Iran condemns Ontario court's ruling that destruction of Flight PS752 was a terrorist act

Iran's foreign ministry has denounced as "shameful" an Ontario Superior Court of Justice ruling that found Iran intentionally shot down Ukraine International Airlines Flight 752 in an act of terrorism.

Canadian terrorism law scholars say there are flaws in Ontario court's ruling

Iran's spokesperson Saeed Khatibzadeh said the Ontario Superior Court of Justice decision that found Iran intentionally shot down Flight PS752 "is shameful for a country that claims to follow the rule of law." (Ebrahim Noroozi/Associated Press)

Iran's foreign ministry has denounced as "shameful" an Ontario Superior Court of Justice ruling that found Iran intentionally shot down Ukraine International Airlines Flight 752 in an act of terrorism.

The judge issued the judgment Thursday against Iran in a civil lawsuit filed by four families who lost loved ones in the destruction of the plane shortly after takeoff in Tehran on Jan. 8, 2020.

In a statement issued today, ministry spokesperson Saeed Khatibzadeh said the court's decision lacked legitimate evidence. 

"This verdict has no basis and does not consist of any objective reasoning or documentation," said the statement, written in Farsi.

"This behaviour of the Canadian judge, by following orders and political cliches, is shameful for a country which claims to follow the rule of law."

The Islamic Revolutionary Guard Corps (IRGC) shot down PS752 with two surface-to-air missiles, killing all 176 people aboard, including 55 Canadian citizens and 30 permanent residents.

Ontario Justice Edward Belobaba ruled Thursday that, based on the balance of probabilities, the plaintiff established that what happened constitutes "terrorist activity" and "directly caused the deaths of all onboard." 

Iran did not defend itself in court, making this a default judgment. 

Khatibzadeh argued Canada does not have jurisdiction to deal with victims' families lawsuits. The lawyer representing the plaintiffs, meanwhile, said the Ontario court did have jurisdiction under the Justice for Victims of Terrorism Act. 

Global Affairs Canada has appointed Payam Akhavan as a senior adviser on the PS752 case. 

Akhavan, a former United Nations prosecutor on genocide in the former Yugoslavia, has experience working in the International Court of Justice and the World Aviation Organization.

Mourners place candles and photographs during a vigil for Flight PS752 victims outside the Alberta Legislature Building in Edmonton on Jan. 8, 2020. (Codie McLachlan/Canadian Press )

'That's dangerous for the rule of law'

Some Canadian terrorism law experts say that while they do not condone or excuse the actions of Iran's Revolutionary Guard Corp or the state of Iran, there are issues with the Ontario judge's decision.

Leah West is an assistant professor at the Norman Paterson School of International Affairs at Carleton University who specializes in national security law.

She said the judge "contorted" the law by "cherry-picking" his way to finding the aircraft was destroyed in an act of terrorism and that it's a cause for action under the Justice for Victims of Terrorism Act.

"While his motivations for doing all that may be noble, that's dangerous for the rule of law," West told CBC News. 

West said that while she sympathizes with the plaintiffs — four victims' families — she along with other terrorism law scholars have found several legal flaws in the judgment.

"We can't respond to the actions of authoritarian states by deviating from our own legal principles and diminishing our own democratic values," said West. "Which is what's happening in this decision."

Tipping the scales of justice

The lawyer behind the lawsuit, Mark Arnold, held a press conference today and said his team put enough information before the court to tip the scales.

That information, he said, included previously published statements and reports by Iran, Canada's former special adviser to Flight PS752 Ralph Goodale, and UN special rapporteur Agnès Callamard. He also said his team had three experts approved by the court.

"If you read the decision, the judge makes reference to proof on a balance of probability. Think of the scales of justice," said Arnold. "All we needed to do was tip it to more than 50 per cent and that's what we did."

Since the lawsuit was not a criminal case, the plaintiffs did not have to prove beyond a reasonable doubt that the plane was deliberately shot down. Representatives of Iran were not in court to refute any of it.

"I suspect Iran was not there because it would have to fully disclose all of their documents and subject themselves to being cross-examined," Arnold said. 

WATCH | Lawyer Mark Arnold on seizing Iranian assets in Canada and internationally:

Ontario court: Iran's shootdown of Flight PS752 was intentional and act of terrorism

2 years ago
Duration 5:35
Lawyer Mark Arnold says once compensation for the families is determined, his team will look to seize Iranian assets in Canada and internationally.

'I was crying. I was so happy'

Mehrzad Zarei is one of the plaintiffs; he lost his 17-year-old son Arad on the plane. Zarei said he was overwhelmed by the judge's decision.

"I could not even stand on my feet," Zarei told the press conference. "I was crying. I was so happy for the judgment."

Arad Zarei was "the apple of my eye and his energetic demeanour and caring personality left a lasting impression on his classmates and many friends," his father Mehrzad Zarei said. (Submitted by Ali Ehassi )

Another court proceeding will be held at a future date to determine the amount of compensation for victims' families. Arnold said his team would be trying to go after Iran's assets in Canada and internationally, including oil tankers abroad. 

Lawyer and human rights activist Kaveh Shahrooz said he hopes the decision doesn't interfere with Canadian government efforts to take the case to the International Court of Justice in the future.

"I hope such a court wouldn't view this case as a replacement for an international judgment that finds Iran responsible for the killing of 176 innocent people," said Shahrooz.

The Canadian government is expected to come out with its own forensic examination report into PS752 that legal experts say will hold more weight.

Watch:  Concerns over implications of Ontario court ruling that said downing of PS752 was terrorist act:

Concerns over implications of Ontario court ruling that said downing of PS752 was terrorist act

2 years ago
Duration 8:48
Lawyer and human rights activist Kaveh Shahrooz says it will be difficult to collect on this judgment, and that "there are going to be some complexities, when families, beyond the four plaintiffs in this case, try to seek justice in another forum."

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Ashley Burke

Senior reporter

Ashley Burke is a senior reporter with the CBC's Parliamentary Bureau in Ottawa who focuses on enterprise journalism for television, radio and digital platforms. She was recognized with the Charles Lynch Award and was a finalist for the Michener Award for her exclusive reporting on the toxic workplace at Rideau Hall. She has also uncovered rampant allegations of sexual misconduct in the Canadian military involving senior leaders. You can reach her confidentially by email: ashley.burke@cbc.ca or https://www.cbc.ca/securedrop/