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Iran argues in Canadian courtroom that it has immunity from civil suit

MONTREAL - One of the world's most controversial regimes was in a Canadian courtroom Wednesday arguing that it cannot be held civilly responsible for the deadly prison-beating of Montreal photojournalist Zahra Kazemi.

MONTREAL - One of the world's most controversial regimes was in a Canadian courtroom Wednesday arguing that it cannot be held civilly responsible for the deadly prison-beating of Montreal photojournalist Zahra Kazemi.

The Iranian government defended itself through a Montreal law firm in a $17-million civil suit launched by the estate and family of the Iranian-Canadian woman over her detention, torture and slaying.

Armed with some jurisprudence, lawyers representing the Iranian government argued that neither it nor its leader, Grand Ayatollah Ali Khamenei, can be sued under Canada's State Immunity Act and the case should be dismissed.

"The Republic of Iran objects to a Canadian court deciding whether torture was used or not," lawyer James Woods said at the start of a hearing that has been two-and-a-half years in the making.

The suit, filed in Quebec Superior Court in June 2006, names The Islamic Republic of Iran and Khamenei as defendants. Also named are two men alleged to have been involved in Kazemi's death: Tehran prosecutor Saeed Mortazavi and prison official Mohammad Bakhshi.

Woods argued that state immunity extends to functionaries and government employees and, as such, Mortazavi and Bakhshi cannot be sued either.

Iran has been sued once before in a Canadian court over torture allegations, by Houshang Bouzari in Ontario, and it didn't bother to hire a lawyer that time.

Woods said he couldn't get into why Iran felt it necessary to have legal representation this time, but he dismissed a reporter's question about what it's like to defend a "pariah state" like Iran.

"I'm quite privileged to be representing the state of Iran and they are entitled to their day in the court and that's what we're having (today), finally," Woods said outside the courtroom.

The law might be on Iran's side. As it stands, the State Immunity Act only allows states to be sued in civil court under very strict conditions, and with very few exceptions other than suits for commercial purposes.

Woods told Justice Robert Mongeon that the Kazemi lawsuit doesn't meet any of the exceptions cited.

Kazemi's lawyers plan to dispute that over the five days set aside for hearings.

Lawyer Kurt Johnson said he will challenge the constitutionality of the State Immunity Act. He said the act infringes on the Charter of Rights and Freedoms and the Bill of Rights, because it prohibits Hashemi from seeking justice.

Johnson said that other than Canada, Hashemi has no place to seek redress and that Iran is not a possible venue.

"(Kazemi's son) Stephan Kazemi and the estate of his late mother would be in a legal black hole if this court doesn't entertain jurisdiction to hear this claim," said Johnson.

"We've specifically alleged that the Iranian justice system, which is the only other natural forum for this case, is incapable of hearing it."

The Canadian Centre for International Justice and Amnesty International Canada's francophone branch are interveners in the case and will present arguments as well.

Kazemi, 54, was an Iranian-Canadian citizen who was arrested on June 23, 2003, as she photographed relatives of detainees outside Evin prison in Tehran.

She was never formally charged with any crime, but while in custody she was beaten. She died of her injuries on July 10, 2003, and subsequent reports stated she was sexually assaulted, badly beaten and tortured.

But since her death, Hashemi has tried unsuccessfully to have his mother's body repatriated to Canada. He also said autopsy results were never released.

All signs point to an uphill battle for Kazemi's estate.

Two previous attempts to sue foreign states in Canada - the Bouzari case and Maher Arar's attempt to sue Syria and Jordan - have been denied under the immunity act.

Politicians in Ottawa have moved to change things this year, with both the government and a Liberal MP introducing separate legislation seeking to amend the act to allow Canadians to sue foreign states if they're victims of terrorism or torture.

Mongeon expressed a willingness to hear all sides before ruling.

"We're here to debate an important question that is not the subject of an elaborate jurisprudence," said Mongeon.

"My intention is not to close doors. If I open a door, it'll be open for everyone."

Hashemi said he filed the suit in 2006 after it became clear Canada wouldn't push his mother's case any further.

That the case has finally made it before a court and that Iran has seen fit to defend itself are both good signs, said Hashemi, who said he is on the hook for some of the $65,000 spent mounting the case.

"They do care because they have retained the service of (lawyers) to represent their so-called rights," Hashemi said outside the courtroom.

"Unfortunately, the very last option (I had) was a language they understand very well: the language of money."

The Kazemi case has created a frosty relationship between Canada and Iran that still exists today.

However, the Canadian government is intervening in the case in a way that could help the Iranian argument. Canada's attorney general is defending the constitutional legitimacy of the immunity act.

"The case raises the issue of the constitutional validity of the State Immunity Act and the opinion of the attorney general is that the act is constitutional and in conformity with international law," said lawyer Bernard Latarte.

"Iran is seeking the rejection of the lawsuit, we are basically defending the constitutionality of the act. That's the only reason the government intervened."

 
 
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