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Gib van Ert: Staying onside of international law is in Canada’s best interest

Commentary

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. 

Amanda Lang: Long-term thinking in government can easily fall victim to politics

Commentary

The following is the latest installment of The Hub’s new series The Business of Government, hosted by award-winning journalist and best-selling author Amanda Lang about how government works and, more importantly, why it sometimes doesn’t work. In this five-part series, Lang conducts in-depth interviews with experts and former policymakers and puts it all in perspective for the average Canadian. Listen to the accompanying interview with Michael Wernick, a former clerk of the privy council, on your favourite podcast app or at The Hub.

It’s easy to bring a glass-half-empty kind of nostalgia to Canada’s public service, recalling a time when a deputy minister was afforded the greatest respect, paid like a CEO, and considered an invaluable asset to government. The notion that somehow the quality of personnel has deteriorated over time is a widely held one. But is it true?

One answer to that question is purely empirical, according to a former Clerk of the Privy Council: “In a more and more demanding environment the public sector, federal, provincial, and municipal, continues to deliver for Canadians.”

As the most senior unelected official in the land, Michael Wernick quite literally wrote the book on how government can function best. In charge of the civil service, but also the liaison to elected officials as cabinet secretary, Wernick also had a front-row seat to how politics can run roughshod over public servants. But measuring the quality of our government at the most basic level is pretty straightforward: “It’s about keeping us safe and secure, generating economic growth and prosperity,” he says. “And by a long list of measures Canada is a successful country.”

That’s not to say our civil service doesn’t occupy itself with improvement. Wernick says some of the infrastructure of government is a “vast feedback loop” designed to audit performance and do better. “There is this continuous checking in and looking back on what could have been done differently.”

But he also cautions against speaking of government as though it’s one entity. The federal government is more like 300 different organizations, with seven or eight different occupational groups, all doing different things. Like the private sector, the functions are diverse enough that they represent totally different sectors. But unlike the private sector, the management and leadership of them is made more complex because it is done in the context of politics, and also of a larger budget mandate. To analyze how government is doing, Wernick says, has to involve a look at individual organizations.

“There are pockets of excellence and innovation, and there are organizations that run into trouble.” For all the attention the trouble gets, Wernick argues there are plenty of success stories that don’t get told.

Wernick notes that public-facing services get the most attention—so you can now renew your driver’s licence online in minutes, and file your taxes entirely electronically. But internal processes of government are often the ones that get neglected—the services like finance, human resources, information management, material management, buildings, tools—“these are the kinds of things that make everything else possible. Not only do they tend to get neglected until there’s a crisis, but when you have one of these waves of spending reviews and cuts, they tend to be the things that are cut, because any group of politicians will go out and say, ‘No, no, we’re protecting service to Canadians, we’re going to find efficiencies within government.’”

One place Wernick says should not be neglected is leadership and training development, which benefits every department, but falls victim to cutbacks. It’s something he has argued for over time, including before Parliamentary Committee.

When it comes to size, Wernick is keen that the right problem be solved: even with its recent increase in size, the bureaucracy isn’t the line item that will make or break the federal budget. Of course “it’s worth trying to make the operations of government leaner, but you’re not going to balance the budget on that,” Wernick says. In fact, cutting the federal civil service in half might save you $20 billion dollars, out of a $400 billion dollar budget. “It’s worth doing because it might create better outcomes and better services and better policies. But it’s not going to be the key to fiscal balance.”

As for how departments function, Wernick says there is a balance to be struck between creating deep specialists—by leaving people in place longer—and those who have experience in multiple roles. He’s upbeat about the quality of talent the federal civil service can attract, including from the private sector. “I’m an advocate of more interchange, it’s a good idea to have people crossing from the private public and not-for-profit sectors for a period of time and learning about what it’s like on the other side,” he says. Rather than the dozen or so a year, he would like to see up to 200 interchanges, seeding more awareness on both sides of how the other functions.

It’s important not to forget that government isn’t separate or apart from the private sector, Wernick notes. “When you have a strong public sector, you get a strong private sector, and vice versa. And it’s something that Canada does better than many other countries.”

One hot political question has been the use of outside consultants in government, and Wernick takes a characteristically measured view. The pace of change in things like technology makes outside consultants necessary, and he argues that another perspective should be welcome. If there is too much reliance on consultants—and he is not saying there is—it only bolsters the argument for more robust internal training. What he calls the “learning software” of government includes developing in-house potential.

Wernick argues that the “spend money to save money” mentality is harder to achieve in the public sector. The reality is that longer-term investments in systems or staff development can more easily fall victim to day-to-day politics.

As someone who spent four decades working in various parts of government, Wernick isn’t blind to its shortcomings. “I don’t want to be misunderstood. There are lots of things to attend to.” Information management inside government is “a shambles,” he says, and there are areas of service that need to be corrected. He’s also passionate about improving training and development so that the most organizations can build on their talent.

But the evidence for how Canada’s public service functions is in the output, he says. “Things get done. This is a successful country that ranks very highly in all the governance measurements around the world.”

It’s a kind of optimism about government employees that feels refreshing. Glass-half-full, as it were. And maybe from this vantage making positive change is an easier prospect.

“I’m not making the argument that government is perfect. I’m making the argument that it learns and adapts and moves forward and the more attention paid to how it works, especially how it works internally is a very, very welcome.”