Friday, 15 September 2017

Diplomatic Immunity for Civil Liability is Too Broad

              Instances of abuse of diplomatic immunity are in the headlines frequently in recent years. Just yesterday a Vatican diplomat in the U.S. was recalled following allegations pertaining to child pornography.[i]  The Vatican refused to waive immunity.  Although the most egregious cases involve criminal acts such as this and sexual assault, immunity is commonly invoked also for matters of civil liability, such as failure to pay rent, motor vehicle accidents, and even abuse of domestic workers including slavery.[ii]

Diplomats and their families enjoy almost complete immunity from any legal liability in the host country.   When significant wrongdoing comes to the attention of the Canadian government, it routinely requests from the diplomat’s home country a waiver of immunity, but that request is usually refused.  That said, very often the diplomat’s superiors often voluntarily send him or her back home, and sometimes the diplomat will face legal proceedings there.   The host country has the right, without giving a reason, to declare a diplomat “persona non grata” and require him or her to leave the country.    

The Vienna Convention on Diplomatic Relations, which has been adopted into Canadian law by way of the Foreign Missions and International Organizations Act, S.C. 1991, c. C 41, states at Article 31 that diplomatic immunity is not limited to criminal matters but extends also to civil and administrative jurisdiction, subject to certain exceptions. Immunity extends to the diplomat’s family.    Further, “no measures of execution may be taken …[unless]… the measures concerned can be taken without infringing the inviolability of his person or of his residence”. (Art 31 (3).   In other words, even if a diplomat could be held liable for damages, if his or her only significant asset is his home, there might not be a practical remedy available.  
The purpose of diplomatic immunity is easy enough to understand, and is succinctly stated in the Convention: “the purpose of such …immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States” (Convention Preamble).   An individual diplomat could very foreseeably become a pawn in a dispute between two states, or be vulnerable to persecution simply because he or she represents a country towards which the host country is hostile.    As well, to the extent that a diplomat who commits a crime can be expelled, the need for a criminal prosecution is lessened. However, while expulsion will prevent that diplomat from doing further harm, it is no remedy for the harm already done.    

 Recognizing that a balance must be struck between protection of the diplomat and prevention of abuse of immunity, the Convention carves out a few exceptions to the immunity from civil liability, in Art. 31(1)), namely: 
·         (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
·         (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
·         (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
As well, if a diplomat (or a relative) sues someone, the diplomat cannot invoke immunity in respect of any counter-claim directly connected with the principal claim.

It is far from obvious as to why this list of exempted types of claims should be so short.  Why is tort liability for assault or wrongful death not included?  Or defamation for statements made in a private capacity, and unrelated to relations with the host country?  Arguably, the rule should be reversed, such that the diplomat is not immune from civil liability except in certain cases, which are either listed or determined on a case - by - case basis.    A private claim by a private citizen against a diplomat is less likely than a criminal prosecution brought by the state to be the type of harm the immunity is intended to prevent. 

There have been limited reforms in Canada.   The Justice for Victims of Terrorism Act S.C. 2012 c. 1 does broaden the scope of civil liability, if the wrong done constitutes terrorism.   See the recent Ontario Court of Appeal decision upholding enforcement of an American judgment against the Islamic Republic of Iran in Tracy v Iran [2017] O.J. No, 3480.

Admittedly, revising the Vienna Convention will not be easy;  191 countries are parties to it.   That’s all the more reason to start sooner rather than later.

[ii] “Stunt Driving, tax evasion, child abuse among allegations against foreign diplomats living in Canada”

Friday, 18 August 2017

Google Seeks Declaration that World-Wide Internet Search Injunction is Unenforceable

     Google is bringing a constitutional challenge in the United States against the injunction recently affirmed by the Supreme Court of Canada in Google v. Equustek Solutions 2017 SCC 34, requiring Google not to display any part of certain websites on any of its search results, anywhere in the world. 

     The Supreme Court held that the injunction had to extend world wide, not just to Canada, or, in order to achieve its purpose, which is to prevent Datalink Technologies from selling internationally products that are based on designs stolen from Equustek.    The Court pointed out that the order does not affect speech of the kinds for which protection is warranted.

     Nonetheless, last month Google sued in the U.S. Federal Court for the Northern District of California (case number 17 CV 04207, in San Jose) for a declaration that the injunction is unenforceable on the grounds that it offends the U.S. Constitution’s First Amendment guarantee of freedom of expression, and the Communications Decency Act, which grants immunity to providers of interactive computer services for content created by others.   

Tuesday, 18 July 2017

U.S. judgment against Omar Khadr not likely enforceable in Canada

     The judgment, from the U.S. District Court in Utah in Morris and Speers v. Khadr (415 F. Supp. 2d 1323 (D. Utah 2006) is a default judgment, issued when Omar Khadr was a prisoner at Guantanamo Bay, Cuba.    According to the reasons for judgment, “given the obvious difficulties of serving process on Mr. Khadr personally… the plaintiff obtained leave to “serve notice by publication”, specifically, “by publishing one notice in a newspaper of general circulation in the Toronto Canada area, and by posting the complaint on the website”.  There was no response from Khadr.    The Court proceeded to award damages of US$102,600,000, which was the amount claimed, plus costs.     

     One well-established defence to the enforcement of foreign judgments is breach of natural justice, for example if the defendant did not get proper notice of the proceeding.   Speers v Khadr is an excellent example of such a case. 

     It comes as no surprise that serving the papers on Khadr at Guantanamo is difficult.   After all, Khadr was denied access even to legal counsel for lengthy periods.   If a process server cannot serve papers there, and if for some reason the papers cannot be mailed to Khadr there, what are the chances that family members could bring the papers to him?  The jail is not easily accessible for someone living in Canada.    Presumably family members could inform him by telephone, but only if they knew themselves.  Why then did the court not require the plaintiffs to serve the papers on his relatives?     

     The Court chose service by publication instead.  Seriously, what are the chances the plaintiffs would pick, out of the four or more newspapers of general circulation in Toronto, the newspaper that the relatives usually read, if indeed they usually read any newspaper?   There are other sources of news, after all, including radio and television.   Even if the plaintiffs picked the right newspaper, the Khadr family might not read it everyday.  What are the chances they would read it on that one single day when the notice appeared, and that they would see the notice, which may well be an inconspicuous one in the legal notices section     In short, why would anyone think it likely that the proceeding would come to Khadr’s attention?  Quite possibly the plaintiffs aimed to obtain a judgment without Khadr ever knowing of the proceeding.    

    Neither Khadr, nor pretty much anyone, would ever be able to pay more than a tiny fraction of US$102,600,000, even if he worked all his life and paid every penny of his earnings to Speer.  One would expect that a court would require that great care be taken to ensure the defendant gets notice of such a big claim, or for that matter, even a claim one thousandth that size.       

     Even if the proceeding did come to his attention, would he even be able to instruct a lawyer for his defence, or be able to give evidence?   

     In short, Khadr has a very strong defence to enforcement. The U.S. court seems to have been highly sympathetic to the plaintiffs, and chillingly indifferent, or worse, to the defendant's right to notice.  If the judgment is held enforceable notwithstanding, one would have to question whether the enforcing court respected the principle of the rule of law.