In their recent piece for The Hub, aptly subtitled “International law cannot be used to trump Canadian law”, Prof. Gerard Kennedy and Mr. Mark Mancini observe that “a dispositional preference for tradition and order may manifest itself in support for…a constrained judicial role with a disinclination to depart from judicial precedent”. I expect that is true.
They go on, however, to argue that such a preference should also support a disinclination to see Canadian courts give effect to the state’s international legal obligations. That argument is at odds with the principle of adherence to judicial precedent that the authors favour. Anglo-Canadian judicial precedents stretching back to the 18th century support ensuring—as far as judges can legitimately do it—that the state lives up to its international obligations.
In Triquet v. Bath (1764), one of England’s greatest judges, Lord Mansfield, affirmed that “the law of nations, to its full extent, was part of the law of England”. A year later, Sir William Blackstone wrote in his Commentaries on the Laws of England that “the law of nations . . . is here adopted in it’s [sic] full extent by the common law, and is held to be a part of the law of the land”. Lord Mansfield repeated the point in Heathfield v. Chilton (1767), affirming that “the law of nations will be carried as far in England, as any where.” Quoting this aphorism in 1958, Mr. Justice Rand observed that if this were the law of England in the 18th century, “in this country, in the 20th century…we cannot say anything less”.
Following this, 19th century English judges developed this principle into the interpretive rule that, in the words of Sir Peter Benson Maxwell (1875), “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”. The Supreme Court of Canada has affirmed this interpretive rule almost yearly over the last quarter century.
Aside from precedent, there are two further reasons why judges should favour compliance with Canada’s international obligations over breach.
First, the international law principle that promises must be kept (pacta sunt servanda) is foundational not only to the law of nations but to all laws and, perhaps, all morals. A legal system that tolerates promise-breaking hardly deserves the name.
Second, turning back to the Canadian case, the separation of powers invoked by Kennedy and Mancini in fact supports judicial efforts to ensure, to the extent possible, the state’s compliance with its international obligations. Kennedy and Mancini rightly emphasize that, in our legal tradition, laws are made by the legislative and not the executive branch, while international agreements are concluded by the Crown. The indisputable consequence of these constitutional arrangements (the authors rightly note) is that treaties cannot take direct effect in Canadian law without legislative implementation. As Lord Atkin explained in 1937, “the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action.”
What Kennedy and Mancini leave out of their account, however, is the enormous efforts the federal executive makes (together, where necessary, with the provinces) to ensure that existing Canadian laws conform to new international agreements before Canada enters into them. As I have noted elsewhere:
Federal governments of every political stripe spend vast amounts of resources (energy, time, personpower and money) in the conduct of foreign affairs. These efforts include…the careful scrutiny of domestic law (federal, provincial or both) prior to entering new international obligations to ensure Canada can perform them [and] where necessary, the introduction of new laws, or amending laws, to enable Canadian performance prior to treaty ratification…
Thanks to reforms to the treaty-making process made by the Harper Government in 2008, the legislative implementation requirements (if any) of new treaty actions are now clearly set out in explanatory memoranda tabled in the House of Commons with every new treaty the federal government proposes to sign. These reforms give more transparency than ever before about how Canada’s international obligations—and indeed, our domestic laws—are made.
The difficulty with Kennedy and Mancini’s contention that “unless Canadian legislatures adopt international norms as laws that govern Canadian citizens, those norms are, at best, guidance for the political branches of government” is that it neglects the practical reality of the federal government’s conduct of external affairs. Every treaty Canada makes without the adoption of explicit implementing legislation is entered into on the strength of the executive’s considered determination that no such legislation was needed because Canada’s existing laws suffice to perform the new obligations.
Courts acknowledge, and defer to, this reality of Canadian treaty practice by interpreting existing laws, wherever possible, as consistent with our international obligations. For courts to do otherwise—ignoring our international commitments altogether or finding them too easily violated by legislative provisions that could plausibly be interpreted to conform with them—is not respect for the separation of powers. It is an unnecessary judicial incursion into the executive’s conduct of foreign affairs.
The federal government is entitled, by centuries of judicial precedent, to expect that courts will avoid making decisions that put Canada offside of its international obligations and upset Canada’s external relations.
Of course, judicial interpretation can only go so far. The sovereignty of Canadian legislatures to pass laws that cause Canada to break its promises and violate its obligations is indisputable. While courts presume that legislatures do not intend to break international law, they acknowledge the power of Parliament and the provincial legislatures to do so.
Early in its mandate, the Trudeau government introduced, and Parliament enacted, legal amendments to legalize marijuana. In so doing, Parliament exercised its undoubted power, as a matter of Canadian law, to violate international law: these reforms were clearly contrary to Canada’s international obligations under UN narcotics conventions. Instead of first withdrawing from these treaties, as the Harper Government withdrew from the Kyoto Protocol, Canada breached them in a fashion our treaty partners might well regard as contemptuous.
Promise-keeping should not be a creed adhered to only by people on one end of the political spectrum. When courts are confronted with the promises Canada has made to allies, trade partners, and other states, their inclination, in keeping with centuries of Anglo-Canadian precedents and a full appreciation of the separation of powers, should be to promote respect for those commitments to the extent that it is within the proper bounds of the judicial power to do so. We can reasonably disagree about where those bounds lie in difficult cases. But we ought not to disagree on the fundamental premise that promises should be kept.
