CROWN |
Prerogatives |
Copello v. Canada (Minister of Foreign Affairs)
A-11-02
2003 FCA 295, Linden J.A.
7/3/03
9 pp.
Appeal from decision of Federal Court ([2002] 3 F.C. 24), dismissing appellant's judicial review seeking to quash "decision" of Minister of Foreign Affairs and International Trade (Minister) requesting appellant leave Canada-- Appellant, Italian diplomat posted to Ottawa in August 1995--Diplomatic career unfolded normally until two incidents transpired in April, 1998, giving rise to decision which brought appellant to Federal Court--Whether Motions Judge erred in concluding Minister's decision to request recall of appellant political rather than legal question, therefore not reviewable as result of it not being justiciable--In general, exercise of Crown prerogative beyond scope of judicial review--Vienna convention, Art. 9 providing, states have right to declare other states diplomatic staff persona non grata without explanation--Art. 9 not specifically enacted in Canadian legislation but relevant as Canadian courts generally recognize international legal norms: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817--Motions Judge holding in absence of legislative implementation by Canada, Art. 9 does not form part of domestic law; exclusion of 9 can only mean Parliament intended expulsion of diplomats remain in sphere of Crown prerogative in conduct of foreign affairs by Canada, and immune from judicial review--Although may seem unfair Canada can expel diplomat from within borders without ever having to justify decision in court, traditional power exists in order to foster friendly diplomatic relations between nations-- Also in accordance with principles of international law-- Diplomats guests in foreign countries in which they live and work--Role to "contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems"--Diplomatic status carries with it certain privileges and immunities, but purpose of these privileges and immunities not for benefit of individual diplomats--Rather, as reflected in preamble to Vienna Convention, these privileges and immunities attach to diplomatic agents in order "to ensure the efficient perform-ances of functions of diplomatic missions as representing States"--Consequently, usual rules of administrative law, those concerned with procedural fairness and rule of law, do not apply--Appellant, who continues to reside in Canada, does not seem to have lost individual right to remain in Canada or to apply for immigrant status as result of withdrawal of his diplomatic status by Republic of Italy-- Appeal dismissed--Vienna Convention on Diplomatic Relations, [1996] Can. T.S. No. 29, Art. 9.