Let’s Talk About: Diplomatic Immunity

In a previous posting, I discussed spying in Canada with reference to the newest case involving Jeffery Delisle; a Canadian Naval officer charged with both Criminal Code and Security of Information Act offences for allegedly disclosing state secrets to a foreign entity. Mr. Delisle is in custody awaiting a bail hearing, which is now scheduled for February 28, 2012. In the wake of the scandal, is the increasingly number of Russian diplomats leaving the country, as two more have left, bringing the total to six embassy workers whose “contracts” have not been “renewed.”

These hasty departures bring to mind the issue of diplomatic immunity, a generic term used to describe the governmental policy of extending legal immunity to foreign diplomats residing in the host country. Such protection ensures that diplomats do not face criminal prosecution or civil liability under the host state’s legal system. Instead, the host country can “expel” the rule-breaking diplomat from the country.

This special form of immunity comes from the Vienna Convention on Diplomatic Relations (1961), which Canada ratified in 1966 and implements through the Foreign Missions and International Organizations Act. The purpose behind diplomatic immunity, which initially arose hundreds of years ago through custom and practice, is to ensure diplomats can freely and independently execute their duties to their country without undue influence from the host nation. The key to such a policy is reciprocity and certainly Canadian diplomats in foreign countries enjoy the privileges and benefits of diplomatic immunity.

The result is less than salutary for the host country, as diplomats are people and, as such, break rules, as people are wont to do. The difficulty is when the rule breaking amounts to a criminal offence. If the crime is deemed serious enough, the diplomat’s home country may waive immunity and the culprit can be brought to justice in the visiting state. Typically, this happens when the incident is outside of the diplomatic duties. Thus, in the Delisle case, if any diplomats in Canada were involved in the breaches of security, they would be protected by diplomatic immunity. The only recourse would be expulsion or, perhaps, a non-renewal of their “contracts.”

There is another point to keep in mind: a waiver of diplomatic immunity can only be done by the country and not by the individual involved. The diplomat has no authority or decision-making power on the issue of waiver. If the home country, for whatever reason, determines the diplomat must face the music, so to speak, in the foreign country, then the diplomat will face prosecution there. Alternately, the home country can recall the diplomat and prosecute the diplomat at home.

This was the case with Andrey Knyazev, the first secretary of the Russian Embassy in Canada, who in 2001 drove onto a sidewalk in Ottawa, killing prominent lawyer Catherine MacLean. According to the police reports, Knyazev was so drunk at the time; he could barely walk or speak. The then Russian ambassador to Canada, Vitaly Churkin, refused to waive diplomatic immunity in the case, opting instead to try the offender in Russia. Churkin is presently the Russian envoy to the United Nations.

In 2002, Knyazev was tried in Russia for involuntary manslaughter while impaired. The maximum sentence for the offence was five years imprisonment as opposed to a maximum sentence of life imprisonment in Canada. The outcome of the case was uncertain as Knyazev, citing his diplomatic immunity, refused to provide a Breathalyzer sample. Although an Ottawa police officer, who first arrived on the scene, testified, witnesses to the actual incident were lacking.

According to Knyazev’s evidence at trial, he was not drunk, he feared entrapment by the police, the driving conditions were poor, and MacLean was walking on the street. However, the Russian prosecutor presented Canadian police records that showed Knyazev had been involved in a total of four traffic accidents over a two-year period and was intoxicated in two of the incidents. Due to diplomatic immunity, Knyazev had not been charged for those previous events.

Knyazev was ultimately convicted and was sentenced to four years imprisonment. Knyazev appealed sentence and pleaded for a suspended sentence. The appeals court rejected the argument and Knyazev was sent to a Siberian Penal Colony to serve his sentence.

In the aftermath of the case, Canada implemented in 2001 a zero tolerance toward diplomatic impaired driving. According to the Foreign Affairs website, the revised policy is as follows:

The policy provides that diplomats will lose their driving privileges for a first instance of impaired driving. The loss of privilege will occur on the basis of a police report substantiating that a diplomat was driving while impaired. The Department encourages police forces to lay charges for impaired driving, but will take action regardless of whether charges are laid. In most cases, the driving privileges will be suspended for one year. 

In the case of a second instance of impaired driving, or a first offence involving death or injury, the policy provides for the diplomat to be recalled or expelled. … Since Canada cannot directly sanction diplomats under these international rules, the loss of driving privileges will be effected following a waiver of immunity by the diplomat's state or, alternatively, through a written undertaking by the Head of Mission pledging that the diplomat will not drive. Should a state refuse to exercise either of these options, the Department will request that the diplomat be recalled or will expel him or her.

Consistent with this policy, in 2005, three diplomats in Ottawa were investigated for impaired driving and received driving suspensions. The diplomats’ names were not released.

Despite the nomenclature attached to this revised policy, one of zero tolerance, diplomats do not face the full force of Canadian law and are subject only to driving suspensions. Certainly, this “punishment” is minimal compared to the stigma and deterrence of a criminal trial, conviction, and sentence.

It appears the government’s “let’s get tough with diplomats” stance is superficial at best. Even with the revised policy, diplomats commit offences in Canada and simply leave the country, never to return or face justice. Although the policy reasons behind such immunity are reasonable, one wonders if there is a better way to ensure diplomatic independence without sacrificing public safety. Considering our core values, which require acceptance of responsibility and consequences to those who choose to breach criminal laws, diplomatic immunity should be re-visited and revised to bring this ancient custom into the 21st century.