Most recent date of change: August 1, 2010
The Department of Foreign Affairs and International Trade presents its compliments to Their Excellencies the Heads of Missions accredited to Canada and to the international organizations established in Canada, and has the honour to inform them of the Department’s revised policy with respect to instances where persons with diplomatic, consular or equivalent status in Canada are alleged to be driving while impaired, or to have committed other serious traffic offences.
The Department reminds Heads of Missions that, pursuant to Article 41 (1) of the and Article 55 (1) of the Vienna Convention on Consular Relations, it is the duty1 of all persons enjoying privileges and immunities to respect the laws and regulations of the receiving State, without prejudice to their privileges and immunities. The Department’s revised policy is based upon that principle, as well as the position that the operation of a motor vehicle by persons enjoying privileges and immunities in Canada is not a right but a privilege. In implementing the policy, the Department will be guided by the paramount importance of ensuring the protection and safety of Canadians and others in Canada including members of the diplomatic community. At the same time, the Department reiterates the importance it attaches to the Vienna Conventions and its commitment to respect the obligations contained therein.
In Canada, the maximum legal blood alcohol concentration for fully licensed drivers is 80 milligrams of alcohol in 100 millilitres of blood (0.08). Driving with a blood alcohol concentration in excess of 0.08 is a criminal offence.
A more detailed look at the Province of Ontario
Notwithstanding the above, every novice driver and young driver must, as a condition of his or her driver's licence, maintain a blood alcohol concentration level of zero while driving in Ontario. The expression "young driver" means a driver who is under 22 years old, whether or not he or she resides in Ontario. Every novice driver or young driver who gets behind the wheel with a blood alcohol concentration in excess of zero contravenes Ontario law and is liable to a fine of not less than $60 and not more than $500. In addition, the novice driver faces the suspension, cancellation or change of his or her driver's licence, while the young driver faces a 30-day licence suspension.
Also, in Ontario, fully licensed drivers who are caught driving with a blood alcohol concentration from 0.05 to 0.08 ("warn range"), face a 3-day licence suspension for a first occurrence, a 7-day suspension for a second occurrence and a 30-day suspension for subsequent occurrences.
To know more about blood alcohol concentration levels under the laws of Ontario or of other provinces, consult the relevant provincial ministry of transportation.
Stopping of Vehicles with Diplomatic Licence Plates
On reasonable suspicion that the driver of a vehicle bearing diplomatic or consular licence plates has consumed alcohol or is otherwise impaired, police forces may stop the vehicle and request the driver to present identification2. Persons enjoying consular immunity3 are covered by the policy set out in the Department’s Note No. XDC-4146 and may be required to submit to roadside screening and breathalyser tests. Notwithstanding the privileges and immunities the driver may enjoy, police forces may take such reasonable measures as are necessary to ensure that the driver is not a threat to public safety or to himself or herself. Such measures may include requests to establish whether the person’s co-ordination or faculties are affected by alcohol or other substances. In the event that a police officer assesses that the driver is impaired, the officer will so inform the driver and may request that he or she take a roadside screening test or a breathalyser test. Persons enjoying diplomatic immunity are not obligated to submit to such tests, but may nevertheless wish to agree to the request in order to establish that they are not driving while impaired. If the police officer continues to have a reasonable suspicion that the driver is impaired, he or she will take all reasonable measures to prevent the driver from operating the vehicle. Such measures may include removal of the keys and preventing the driver from re-entering the vehicle. The police will offer assistance to the driver to find an alternative means to continue his or her journey by, inter alia, contacting the Mission or a member of the driver’s family, or arranging for public transportation. The police will not permit a driver, for his or her own safety, to leave the area where the vehicle has been stopped unless that person is in the care of another person willing and able to assume that responsibility. For public safety reasons and the protection of the vehicle, the police may arrange for the vehicle to be moved to a safe location. The Department will not intervene in cases where police forces have prevented a person with diplomatic status from driving, where the police have acted in accordance with this policy and to protect public safety.
In every case where the Department receives a police report on an incident where police forces have intervened to prevent a person enjoying diplomatic immunity4 from driving in the interests of public safety, the Department will contact the relevant Head of Mission in writing and inform him or her of the incident and the allegations of the police. The Department will inform the Head of Mission that police forces or other authorities may lay criminal charges. The Department will request in writing that the sending State waive administrative immunity so that the Department may hold the licence of the individual concerned and contact the relevant authorities to seek the suspension of that licence for a period of up to one year. If the sending State agrees to waive immunity for this purpose, a note will be required from the Mission to the Department confirming the waiver of immunity. Alternatively, the Department may accept a written undertaking by the Head of Mission that he or she will ensure that the person concerned will not drive in Canada for a period of up to one year. In the event that a person, whose privilege to drive in Canada has been suspended, fails to respect this condition of his or her continued assignment in Canada, the Department will immediately request that person’s recall.
In cases of impaired driving or other major traffic offences, police forces have been encouraged by the Department to lay charges under the Criminal Code of Canada, regardless of the immunity of the person concerned. In accordance with the Vienna Convention on Diplomatic Relations5, police forces shall not detain or arrest a person with diplomatic status6.
Should a person enjoying diplomatic immunity7 be charged with impaired driving or another major traffic offence, the Department will contact the Head of Mission to formally request the sending State to waive immunity8. In the event that the sending State waives immunity, the Department will notify the appropriate local authorities. The Department expects that the person charged will comply with the decision of the court where the matter is adjudicated, including the payment of any fines and the completion of any mandatory education or treatment programs.
Should the sending State decide not to waive the immunity, the Department may accept a written undertaking by the Head of Mission that he or she will ensure that the person charged will not drive in Canada for a period of at least one year.
In the event that a person, whose privilege to drive in Canada has been suspended, fails to respect this condition of his or her continued assignment to Canada, the Department will immediately request his or her recall.
In the absence of an acceptance of one of the aforementioned options, the Department will request the recall of the individual.
If a person enjoying diplomatic privileges and immunities9 is involved in a second instance of impaired driving, or is charged with a traffic offence involving death or injury, the Department will request the relevant Mission to waive immunity. If the sending State decides not to waive immunity, the Department will require the person concerned to leave Canada. In some exceptional circumstances, the Department may require the individual to leave Canada even in cases where the sending State agrees to waive immunity.
The Department recognizes that the vast majority of persons enjoying privileges and immunities in Canada comply with their duty to respect local laws. However, the failure of even a small minority of persons to respect Canadian laws can lead to tragic consequences for Canadians and the persons involved. For this reason, the Department is determined to work closely with police forces to implement rigorously the policy on impaired driving. In this regard, the police will be informed in writing of any action taken by the Department pursuant to a report received by the Office of Protocol related to impaired driving or other serious traffic offences. The Department requests that Missions review the revised policy with their personnel across Canada to ensure that the policy is clearly understood. The Department wishes to inform Heads of Missions that their co-operation in ensuring that this policy is fully respected is both appreciated and expected. The Department will consider transgressions of this policy by persons accredited to Canada, including failures to respect undertakings made pursuant to this policy, as the responsibility of the Head of Mission. The Office of Protocol would be pleased to provide any further clarification of this policy.
The Department of Foreign Affairs and International Trade avails itself of this opportunity to renew to Their Excellencies the Heads of Missions accredited to Canada and to the international organizations established in Canada the assurances of its highest consideration.
Ottawa, March 14, 2001
1 This duty is also referenced in headquarters agreements between the Government of Canada and the various international organizations.
2 Identification includes a valid driver's licence and the federal Identity Card issued by the Office of Protocol.
3 In Canada, consular officers, including consuls generals, as well as certain designated officials of international organizations enjoy limited or functional immunity, restricted to those actions arising from their official functions.
4 In instances where the person enjoys limited immunity and is amenable to the jurisdiction of the Canadian judicial and/or administrative authorities, the Department will request in writing that the sending State return the licence of the individual concerned so that the Department may hold it and contact the relevant authorities to seek the suspension of that licence for a period of up to one year. Alternatively, the Department may accept a written undertaking by the Head of Mission or Head of Inernational Organization that he or she will ensure that the person concerned will not drive in Canada for a period of up to one year. In the event that a person, whose privilege to drive in Canada has been suspended, fails to respect this condition during his or her continued assignment in Canada, the Department will immediately request that person’s recall.
5 Or other applicable treaties, such as headquarters agreements, in the case of international organizations.
6 As for consular officers, and in keeping with the terms of the Vienna Convention on Consular Relations, such persons cannot be arrested or detained pending trial unless a judicial warrant has been obtained in advance and the charge is for a “grave crime”.
7 Should a person enjoying limited or functional immunity (i.e. all those who cannot claim as a right the immunity from local tribunals generally accorded to diplomatic agents) be charged with impaired driving or another major traffic offence, the Department will contact the Head of Mission or Head of International Organization. The Department, while of the view that most instances of driving, including the journey to and from work, are not considered as “official acts” to which immunity applies, recognizes that the determination as to whether such act was indeed performed in pursuance of official functions rests with the appropriate judicial authority, thus opening the door to immunity being affirmed in court. Notwithstanding, the Department expects that the person charged will appear before the court (to the extent that the court has determined that it holds jurisdiction to adjudicate the case), and comply with the decision of the court where the matter is adjudicated, including the payment of any fines and the completion of any mandatory education or treatment programs. In rare cases where the court has determined that immunity applies to the act, the Department will follow the course of action comparable to that which is described for diplomatic immunity and request a waiver of such immunity.
8 The Canadian practice, when requesting the waiver of diplomatic immunity, is to request a waiver for the purpose of both court appearance and execution of the sentence.
9 Where a person enjoying more limited or functional immunity is involved in a second instance of impaired driving, or is charged with a traffic offence involving death or injury, the Department expects that the person charged will appear before the competent authorities and comply with the decision of the court where the matter is adjudicated, including the payment of any fines and the completion of any mandatory education or treatment programs. The Department may also require the individual to leave Canada.