Summary: In Entertainment Software Association, the Federal Court of Appeal rejected an interpretation of the Copyright Modernization Act that would have conformed with a treaty that the Act was seemingly intended to implement. The court’s skepticism of international law as an interpretive consideration verged on hostility. I argue here that rejecting the presumption of conformity in the interpretation of statutes neglects the separation of powers and risks judicial incursion into the executive’s conduct of foreign affairs.
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International law in judicial review after Vavilov
The Supreme Court of Canada chose the unlikely case of Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 as its platform for an extensive rewrite of Canadian administrative law. The decision will mostly be cited for its discussions of how to determine the standard of review applicable in judicial review of administrative decision-making and how to conduct such review on a reasonableness standard. But Vavilov is also important for its consideration of the place of public international legal considerations in judicial review. While the decision might not seem to say much about international law, what it does say, and where it says it, are developments to be welcomed. Vavilov brings the interpretive presumption of conformity with international law to administrative decision making, and reasserts that presumption in judicial reviews of those decisions. [PDF]
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Is the Federal Court of Appeal making ambiguity great again?
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.
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Court of Appeal uses Convention on the Rights of the Child to protect Children’s Lawyer’s records from FIPPA disclosure
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.
Gib van Ert 