Canada will soon enter into negotiations with Iran on reparations for the victims’ families
CBC News | Ashley Burke, Nahayat Tizhoosh | May 20, 2021
Ontario’s Superior Court of Justice has ruled that the shooting down of Flight PS752 by Iran was an intentional act of terrorism.
The Islamic Revolutionary Guard Corps (IRGC) shot down the Ukraine International Airlines flight with two surface-to-air missiles shortly after takeoff in Tehran on Jan. 8, 2020, killing all 176 passengers onboard. There were 138 passengers onboard with ties to Canada, including 55 Canadian citizens and 30 permanent residents.
“The plaintiffs have established that the shooting down of Flight 752 by the defendants was an act of terrorism and constitutes ‘terrorist activity’…”Justice Edward Belobaba wrote in his decision issued Thursday.
“I find on a balance of probabilities that the missile attacks on Flight 752 were intentional and directly caused the deaths of all onboard.”
Iran did not defend itself in court to refute the plaintiff’s evidence, making this a default judgment.
Belobaba said based on evidence from the plaintiffs and the balance of probabilities, the incident is considered a terrorist act under the State Immunity Act, the Justice for Victims of Terrorism Act and the Criminal Code.
The federal government plans to release its own forensic analysis with its own findings of fact about the tragedy which is expected to hold more weight, say legal experts.
Lawyer plans to look internationally to seize assets
The suit’s defendants include Iran, the country’s armed forces, Iran’s Revolutionary Guard Corps and Supreme Leader Ali Khamenei.
The court decision is a way for victims’ families in Canada to seek damages from Iran for the death of their loved ones.
Iran was served the claim in the fall of 2020 and was noted in default last December. The justice said the plaintiffs are entitled to default judgment on liability. Another court hearing will take place to determine compensation.
Litigation lawyer Mark Arnold is representing four families who lost children, nieces, spouses and nephews. The case was filed by Shahin Moghaddam, Mehrzad Zarei and Ali Gorji. Another plaintiff is unnamed over fear of reprisals from Iran.
Arnold told David Common, host of CBC News Network’s Power & Politics, that there are Iranian assets in Canada and internationally that he would try to seize, including oil tankers.
“We will be looking internationally to seize whatever it is we can seize once we have a determination of what the level of compensation is,” he said.
He also said his clients want justice and their day in court in front of an impartial judge.
But lawyer and human rights activist Kaveh Shahrooz said while today’s ruling is welcome news for the families, the next challenge they will face is finding Iranian assets in Canada or enforcing the judgment in other jurisdictions.
“It is my hope that this decision does not prevent Canada’s government from pursuing this case in international fora like the International Court of Justice,” said Shahrooz. “And 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.”
Justice relied on 2 experts provided by plaintiff
Belobaba said he relied on two experts’ reports filed by the plaintiffs to make the decision.
Dr. Bahman Jeldi, an Iranian analyst with the Canadian Center for Persian Studies, said the IRGC shot down the civilian plane with the intent to destroy it.
“Considering the TOR-M1 advanced military capabilities, two radars and control system, pre-approved flight plans and control of the airspace resting with the IRGC, and the firing of not one, but two missiles, it is not possible for two missiles to be fired by mistake as the IRGC claims,” Jeldi said, as quoted in the decision. “There are multiple redundant systems and procedures to prevent accidental shooting of civilian aircraft.”
Belobaba also said he relied on findings from Alireza Nader, a senior fellow at the Foundation for Defense of Democracies.
“It is highly unlikely that a technical ‘misalignment’ or ‘human error’ caused the IRGC operators to shoot down PS752,” Nader said, as quoted in the judgment.
The judge also pointed to findings from Agnès Callamard, the UN special rapporteur on extrajudicial, summary or arbitrary executions, who conducted an investigation. The prime minister’s former special advisor on Flight PS752, Ralph Goodale, and his report were also noted in the judge’s decision.
Canada entering into negotiations with Iran soon
Conservative critic for foreign affairs, Michael Chong, said this court finding is “another confirmation that the IRGC should be listed as a terrorist entity by the Trudeau government, something it has refused to do.
“Conservatives have been calling on the Trudeau government to stand up and help the victims and families of Flight 752 find closure and justice by listing the IRGC as a terrorist entity,” he said in a statement.
Foreign Affairs Minister Marc Garneau said last week Canada has identified the Quds Force, a branch of the IRGC, as a terrorist entity; however, victims’ families say that’s not enough because the Quds Force is not the Aerospace Force, the branch responsible for shooting down the plane. The Quds Force is in charge of operations outside Iran.
In June 2018, the House of Commons passed a motion overwhelmingly calling on the federal government to make the change. The IRGC has not been listed as a terrorist entity since that vote.
The lawyers involved in the private lawsuit were to hold a news conference Friday.