Preliminary Paper Outline May 18, 2009 Professor John H. Currie

THE MCLACHLIN COURT AND INTERNATIONAL LAW Preliminary Paper Outline1 May 18, 2009 Professor John H. Currie Faculty of Law, University of Ottawa Introduction In its first decade, the McLachlin Court has continued to make frequent and even increased reference to international law and other international sources in its judgments (Charter and non-Charter alike). Indeed in some instances international law has proved pivotal to the outcome of the case under consideration. This has sent a clear signal to lower courts that international law will often be a relevant and perhaps even crucial consideration in resolving domestic legal issues, a development widely considered desirable by international lawyers as emblematic of Canada’s commitment to the global rule of law. Recognizing the important implications of these developments, in recent years the McLachlin Court has also made conscious efforts to address explicitly the nature of the relationship between international and Canadian law – efforts seldom found in the Court’s earlier jurisprudence. Preliminary assessments of those efforts appear to reveal an emerging “convergence” of the rules governing the relationship between various sources of international and domestic law, perhaps most notably apparent in the form of the now nearly ubiquitous “presumption of conformity” of domestic law with international law. 1 Preliminary draft for discussion purposes only, not for quotation or attribution. Please check against delivery. - 1 - Notwithstanding these significant developments, there does however continue to be uncertainty as to the precise circumstances in which international law should or must be taken into account in the domestic legal context; precisely how international law is to be used in interpreting or applying domestic law; and indeed whether some or all of international law is, also, domestic law. These uncertainties may in part be attributable to two characteristics of the Court’s approach to international law in its judg ments. The first such characteristic is the Court’s occasional practice of invoking international law or sources without explicitly adverting to rules or principles of “reception” to justify and guide application of the international source to the specific case or issue under consideration. The distillation, from the Court’s judgments, of the rules or principles governing the domestic reception of international law in various contexts therefore necessarily becomes an inferential process, subject to the vagaries of individual interpretation. The uncertainty thus generated is heightened by periodic variability in the weight or status accorded by the Court itself to international law in reaching its conclusions (a tendency most notable in the Court’s use of international law in Charter cases). Similar uncertainty is introduced when the Court does explicitly articulate a relevant reception rule, but does so in a manner that appears to depart from prior articulations of the rule (perhaps best illustrated in the Court’s recent attempt, in Hape,2 to clarify the status of customary international law in domestic common law). The second characteristic of the Court’s use of international law is that it tends to be context-specific, by which I mean that it is not, at least explicitly, guided by any general or overarching theory of the essential relationship between international and domestic law. Rather, 2 R. v. Hape, [2007] 2 S.C.R. 292. - 2 - the Court’s approach to international law varies depending on the source of that law (e.g. customary international law vs. treaty law) and the domestic legal context in which it is being considered (e.g. Charter interpretation vs. interpretation of implementing legislation vs. statutory interpretation generally). There is nothing problematic or even undesirable in this per se – different sources and contexts may well call for different rules of reception. However, the absence of a general theory of reception can and does lead to some puzzling paradoxes and even pot ential conflicts between the rules apparently governing different elements of the reception equation. For example, it is not self-evident why customary international law, which is not subject to domestic (or even international) democratic input in its formulation, should receive easier passage into Canadian law than do Canada’s treaty obligations, which at least benefit from indirect democratic input through negotiation and ratification by an executive springing from, and answerable to, a majority in the House of Commons. Nor is the widely recognized requirement that treaty law be legislatively implemented in order to have domestic legal effect readily reconciled with the apparently growing scope of the presumption of conformity of domestic law with Canada’s international legal obligations – whether legislatively implemented or not. These conundrums, and the legal uncertainties they potentially foster, may suggest a need for an overall, coherent framework within which international law is received and applied in the domestic legal order. Such a framework might well accommodate different rules applicable in different contexts, but subjecting all such rules to a number of basic, guiding framework principles could ensure coherence among them. It is submitted that the articulation of such a - 3 - theoretical framework, if undertaken, could be the McLachlin Court’s most important legacy in the field of the reception of international law in domestic law. This paper will illustrate the foregoing by reviewing the McLachlin Court’s approach to international law in three distinct areas: (1) the use of international treaty law in construing or applying domestic non-constitutional law; (2) the status of customary international law in domestic law; and (3) the use of international law in constitutional cases, including Charter interpretation. It will conclude by suggesting some future courses the Court’s consideration of international law may take, as well as some principles or policy considerations that could guide the Court in developing a general theory governing the reception of international law in domestic law. The Presumption of Conformity with International Law The Court’s judgments have perhaps been clearest and most consistent in affirming the interpretive presumption of statutory conformity with Canada’s binding international legal obligations. This section will outline the genesis of this presumption as a means of avoiding conflict between Canada’s treaty obligations and legislation purporting to implement them, an approach premised on respect for legislative intent (e.g. National Corn Growers,3 Ward,4 Thomson v. Thomson,5 Pushpanathan6). It will also consider the McLachlin Court’s recent application of the presumption, both within and outside the legislative implementation context. 3 National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 [hereinafter National Corn Growers] per Gonthier J. (for the majority) at 1371. 4 Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689. 5 Thomson v. Thomson, [1994] 3 S.C.R. 551. - 4 - Interpreting Implementing Legislation In its 2005 decision in GreCon Dimter,7 the Court had to determine which of two apparently inconsistent provisions of the Civil Code of Québec8 should prevail in determining whether the Québec courts had jurisdiction over an action in warranty brought by a Québec importer against a German manufacturer. The Court first noted that Canada (and thus Québec) is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards9 and that the “legislature has incorporated the principles of the New York Convention … into Quebec law by enacting the substance of the Convention”.10 This is an interesting finding in itself, given the somewhat indirect evidence that the relevant provisions of the Québec Civil Code were intended to implement the New York Convention. In particular, the Court noted that the Civil Code’s rules governing international arbitration agreements were based on those of the UNCITRAL Model Law on International Commercial Arbitration.11 As these “closely follow the provisions of the New York Convention”, the Court concluded that the Civil Code implemented “the substance” of the New York Convention. This seems to signal that the Court, in determining whether or not a given treaty has been legislatively implemented, will look to the substance of domestic legislation rather than more formal indicators of legislative intent to implement. 6 Pushpanathan v. Canada, [1998] 1 S.C.R. 982 at 1029-35. 7 GreCon Dimter inc. v. J.R. Normand inc., [2005] 2 S.C.R. 401 [hereinafter GreCon Dimter]. 8 S.Q. 1991, c. 64, arts. 3139 & 3148(2). 9 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June, 1958, 330 U.N.T.S. 3, [1986] Can. T.S. No. 43 [hereinafter New York Convention]; see GreCon Dimter, above note xxx at para. 40. 10 GreCon Dimter, above note xxx at para. 41. 11 UNCITRAL Model Law on International Commercial Arbitration, 21 June, 1985, U.N. Doc. A/40/17 (1985), Ann. I. - 5 - Having concluded that the New York Convention had been domestically implemented, the Court found that the “New York Convention is therefore a formal source for interpreting the domestic law provisions.” 12 That finding is essentially consistent with the presumption set out and applied in National Corn Growers and other earlier cases in the legislative implementation context. However, in GreCon Dimter the Court went further in characterizing the role of the relevant treaty provisions

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