Copello v. Canada (Minister of Foreign Affairs), 2001 FCT 1350

Date: 20011210

Docket: T-1770-98

Neutral Citation: 2001 FCT 1350

BETWEEN:                                                                                          

                                 DR. GIORGIO COPELLO

                                                                                                    Applicant

                                                    - and -

                   THE MINISTER OF FOREIGN AFFAIRS

        AND THE ATTORNEY GENERAL OF CANADA

                                                                           Respondents

                 REASONS FOR ORDER AND ORDER

HENEGHAN J.

INTRODUCTION

[1]    Dr. Giorgio Copello (the "Applicant") seeks an order quashing the decision of the Minister of Foreign Affairs and International Trade (the "Minister") contained in the diplomatic note XCD-2317 (the "note") dated August 5, 1998 which requested of the Republic of Italy that the Applicant leave Canada.

FACTS

[2]    The Applicant is a career diplomat with the Italian Foreign Ministry and has been so employed for more than twenty years. He studied political science and obtained the title of "Doctor". Later he pursued specialized military studies at the Royal Military College at Shrivenham, London, England. He has held diplomatic postings in India, Germany, the United Arab Emirates and Norway. He was posted to Ottawa as Counsellor for Immigration and Social Affairs in August 1995. His diplomatic career proceeded without incident until April 1998 when a letter of complaint about the Applicant was sent to the Ambassador of Italy to Canada.

[3]    That letter, dated April 24, 1998, was sent by one Ms. Lynn Smith, an employee of the Stratford Motel in Whitehorse, Yukon Territory.

[4]    Ms. Smith alleged that certain unpleasant exchanges occurred between the Applicant and motel staff when the Applicant and his wife were registering upon their arrival on April 17, 1998. The letter also refers to a further display of ill-temper by the Applicant, in the presence of his wife, upon their departure on the following day. In particular, the letter records that the Applicant referred to his status as an Italian diplomat in Canada and expressed displeasure about the manner in which he and his wife had been treated by the motel staff upon their arrival when a request was made for the production of the Applicant's credit card.

[5]                 Following their departure from Whitehorse, the Applicant, together with his wife, transited Vancouver International Airport en route to Ottawa on April 19, 1998. His presence there came to the attention of the Minister and of the Italian Embassy following the submission of a report from the Richmond, British Columbia detachment of the Royal Canadian Mounted Police ("R.C.M.P.").

[6]                 Consequently, on April 22, 1998, a diplomatic note, note number XCC-1134, was issued by the Department of Foreign Affairs and International Trade (the "Department") of the Government of Canada. The diplomatic note, dated April 22, 1998, reads in part as follows:

...Mr. Copello's attitude and aggressiveness towards the airport security officers and members of the Royal Canadian Mounted Police (RCMP) were unacceptable. A summary of the police report is attached. The Department expects all foreign officials to cooperate with airport security officials and officers of the RCMP.

Applicant's Application Record, page 26.

[7]                 That police report outlined the response of the R.C.M.P. to a request from the Vancouver Airport Security Screening relative to the Applicant. According to the report, the Applicant had activated the metal detector arch when he walked through it. When questioned by the security personnel with a request to search him and the plastic bag which he was carrying, the Applicant reportedly would not allow the search and passed the bag to his wife who was accompanying him.

[8]                 The report goes on to say that the Applicant, without prompting, stated that the bag did not contain a bomb. When the security agent repeated his request to look inside the bag, the Applicant allegedly became aggressive and said that he "would bring a real one next time".

[9]                 When the R.C.M.P. arrived, the Applicant was told that it was necessary to check his bag if he wished to board a flight. The Applicant then opened the bag and showed that it contained a few branches of a pussy willow plant. In response to the police request for identification, the Applicant produced an Italian passport. The police report described the Applicant's behaviour as agitated and aggressive.

[10]            After receiving the diplomatic note dated April 22, 1998, the Applicant contacted the R.C.M.P. about the Vancouver airport incident. He received a letter from Inspector A.L. MacIntyre. The letter, dated June 1, 1998, confirmed that no offence had been committed by the Applicant and also says that the initial police report used broad language, as follows:

Dear Mr. Copello:

This is in response to your letter directed to Cpl. Jim Allen regarding an incident on 98-04-28 at Vancouver International Airport - Domestic Terminal Preboard Screening. As a result of your concerns we have checked with the investigating officer, CST. Mike Liu. He states that although he used the terms "aggressive and threatening" in his narrative, these terms were loosely used. He did indicate that you were upset and uncooperative and that those would have been better words to use. I apologize to you for that.

Regarding your alleged statement that you would "bring a real bomb next time," this is an allegation made by the security guard at the screening point. This was not divulged to police on their arrival but in a subsequent written statement and cannot be corroborated. It is common knowledge around any major airport that comments mentioning bombs or any like devices, irrespective of how candid they may be, are dealt within [sic] a most serious manner.

In this case, on a review of the matter Cpl. Allen did not feel that an offence had taken place and as a result the file was concluded. It should be noted that our attendance at this complaint is mandatory as per Canadian laws and we are required to investigate all such complaints thoroughly. Also, in that an embassy official was involved it is our policy to report such matters to our headquarters in Ottawa for their information and action if required.

As to confirming your statement being accurate one way or another, I cannot do that in that I was not there when the incident happened. What I can say is that clearly you caused a fuss at a preboard screening area prior to boarding a commercial airliner.

You made comments that were inappropriate and your manner in dealing with the security and police personnel on site was less that satisfactory. They have a job to do and that is to ensure a safe and secure environment for passengers and aircraft. This is a serious business and they take their responsibilities in the same light.

We regret that this incident has caused you concern or embarrassment, but you must accept the fact that you initiated the interaction which precipitated a police response.

Applicant's Application Record, page 28 and 29

[11]            The Applicant sent a copy of this letter to the Department under cover of a letter from his former solicitor on June 22, 1998.

[12]            Shortly afterwards, the Applicant was provided with a copy of the letter from Ms. Smith and prepared a statement in response. According to his statement, the events in Whitehorse did not occur in the manner outlined by Ms. Smith. His statement concludes with the following remarks:

My wife and I have spent our holidays in Canada for three consecutive years in order to better know this country, visiting Ontario, Quebec, Alberta, Yukon and British Columbia and we have always found, in every hotel and town, a high level of politeness and sense of hospitality.

I did not answer to the vulgar and outrageous falsities in the Stratford Hotel's letter earlier because I have been preoccupied with important matters in my employment.

Given the seriousness of these allegations, and their impact on me and my wife, personally and professionally, I have to consider with my wife, the possibility of denouncing the author of these allegations for defamation.

Applicant's Application Record, page 25a

[13]            A copy of this statement was forwarded to Mr. William Bowden, Deputy Chief of Protocol with the Department, under cover of a letter written on June 24, 1998 by a former solicitor for the Applicant. This letter expresses the opinion that the statements made by Ms. Smith are false and defamatory of the Applicant. As well, this letter refers to the possibility that the Applicant and his wife may bring a civil action for defamation.

Applicant's Application Record, pages 30-31

[14]            On July 13, 1998, a second diplomatic note, number XDC-2034, was issued by the Department concerning the Applicant. This note provides as follows:

The Department of Foreign Affairs and International Trade presents its compliments to the Embassy of the Republic of Italy and has the honour to refer to recent events concerning Mr. Georgio Copello and the recent conversation between the Ambassador of Italy and the Chief of Protocol of Canada concerning him.

The events in Vancouver and Whitehorse, and the fact that Mr. Copello appears to be considering a suit against the complainant from Whitehorse are somewhat unsettling and would indicate that Mr. Copello's posting in Canada is not a felicitous one, and perhaps should be reconsidered.

The Office of Protocol recognizes that these are the actions of the individual and are not reflective of the excellent relationship and spirit of cooperation that exists between this Department and the Embassy of Italy.

The Department of Foreign Affairs and International Trade avails itself of this opportunity to renew to the Embassy of Italy the assurances of its highest consideration.

Applicant's Application Record, page 32

[15]            On August 5, 1998, a third diplomatic note, that is note number XDC-2317, was issued by the Department of Foreign Affairs and International Trade. This note provides as follows:

The Department of Foreign Affairs and International Trade presents its compliments to the Embassy of the Republic of Italy and has the honour to refer to the Department's Note number XDC-2034 of 13 July 1998, concerning Mr. Georgio COPELLO, and to the continuing discussions between the Ambassador of Italy and the Chief of Protocol of Canada.

The Department notifies the Embassy that Mr. Copello's behaviour is not acceptable. Since Mr. Copello has not shown any intention of leaving Canada of his own accord it now requests that Mr. Copello and his family depart Canada by 15 September 1998.

The Department of Foreign Affairs and International Trade avails itself of this opportunity to renew to the Embassy of the Republic of Italy the assurances of its highest consideration.

Applicant's Application Record, page 55

[16]            After issuance of the diplomatic note dated August 5, 1998 the Applicant wrote a letter to the Minister on August 16, 1998, seeking an audience for the purpose of presenting his version of the events in Whitehorse and Vancouver. That letter states as follows:

The Honourable Lloyd Axworthy

Minister of Foreign Affairs

Department of Foreign Affairs and International Trade

Ottawa ON K1A OG2

Dear Honourable Mr. Axworthy,

With reference to the Department's Note XDC-2317 of 5 August 1998 and to the fact that I have never had the courtesy of an audience by the Protocol, notwithstanding repeated requests on my part, I kindly ask to meet you personally as promptly as possible, in order to allow me to clarify my position with respect to the two events at issue, which have led to my expulsion that represents an unnecessary and unfair decision seriously affecting my family and I and to kindly request that your office reconsiders matters and withdraw the Note.

Yours very truly,

Giorgio Copello

Applicant's Application Record, page 45

[17]            The request did not lead to a meeting with the Minister, and on August 24, 1998, the Applicant received the following reply from Mr. Bowden, the Deputy Chief of Protocol:

Dear Dr. Copello:

I am replying to your letter of August 6, 1998 to the Honourable Lloyd Axworthy, Minister of Foreign Affairs.

I am not in a position to discuss the question of your continuing diplomatic accreditation to Canada as this is a matter to be determined between the sending state (Italy) and the receiving state (Canada) pursuant to the Vienna Convention on Diplomatic Relations.

I would suggest however, that you consult with your Ambassador with respect to the views of the Government of Italy on this matter.

Applicant's Application Record, page 46

[18]            The Applicant was unsuccessful in obtaining a meeting with the Minister or the officials responsible for Protocol. The Department has no written policy concerning review of the circumstances associated with or decision to expel a diplomat.

Reference: Affidavit of William Bowden, Applicant's Application Record, pages 99 and 100

[19]            Letters of support, on behalf of the Applicant, were written by members of the Comites Ciroscrizione Consolare Toronto and the Congresso Nazionale Degli Italo-Canadesi (National Congress of Italia - Canadian) who wrote on his behalf to the Minister and the Prime Minister asking for reconsideration of the expulsion decision.

Applicant's Application Record, pages 34-44

[20]            On September 10, 1998, the Embassy of Italy sent a Diplomatic Note to the Department, advising that the Italian Ministry of Foreign Affairs had recalled the Applicant to Rome and that he would have to resume his duties in Rome on September 15, 1998.

Applicant's Application Record, page 72

[21]            The Applicant commenced the present application on September 10, 1998 and applied for a stay of execution of the request that he leave Canada by September 15, 1998. He successfully obtained a stay on September 11, 1998.

[22]            The Applicant sought recourse in Italy to stop his recall to Rome. Although he was initially denied an injunction by the Regional Administrative Tribunal, his appeal to the State Council was successful. By an order dated November 11, 1998, the State Council granted an injunction in favour of the Applicant.

Applicant's Application Record, pages 80-81

APPLICANT'S SUBMISSIONS

[23]            The Applicant argues that the Minister's decision in the diplomatic note XDC-2317 was made pursuant to section 4(1) of the Foreign Missions and International Organizations Act, S.C. 1991, c. 41, as amended (the "Act"). As such, it is a decision taken by a "federal board, commission or other tribunal" as contemplated by section 2 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended and is subject to review under section 18(1)(a) of that statute. In this regard he relies on the decision in Gestion Complexe Cousineau (1989) v. Canada (Minister of Public Works and Government Services) (1995), 125 D.L.R. (4^th) 559 (F.C.A.).

[24]            In any event, a Minister who asserts authority under the Crown prerogative remains subject to the supervision of the court under judicial review. The Applicant relies on the decision in Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374 at 418.

[25]            Next, the Applicant submits that the Minister's actions in declaring a diplomat persona non grata do not constitute an exercise of the Crown's prerogative. Where the Crown prerogative is replaced by statute, the Crown may no longer act pursuant to its prerogative but must act under the statutory conditions. If a prerogative power has been overtaken by a statutory power, then the exercise of that statutory power is subject to review.

[26]            The Applicant says that the request for his departure from Canada amounts to a declaration that he is persona non grata. Article 9 of the Vienna Convention on Diplomatic Relations (1961) 500 U.N.T.S. 95; 1966 Can. T.S. No. 29 in force 1968, grants the receiving state discretion to declare a foreign diplomat persona non grata without having to provide reasons for doing so.

[27]            The Act incorporates Article 1, 22-24 and 27-40 of the Vienna Convention, and gives those articles binding force in Canada. Article 9 of the Convention has not been incorporated. The Applicant argues that if Parliament wished to deprive foreign diplomats of the opportunity to challenge declarations of persona non grata, Article 9 of the Convention would have been incorporated into the Act. He argue that an absence of that article means that Canada did not intend to deprive a foreign diplomat of the opportunity to challenge a declaration of persona non grata.

[28]            Next, the Applicant submits that he has not committed an offence or any misconduct which would justify his removal as a diplomat from Canada. Under the Act, the only offences contemplated are those involving the wrongful representations of a diplomatic mission, consular post or office of a foreign state. Even in such cases, the consent of the Attorney General of Canada is required to initiate proceedings against a person suspected of such an offence.

[29]            He argues that Article 9 of the Convention makes it clear that no reason need be provided for the declaration of non grata status and the subsequent expulsion. However, he says that it is important to distinguish between the offering of reasons to the sending state, from the actual existence of reasons for the declaration and expulsion.

[30]            Next, the Applicant submits that there is no legal obstacle to prevent an expelled diplomat from bringing an action within the jurisdiction of the receiving state. By analogy, he refers to Article 32 of the Vienna Convention which clearly states that if a diplomatic agent begins legal proceedings, he cannot subsequently invoke diplomatic immunity from jurisdiction in relation to any counterclaim directly connected with the main claim.

[31]            He also argues that it is well settled in Canadian human rights jurisprudence that every human being who is physically present within Canada can bring a suit in the Canadian courts and here relies on the decision in Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177. By extension, he submits that if an alien enjoys all the rights of due process, that right effectively limits the power of the state to deport him.

[32]            The Applicant proceeds to argue that the Minister's decision should have been made in accordance with the principles of procedural fairness. He says that if a decision adversely affects an individual, the decision maker is required to observe procedural fairness and relies on Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), which was followed by the Supreme Court of Canada in Maisqui Institution Disciplinary Board (No. 2) (1979), 106 D.L.R. (3d) 385 at 406.

[33]            The Applicant submits that the requirement to provide procedural fairness increases in relation to the gravity of the consequences a decision may have. Decisions which adversely affect a person's livelihood and income earning potential must, at a minimum, be made fairly.

[34]            The Applicant says that the request by the Minister of Foreign Affairs that he leave the country was specific to him. However, the decision will also adversely affect his wife. The decision was final in that it would inevitably result in the Applicant's recall by the government of Italy and this will profoundly affect his livelihood, health and income.

[35]            The Applicant argues that given the effect of the decision, procedural fairness requires some form of hearing. The diplomatic note issued on August 5, 1998 offers, as reasons for the expulsion, "the events in Vancouver and Whitehorse and the fact that Mr. Copello appears to be considering a suit against the complainant from Whitehorse".

[36]            The Applicant claims that he did not commit any offence in Vancouver and that an apology was tendered by the police. These facts were not taken into account by the Minister and the Minister did not provide the Applicant with the opportunity to present his version of events.

RESPONDENTS' SUBMISSIONS

[37]            The Respondents' first submission is that this matter is not justiciable because it is the exercise of the Crown prerogative and a matter of international, not domestic law. The conduct of diplomatic relations is an exercise of the royal prerogative; see [1981] 1 S.C.R. 753">Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 at 877.

[38]            The Respondents submit that although the courts have the power to determine the existence and extent of prerogative power, traditionally they have no power to regulate the manner of its exercise.

[39]            The Respondents refer to the power of the executive to conclude treaties and submit that the exercise of the Crown prerogative to enter into treaties is not justiciable by the courts; see Attorney General for Canada v. Attorney General for Ontario, [1937] A.C. 326 at 347 and Blackburn v. Attorney General, [1971] 2 All E.R. 1380. In the absence of legislative implementation, a treaty does not form part of the domestic legal framework in Canada and will not be enforced by the court; see [1956] S.C.R. 618">Francis v. The Queen, [1956] S.C.R. 618 at 621 and [1976] 2 S.C.R. 373">Reference re: Anti Inflation Act, [1976] 2 S.C.R. 373 at 432.

[40]            The Respondents submit that the acceptance and expulsion of diplomatic agents is an exercise of the prerogative, equivalent with the treaty making power and is likewise immune from judicial review.

[41]            Furthermore, the Respondents argue that the present matter is not justiciable on the ground that the decision is a matter of international, not domestic, law. The immunities and privileges of diplomats recognized by customary international law were considered to be incorporated in the domestic law of Canada by the Supreme Court of Canada in [1943] S.C.R. 208">Reference Re: Powers to Levy Rates on Foreign Legations and High Commissioners' Residences, [1943] S.C.R. 208.

[42]            In 1962, Canada became a signatory to the Vienna Convention on diplomatic relations. The Convention entered into force for Canada in 1966. Article 9 of the Convention codifies the customary international law on the expulsion of diplomatic agents found unacceptable to the receiving state or persona non grata.

[43]            The Respondents note that the Convention was made Schedule I to the Act but    Article 4 of the Convention respecting the accreditation of Heads of Mission, and Article 9 on expulsions, are not listed in section 3 of the Act as having the force of law in Canada. Nonetheless, these articles reflect and restate existing international law as accepted by Canada.

[44]            The Respondents submit that Parliament intended that the subject matter of those parts of the Convention which were not adopted by statute continue to be governed by the rules of customary international law. Consequently, both accreditations and expulsions remain on the plane of pure international law and are not justiciable by the domestic courts.

[45]            Secondly, the Respondents submit that the Applicant lacks standing to seek judicial review of a decision which is a matter of relations between states. In this regard, reference is made to Rose v. The King, [1947] 3 D.L.R. 618 at 640.

[46]            The decision in issue here was expressed in a diplomatic note which was a communication between States. The matter of the request for the Applicant's recall and compliance by the Republic of Italy with that request is a matter of relations between States. The Respondents say that the Applicant, as a subordinate member of the Mission, has no individual status or privileges except in a representative capacity. There are no individual rights or entitlements in the context of a Canadian administrative scheme. There is no lis inter partes which a reviewing court can recognize; see [1980] 2 S.C.R. 735">Attorney General of Canada v. Inuit Tapirisat of Canada and the National Anti-Poverty Organization, [1980] 2 S.C.R. 735 at 747.

[47]            The Respondents say that the Applicant has recourse to the Tribunals of his own state concerning matters affecting his individual status as a representative of the Republic of Italy. The record shows that he has done so. His recall is a matter of the law of Italy.

[48]            The Respondents say that, contrary to the submissions of the Applicant, his mere physical presence in Canada does not entitle him to invoke Canadian domestic law, since the presence of a Diplomatic Agent in a receiving country is permitted precisely because of the status attaching to his membership of the Diplomatic Mission.

[49]            The third argument advanced by the Respondent is that the Minister is not a federal board, and that the assignment of the conduct of international relations to the Minister of Foreign Affairs is merely a statement of the functional division of the responsibilities within the executive, not a derogation from the prerogative. Section 4 of the Act merely spells out the powers of the Minister.

[50]            The Minister, acting through his office of protocol in requesting that a foreign state recall a member of its mission, acts pursuant to the prerogative, and not by or under an order made pursuant to that prerogative. In these circumstances, the Minister is not a "federal board, commission or tribunal" within the meaning of section 2 of the Federal Court Act, supra. In this regard, the Respondents rely on Saskatchewan Wheat Pool v. Canada (Attorney General) 17 Admin. L.R. (2d) 243 (Sask. C.A.) and Inuvialuit Regional Corporation v. Canada, [1992] 2 F.C. 502 (T.D.). Consequently, the decision in issue is not the exercise of statutory decision-making authority nor an order made under the prerogative.

[51]            Alternatively, the Respondents submit that if the court should find that the decision is reviewable, the standard of review is confined merely to the examination of whether any conditions precedents exist for the exercise of the decision-making power. The court is then to decide whether, on a proper construction of the applicable statute, the legislature intended that the principle of procedural fairness would apply: see Inuit Tapirisat, supra, at 748.

[52]            The Respondents submit that on a proper construction of the powers of the Minister pursuant to the Act, there is no duty to receive representations from the individual diplomat affected, to hold a hearing, or even to acknowledge representations. The powers of the Minister are exercised on the plane of international law. His responsibility for decisions taken regarding the acceptability of diplomatic agents is a matter of reciprocity and relations between states.

[53]            In conclusion, the Respondents submit that the jurisdiction of the court is limited to examining the nature of the prerogative and the conditions of its exercise, and that the application should be dismissed.

ISSUES

[54]            The following issues arise from this application.

           1.         Does the Federal Court have the jurisdiction to hear this application for judicial review?

           2.         Does the Applicant have standing to seek judicial review?

           3.         If the decision is subject to judicial review, does it have a requirement of procedural fairness?

ANALYSIS

[55]            The present application relates to the diplomatic note issued on August 5, 1998 and seeks an order quashing the decision of the Minister requesting that the Applicant be recalled by the government of Italy.

[56]            The first issue for consideration is whether this matter is justiciable. In other words, does the court have jurisdiction to entertain the Applicant's application and grant the relief sought.

[57]            The Applicant bases this application upon sections 2(1), 18(1), 18.1, 18.2 and 28 of the Federal Court Act, supra. The relevant statutory provisions are as follows:

[58]            He also relies on section 4(1)(c) of the Act which provides as follows:

[59]            The Applicant alleges that the request for his recall was a "decision" made by the Minister pursuant to the powers granted to him by the Act. As such, the request was the result of ministerial exercise of power "conferred by or under an act of Parliament" and is therefore subject to judicial review. The Applicant relies on the decision in Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), supra, to support his argument that a decision made in the exercise of statutory power is subject to review, even when the decision is made by the Minister.

[60]            Traditionally, the scope of the Crown prerogative includes the issuance and refusals of passports, the award of honours, the signing of treaties, the conduct of foreign affairs and the deployment of armed forces (see Brown & Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvass Back Publishing, 2000) at 13:1110).

[61]            The subject of the Crown prerogative was recently considered by the Ontario Court of Appeal in Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 where the court said as follows at pages 224 and 225:

To put these submissions in context, I will briefly review the nature of the Crown's prerogative power. According to Professor Dicey, the Crown prerogative is "the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown": Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1959) at p. 424. Dicey's broad definition has been explicitly adopted by the Supreme Court of Canada and the House of Lords. See Reference re Effect of Exercise of Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269">[1933] S.C.R. 269 at pp. 272-73, 59 C.C.C. 301, and Attorney General v. DeKeyser's Royal Hotel, [1920] A.C. 508 at p. 526, [1920] All E.R. Rep. 80 (H.L.). See also Peter Hogg and Patrick Monahan, Liability of the Crown, 3rd ed. (Toronto: Carswell, 2000) at p. 15.

The prerogative is a branch of the common law because decisions of courts determine both its existence and its extent. In short, the prerogative consists of "the powers and privileges accorded by the common law to the Crown": Peter Hogg, Constitutional Law in Canada, loose-leaf ed. (Toronto: Carswell, 1995) at 1.9. See also Proclamations Case (1611), 12 Co. Rep. 74, 77 E.R. 1352 (K.B.). The Crown prerogative has descended from England to the Commonwealth. As Professor Cox has recently observed, "it is clear that the major prerogatives apply throughout the Commonwealth, and are applied as a pure question of law": N. Cox, The Dichotomy of Legal Theory and Political Reality: The Honours Prerogative and Imperial Unity, 14 Australian Journal of Law and Society (1998-99) 15 at 19.

[62]            Generally, exercise of the Crown prerogative has been beyond the scope of judicial review. The court could determine whether a prerogative power existed and if so, the scope of the power and whether it had been superceded by statute. Once a court established the existence and scope of the prerogative power, it could not review the exercise of that power. See F. DeSmith, H. Woolf, and J. Jowell, Principles of Judicial Review, London: Sweet and Maxwell, 1999 at page 175 and Attorney General v. DeKeyser's Royal Hotel Limited, [1920] A.C. 508. In Operation Dismantle v. The Queen, supra, the Supreme Court of Canada held that when the exercise of the Crown prerogative violates an individual's rights provided by the Canadian Charter of Rights and Freedoms then that exercise of prerogative power can be reviewed by the Court.

[63]            In the Council of Civil Service Unions, supra, the House of Lords took the approach that the prevailing consideration in determining whether the exercise of a prerogative power is subject to judicial review is its subject matter, not its source. In his speech, Lord Roskill said as follows at page 417:

If the executive in pursuance of the statutory power does an act affecting the rights of the citizen, it is beyond question that in principle the manner of the exercise of that power may today be challenged on one or more of the three grounds which I have mentioned earlier in this speech. If the executive power and in particular a prerogative power delegated to the respondent under article 4 of the Order in Council of 1982, so as to affect the rights of the citizen, I am unable to see, subject to what I shall say later, that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory. In either case the act in question is the act of the executive.

[64]            Lord Diplock also considered the subject and said the following at page 408:

To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:

(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or

(b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker [that the benefit or advantage] will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.

[65]            This "subject matter test" approach was followed by the Ontario Court of Appeal in Black, supra. Mr. Justice Laskin, writing for the Court, linked the subject matter test to the idea of justiciability and said as follows:

...The notion of justiciability is concerned with the appropriateness of courts deciding a particular issue, or instead deferring to other decision-making institutions like Parliament.... Only those exercises of the prerogative that are justiciable are reviewable. The court must decide "whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch": Reference re Canada Assistance Plan (British Columbia) [1991] 2 S.C.R. 525 at page 545, 58 B.C. (2d) 1.

Under the test set out by the House of Lords, the exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual. Where the rights or legitimate expectations of an individual are affected, the court is both competent and qualified to judicially review the exercise of the prerogative.

Black v. Canada, supra, pages 231-232

[66]            The subject matter in the present application is the Minister's request to the home state, that is the Republic of Italy, for the recall of the Applicant. The Applicant is present in Canada solely as a result of his appointment as a member of the staff of the Embassy of Italy. There is nothing on the record to show that he holds any other status in Canada. The request for his recall amounts to a declaration of persona non grata. The issue, then, is whether that request was made pursuant to the exercise of the Crown prerogative or if it was made pursuant to a domestic statute.

[67]            It is clear that Parliament may displace the exercise of prerogative power, in principle and pursuant to section 17 of the Interpretation Act, R.S.C. 1985, c. I-21, as amended, which provides as follows:

[68]            The Vienna Convention, supra, is an international treaty concerning the appointment and recall of diplomatic envoys. The preamble to the Convention provides as follows:

The States Parties to the present Convention:

Recallingthat peoples of all nations from ancient times have recognized the status of diplomatic agents.

Havingin mind the purpose and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,

Believingthat an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,

Realizingthat the purpose of such privileges and immunities is not to benefit, individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.

Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention.

[69]            Parts of the Convention were given force of law in Canada through the Act, that is specifically Articles 1, 22-24 and 27-40. The Act is silent as to Article 9 of the Convention which grants the state the right to declare any member of the diplomatic staff of a country persona non grata, without having to explain its decision. Article 9 provides as follows:

                                                                      Article 9

1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared persona non grata or not acceptable before arriving in the territory of the receiving State.

[70]            In Operation Dismantle v. The Queen, supra, Justice Wilson said at page 484:

A treaty, therefore, may be in full force and effect internationally without any legislative implementation and, absent such legislative implementation, it does not form part of the domestic law of Canada. Legislation is only required if some alteration in the domestic law is needed for its implementation: see R. St J. Macdonald: "The Relationship between International Law and Domestic Law in Canada," in Canadian Perspectives on International Law and Organization (1974), eds. Macdonald, Morris and Johnston, p. 88.

[71]            In the absence of legislative implementation by Canada, Article 9 does not form part of the domestic law. The exclusion of this article can only mean that Parliament intended that the expulsion of diplomats remain in the sphere of the Crown prerogative in the conduct of foreign affairs by Canada, and immune from judicial review. In my opinion, a declaration of persona non grata is not a legal issue and remains in the political arena. The decision is not justiciable.

[72]            The decision itself is not reviewable and the court should not intervene in what is essentially a matter of the prerogative. I conclude that the court does not have jurisdiction to hear this application and for that reason, the application must be dismissed.

[73]            The Applicant argues that, notwithstanding the omission of Article 9, the Act supplants the Crown prerogative to expel a diplomatic staff member without providing reasons. He argues that the Act, particularly section 4(1), limits the expulsion of a diplomat by the Minister to the situations outlined in that section and to those situations where some fault or offence has been committed by the affected diplomat.

[74]            I do not accept this submission. Section 4(1) of the Act is a statement of general principle. It merely states the power of the Minister to control the presence of foreign envoys in Canada. It is consistent with customary principles of international law. It does not grant any greater rights to the Applicant than enjoyed by any member of the diplomatic community subject to international law.

[75]            While this application must be dismissed on the grounds that the decision under review is a matter of the prerogative, I propose, however, to address briefly the related issues of the Applicant's standing and whether he was owed a duty of fairness.

[76]            On the question of standing, it is recognized that diplomats are at liberty to pursue a civil or administrative action. However, the decision here at issue was expressed in a diplomatic note. A diplomatic note is not a "decision", rather it is a communication between states. See Operation Dismantle v. The Queen, supra at page 485.

[77]            The request was for the recall of the Applicant by the Republic of Italy. While the request affected the Applicant, it remains a matter of relations between states. Canada requested that he be recalled and the Italian government acted upon that request. The Applicant was in Canada only in a representative capacity and as such, he held no independent status. He lacks standing to challenge the actions of the Minister.

[78]            Finally, the Applicant complains that he was deprived of the opportunity to present his version of the events leading to the request for his recall. He claims that this loss of opportunity amounts to a breach of the duty of fairness.

[79]            In my opinion, this argument cannot succeed. The declaration of persona non grata is not an administrative function carried out by the Minister pursuant to the Act. The Applicant had the opportunity to make his case before the Italian government, prior to the issuance of the diplomatic note in question. As well, there were discussions between the Italian Ambassador and the Chief of Protocol, as referenced in the earlier notes of April 22, 1998 and July 13, 1998. The Applicant's position was represented by the Italian government.

[80]            As noted above, this is not an administrative decision. It is not analogous to a decision by the Minister of Citizenship and Immigration to issue a deportation order. The Applicant is not being "deported". He was in Canada solely as a representative of the Italian government and enjoyed the diplomatic immunity and privileges attached to that position. The degree of procedural fairness owed to him is dependent on whether it is a right or privilege that is at issue. It is apparent that this case involves the loss of a privilege, not a right.

[81]            In the circumstances of this case, I conclude that the Applicant was not owed a duty of fairness and consequently, there was no breach of the duty of fairness.

[82]            The application is dismissed with costs to the Respondents.

                                                  ORDER

The application is dismissed with costs to the Respondents.

                                                                                          "E. Heneghan"                          

                                                                                                    J. F. C. C.

OTTAWA, Ontario

December 10, 2001