Summary: In Jim Shot Both Sides 2022 FCA 20, the Federal Court of Appeal criticized the trial judge for applying the act of state doctrine, which it called a principle of international law, in concluding that treaties between the Crown and Indigenous peoples were not actionable before the advent of s. 35 of the Constitution Act, 1982. But act of state is not a principle of international law, and the trial judge did not apply it. The real issue is not act of state but the treaty implementation requirement. The Supreme Court of Canada should avoid falling into these same misapprehensions when it hears the case this month. Continue reading “Act of state and treaty implementation in Jim Shot Both Sides”
Judicial notice and treaties: excerpts from Using International Law in Canadian Courts, 3rd ed
An upcoming appeal to the Supreme Court of Canada from the decision of the Federal Court of Appeal in International Air Transport Association v Canadian Transportation Agency, 2022 FCA 211 raises important issues about the judicial notice of international law in the context of treaty interpretation. Posted in PDF here is an excerpt from my discussion of these issues from Chapter 3 of my forthcoming third edition of Using International Law in Canadian Courts.
Entertainment Software Association: is the presumption of conformity progressive or conservative?
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.
Continue reading “Entertainment Software Association: is the presumption of conformity progressive or conservative?”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”
POGG and treaties: the role of international agreements in national concern analysis
Three references arising from Parliament’s Greenhouse Gas Pollution Pricing Act will soon be heard by the Supreme Court of Canada. In each case, Canada is defending the legislation as valid under the national concern branch of Parliament’s peace, order and good government (POGG) power. And in each case Canada is invoking the state’s obligations under international climate change agreements. International agreements have played a central, if somewhat uncertain, role in POGG cases going back to the days of the Privy Council. How treaties ought properly to be used in determining Parliament’s POGG jurisdiction is a constitutionally-fraught question. I explain the issue, and attempt to distill some conclusions from the case law, here. Continue reading “POGG and treaties: the role of international agreements in national concern analysis”
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 President Trump’s Miami G7 contrary to Canada’s anti-bribery law?
The White House recently announced that the next G7 summit will take place at Donald Trump’s privately-owned Miami golf resort. It seems clear that President Trump will obtain a personal financial benefit from the United States hosting this major international event. US critics are calling the decision to hold the G7 at a Trump property illegal and even unconstitutional. For Canada and other G7 members with anti-corruption laws, the question should be, can they lawfully attend?
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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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Gib van Ert 