Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62
Karlheinz Schreiber Appellant
v.
The Federal Republic of Germany and
the Attorney General of Canada Respondents
and
United States of America and
Amnesty International Interveners
Indexed as: Schreiber v. Canada (Attorney General)
Neutral citation: 2002 SCC 62.
File No.: 28543.
2002: April 16; 2002: September 12.
Present: McLachlin C.J. and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
International law -- Sovereign immunity -- Attornment to Canadian court’s jurisdiction exception -- Germany initiating extradition process against Canadian citizen -- Citizen arrested by RCMP and spending eight days in jail -- Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada -- Whether Germany immune from jurisdiction of Canadian courts -- Whether attornment to Canadian court’s jurisdiction exception applicable so as to deprive Germany of its immunity from instant action -- Whether Germany waived its immunity from lawsuits in Canadian courts when it initiated extradition process -- State Immunity Act, R.S.C. 1985, c. S-18, s. 4(2)(b).
International law -- Sovereign immunity -- Personal injury exception -- Scope of exception -- Germany initiating extradition process against Canadian citizen -- Citizen arrested by RCMP and spending eight days in jail -- Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada -- Whether Germany immune from jurisdiction of Canadian courts -- Whether personal injury exception applicable so as to deprive Germany of its immunity from instant action -- Whether exception distinguishes between jure imperii and jure gestionis acts -- Whether exception applies only to claim of physical injury -- State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a).
Statutes -- Interpretation -- Bilingual statutes -- Personal injury exception to state immunity -- Meaning of expression “personal injury” -- Whether French version best reflects common intention of legislator found in both versions -- Whether amendment made by Federal Law-Civil Law Harmonization Act to English version substantively changed the law -- Purpose of harmonization legislation -- State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a) -- Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121.
In 1999, a court in the Federal Republic of Germany issued a warrant for the appellant’s arrest. Pursuant to the Extradition Treaty between the two countries, Germany then requested that Canada provisionally arrest the appellant for the purpose of extraditing him in relation to tax evasion and other offences. A provisional arrest warrant was granted and the appellant was arrested. He spent eight days in jail before being released on bail. The appellant commenced an action against Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada. Germany’s request that the action be dismissed on the basis of its sovereign immunity under the State Immunity Act was granted by the Ontario Superior Court. The Court of Appeal upheld the decision.
Held: The appeal should be dismissed. The exceptions in ss. 4 and 6(a) of the State Immunity Act did not deprive Germany of the immunity from actions in Canadian courts to which it is entitled under s. 3(1) of the Act.
States have incorporated the principle of sovereign immunity into their domestic legal order in two ways: domestic courts do not exercise jurisdiction in actions brought against foreign states; and states have allowed foreign states a privilege, as a matter of comity, to appear as plaintiffs in domestic courts, if they so choose. Despite the increasing number of exceptions, the general principle of sovereign immunity remains an important part of the international legal order, except when expressly stated otherwise, and there is no evidence that an international peremptory norm has been established to suggest otherwise. Sovereign immunity has been incorporated into the Canadian domestic legal order through the enactment of the State Immunity Act and can be raised by a defendant state in a preliminary motion, on summary judgment, or at trial.
Under s. 4 of the State Immunity Act, a foreign state is not immune from the jurisdiction of a Canadian court if it initiates the proceedings in the court. Here, Germany did not initiate the judicial proceedings. It initiated the extradition process, which led to the Minister of Justice authorizing the Attorney General to apply for an arrest warrant. The appellant’s tort action against Germany is separate and distinct from the extradition process, and any step taken in one does not amount to a step taken in the other. It would be contrary to the concepts of comity and mutual respect between nations to hold that a country that calls upon Canada to assist in extradition only does so at the price of losing its sovereign immunity and of submitting to the domestic jurisdiction of Canadian courts in matters connected to the extradition request, and not only in respect of the extradition proceeding itself.
Nor does the “personal injury” exception under s. 6(a) of the State Immunity Act apply to limit Germany’s immunity. Whatever mental distress, denial of liberty and damage to reputation the appellant claims to have suffered from wrongful arrest and imprisonment, it did not constitute “personal injury” within the meaning of s. 6(a). The term “personal injury” in that provision applies only to claims of physical injury. Section 6(a) extends to mental distress and emotional upset only insofar as they are linked to a physical injury. The “personal injury” exception to immunity does not depend on the nature of the conduct underlying the claim. It is applicable to both jure imperii and jure gestionis acts. An alternate interpretation would deprive the victims of the worst breaches of basic rights of any possibility of redress in national courts, which would jeopardize potentially important progress in the protection of the rights of the person, at least in Canada. Although some forms of incarceration may conceivably constitute international human rights violations, incarceration is a lawful part of the Canadian justice system. Without evidence of physical harm, lawful incarceration cannot amount to compensable mental injury under s. 6(a). While mental injury may be compensable in some form at international law, the right to the protection of mental integrity and to compensation for its violation has not risen to the level of a peremptory norm of international law which would prevail over the doctrine of sovereign immunity and allow domestic courts to entertain such a claim in the circumstances of this case.
There is no conflict between the principles of international law, at the present stage of their development, and those of the domestic legal order. International law sets out some general principles with respect to the origins and uses of sovereign immunity, but the domestic law sets out very specific exceptions to the general rule of sovereign immunity in the State Immunity Act. The questions at stake fall within the purview of the domestic legislation, and the case turns on the interpretation of the bilingual versions of s. 6(a) rather than the interpretation of international law principles.
The proper way to construe s. 6(a) is to read its words in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the State Immunity Act, its object and the intention of Parliament. Where the meaning of the words in the two official versions differs, the task is to find a meaning common to both versions that is consistent with the context of the legislation and the intent of Parliament. Here, the terms “death” or “personal injury” found in the English version allow the possibility of non-physical injury to be captured within the s. 6(a) exception, while the civil law concept of “dommages corporels” found in the French version does not. Since the French version is the clearer and more restrictive version of the two, it best reflects the common intention of the legislator found in both versions. It signals a legislative intent to create an exception to state immunity which would be restricted to a class of claims arising out of a physical breach of personal integrity. This type of breach could conceivably cover an overlapping area between physical harm and mental injury, such as nervous stress; however, the mere deprivation of freedom and the normal consequences of lawful imprisonment would not bring the appellant within s. 6(a). This interpretation of s. 6(a) is consistent with the concept of “préjudice corporel” and the classifications of damages in Quebec civil law. The amendment made to s. 6(a) by the Federal Law-Civil Law Harmonization Act, No. 1 did not substantively change the law. This amendment, which adds the expression “or bodily injury” to the phrase “any death or personal injury” in the English version of s. 6(a), was made to clarify the limited scope of the exception for the anglophone civil law audience by using wording that better reflects the civil law tradition.
Cases Cited
Approved: United States of America v. Friedland (1999), 182 D.L.R. (4th) 614; distinguished: Walker v. Bank of New York Inc. (1994), 16 O.R. (3d) 504; referred to: Jaffe v. Miller (1993), 13 O.R. (3d) 745; Re Canada Labour Code, [1992] 2 S.C.R. 50; Gouvernement de la République démocratique du Congo v. Venne, [1971] S.C.R. 997; R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827; Daniels v. White, [1968] S.C.R. 517; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Lamy, [2002] 1 S.C.R. 860, 2002 SCC 25; R. v. Mac, [2002] 1 S.C.R. 856, 2002 SCC 24; Tupper v. The Queen, [1967] S.C.R. 589; R. v. Dubois, [1935] S.C.R. 378; Maurice Pollack Ltée v. Comité paritaire du commerce de détail à Québec, [1946] S.C.R. 343; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; Regent Taxi and Transport Co. v. Congrégation des Petits Frères de Marie, [1932] A.C. 295; Montréal (Ville de) v. Tarquini, [2001] R.J.Q. 1405; Dubé v. Québec (Procureur général), [1997] R.R.A. 555; Michaud v. Québec (Procureur général), [1998] R.R.A. 1065; Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd., [1973] S.C.R. 596.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7.
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 1.
Civil Code of Lower Canada, arts. 2260a, 2262.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 3, 1457, 1458, 1614, 2930.
European Convention on State Immunity, 11 I.L.M. 470 (1972), Art. 11.
Extradition Act, S.C. 1999, c. 18, s. 13.
Extradition Treaty between Canada and Germany, Can. T.S. 1979 No. 18.
Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121.
State Immunity Act, R.S.C. 1985, c. S-18, ss. 3(1), 4, 5, 6 [am. 2001, c. 4, s. 121].
State Immunity Act, S.C. 1980-81-82-83, c. 95.
Authors Cited
Arbour, J.-Maurice. Droit international public, 3e éd. Cowansville, Qué.: Yvon Blais, 1997.
Atiyah’s Accidents, Compensation and the Law, 5th ed. By Peter Cane. London: Butterworths, 1993.
Baudouin, Jean-Louis, et Patrice Deslauriers. La responsabilité civile, 5e éd. Cowansville, Qué.: Yvon Blais, 1998.
Brownlie, Ian. Principles of Public International Law, 5th ed. Oxford: Clarendon Press, 1998.
Canada. Department of Justice. Bijural Terminology Records. Ottawa: Department of Justice, 2001.
Canada. Department of Justice. The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, booklet 4 (Bijuralism in Canada: Harmonization Methodology and Terminology) by Louise Maguire Wellington. Ottawa: Department of Justice, 2001.
Canada. House of Commons. House of Commons Debates, vol. 137, 1st sess., 37th Parl., May 7, 2001, p. 3640.
Canada. Senate. Debates of the Senate, vol. 139, 1st sess., 37th Parl., February 7, 2001, pp. 83-88, April 4, 2001, pp. 572-76, and April 26, 2001, pp. 684-90.
Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 12, April 9, 1981, p. 12:9.
Cooper-Stephenson, Kenneth D. Personal Injury Damages in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1996.
Cooper-Stephenson, Kenneth D., and Iwan B. Saunders. Personal Injury Damages in Canada. Toronto: Carswell, 1981.
Côté, Pierre-André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Council of Europe. Explanatory Reports on the European Convention on State Immunity and the Additional Protocol. Strasbourg: Council of Europe, 1972.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger on the Construction of Statures, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Dukelow, Daphne A., and Betsy Nuse. The Dictionary of Canadian Law, 2nd ed. Scarborough, Ont.: Carswell, 1995, “personal injury”.
Emanuelli, Claude. Droit international public: contribution à l’étude du droit international selon une perspective canadienne. Montréal: Wilson & Lafleur, 1998.
Gardner, Daniel. L’évaluation du préjudice corporel, 2e éd. Cowansville, Qué.: Yvon Blais, 2002.
Latin for Lawyers, 2nd ed. London: Sweet and Maxwell, 1937.
Oppenheim’s International Law, vol. I, 9th ed. By Sir Robert Jennings and Sir Arthur Watts. London: Longman, 1996.
United Nations. International Law Commission. “Draft Articles on Jurisdictional Immunities of States and Their Property and Commentaries Thereto” in Report of the International Law Commission on the work of its forty-third session, U.N. Doc. A/46/10, in Yearbook of the International Law Commission 1991, vol. II, Part Two. New York: United Nations, 1994, 13.
United Nations. International Law Commission. Fifth Report on Jurisdictional Immunities of States and their Property, U.N. Doc. A/CN.4/363 and Add.1, in Yearbook of the International Law Commission 1983, vol. II, Part One. New York: United Nations, 1985, 25.
Vézina, Nathalie. “Préjudice matériel, corporel et moral: variations sur la classification tripartite du préjudice dans le nouveau droit de la responsabilité” (1993), 24 R.D.U.S. 161.
APPEAL from a judgment of the Ontario Court of Appeal (2001), 52 O.R. (3d) 577, 196 D.L.R. (4th) 281, 142 O.A.C. 27, 152 C.C.C. (3d) 205, 4 C.P.C. (5th) 1, [2001] O.J. No. 524 (QL), affirming a judgment of the Superior Court of Justice (2000), 48 O.R. (3d) 521, 187 D.L.R. (4th) 146, [2000] O.J. No. 1813 (QL). Appeal dismissed.
Edward L. Greenspan, Q.C., and David Stratas, for the appellant.
Ed Morgan, for the respondent the Federal Republic of Germany.
Brian J. Saunders and Michael H. Morris, for the respondent the Attorney General of Canada.
Malcolm N. Ruby, for the intervener the United States of America.
David Matas and Michael Bossin, for the intervener Amnesty International.
The judgment of the Court was delivered by
LeBel J. --
I. Introduction
1 This appeal pits the interests of an individual wishing to sue a foreign state in Canadian courts against the state’s enjoyment of sovereign immunity to preclude such actions. Originating from international customary law, the principle of sovereign immunity and the exceptions thereto are incorporated into domestic law by the enactment of the federal State Immunity Act, R.S.C. 1985, c. S-18 (the “Act”). The issues at bar are whether or not the specific exceptions found in ss. 4 and 6(a) of the Act apply such as to limit the general principle of sovereign immunity set out in s. 3 of the Act.
II. Facts
2 The appellant, Karlheinz Schreiber, is a businessman and a Canadian citizen. On May 7, 1999, a court in the Federal Republic of Germany issued a warrant for his arrest. On August 27, 1999, Germany requested that Canada, under the provisions of the Extradition Treaty between Canada and Germany, Can. T.S. 1979 No. 18, entered into force September 30, 1979, provisionally arrest the appellant for the purpose of extraditing him in relation to tax evasion and other offences.
3 On August 30, 1999, an official of the Canadian Department of Justice authorized the Attorney General of Canada to apply to a judge under s. 13 of the Extradition Act, S.C. 1999, c. 18, for a provisional arrest warrant. Such warrant was granted and on August 31, 1999, the appellant was arrested by the Royal Canadian Mounted Police. The appellant then spent the next eight days in jail until he was released on bail.
4 On November 12, 1999, the appellant commenced an action against the respondents, Germany and the Attorney General of Canada, seeking damages in the amount of CAN$1 000 000 for personal injuries suffered as a result of his arrest and detention in Canada. The action is based on the following causes of action as pleaded in the statement of claim: breaches of duties of care, abuse of public office, bad faith and breach of the plaintiff’s rights under the Canadian Charter of Rights and Freedoms.
5 The respondents brought two motions in the proceeding initiated by the appellant. First, Germany requested that the action be dismissed on the basis that it enjoys sovereign immunity by virtue of the State Immunity Act. Secondly, the Attorney General of Canada sought a stay of the action pending the determination of proceedings between the appellant and Germany. The Ontario Superior Court of Justice allowed both motions, dismissing the appellant’s claim against Germany and staying the action against the Attorney General of Canada.
6 The appellant appealed the decision of the Superior Court of Justice, bringing two separate appeals to the Court of Appeal for Ontario. The Court of Appeal for Ontario unanimously dismissed the appeal concerning the claim against Germany. The majority allowed the appeal concerning the stay, which is not now before this Court.
III. Relevant Statutory Provisions
7 State Immunity Act, R.S.C. 1985, c. S-18
3. (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.
4. (1) A foreign state is not immune from the jurisdiction of a court if the state waives the immunity conferred by subsection 3(1) by submitting to the jurisdiction of the court in accordance with subsection (2) or (4).
(2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it
. . .
(b) initiates the proceedings in the court; or
(c) intervenes or takes any step in the proceedings before the court.
(3) Paragraph 2(c) does not apply to
(a) any intervention or step taken by a foreign state in proceedings before a court for the purpose of claiming immunity from the jurisdiction of the court;
. . .
(4) A foreign state that initiates proceedings in a court or that intervenes or takes any step in proceedings before a court, other than an intervention or step to which paragraph (2)(c) does not apply, submits to the jurisdiction of the court in respect of any third party proceedings that arise, or counter-claim that rises, out of the subject-matter of the proceedings initiated by the state of in which the state has so intervened or taken a step.
(5) Where, in any proceedings before a court, a foreign state submits to the jurisdiction of the court in accordance with subsection (2) or (4), that submission is deemed to be a submission by the state to the jurisdiction of such one or more courts by which those proceedings may, in whole or in part, subsequently be considered on appeal or in the exercise of supervisory jurisdiction.
5. 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.
6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to
(a) any death or personal injury, or
(b) any damage to or loss of property
that occurs in Canada.
Section 6 after June 1, 2001, as amended by the Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121
6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to
(a) any death or personal or bodily injury, or
(b) any damage to or loss of property
that occurs in Canada. [Emphasis added.]
IV. Judgments Below
A. Ontario Superior Court of Justice (2000), 48 O.R. (3d) 521
8 Nordheimer J. dismissed the appellant’s claim against Germany, finding that Germany was entitled to rely upon the immunity it enjoyed from the jurisdiction of Canadian courts, pursuant to s. 3(1) of the State Immunity Act, and that the exceptions found in ss. 4 and 6 did not apply. With respect to the waiver of immunity exception set out in s. 4, Nordheimer J. held that none of the conditions for waiver were met. In particular, Germany had not submitted explicitly or implicitly to the jurisdiction of the court whether by written agreement or otherwise (s. 4(2)); Germany did not intervene or take any step in this proceeding, other than by bringing this motion to assert its claim of immunity (s. 4(3)); and the claim did not involve a third party proceeding or counterclaim arising out of the subject-matter (s. 4(4)).
9 Nordheimer J. also rejected the appellant’s argument that the arrest itself could amount to a physical injury. He thus found that the s. 6(a) exception did not apply.
B. Court of Appeal for Ontario (2001), 52 O.R. (3d) 577
10 Writing for a unanimous court, Doherty J.A. affirmed the order of Nordheimer J. dismissing the action against Germany. The appellant’s counsel argued that Nordheimer J. should not have addressed the ultimate question as to the meaning of the statutory provisions but should only have decided whether it was “plain and obvious” and “beyond doubt” that Germany was entitled to claim sovereign immunity in relation to the allegations made in the statement of claim. Doherty J.A. held that, although the sovereign immunity cases decided by the Court of Appeal for Ontario have not specifically discussed the test to be applied on a motion to dismiss based on sovereign immunity, all have proceeded on the premise that the motion judge had to determine the immunity claim on its merits and all have applied a correctness standard in reviewing the decision of the motion judge.
11 Doherty J.A. then went on to reject the appellant’s arguments based on ss. 4 and 6(a) of the Act. He agreed with Nordheimer J.’s finding that extradition proceedings are separate and distinct from the appellant’s private civil suit and as such, the exception in s. 4 did not apply. Doherty J.A. further agreed with Nordheimer J.’s finding that the “personal injury” exception found in s. 6(a) is limited to physical injury. As the appellant did not allege that he suffered any physical injury, the s. 6(a) exception could not apply.
V. Issues
12 Do the exceptions in either s. 4 or s. 6(a) of the State Immunity Act apply so as to deprive Germany of the immunity from actions in Canadian courts to which it is otherwise entitled under s. 3(1) of the Act?
VI. Analysis
A. Origins and Scope of Sovereign Immunity
13 The principle of sovereign immunity originated somewhat obscurely centuries ago in a period when the sovereign personified the state, and when sovereign interventions were generally limited to matters of public order, the conduct of international affairs and the defence of the state, see: C. Emanuelli, Droit international public: contribution à l’étude du droit international selon une perspective canadienne (1998), at p. 303. Sovereign immunity developed from the doctrine of the law of nations, which governs the international community of states based on the notions of sovereignty and equality of states; see: I. Brownlie, Principles of Public International Law (5th ed. 1998), at p. 289, and Sir R. Jennings and Sir A. Watts, eds., Oppenheim’s International Law (9th ed. 1996), vol. I, at pp. 341-43. These notions form the basis of an old Latin maxim: “Par in parem imperium non habet”, which translates as “An equal has no authority over an equal”; see: J.-M. Arbour, Droit international public (3rd ed. 1997), at p. 286, and Latin for Lawyers (2nd ed. 1937), at p. 217.
14 States have incorporated the principle of sovereign immunity into their domestic legal order in two ways. First, state practice has generally established that domestic courts do not exercise jurisdiction in actions brought against foreign states. Secondly, states have generally allowed foreign states a privilege, as a matter of comity, to appear as plaintiffs in domestic courts, if they so choose, see: Jennings and Watts, supra, at pp. 342-43, and Brownlie, supra, at pp. 324-26.
15 Over the years, the general principle of sovereign immunity has been attenuated somewhat, and certain exceptions to the general rule have emerged. Some authors have interpreted the emergence of exceptions to sovereign immunity as evidence of a new, restrictive immunity. Brownlie, supra, remarks that the ratification of the European Convention on State Immunity, 11 I.L.M. 470 (1972), opened for signature on May 16, 1972, and ratified by eight states as of September 8, 2002, “provides further evidence of the trend toward a restrictive approach to immunity” (p. 339).
16 Emanuelli, supra, makes the same observations at pp. 304-5, noting that various jurisdictions, including the Council of Europe, the United States, the United Kingdom, Australia, as well as Canada, have adopted a restrictive immunity approach in their domestic legislation. The International Law Commission’s “Draft Articles on Jurisdictional Immunities of States and their Property” (reproduced in Yearbook of the International Law Commission 1991 (1994), vol. II, Part Two, at p. 13), provisionally adopted by the International Law Commission in 1986, also indicates a trend towards the restrictive immunity approach: see Emanuelli, supra, at p. 306; and Jennings and Watts, supra, at pp. 344-45.
17 Despite the increasing number of emerging exceptions, the general principle of sovereign immunity remains an important part of the international legal order, except when expressly stated otherwise, and there is no evidence that an international peremptory norm has been established to suggest otherwise. Indeed, Brownlie, supra, notes at pp. 332-33 that:
It is far from easy to state the current legal position in terms of customary or general international law. Recent writers emphasize that there is a trend in the practice of states towards the restrictive doctrine of immunity but avoid firm and precise prescriptions as to the present state of the law. [Emphasis in original.]
As observed at the outset of these reasons, this principle of international law has been incorporated into the Canadian domestic legal order through the enactment of the federal State Immunity Act.
18 The defence of sovereign immunity can be raised by a defendant state to be determined in a preliminary motion, as a matter for summary judgment or at trial. As noted by Doherty J.A., a number of sovereign immunity cases before the Court of Appeal for Ontario have been determined on a preliminary motion on the premise that the motion judge was obligated to determine the immunity claim on its merits: see Jaffe v. Miller (1993), 13 O.R. (3d) 745 (C.A.); Walker v. Bank of New York Inc. (1994), 16 O.R. (3d) 504 (C.A.); and United States of America v. Friedland (1999), 182 D.L.R. (4th) 614 (Ont. C.A.). However, even if a defendant state fails in its bid to dismiss the action at a preliminary motion, it is not precluded from raising the immunity defence sometime during the trial, as the case develops.
B. Does the Attornment to the Canadian Court’s Jurisdiction Exception under Section 4 Apply to Limit Germany’s Immunity?
19 The appellant submits that s. 4 of the State Immunity Act reflects the policy that if a foreign state invokes Canadian processes, it cannot claim immunity from later Canadian processes concerning the same matter. The appellant’s argument under the s. 4 exception is two-fold. First, the appellant argues that the exception in s. 4(2)(b) applies because Germany initiated the proceedings in a Canadian court. Although the appellant issued the statement of claim, he submits that the proceedings were in fact initiated by Germany’s request that Canadian authorities go before the Ontario Superior Court of Justice on behalf of Germany to arrest and imprison him.
20 Section 4(2)(b) of the Act reads as follows:
4. . . .
(2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it
. . .
(b) initiates the proceedings in the court;
21 Germany responds that it did not submit to the jurisdiction of Canadian courts. The only step taken by Germany in these proceedings has been to bring the motion challenging the court’s jurisdiction that is the subject of the present appeal. In Germany’s view, that step may not be construed as a waiver of sovereign immunity under the express wording of s. 4(3)(a), which provides that:
4. . . .
(3) Paragraph (2)(c) does not apply to
(a) any intervention or step taken by a foreign state in proceedings before a court for the purpose of claiming immunity from the jurisdiction of the court;
Germany submits that the extradition proceedings initiated pursuant to the Extradition Treaty and the present civil action for damages are separate legal actions and any step taken in one does not amount to a step taken in the other.
22 The respondent Attorney General of Canada notes that the waiver exception at issue in s. 4(2)(b) applies only where a foreign state initiates proceedings in a Canadian court and, in this manner, submits to the court’s jurisdiction in respect of those proceedings. No ambiguity arises on the face of s. 4(2)(b). It argues that the short answer to the appellant’s argument is that Germany did not initiate the proceedings at issue.
23 The respondents further submit that waiver does not extend to fresh or distinct actions even if they are on the same or a related subject matter as the proceeding initiated by the foreign state. Had Parliament intended to waive the immunity for all proceedings prompted by or in any way related to the foreign state’s proceeding, it would not have referred to specific types of proceedings in s. 4(4), which provides that:
4. . . .
(4) A foreign state that initiates proceedings in a court or that intervenes or takes any step in proceedings before a court, other than an intervention or step to which paragraph (2)(c) does not apply, submits to the jurisdiction of the court in respect of any third party proceedings that arise, or counter-claim that arises, out of the subject-matter of the proceedings initiated by the state or in which the state has so intervened or taken a step.
24 I agree with the submissions of both respondents with respect to the interpretation of s. 4(2)(b). In particular, it is my view that Germany did not initiate the judicial proceedings as its request to arrest and imprison the appellant was made to the executive branch of government pursuant to the Extradition Treaty. It was the Minister of Justice who authorized the Attorney General to apply for an arrest warrant. The appellant’s tort liability action against the government of Germany is an action that is separate and distinct from the extradition process initiated by Germany. There is nothing in the wording of the legislation or in the Extradition Treaty, to suggest that Germany would impliedly waive its sovereign immunity from law suits in the Canadian courts every time it exercised its treaty-based right to request extradition.
25 As an alternative argument, the appellant submits that s. 4(5) applies because the Superior Court of Justice is only exercising a “supervisory jurisdiction” over the arrest warrant proceedings initiated by Germany, the legality of which is now challenged by the appellant. Section 4(5) reads as follows:
4. . . .
(5) Where, in any proceedings before a court, a foreign state submits to the jurisdiction of the court in accordance with subsection (2) or (4), that submission is deemed to be a submission by the state to the jurisdiction of such one or more courts by which those proceedings may, in whole or in part, subsequently be considered on appeal or in the exercise of supervisory jurisdiction.
26 I agree with the Attorney General’s submission that s. 4(5) simply extends the waiver of immunity arising from proceedings that fall within s. 4(2) or s. 4(4) to include appeals from, or judicial review of, those proceedings. As the appellant’s lawsuit does not fall within either s. 4(2) or s. 4(4), it is outside the scope of s. 4(5).
27 As noted by Doherty J.A., it would be contrary to the concepts of comity and mutual respect between nations to hold that a country that calls upon Canada to assist in extradition only does so at the price of losing its sovereign immunity and of submitting to the domestic jurisdiction of Canadian courts in matters connected to the extradition request, and not only in respect of the extradition proceeding itself.
C. Does the Personal Injury Exception under Section 6(a) Apply to Limit Germany’s Immunity?
28 The appellant submits that the mental distress, denial of liberty and damage to reputation he suffered due to his wrongful arrest and imprisonment was a “personal injury” under the exception in s. 6(a) of the State Immunity Act, and that it therefore limits Germany’s immunity. The argument in relation to the s. 6(a) exception can be divided into four parts: (1) development of common law, statutory, and international law principle of sovereign immunity; (2) whether wrongful arrest and imprisonment constitute “personal injury”; (3) application of international human rights law; and (4) interpretation of bilingual provisions, the Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4 (“Harmonization Act”) and Quebec civil law.
(1) Development of Common Law, Statutory, and International Law Principle of Sovereign Immunity
29 The appellant observes that initially at common law, foreign states were immune from any suit and that this was consistent with the common law with respect to Crown immunity. Around the middle of the 20th century, exceptions to foreign state immunity developed. By 1975, foreign states could be sued in Canadian courts in proceedings concerning lands in Canada, debts arising from services performed for the foreign state’s lands in Canada, trust funds for the payment of creditors and matters arising from commercial transactions. The appellant submits that although a distinction between acts of government (acta jure imperii) and acts of a commercial nature (acta jure gestionis) began to emerge in common law, with the latter not being subject to immunity, this distinction does not seem to have been accepted in Canada: see Re Canada Labour Code, [1992] 2 S.C.R. 50, and Gouvernement de la République démocratique du Congo v. Venne, [1971] S.C.R. 997.
30 The intervener, the United States of America, brought up an argument that neither of the respondents raised which would severely restrict the scope of application of the exception. The United States asserts that a distinction must be made between acta jure imperii and acta jure gestionis in determining whether any of the exceptions to immunity under the State Immunity Act are applicable. Each of the exceptions to immunity depends, it is submitted, on the nature of commercial or other private law conduct underlying the claim. The intervener relied on the reference before this Court in Re Canada Labour Code, supra, where La Forest J. writing for the majority, stated that the common law developed a new theory of restrictive immunity under which courts extended immunity “only to acts jure imperii and not to acts jure gestionis” (p. 71). He went on to observe that the State Immunity Act was a “codification that is intended to clarify and continue the theory of restrictive immunity, rather than to alter its substance” (p. 73). According to the intervener, this comment implies that the jure imperii/jure gestionis distinction which underlies the theory of restrictive immunity applies to the entire Act.
31 In reply to this submission, the appellant argued that when Parliament enacted the State Immunity Act in 1982, S.C. 1980-81-82-83, c. 95, it codified that distinction in s. 5 of the Act. It also created a new exception, the death or personal injury exception at s. 6(a), that did not exist at common law. Had Parliament intended to limit the exception in s. 6 by the jure imperii and jure gestionis distinction, it would have incorporated the distinction into the statutory exception.
32 I accept the appellant’s argument on the irrelevance of the jure imperii/jure gestionis distinction for a number of reasons. First, the wording of s. 6(a) clearly states that this exception applies to all torts committed by a foreign state which cause death or personal injury. This express wording seems consistent with the evidence presented before the Standing Senate Committee on Legal and Constitutional Affairs, by M. L. Jewett, Constitutional and International Law Section, Department of Justice, on April 9, 1981, where he explained that:
. . . dealing with the distinction between acts jure imperii and acts jure gestionis, these terms, which are really only the functional equivalent of sovereign acts and commercial acts, in themselves are not free from difficulty. We felt that rather than relying on perhaps outdated Latin terminology, focusing on commercial activity and talking about the nature of the activity would make it much easier for the courts to adapt this kind of test and bring it within the role which they perform to a day-to-day basis.
One of the problems inherent in the purpose test, and carried through in the concept of acts jure imperii is the whole notion that a state always acts, in one sense at least, in a sovereign capacity. It cannot act in any other capacity.
(Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 12, at p. 12:9)
33 Secondly, in my view, Re Canada Labour Code, supra, is inconclusive on this issue. In that reference, the Court considered only s. 5 of the Act (the commercial activity section), which does indeed codify the restrictive theory of immunity but does not deal directly with any other of the exceptions under the Act.
34 Furthermore, most of the international law authorities cited by the parties appear to accept that the personal injury exception does not distinguish between jure imperii and jure gestionis acts. See for example, Art. 11 of the European Convention on State Immunity, which states that:
A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, or if the author of the injury or damage was present in that territory at the time when those facts occurred.
35 Article 12 of the “Draft Articles on Jurisdictional Immunities of States and their Property”, provides a number of exceptions to sovereign immunity, including, “death or injury to the person”, with no reference to the jure imperii/jure gestionis distinction:
Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission. [Emphasis added.]
(Yearbook of the International Law Commission 1991, supra, at p. 44)
36 Also, that the “death or personal injury” restriction to immunity is applicable to both jure imperii and jure gestionis acts is confirmed in the Fifth Report on Jurisdictional Immunities of States and their Property, U.N. Doc. A/CN.4/366 and Add. 1, in the Yearbook of the International Law Commission 1983 (1985), vol. II, Part One, at p. 25: see in particular paras. 63, 67, 77 and 99. In that Report, Special Rapporteur S. Sucharitkul explains at para. 69:
Whatever the activities of a State giving rise to personal injuries or damage to property within the territory of another State, whether in connection with acta jure imperii or acta jure gestionis, the fact remains that injuries have been inflicted upon and suffered by innocent persons, whether the act or omission was deliberate or unintentional or, indeed, negligent or accidental.
37 In addition, the interpretation advanced by the United States would deprive the victims of the worst breaches of basic rights of any possibility of redress in national courts. Given the recent trends in the development of international humanitarian law enlarging this possibility in cases of international crime, as evidenced in the case before the House of Lords, R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827, such a result would jeopardize at least in Canada a potentially important progress in the protection of the rights of the person.
(2) Whether Wrongful Arrest and Imprisonment Constitute “Personal Injury”
38 The main issue raised by the appellant is whether the Court of Appeal for Ontario erred in holding that the term “personal injury” in s. 6(a) of the State Immunity Act applies only to claims of physical injury, and does not apply to wrongful arrest and imprisonment. The decision from the Court of Appeal followed its earlier decision in Friedland, supra, which was under appeal in this Court at the time Schreiber was being heard in the Court of Appeal. It should be noted that the appeal in Friedland was subsequently discontinued: [2001] 2 S.C.R. ix. Doherty J.A. found that the Friedland case was dispositive of the appellant’s submission that his claim fell within the s. 6(a) exemption to state immunity and found no basis for departing from this earlier decision.
39 The appellant argues that the Court of Appeal for Ontario has rendered conflicting judgments on the meaning of “personal injury” in s. 6(a) of the State Immunity Act. In Walker, supra, McKinlay J.A. of the Court of Appeal for Ontario wrote at p. 510 that:
We agree with the position of counsel for the respondent that the scope of personal injury covered by s. 6 is not merely physical, but could include mental distress, emotional upset, and restriction of liberty. However, we do not accept his position that the alleged injuries in this case occurred in Canada, as required by s. 6.
On the other hand, in Friedland, supra, the same court stated at para. 25 that:
In our view, s. 6(a) does not assist Friedland. The obiter statement of McKinlay J.A. in Walker, at p. 510, that “the scope of personal injury covered by s. 6 . . . could include mental distress, emotional upset, and restriction of liberty” does not mean that s. 6 extends to mental distress or emotional upset in all cases. Otherwise, a party could invoke s. 6(a) merely by claiming damages for alleged mental distress or emotional upset, an interpretation that would expand the exception far beyond its intended scope and render the doctrine of sovereign immunity ineffective. We agree with counsel for the appellants that the “personal injury” exception refers primarily to physical injury that s. 6(a) extends to mental distress and emotional upset only insofar as such harm arises from or is linked to a physical injury. This interpretation is consistent with the generally accepted international understanding of the “personal injury” exception to sovereign immunity. [Emphasis added.]
40 According to the appellant, Canadian law recognizes that imprisonment is an injury to the person. In criminal law, wrongful imprisonment is regarded as a serious offence. In tort law, false imprisonment is actionable. In constitutional law, imprisonment is recognized as a deprivation of a person’s s. 7 Charter right to liberty. While imprisoned, a person’s freedom of movement is restricted and his or her privacy violated. The appellant submits that Canadian law also recognizes that the suffering of mental distress and damage to his reputation are injuries to a person. As such, he concludes that clear wording in s. 6(a) would be required to offset the recognition that the causing of mental distress and injury to reputation through wrongful imprisonment are injuries to the person. Since s. 6(a) has no such clear wording, mental distress and injury to reputation through wrongful imprisonment must be included in the exception to foreign state immunity in s. 6(a).
41 The respondents counter that the appellant did not suffer personal injury within the meaning of s. 6(a). They submit that the only “injury” suffered by the appellant was a lawful, peaceful arrest, which, they assert, was made pursuant to a purported error of law. In their view, such an error of law cannot be “personal injury” for the purposes of s. 6(a).
42 I agree with the submission of the respondent Germany that Friedland established that the scope of the exception in s. 6(a) is limited to instances where mental distress and emotional upset were linked to a physical injury. For example, psychological distress may fall within the exception where such distress is manifested physically, such as in the case of nervous shock. It seems clear that McKinlay J.A.’s statement in Walker was made in obiter and that such finding had no bearing on the case before that court. I further agree that Doherty J.A. was correct when he chose to rely on Friedland in reaching his decision to dismiss the appellant’s appeal as it seems consistent with the position taken in academic writings and international law sources.
(a) Academic Writings
43 The applicable case law and academic writings seem to indicate that the term “personal injury” generally denotes “physical” injury. According to D. A. Dukelow and B. Nuse, The Dictionary of Canadian Law (2nd ed. 1995), “personal injury” does not include “mental injury” and is defined at p. 891 as:
Bodily or physical injury. K. D. Cooper-Stephenson & I. B. Saunders, Personal Injury Damages in Canada (Toronto: Carswell, 1981) at 5.
44 In the first edition of their book, Cooper-Stephenson and Saunders explain further:
“Personal injury” is not a term of legal definition. Though “death” may sometimes require legal specification as to the moment of its occurrence, for purposes of damages assessment it merely denotes a tragic and most extreme consequence of injury. Personal injury involves physical or bodily injury to someone. Its most common form is wounding or disfigurement, whether internal or external, but included also are sickness or disease and psychological or emotional injury physically manifested. The sequence of events leading to personal injury in this sense may involve external bodily impact or it may not (as in some cases of emotional injury physically manifested). So the term “personal injury” refers to a resulting difference in someone’s physical condition, rather than to its cause.
As regards damages for personal injury and death, focus is placed on the consequences of the injury rather than on the injury itself. Both consequential economic loss and resulting emotional distress or anguish are included as part of the assessment. However, if these types of loss are suffered independently of physical injury, they fall outside the scope of personal injury claims. [Emphasis added.]
(Personal Injury Damages in Canada (1981), at p. 5)
45 Interestingly, in the most recent edition of that text (K. D. Cooper-Stephenson, Personal Injury Damages in Canada (2nd ed. 1996)), the author sets out the modern context of personal injury damages (including the civil action and no-fault compensation schemes) and does not provide a definition of “personal injury”. However, he seems to premise his book on the notion of “personal injury” as having a physical origin and does not seem to contradict his earlier definition.
46 A similar approach is found in comments dealing with workplace accidents and compensation. For example, in P. Cane, Atiyah’s Accidents, Compensation and the Law (5th ed. 1993), although the book does not define “personal injury”, it does only address the legal framework surrounding the compensation of physical injury. (See for example, the discussion on the compensation for bodily harm at p. 5 and positive acts causing physical injury under the scope of the tort of negligence at pp. 61-63.)
(b) International Law Reports and Conventions
47 A few secondary sources of international law have also limited the term “personal injury” to “physical injury” in the context of the personal injury exception to immunity. For example, the International Law Commission’s commentaries on its “Draft Articles on Jurisdictional Immunities of States and their Property” state that art. 12, which deals with injury to the person, “does not cover cases where there is no physical damage. Damage to reputation or defamation is not personal injury in the physical sense” (Yearbook of the International Law Commission 1991, supra, at p. 45). Furthermore, the Explanatory Reports on the European Convention on State Immunity and the Additional Protocol (1972) explains the purview of the exception for injury to the person found at art. 11 (at para. 48):
Where there has been injury to the person or damage to property, the rule of non-immunity applies equally to any concomitant claims for non-material damage resulting from the same acts, provided of course that a claim for such damage lies under the applicable law. . . . Where there has been no physical injury and no damage to tangible property, the article does not apply.
(c) Application of International Human Rights Law
48 In support of a broad interpretation of the personal injury exception, the intervener Amnesty International advanced the proposition that the right to the protection of mental integrity and to compensation for its violation has risen to the level of a peremptory norm of international law which prevails over the doctrine of sovereign immunity.
49 I agree with the intervener that some forms of incarceration may conceivably constitute international human rights violations, such as an inordinately long sentence, or abusive conditions. However, incarceration is a lawful part of the Canadian justice system. Without evidence of physical harm, to find that lawful incarceration amounts to compensable mental injury would be to find that every prisoner who is incarcerated by the Canadian penal system is entitled to receive damages from the state. Although I agree with some of the submissions of the intervener with respect to the fact that mental injury may be compensable in some form at international law, neither the intervener nor any other party has established that a peremptory norm of international law has now come into existence which would completely oust the doctrine of state immunity and allow domestic courts to entertain claims in the circumstances of this case.
50 In the case at bar, there is no conflict between the principles of international law, at the present stage of their development, and those of the domestic legal order. International law sets out some general principles with respect to the origins and uses of sovereign immunity, but the domestic law sets out very specific exceptions to the general rule of sovereign immunity. A judgment of this Court, Daniels v. White, [1968] S.C.R. 517, sets out when international law is appropriately used to interpret domestic legislation. In that case, Pigeon J. held at p. 541 that:
. . . this is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. It is a rule that is not often applied, because if a statute is unambiguous, its provisions must be followed even if they are contrary to international law. . . . [Emphasis added.]
51 The questions at stake fall within the purview of the domestic legislation. Indeed, it can be argued that the domestic legislation is more specific than the rules set out by the international legal principles and as such, there would be little utility in examining international legal principles in detail. In other cases, international law principles might have a more direct impact and the disposition of the matter might turn on their interpretation and application. In this appeal, the case turns on the interpretation of the bilingual versions of s. 6(a) of State Immunity Act, discussed below, rather than the interpretation of international law principles.
(d) Meaning of “Personal Injury” Set out in Bilingual Provisions, the Québec Civil Law and the Harmonization Act
(i) Interpretation of Bilingual Provisions
52 As mentioned earlier, the appellant submits that Canadian law recognizes that mental distress and damage to reputation are injuries to the person and that only clear wording in s. 6(a) would negate that recognition. The respondents rely on the rules governing the interpretation of bilingual legislation in Canada. They represent that while the words used in the English version of s. 6(a), both before and after the recent amendments under the Harmonization Act might be understood as including more than physical injury, the words used in the French version are straightforward and indicate that the s. 6(a) exception requires bodily injury.
53 The impugned provision reads as follows:
6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to
(a) any death or personal injury, or
(b) any damage to or loss of property
that occurs in Canada.
6. L’État étranger ne bénéficie pas de l'immunité de juridiction dans les actions découlant:
a) des décès ou dommages corporels survenus au Canada;
b) des dommages matériels survenus au Canada.
54 I agree with the submission of the Attorney General of Canada that the proper way to construe s. 6(a) of the Act is to read its words in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament: see R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2. Both language versions of federal statutes are equally authoritative. Where the meaning of the words in the two official versions differs, the task is to find a meaning common to both versions that is consistent with the context of the legislation and the intent of Parliament: see R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Lamy, [2002] 1 S.C.R. 860, 2002 SCC 25; and R. v. Mac, [2002] 1 S.C.R. 856, 2002 SCC 24.
55 As the Attorney General of Canada observes, the term “dommages corporels” is not defined in the Act. I agree with the respondent’s submission that to interpret s. 6(a) to include injury not related to bodily injury would be to ignore the words used by Parliament in the French version. The interpretation of the Court of Appeal for Ontario reflects the common meaning available to the French and English versions of the provisions and is consistent with the key principles concerning the interpretation of bilingual statutes; see: P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327; E. A. Driedger, Construction of Statutes (2nd ed. 1983), at pp. 165-81; and R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at pp. 215-35.
56 A principle of bilingual statutory interpretation holds that where one version is ambiguous and the other is clear and unequivocal, the common meaning of the two versions would a priori be preferred; see: Côté, supra, at p. 327; and Tupper v. The Queen, [1967] S.C.R. 589. Furthermore, where one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning: see Côté, supra, at p. 327; R. v. Dubois, [1935] S.C.R. 378; Maurice Pollack Ltée v. Comité paritaire du commerce de détail à Québec, [1946] S.C.R. 343; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456, at pp. 464-65; and Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660, at p. 669.
57 In the case at bar, the French version, which states that the exception to state immunity is “décès” or “dommages corporels”, is, as we shall see, the clearer and more restrictive version compared to the English “death” or “personal injury”. According to the principles of bilingual statutory interpretation, the French version best reflects the common intention of the legislator found in both versions.
(ii) Quebec Civil Law
58 Determining the scope of application of s. 6(a) requires an examination of what is meant by “dommage corporel” or “préjudice corporel” in the law of civil delicts in Quebec. In order to understand the nature and effect of the problem of legislative interpretation that arises, it is necessary to review the classification of heads of damages in the Quebec law of civil delicts and of the meaning that it ascribes to the notion of “préjudice corporel”. This notion is well known and widely applied in Quebec law and has even become one of central components of the tripartite classification of damages in the new Civil Code of Québec, S.Q. 1991, c. 64, which came into force in 1994. Whenever fault and causation are established, art. 1457 C.C.Q. provides that all categories of damages must be compensated, whether they be “bodily, moral or material in nature”, or, as the French version puts it, “corporel, moral ou matériel”. Other provisions of the C.C.Q. refer to this basic classification of damages: with respect to bodily injury, see for example arts. 1458, 1614 and 2930.
59 The previous code, the Civil Code of Lower Canada, had not formally provided for such a classification. The classification then favoured by much academic comment in Quebec and often applied by the jurisprudence was bipartite, based on a distinction between what was variously designated as “préjudice patrimonial et extrapatrimonial” or “pécuniaire ou non pécuniaire” or “économique et non économique”. Although the vocabulary changed from time to time, the classification reflected the basic distinction in the Civil Code between patrimonial and non patrimonial rights: see N. Vézina, “Préjudice matériel, corporel et moral: variations sur la classification tripartite du préjudice dans le nouveau droit de la responsabilité” (1993), 24 R.D.U.S. 161, at pp. 165-66.
60 Nevertheless, the notion or classification of “dommage corporel” or “bodily injury” was well known and often used in the law of Quebec long before the coming into force of the new code. The Civil Code of Lower Canada made use of it in the provisions concerning prescription or limitations; for example, art. 2262 provided for a one-year prescription in the case of claims for “lésions ou blessures corporelles” or “bodily injuries”: see Regent Taxi and Transport Co. v. Congrégation des Petits Frères de Marie, [1932] A.C. 295 (P.C.), per Lord Russell of Killowen, at pp. 302-3; and also D. Gardner, L’évaluation du préjudice corporel (2nd ed. 2002), at pp. 9-10. Article 2260a, added in 1974 to the Civil Code of Lower Canada in order to modify the prescription period applicable to claims for damages in matters of hospital and medical liability, used the expressions “préjudice corporel ou mental” and “bodily or mental prejudice”.
61 The inclusion of the category of “préjudice corporel - bodily injury” as a part of the organizing classification of damages in the Quebec law of civil responsibility signalled a shift in the analysis of damages. In the opinion of an author, the emphasis shifted from the considerations of the damage arising out of the injury to that of the nature of the injury itself: see Gardner, supra, at pp. 12-13. The structure of the classification has drawn some criticism. As underlined by Professor Vézina, supra, at pp. 168-69, it tends to overlap and, at least in part, to subsume other categories, like moral and material damages: see also Montréal (Ville de) v. Tarquini, [2001] R.J.Q. 1405 (C.A.), per Pelletier J.A., at paras. 96-100. The new classification may have a significant impact on the assessment and recoverability of damages and the prescription of claims for personal injury; however, these issues need not be discussed here, as the only question relevant to this appeal is the definition of “préjudice corporel” itself.
62 This class of damages appears limited but flexible in its application. A common feature of claims falling within this class is that some form of a breach of physical integrity must be made out. A “préjudice corporel” is not only an invasion of the integrity of the person which enjoys broad protection in all its aspects under s. 1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12, and art. 3 C.C.Q. It must be more specifically defined than that; otherwise, every form of harm to the person and of interference to the rights of the person would fall within the category of “préjudice corporel”. It seems that definitions of this notion require at least an element of breach of the physical integrity: see for example, Gardner, supra, at pp. 14-15, and also Tarquini, supra, per Pelletier J.A., at paras. 88 and 89 and the paragraphs that follow.
63 The notion of physical integrity remains at the same time flexible and capable of catching a broad range of interferences with the integrity of the person and the consequences flowing from them. It is not restricted to narrow situations where blood was drawn or bruises appeared on the body. As nervous shock caused by a very rough police operation was held to be a case of “préjudice corporel” as well as the physical pain and suffering caused by a physical interference with the person, torture leaving no marks on the body would be covered by the definition; see Gardner, supra, at p. 15, and Dubé v. Québec (Procureur général), [1997] R.R.A. 555 (Sup. Ct.).
64 On the other hand, the requirement to show an actual breach of physical integrity means that interferences with rights properly characterized as being of a moral nature will not be included within this class of claims. Interferences with fundamental rights such as freedom, privacy or reputation interests may give rise to claims characterized as moral or material, depending in the personal interests affected. The shock caused by an unjustified arrest was thus held to give rise to a claim for moral damages, but not to an action for “préjudice corporel”: see Michaud v. Québec (Procureur général), [1998] R.R.A. 1065 (Sup. Ct.); and Gardner, supra, at p. 22. Absent other forms of damage involving the physical integrity of the person, the loss of personal freedom caused by illegal police or state action with the attendant sense of humiliation, the loss of the ability to act independently, and the psychological stresses that flow from such situations, is assimilated into a form of moral damage and must be compensated as such. See: J.-L. Baudouin and P. Deslauriers, La responsabilité civile (5th ed. 1998), at p. 288.
65 Based on the provisions of the C.C.Q. and the relevant case law and doctrine set out above, I believe that the civil law concepts of “préjudice corporel - bodily injury”, despite their flexibility, incorporate an inner limitation to the potential ambit of s. 6(a) of the Act, requiring some form of interference with physical integrity. Although the terms “death” or “personal injury” found in the English version allow the possibility of non-physical injury to be captured within the s. 6(a) exception, the civil law concept of “dommages corporels” found in the French version of s. 6(a) does not. As the French version is the clearer and more restrictive version of the two, it best reflects the common intention of the legislator found in both versions. In order to negate the conclusion drawn from the bilingual interpretation of s. 6(a), the appellant makes a final argument based on the amendments set out in the Harmonization Act.
(iii) Harmonization Act
66 The appellant submits that in the case at bar, the Court of Appeal for Ontario did not have the benefit of a clarifying amendment to s. 6(a) of the Act by the Harmonization Act, which came into force on June 1, 2001, a few months after the decision of the Court of Appeal for Ontario was rendered. The appellant argues that the purpose of the Harmonization Act was to clarify what those provisions have always meant and that had the Court of Appeal had the benefit of this statutory clarification, it would have recognized that “personal injury” should be given a broader interpretation and that the scope of the exception extends well beyond the restricted concept of a physical injury.
67 The amendment to s. 6(a) made by the Harmonization Act reads as follows:
6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to
(a) any death or personal or bodily injury, or
(b) any damage to or loss of property
that occurs in Canada.
6. L’État étranger ne bénéficie pas de l’immunité de juridiction dans les actions découlant :
a) des décès ou dommages corporels survenus au Canada;
b) des dommages aux biens ou perte de ceux‑ci survenus au Canada. [Emphasis added.]
68 The appellant submits that “personal injury” must mean something more than just “bodily injury”, otherwise its inclusion in the English version of the Harmonization Act would be redundant. In particular, it must mean injury to such interests as mental integrity, dignity and reputation. The appellant points out that the Canadian drafters did not choose to incorporate any of the limitations and qualifications found in the United States and the United Kingdom legislation. In his opinion, the decisions in the courts below in the case at bar stand alone in holding that personal injury in s. 6(a) includes only physical injury and have erred in doing do.
69 I am of the view that the Harmonization Act amendment does not help the appellant’s position. Instead, I agree with the proposition advanced by the respondent (Attorney General of Canada) that the amendments made by the Harmonization Act ensure that the wording used in legislation which relies upon complementary provincial law reflect Canada’s bijural and bilingual nature. The Attorney General of Canada submits that the term “bodily injury” was added to s. 6(a) to clarify the limited scope of the exception for the anglophone civil law audience by using wording that better reflects the civil law tradition. I agree with this interpretation and note that when the Minister of Justice and Attorney General of Canada, Anne McLellan, moved that the Harmonization Bill S-4 be read the second time and referred to a committee on May 7, 2001, she explained that:
The objectives of harmonization of federal legislation with the civil law of Quebec are to ensure that federal legislation is fully consistent with the new civil law concepts and institutions, that federal legislation employs correct and precise terminology, and that amendments to federal legislation take into account French common law terminology.
Let me be clear that Bill S-4 does not create substantive rights or enshrine any new individual or collective rights. [Emphasis added.]
(House of Commons Debates, vol. 137, 1st sess., 37th Parl., at p. 3640)
70 This statement on the limited purpose of the Harmonization Act seems entirely consistent with the purpose set out in its preamble as well as the numerous parliamentary and senate debates explaining its purview and raison d’être: see Second Reading, Debates of the Senate, vol. 139, No. 5, 1st sess., 37th Parl., February 7, 2001, at pp. 83-88; Third Reading, Debates of the Senate, vol. 139, No. 25, 1st sess., 37th Parl., April 4, 2001, at pp. 572-76; and Third Reading, Debates of the Senate, vol. 139, No. 29, 1st sess., 37th Parl., April 26, 2001, at pp. 684-90.
71 Furthermore, federal documents that explain the purposes and methodology of harmonization statutes confirm the redundant nature of the harmonizing terms. In the federal document, Bijuralism in Canada: Harmonization Methodology and Terminology, being booklet 4 of The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism (2001), L. Maguire Wellington explains that the objective of harmonization “is not to merge the common law and the civil law into one legislative norm, but rather to reflect the specificity of each system in federal law” (p. 1). Among the numerous techniques employed to achieve harmonization is the “simple double” at pp. 9-10:
The simple double is a drafting technique that consists in presenting the terms or concepts specific to each legal system, one after the other . . . .
. . .
It is worth noting that, similar to the approach followed in the context of bilingualism where priority is given to the language of the majority of the targeted population in bilingual texts, the common law term (real property) comes first, followed by the civil law term (immovable) in the English version. Conversely, the civil law term (immeuble) comes first followed by the common law term (bien réel) in the French version.
The amendment to s. 6(a) found in the Harmonization Act seems to use the “simple double” technique to ensure that the civil law term (“dommages corporels”) was added to the English version by inserting the words, “or bodily injury” to the list of “any death or personal injury”.
72 The publication of the Civil Law and Comparative Law Section of the federal Department of Justice, Bijural Terminology Records (2001), published around the time the Harmonization Act was assented to in 2001, further emphasizes the redundancy inherent in the harmonization of the common law and civil law terminology in both official languages. In particular, it makes specific reference to the problem that the expression “personal injury” has a potentially broader meaning in common law than in the civil law meaning. The harmonization solution it identifies to avoid this potential problem (at p. 95) is, in fact, adopted by the s. 6(a) amendment set out in the Harmonization Act:
Solution: The words “or bodily” are added to the English version to better reflect the scope of this provision for civil law. No change is required to the French version as the concept of dommages corporels has a similar meaning in common law and civil law.
73 The appellant attacks the decisions of the two lower courts by relying on statutory interpretation principles militating against redundant drafting. In particular, the presumption against tautology stands for the proposition that words found in legislation are not generally considered redundant. As Côté, supra, writes (at pp. 275 and 277):
Assuming a statute to be well drafted, an interpretation which adds to the terms of its provisions or deprives them of meaning is not recommended.
. . .
It must also be assumed that each term, each sentence and each paragraph have been deliberately drafted with a specific result in mind. Parliament chooses its words carefully: it does not speak gratuitously.
See Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd., [1973] S.C.R. 596, at p. 603.
74 However, as Côté, supra, points out, the rule against tautology is simply a presumption; there are cases which allow for redundancies. He writes at p. 278:
Even if the contrary is presumed, a statute may certainly be redundant. Sometimes the drafter has good reasons for saying the same thing in more than one way, for example to dispel doubts or avoid controversy. [Emphasis added.]
75 A closer analysis of s. 6(a) demonstrates that the addition set out in the Harmonization Act does not appear to be a case of poor or tautological drafting. Gardner, supra, writes of the difficulty of transplanting the notion of “préjudice corporel” into federal legislation (at p. 12):
[translation] Analyzing federal laws does not serve any useful purpose in this case, for two reasons. First, there are no federal statutes that define personal injury in a general way. Second, any attempt to systematize will be stymied by the wide variation in the terms used to convey the concept of personal injury. The expression “bodily harm” [lésions corporelles] is the one used most often (generally in the plural in French). However, Parliament sometimes uses the term “bodily injury” [blessures corporelles], not to mention the situations where two different expressions are used in the same statute. [Emphasis added.]
76 Furthermore, the very wording of the provision negates the appellant’s submission that the inclusion of the term “bodily injury” in s. 6(a) cannot be interpreted as a redundancy. The listing of “death” and “personal injury” in the original section is redundant in itself as death is ultimately the most serious of all personal injuries. Gardner, supra, observes that such redundancies are often inherent in the treatment of “préjudice corporel” in federal legislation (at p. 12):
[translation] The word “death” is sometimes included expressly, while at other times it is included by implication in the concept that is being used.
77 Taking into consideration the interpretation given in Quebec civil law to the concept of “préjudice corporel” and its classifications of damages, one understands better the difficulties and constraints faced by the drafters of the Harmonization Act which require that the federal statute reflect the vocabulary and the methods of the two Canadian legal systems. Given that the purpose of the Harmonization Act is to highlight bijural terminology used by common law and civil law systems, and does not substantively change the law as set out in the statute, we are left interpreting s. 6(a) of the State Immunity Act using the usual techniques of interpretation.
78 The State Immunity Act creates exceptions to the classical and broad ranging principles of state immunity. Section 6(a) lifts the immunity in respect of proceedings for “death or personal or bodily injury” or, in the French version of the Act, “les actions découlant . . . des décès ou dommages corporels survenus au Canada”. Under the principles governing the interpretation of bilingual and bijural legislation, where there is a difference between the English and French versions, the Court must search for the common legislative intent which seeks to reconcile them. The gist of this intellectual operation is the discovery of the essential concepts which appear to underlie the provision being interpreted and which will best reflect its purpose, when viewed in its proper context.
79 In this case, the French version is the clearer and more restrictive of the two versions. A failure to consider the key ideas underpinning the French version might lead to a serious misapprehension as to the scope of s. 6(a). It would broaden its scope of application to such an extent that the doctrine of state immunity could be said to have been largely abrogated, whenever a claim for personal injury is made.
80 Therefore, the guiding principle in the interpretation of the s. 6(a) exception, more consonant with the principles of international law and with the still important principle of state immunity in international relations, is found in the French version of the provision. It signals the presence of a legislative intent to create an exception to state immunity which would be restricted to a class of claims arising out of a physical breach of personal integrity, consistent with the Quebec civil law term “préjudice corporel”. This type of breach could conceivably cover an overlapping area between physical harm and mental injury, such as nervous stress; however, the mere deprivation of freedom and the normal consequences of lawful imprisonment, as framed by the claim, do not allow the appellant to claim an exception to the State Immunity Act. This claim seems to be more in line with a Canadian Charter claim of deprivation of rights and is properly dismissed against the respondent, Germany.
VII. Conclusion and Disposition
81 For these reasons, I would dismiss the appeal with costs, confirming the decisions of the Ontario Superior Court of Justice and the Court of Appeal for Ontario.
Appeal dismissed with costs.
Solicitors for the appellant: Greenspan, Henein and White, and Heenan Blaikie, Toronto.
Solicitor for the respondent the Federal Republic of Germany: Ed Morgan, Toronto.
Solicitors for the respondent the Attorney General of Canada: The Deputy Attorney General of Canada, Ottawa.
Solicitors for the intervener the United States of America: Gowling Lafleur Henderson LLP, Toronto.
Solicitor for the intervener Amnesty International: David Matas, Winnipeg.