INTERNATIONAL LAW & STATUTORY INTERPRETATION Gib van Ert • 23 October 2014

• Statutory interpretation is one of the chief means by which public international legal norms are received into domestic law.

• In Canada as in many (most?) other states, courts strive to interpret domestic law in conformity with their state’s international obligations. This is true despite Canada’s formally “dualist” approach to treaty obligations.

• Lying behind this interpretive posture is the international law of state responsibility.

STATE RESPONSIBILITY

• As in domestic law, persons in the international law (chiefly states) are liable for their breaches.

• Also as in domestic law, enforcement in international law can be uneven, although this can be overstated.

• The risk of state responsibility drives judicial conformity.

Articles on the Responsibility of States for Internationally Wrongful Acts 2001

• The principle that international wrongs require international reparation has long been in place, e.g. Chorzow Factory case (PCIJ; 1927):

It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form….[R]eparation must, so far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.

• This area of law was finally codified in 2001 by the International Law Commission after a 40-year effort.

• Art 1: “Every internationally wrongful act of a State entails the international responsibility of that State.”

• Art 2: “There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to that State under international law; and (b) constitutes a breach of an international obligation of the State.”

• Art 3: “The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.”

• Art 4(1): Conduct of any state organ shall be considered an act of that state, whether legislative, executive, judicial or other. Crucially, the judiciary is a state organ, and thus is capable of acting in ways attributable to the state itself and putting the state in breach of its international obligations.

• Art 12: “There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.” No express fault requirement here, nor any express requirement of proof of damage.

THE PRESUMPTION OF CONFORMITY

• Rule of legal interpretation whereby domestic law is read, wherever possible, consistently with international law and comity.

• Inevitably a rebuttable presumption in Canada given the doctrine of parliamentary sovereignty.

• More rebuttable in theory than in practice.

A judicial policy

• While the presumption is usually phrased in terms of judicial scrutiny of legislative intent, it is clear that the courts are in fact applying a policy of their own: they are loathe to interpret domestic laws in ways that violate international law unless no other interpretation remains reasonably available.

• E.g. R v Zingre (SCC 1981): Dickson J calls it “the duty of the Court” to interpret the Canada Evidence Act in conformity with an extradition treaty.

Range of application

• Applies to all statutes, whether they predate or postdate the international obligation, e.g. Canadian Foundation for Children, Youth and the Law (SCC 2003).

• Applies to regulations and even to instruments made under royal prerogative.

• Also applies, it appears, to the Charter, e.g. Health Services (SCC 2007), Divito (SCC 2013).

English origins

• Oldest authority for the presumption I know is Le Louis (1817 England): a British ship purporting to enforce either French or international law captured a French slave-trading vessel, killing 12 and injuring others. The ship was condemned in Sierra Leone. On appeal, Sir William Scott held that the slave trade was not yet contrary to international law and therefore the capture was illegal.

• In response to an attempt to rely on the Slave Trade Act to justify the capture, the court held:

...neither this British Act of Parliament, nor any commission founded on it, can affect any right or interest of foreigners, unless they are founded upon principles and impose regulations that are consistent with the law of nations. That is the only law which Great Britain can apply to them; and the generality of any terms employed in an Act of Parliament must be narrowed in construction by a religious adherence thereto.

• By 1875 the leading English work on statutory interpretation (Maxwell) stated “every statute is to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations, or with the established rules of international law”.

Denial of parliamentary supremacy?

• In 1939 the great international lawyer Sir Herscht Lauterpacht observed in a famous essay:

The practical effects of this rule of construction have been considerable…The absolute superiority of Acts of Parliament, even when they conflict with International Law, has indeed been repeated and emphatically affirmed. But this has been a theoretical affirmation having the probably not unintended effect of stressing the duty of Judges to do their utmost to interpret statutes so as not to impute to the Legislature the intention of disregarding International Law....

...The presumption that Parliament did not intend to commit a breach of the law of nations has been a powerful weapon wielded with a determination which on occasions has come near to a denial of the supremacy of Parliament.

• Shortly after this, English law introduced an “ambiguity requirement” which served to restrain the presumption of conformity, and sometimes hinder its application.

AMBIGUITY

• For much of 20th century, English and Canadian courts observed a rule that no regard could be had to a treaty in interpreting legislation unless the legislation was ambiguous on its face, thus justifying recourse to ‘extrinsic aids’ such as treaties.

• The so-called ambiguity requirement.

Ambiguity hinders the presumption

• The ambiguity requirement often led to rather weak application of, or non-applications of, the presumption of conformity.

• E.g. in Capital Cities Communications Inc. v. CRTC (SCC, 1978), the majority refused to interpret the federal Broadcasting Act in conformity with the Inter-American Radio Communications Convention 1937 to which Canada was a party. Laskin J. found no “ambiguity that would require resort to the Convention”.

• In dissent, Pigeon J. held that the majority’s interpretation of the Act put Canada in breach of the Convention, and observed, “It is an oversimplification to say that treaties are of no legal effect unless implemented by legislation.”

National Corn Growers

• The ambiguity requirement was effectively abolished in Canadian law by Gonthier J in National Corn Growers (SCC 1990):

…it is reasonable to make reference to an international agreement at the very outset of the inquiry to determine if there is any ambiguity, even latent, in the domestic legislation.  The Court of Appeal's suggestion that recourse to an international treaty is only available where the provision of the domestic legislation is ambiguous on its face is to be rejected.

…The suggestion that recourse can be had to an underlying international agreement where a latent ambiguity can be asserted implies that there is no need to find a patent ambiguity before consultation of the agreement is possible. As a latent ambiguity must arise out of matters external to the text to be interpreted, such an international agreement may be used, as I have just suggested, at the preliminary stage of determining if an ambiguity exists.

• SCC rarely mentions ambiguity any more.

HAPE AND AFTER

• Many recent statements and applications of the presumption of conformity by the Supreme Court of Canada in the 1990s and 2000s.

• But the leading statement of the presumption in Canada today is undoubtedly LeBel J in R v Hape 2007 SCC 26.

R v Hape on the presumption of conformity

[53] …  It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the 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. R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 422, explains that the presumption has two aspects.

First, the legislature is presumed to act in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community.  In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. The second aspect is that the legislature is presumed to comply with the values and principles of customary and conventional international law. Those values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that reflects them. The presumption is rebuttable, however. Parliamentary sovereignty requires courts to give effect to a statute that demonstrates an unequivocal legislative intent to default on an international obligation….

[55] This Court has also looked to international law to assist it in interpreting the Charter. Whenever possible, it has sought to ensure consistency between its interpretation of the Charter, on the one hand, and Canada’s international obligations and the relevant principles of international law, on the other. For example, in Slaight Communications Inc. v. Davidson,[1989] 1 S.C.R. 1038, at p. 1056, Dickson C.J., writing for the majority, quoted the following passage from his dissenting reasons in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 349:

The content of Canada’s international human rights obligations is, in my view, an important indicia of the meaning of the “full benefit of the Charter’s protection”. I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified….

[56] In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction. 

• Since Hape the SCC has repeatedly applied the presumption, with occasional qualifications

Health Services v. British Columbia 2007 SCC 27

[70] Canada’s adherence to international documents recognizing a right to collective bargaining supports recognition of the right in s. 2(d) of the Charter. As Dickson C.J. observed in the Alberta Reference, at p. 349, the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.

USA v Anekwu 2009 SCC 41

[25] ...It is a well-established principle of statutory interpretation that in interpreting domestic legislation, courts should strive to arrive at a construction which conforms with Canada’s treaty obligations....

[26] Adherence to the strictures of the hearsay rule in the extradition context would require, as a general rule, that witnesses be called to give viva voce evidence resulting in inevitable delays, increased expenses, and potentially lengthy cross‑examinations...traditional adherence to the hearsay rule “would be to allow form to triumph over substance and lead to expensive, time‑consuming hearings that would disable Canada from complying with its international obligations in a prompt and efficient manner…” Hence, such an interpretation should be avoided.

Németh v. Canada (Justice) 2010 SCC 56

[20] Article 33 of the Refugee Convention provides: ...

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

…

[32] The appellants submit that as [IRPA] s. 115 is addressed to the issue of non-refoulement it should be interpreted in a way that is consistent with Canada’s non-refoulement obligations under the Refugee Convention....While I agree with the principle on which this submission is based, I do not agree that it applies here.

[33] I accept that protection against refoulement under the Refugee Convention applies to expulsion by extradition….

[34] I also accept, of course, that, where possible, statutes should be interpreted in a way which makes their provisions consistent with Canada’s international treaty obligations and principles of international law…

[35] The presumption that legislation implements Canada’s international obligations is rebuttable. If the provisions are unambiguous, they must be given effect....s. 115 does not address removal by extradition and so its clear meaning must be given effect.

Moreover, I do not accept that this interpretation of s. 115 results in Canadian domestic law failing to respect its non-refoulement obligations under the Refugee Convention. My view is that those obligations in the context of extradition are fully satisfied by a correct interpretation and application of s. 44 of the [Extradition Act]...

[41] … In my view, the IRPA does not and was not intended to implement Canada’s international obligations against refoulement in the context of expulsion by extradition. That role...is assigned to s. 44 of the EA.

Ontario (Attorney General) v. Fraser 2011 SCC 20

• Rothstein J (dissenting):

[250]  The majority in Health Services was in error when it concluded that international law pointed to compulsory collective bargaining.… My colleagues say that international norms are not inconsistent with compulsory collective bargaining.…  While this is true, it does not assist with the interpretation of s. 2(d). … the majority in Health Services said … that Canada’s obligations and those international norms imply compulsory collective bargaining more than they imply voluntary associations.… With respect, international law does not support that conclusion.

Divito v. Canada (Public Safety) 2013 SCC 47

[24]   The international law inspiration for s. 6(1) of the Charter is generally considered to be art. 12 of the International Covenant on Civil and Political Rights…

[25]   As a treaty to which Canada is a signatory, the ICCPR is binding. As a result, the rights protected by the ICCPR provide a minimum level of protection in interpreting the mobility rights under the Charter.

[After considering ICCPR art 12 and UN HRC General Comment 27]

[27]    Although art. 12(4) protects against arbitrary interference with the right to enter, the U.N. Human Rights Committee’s interpretation of the scope of the right suggests that there are in fact “few, if any” limitations on the right to enter that would be considered reasonable. The right to enter protected by s. 6(1) of the Charter should therefore be interpreted in a way that is consistent with the broad protection under international law. 

CONCLUSION

• Interpretive resort to international law is not new, but its frequency is.

• “…the evidence of an increasing role of national courts in the application of international law is too widespread to consider that role as a random process that is just a matter of national law. Rather, the evidence suggests that many states, and their courts, accept the normative guidance stemming from international law itself.” A. Nollkaemper, National Courts and the International Rule of Law (OUP 2011 at 12).

• The growing importance of this interpretive practice forces a rethink of longstanding notions about the relationship between domestic and international law.

• “…the strictly dualistic view of the relationship between international law and municipal law is becoming less serviceable and the old well defined boundaries between public international law…and municipal law are no longer boundaries but grey areas.” R.Y. Jennings, “The Judiciary, International and National, and the Development of International Law” (1996) ICLQ 1 at 4.

• Pigeon J. was surely right: “It is an oversimplification to say that treaties are of no legal effect unless implemented by legislation.”