India's math on 'diplomatic parity' with Canada may not add up
New Delhi now has nearly three times as many representatives in Canada as Canada has in India
Canadian diplomats are still struggling to understand both the precise motivations and the math behind India's recent demand for parity with Canada in diplomatic representation — a demand that led to the sudden departure of 41 Canadian diplomats from India at the end of last week.
That two-thirds reduction in Canada's diplomatic presence in India is just the latest consequence of the steep decline in bilateral relations since Prime Minister Justin Trudeau last month accused agents of India of involvement in the killing of Sikh-Canadian citizen Hardeep Singh Nijjar.
Indian Foreign Minister S. Jaishankar said Sunday that India "invoked parity because we had concerns about continuous interference in our affairs by Canadian personnel."
"We haven't made much of that public. My sense is over a period of time more stuff will come out and people will understand why we had the kind of discomfort ... which we did," he added.
India presented Canada with a list of the people it wanted out of the country. Canadian officials have not made that list public.
Normally, the staffing complement at the Canadian High Commission in New Delhi includes two Canadian Security Intelligence Service (CSIS) officers, a contingent of Canada Border Services Agency officers, representatives of Immigration, Refugees and Citizenship Canada and the Department of National Defence, and foreign service and trade officers from Global Affairs Canada.
Not clear where India's numbers come from
Former and current diplomats contacted by CBC News expressed surprise and dismay at the fact that India did not follow the ordinary procedures for removing unwanted Canadian representatives under the Vienna Convention, which allows a host state to declare foreign representatives "persona non grata."
Instead, India simply announced that the listed individuals would lose their diplomatic immunity on Friday, October 20.
The experts also agreed that India could have accomplished the same goals without violating the Vienna Convention. Former Canadian ambassador Dennis Horak told CBC News that the differences between ejecting a diplomat under the convention and doing it the way India did amount to "legal hair-splitting."
"It amounts to the same thing basically — you're being expelled," he said.
India had demanded that Canada reduce its presence in India to a mere 21 diplomats, in order to match what India says is the number of diplomats it has in Canada.
But no matter how one counts India's representatives in Canada, they do not add up to 21.
Canada's decision to leave behind only full-status diplomatic agents, with the highest level of legal immunity, shows that Canadian officials were not willing to risk exposing consular officials with lower levels of immunity to the risk of arrest and official harassment in India.
But a look at India's presence in Canada shows New Delhi doesn't share the same concerns about what might happen to its diplomats here.
There are 62 Indian diplomats in Canada. Two of them don't represent India to the Canadian government but are attached to the International Civil Aviation Organization in Montreal.
That leaves 60 who can really be compared to Canada's representation in India — not 21.
When 'parity' is not parity
The list also includes two Indian military attaches who are accredited as full diplomats in Canada but spend most of their time in Washington (they also have diplomatic status with the U.S. government).
Of the 60 diplomats who represent India in Canada, twenty-five are attached to the High Commission in Ottawa (including the military attaches), 20 work at the Toronto consulate and another 15 are stationed at the consulate in Vancouver.
But of the 60, only 15 have full diplomatic immunity — not 21.
All 15 "diplomatic agents" work at the High Commission in Ottawa. They include the two military attaches who spend most of their time in the U.S. and, of course, High Commissioner Sanjay Kumar Verma and his deputy Chinmoy Naik.
Indian representatives in Canada of all kinds now outnumber the Canadian representatives in India by almost three to one.
Safe at work, not at leisure
While many people are familiar with the Vienna Convention and its protections for diplomats, it's less widely understood that there are in fact two Vienna Conventions — one on diplomatic relations and one on consular relations, with different levels of immunity from arrest, search, prosecution and imprisonment.
While the blanket immunity in the Vienna Convention on Diplomatic Relations leaves little room for ambiguity, different countries sometimes apply slightly different interpretations of how immunity under the Vienna Convention on Consular Relations interacts with national laws.
As a general rule, those who work in consulates — which are focused on safeguarding the interests of their citizens while in a foreign country — can be subject to local laws if they commit a serious offence.
One former senior Canadian diplomat who served in New Delhi told CBC News that India interprets the treaty to mean that consular officials are immune from arrest while at work — but not outside of work hours.
In theory, a Canadian consular officer working at the Canadian consulate in Chandigarh, Punjab, is safe while at the consulate but could be arrested while driving home from the office.
This reality is what led Canada to withdraw all officials with limited liability first, even while keeping full diplomats in the country beyond the Indian government's October 10 deadline.
It also explains why Canada found it necessary to suspend operations at all three of its functioning consulates in India, in the cities of Mumbai, Chandigarh and Bengaluru.
Different levels of immunity
India's staff in Canada, in addition to the 15 diplomatic agents in Ottawa, include 21 consular officials, 13 consular employees, 9 administrative/technical staff and two service staff (a category that includes cooks).
The levels of diplomatic immunity vary with the job description.
For example, a consular official is immune from search at airports, but a consular employee is not.
Both have legal immunity, both civil and criminal, only with respect to their exercise of official functions. Diplomatic agents have blanket immunity, unless their government agrees to waive it. Diplomats have in the past used that immunity to escape prosecution for serious crimes in Canada.
To arrest a consular officer, Canadian authorities must first obtain a warrant charging a "grave crime" carrying at least a potential five years in prison, and must also show that public safety is at risk. A consular employee, on the other hand, can be arrested and charged for more mundane crimes such as drinking and driving.
Diplomatic agents are immune from search, whether they're at home, travelling, or at their place of work. A consular officer or employee's workplace cannot be searched, but his or her home or car can be.
The fact that India, unlike Canada, has chosen to leave in place representatives with lower levels of immunity suggests that it does not share Canada's concern that its agents may face official harassment or reprisals.
Indian diplomat complained about Sikh protest
S. Jaishankar suggested Sunday that while relations with Canada are going through "a difficult phase," India could reverse its decision to stop issuing visas to Canadians if Ottawa gives it more assurances about the security of its diplomats.
Members of the government of Indian Prime Minister Narendra Modi have claimed that Indian diplomats and Hindus in Canada feel physically threatened by the presence of Sikh separatists, sometimes referred to as Khalistanis.
"But I do want to say the problems we have are with a certain segment of Canadian politics and the policies which flow from that," S. Jaishankar added.
He did not specify what Canada might do to reassure India about its diplomats' security.
India's High Commissioner Sanjay Kumar Verma had complained about a Sikh protest in March, during which demonstrators shook the fence outside the embassy. Some Indian media reports, citing unnamed sources in the country's National Investigation Agency, reported that the protest was actually an attack involving two grenades.
CBC News spoke with the Montreal man named in Indian media as the grenade attacker; he described the allegations as "ridiculous".
Ottawa police have said smoke bombs may have been set off during the protest, but no grenades were used.
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