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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