(Quebec Court of King’s Bench, Appeal Side) Rose was convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents which had been stolen by a defecting clerk who was employed in the embassy and was handed over to the Canadian police.
Held: Rose’s claim that the stolen documents used against him were immune from use was rejected. The general rule was not absolute: it was subject to exceptions, and it could not be invoked by a Canadian citizen in litigation between his government and himself; nor when the documents revealed an abuse of diplomatic privilege by the foreign state which constituted a threat to the safety of the receiving state; nor in cases where no one connected with the foreign state or its embassy claimed any privilege for the documents. Such a claim ‘could not be admitted where the recognition of such immunity was inconsistent with the fundamental right of self-preservation belonging to a State or where the executive had impliedly refused to recognise such immunity.’
Bissonnette J said: ‘International law creates a presumption of law that documents coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction or competence with regard to them.’
However: ‘To sum up, I believe that diplomatic immunity is relative; that the Courts must give effect to it and accord its advantage to every diplomatic agent who claims it; that the privilege of taking advantage of the immunity of a foreign State cannot be admitted for a Canadian citizen in litigation between his Government and himself, when he is not part of a diplomatic corps; to impose, through a judicial decision, immunity upon a State which does not claim any, would be casting a slur upon its dignity, its sovereignty, and, through a gesture as ungracious as unexpected, would elevate a simple suit to a degree of international importance and create, at least in theory, a diplomatic conflict contrary to the will of the executive power itself.’
Can Dig 1946 76 161,  3 DLR 618
Distinguished – Fayed v Al-Tajir CA 1987
The de facto head of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. Diplomatic immunity had been waived, but the question remained whether the . .
Cited – Bancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2021; Ref: scu.653202