these events.
¶ 17 However, the plaintiff is here seeking damages for torture. Clearly, he can not bring such an action in Iran, given the facts alleged. Given this reality, I do not feel it appropriate to decide this case on conflicts rules alone. It may be that the Canadian courts will modify the rules on jurisdiction and forum non conveniens where an action for damages for torture is brought with respect to events outside the forum. Therefore, I turn to the issue of state immunity.
The State Immunity Act
¶ 18 Historically, in accordance with customary international law, foreign states were granted absolute immunity from proceedings in the courts of other states. This practice was founded on principles of sovereign equality of states and non -interference of states in the internal affairs of another state. However, over the course of the last century, as certain exceptions developed, the doctrine of restrictive immunity has replaced absolute immunity. Section 3 of the Canadian State Immunity Act makes this clear. Essentially, foreign states are immune from civil suits in Canadian courts, unless one of the exceptions in the Act applies, or the state waives its immunity (s. 4). However, the number of exceptions to immunity is limited in the Act. Most notable in the Canadian legislation are the commercial activity exception found in s. 5 and the tort exception in s. 6.
¶ 19 The plaintiff also seeks to invoke s. 18, dealing with penal proceedings. Section 18 of the Act states, "This Act does not apply to criminal proceedings or proceedings in the nature of criminal proceedings". The plaintiff argues that because he seeks punitive damages, as well as compensatory damages, this is a proceeding in the nature of criminal proceedings, and s. 18 applies.
¶ 20 Such a characterization of these proceedings is incorrect. Punitive damages are a civil remedy which can be awarded to deter conduct of the defendant that is "so malicious, oppressive and high - handed that it offends the court's sense of decency" (Hill v. Church of Scientology of Toronto, [1995] 2
S.C.R. 1130 at paragraph 196). However, Cory J. went on to say that while the purpose of punitive damages is to deter the defendant and others from acting in this manner, punitive damages should only be awarded where the combined award of general and aggravated damages would be insufficient to achieve the goals of punishment and deterrence.
¶ 21 Thus, the punitive damage claim can only be determined after a finding of civil liability and a determination of the compensatory damages. Therefore, despite the deterrent aspect of punitive damages, they remain a remedy in a civil proceeding. The possibility that they may ultimately be awarded does not change the character of those proceedings. Therefore, s. 18 has no application here.
The Commercial Activity Exception
¶ 22 The commercial activity exception arose as a response to the increasing participation of states in the marketplace. Essentially, states continue to accord immunity in civil proceedings to foreign states provided that the acts to which the proceedings relate are an exercise of sovereign authority (acta iure imperii). Immunity is not accorded when the act of the foreign state is characterized as private or commercial (acta iure gestionis).
¶ 23 Section 6 of the Canadian Act sets out the exception for commercial activity:
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.