In the wake of the Supreme Court’s Kazemi ruling, I will be introducing a new private member’s bill to create a principled exception to state immunity for cases involving torture, genocide, crimes against humanity and war crimes. The moral imperative behind this initiative has never been clearer.

Canadian courts deserve Parliamentary action that will allow them to be instruments of justice, rather than inadvertent perpetuators of injustices committed abroad. It is time to rectify this inversion of rights and remedy, this inversion of law and morality, occasioned by the State Immunity Act.

I trust that all parties will support this new exception to state immunity in Canada. Our legal system must stand strongly on the side of victims of torture, wherever it has been committed, and fervently defend the principles of access to justice and accountability that inhere in our law. The era of foreign states committing torture with impunity must come to an end; that end starts now.

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