Victims seek right to sue foreign governments here
Conference may push for change
Courts so far have ruled against it

Oct. 1, 2004. 06:21 AM

TRACEY TYLER
LEGAL AFFAIRS REPORTER

Toronto Star

Houshang Bouzari was on a business trip to Tehran when Iranian government agents burst into his apartment, blindfolded him and drove him to the country's notorious Evin prison.

 

Over the next eight months, he was whipped with steel cables, deprived of sleep, had electric shocks administered to his genitals and was subjected to mock hangings. His head was forced into a bowl of excrement and his ears were beaten so badly his hearing was damaged.

 

Now a Canadian citizen, Bouzari, 52, has been battling legally for the right to sue the Islamic Republic of Iran in Canadian courts. The Iranian-born physicist was dealt a setback in June, when the Ontario Court of Appeal ruled that existing law prevents him from seeking redress here for brutality he experienced in Iran.

 

While clearly sympathetic to his suffering, Justices Stephen Goudge, James MacPherson and Eleanore Cronk said Bouzari's claim is barred by the State Immunity Act, which, with few exceptions, protects foreign governments from proceedings in Canadian courts.

 

But Noah Novogrodsky, the director of the International Human Rights Program at the University of Toronto's faculty of law, hopes an unusual conference today will be a step to carving out an exception in the law.

 

Pointing to recent stories of Canadians tortured abroad, conference organizers say there is a clear need for a legal forum where Canadian victims of torture, or their family members, can sue for damages and obtain "psychological closure" through the assessment of responsibility and blame.

 

While a closed session with federal officials is where they hope to make real progress, the conference highlight will undoubtedly be a remarkable perhaps unprecedented panel of Canadians talking about their experiences of torture.

 

"I didn't want to die nobody does," Bouzari said in an interview outside Toronto, where he now lives. But it reached the point where "I was looking at being liberated by death."

 

Besides Bouzari, the panel is expected to include William Sampson, who faced the possibility of a public beheading during 2 1/2 years in Saudi Arabian jail; Ken Wiwa, son of a Nigerian playwright executed in 1995; and Stephan Hachemi, whose mother, Zahra Kazemi, was fatally beaten in Evin last year.

 

From the perspective of torture victims, the Canadian law may appear to present an odd dichotomy: While Canada will not allow its courts to be used to sue foreign governments for acts of torture committed abroad, it will allow them to be used to prosecute people for crimes committed abroad.

 

That includes war crimes, as well as child sex crimes. (A preliminary hearing began in Vancouver last month for hotel worker Donald Bakker, charged with having sex with girls under 18 in Southeast Asia and the first person prosecuted under a federal "sex tourism" law.)

 

"We are prepared to try people (for alleged offences abroad), with seemingly more severe criminal sanctions, such as imprisonment, but we have not made our courts particularly available to those who would sue civilly for damages," Novogrodsky said in an interview.

 

But Peter Southey, a justice department lawyer who represented the federal government in the Bouzari case, said laws that give Canada authority to prosecute war crimes or offshore sex offences have come about through international agreement co-operation that will cease to exist if one country decides to take jurisdiction over another sovereign state.

 

But to Bouzari, diplomacy and international comity should take a back seat to a higher principle. "Human rights," he said, "trumps sovereignty."

Source

www.OttawaMensCentre.com