Torture victims first battle Ottawa for right to sue other countries

Lawyers for victims of torture are challenging the federal government in a court case both sides say is a crucial test of Canadian and international law.

The case concerns Houshang Bouzari, an Iranian-born Canadian who's trying to sue the government of Iran. Bouzari alleges that 10 years ago while he was an oil industry consultant living in Tehran, he was kidnapped by Iranian government agents, tortured and held for months until his family paid several million dollars ransom.

Iran has ignored the lawsuit Bouzari filed in Ontario. But lawyers for the federal attorney general have intervened in the case. They argue that allowing Bouzari to sue Iran would be illegal and could damage diplomatic relations.

The Ontario Superior Court of Justice agrees with Ottawa and, on Wednesday, lawyers for both sides took their arguments to the Ontario Court of Appeal. David Matas, Bouzari's lawyer, says his client's case is nothing short of precedent setting. "This case is the benchmark," he said, "it will determine whether people in Canada can sue foreign governments for torture."

Right now Canadians can't sue foreign governments for torture, because the State Immunity Act adopted by Parliament in 1982 doesn't allow it. The attorney general's department wants to keep it that way.

Christopher Greenwood a professor of international law at the London School of Economics, appeared as an expert witness for the federal government. Greenwood says Canada's State Immunity Act simply puts in writing what every nation already accepts.

"The answer in all of those jurisdictions that have considered the matter is that a state remains immune from the jurisdiction of other states in respect of acts of torture committed within its own territory."

In Canada there are only two exceptions to the restrictions of the State Immunity Act. One is if the lawsuit is for commercial reasons, for example over a broken contract. The other exception is in the highly unlikely scenario of the torture occurring in Canada, at the hands of a foreign government. But torture in a foreign country is not a basis for a suit.

Osgoode Hall law professor Craig Scott, who has written extensively on the subject, says it's not surprising government lawyers would try to defend the validity of Canadian legislation. But he says that doesn't mean there shouldn't be any further exceptions for people like Bouzari.

"Canada has a responsibility. The fact is, as a refugee, or somebody who can't go back to Iran, he has to go somewhere. And if coming to Canada is a reasonable place to go then I think we have some kind of responsibility to him as one of us now to give him access to justice."

Peter Southey, counsel for the attorney general, says there are good reasons to prevent Canadian courts from hearing cases against foreign governments. Southey says if courts awarded financial judgments, it could lead to the seizure of embassy property and assets.

"Instead of having a world in which there are diplomatic relations and international affairs, that people would stop having, or countries would stop having, embassies and international relations because the courts would be interfering in their proper operations."

But Matas says no one's talking about ending the idea of state immunity, just extending an exception in cases of torture.

Former foreign affairs minister Lloyd Axworthy is also critical of Canada's position. Axworthy says Ottawa can and should allow Canadian courts to try to influence international human rights law.

Canada, says Axworthy, "is very much behind. The reticence is a recognition that we have been engaged in the last couple of years through our own anti-terrorism legislation and our cross-border agreements in the United States, in implicating ourselves in a lot of practices that demonstrate a willingness to have security trump rights, rather than have rights trump security."

The U.S. has a similar legal prohibition against its citizens suing foreign governments, but it does allow lawsuits against countries it considers state sponsors of terrorism. That loophole has resulted in a number of financial judgments that have been paid through the seizure of foreign assets.

But, ultimately, it may be U.S. taxpayers who foot the bill. Sandra Coliver, executive director of the Center for Justice and Accountability, says when and if diplomatic relations are restored with the offending nations, the U.S. treasury may have to repay them.

"There have been many victims of the Iranian government, the Iraqi government, and the system of litigation enables those claimants with certain kinds of lawyers to be at the head of the line. I don't know if it is the best public policy to mete out the money in that fashion," she said.

But Coliver agrees with people like Matas, Axworthy and others that even without any monetary judgment, a civil lawsuit that names and shames a government for torture has its own value in shining a light on the practice.

Both sides are now waiting for the Ontario Court of Appeal to decide.