Written by: Greg Staley
Published on Aug 12, 2022
An Ontario court has ruled that Iran’s decision to shoot down flight PS752 with two missiles was an “intentional act” of terrorism. Unfortunately, this hasn’t stopped counsel acting on behalf of the Attorney General of Canada from seeking the dismissal of the motion. It would seem to the untrained legal eye that the Canadian government is arguing on behalf of Iran, and against their own citizens.
“It is beyond me why the government of Canada is taking such a hostile approach to the private law claim brought by the 5 families that I am acting for – I don’t understand it, it is beyond me.” – Mark Arnold, Lawyer for plaintiffs in Zarei v. Iran
Code of conduct complaint against RCMP Commissioner Lucki
Two legal processes are playing out which Canadians need to be aware of – first, there is a code of conduct complaint against RCMP Commissioner Lucki for her refusal to open a criminal investigation into the downing of flight PS752; second, there is a private law case brought forward by Lawyer Mark Arnold on behalf of the family members of the victims against Iran.
I spoke with the lawyer, Ramin Joubin, who is bringing forth the code of conduct complaint against the RCMP Commissioner. We discussed the details of the complaint. Mr. Joubin told Diverge Media that “Ukraine authorities are not going to be able to pursue any criminal file or any sort of prosecution or investigation” on PS752 in his view – this is largely due to the Russia-Ukraine conflict. Mr. Joubin added that “this is the time where Canada is the only option that is out there to actually open a criminal investigation.”
To further solidify the argument that Ukraine is not in a position to pursue an investigation into the downing of PS752, it’s worth noting that Ukraine’s Prosecutor General was recently fired by President Zelensky over “treason concerns.” To further diminish any argument for Ukraine being the more competent authority to investigate this atrocity, I will also point out that Ukraine International Airlines (the airliner involved in PS752 incident) is using the Canadian court system to sue Iran. So again, I ask the question – how is Ukraine the more competent authority to investigate the downing of PS752 by Iran?
This didn’t stop RCMP media relations from reiterating the claim that Ukraine was a competent authority to investigate the incident. When Diverge Media reached out for comment we asked why Canada didn’t launch its own criminal investigation into the downing of PS752. We posited the question, “Wouldn’t a Canadian investigation be beneficial in addition to a Ukrainian-led one?”
The response we received from the RCMP media relations team was staggering – they still had unwavering confidence in the Ukrainian authority’s ability to conduct the criminal investigation and see no need to launch a Canadian-led investigation for our citizens.
“Despite the current circumstances in Ukraine, we have witnessed the abilities and dedication of the Ukrainian investigators and we continue to have confidence in their efforts.” The email closed by saying, “In the pursuit of truth, justice and accountability for this tragedy, the RCMP remains committed to continuing our law enforcement assistance to Ukraine as well as to ensuring we provide the victims’ families, and loved ones affected, with support services. “RCMP media relations in response to questions by Diverge Media
RCMP media relations also addressed the dismissal of the Prosecutor General of Ukraine over treason concerns although their answer was milk-toast at best:
“The RCMP is aware of recent media reports involving the PGO. The RCMP will continue to assess and evaluate our working relationship with international partners, including the PGO. We cannot comment any further on our own operational activities or those of agencies we are collaborating with.”
Mr. Joubin informed Diverge Media that he feels there has been what he perceives as foot-dragging from NSIRA – the agency to whom the complaint was elevated after the Civilian Review and Complaints Commission (CRCC) determined that the complaint was beyond their scope as it had national security implications.
Mr. Joubin also divulged to Diverge Media that in his opinion, Trudeau is being two-faced on the subject of PS752 and that is the biggest issue he has with the situation.
Mr. Joubin closed our conversation by stating that he wanted other family members that lost loved ones in PS752 to be aware of his complaint, the Liberal Parties conduct around PS752 and Diverge Media’s reporting on the matter. Mr. Joubin added that he hopes that “this will become an election issue next time and there will be a strong opposition that raises this issue and turns it to the public debate it deserves to be.”
Speaking on Commissioner Lucki’s letter to the victim’s families of PS752, Mr. Joubin said, “We have in our complaint based on some of the vague statements made by the Commissioner, including that they have other advisors and consider other issues that essentially it points to a different source of the decision. So there is a bit of an opening here to make a statement with pretty good confidence that the RCMP was not alone in this decision and who else is there other than the RCMP? They opened up a door by being very vague and saying oh we have other advice, other issues we’re considering, other quote un-quote “political issues” we’re considering.”
This is the statement from RCMP Commissioner Lucki’s letter that Mr. Joubin was referring to: “A question was also raised on whether the decision to not commence or lead a domestic criminal investigation in Canada was an RCMP decision. It is indeed our responsibility to make these decisions. though we consult with legal counsel and other advisors on the potential viability of obtaining physical evidence, access to witnesses and consider related issues.”
Mark Arnold, lawyer for the Zarei plaintiffs said that he “found the Canadian government to be difficult, and to be opaque and to be uncommunicative.”
The plaintiffs involved in the Zarei v. Iran case were close to getting some semblance of justice for Iran’s shoot-down of Ukrainian flight PS752 – a flight carrying their loved ones. Things appeared to be going well when Justice Belobaba ruled that the Islamic Republic of Iran and the other parties listed as defendants in the claim had “planned and deliberately committed the intentional act of shooting down Ukrainian International Airlines PS 752” but the counsel for the Attorney General of Canada has asked that the motion be dismissed.
In total, Justice Belobaba awarded $107 million for the pain and suffering that Iran had inflicted through their heinous actions as well as money awarded for punitive damages. It’s important to note that because this was a civil case it was judged on the balance of probabilities and not the criminal court standard of beyond a reasonable doubt. Mr. Arnold, the lawyer representing the plaintiffs in Zarei v. Iran called the way the government has dealt with him over his case “government bullying.”
In a press conference held on August 27th, 2021, Mr. Arnold told those in attendance that in the past week he had received what he would call “threatening and harassing emails from the lawyer acting for the Government of Canada.” Mr. Arnold informed Diverge Media that the Canadian government has thrown their weight around in regards to this case but they haven’t yet asked for intervening status as an interested party on the case.
Not only has the government thrown their weight around but they appear to have dragged their feet when it came to transmitting the notice of default judgement against Iran. When discussing this, Mr. Arnold informed Diverge Media that it took the government of Canada 9 months to serve Iran the notice of default judgement.
Mr. Arnold told Diverge Media that he needs the Canadian government to accept the court’s decision that Iran shooting down flight PS752 was an intentional act of terrorism and to accept the number that they receive from Justice Belobaba (compensation) as the baseline for any public law negotiation that the government does with Iran.
However, some in the legal community have been critical of the decision by Justice Belobaba. Among those who have offered critiques on the ruling is lawyer and human rights activist Kaveh Sharooz. In an interview with the CBC, Mr. Sharooz said that “there’s going to be complications, some complexities Uhm, when the families beyond the 4 plaintiffs in this case Uhm, try to seek justice in other forum” (sic).
Mr. Sharooz also said that he could see a possibility where “Iran may make the argument” that “the victims have access to a domestic remedy in Ontario courts.” He continued, “they’ve demonstrated that they can you know, they can achieve justice that way so why negotiate with Canada or why negotiate with the families – I think that’s going to be a challenge.” He also added that he thought it was “going to be difficult to collect on this judgement.”
Mr. Arnold believes a crucial question of this case is if we can seize and sell former diplomatic properties. On that topic, Mr. Arnold informed Diverge Media that he believes there’s $30 million worth of former diplomatic assets of Iran’s in Ottawa alone. In his decision, Justice Belobaba touched on the topic of seizing Iranian assets. In his decision, Justice Belobaba wrote, “Viable Iranian-owned assets and investments remain accessible not only in Canada but world-wide. I have reviewed counsel’s detailed submission in this regard and I am satisfied that some level of enforcement may well be possible and some level of deterrence may well be achieved.”
In discussing the government’s decision to pursue reparations and go to the International Court of Justice to hold Iran accountable for the downing of PS752, Mr. Arnold said, “There’s a politics here and for some reason, our government really wants to pursue what I’m going to call the futile and useless attempt to go to the International Court of Justice and to negotiate with Iran. My prediction – look, I hope it happens but my prediction is that it’s not gonna happen, it’s not gonna happen anytime soon and if it does happen it will provide no results.”
“Trudeau, what is the justice in your eyes?”
Mehrzad Zarei, one of the plaintiffs in Zarei v. Iran told Diverge Media that “we want the justice and we want the truth” (sic). Mr. Zarei went on to say that he has spoken to Prime Minister Trudeau and Commissioner Lucki many times in regards to flight PS752 – a flight carrying Mr. Zarei’s 18-year-old son Arad.
“I was the one fighting with them – why they don’t open a criminal investigation here? I had 3 meetings personal with Justin Trudeau. Three times he promised to myself we gonna serve the justice… so when I see him I say Trudeau what is the justice in your eyes? Is it the money? You want to sell the justice to me negotiating about the amount of the moneys you’ll get for me from Iran for my love? This is not called justice” (sic).
Diverge Media will continue to follow up on this story and will be releasing part 4 of this series shortly.
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