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.
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)  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.
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.
No Canadian courts face public international legal issues more often than the Federal Court and the Federal Court of Appeal. In such areas as immigration, taxation, national security, intellectual property and judicial review of federal government action generally, the federal courts regularly confront international legal issues. How international law is received in our law—both substantively and procedurally—is therefore of especial importance to these courts.
Three recent cases—two from the Federal Court and one from the Federal Court of Appeal—have considered the question of whether expert opinion on international legal issues is admissible in evidence. This issue has generated a great deal of inconsistent, and often under-reasoned, Canadian jurisprudence in the last twenty years. But the three cases discussed below suggest we are finally moving in the right direction.
In a recent debate in the Senate, the Hon. Murray Sinclair made some important comments about Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples Act. His powerful and moving speech is worth reading for many reasons, but I am especially interested in what he considers the legal effect of Bill C-262 will be. In short, he does not think this bill will implement the Declaration in federal law. I agree.
After three years of serving as Executive Legal Officer at the Supreme Court of Canada–and therefore not maintaining my web site–I am back in private practice with Miller Thomson LLP in Vancouver and Ottawa. So I’m relaunching my web site.
The new site is mostly a blog about the reception of public international legal norms in Canadian law, to complement my continued writing on that subject.