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Diplomatic immunity won't fly for Marc Wabafiyebazu, Canadian teen in Miami shootout case

04/01/2015 05:07 EDT | Updated 06/01/2015 05:59 EDT
Diplomats and their families posted abroad enjoy broad immunities from laws in their host country.

No so for consular officials or their children — a distinction that became clear this week following a deadly shootout in Florida, a state with particularly harsh murder laws.

The shield of diplomatic immunity affords no protections to the teen son of Canada's consul general in Miami, Roxanne Dubé, according to Canada's Foreign Affairs Department.

The teen, Marc Wabafiyebazu, was arrested on a charge of felony murder Monday in connection with what police describe as a botched drug-related robbery.

His older brother, 17-year-old Jean Wabafiyebazu, was killed in an ensuing gunfight inside a Miami apartment complex. Another 17-year-old, identified in news reports as Joshua Wright, also died in the shooting.

Police say the brothers had borrowed their mother's black BMW, and that Marc was waiting in the car when Jean and a friend allegedly entered the apartment, intending to rip off marijuana dealers.

Miami investigators believe both Wabafiyebazu brothers were armed.

Although Dubé served as Canada's ambassador in Zimbabwe for three years, her re-posting in November as consul general in Miami means that neither she - nor her Canadian sons - are protected under a higher-level immunity reserved for "diplomatic agents."

'Consular immunity'

"If this was an ambassador's child…then they should enjoy the same immunity as the parent," said Miami criminal defence lawyer David Edelstein. "A consular official is not a diplomatic agent."

All foreign government representatives on missions abroad are referred to colloquially as diplomats, but consular officials are provided "very limited" immunity compared to ambassadors, says Chris Whytock, a law professor with the University of California at Irvine.

"Consular officials only have immunity for official acts" during their work duties, he said. A traffic violation could be waived, for example, if an official was speeding while on business to attend a trade meeting.

"Moreover, consular immunity does not extend to family members," Whytock said.

Diplomatic agents, on the other hand, have "complete immunity" from a host country's laws, "no matter how serious the offense," according to the U.S. State Department's Diplomatic and Consular Immunity booklet.  

Family members in the same household would "enjoy precisely the same privileges," the booklet says.

Modern rules codified in 1961

The principle of diplomatic immunity has existed for centuries, going back to ancient Greco-Roman times.

The modern rules were formally codified in 1961 via the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations as a means to safeguard senior envoys in the foreign service from arbitrary abuse from a host country.

Retired Canadian diplomat Jeremy Kinsman, who served for 40 years in the foreign service, including four years as the ambassador to the European Union, said that generally speaking for criminal prosecutions, "it would be up to Canadian authorities to invoke diplomatic immunity or to waive it."

Kinsman said he feels compassion for Dubé in what he said really amounts to a family tragedy.

"[It's] terrible for the mother in professional as well as personal terms," he said.

While Dube's surviving son was arrested on a felony murder charge, he has not been formally charged.

Miami criminal lawyer Barry Beroset says the state of Florida has a "specific statute that can hold someone accountable for a homicide, a murder, if they in any way assisted or participated in it.

"It's a very unjust application of the law."

Could be charged as adult

Beroset knows of several felony murder cases that in some way mirror the one involving the Wabafiyebazu brothers.

"In one case, an individual drove to an establishment where they were going to go in and rip off somebody for drugs. Inside, they killed some people. The driver had no idea they were going to kill anybody, he just drove the car," Beroset said.

"As a result, he went to trial and was convicted. He is serving a life sentence."

Whether a suspect acted directly to kill another person has no real bearing on a felony murder charge, Edelstein said.

What matters, he said, is whether the individual participated in any way in certain types of violent crimes in which it could be "reasonably foreseeable" that somebody might die.

"Then they could be charged with the actual murder of a person, even if they're not the one who pulled the trigger, so to speak."
 
Questions also revolve around whether Marc Wabafiyebazu could be charged as an adult.

Were he a year older, Edelstein said, he would be sent to adult court due to the serious nature of the crime.

"He's not far from 16, where it would have been a mandatory direct file to adult court, so there's a good chance it could end up in adult court," Edelstein said.

That will be discretionary on the part of the state attorney's office. A decision is expected within 21 days of an arrest.

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