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.

Here’s what Nadon JA said (my underlining, original French here):

[76] According to the appellant, given the rule of law and the fact that he is seeking only the enforcement of a Canadian law, the judge should have intervened because the Minister’s decision to issue permits contravenes the GCA [Geneva Conventions Act] and, as a result, the Minister’s decision [translation] “was not within the possible outcomes within the meaning of Dunsmuir” (appellant’s memorandum of fact and law, at paragraph 68).

[77] Since it is my view that the judge correctly ruled that the appellant did not have the standing necessary to raise a violation of the Geneva Conventions, we will not have to linger over the appellant’s other arguments concerning this issue.

[78] In my view, only the states that have signed the Geneva Conventions can raise a violation of those instruments and, more specifically, a violation of Common Article 1. The language of Common Article 1 leaves no doubt about this subject. The Geneva Conventions provide the contracting parties with the right, and may I say, the duty to “ensure respect for the present Convention in all circumstances” (Common Article 1 of the Conventions). Consequently, individuals like the appellant are not at liberty to raise violations of the Geneva Conventions and demand their enforcement before the courts. Clearly, any individual can raise these questions as part of political and democratic debates and ask their government to take action. However, an individual cannot do so, as the appellant is trying to do, through an application for judicial review of the Minister’s decision to issue permits under the EIPA [Export and Import Permits Act] as I explained above.

[79] In this respect, I fully concur with the comments of the respondent’s expert, Professor Schmitt, which are found at paragraphs 20 to 22 of his affidavit dated June 29, 2016, where he opines that a violation of the Geneva Conventions by a signatory state constitutes an “internationally wrongful act” with respect to states not responsible for the violation. Moreover, according to Professor Schmitt, a violation in no way gives rise to a remedy to individuals affected by the violation.

[80] In other words, the individuals or persons affected by the violation cannot seek any remedy against the state responsible for violating the Geneva Conventions. That is the sole right of a signatory state that is not responsible for the violation. Consequently, according to Professor Schmitt, an individual such as the appellant in this case cannot raise a conventions violation before the courts. Author Kate Parlett shares this conclusion in her work entitled The Individual in the International Legal System: Continuity and Change in International Law, Cambridge, Cambridge University Press, 2011. More specifically, on page 182 of her work, under the heading The Individual in International Humanitarian Law, the author states the following, under the title The 1949 Geneva Convention:

The substantive provisions of the four Geneva Conventions generally express the protection of individuals as protective obligations on state parties to a conflict, rather than as specific rights conferred directly on individuals. Common Article 1 of each of the Geneva Conventions states that the High Contracting Parties “undertake to respect and to ensure respect for the present Convention in all circumstances”. Additionally, the first and second Geneva Conventions provide that “[e]ach Party to the conflict . . . shall ensure the detailed execution” of the provisions of those conventions. The provisions relating to execution in all four conventions refer exclusively to obligations incumbent upon states.

The vast majority of the provisions of the conventions which provide for the protection of various categories of individuals are expressed in terms which indicate that obligations are imposed on states parties to a conflict, rather than rights directly conferred on the relevant individuals.

[81] Consequently, as the judge ruled, the appellant does not have the appropriate standing to raise a violation of Common Article 1 of the Geneva Conventions, even if it has been incorporated into domestic law.

With great respect to Nadon JA (one of our leading judges on reception law issues; see, for instance, his excellent reasons in Pembina County Water Resource District v. Manitoba (Government) 2017 FCA 92), I believe he has mistaken the international legal position for the domestic position. The two are not necessarily the same.

I don’t doubt that Nadon JA is right about individuals’ standing to invoke the Geneva Conventions as a matter of public international law. The orthodox view is that individuals are not, for most purposes, the subjects of international law. This subject-object dichotomy has been criticized, but it is clear that the rights and responsibilities of individuals under international law are very different than those of states, particularly for the purposes of state responsibility. In this sense one can say, as Nadon JA does, that individuals lack standing in international law to complain of treaty violations.

I am less certain that this standing rule (if one can call it that) extends so far as to purport to prohibit natural persons like Prof. Turp from invoking the Conventions in domestic legal proceedings. What use natural persons may make of their states’ treaty obligations in national courts strikes me as a question of domestic law upon which the Geneva Conventions, and international law more broadly, do not generally opine. But even if that is not so, the effect of any international law standing rule in domestic law is a matter for domestic law to determine.

The rule in Canada seems clear: subject to certain rules and limitations (which I will come to below), litigants and courts may rely on and consider Canadian treaty obligations in domestic proceedings. In particular, our courts, particularly since Baker, recognize that the state’s international obligations are potentially relevant contextual considerations in judicial review of executive action. The weight given to such considerations may vary from case to case, but the possibility of scrutinizing a governmental decision against the state’s international obligations has been recognized in the Federal Court of Appeal (e.g., Budlakoti v. Canada (Citizenship and Immigration) 2015 FCA 139 at [54]) and other courts (e.g., Bhajan v. Bhajan, 2010 ONCA 714 at [14]) as an application of Baker‘s holding (at [70]) that “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review”. The rule proposed by Nadon JA, whereby a litigant who lacks standing under a treaty at international law is therefore also prohibited from invoking that treaty in a Canadian judicial review proceeding, is hard to reconcile with these authorities.

But there is a further objection. Treaties do not take direct effect in Canadian law without legislative implementation. Justice Nadon is, of course, perfectly aware of that rule; indeed, he refers to it in his reasons. The effect of this implementation requirement is that a treaty made by Canada cannot add to or subtract from the rights of Prof. Turp (or anyone else), or otherwise alter domestic law, unless given the force of law through legislation. If, therefore, Common Article 1 or some other provision of the Geneva Conventions contains a prohibition on natural persons relying on the Conventions in domestic proceedings–which I doubt, but let’s assume it is so–that prohibition has no direct effect per se in Canadian law, but must be implemented by statute to have the force of law here.

So has this standing rule been implemented? No. The Geneva Conventions are partially implemented in Canadian law by s. 3 of the Geneva Conventions Act RSC 1985 c. G-3, which criminalizes conduct that constitutes grave breaches under the Conventions. But the Conventions are not wholly implemented by that Act, as Justices Nadon and Tremblay-Lamer rightly noted. In particular, the Act does not give force of law to Common Article 1 or any supposed standing rule to prohibit litigants such as Turp from invoking the Conventions in Canadian judicial review proceedings.

Justice Nadon must therefore be wrong to say that Common Article 1 means that “individuals like the appellant are not at liberty to raise violations of the Geneva Conventions and demand their enforcement before the courts”. Even if such a rule is found in the Geneva Conventions, it has not been implemented in domestic law. For the court to grant direct effect to a treaty-based limit on the rights of individuals to challenge the lawfulness of government action in domestic courts without legislation would recognize in the federal Crown a unilateral power to change the law, and in this case to take away people’s rights–exactly what the implementation requirement aims to prevent.

Two precedents, one a famous old English case and one a more recent and fairly obscure Quebec decision, strike me as particularly on point. Both illustrate the inability of unimplemented treaties to subtract from an individual’s right to pursue legal remedies in domestic courts. In The Parlement Belge [1878–9] 4 PD 129 at 154, Sir Robert Phillimore famously rejected the defendant’s argument that the plaintiff’s right to bring a claim against the owner of a ship (the Parlement Belge) was excluded by a UK treaty with Belgium:

If the Crown had power without the authority of parliament by this treaty to order that the Parlement Belge should be entitled to all the privileges of a ship of war, then the warrant, which is prayed for against the wrong-doer on account of the collision, cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished. This is a use of the treaty-making prerogative of the Crown which I believe to be without precedent, and in principle contrary to the laws of the constitution.

Similarly, in R. v. Miller 1999 CanLII 13724 (Que CA), Nuss JA rejected the federal Crown’s attempt to rely on an unimplemented headquarters treaty with the International Civil Aviation Organization (ICAO) to escape its liability as landlord for a claim by Miller alleging poor air quality in the ICAO building. The Crown argued that its treaty with ICAO granted it immunity from Miller’s claim. Nuss JA disagreed, saying (at [46]):

If the Crown has committed a fault, in Quebec, which causes a person damages, then, saving a case where domestic law gives the Crown immunity from suit, it may be sued before the courts having jurisdiction in Canada.   There is no principle of law which provides that because the Crown is involved with an International Organization in Canada, it is not subject to the Canadian courts if, because of its extra-contractual acts in Canada, on the occasion of or incidental to such involvement, it causes damages to a person.

The Supreme Court of Canada dismissed the appeal (Miller v Canada 2001 SCC 12).

Returning to Turp’s case, the argument that the Minister’s decision to grant the export licences was unreasonable because in violation of international law would ordinarily be available to him, there being no statutory or common law bar to it. Moreover the Export and Import Permits Act under which the Minister acted is to be interpreted in its entire context, including international law (R v Hape 2007 SCC 26 at [53]), and according to the presumption of conformity (B010 v. Canada (Citizenship and Immigration) 2015 SCC 58 at [47]-[49]). To conclude that Canada’s accession to the Geneva Conventions forecloses such interpretations, and prohibits Turp’s argument even without legislative implementation, is at odds not only with the unwritten constitutional principles of Parlement Belge and Miller, but also the interpretive principles of Hape and B010. 

If I am right in all this, then the Federal Court of Appeal should indeed have “linger[ed] over the appellant’s other arguments concerning” the Minister’s alleged violations of the Geneva Conventions (Nadon JA at [77]). There may yet be occasion to do so. Prof. Turp has sought leave to appeal.