[1] This is an appeal from a decision of the Federal Court, Trial Division, dated December 10, 2001 ([2002] 3 F.C. 24), in which the Court dismissed the appellant's application for judicial review seeking to quash a "decision" of the Minister of Foreign Affairs and International Trade (the "Minister"), dated August 5, 1998, which requested that the appellant, an Italian diplomat, leave Canada.

THE FACTS

[2] The appellant is a career diplomat who was posted to Ottawa in August 1995. His diplomatic career unfolded normally until two incidents transpired in April 1998, giving rise to the decision which brought the appellant, unrepresented, to the Federal Court.

[3] The first incident is documented in a letter of complaint about the appellant sent to the Ambassador of Italy to Canada by Lynn Smith, an employee of the Stratford Motel in Whitehorse, Yukon Territory where the appellant and his wife stayed on April 17, 1998. The letter asserts that unpleasant exchanges occurred between the appellant and the motel's staff when the appellant registered and when he checked out of the hotel. In particular, the letter alleges that the appellant referred to his diplomatic status in Canada and was angry that the motel staff insisted that he sign an imprinted credit card slip upon his arrival, rather than when he left.

[4] On April 19, 1998, the appellant passed through the Vancouver International Airport where, once again, his behaviour came to the attention of the Minister and the Italian Embassy. According to a report submitted by the Richmond, British Columbia detachment of the Royal Canadian Mounted Police ("RCMP"), the appellant displayed an unacceptable, aggressive attitude towards airport security officers and members of the RCMP. It is alleged that, after he activated a metal detector, he refused to allow security personnel to search a plastic bag that he was carrying. The appellant claims that it contained "only pussy willows".

[5] Following the airport incident, the Canadian Department of Foreign Affairs and International Trade (the "Department") issued a diplomatic note, dated April 22, 1998, to the Italian Embassy to inform the Embassy of the appellant's conduct at the airport which was described as "unacceptable".

[6] Subsequently, the appellant contacted the RCMP about the airport incident. In response, he received a letter from Inspector A.L. MacIntyre which confirmed that the appellant did not commit an offence. The letter also explains that the words "aggressive" and "threatening", which appear in the police report, were used loosely, and that it would have been more appropriate to have said that the appellant was "upset and uncooperative". Nevertheless, the letter reiterates that the appellant conducted himself inappropriately in the circumstances. The appellant forwarded a copy of this letter to the Department.

[7] The appellant was also given a copy of the complaint letter written by Ms. Smith with respect to his conduct at the Stratford Motel. The appellant prepared a response in which he outlined his version of events during his stay at the motel. According to the appellant, Ms. Smith's letter contains false statements and constitutes defamation. The appellant sent a copy of his response to the Department, and commenced an action for defamation in the Ontario Courts against Ms. Smith, which at the date of this hearing, had not been concluded.

[8] On July 13, 1998, a second diplomatic note was issued by the Department asking the Embassy of Italy to reconsider the appellant's posting in Canada in light of the aforementioned events in Whitehorse and Vancouver.

[9] A third diplomatic note, containing the decision for which the appellant seeks judicial review, was issued on August 5, 1998. In this note, the Department requests that the appellant leave Canada by September 15, 1998, as a result of his unacceptable behaviour.

[10] The appellant then tried unsuccessfully to arrange a meeting with the Minister, or an official responsible for Protocol, so that he could present his version of the events which transpired in Whitehorse and Vancouver. Apparently, there has been some communication between the Department and officials at the Italian Embassy, but not with the appellant personally.

[11] On September 10, 1998, the Italian Embassy informed the Department that the appellant had been recalled to Rome where he was to resume his duties on September 15, 1998.

[12] Instead of leaving the country, however, the appellant commenced this judicial review proceeding, and successfully obtained from the Trial Division, on September 11, 1998, a stay of the Minister's decision to expel him from Canada.

[13] The appellant also obtained an injunction from the State Council in Italy, on November 11, 1998, to stop his recall to Rome.

[14] The appellant's application for judicial review was heard by the Trial Division on June 11, 2001. The Motions Judge dismissed the application because she found that the decision in question amounted to a declaration of persona non grata. Moreover, having determined that the request for the appellant's recall was made pursuant to the exercise of Crown prerogative and not a domestic statute, the Motions Judge concluded that it is a political question rather that a legal question, and as such not a justiciable matter. Other legal issues were raised and dealt with by the Court below, but in light of our view on the principal question, we need not deal with them here.

ISSUES

[15] This appeal turns primarily on the issue of justiciability, specifically, whether the Motions Judge erred in concluding that the Minister's decision to request the recall of the appellant was not reviewable as a result of it not being justiciable.

ANALYSIS

[16] In general, the exercise of Crown prerogative is beyond the scope of judicial review, except, of course, when a right guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 is violated (see: Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 at para. 46 (Ont. C.A.)).

[17] In Black v. Canada, Laskin J.A., who wrote for the Court, stated as follows at paragraphs 50 and 51:

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.L.R. (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.

[18] Applying the principles articulated in the Black case, and being of the view that no "rights" or "legitimate expectations" were involved, the Motions Judge narrowed her inquiry to whether the decision in question was made pursuant to Crown prerogative or a Canadian statute. She explained, at paragraph 66, that:

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.

[19] Accordingly, the Motions Judge referred to Article 9 of the Vienna Convention on Diplomatic Relations (1961) 500 U.N.T.S. 95 (the "Vienna Convention"), which provides that receiving states have the right to declare a member of the diplomatic staff of a sending state persona non grata without explanation. It reads 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 case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.

2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission.

[20] However, while portions of the Vienna Convention have been given force of law in Canada by way of the Foreign Missions and International Organizations Act, S.C. 1991, c. 41, this Act does not specifically refer to Article 9. Nevertheless, even though Article 9 has not been specifically enacted in Canadian legislation, it accurately describes the customary international law on this question. Article 9 was therefore relevant to the Motions Judge's analysis in the sense that Canadian courts generally recognize international legal norms irrespective of whether they are binding on Canada (see: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 70).

[21] The Motions Judge made the following determination at paragraph 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.

I agree with this conclusion.

[22] Although it may seem unfair that Canada can expel a diplomat from within its borders without ever having to justify its decision in court, this traditional power exists in order to foster friendly diplomatic relations between nations. It is also in accordance with principles of international law. Diplomats are guests in the foreign countries in which they live and work. Their role is to "contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems," (see: the preamble to the Vienna Convention). Diplomatic status carries with it certain privileges and immunities, but the purpose of these privileges and immunities is not for the benefit of individual diplomats. Rather, as reflected in the preamble to the Vienna Convention, these privileges and immunities attach to diplomatic agents in order "to ensure the efficient performance of the functions of diplomatic missions as representing States." Consequently, the usual rules of administrative law - those concerned with procedural fairness and the rule of law - do not apply. Moreover, no Charter right is engaged by having a diplomat recalled to Italy.

[23] It should be mentioned that the appellant, who continues to reside in Canada, does not seem to have lost his individual right to remain in Canada or to apply for immigrant status as a result of the withdrawal of his diplomatic status by the Republic of Italy.

COSTS

[24] Although costs typically follow the result of an appeal, I am of the view that the circumstances of this case warrant deviation from this customary rule. In staying the Minister's request that the Government of Italy remove the appellant from Canada by September 15, 1998, pending further order of this Court, Justice Hugessen characterized the appellant's situation as "an unusual case" (see: Copello v. Canada (Minister of Foreign Affairs), (1998) 152 F.T.R. 110). In granting the application for interim relief, Huggessen J. also found that the appellant had raised a serious question to be tried. Consequently, the appellant may have been encouraged to seek judicial review of the Minister's decision to expel him from Canada on the basis that his case was novel and had merit. For this reason, although the appellant has not persuaded me to set aside the decision below, he should not be ordered to pay the respondent's costs in this appeal.

CONCLUSION

[25] This appeal should be dismissed without costs.

"A.M. Linden"

J.A.

"I agree,

J. Edgar Sexton J.A."

"I agree,

B. Malone J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-11-02

STYLE OF CAUSE: Dr. Georgio Copello

-and-

The Minister of Foreign Affairs

and the Attorney General of Canada

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: June 10, 2003

REASONS FOR JUDGMENT : LINDEN J.A.

CONCURRED IN BY: SEXTON J.A.

MALONE J.A.

DATED: JULY 3, 2003

APPEARANCES:

Dr. Georgio Copello ON HIS OWN BEHALF

Ms. Linda Wall FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Dr. Georgio Copello ON HIS OWN BEHALF

Mr. Morris Rosenberg FOR THE RESPONDENTS

Deputy Attorney General of Canada

Ottawa, Ontario

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Copello v. Canada (Minister of Foreign Affairs), 2003 FCA 295

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2003 FCA 295