Noble Cause, Terrible Reasoning: Zarei v Iran, 2021 ONSC 3377
Update: On Friday, June 4th, Justice Belobaba issued a correction to his judgement. He replaced para 27 which noted that “the most relevant” terrorism offence was s. 83.02 (terrorist financing), with the remark that “Section 83.22(1) is relevant herein.” The referenced provision makes it an offence to instruct any person to carry out a terrorism offence. No other changes to the decision were made despite the fact that the terrorism offence Iran was found to have committed by the Court changed. The new offence intuitively makes more sense than terrorist financing, and evidence that the flight was shot down intentionally may assist in establishing that the offence of instruction is made out. Nevertheless, we believe the fact that this error was made and corrected without any need to further amend the judgment reinforces our critique that the Court did not engage in an analysis of the elements of the alleged offence that triggers a cause of action under the JVTA. If the error was simply one of cut and paste, and the judge always meant to consider instruction (despite it not being raised in the Plaintiff’s written submissions), the fact remains that the elements of the offence were never identified nor was there any analysis of whether the evidence satisfies those elements.
On Thursday, Justice Edward Belobaba released a much-anticipated decision for those who lost loved ones on Ukraine International Airlines Flight PS 752. Zarei v Iran, 2021 ONSC 3377, is an action brought by four of the victims’ family members against the state of Iran pursuant to the Justice for Victims of Terrorism Act (JVTA) for monetary damages. It is not the first time Iran and the IRGC have been caught up in legal proceedings under the JVTA that went against them.
We sympathize deeply with the families’ efforts to get justice for those who died in January 2020, when Iran’s Islamic Revolutionary Guard Corps (IRGC) fired two missiles at the aircraft shortly after the flight departed Tehran for Kyiv, killing all 167 passengers and crew on board. It took several days for Iran to take responsibility, ultimately claiming that the passenger jet was mistaken for a cruise missile [para 11], a claim that as noted in the judgement has been rejected by two inquiries [paras 40 and 41], including one by (now High Commissioner to the UK) and Special Advisor Goodale in his report to the Prime Minister.
It should go without saying that we also do not condone or excuse the actions of the IRGC or the state of Iran. Canadian law leaves little doubt that Iran does sponsors terrorism. Indeed, Canada has made it quite clear where it stands on the actions of the IRGC: the IRGC’s Qods Force is a listed terrorist entity under Canadian law; and some IRGC operations are sanctioned under the Special Economic Measures Act; as such, Canada has certainly been clear that this is an organization that has engaged and is capable of supporting terrorism. However, regardless of how we feel about the IRGC, as terrorism law scholars, we find the legal analysis in the Court’s decision unconvincing for several reasons. This post reflects our initial response to the legal analysis in the decision; it does not consider the broader implications of this rule for Canada- though we may have more to say on that in the days to come.
The JVTA
In 2012, Parliament enacted an unusual federal civil cause of action, designed to “deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters.” Under s. 4 of the JVTA
Any person that has suffered loss or damage in or outside Canada on or after January 1, 1985 as a result of an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code [that, is the provisions described above creating terrorism offences], may, in any court of competent jurisdiction, bring an action to recover an amount equal to the loss or damage proved to have been suffered by the person and obtain any additional amount that the court may allow from any of the following:
(a) any listed entity, or foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or other person that committed the act or omission that resulted in the loss or damage; or
(b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or listed entity or other person that — for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a) — committed an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.
Per the State Immunity Act (SIA), Iran, along with Syria,is listed as a foreign state sponsor of terrorism. As such, the plaintiffs may bring a claim that Iran’s attack on Flight 752 was an act of terrorism. If the plaintiffs establish this fact, they are permitted to sue the state for damages. Suing a state for its actions would typically be prohibited by the rule of state immunity under customary international law and the SIA, which codifies these principles within Canadian law, subject to certain exceptions like the one listed above.
The Decision
In his decision, Justice Belobaba correctly notes that to find that the attack on the flight was an act of terrorism by Iran, the plaintiffs must satisfy the statutory requirements set out in the SIA, the JVTA and the Criminal Code [para 6].
The Court starts its analysis by finding, without discussion or explanation, that the IRGC’s actions violated s. 83.02 of the Criminal Code, the provision that criminalizes terrorism financing which the court found “is the most relevant” in this case [para 27].
Justice Belobaba then identifies the provision defining terrorist activity (a predicate for terrorist financing under 83.02), which includes offences implementing the Convention for the Suppression of Unlawful Acts against the Safety of Civilian Aviation [para 28]. Under the Convention, it is an offence to do “damage to an aircraft in service that renders the aircraft incapable of flight or that is likely to endanger the safety of the aircraft in flight.”
Importantly, included in what counts as a “terrorism offence” under the Criminal Code is any “indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity.” Meaning violating the Safety of Civilian Aviation Convention is not only terrorist activity but is its own terrorism offence.
One might ask, if shooting down an aircraft is a terrorism offence, why is the Court talking about terrorism financing? The answer—though it is not clearly explained in the judgement—is that only certain terrorism offences committed by a state (those found in sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code) trigger a cause of action under the JVTA. Violating the Safety of Civilian Aviation Convention (along with a whole host of other terrorism offences) is not one of these offences and thus something else is necessary to trigger a remedy under the JVTA, in this case terrorist financing.
We infer (again because he never explains his reasoning) that Justice Belobaba has considered these separate offences because he must satisfy himself that the facts establish the actus reus (the necessary act) of the terrorism financing offence, which here means that Iran “directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out” a violation of the Safety of Civilian Aviation Convention. In summary, Justice Belobaba uses s. 83.02 as the terrorism offence hook to the JVTA, and the Safety of Civilian Aviation Convention violation is the satisfaction of the predicate, or necessary underlying offence.
It would have been interesting to have heard why section 83.2 of the Criminal Code, commission of an offence (shooting down a civilian plane) for a terrorist group (IRGC), was not the more logical route here, ensuring that the focus was on the actions in shooting down flight 752 rather than the financing thereof. IRGC is not a listed entity in Canada but could potentially meet the definition of a terrorist group under s.83.01(1)(a): an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity.
Back to the decision, Justice Belobaba tells us that the law requires him to consider the mens rea (the mental element) of the offence, though technically in this case it should have been the mens rea of terrorist financing and the predicate offences, both of which must be proved here. Again, the decision is confusing because the offences are not analyzed or parsed out; instead, Justice Belobaba merely asserts that it is necessary to determine “whether the missile attacks were intentional” [para 34]—which is not the mens rea of terrorist financing (that would be “wilfully” collects or provides property intending that it be used…). After canvassing the evidence adduced by the plaintiffs [report which raise a series of questions about impartiality and methodology] he finds that the IRGC’s actions were intentional [para 44].
There is a larger debate to be had here about the JVTA and the requirement that a criminal offence be proven on a civil standard, usually without access to the individuals responsible for the offences. As one of us (Nesbitt) has written in the context of United Nations commissions of inquiry, such general discussions of mens rea of criminal offences disassociated from a specific individual tend to be weak to unconvincing at best, and seriously controversial in many situations. Even were the relevant mens rea here intentionally shooting down a plane, the legal process of both having to prove intention and a criminal violation in a civil trial without access to the individual(s) who hold intention (or not) has always been a conceit of the JVTA that is bound to attract controversy. This concern is arguably more pronounced in the context of the JVTA, which requires criminal terrorism offences be proven. As we’ve written elsewhere, terrorism offences notoriously turn less on the action (actus reus), and more on the mens rea and motive of the person committing the action. Navigating this difficult legal terrain—proving offences that turn on motive and mens rea without, generally, access to the type of information that would inform that discussion will usually be a tricky rope to walk.
In any event, having satisfied himself that the elements of one of the terrorism offences enumerated in s. 4 of the JVTA is made out, Justice Belobaba turns to one of the two exceptions in the definition of terrorist activity. Under s. 83.01 of the Criminal Code, terrorist activity does not include:
1) “an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict”;
OR
2) “activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.”
If Iran’s actions satisfy one of these exceptions then there is no “terrorist activity” to finance.
Unfortunately, Justice Belobaba cherry-picks from the Criminal Code, deciding that the only question to resolve is whether the actions of Iran occurred during an armed conflict [para 34]. It is somewhat unclear whether this is because the “armed conflict exception” is conflated with the activities of a military force exception (they are separate), or whether Justice Belobaba finds only the former of relevance (it is not). Either way, the important and clearly relevant activities of military forces defence is an issue that had to be addressed in order to come to a proper determination of the case on its merits. (The scope and application of this defence is a subject for another Blog, but importantly finds its roots in art 19 of the International Convention for the Suppression of Terrorist Bombings).
As for the armed conflict exception, Justice Belobaba resolves this extremely complex (and contested) international legal issue not by calling on experts in international law, but by canvassing the non-legal evidence adduced by the plaintiffs. He concludes that there was no armed conflict in the region when the flight was shot down.
One final comment is in order, both with respect to the JVTA and this particular judgement. That is, it was always virtually guaranteed that states would not respond to JVTA claims in Canadian courts, as was the case here with Iran. On the one hand, one might then forgive a judgement for failing to engage with relevant defences, for Iran was not there to present them. On the other hand, the JVTA created a regime where this was always a likely outcome; it is disingenuous to create a regime where one party is highly likely to be absent and then attempt to explain away poor legal reasoning based on the absence of a defendant. More to the point, in the case at hand the Criminal Code spells out defences that must be considered, where relevant, when evaluating its terrorism offences. By incorporating terrorism offences in the Criminal Code, the JVTA likewise necessarily incorporates those defences; in considering the relevant terrorism offences (in this case, oddly, terrorist financing), the Court must also consider the legislated defences, where relevant, regardless of whether or not Iran was at the table.
Conclusion
In the end, Justice Belobaba picks and chooses his way to a finding that the shooting down of PS 752 constitutes terrorist activity and a cause of action under the JVTA.
While we accept that the motivations for contorting the law in this way may be noble, the result is dangerous for the rule of law. When responding to the horrific acts of authoritarian states, Canadian courts should not deviate from legal principles at the risk of diminishing our own democratic values.