Stephan Kazemi has spent six years seeking justice in the death of his mother, Zahra. He changed his last name to honour her (he was formerly known as Stephan Hashemi). ((Jonathan Hayward/Canadian Press))

The son of a slain Canadian-Iranian photojournalist will be in Quebec court Wednesday to sue his mother's home country for her violent 2003 death in a Tehran prison, in a civil case legal experts say will test Canada's immunity laws.

Stephan Kazemi is seeking $17 million in damages for the arrest, torture and killing of his mother, Zahra Kazemi, who died in 2003 while in custody in a Tehran prison.

No criminal charges have ever been laid in Kazemi's death, and Iran contends it can't be sued because it is protected by Canada's State Immunity Act.

But Kazemi says he's waited long enough for justice to be served in his mother's death.

"It's really about time," he told CBC News. "I think more and more people are attentive to this issue, and I believe my mother has succeeded to raise this matter."

Kazemi, 54, was arrested outside a Tehran prison in June 2003, as she was photographing relatives of detainees who were holding vigil outside the detention centre.

The Montreal resident was never formally charged with a crime. She died in prison less than a month after her arrest.  Iranian authorities reported her death was accidental and caused by a stroke. But other reports suggested Kazemi showed physical signs of torture, severe beating, head trauma and rape prior to her death.

Legal observers say Kazemi has a strong argument for civil remedies given international laws and Canada's Charter of Rights.


Zahra Kazemi, shown in an undated passport photo, died July 11, 2003 in prison in Tehran. ((Canadian Press) )

Stephan Kazemi's lawyer, Kurt Johnson, said Canada is the final stop for any legal justice in this case.

"We intend to show to the court that it would be impossible to pursue a recourse before the courts of Iran, because the courts of Iran are incapable of providing him a fair hearing by an independent and impartial tribunal," he said.

"If we can't do it here, we're in a legal black hole, and that can't be an acceptable solution in a country where we have a protected right, the right to a fair hearing."

Kazemi is also challenging Canada's State Immunity Act, which restricts the conditions under which a foreign government can be sued on Canadian soil.

Human rights lawyer Matt Eisenbrandt, who is also working on the case, says the immunity act conflicts with other Canadian laws.

"Applying immunity here would violate the Charter of Rights and Freedoms, and the Bill of Rights," said Eisenbrandt, who is the legal co-ordinator at the Canadian Centre for International Justice.

Amnesty International is also seeking changes to the law.

But lawyer Bernard Letarte, who is representing the Canadian government in the case, defended the legislation.

"The act as it stands right now is constitutional and in conformity with international law as well, and that's the position we planned to develop over the next few days," Letarte said.

Private member's bill aims to change law

Those fighting the case in Kazemi's name are also applauding a private member's bill aimed at amending the act to allow Canadian victims of torture to sue foreign governments.

Liberal MP Irwin Cotler presented the legislation last week at the House of Commons.

Two other Canadians have tried and failed to sue foreign governments for torture.

Maher Arar and Houshang Bouzari failed because Canadian courts have ruled they did not have the right to sue foreign states under the State Immunity Act.

Arar, a Syrian-Canadian engineer, was tortured in a Syrian prison for a year over false allegations of terrorist involvement. A Canadian inquiry ruled he had been tortured and the government awarded Arar a $10.5-million settlement.

Bouzari, an Iranian-Canadian, attempted to sue the Iranian government for torture in that country.