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”

Recent Federal Courts decisions on expert evidence of international law

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.

Continue reading “Recent Federal Courts decisions on expert evidence of international law”