Ontario courts have concluded that states with a record of torture benefit from jurisdictional immunity in Canada because the State Immunity Act (SIA) does not expressly protect actions involving torture. Although the courts concluded that the SIA replaced the preexisting common law related to state immunity, the author believes this conclusion to be unfounded. To demonstrate this conclusion, the author begins by explaining the history and evolution of the doctrine of sovereign immunity. He then argues that alongside the legislative regime of the SIA, there remains in Canada a common law regime that gives effect to emerging exceptions to sovereign immunity that are acknowledged by international custom. Finally, he proposes an analytical framework that will allow consideration and recognition of new exceptions to sovereign immunity within the common law framework. The author concludes that torture should not be characterized as a sovereign act; indeed, only sovereign acts should enjoy jurisdictional immunity in common law. While a "sovereign act" is an act that arises in the exercise of legitimate public power, acts like torture, which contravene norms of international law, are repudiated by the international community and are thus illegitimate.
