MONTREAL - A legal showdown is set to take place in a Quebec courtroom this week pitting the government of Iran against the estate of slain photojournalist Zahra Kazemi.
The Iranian government will be trying to argue its way out of a $17-million civil suit filed by the family of the Iranian-Canadian photographer.
Lawyers for both the Iranian and Canadian governments will argue that Iran cannot be sued under Canada's State Immunity Act, which essentially limits the conditions under which a foreign government can be brought before a Canadian court.
Five days have been set aside for a legal showdown before a Quebec Superior Court judge, starting Wednesday.
Lawyers for the Kazemi estate and her son Stephan Hashemi will also present their own arguments in favour of the suit, and the Canadian Centre for International Justice and Amnesty International's French branch have applied for intervener status.
Hashemi is seeking compensation for the arrest, detention, torture and death of his mother, but both he and his lawyers contend it's not the dollar figure that's important.
"It's a great chance to make an exception to this law (the State Immunity Act) that is really limited and is not protecting the rights of citizens," Hashemi said in an interview.
"That is the only recourse left to me after all these years. . . This is really the last opportunity. We have to demonstrate that we can't treat citizens in that way."
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 and died of her injuries on July 10, 2003. Her body was hastily buried in Iran, according to religious custom.
Since then, Hashemi has tried unsuccessfully to have his mother's body repatriated.
Hashemi said he filed the suit in 2006 after it was clear Canada wouldn't push his mother's case any further.
The suit names as defendants Iran, Grand Ayatollah Ali Khamenei, Tehran prosecutor Saeed Mortazavi and prison official Mohammad Bakhshi.
In the past, Canadian courts have refused to allow civil suits against countries because of the State Immunity Act - which says that a country can only be sued for commercial purposes.
Observers will be keeping a close watch as to how the case plays out. They say protection and justice for Canadian citizens, whenever they travel abroad, is at stake in this case.
"If there is immunity assessed in these sorts of cases, basically the signal it is sending is any Canadian who happens to be abroad and who is tortured or killed may not be able to seek justice anywhere for those incidents," said Matt Eisenbrandt, legal co-ordinator at the Canadian Centre for International Justice.
"I think that would just be a horrible situation and a horrible message to send to Canadians."
One of the lawyers representing the Kazemi family and the estate says he's ready to make some compelling arguments as to why the case should go forward here and why it would be impossible to get a fair hearing in Iran.
"Iran should not be entitled to raise state immunity to immune itself from the jurisdiction of Canadian courts in connection with (these) civil claims," said lawyer Kurt Johnson.
Hashemi said he's prepared to continue the fight right up to the Supreme Court of Canada if need be. Johnson said a refusal by the Quebec Superior Court to hear the case would be problematic.
"It would have the effect of having Mr. Hashemi and the estate (prevented) from pursuing this as a civil case anywhere in the world," Johnson said.
Two well-known attempts by Canadians to sue foreign states have failed because courts in this country ruled they had immunity.
Maher Arar, a Syrian-Canadian engineer, was tortured in a Syrian prison for a year over false allegations of terrorist involvement. A Canadian inquiry ruled he had been tortured and the government awarded Arar a $10.5-million settlement.
But he was not successful in suing the Syrian and Jordanian governments in Canada.
Houshang Bouzari, an Iranian-Canadian man who attempted to sue the Iranian government for torture he endured there, was also unsuccessful.
"What we are interested in as an organization is seeing that governments and officials do not enjoy immunity for severe human rights abuses," Eisenbrandt said.
"In this case we're talking about a Canadian citizen who was tortured and murdered and it's a perfect example for why there shouldn't be immunity in this kind of case."
A Liberal MP from Montreal, Irwin Cotler, is sponsoring a private member's bill that would amend the State Immunity Act and make it easier to sue foreign governments.
