Article 1E of the Refugee Convention — treaty implementation — presumption of conformity

Celestin v Canada (Minister of Citizenship and Immigration), 2020 FC 97 (22 January 2020). Federal Court.

Ms. Celestin, a Haitian citizen, was denied refugee status in Canada based on section 98 of the Immigration and Refugee Protection Act (IRPA).Footnote ¹ This section states that a person referred to in Article 1E of the Refugee Convention Footnote ² is not a refugee. In turn, Article 1E states:

The Refugee Appeal Division (RAD) affirmed the decision of the Refugee Protection Division (RPD) that Celestin was excluded from refugee protection by virtue of section 98 as she had initially fled Haiti to Brazil and obtained status there.

The Federal Court dismissed the judicial review and, in doing so, clarified the approach to section 98. Justice Peter Pamel found the RAD’s conclusion that Celestin had status in Brazil to be reasonable.Footnote ³ He then considered the RAD’s finding that Celestin was not at risk of persecution in Brazil, a finding that was held to be unreasonable.Footnote ⁴ Interestingly, however, he found that the RAD should not have conducted the analysis. Rather, the risk assessment was to be done by a pre-removal risk assessment (PRRA) officer.Footnote ⁵ In interpreting section 98, Pamel J explained that the provision incorporates Article 1E by reference, meaning that “Parliament accepts the international obligations flowing from [it].”Footnote ⁶ He noted that “international interpretative documents are part of the context” of section 98, citing various examples of Supreme Court of Canada case law using international sources to interpret the IRPA. Footnote ⁷

The foregoing principles, in Pamel J’s view, showed that interpreting Article 1E in a way that does away with a risk analysis altogether would be contrary to the presumption of conformity and would risk putting Canada in breach of its international obligations.Footnote ⁸ To the contrary, Article 1E should be interpreted “to exclude only refugee protection claimants who do not genuinely need protection.”Footnote ⁹ Yet, it is one thing to recognize the need for a risk analysis; it is another to determine how Canada has decided to implement that obligation.Footnote ¹⁰

Here, amendments to the IRPA demonstrated that Parliament had delegated the risk assessment to the PRRA officer rather than to the RPD or the RAD.Footnote ¹¹ The quality of risk assessments done by PRRA officers, and their suitability for performing those assessments, is beyond the scope of this comment.Footnote ¹² However, Pamel J’s analysis of the IRPA as a whole seems correct. Importantly, he recognized that implementation of a treaty can take different forms: Parliament was entitled to implement Article 1E by delegating the risk assessment to PRRA officers rather than to RPD or RAD adjudicators. As long as the international obligation is met, Parliament has flexibility in how it is carried out. (DS)

Act of state doctrine — incorporation of customary international law — corporate complicity in human rights violations

Nevsun Resources Ltd v Araya, 2020 SCC 5 (28 February 2020). Supreme Court of Canada.

The plaintiffs were Eritrean workers who claimed they had been conscripted by Eritrea into its military and forced to work at an Eritrea mine owned by the defendant, Nevsun. The plaintiffs sued Nevsun in British Columbia, asserting various claims including damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. Nevsun applied to strike the claims, arguing that the foreign act of state doctrine applied and that customary international law violations were not actionable in BC law. The courts below dismissed Nevsun’s motion.

The majority of the Supreme Court of Canada dismissed the appeal. Justice Rosalie Abella (Chief Justice Richard Wagner and Justices Andromache Karakatsanis, Clément Gascon and Sheilah Martin concurring) concluded that the act of state doctrine is not part of Canadian common law and that Nevsun had not shown (as required in a motion to strike pleadings) that it is plain and obvious that claims founded on customary international could not succeed. Justices Russell Brown and Malcolm Rowe, dissenting in part, agreed that act of state was not a part of Canadian law but would have concluded that the plaintiffs’ customary claims disclose no reasonable cause of action. Justices Michael Moldaver and Suzanne Côté, dissenting, would have allowed Nevsun’s appeal on both act of state and custom.

Abella J described the act of state doctrine as a “known (and heavily criticized) doctrine in England and Australia” that has “played no role in Canadian law.”Footnote ¹³ She observed that there is “no single definition that captures the unwieldly collection of principles, limitations and exceptions that have been given the name ‘act of state’ in English law” but adopted as a “starting point” Lord Millet’s description of act of state as “a rule of domestic law which holds the national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign state.”Footnote ¹⁴ She noted act of state’s overlap with, but distinction from, the state immunity doctrine and its origins in seventeenth- and eighteenth-century English cases.Footnote ¹⁵ Abella J also reviewed the numerous exceptions and qualifications of the doctrine that have attached to it in English and Australian jurisprudence.Footnote ¹⁶ In contrast to these cases, the learned judge held that Canadian law addresses act of state concerns through the principles of conflicts of laws and judicial restraint:

In support of this conclusion, Abella J relied on a variety of Supreme Court of Canada precedentsFootnote ¹⁸ in which the court did not hesitate, where necessary, to express views about the lawfulness of a foreign state’s conduct. She explained that courts “will refrain from making findings which purport to be legally binding on foreign states” but are “free to inquire into foreign law questions when doing so is necessary or incidental to the resolution of domestic legal controversies properly before the court.”Footnote ¹⁹ There is, she held, “no jurisdictional bar to a Canadian court dealing with the laws or acts of a foreign state where ‘the question arises merely incidentally’” and recalled the court’s holding, in Reference re Secession of Quebec, that, “in certain circumstances, the adjudication of questions of international law by Canadian courts will be necessary to determine rights or obligations within our legal system.”Footnote ²⁰

Abella J concluded that, while English common law

The learned judge then turned to the plaintiffs’ claims based on breaches of customary international law. She noted that the plaintiffs specifically relied on “customary international law as incorporated into the law of Canada and domestic British Columbia law” and pleaded that such human rights violations as forced labour, slavery, and cruel, inhuman or degrading treatment are “actionable at common law” and can found an award of damages.Footnote ²² Abella J affirmed, as the courts below had done, that there was no need “to determine definitively whether the Eritrean workers should be awarded damages for the alleged breaches of customary international law” but only whether the plaintiffs’ custom-based claims “should be struck at this preliminary stage” as disclosing no reasonable claim.Footnote ²³ The test on a motion to strike is whether it is plain and obvious that the claim has no reasonable prospect of success, assuming the facts as pleaded to be true unless they are manifestly incapable of being proven.Footnote ²⁴

Abella J expressed her agreement with the chambers judge, Justice Patrice Abrioux (as he then was), that “[t]he current state of the law in this area remains unsettled, and assuming that the facts set out in the [notice of civil claim] are true, Nevsun has not established that the [customary international law] claims have no reasonable likelihood of success.”Footnote ²⁵ From this starting point, Abella J made some notable observations about Canadian courts’ “important role in the ongoing development of international law.”Footnote ²⁶ She saw “no reason for Canadian courts to be shy about implementing and advancing international law” and affirmed that “[u]nderstanding and embracing our role in implementing and advancing customary international law allows Canadian courts to meaningfully contribute, as we already assertively have, to the ‘choir’ of domestic court judgments around the world shaping the ‘substance of international law.’”Footnote ²⁷

Returning to Nevsun’s motion to strike, Abella J considered that the court must

From here, Abella J reviewed the elements of customary international law and the incorporation or adoption of custom by the common law, concluding: “There is no doubt then, that customary international law is also the law of Canada” and “must be treated with the same respect as any other law.”Footnote ²⁹

Briefly but significantly, Abella J considered the question of whether customary international law norms are to be judicially noticed. She explained: “Unlike foreign law in conflict of laws jurisprudence … which is a question of fact requiring proof, established norms of customary international law are law, to be judicially noticed.”Footnote ³⁰ She added:

As a partial qualification of this principle, however, the learned judge noted commentary to the effect that “when recognising new norms of customary international law, allowing evidence of state practice may be appropriate” and that “permitting such proof departs from the conventional approach of judicially noticing customary international law” but “in no way derogates from the nature of international law as law.”Footnote ³² In the case before her, however, Abella J found that “the inquiry is less complicated and taking judicial notice is appropriate since the workers claim breaches not simply of established norms of customary international law, but of norms accepted to be of such fundamental importance as to be characterized as jus cogens, or peremptory norms.” She went on to affirm that the international prohibitions on crimes against humanity, slavery, forced labour, and cruel, inhuman, or degrading treatment are all recognized as jus cogens norms.Footnote ³³

Nevsun contended that, even if the customary international law norms relied on by the plaintiffs formed part of the common law, its status as a corporation protected it from liability for their breach. Abella J rejected that proposition, observing that, while “certain norms of customary international law, such as norms governing treaty making, are of a strictly interstate character and will have no application to corporations, others prohibit conduct regardless of whether the perpetrator is a state.”Footnote ³⁴ Abella J cited various scholarly authorities on the development of human rights law as it applies to non-state actors, including corporations. Referring back to the legal standard that governs Nevsun’s motion to strike the plaintiffs’ pleadings, Abella J held that “it is not ‘plain and obvious’ that corporations today enjoy a blanket exclusion under customary international law from direct liability for violations” of universal international law norms or indirect liability for complicity in such violations.Footnote ³⁵ She added, however, that given that some customary law norms are of a strictly interstate character, it would be for the trial judge to determine whether that is so in respect of the customary norms relied upon by the plaintiffs and, if it is so, “whether the common law should evolve so as to extend the scope of those norms to bind corporations.”Footnote ³⁶

Abella J considered whether there were any Canadian laws that conflict with the customary norms relied on by the plaintiffs so as to prevent their adoption by the common law and quickly found there were not.Footnote ³⁷ She then considered whether “a civil remedy for a breach of this part of our common law” was available.Footnote ³⁸ She reframed the question as: “can our domestic common law develop appropriate remedies for breaches of adopted customary international law norms?” In answer to this question, she relied on the principle ubi jus ibi remedium (for every wrong, the law provides a remedy), including the international law affirmation of that principle in Article 2 of the 1966 International Covenant on Civil and Political Rights (ICCPR)Footnote ³⁹ and the Human Rights Committee’s General Comment No. 31.Footnote ⁴⁰ Contrasting the present case with that of Kazemi Estate v Islamic Republic of Iran,Footnote ⁴¹ where the State Immunity Act prevented a remedy, Abella J found that “it was not ‘plain and obvious’ that Canadian courts cannot develop a civil law remedy in domestic law for corporate violations of the customary international law norms adopted in Canadian law.”Footnote ⁴²

In answer to Nevsun’s argument that the harms alleged by the plaintiffs are adequately addressed by tort law, Abella J considered it “at least arguable” that the plaintiffs’ allegations are not captured by existing law. She noted that customary norms are “inherently different from existing domestic torts” in that their “character is of a more public nature.”Footnote ⁴³ How the plaintiffs’ claims should proceed to remedy (assuming a breach) was a matter to be left to the trial judge and could occur through the recognition of new nominate torts or through a direct remedy based solely on a breach of customary international law.Footnote ⁴⁴ Abella J expressed concern that, since the customary norms advanced by the plaintiffs are already part of the common law, to require the development of new torts to remedy them “may not only dilute the doctrine of adoption, it could negate its application.”Footnote ⁴⁵

In partial dissent, Brown and Rowe JJ raised numerous objections to the majority’s reasons. Some are intriguing and likely to be revisited in future decisions. Others are difficult to follow. I note here four aspects of the reasons.

First, Brown and Rowe JJ rightly observed that Justice Louis LeBel’s account of the incorporation doctrine in R v Hape was “ambivalent as to whether incorporation means that rules of customary international law are incorporated (at para. 36), should be incorporated (at para. 39) or simply may aid in the interpretation of the common law (at para. 39).”Footnote ⁴⁶ The learned judges noted that the “traditional English view is the first” but expressed the view that the decision of the House of Lords in R v Jones (Margaret) Footnote ⁴⁷ “puts that view in doubt, and rightly so.” This point is left undeveloped, however, and may exaggerate the holding in Jones. That case involved the incorporation of the customary international law prohibition of the crime of aggression. In short, the House of Lords held that incorporation of that norm was prevented by the United Kingdom’s constitutional principle that it is for Parliament, not the courts, to create new criminal laws. Clearly, Jones involves an important qualification of the incorporation doctrine, but it is not a qualification that maps neatly onto LeBel J’s ambivalence in Hape, nor one that is irreconcilable with the principles enunciated by Abella J’s majority reasons.

Second, Brown and Rowe JJ pointed briefly, but compellingly, to international law authorities doubting whether corporate responsibility for human rights violations has been recognized in international law.Footnote ⁴⁸ The rejoinder to this, of course, is that the case before the court was only a motion to strike the pleadings, and it is too early in the litigation to say that such liability plainly and obviously does not exist. But there was more to be said by both the majority and the dissent on this question, and the decision in this case certainly cannot be taken as having settled the point.

Third, Brown and Rowe JJ asked pertinently how Abella J deduced potential liability on the part of a defendant from the international prohibitions she relied upon.Footnote ⁴⁹ International law provides the prohibition, but that does not necessarily mean it also requires Canada and other states to impose private liability for breach of the prohibition. This concern is particularly relevant where, as here, the international law prohibitions appear to be directed at states, while the liability that Abella J contemplated is directed at private parties. Again, Abella J’s response might be that the case at bar is only a motion to strike the pleadings; the question is simply whether it is plain and obvious that no private liability arises.

Finally, Brown and Rowe JJ pursued further the question of how customary international law should be treated as a matter of evidence. While they criticized the majority’s approach as “creating an unwieldy hybridization of law and fact,”Footnote ⁵⁰ their own approach strikes me as an elaboration, rather than a contradiction, of the majority’s. Brown and Rowe JJ proposed the following method: first, the court must find the facts of state practice and opinio juris. In easy cases, this step may be dispensed with due to judicial notice. Where, however, the existence of a customary norm is contested, judges should rely on the pleadings or the evidence adduced before them. Both elements of the contested norm must be proven in evidence. Once the necessary facts of state practice and opinio juris are found, the court may identify whether any customary norm must be recognized. This is a determination of law.Footnote ⁵¹

The dissenting reasons of Moldaver and Côté JJ touched briefly on the customary international law question, expressing the view that the “widespread, representative and consistent state practice and opinio juris required to establish a customary rule do not presently exist to support the proposition that international human rights norms have horizontal application between individuals and corporations.”Footnote ⁵² The focus of their opinion, however, was the act of state doctrine, which they would have recognized in Canadian law. In their view, “a court should not entertain a claim, even one between private parties, if a central issue is whether a foreign state has violated its obligations under international law.”Footnote ⁵³ While a Canadian court has the institutional capacity and legitimacy to consider international law questions, it oversteps “the limits of its proper institutional role” by allowing a private claim which impugns the lawfulness of a foreign state’s conduct under international law.”Footnote ⁵⁴

The majority decision in Nevsun does much to reaffirm, and, to a lesser extent, clarify, the incorporation doctrine in Canadian law. It is also convincing in its rejection of the act of state doctrine in this country. The justiciability concerns raised by Moldaver and Côté JJ can be accommodated within the approach described by Abella J and concurred in by Brown and Rowe JJ. Somewhat less light is shed on the substantive international law question of whether corporations may be responsible for human rights violations, but a motion to strike pleadings may not be the ideal forum for such a judicial discussion.

Two aspects of the incorporation doctrine are left less settled after Nevsun. First, the decision of the English Court of Appeal in Trendtex Trading Corp. v Central Bank of Nigeria (relied upon in Hape) appeared to establish that new rules of customary international law could enter domestic law despite contrary judicial precedent.Footnote ⁵⁵ Without addressing the point expressly, Abella J’s reasons repeatedly rely upon older authorities to the effect that incorporation is pre-empted both by statute and by prior judicial decisions of final authority. The result is to leave uncertain the relationship between custom and inconsistent common law rules.

Second, both the majority and the partial dissent of Brown and Rowe JJ display confusion about LeBel J’s reference, in Hape, to the incorporation of “prohibitive” rules of customary international law.Footnote ⁵⁶ Regrettably, both opinions neglect LeBel J’s own clarifying discussion of this point in Kazemi. Footnote ⁵⁷ What I understand LeBel J to have meant is this: custom that requires states to do, or prohibits states from doing, certain things is incorporated in domestic law. If, however, custom simply permits states to do something, Canada’s decision whether to avail itself of that right or power is not properly made by the judiciary. It must be left to the political elements of the constitution. Permissive customs are therefore not incorporated. This qualification of the incorporation doctrine is in keeping with Herscht Lauterpacht’s influential explanation of R. v Keyn. Footnote ⁵⁸ The reasons of Brown and Rowe JJ make more of LeBel J’s comments in Hape on this point than they can reasonably bear. (GvE)

Canadian Charter of Rights and Freedoms — damages — good governance concerns — use of international materials

Brazeau v Canada (Attorney General), 2020 ONCA 184 (3 March 2020). Court of Appeal for Ontario.

This case followed decisionsFootnote ⁵⁹ by the Courts of Appeal for Ontario and British Columbia that struck down parts of the Corrections and Conditional Release Act (CCRA)Footnote ⁶⁰ relating to administrative segregation. These decisions held, respectively, that the CCRA violated sections 12 and 7 of the Canadian Charter of Rights and Freedoms (Charter)Footnote ⁶¹ as it lacked the safeguards necessary to prevent inmates from remaining in segregation for more than fifteen days and thus to prevent grossly disproportionate treatment.Footnote ⁶² Canada subsequently amended the CCRA to introduce “structured intervention units” that would provide inmates with four hours a day out of their cells, at least two hours of meaningful human contact, and a mechanism for independent review.Footnote ⁶³

The court below granted summary judgment, finding Canada liable for Charter damages due to the previous administrative segregation regime. The central issue on appeal was the availability of Charter damages against Canada.Footnote ⁶⁴ Justices Robert Sharpe and Russell Juriansz wrote jointly for the court. They began by setting out the framework for Charter damages established by the Supreme Court of Canada in Vancouver v Ward. Footnote ⁶⁵ At issue was whether a countervailing factor existed that rendered damages inappropriate. Specifically, Canada argued that the “good governance” defence applied, described in Ward as being “a defence of immunity for state action under valid statutes subsequently declared invalid, unless the state conduct is ‘clearly wrong, in bad faith or an abuse of power.’”Footnote ⁶⁶

The court accepted that good governance concerns arose here.Footnote ⁶⁷ It determined that the appropriate threshold for the state conduct in this case was a “clear disregard for the claimant’s Charter rights.”Footnote ⁶⁸ Canada argued that this threshold was not met as it could not have known that administrative segregation violated section 12 until the court’s 2019 ruling.Footnote ⁶⁹ The Court of Appeal rejected Canada’s submission. It began by highlighting that a breach of section 12 in itself meant that the state conduct had been found to be “so excessive as to outrage standards of decency” and “grossly disproportionate [treatment] for the offender, such that Canadians would find the punishment abhorrent or intolerable.” On the facts, the Charter breach had “caused severe harm to very vulnerable people and the state’s conduct has been condemned as being cruel, excessive, abhorrent and intolerable. The state should be expected to be particularly vigilant to avoid inflicting such harm.”Footnote ⁷⁰

Then, through an extensive review of both domestic and international instruments and reports, the court emphatically rejected Canada’s argument that it could not have known that administrative segregation would violate section 12. Since the nineteenth century, it explained, there had been a consistent stream of medical opinion showing that solitary confinement causes and exacerbates mental illness.Footnote ⁷¹ Moreover, there had been a growing recognition in international law for at least thirty years of the need to eliminate the use of solitary confinement for prisoners with mental illness and to limit its use for all prisoners. This was demonstrated by a 1990 resolution by the United Nations (UN) General Assembly, reports of international organizations, and reports of a UN special rapporteur.Footnote ⁷²

More telling still, Canada’s correctional authorities, including the independent Correctional Investigator, had noted these international developments as early as its 2011–12 annual report, and Canada’s practice had been specifically criticized by the UN Committee against Torture in 2012 and the Inter-American Commission on Human Rights in 2013.Footnote ⁷³ Canada also voted for, and played a role in, the development of the UN Mandela Rules,Footnote ⁷⁴ which established a fifteen-day cap on solitary confinement.Footnote ⁷⁵ The court also reviewed various domestic reports criticizing Canada’s practices.Footnote ⁷⁶ Informed by these materials, the court found that Canada had exhibited a “clear disregard” for the claimants’ Charter rights, negating the good governance concerns and rendering Charter damages appropriate.Footnote ⁷⁷

The court’s reference to international materials and practice on solitary confinement in the determination of a Charter damages claim is novel but persuasive. Unlike cases that consider the scope of a Charter right, or the interpretation to be given to a statute, in light of international law, the court here used the fact of international activity on an issue, including Canada’s participation in that activity, to affix Canada with knowledge of the harmfulness of its legislation and practices. The decision provides authority for the proposition that failure to repeal or amend an enactment in the face of international consensus that a given practice is harmful can support a claim for Charter damages. (DS)

Copyright — “making available right” — presumption of conformity with international law

Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 (5 June 2020). Federal Court of Appeal.

This was an appeal to the Federal Court of Appeal from a decision of the Copyright Board of Canada on the meaning of the so-called “making available right” set out in section 2.4(1.1) of the Copyright Act,Footnote ⁷⁸ as introduced by the Copyright Modernization Act Footnote ⁷⁹ in November 2012. The provision reads:

The Society of Composers, Authors and Music Publishers of Canada (SOCAN) contended that the introduction of this provision had changed the law as enunciated by the Supreme Court of Canada, only months before section 2.4(1.1) came into force, in Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada (Entertainment Software 2012).Footnote ⁸⁰ In that case, the court held that transmission over the Internet of a musical work resulting in a download of the work was not, for the purposes of the Copyright Act, a communication by telecommunication, such that SOCAN could not collect royalties for such downloads.

Before the Copyright Board, SOCAN now contended that section 2.4(1.1) had overtaken the decision in Entertainment Software 2012. Relying on the amendment, SOCAN filed proposed tariffs arising from the operation of online music services. Such services were now required, in SOCAN’s view, to pay royalties when making musical works available to the public online, and this was so whether those works were eventually transmitted to customers by download or by stream (or even if they were never accessed by the public at all). It therefore fell to the Copyright Board to decide whether section 2.4(1.1) had these consequences. The answer to that question would determine whether SOCAN’s proposed tariff could be set. The board gave notice that it intended to determine the meaning of section 2.4(1.1) as a question of law and invited people who might be affected by the decision to participate in the proceeding. Well over thirty parties opted to make submissions, including several copyright collective societies, rights holders, and users (including the operators of online music services).

The Copyright Board largely agreed with SOCAN. It concluded that the effect of section 2.4(1.1) was to deem to be a communication to the public by telecommunication the act of placing a work or other subject matter on a server of a telecommunications network in such a way that the public can access it and cause it to be transmitted by downloading or streaming. The board took the view that a narrower interpretation of section 2.4(1.1), limiting it to works made available for streaming but not downloading, would fail to comply with Canada’s international obligations. The “fundamental reason for the enactment” of section 2.4(1.1), in the board’s view, was “for Canada to comply with Article 8” of the World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty).Footnote ⁸¹

The Copyright Board’s assessment of Canada’s obligations under the WIPO Copyright Treaty and other international instruments requires close consideration, both for its importance in the board’s decision and for the vociferousness with which it was rejected in the Federal Court of Appeal.

The board began by noting that prior to the enactment of the Copyright Modernization Act in 2012, the Copyright Act “did not explicitly provide protection for works and other subject-matter in relation to the act of making these available to the public.”Footnote ⁸² Several government bills to reform copyright, including one with an explicit “making available” protection, were introduced in Parliament but never enacted.Footnote ⁸³ The Copyright Modernization Act, which introduced section 2.4(1.1), included the following passages in its preamble:

The Copyright Board considered that the preamble “makes it clear that Parliament intended to implement new copyright protections … based on internationally recognized norms” and that “one of the main purposes of the [Copyright Modernization Act] was to establish copyright protection that is based on internationally recognized norms, as reflected in” both the WIPO Copyright Treaty and the Performances and Phonograms Treaty (collectively, WIPO Internet Treaties).Footnote ⁸⁴ The board also considered government statements on the Copyright Modernization Act. The board quoted the following from a Government of Canada publication entitled What the Copyright Modernization Act Means for Copyright Owners, Artists and Creators:Footnote ⁸⁵

As for the World Intellectual Property Organization’s (WIPO) treaties themselves, the Copyright Board began by noting that the Supreme Court of Canada did not consider the effects of the WIPO Copyright Treaty in Entertainment Software 2012 since Canada had not yet implemented either it or the Performances and Phonograms Treaty when that decision was rendered.Footnote ⁸⁷ In fact, the two treaties remained both unimplemented and unratified by Canada when Entertainment Software 2012 was decided. Consistently with the board’s conclusion that the Copyright Modernization Act sought to align Canadian law with those two treaties, Canada proceeded to ratify them following Parliament’s enactment of the new act, including section 2.4(1.1).Footnote ⁸⁸

The Copyright Board described the WIPO Copyright Treaty as “a special agreement among Berne Convention contracting parties … intended to expand the rights set out in that Convention,” and described the “new protection for the act of making a work available by telecommunication” as “intended to provide rights holders with a basis to hold liable those who make copyrighted works available to the public online even where no evidence of reproduction or actual communication to the public was present.”Footnote ⁸⁹ Later, the board noted that “there does not appear to be any significant dispute that the WIPO Internet Treaties were intended to cover the making available of works and other subject-matter in a way that they may be downloaded or streamed.”Footnote ⁹⁰

Also of note is the fact that the Copyright Board had extensive expert opinion before it on the relevant treatiesFootnote ⁹¹ and particularly on the scope of article 8 of the WIPO Copyright Treaty, which provides:

One such expert, a former assistant director general of WIPO, opined that the intention of the two WIPO Internet Treaties was “that the making available right is applicable both where the resulting interactive use takes the form of transmissions only allowing perception of and where they may result in downloading of the works (performances and/or phonograms) thus made available.”Footnote ⁹² Another expert opined that the “technological means of ‘making available’ are irrelevant” and that the right applies to the work and is not limited to performances of it.Footnote ⁹³ The Copyright Board relied on this and other expert evidence in concluding that article 8 “requires signatories to provide to authors the exclusive right of authorizing the communication to the public of their works,”Footnote ⁹⁴ that “the act of making available can occur without any communication taking place,”Footnote ⁹⁵ and that “to the extent that a country’s existing law grants an exclusive right of authorizing the communication to the public of a work, but does not cover the mere ‘making available’ of that work, a gap exists, and such country is not compliant with Article 8.”Footnote ⁹⁶

In order, it seems, to ensure that such a gap not exist in Canada, the Copyright Board concluded that section 2.4(1.1) must be interpreted as “a deeming clause” — that is, “a statutory fiction that imports into a word or expression an additional meaning that it would not otherwise have.”Footnote ⁹⁷ In other words, section 2.4(1.1) stretches the ordinary meaning of the phrase “communicate … to the public by telecommunication” to include merely making a work available for such communication, whether the work is in fact transmitted or not. As the board explained,

In short, the Copyright Board concluded that its interpretation of section 2.4(1.1) as expanding the concept of “communication … to the public” to include making it available to the public, whether accessed by the public or not and whether access occurs by downloading or streaming, complied with both the WIPO Internet Treaties and Parliament’s intent to implement those treaties by means of the Copyright Modification Act.

At the Federal Court of Appeal, these conclusions were not only rejected but also derided. Justice David Stratas for the unanimous court accused the Copyright Board of having “skewed its analysis in favour of one particular result,”Footnote ⁹⁹ acting “contrary to binding jurisprudence that limits the ways in which international law can influence the interpretation of domestic law,”Footnote ¹⁰⁰ and providing “no meaningful reasons to support” its interpretation of section 2.4(1.1). All this despite having assumed, without deciding, that the applicable standard of review was “the one most generous to the Board” — namely, reasonableness.Footnote ¹⁰¹

Stratas JA’s fundamental complaint about the Copyright Board’s decision was its readiness to set aside the Supreme Court of Canada’s decision in Entertainment Software 2012 in favour of its understanding of section 2.4(1.1) as illuminated by international law and particularly article 8 of the WIPO Copyright Treaty. In his view, the Copyright Modernization Act did not support the board’s reliance on international law. He described the preambular provisions quoted above as being “at a level of generality that does not support the interpretation reached by the Board.” While acknowledging that the preamble “suggests that the Copyright Modernization Act is aimed at implementing certain norms in international law … it is vague as to the extent to which it does so” and “certainly does not encourage anyone to ignore the specific terms of the Act and just interpret and apply international law wholesale.”Footnote ¹⁰² As for the federal government’s publication saying that the Act (then still a bill) “will implement the associated rights and protections to pave the way for a future decision on ratification” of the treaties, Stratas JA regarded this statement as suggesting that section 2.4(1.1) was a “narrow, limited-purpose provision.”Footnote ¹⁰³

Coming to Entertainment Software 2012 and its interpretation of “communication by telecommunication” as being fundamentally a performance right that does not extend to reproduction-based activities, Stratas JA found (and one can hardly disagree) that the Copyright Board “set aside” this reasoning “because it predated the Treaty.” From that point on, said the learned judge, “the Board no longer looked to anything else to do with the text, context or purpose of subsection 2.4(1.1). The Treaty became everything.”Footnote ¹⁰⁴ Stratas JA rejected the board’s “very expansionist view of what the Treaty did,” even saying the board had offered no “reasoning in support”Footnote ¹⁰⁵ — a surprising conclusion given the extensive evidence considered by the Copyright Board on the meaning and negotiating history of the treaty. The learned judge also rejected the board’s conclusion that section 2.4(1.1) acted as a deeming provision, observing that “despite the plain meaning of the word ‘communicate’, the Board made subsection 2.4(1.1) fit its view of what the Treaty required.”Footnote ¹⁰⁶ Instead of explaining the meaning of “communicate to the public by telecommunication” by examining the text, context, and purpose of that phrase, the Copyright Board “imposed a meaning derived from its own view of the Treaty.”Footnote ¹⁰⁷ While it was open to Parliament to depart from the Supreme Court of Canada’s construction in Entertainment Software 2012, “clear legislative text would be required.”Footnote ¹⁰⁸

In Stratas JA’s view, instead of starting from the text of section 2.4(1.1), the Copyright Board started with article 8 of the WIPO Copyright Treaty, interpreted it, and then made section 2.4(1.1) confirm with that interpretation. The board “assumed without analysis that subsection 2.4(1.1) implemented that particular meaning of article 8.”Footnote ¹⁰⁹ Elaborating, Stratas JA observed:

From here, Stratas JA offered an account of the “proper interrelationship between international law and domestic law.”Footnote ¹¹² After complaining of incorrect invocations of “international law — or sometimes just the vibe of it” by litigants, administrative decision-makers, and the judiciary,Footnote ¹¹³ the learned judge reminded us that domestic law “that says something different” than international law “always prevails.” “For this reason,” said Stratas JA, “when domestic law and international law both potentially bear upon a legal problem, one must always start by discerning the authentic meaning of the domestic law.”Footnote ¹¹⁴ He continued: “Under our Constitution, the power to make laws is not vested in anyone else” than Parliament and the provincial legislatures, “and certainly not the unelected functionaries abroad who draft and settle upon international instruments.”Footnote ¹¹⁵

This was the reason for the requirement that international instruments cannot become Canadian law without domestic legislative action.Footnote ¹¹⁶ The learned judge elaborated:

In response to arguments by some of the respondents that the Copyright Board applied the presumption of conformity with international law, Stratas JA acknowledged that it was “true that certain cases speak of a ‘presumption of conformity’” but warned that “the word ‘presumption’ can lead some dangerously off track.”Footnote ¹¹⁸ While domestic legislation is presumed to comply with a relevant treaty, “the focus, as always, must be on what the legislator actually did” through a “rigorous, dispassionate and objective search for the authentic meaning of the legislation by analyzing its text, context and purpose.”Footnote ¹¹⁹ However, Stratas JA continued, “the presumption does not permit those interpreting domestic legislation to leap to the conclusion, without analysis, that its authentic meaning is the same as some international law. Nor does it permit them to twist or amend the authentic meaning of domestic law to make it accord with international law.”Footnote ¹²⁰

Returning to the Copyright Board’s decision, Stratas JA explained that it “in essence … went to article 8 of the Treaty, asserted its view of that article’s meaning without any supporting reasoning, and then made subsection 2.4(1.1) conform to its view.” In doing so, the board misused international law and even “exalted international law over domestic law.”Footnote ¹²¹ In the learned judge’s view, no purpose was served in sending the matter back to the board for re-decision. Instead, the decision was quashed.

The Supreme Court of Canada has granted leave to appeal the decision of the Federal Court of Appeal. One must hope that the Copyright Board’s approach is treated more sympathetically there, whether its decision is restored or not. While many of Stratas JA’s observations on the interrelationship between international and domestic law are sound (indeed, illuminating), he is too dismissive of the board’s attempt to conform to the WIPO Internet Treaties. There is nothing in the board’s reasons to support Stratas JA’s supposition that the board considered international law “to be the superior law.” Rather, everything points to the board’s conviction — be it right or wrong — that Parliament’s intent in enacting the Copyright Modernization Act was to implement the WIPO Internet Treaties by the addition of section 2.4(1.1). The Copyright Board cannot be faulted for noting the Act’s preamble, which expressly refers to the WIPO Internet Treaties and expresses Parliament’s view that those treaties’ “norms are not wholly reflected in the Copyright Act.” While reference in a preamble without more is surely insufficient to implement a treaty in domestic law,Footnote ¹²² Parliament’s reference to the two treaties, and to the gap between their requirements and the Copyright Act as it then stood, strongly suggests an implementing intent. That intent was supported, as the board noted, by a government statement that expressly described the Copyright Modernization Act as implementing legislation serving to permit Canada to ratify the treaties — something Canada could not safely do until its internal law met the contemplated new obligations. While Stratas JA depicts the Copyright Board as abjectly applying article 8 of the WIPO Copyright Treaty for reasons of its own, the board’s concern appears to have been directed instead at giving effect to Parliament’s intent to ensure Canada’s ability to perform its obligations under the treaties as the necessary precursor to the federal government’s ratification of them.

If there is a culprit in this story, it is not the overzealous Copyright Board. Nor is it the “unelected functionaries abroad who draft and settle upon international instruments” — a gross mischaracterization of how Canada makes treaties. Nor is it even Stratas JA and his colleagues in the Federal Court of Appeal whose critique of the board was so uncharitable. The culprit, instead, is Parliament or, more to the point, the parliamentary drafters of the Copyright Modernization Act. If Stratas JA and his colleagues were not persuaded upon reading that Act that it effected changes to the Copyright Act in implementation of treaties signed and soon to be ratified by Canada, the chief fault for that lies with the legislator. Instead of the Copyright Modernization Act, Parliament could have enacted the WIPO Treaties Implementation Act, with express provisions requiring the Copyright Board and the courts to reach treaty-conforming results. There is no magical form of words, or specific constitutional disposition, that Parliament must invoke to implement a treaty in domestic law. Parliament is free to make such legislative amendments or additions as, in its view, suffice to meet the treaty’s requirements. It may expressly mention the treatyFootnote ¹²³ or not.Footnote ¹²⁴ It may bring the entire text of the treaty into federal lawFootnote ¹²⁵ or only parts of the treaty.Footnote ¹²⁶ But, however Parliament chooses to proceed, it must make its intent sufficiently clear that a court, considering the law one day, can detect within it an intent to discharge some obligation assumed by Canada under international law. If Parliament’s words are not clear enough, Parliament’s implementing intent may fail, with the result that Canada finds itself in violation of a treaty it had intended to discharge. While one may argue whether Parliament made itself sufficiently clear here, the fact remains that the Federal Court of Appeal was left uncertain. Parliament could have been clearer.

The fundamental question that the Supreme Court of Canada must answer in the upcoming appeal appears to be this: how quick should courts and tribunals be to reach internationally conforming, or non-conforming, interpretations of statutes? One may be forgiven for thinking the Court has answered this question already. The Supreme Court has told us that it is a “rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.”Footnote ¹²⁷ It has told us that “the values and principles enshrined in international law, both customary and conventional … constitute a part of the legal context in which legislation is enacted and read.”Footnote ¹²⁸ It has warned us that “to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law.”Footnote ¹²⁹ It has explained that there is no need to find ambiguity on the face of a statute before resorting to international law as an aid in interpreting it.Footnote ¹³⁰

Despite these authorities, Stratas JA’s doubts that the Copyright Modernization Act was enough to import Article 8 of the WIPO Copyright Treaty and, in so doing, set aside a Supreme Court of Canada decision made only months earlier, are understandable. In giving as little guidance as it did in the Copyright Modernization Act, Parliament asked a lot of subsequent interpreters. The Copyright Board responded by attempting to give effect to the apparently shared intent of Parliament and the federal government to conform to the treaties, even if that intent had to be cobbled together from a preamble and a government publication external to the Act itself. The Federal Court of Appeal responded by requiring Parliament to express itself more clearly instead of leaving the job of performing Canada’s WIPO obligations to administrative and judicial bodies. Both responses are defensible. But which is best?

Despite Stratas JA’s trenchant and principled comments, I am inclined to prefer the Copyright Board’s approach. There seems to be enough — if barely — in the Copyright Modernization Act to support an interpretation of it in conformity with the WIPO Internet Treaties. All legislation is presumed to conform with international law. The presumption is necessarily rebuttable because, as Stratas JA rightly said, Parliament and the provincial legislatures are the ultimate source of Canadian laws. International law is not entrenched in our law by section 52 of the Constitution Act, 1982. Footnote ¹³¹ There is, therefore, no power in a Canadian court to invalidate or disapply a law that breaches our treaty obligations or any other international norm. Parliament and the provincial legislatures remain undoubtedly sovereign to enact laws that contravene Canada’s international obligations. And yet the presumption of conformity must not be rebutted too readily, particularly where (as here) there is reason to believe that the legislation under consideration was intended to perform an international obligation that the federal government has undertaken for Canada in exercise of the royal prerogative over foreign affairs. Wherever possible, the judiciary and executive should speak with one voice in matters of foreign affairs. When courts reject the presumption of conformity, and adopt legal constructions of domestic law that risk creating responsibility for Canada on the international plane, the government’s conduct of international relations may be hindered or complicated. Such a result is rarely intended by Parliament and, therefore, ought only rarely to be ascribed to it by our courts.

Of course, courts can only do so much. They cannot jettison the principles of statutory interpretation in their haste to rescue governments from the international legal consequences of poorly drafted or ill-considered laws. Stratas JA’s reasons exhibit an admirable concern for the proper bounds of judicial power. But Supreme Court of Canada jurisprudence in the last quarter century or more has reconciled the modern approach to statutory interpretation with the two-centuries-old presumptionFootnote ¹³² that Parliament does not intend to breach international law by explaining that international law forms part of the context in which domestic laws are made. Canada’s international legal obligations, such as those examined by the Copyright Board, fall to be considered at the context stage of statutory interpretation.Footnote ¹³³ They were not improper considerations for the board, as Stratas JA’s reasons appear at points to suggest. (GvE)

Migrant workers — public health measures — relevance of international instruments

Schuyler Farms Limited v Dr Nesathurai, 2020 ONSC 4711 (27 August 2020). Ontario Superior Court of Justice (Divisional Court).

This case arose in the context of the COVID-19 pandemic. Dr. Nesathurai, the medical officer of health for the Haldimand-Norfolk Health Unit, issued an order to employers of migrant farm workers (MFWs) that required, among other things, that no more than three MFWs self-isolate together in a bunkhouse shelter. The Health Services Appeal and Review Board struck that aspect of the order. Dr. Nesathurai appealed.

Ontario’s Divisional Court allowed the appeal and reinstated the order, finding that the board had erred in several respects. Of interest for our purposes is the board’s conclusion that the order was arbitrary. In its view, the limit of three MFWs to a bunkhouse was arbitrary as it applied regardless of the design, size, layout, or amenities of a given bunkhouse; there was “no convincing reason” for that number.Footnote ¹³⁴

The Divisional Court found several palpable and overriding errors with this conclusion. One of these related to the status of MFWs as a “priority population.” The court affirmed that “MFWs are exceptionally vulnerable because of their immigration status, race and the precarious employment relationships imposed by the structure of the programs under which they are employed.”Footnote ¹³⁵ Moreover, guided by submissions of the intervener Canadian Lawyers for International Human Rights, the court held that the Health Services Appeal and Review Board had failed to interpret the Health Protection and Promotion Act Footnote ¹³⁶ in a purposive and contextual manner consistent with relevant international human rights principles.Footnote ¹³⁷ It highlighted the guidance from Vavilov that “statutory interpretation requires a purposive and contextual analysis that engages human rights principles and that international law should inform administrative decision-making where relevant.”Footnote ¹³⁸

The court proceeded to consider protections in the Universal Declaration of Human Rights (UDHR)Footnote ¹³⁹ and the International Covenant on Economic, Social and Cultural Rights (ICESCR),Footnote ¹⁴⁰ noting that they were acceded to by Canada and “form part of Canada’s international legal obligations.”Footnote ¹⁴¹ It also described the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP)Footnote ¹⁴² as “part of the body of human rights law and norms to which Canadian adjudicators may look in interpreting statutory or common law obligations and in reviewing administrative decisions,” citing Baker. Footnote ¹⁴³ The court explained:

The Divisional Court’s general conclusion that Canada has international human rights obligations, including health-related obligations, with respect to the migrant workers at issue here cannot be faulted. Regrettably, however, the court’s discussion of the relevant instruments makes no distinction between those that are binding on Canada and those that are not. Particularly notable in this regard is the court’s reliance on the 1990 Convention on the Protection of Migrant Workers Footnote ¹⁴⁵ and the 2001 International Labour Organization’s Convention No. 184 on Safety and Health in Agriculture,Footnote ¹⁴⁶ neither of which Canada has joined as a party nor even signed. Similarly, the UNDROP is a non-binding declaration of the United Nations General Assembly, and Canada abstained from the vote to pass it. This case predates the Supreme Court of Canada’s decision in 9147-0732 Québec (reviewed below).Footnote ¹⁴⁷ While that case dealt with Charter, rather than statutory, interpretation, its emphasis on the distinction between binding and non-binding international law instruments is pertinent.Footnote ¹⁴⁸

The Divisional Court’s conclusion that Dr. Nesurathurai’s order was necessary in part to “conform to Canada’s international obligations” is not as well supported as it believed. But the court did explain that the instruments it reviewed were “by no means determinative,” “serve[d] to reinforce the points that have already been made” and formed part of the context of statutory interpretation, following Appulonappa, Vavilov, and Baker. Footnote ¹⁴⁹ This approach might be regarded as being more consistent with persuasive, rather than binding, norms. Ultimately, however, the court’s failure to distinguish binding from non-binding instruments, and the relevance of that consideration to its review of the Health Services Appeal and Review Board’s decision, is unsatisfying. (DS)

Cruel and unusual treatment or punishment — application to corporations — international law in the interpretation of the Canadian Charter of Rights and Freedoms

Quebec (Attorney General) v 9147-0732 Québec inc., 2020 SCC 32 (5 November 2020). Supreme Court of Canada.Footnote ¹⁵⁰

A Quebec company sought to avert liability for a fine on the basis of section 12 of the Charter, which reads: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”Footnote ¹⁵¹ A majority of the Quebec Court of Appeal found that section 12 applies to corporations. The Supreme Court of Canada unanimously reversed this decision but split on the question of how courts may use international and comparative law in interpreting the Charter. The majority reasons were those of Brown and Rowe JJ (Wagner CJ and Moldaver and Côté JJ concurring). The lead concurring reasons were by Abella J (Karakatsanis and Martin JJ concurring). Justice Nicholas Kasirer wrote separate concurring reasons that made no comment on international legal issues.

It is convenient to start with Abella J’s reasons as all members of the Court agreed with her disposition of the appeal. She concluded that the purpose of section 12 is to prevent state-inflicted physical or mental pain and to protect human dignity and individual worth. The intended beneficiaries of this protection are people, not corporations.Footnote ¹⁵² She affirmed the purposive approach to Charter rights set out in Big M Drug Mart: “The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.”Footnote ¹⁵³ While noting that the text of a Charter provision may “be of comparatively limited assistance in interpreting [the] scope” of a Charter right,Footnote ¹⁵⁴ she nevertheless reviewed dictionary definitions of the key terms of section 12 in this case — namely, “cruel” and “everyone.”Footnote ¹⁵⁵ She then reviewed section 12’s historical origins in the English Bill of Rights, the Eighth Amendment of the United States Constitution and section 2(b) of the Canadian Bill of Rights. Footnote ¹⁵⁶

Abella J then turned to consider prohibitions of cruelty in international instruments and the decisions of foreign and international tribunals. Her review included Article 5 of the UDHR,Footnote ¹⁵⁷ Article 7 of the ICCPR,Footnote ¹⁵⁸ Article 5(2) of the 1969 American Convention on Human Rights,Footnote ¹⁵⁹ and Article 3 of the 1950 European Convention on Human Rights (ECHR).Footnote ¹⁶⁰ She noted that while the ECHR has been interpreted to include corporate rights, that treaty’s prohibition of torture or inhuman or degrading treatment or punishment has been held not to apply to corporations.Footnote ¹⁶¹ The learned judge also noted that Article 16(1) of the Convention against Torture has never been extended to include corporations.Footnote ¹⁶² She also considered the position in South Africa and New Zealand.Footnote ¹⁶³ Abella J concluded from this review of international and comparative sources that it is “widely acknowledged that the right to be free from cruel and unusual punishment is intended to protect human dignity by prohibiting degrading, inhuman, or dehumanizing treatment or punishment that causes physical or mental pain and suffering.”Footnote ¹⁶⁴

Abella J’s explanations (or perhaps justifications) for resorting to international and comparative sources in the interpretation of section 12 included that “Canada’s rights protections emerged from the same chrysalis of outrage as other countries around the world,”Footnote ¹⁶⁵ that “numerous human rights instruments [contain] provisions that closely mirror the language of s. 12,”Footnote ¹⁶⁶ and that the Supreme Court of Canada “has frequently relied on international law sources to assist in delineating the breadth and content of Charter rights.”Footnote ¹⁶⁷ Abella J noted that “both those sources which are binding and those which are not have proven to be indispensable in almost all areas of the law.”Footnote ¹⁶⁸ Non-binding sources, however, are “relevant and persuasive” and not obligatory. “Simply put, such sources attract adherence rather than command it.”Footnote ¹⁶⁹

It is here that we must return to the majority reasons. Brown and Rowe JJ agreed with Abella J’s result but expressed dissatisfaction with her approach. As they put it, “[i]f [international and comparative] sources are to be accorded a persuasive character, it must be done by way of a coherent and consistent methodology.”Footnote ¹⁷⁰ There was no need “to dispose of this matter by referring extensively to international and comparative law,” as the dissent of Justice Jacques Chamberland in the Court of Appeal demonstrates.Footnote ¹⁷¹ The majority claimed to “differ fundamentally” from Abella J “on the prominence she gives to international and comparative law in the interpretive process.”Footnote ¹⁷² In particular, the majority disputed Abella J’s “claim that all international and comparative sources have been ‘indispensable’ to Canadian constitutional interpretation.”Footnote ¹⁷³ The Charter, we are told, was “made in Canada” and is “primarily interpreted with regards to Canadian law and history.”Footnote ¹⁷⁴

To this point in the majority reasons, the difference between its position and that of Abella J may seem a matter of emphasis rather than substance. Yet the majority went on to enunciate a novel restraint on internationally informed Charter interpretation:

Later, the majority claims that the role of international and comparative law in interpreting Charter rights “has properly been to support or confirm an interpretation arrived at through the Big M Drug Mart approach; the Court has never relied on such tools to define the scope of Charter rights.”Footnote ¹⁷⁶

In these passages, the majority appears to introduce a restraint on the use of international and comparative law sources not previously enunciated in Supreme Court jurisprudence. The new rule is said to be that international and comparative sources may serve only to support or confirm interpretive results reached by means of the interpretive approach set out in Big M Drug Mart. International and comparative sources may not, it seems, be used to define the scope of a Charter right.

The majority went on to explain that “even within that limited supporting or confirming role, the weight and persuasiveness of each of these international norms in the analysis depends on the nature of the source and its relationship to our Constitution.” The reason for this was said to be twofold: “[T]he necessity of preserving the integrity of the Canadian constitutional structure, and Canadian sovereignty.”Footnote ¹⁷⁷ The majority was of the view that Abella J’s reasons “indiscriminately [draw] from binding instruments and non-binding instruments, instruments that pre-date the Charter and instruments that post-date it, and decisions of international tribunals and foreign domestic courts.”Footnote ¹⁷⁸

Against this approach, the majority insisted on the “significant difference between international law that is binding on Canada and other international norms.”Footnote ¹⁷⁹ Turning to Chief Justice Brian Dickson’s consideration of international sources in Charter interpretation in Re Public Service Employee Relations Act (Alta.) (Re Public Service), the majority noted that the chief justice distinguished between non-binding sources and “international human rights documents which Canada has ratified.”Footnote ¹⁸⁰ In respect of the latter, Dickson CJ held that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions” in those instruments. Notably, the majority described this approach as “the presumption of conformity,” thus equating it with the presumption that applies in respect of statutory provisions and called the presumption “a firmly established interpretive principle in Charter interpretation.”Footnote ¹⁸¹

What follows is a helpful account of Re Public Service, yet with one notable oversight. The majority explained Dickson CJ’s approach as applying the presumption of conformity in respect of binding international instruments, while treating non-binding sources as “relevant and persuasive, but not determinative, interpretive tools.”Footnote ¹⁸² Such non-binding instruments are not irrelevant, said the majority, but their non-binding legal quality must be recognized. The majority pointed to the Court’s discussion of international legal sources in Ktunaxa Nation, noting that the court there began with binding instruments, then moved to non-binding ones while “being careful to specify that” the non-binding sources “do not attract the presumption of conformity.”Footnote ¹⁸³ The majority concluded:

The majority’s insistence on differentiating binding and non-binding instruments in the course of Charter analysis, and giving greater weight to the former, is to be welcomed. What is missing from the majority’s account, however, is any attempt to reconcile Dickson CJ’s approach in Re Public Service with the majority’s new rule that international and foreign sources may only be used to support or confirm an interpretation arrived at through the Big M analysis. Neither Big M nor Re Public Service enunciated such a rule, and the presumption of conformity as described by Dickson CJ and other Supreme Court jurisprudence is at odds with it. In principle, it is hard to see what is gained by a “support or confirm” limitation on the use of international instruments (particularly binding ones) in Charter interpretation. The whole point of the presumption of conformity is to reach, where possible, interpretations of domestic law that perform and comply with the international obligations freely undertaken by the executive on behalf of the Canadian state in the international legal system. Such compliant results keep Canada onside its international obligations and also avoid putting the judiciary at odds with the executive in the conduct of foreign affairs. The presumption is necessarily rebuttable, both in its statutory and constitutional varieties. But there seems to be no reason in the abstract to insist that the state’s international legal obligations may only inform Charter interpretation where they support or confirm reasoning arrived at without consideration of the Charter provision’s international context.

The majority’s reasons also introduced another new consideration in the use of international instruments in Charter cases. An “important distinction” is to be made, said the majority, between “instruments that pre- and post-date the Charter”:

As for instruments that post-date the Charter, however, the question becomes once again whether or not they are binding on Canada and, by extension, whether the presumption of conformity is engaged. It can readily be seen that an instrument that post-dates the Charter and that does not bind Canada carries much less interpretive weight than one that binds Canada and/or contributed to the development of the Charter. Footnote ¹⁸⁵

Despite the majority’s description of these chronological considerations as “important,” their practical significance is unclear. For instruments that pre-date the Charter, the majority rightly observes that both binding and non-binding international sources inspired the Charter’s drafters. This would seem to negate the importance of chronological considerations pre-1982. As for post-Charter instruments, the majority’s concern appears not to be chronology per se but whether the instrument is binding on Canada at international law. The implication is that even a post-1982 instrument may attract the presumption of conformity so long as it is binding on Canada and the presumption is not otherwise rebutted. Notably, the majority appears to eschew the concern sometimes expressed by commentators that to apply the presumption of conformity in respect of obligations that post-date the Charter permits the federal government effectively to amend the Charter through treaty making.

The majority concluded its discussion of international law in Charter interpretation as follows:

If this were the only stricture the majority’s reasons introduced, it would be a positive development. The majority is right to be chiefly concerned, and to insist that litigants be chiefly concerned, with legal instruments to which Canada has freely bound itself under international law and to legal obligations to which Canada is necessarily bound as a consequence of its statehood. But the majority’s reasons go further than this. They introduce a new restraint on the use of international and comparative law sources in Charter interpretation — namely, that these may serve only to support or confirm interpretive results reached by means of the interpretive approach set out in Big M Drug Mart, rather than being used to define the scope of a Charter right. Whether this new restraint will matter in practice is unclear. (GvE)