Islamic Republic of Iran and Others v. Hashemi and Estate of the Late Kazemi

Abstract

State immunity — Jurisdictional immunity — General rule that foreign State immune unless exception to immunity applicable — Canada State Immunity Act 1985 (“SIA”), Section 3(1) — Statutory exceptions to immunity — Section 6 of SIA — Whether applicable — Whether SIA complete codification of law of State immunity in Canada — Whether exceptions to immunity other than those contained in Section 6 of SIA — Whether SIA applicable to acts of torture — Whether foreign State having immunity — Whether Section 3(1) of SIA applicable to individual agents of foreign State — Whether nature of actions relevant

Relationship of international law and municipal law — State immunity — Canada State Immunity Act 1985 (“SIA”) — Interpretation — Scope — Whether SIA complete and clear codification of law of State immunity in Canada — Customary international law — Prohibition of torture — Jus cogens norm — Effect on SIA — Whether acts of torture falling within scope of State immunity under customary international law — Whether conflict between rules of jus cogens and rules of State immunity — Judgment of International Court of Justice — Whether SIA applying to acts of torture

Relationship of international law and municipal law — Treaties — Convention against Torture, 1984 — Whether Article 14(1) of Convention imposing obligation on signatories to provide civil remedy for acts of torture including those committed outside its jurisdiction — Whether any subsequent binding developments in international law — Means of effecting change in Canadian law

Human rights — Torture — Damages — Civil proceedings against foreign State for acts of torture — Immunity from jurisdiction — Exceptions — Prohibition of torture constituting jus cogens norm — Whether customary international law rule of State immunity no longer extending to torture — Whether Canada State Immunity Act 1985 (“SIA”) applying to acts of torture — Article 14(1) of Convention against Torture, 1984 — Whether imposing obligation on signatories to provide civil remedy for acts of torture including those committed outside its jurisdiction

Human rights — Right to a fair hearing — Right to liberty — Whether Section 3(1) of SIA compatible with Section 2(e) of Canadian Bill of Rights — Whether Section 3(1) of SIA compatible with Section 7 of Canadian Charter of Rights and Freedoms — The law of Canada