R. v. Palacios, (1984) 1 O.A.C. 356 (CA)

• Judge: Martin, Blair and Goodman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 10, 1984
• Jurisdiction: Ontario
• Citations: (1984), 1 O.A.C. 356 (CA)

R. v. Palacios (1984), 1 O.A.C. 356 (CA)

MLB headnote and full text

R. v. Palacios

Indexed As: R. v. Palacios

Ontario Court of Appeal

Martin, Blair and Goodman, JJ.A.

February 10, 1984.

Summary:

The accused, a member of the diplomatic staff of the Nicaraguan Embassy in Ottawa, was charged with five criminal offences, including possession of cocaine for the purpose of trafficking. He claimed diplomatic immunity. He was charged 16 days after the Embassy advised the Canadian Department of External Affairs that the accused's duties at the Embassy had ended. In the meantime the accused visited the United States for a week. It was agreed that he had not had a reasonable time to remove himself and his family form Canada. Article 39(2) of the Vienna Convention on Diplomatic Relations provided that diplomatic immunity "shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so".

The Ontario Provincial Court ruled that the accused was entitled to diplomatic immunity, holding that the immunity did not cease until the accused permanently left Canada, which he did not do by visiting the United States temporarily.

The Ontario High Court dismissed the Crown's application for mandamus. The Crown appealed.

The Ontario Court of Appeal dismissed the appeal and affirmed that the accused's diplomatic immunity did not cease with his visit to the United States.

Administrative Law - Topic 3586

Judicial review - Mandamus - Bars - The existence of alternate remedy - The Ontario Court of Appeal held that mandamus was a discretionary remedy, which did not lie, if other remedies were available - The court held, however, that the rule that another remedy barred mandamus was not inflexible - See paragraphs 27 to 28.

Administrative Law - Topic 3676

Judicial review - Mandamus - Mandamus to courts and judicial officers - General - The Ontario Court of Appeal held that the purpose of a writ of mandamus is to compel an inferior court to proceed with its determination of criminal charges on their merits, where the court has erred in refusing to do so - The court held that the relevant question is whether the inferior court made an error of law in reaching a decision which prevented the determination of the charge on the merits - For example, if a trial judge erroneously ruled that an accused was entitled to diplomatic immunity, thereby avoiding disposition of the merits, mandamus would lie to compel continuation of the hearing - See paragraphs 25 to 29.

International Law - Topic 9304

Diplomatic officers - Privileges and immunity - Termination - Leaving country - What constitutes - Article 39(2) of the Vienna Convention on Diplomatic Relations, 1961, provided that a diplomatic officer's immunity "shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so" - A diplomatic official of the Nicaraguan Embassy in Ottawa finished his duties on July 12 - On July 16 he visited the U.S. for a week - Within a week of his return to Ottawa he was charged with criminal offences - It was agreed that he had not had reasonable time to remove himself and his family from Canada - The Ontario Court of Appeal held that that official was entitled to diplomatic immunity, because loss of immunity occurred upon permanently leaving and not upon the temporary visit to the U.S. - See paragraphs 6 to 24.

Treaties - Topic 2001

Construction - General - The Ontario Court of Appeal held that the basic rule of international law governing the interpretation of treaties is that the primary end of treaty interpretation is to give effect to the intention of the parties and not to frustrate it - See paragraph 18.

Treaties - Topic 2005

Construction - What rules govern - The Ontario Court of Appeal held that the principles of public international law and not domestic law govern the interpretation of treaties - See paragraphs 17 to 19.

Cases Noticed:

Case concerning U.S. Diplomatic and Consular Staff in Tehran - Provisional Measures, [1979] I.C.J. Rep. 7, appld. [para. 10].

Foreign Legations Case: Reference re Powers of The Corporation of the City of Ottawa and the Corporation of the Village of Rockcliffe Park to Levy Taxes on Foreign Legations and High Commissions, [1943] S.C.R. 208, appld. [para. 10].

Reference Re Powers of The Corporation of the City of Ottawa and the Corporation of the Village of Rockcliffe Park to Levy Taxes on Foreign Legations and High Commissions, [1943] S.C.R. 208 appld. [para. 10].

Magdalena Steam Navigation Company v. Martin (1859), 121 E.R. 36; 2 E. & E. 94, consd. [para. 12].

Musurus Bey v. Gadban, [1894] 2 Q.B. 352, consd. [para. 12].

The Parlement Belge (1878-79), 4 P.D. 129, appld. [para. 14].

Stag Line, Ltd. v. Foscolo, Mango & Co., [1932] A.C. 328, appld. [para. 17].

Re Regina and Beason (1983), 43 O.R.(2d) 65; 7 C.C.C.(3d) 20, appld. [para. 26].

Cheyenne Realty Ltd. v. Thompson (1974), 1 N.R. 273; 15 C.C.C.(2d) 49, appld. [para. 27].

R. v. Rourke (1977), 16 N.R. 181; 35 C.C.C.(2d) 129, appld. [paras. 28, 36].

Ex p. Milner (1851), 15 Jur. 1037, disapprvd. [para. 33].

Re Ratcliffe v. Crescent Mill and Timber Co. (1901), 1 O.L.R. 331, disapprvd. [para. 33].

Kipp v. A.G. for Ontario, [1965] 2 C.C.C. 133, appld. [para. 36].

Statutes Noticed:

Diplomatic and Consular privileges and Immunities Act, S.C. 1976-77, c. 31, sect. 2(1) [para. 6].

Vienna Convention on Diplomatic Relations 1961, Canadian Treaties Series 1966, No. 29, art. 10 [para. 16]; art. 39 [para. 7].

Authors and Works Noticed:

Castel, Canadian Conflict of Laws (1976), pp. 362-363 [para. 9].

Cheshire and North, Private International Law (10th Ed. 1979), p. 106 [para. 9].

Denza, Diplomatic Law (1976), pp. 248-249 [para. 12].

Hackworth, Digest of International Law, vol. 4, para. 402, p. 538 [para. 13].

Hardy, Modern Diplomatic Law (1969), p. 82 [para. 12].

Jones, Termination of Diplomatic Immunity, British Yearbook of International Law (1948), pp. 262-275 [paras. 12-13].

Lee and Vechsler, Sovereign, Diplomatic and Consular Immunities, Canadian Perspectives On International Law and Organization (1975), MacDonald, Morris and Johnston Eds. p. 194 [paras. 9, 10].

MacDonald, Morris and Johnston, Canadian Perspective on International Law and Organization (1975), p. 194 [paras. 9-10].

Maxwell on the Interpretation of Statutes (12th Ed.), p. 36 [para. 19].

O'Connell, International Law (2nd Ed.), vol. 1, pp. 251 [para. 18]; 265 [para. 17]; vol. 2, pp. 906-908 [paras. 12, 13].

Counsel:

Roger LeClaire, for the appellant;

David Casey and Charles Beall, for the respondent.

This case was heard on December 2, 1983, at Toronto, Ontario, before Martin, Blair and Goodman, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Blair, J.A., and was released on February 10, 1984.