OTTAWA - The Harper government faced widespread calls Friday to be as tough on torture as it is on terrorism after the Supreme Court of Canada shut the door on a torture lawsuit against the Iranian government.
The lawyer for the son of murdered Canadian photojournalist Zahra Kazemi led the calls for Ottawa to close a legal loophole that the Supreme Court highlighted in its Friday ruling. By a 6-1 margin, the court ruled Stephan Hashemi is prohibited by the State Immunity Act from suing the Iranian government over his mother's death.
The justices handed the issue back to the government, saying legislators could simply change the act and open the door for Hashemi's civil lawsuit.
"Parliament has the power and capacity to decide whether Canadian courts should exercise civil jurisdiction," Justice Louis LeBel wrote for the majority. "Parliament has the ability to change the current state of the law on exceptions to state immunity, just as it did in the case of terrorism and allow those in situations like Mr. Hashemi and his mother's estate to seek redress in Canadian courts. Parliament has simply chosen not to do it yet."
The court was referring to the government 2012's Justice for the Victims of Terrorism Act, which amended the immunity act to allow victims of terrorism to sue states that are listed supporters of terrorism.
Hashemi's lawyer Kurt Johnson said he was disappointed.
"But we echo the majority's call to Parliament to carve out an exception to the State Immunity Act for acts of torture," he said in an interview.
The opposition New Democrats said they would renew their calls for such an amendment.
"I find it puzzling that the government has been able to change the State Immunity Act when it comes to cases of terrorism, but not for those who are victims of torture," said NDP foreign affairs critic Paul Dewar. "It's not consistent in terms of our values."
Justice Minister Peter MacKay's office had no comment except to say that it was reviewing the ruling.
The Canadian Centre for International Justice also called on Parliament to act.
"We had hoped the court's ruling would be more responsive to the growing need of families and survivors to obtain redress but now, if Parliament doesn't act, Canadian torture survivors will likely never achieve justice," said Matt Eisenbrandt, the centre's legal director.
Iran had argued it was shielded by the State Immunity Act and the Canadian government intervened to defend the validity of that law, while insisting its actions did not mean it condoned torture.
Government lawyers argued the law is important for the stability of international relations.
The Supreme Court said that state immunity "is a complex doctrine that is shaped by constantly evolving international relations" and it wasn't prepared to wade in.
"Determining the exceptions to immunity requires a thorough knowledge of diplomacy and international politics and a careful weighing of national interests," the ruling stated.
"It is not, however, this court's task to intervene in delicate international policy-making."
Johnson argued in court that the immunity law denies access to justice and is unconstitutional.
Hashemi waged a relentless campaign for justice on behalf of his mother for more than a decade.
The case wound its way to the Supreme Court after Hashemi filed a civil action in Quebec Superior Court against Iran, its head of state and chief prosecutor as well as the former deputy intelligence chief of Evin Prison.
Hashemi's lawsuit named the Islamic Republic of Iran; its leader, Grand Ayatollah Ali Khamenei; former Tehran prosecutor Saeed Mortazavi; and prison official Mohammad Bakhshi.
The lone high court dissenter, Justice Rosalie Abella, said Hashemi should have the right to sue Mortazavi and Bakhshi.
Kazemi, a Canadian citizen who was born in Iran, was arrested while photographing a demonstration outside Tehran's notorious Evin Prison in the summer of 2003.
She was thrown in jail, where she was tortured and raped before dying in hospital almost three weeks later.
The extent of what she endured was later revealed by a doctor, who worked for the Iranian Defence Ministry and who examined the 54-year-old woman in hospital. He spoke publicly after he successfully sought asylum in Canada.
The doctor said he found clear signs of torture and sexual assault, including broken fingers, missing fingernails, a broken nose, evidence of whipping and deep lacerations.
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