On January 8, 2020, Ukraine International Airlines Flight 752 was shot down minutes after takeoff from Tehran’s Imam Khomeini International Airport by the Iranian Islamic Revolutionary Guards Corps. All 176 passengers and crew on board were killed. Fifty-five Canadian citizens and 30 permanent residents were among the 176. A significant number of victims were young people, including children. According to a BBC report at the time: “The deaths have cast a pall over university campuses across the country [Canada].” Eight days later, Canada and its International Coordination and Response Group partners created a legal subcommittee to coordinate and collaborate on efforts to hold Iran accountable for its violations of international law.
The Canadian government responded with appropriate compassion, with promises of justice for the victims’ families, but quite abruptly, the tide has turned, forcing the families to use every legal means to pursue justice on their own, and the interests of all potential victims of terror. This is peculiar, given that only two months ago, Canada reiterated its unwavering support.
BACKGROUND REACTION: UN, UKRAINE AND CANADA
As expected, the Iranian regime immediately denied responsibility for its attack, but acknowledged three days later that its paramilitary Islamic Revolutionary Guard Corps mistakenly hit the Ukrainian jetliner with two surface-to-air missiles. Facing international pressure, Iran proceeded with its own follow-up investigation, and “declared that the shooting-down was a ‘disastrous mistake’ by forces who were on high alert during a regional confrontation with the United States,” and that “the plane was identified as a hostile target due to a mistake by the air defence operator.” Despite this admission, the regime provided another excuse, of a “misalignment of a battery’s radar and a lack of communication between the air defence operator and his commanders.” The U.N. concluded the obvious, that the Iranian report “contained inconsistencies.” Agnès Callamard, “the UN special rapporteur on extrajudicial, summary or arbitrary executions, concluded that the regime violated the ‘right to life’ of those 176 people by resorting to lethal force and failing to take proper precautions while allowing military units to operate so closely to civilian aircraft…”
Adding to the “inconsistencies” four months ago, Iran brought indictments against “10 of the officials who had a role” in the shooting-down of flight 752. Iran indicated that these 10 would be “subject to disciplinary action including dismissals or demotions, and will soon go on trial.” But there was no indication on the identity of these 10 “officials.” Hurried to bring a close to the case, the head of the Iranian armed forces’ judicial organization, Shokrollah Bahrami, announced that Iran’s military court is finished with the case, that indictments were signed, and that was that. Specifically in Bahrami’s words: “Inshallah, the case will be followed up in court in the new year”!
As Iran tries to deflect accountability and global scrutiny, Ukraine’s ambassador to Canada, Andriy Shevchenko, isn’t convinced of the regime’s tactics. Shevchenko warned that “Iran’s decision to indict 10 Iranian officials for their role in shooting down Flight PS752 without publicly naming the officials only pushes his country closer to deciding whether to take international legal action.”
Only two months ago, the Canadian government handed down its own “factual analysis,” and Canada’s Prime Minister Justin Trudeau delivered a moving message reiterating his government’s support for the victims. He stated:
Canada will vigorously pursue full reparations for the downing and the harm that Iran has caused to the victims and their families. This includes, but is not limited to, seeking a full accounting of the events that took place, complete transparency regarding the ongoing criminal prosecutions, and concrete guarantees by Iran that measures have been taken to ensure such a tragedy never happens again. Canada also will be taking action to demand accountability from Iran in international forums.
To the families and loved ones of the victims: we will never walk away from our commitment to get you the answers you deserve, and we will take every measure necessary to ensure justice is served. As a country, we are here to support you through this heartbreak and sadness, and we will continue to honour the memory of those who were lost.
The families of victims of Flight PS752 formed an Association to support one another, seek out answers to their questions, and “most importantly, seek justice.” In essence, they are holding Canada accountable to ensure that Canada holds Iran accountable, but tension is building, as will be described further on.
THE ONTARIO SUPERIOR COURT’S GROUNDBREAKING RULING:
Less than four months ago, the Ontario Superior Court ruled in a civil case that the Iran’s downing of Flight 752 was a “deliberate act of terrorism.”
The plaintiffs were Merzhad Zarei (the initiator of the suit), who lost his teen son; Shahin Moghaddam, who lost his wife and son; Ali Gorji, who lost his newlywed niece and her husband; and “Jane Doe,” who wishes to remain anonymous for legitimate fear of reprisals from Iran.
Justice Edward Belobaba found “on a balance of probabilities that the missile attacks on Flight 752 were intentional.” He stated that “the plaintiffs have established that the shooting down of Flight 752 by the defendants was an act of terrorism and constitutes ‘terrorist activity.”
After winning an important case, what comes next?
BROKEN PROMISES AND JUSTICE FOR VICTIMS TERRORISM ACT
It has been 19 months since Canada united in shock and grief over the downing of Flight 752. With the passage of time and innumerable news cycles later, the crash has become a distant memory for many Canadians, as new catastrophic events dominate headlines, such as, most recently, the Taliban takeover of Afghanistan. But for the families of the victims of Flight 752, their grief abides, and the promises made by the Canadian government are increasingly appearing to be empty.
Two class action lawsuits from last year against Iran are still outstanding, while Iran has stood its ground in claiming that the Canadian court has “no jurisdiction,” and that all “judicial proceedings will be conducted inside Iran.” However, Canadian lawyer Mark Arnold says that Canada’s jurisdictional right is based on the 2012 Justice for Victims of Terrorism Act (JVTA), which allows victims of terrorism to sue perpetrators of terrorism for loss or damage anywhere in the world. This includes listed foreign states, such as Iran. “Tehran has vociferously objected to the listing and has sought unsuccessfully to have the JVTA overturned.”
The Act resulted in a major win for victims against Iran in 2019, when over 28 million dollars of seized Iranian government properties — namely, buildings in Ottawa and Toronto — were sold off, and some of the proceeds were transferred to victims of terror. It was a significant victory for the organization Canadian Coalition Against Terror (C-CAT), which lobbied for passage of the Justice for Victims of Terrorism Act.
My own statement in support of the group’s heroic efforts was published as an endorsement in 2010:
Canada is adopting a new bill (Bill S-7) that will allow victims of terrorism to sue for terrorist acts in Canadian court, putting an onus of responsibility and accountability on terrorist states and/or organizations. Albeit a complicated task, it is a step in the right direction…. [S]uch legal suits are still promising beyond the compensatory factor. They serve as one critical part of a multifaceted strategy in the War on Terror: to isolate, marginalize, embarrass and hopefully shed light on the heinous crimes of terrorists and their impact on innocent victims. Forcing terrorist organizations and States into a position of public accountability before the international community is a welcome strategy that Canada has wisely endorsed through Bill S-7. Hopefully we will see more of this in the West.
A TURN FOR THE WORSE: CODE OF CONDUCT INVESTIGATION LAUNCHED AGAINST RCMP POLICE COMMISSIONER
On August 23, Global News reported a sudden turn for the worse by the Canadian government and the Royal Canadian Mounted Police (RCMP):
Family members of the Iran plane disaster are demanding an investigation into Royal Canadian Mounted Police Commissioner Brenda Lucki over the RCMP’s refusal to open a criminal investigation into the crash that killed 57 Canadians on board.
The complainants were the same plaintiffs in the Ontario Supreme Court case that ruled that the Iranian downing of the passenger jet was a “deliberate and intentional act of terrorism”: Shahin Moghaddam, Mehrzad Zarei, and Ali Gorji. They formed a new coalition, which included lawyer Ramin Joubin (the official counsel of Zarei in the complaint) and retired RCMP Officer Andrew Brooke. On August 25, Andrew Brooke tweeted:
More unfolded to substantiate Brooke’s tweet. That next step was on August 27, when the coalition held a press conference to announce their formal public complaint against RCMP Commissioner Brenda Lucki.
Following the press conference, a subsequent media release was sent to me via email. It confirmed that the formal complaint was filed with The Civilian Review and Complaints Commission for the RCMP (CRCC). It noted that the “CRCC is an agency of the federal government, distinct and independent from the RCMP. Its Mission is to deliver a robust complaint process which holds the RCMP accountable. It is impartial and accountable to the Canadian public.”
Key elements included in the release:
On May 20, 2021, Ontario Superior Court Justice Belobaba in a civil judgement found on a balance of probabilities that the attack on Flight PS752 was “intentional” and an “act of terrorism.”
On August 11, 2021, a government spokesperson informed the families: “The Government of Canada does not consider this an intentional act.” The official position of the government remains at odds with the ruling of the Ontario court.
One needs to pause here and reconcile what the families were told by government, versus the Government of Canada’s public statements of promise. The Press release goes on:
In a letter, dated on or about July 7, 2021, RCMP Commissioner Lucki informed the families of the victims that “the RCMP is not conducting its own, domestic criminal investigation into the downing…”
The decision of Commissioner Lucki not to open a Canadian criminal investigation is in clear disregard of the provisions of the Criminal Code of Canada. The exercise of discretionary police power is not limitless (R v Beaudry, 2007 SCC 5)……
FOR REASONS NOT KNOWN, the Government of Canada appears content to walk away from the pursuit of criminal justice.
ULTIMATELY, if this government is allowed to proceed on a course toward settlement negotiations and reparations, it sends a message to the wider international community, namely: that the Government of Canada is not only ‘unable to take effective action’ with respect to a complex and difficult investigation, but ultimately, the Government of Canada is ‘not willing’ to do everything in its power to protect its citizens outside Canada.
FAMILIES OF VICTIMS CHALLENGE THE TRUDEAU GOVERNMENT
Then a day later, Global News reported: Trudeau confronted by father of Iran plane crash victim at campaign stop. The father referenced was none other than Mehrzad Zarei.
Zarei asked Trudeau about why Canada wasn’t criminally prosecuting members of the Iranian regime despite the evidence against them, and why the government hadn’t labelled the incident as an act of terrorism.
The article goes on:
Trudeau listened about the unfulfilled promise amid a campaign where he is making new promises to voters.
Animated, Zarei pressed his point.
Finally, Trudeau reached out and hugged Zarei, speaking in his ear and promising anew to do everything possible to get justice for the victims, doing so in a small pocket inside a crush of security, journalists and onlookers as the Liberal leader hit the hustings.”
Zarei’s reported response to Trudeau:
“I hear now he’s talking from (the) bottom of his heart to go for justice for the families,” Zarei said afterwards, wearing a small button on his chest bearing his son’s face and name.
“That’s why I kept calling. And I believe him (that) he is going to do the justice for the people.”
Noting Zarei’s pursuit of justice, I had a question of my own, and so I emailed Mr. Andrew Brooke to see whether he may be able to point me in the right direction for some possible clarification. I cc’d the well-known Iranian dissident Shabnam Assadollahi. In an email dated August 29, 2021 at 2:20 PM EDT, I wrote:
Unfortunately I do not share the same optimism as Merzhad Zarei about Trudeau.
My question to both of you with regards to this report is whether any of you have seen any indication whatsoever that the Trudeau government has even hinted that it would hold the regime accountable.
Fast forward to September 9, 2021 at 4:53 PM EDT. Mehrzad Zarei’s lawyer, Ramin Joubin, sent an email to me as follows, copied to Andy Brooke:
Subject: Trudeau Playing with Emotions of Canadian Father of Victim of IRGC Attack
Dear Ms. Williams,
I’m the lawyer for the father of the victim of the IRGC aerial attack who is also the man Trudeau hugged and whispered sweet nothings to. His name is Mehrzad Zarei and he has contacted me with some concerns. I’m his official counsel in the complaint against the RCMP Commissioner to open a criminal investigation (he’s one of the complainants). Mehrzad wants to make a number of points clear about what occurred at Richmond Hill during that hug.
First, he continues to be very concerned that the Liberal government refused to open a criminal investigation. It’s not only the RCMP that refused to open a criminal investigation, but the Liberal government has formally told him that they can not help him with criminal accountability and that he should go to the Ukraine to seek assistance on that.
Zarei expressed his concerns that he feels that government of Canada should defend his son’s rights and open an investigation. Indeed, domestic and international criminal laws require Canada to do so. Ukraine has opened an investigation despite the much smaller number of lives affected in Ukraine.
Zarei also wanted to make clear that he doesn’t have much faith that the Liberal government will start an investigation without pressure. He WANTS to believe that the Trudeau government will open an investigation now that a complaint has been filed.
Part of the reason for his confidence is that in the past few weeks, it has become clear that the Liberal government lawyers have given him bad legal advice. They told him it was not possible to open an investigation whilst it was, just as Ukraine has opened one.
Many people are being misinformed by the Liberal government (and by Trudeau himself during the confrontation by Zarei) that simply because a crime occurs overseas, it is not in the jurisdiction of Canada nor the RCMP to investigate and even prosecute the crime. That is simply bad legal advice, and is deceptive.
I am concerned about the bad legal advice being given to these families and that these families’ emotions are being manipulated by false promises. My client is under the impression that Trudeau made a promise to him during the hug to open a criminal investigation. Yet I highly doubt the Liberals will backtrack from their previous position not to do so. This is simply going to frustrate and anger the families more now that they have Trudeau’s new promise made during that hug in mind.
Barrister & Solicitor
In a follow-up email, Mr Joubin wrote that I had his permission and that of Mr Zarei to disclose any and all parts of his email.
Iran’s actions have caused inconsolable grief among many Canadian families. It is the responsibility of the Canadian government to satisfy their longing for resolution and justice. Thuggery is to be expected from the Iranian regime, but Canada is being watched. How does the Canadian government intend to follow up in a manner that will dissuade rogue states from mounting future terror attacks? And how can Trudeau possibly justify abandoning the families of those who were killed by Iran aboard Flight 752? Iran has also been reportedly engaged in a campaign of harassment and intimidation of the surviving family members of Flight 752. The families and all Canadians await truthful answers and the requisite follow-up to promises made by the Trudeau government.