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At 01 March 2019, after just over one year's medical leave,
Simon's law practice will re-open. Whoo-hoo ....!
- 12 February 2019

THE LATEST WORD

(what's this?)

Immunity

1. General
2. Foreign State Immunity
3. Crown Immunity

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1. General

Immunity is what it sounds like, the protection of a defendant from proceedings against them by virtue of their status. Judges, Crown Attorneys, foreign states and others are immune to various degrees, some fully.

2. Foreign State Immunity

. Kazemi Estate v. Islamic Republic of Iran

In Kazemi Estate v. Islamic Republic of Iran (SCC, 2014) the Supreme Court of Canada conducts an extended review of foreign state immunity under the federal State Immunity Act in the context of a Bill of Rights and Charter s.7 appeal, the issue being whether these immunities survived allegations of torture. The case is extensive and bears examination beyond the passage below, see Kazemi Estate v. Islamic Republic of Iran (SCC, 2014):
[15] As was the case before the lower courts, the constitutionality of ss. 3 and 6 of the SIA is at issue in this appeal. The following provisions are relevant to this appeal:
State Immunity Act, R.S.C. 1985, c. S-18

2. In this Act,

....

“foreign state” includes

(a) any sovereign or other head of the foreign state or of any political subdivision of the foreign state while acting as such in a public capacity,

(b) any government of the foreign state or of any political subdivision of the foreign state, including any of its departments, and any agency of the foreign state, and

(c) any political subdivision of the foreign state;

....

3.(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.

....

5. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.

6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) any death or personal or bodily injury, or

(b) any damage to or loss of property

that occurs in Canada.
....

(1) State or Sovereign Immunity

[34] Functionally speaking, state immunity is a “procedural bar” which stops domestic courts from exercising jurisdiction over foreign states (J. H. Currie, Public International Law (2nd ed. 2008), at p. 365; H. Fox and P. Webb, The Law of State Immunity (3rd ed. 2013), at pp. 38-39; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 3, at para. 60; Germany v. Italy, at para. 58). In this sense, state immunity operates to prohibit national courts from weighing the merits of a claim against a foreign state or its agents (Fox and Webb, at p. 82; F. Larocque, Civil Actions for Uncivilized Acts: The Adjudicative Jurisdiction of Common Law Courts in Transnational Human Rights Proceedings (2010), at pp. 236-37).

[35] Conceptually speaking, state immunity remains one of the organizing principles between independent states (R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, at para. 43). It ensures that individual nations and the international order remain faithful to the principles of sovereignty and equality (Larocque, Civil Actions for Uncivilized Acts, at p. 236; C. Emanuelli, Droit international public: Contribution à l’étude du droit international selon une perspective canadienne (3rd ed. 2010), at p. 294). Sovereignty guarantees a state’s ability to exercise authority over persons and events within its territory without undue external interference. Equality, in international law, is the recognition that no one state is above another in the international order (Schreiber, at para. 13). The law of state immunity is a manifestation of these principles (Hape, at paras. 40-44; Fox and Webb, at pp. 25 and 76; Germany v. Italy, at para. 57).

[36] Beyond sovereign equality, other justifications for state immunity are grounded in the political realities of international relations in an imperfect world. One justification is that because it is “practical[ly] impossib[le]” to enforce domestic judgments against foreign states, domestic courts are not truly in a position to adjudicate claims in the first place (Fox and Webb, at p. 31). In this sense, it is counterproductive for a court to review the decisions of foreign states when doing so risks rupturing international relations without providing much hope of a remedy (ibid.; C. Forcese, “De-immunizing Torture: Reconciling Human Rights and State Immunity” (2007), 52 McGill L.J. 127, at pp. 133-34).

[37] Two other justifications for state immunity are comity and reciprocity (Forcese, at p. 135; Al-Adsani v. United Kingdom (2001), 34 E.H.R.R. 273, at para. 54). Just as foreign states do not want to have their executive, legislative or public actions called into judgment in Canadian courts, so too Canada would prefer to avoid having to defend its actions and policies before foreign courts.

[38] State immunity plays a large role in international relations and has emerged as a general rule of customary international law (Jones v. United Kingdom, Nos. 34356/06 and 40528/06, ECHR 2014, at para. 89; Fox and Webb, at p. 2). To be considered customary international law, a rule must be supported by state practice as well as opinio juris, an understanding on the part of states that the rule is obligatory as a matter of international law: Hape, at para. 46; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, at para. 207. The I.C.J. has confirmed that the principle of state immunity meets both of these requirements (Germany v. Italy, at paras. 55-56). Given the presence of both state practice and opinio juris, it is now settled and unequivocal that immunity is more than a courtesy; it has a firm place in the international legal landscape (Fox and Webb, at p. 2).

[39] The content of state immunity has evolved over time. In its earliest incarnation, state immunity was understood to be a complete and absolute bar on the ability of one state to subject another to any scrutiny (Fox and Webb, at p. 26). This absolute prohibition is thought to have derived from the historical personal imperviousness of “monarchs and their representatives” (Larocque, Civilized Actions for Uncivilized Acts, at p. 238). Over time, this immunity was transferred to the nation state as the head of state came to embody the state itself (ibid.). Any subjection of a foreign state to domestic courts was seen as incompatible with sovereign equality (J. H. Currie, C. Forcese, J. Harrington and V. Oosterveld, International Law: Doctrine, Practice and Theory (2nd ed. 2014), at pp. 539-41; Re Canada Labour Code, 1992 CanLII 54 (SCC), [1992] 2 S.C.R. 50, at p. 71).

[40] In the wake of the Second World War, the idea that a state and its officials could be immune from criminal proceedings appeared particularly incongruous in view of the atrocities that had been committed. The Nuremberg International Military Tribunal, in particular through art. 8 of its Charter, 82 U.N.T.S. 279, laid the foundations for a new approach to restricting state immunity in criminal proceedings. That approach has been evolving ever since.

[41] In parallel, the complete bar on bringing civil proceedings against a foreign state in domestic courts has also gradually relaxed. State immunity, once referred to as absolute immunity, slowly came to be qualified as “restrictive” immunity (Currie, Forcese, Harrington and Oosterveld, at p. 541). This transition was in part due to the greater role that states began to play in commercial and financial matters, and is reflected in the well-known distinction between the acta imperii of a state (acts of a governmental nature) and its acta gestionis (acts of a commercial nature) (Currie, at pp. 371-73; P. Ranganathan “Survivors of Torture, Victims of Law: Reforming State Immunity in Canada by Developing Exceptions for Terrorism and Torture” (2008), 71 Sask. L. Rev. 343, at p. 350). As the international community began to accept that not all acts or decisions of states were quintessentially “sovereign” or “public” in nature, but that, at times, states behaved as “private” actors, the idea of an absolute bar on suing a foreign state became obsolete (Larocque, Civil Actions for Uncivilized Acts, at pp. 239-41; Currie, Forcese, Harrington and Oosterveld, at p. 541; Fox and Webb, at p. 32). Many states, including Canada, have legislated this version of restrictive immunity through a commercial activity exception to state immunity (SIA, s. 5; Re Canada Labour Code, at p. 73; Schreiber, at para. 33; Kuwait Airways Corp. v. Iraq, 2010 SCC 40 (CanLII), [2010] 2 S.C.R. 571, at paras. 13-17).

[42] In Canada, state immunity from civil suits is codified in the SIA. The purposes of the Act largely mirror the purpose of the doctrine in international law: the upholding of sovereign equality. The “cornerstone” of the Act is found in s. 3 which confirms that foreign states are immune from the jurisdiction of our domestic courts “[e]xcept as provided by th[e] Act” (Bouzari v. Islamic Republic of Iran (2004), 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675 (C.A.), at para. 42; SIA, s. 3). Significantly, the SIA does not apply to criminal proceedings, suggesting that Parliament was satisfied that the common law with respect to state immunity should continue governing that area of the law (SIA, s. 18).

[43] When enacting the SIA, Parliament recognized a number of exceptions to the broad scope of state immunity. Besides the commercial activity exception, canvassed above, Canada has chosen to include exceptions to immunity in situations where a foreign state waives such right, as well as for cases involving: death, bodily injury, or damage to property occurring in Canada; maritime matters; and foreign state property in Canada (SIA, ss. 4, 6, 7 and 8; Currie, at pp. 395-400; Emanuelli, at pp. 346-49; J.-M. Arbour and G. Parent, Droit international public (6th ed. 2012), at pp. 500-8.3).

[44] In 2012, Parliament amended the SIA to include an additional exception to state immunity for certain foreign states that have supported terrorist activity (Arbour and Parent, at pp. 508.1-8.3). Under this new legislative regime, a foreign state may be sued in Canada if (1) the act that the state committed took place on or after January 1, 1985 and (2) the foreign state accused of supporting terrorism is included on a list created by the Governor in Council (SIA, s. 6.1; Library of Parliament, Legislative Summary of Bill C-10 (2012), at s. 2.2.2.1). Although no argument concerning the nature or constitutionality of the terrorism exception was advanced before this Court, it is nonetheless relevant to the case at hand. If nothing else, it reveals that Parliament can and does take active steps to address, and in this case pre-empt, emergent international challenges (Ranganathan, at p. 386), thereby reinforcing the conclusion, discussed below, that the SIA is intended to be an exhaustive codification of Canadian law of state immunity in civil suits. I also note in passing, with all due caution, that when the terrorism exception bill was before Parliament, it was criticized on numerous occasions for failing to create an exception to state immunity for civil proceedings involving allegations of torture, genocide and other grave crimes (Legislative Summary of Bill C-10, s. 2.1.4). Indeed, Private Member Bill C-483 proposed to create such an exception but it never became law. More broadly, the amendment to the SIA brought by Parliament in 2012 demonstrates that forum states (i.e. states providing jurisdiction) have a large and continuing role to play in determining the scope and extent of state immunity.

[45] It follows that state immunity is not solely a rule of customary international law. It also reflects domestic choices made for policy reasons, particularly in matters of international relations. As Fox and Webb note, although immunity as a general rule is recognized by international law, the “precise extent and manner of [the] application” of state immunity is determined by forum states (p. 17). In Canada, therefore, it is first towards Parliament that one must turn when ascertaining the contours of state immunity.

3. Crown Immunity

. Abernethy v. Ontario

Here in Abernethy v. Ontario (Ont CA, 2017) the immunity of Crown Attorneys is illustrated, to all claims except that of malicious prosecution:
The Crown Defendants

[7] After properly reviewing all the relevant principles relating to the striking of pleadings, and reading the Fresh as Amended Statement of Claim as generously as he could in favour of the plaintiff, with due allowances for drafting deficiencies, the motion judge concluded that Ms. Abernethy’s claims against the Crown Defendants disclosed no reasonable cause of action and that it was plain and obvious they could not succeed. He also held – correctly in our view – that, with the exception of a claim for malicious prosecution (which Ms. Abernethy acknowledged before him and us that she was not pursuing), the Crown Attorney defendants were protected by Crown immunity under the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 8 and by common law Crown immunity; and that the remaining Crown Defendants were protected by statutory immunity under the Police Services Act, R.S.O. 1990, c. P.15, ss. 21(9) and 26.1(12).

....

[12] The Crown Attorneys are protected from suit against them by the statutory and common law immunity outlined above. Ms. Abernethy candidly conceded that she is not asserting a claim for malicious prosecution. It follows that no action can be brought against these defendants in their personal capacities in these circumstances. See Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170; Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339; Thompson v. Ontario (1998), 1998 CanLII 7180 (ON CA), 113 O.A.C. 82 (C.A.); Gilbert v. Gilkinson (2005), 2005 CanLII 46386 (ON CA), 205 O.A.C. 188 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 67. The defendants Rippey and McNeilly are protected by the statutory immunity provided by the Police Services Act.
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