Entertainment Software Association: is the presumption of conformity progressive or conservative?

Summary: In Entertainment Software Association, the Federal Court of Appeal rejected an interpretation of the Copyright Modernization Act that would have conformed with a treaty that the Act was seemingly intended to implement. The court’s skepticism of international law as an interpretive consideration verged on hostility. I argue here that rejecting the presumption of conformity in the interpretation of statutes neglects the separation of powers and risks judicial incursion into the executive’s conduct of foreign affairs.

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International law evidence after Nevsun

One of the many important reception law issues addressed in the Supreme Court of Canada’s decision in Nevsun Resources Ltd v Araya 2020 SCC 5 was the judicial notice of international law by Canadian courts. Nevsun takes us some way further towards settling a long-neglected point of evidence and procedure: how, as a matter of evidence and procedure, should parties bring international legal issues before the court? While Nevsun does not give a complete answer, it points the way. Read together with other Canadian and Commonwealth authorities, we may finally be coming to a resolution of the question. An upcoming appeal before the Federal Court of Appeal presents a further opportunity to clarify this point.   Continue reading “International law evidence after Nevsun”

POGG and treaties: the role of international agreements in national concern analysis

Three references arising from Parliament’s Greenhouse Gas Pollution Pricing Act will soon be heard by the Supreme Court of Canada. In each case, Canada is defending the legislation as valid under the national concern branch of Parliament’s peace, order and good government (POGG) power. And in each case Canada is invoking the state’s obligations under international climate change agreements. International agreements have played a central, if somewhat uncertain, role in POGG cases going back to the days of the Privy Council. How treaties ought properly to be used in determining Parliament’s POGG jurisdiction is a constitutionally-fraught question. I explain the issue, and attempt to distill some conclusions from the case law, here.  Continue reading “POGG and treaties: the role of international agreements in national concern analysis”

International law in judicial review after Vavilov

The Supreme Court of Canada chose the unlikely case of Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 as its platform for an extensive rewrite of Canadian administrative law. The decision will mostly be cited for its discussions of how to determine the standard of review applicable in judicial review of administrative decision-making and how to conduct such review on a reasonableness standard. But Vavilov is also important for its consideration of the place of public international legal considerations in judicial review. While the decision might not seem to say much about international law, what it does say, and where it says it, are developments to be welcomed. Vavilov brings the interpretive presumption of conformity with international law to administrative decision making, and reasserts that presumption in judicial reviews of those decisions.   [PDF]

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Is President Trump’s Miami G7 contrary to Canada’s anti-bribery law?

The White House recently announced that the next G7 summit will take place at Donald Trump’s privately-owned Miami golf resort. It seems clear that President Trump will obtain a personal financial benefit from the United States hosting this major international event. US critics are calling the decision to hold the G7 at a Trump property illegal and even unconstitutional. For Canada and other G7 members with anti-corruption laws, the question should be, can they lawfully attend?

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Is the Federal Court of Appeal making ambiguity great again?

In two cases decided in the 1990s, the Supreme Court of Canada rejected the doctrine that courts cannot consider the international legal context of a provision they are interpreting unless there is some ambiguity on the face of the statute or regulation that permits resort to international law. The Supreme Court has since embraced international law as a contextual consideration in statutory interpretation, leaving the ambiguity doctrine behind. But the Federal Court of Appeal recently cited one of its own precedents on ambiguity (National Corn Growers) despite that decision having been overturned by the top court on this very point. The FCA seems divided on the issue, with some members following SCC precedent and others trying to bring ambiguity back.

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Turp v Canada: are the Geneva Conventions really out of bounds on judicial review?

I recently wrote about the important comments Nadon JA made in Turp v Canada 2018 FCA 133 against resorting to expert evidence when making international legal submissions before Canadian courts. I think Nadon JA is absolutely right about this, and I hope courts around the country will follow his lead.

But I disagree with Nadon JA on another aspect of the Turp case. He held (unanimously, and upholding Tremblay-Lamer J on this point in the court below) that the appellant, Prof. Daniel Turp, could not raise Canada’s obligations under the Geneva Conventions in a judicial review of the Minister of Foreign Affairs’ decision to licence the export of Canadian-made light armoured vehicles to Saudi Arabia. That conclusion is hard to reconcile with cases, especially since Baker v Canada (MCI) [1999] 2 SCR 817, in which courts have considered Canada’s international legal obligations in judicial review proceedings. More significantly, I think Nadon JA’s conclusion is contrary to one of the foundational rules of the Canadian reception system, namely that treaties don’t take direct effect in domestic law without legislative implementation.

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Court of Appeal uses Convention on the Rights of the Child to protect Children’s Lawyer’s records from FIPPA disclosure

In Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) 2018 ONCA 559 (18 June 2018), Benotto JA for the Court of Appeal for Ontario invokes the Convention on the Rights of the Child 1989 repeatedly (and in my view correctly) despite its supposedly unimplemented status in Canadian law. She frames her use of the Convention as part of the contextual approach to statutory interpretation without purporting to apply the presumption of conformity with international law. But the end result is the same: an interpretation of domestic law in line with our treaty obligations.

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