Immunity and inviolability

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For the purposes of these guidelines,

  • Mission means a high commission, an embassy, an international organization or an other office that enjoys privileges and immunities under the Foreign Missions and International Organizations Act or the Privileges and Immunities (North Atlantic Treaty Organisation) Act
  • GAC refers to the applied name (Global Affairs Canada) of the Department of Foreign Affairs, Trade and Development

Principles of immunity and inviolability, their legal framework and practical application

GAC manages the framework of its diplomatic, consular and multilateral relations keeping in mind, among other things, Canadian legislation, such as the Foreign Missions and International Organizations Act, and other policies and regulations, and in full observance of the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, the Convention on the Privileges and Immunities of the United Nations.

The Privileges and Immunities Unit of the Office of Protocol is the point of contact for these matters and at the disposal of foreign officials and Canadian law enforcement authorities to discuss issues that may arise in this regard.

Immunity

Diplomatic and consular immunity is a long-standing principle of international law, which enables foreign officials to carry out their international relations duties with freedom and security. The purpose of immunity is not to benefit individuals, financially or otherwise, but to ensure the efficient performance of the functions discharged by accredited offices and personnel in other countries.

Under international law, diplomatic, consular, and other recognized persons are accorded a specific treatment by the host country to ensure their independence and a measure of insulation from the country’s application of its standard law enforcement practices. Countries benefit greatly from this treatment as it protects foreign representatives who have been assigned to places that have very different legal and judicial systems from their own.

The degree of immunity varies according to the status of the foreign representative, which in turn reflects their position’s functions. It can range from immunity from criminal, civil, and administrative jurisdiction to narrower immunity, such as immunity for official acts only.

Immunity prohibits or limits the exercise of a host country’s legal authority over a foreign representative. For example, diplomatic agents – the category of personnel with the highest level of immunity – cannot be arrested, detained, or compelled to appear in court. The same immunity applies to diplomatic agents’ accredited family members who accompany them on their assignments.

The immunity of consular officials, including honorary consular officers, is more restricted than those of diplomatic staff and generally limited to acts performed in the exercise of consular functions (called functional immunity).

Inviolability

Related to the concept of immunity is the concept of inviolability. Where immunity limits the powers of authorities to arrest and detain, inviolability limits them from performing invasive measures, such as entering premises and carrying out searches and seizures. Inviolability is afforded to real property, including the premises of diplomatic missions and consular posts, and the personal residences, vehicles and effects, belonging to personnel with diplomatic status and their accredited family members.

Diplomatic premises – the offices of an embassy or high commission and the private residences of accredited diplomatic staff – can only be entered with the express consent of the head of mission. Consular premises may only be entered with the permission of the head of post unless a fire or other disaster prompts immediate protective action. Consular officers’ residences can be entered, subject to normal procedures.

Official documents and archives of a diplomatic mission or consular post are inviolable at all times and must not be interfered with wherever they may be located.

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Scope of immunity and inviolability in the context of public safety

Canadian police must act in the interests of public safety, including protecting their own officers from harm. If required, they will secure the well-being of an individual enjoying immunity and inviolability or prevent the continuation of a crime by taking them into temporary protection or custody.

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Safeguarding immunity and inviolability

The Government of Canada takes seriously its international legal obligations and executes measures to safeguard the immunity and inviolability accorded to privileged persons. To this end, the Office of Protocol maintains regular contact with federal, provincial, and municipal police, and other law enforcement authorities to promote a better understanding of the immunity and inviolability enjoyed by the different categories of officials, and to convey information about the community of foreign personnel living and working in their jurisdictions.

While the Government of Canada trusts law enforcement authorities to respect accredited persons and the immunities they are accorded under international law; it also expects such persons to uphold their duty under international law to respect the laws and regulations of their host country.

Waivers of immunity and inviolability

Waivers of immunity

Consistent with the duty to respect Canadian laws and regulations, the Government of Canada expects countries to partially waive the immunity of an official or family member accorded with diplomatic status when a crime or an incident is alleged to have occurred. This partial waiver will allow legal proceedings to be initiated. This expectation is founded on the recognition that Canada’s system of justice – based on the rule of law – is fair, open, and accountable.

Persons with immunity from criminal, civil, and administrative jurisdiction may not waive their own immunity. Immunity does not belong to the individual and can only be waived by the sending state. Diplomatic missions are to seek instructions from their foreign ministries and notify the Office of Protocol of their government’s decision to waive or not to waive immunity.

Laying charges

When Canadian police have determined that the laying of a charge is warranted and where the alleged offender enjoys immunity from criminal jurisdiction, the Office of Protocol will request a partial waiver of immunity from the sending state (through the head of the mission) to allow the accused individual to appear in a Canadian court and to be sentenced in the event that they are found guilty.

Criminal charges will be laid for indictable offences such as murder, manslaughter, sexual assault, theft, drug trafficking, and other serious crimes; as well as for driving violations that threaten public safety, like dangerous driving and driving while impaired by drugs or alcohol.

When a serious crime is alleged to have been perpetrated, Canada will seek a waiver from the sending country to enable an individual with immunity to be interviewed to determine whether charges should be brought against that person. It will also request a waiver to permit a person to give evidence as a witness against another individual who has been charged with an offence. Further, Canada will pursue a waiver in cases where a person is required to be identified through fingerprinting as part of the charge process.

GAC makes every effort to obtain a waiver of immunity when a serious crime or driving offence has been committed. However, should a sending country refuse a waiver, Canada will request in writing that the person be recalled/withdrawn. If the recall does not occur, the individual will be designated persona non grata and expelled from the country.

When a serious violation has been carried out by an accredited representative or family member, and the person leaves the country, a request may be made by Canada to the sending state to prosecute that individual. This is consistent with the understanding that in the case of a major crime it is in the interests of justice for the alleged offender to be brought before the court, whether in Canada or in their home country.

Non-criminal incidents

Countries and international organizations may also be asked to partially waive a privileged person’s immunity in non-criminal circumstances. A request for such a waiver could be sought: to respond to a serious traffic or parking infraction under provincial or municipal jurisdiction, or to initiate or respond to civil or administrative legal proceedings in Canada, or to give evidence as a witness in an investigation or at a trial.

In all instances, to bring the waiver into effect, missions must notify the Office of Protocol of their foreign ministry’s decision to waive immunity. GAC will convey this information to the appropriate court officials.

Waivers of inviolability

Canadian police and other authorities may seek assistance to facilitate investigations by obtaining access to camera footage or other information deemed to form part of inviolable archives and documents. In such cases, GAC will request the release of the information through diplomatic channels. The request will provide as much detail as possible to allow for informed decision-making, including a description of the incident in question, the nature of the investigation, and whether Canadian authorities are seeking to use the information as evidence to support a criminal charge.

State immunity and the rules for service on the Government of Canada

State immunity – or sovereign immunity as it is also referred to – is a principle of international law that has become part of the national laws of many countries. It is based on the concept of the sovereign dignity and equality of states, and to the respect and due regard which states owe each other in the community of nations. It assumes that a state has no right to judge the actions of another state by the standards of its national law. It protects a sovereign country by conferring immunity from adjudication, enforcement, and execution.

In view of state immunity, there are special rules regarding the service of judicial and administrative proceedings on sovereign countries. These exceptional provisions speak directly to the fact that states are entitled to greater consideration than private entities.

Serving originating judicial or administrative documents on the Canadian state is carried out by a country’s foreign ministry, via its diplomatic mission accredited to Canada, to GAC. Service on a Canadian diplomatic mission or consular post abroad is invalid and constitutes a breach of the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations, which respectively provide for the inviolability of diplomatic and consular premises.

Also, as Canada’s missions and posts abroad are not legal entities separate from the Government of Canada, any judicial or administrative proceedings naming as a defendant a mission or post, or anything or anyone other than the Government of Canada, would be deemed invalid and improperly served.

Customary international law requires states to be given an appropriate amount of time to prepare for the next step in proceedings once the originating documents have been served. This recognizes the complex and transnational nature of a state’s operations and the need for time to prepare for litigation in another jurisdiction, including naming local legal counsel, finding records which may be spread across several localities, and preparing jurisdictional arguments. In Canada, the law provides for a 60-day or 2-month delay between service and the next step in proceedings.

Under Canada’s State Immunity Act, all states receive in Canada the above-mentioned protections with respect to service – by diplomatic means to their foreign ministries in their respective capitals – of Canadian originating documents, with at least 60 days’ notice before the next step in proceedings.

In circumstances where Canada is not served in accordance with these norms, the Government of Canada reserves the right not to participate in judicial or administrative proceedings. Further, it reserves the right to restrict the privileges and immunities granted in Canada to countries where these exceed the protections granted to Canada in those countries, as referenced under the Act.

Procedure for proper service in Canada

A country wishing to properly serve judicial and administrative proceedings directed to the Government of Canada must be carried out by that country’s foreign ministry, through its diplomatic mission in Ottawa, under cover of a diplomatic note, emailed to civil.judicial.cooperation-entraide.judiciaire.civile@international.gc.ca. A delay of at least 60 days is required before the next step in proceedings.

To respond promptly to any such proceedings, the Government of Canada asks countries to submit an official English or French translation of the originating judicial or administrative documents if these were written in another language.

Related content: Service of originating documents in judicial or administrative proceedings against the Government of Canada in other States

Providing key information on legal proceedings in Canada and Certificates

Diplomatic missions and international organizations need to ensure the following:

  • that any potential litigation/disputes between the administration and staff, including local staff, are resolved internally through administrative mechanisms
  • that litigation/disputes between it and Canadian entities are generally resolved out of court
  • that accredited persons do not rely upon their immunities with the goal of preventing the resolution of a litigation/dispute or compliance with a law.

Moreover, accredited foreign representatives who are contacted by Canadian authorities must identify themselves with the authorities using the Government of Canada identification (ID) issued by the Office of Protocol. This ID card is a better type of identification to show within Canada than a passport (which should be reserved for crossing the border or boarding a flight to Canada).

Communicating legal proceedings in a timely manner

It is sometimes necessary to turn to the courts. Therefore, the Office of Protocol is asking the missions to report, as soon as possible, all cases where the mission itself and/or an associated accredited person is contacted by police and law enforcement authorities (including provincial authorities) or is subject to a criminal, civil or administrative procedure before a court or tribunal. This also applies to matters brought before housing administrative tribunals and labour law tribunals, including orders from these tribunals, and disputes relating to marital and custody matters.

The proceedings should be communicated as follows, depending on the type of proceeding:

Since GAC does not offer legal advice to missions, the mission needs to specify, in each case, whether it has retained (or intends to retain) the services of specialized local counsel to make submissions before the relevant courts.

The issuance of certificates to courts/tribunals: a unique feature of the Canadian system

When a matter of a criminal, civil or administrative nature is brought before the GAC, determines, based on circumstances, whether it is necessary to issue a certificate to the court in accordance with the powers granted to the department under section 11 of the Foreign Missions and International Organizations Act, which states as follows:

A certificate purporting to be issued by or under the authority of the Minister of Foreign Affairs and containing any statement of fact relevant to any of the following questions shall be received in evidence in any action or proceeding as proof of the fact stated in the certificate without proof of the signature or official character of the person appearing to have signed the certificate:

  1. whether a diplomatic mission, a consular post or an office of a political subdivision of a foreign state has been established with the consent of the Government of Canada;
  2. whether an organization or conference is the subject of an order under section 5;
  3. whether a mission is accredited to an international organization;
  4. whether any premises or archives are the premises or archives of an office of a political subdivision of a foreign state; or
  5. whether any person, diplomatic mission, consular post, office of a political subdivision of a foreign state, international organization or accredited mission has privileges, immunities or benefits under this Act.

In addition, when the party involved in the criminal, civil or administrative matter is a Foreign State, GAC may issue a certificate in accordance with the powers granted to the department under section 14 of the State Immunity Act, which states as follows:

A certificate issued by the Minister of Foreign Affairs, or by an authorized person on the minister’s behalf, with respect to any of the following questions, namely,

  1. whether a country is a foreign state for the purposes of this Act,
  2. whether a particular area or territory of a foreign state is a political subdivision of that state, or
  3. whether a person or persons are to be regarded as the head or government of a foreign state or of a political subdivision of the foreign state,

is admissible in evidence as conclusive proof of any matter stated in the certificate with respect to that question, without proof of the signature of the Minister of Foreign Affairs or other person or of that other person’s authorization by the Minister of Foreign Affairs.

A certificate can also be issued by the Minister of Foreign Affairs pursuant to the Privileges and Immunities (North Atlantic Treaty Organisation) Act, or by an authorized person on the minister’s behalf, with respect to any of the following questions, namely,

  1. whether the North Atlantic Treaty Organization, any of its subsidiary bodies or any international military Headquarters or organization is the subject of an order made under section 4 or 5 of the act above;
  2. whether the North Atlantic Treaty Organization, any of its subsidiary bodies or any international military Headquarters or organization has privileges or immunities provided by an order made under section 4 or 5 of the act above;
  3. whether any person has privileges or immunities provided by an order made under section 4 or 5 of the act above.

Requesting a certificate

If a mission determines, in a specific case, that a certificate is required in accordance with the Acts mentioned above, the mission is asked to send a request to the Privileges and Immunities Unit and copy GAC’s Criminal, Security and Diplomatic Law Division (jla@international.gc.ca), and include a rationale and details of the case.

The department will review each request and follow up with the mission in a timely fashion.

It should be noted that certificates are usually meant for Canadian legal or police authorities only. GAC does not produce certificates for other types of authorities, such as educational institutions or private sector entities.

In addition, once GAC has issued a certificate and sent it to the court to be admitted in evidence, it is not a request for the Canadian legal or administrative authorities to take specific actions. Moreover, certificates are not intended to prevent the mission from making additional submissions on the merits of the case. In this respect, the department strongly encourages the missions to obtain the assistance of local counsel to represent the specific status of a mission, a State, a person, etc., and to receive general support in navigating the Canadian legal system.