Who can Sampson sue?
Ed Morgan
This commentary first appeared in the National Post on September 12, 2003
Can Sampson sue the philistines who tried to rob him of his strength? And what of his own nation that, he claims, failed to come to his aid?
William Sampson's hair-raising experiences in a Saudi Arabian prison and his release from that gruesome detention, coming on the heels of Zahra Kazemi's brutal death while in Iranian custody, have posed serious challenges for Canadian foreign policy. More than that, however, these traumatic events raise serious questions for Canadian lawmakers, judges and, indeed, all citizens. If our passports, our maple leaf emblems, and our consulates do not protect us, will the courts step in to provide some recourse?
If we were writing a Canadian book of Judges, the Sampson story would have to be toward the end. While the long arm of Canadian law started off with promise some 15 years ago with the initial enactment of federal legislation addressing war crimes and crimes against humanity, it has gone downhill since then. Ten years ago, in its renowned Finta judgment, the Supreme Court of Canada refused to place blame on a foreign police officer, even if he were engaged in atrocities, if his conduct could be seen to simply reflect the evil society around him. When in Philistia, or, in Finta's case, Romania ...
More recently, the Ontario Superior Court found that the government of Iran was immune from a claim launched by an Iranian-Canadian who had been held incommunicado and tortured in a Tehran prison for nearly a year. The plaintiff, Houshang Bouzari, had been a successful industrialist in his native country's oil industry until he had a commercial parting of the ways with the son of former president Hashemi Rasfanjani. Apparently, when a son of the regime asks for a cut in an Iranian oil deal, the diplomatic answer is "yes," not "no." Bouzari testified in a Toronto courtroom last year that he learned that lesson the hardest possible way.
Despite the fact that Bouzari and his family paid a $3-million ransom for his release, his claim for reimbursement was dismissed. In the words of Justice Kathy Swinton, "there is not always a civil remedy for an injury done, even one so serious as the one alleged." Had Bouzari been in the United States he could have sued under federal legislative provisions that effectively waive the immunity of foreigners, including foreign sovereign states, for acts of torture and terror. Interestingly, it was Bill Graham, a backbench MP at the time, who, some 10 years ago, suggested that Canada should consider similar legislation. Today, however, the Foreign Minister is of the view that authorizing such judicial activism tends to bedevil foreign policy.
To be fair, the Canadian courts are not alone in their deference to foreign states. The Bouzari case follows the logic set out by the British courts in a claim brought against the government of Kuwait. In the early 1990s, a British subject named al-Adsani mysteriously came into possession of a sexually explicit videotape starring certain members of the Kuwaiti royal family. The film must have been a good one -- according to the English Court of Appeal, it earned al-Adsani two thumbs and an electric prod up. Nevertheless, the court dismissed his case, opining that England's law of civil liability has not yet reached the point where it can entertain claims against foreign agents for their conduct in the foreign state.
The unanswered question is whether one can sue one's own government for failing to get its citizen out of a foreign mess. Canadians have the right to consular visitations and other routine services if imprisoned abroad, but there is little precedent for extending a government's responsibility beyond that. The United States, it may be recalled, invaded Granada in order to "rescue" American medical students studying there, and Israel sent its air force to extract its citizens from Entebbe, but there is nothing in international law to suggest that a country must go to such drastic measures. Even the more commonplace economic and political pressures that can be brought to bear on foreign countries are typically considered to be within the policy discretion of governments. One imprisoned citizen's plight, regardless of how sympathetic the case, cannot compel a foreign policy change that is not otherwise in the national interest.
Canadians, however, enjoy certain constitutional rights, and it remains to be seen in some forthcoming case whether the government must act to ensure, if it can, that Canadians are not abused abroad in a way that cannot be done at home. There may be times where the government's silence in the face of known and preventable torture is tantamount to collusion in that very abuse.
In addition, while the government may be under no positive duty to rescue its citizens, once it starts down that road it is at least under a legal duty to act competently. It remains to be seen whether a reasonable standard of consular intervention and care can be set by the courts. While Sampson's case against the House of Saud sounds compelling, the courts will no doubt be cautious not to let him bring down the entire house of Canadian law.
