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.
Gib van Ert 