Is Our House in Order?: Canada'a Implementation of International Law 9780773580961

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is our house in order?

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Is Our House in Order? Canada’s Implementation of International Law Edited by

Chios Carmody

McGill-Queen’s University Press Montreal & Kingston • London • Ithaca

©  McGill-Queen’s University Press 2010 isbn 978-0-7735-3753-8 (cloth) isbn 978-0-7735-3814-6 (paper) Legal deposit quarter 2010 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the following: The Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada; The University of Western Ontario Faculty of Law and Research Western; and Professor Lucie Lamarche, Gordon F. Henderson Chair in Human Rights, Faculty of Law, University of Ottawa. The assistance of these donors to the final phase of publication is grateful acknowledged. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication Is our house in order?: Canada’s implementation of international law / edited by Chios Carmody. isbn 978-0-7735-3753-8 (bound). – isbn 978-0-7735-3814-6 (pbk.) 1. International and municipal law – Canada.  2. International law – Canada.  I. Carmody, Chi ke4252.i83 2010 kf4483.i67i83 2010

341.0971

c2010-903200-4

This book was typeset by Interscript in 10.5/13 Sabon.

Contents

  1 Introduction: Is Our House in Order? Canada’s Implementation of International Law  3 Chios Carmody

part o n e  g e n e r al co n s i d e r at i o n s

  2 Canada’s Implementation of International Law: Why It Matters  25 Michael Byers   3 The Relationship of International and Domestic Law as Understood in Canada  42 Armand de Mestral   4 Federalism and Multi-Level Governance in Foreign Affairs: A Comparison of Canada and Belgium  71 Stéphane Paquin

part t wo  can a da’ s i m p l e m e n tat i o n o f i nt e r n at i o n a l l aw

  5 On the Nature and Meaning of International Legal Obligation: Canada’s Responses to Kyoto  99 Jaye Ellis   6 Economic and Social Rights in an Era of Governance and Governance Arrangements in Canada: The Need to Re-visit the Issue of the Implementation of International Human Rights Law  115 Lucie Lamarche

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Contents

  7 Canada’s Implementation of the wto Agreement  140 Chios Carmody   8 Canada’s Indoor Arbitration Management: Making Good on Promises to the Outside World  174 Anthony R. Daimsis   9 Libman at Twenty-five; or, Canada and Qualified Territoriality: Do We Understand Jurisdiction Yet?  199 Robert J. Currie 10 Domestic Reception and Application of International Humanitarian Law: Coming Challenges for Canadian Courts in the “Campaign against Terror”  225 Christopher K. Penny 11 Letting the Elephants Watch the Mice: The Surrender of Canadian Anti-Bribery Legislation to American Jurisdiction  262 Dwight G. Newman 12 Confidential Information and Privacy-Related Law in Canada and in International Instruments  275 Margaret Ann Wilkinson

Contributors  313



Index  317

is our house in order?

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1 Introduction: Is Our House in Order? Canada’s Implementation of International Law CHIOS CARMODY The chapters in this volume are the result of a conference held to mark the thirty-fifth anniversary of the Canadian Council on International Law (ccil),1 an independent, non-profit organization founded in 1972. Today the ccil is recognized as the pre-eminent organization devoted to the examination of international law in Canada. As a means of doing something special in its anniversary year, the ccil executive promoted the hosting of a series of regional events across the country. The chapters in this volume originated in a one-day conference on Canada’s implementation of international law co-sponsored by the University of Western Ontario Faculty of Law, Research Western, and the ccil, held at London, Ontario, on 7 September 2007. That event followed a workshop at the University of New Brunswick Faculty of Law on 11 May 2007, whose subject was the Passamaquody lng Terminal Facility. The workshop was followed by the ccil’s annual meeting in Ottawa on 18 to 20 October 2007 on the subject of Canada’s contribution to international law. My colleague Valerie Oosterveld and I were honoured to be able to host the conference on domestic implementation and were deeply grateful to the University of Western Ontario Faculty of Law and to Research Western for making our event possible. As co-organizers of the conference, we were drawn to the issue of implementation because it appeared to be a relatively neglected subject. In the ccil much time is devoted to determining what international law is or what it should be – that is, its analytical or normative content. Less often, however, is there pause to consider

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Is Our House in Order?

how international law is expressed and functions within domestic legal systems and, in particular, within Canada’s legal system. Indeed, in planning for our conference, we were unable to find any previous conference that had been devoted exclusively to the subject of Canada’s implementation of international law. It seemed to us that if Canada is to continue proclaiming its support for international law, if it is to go on working to enhance international law through multilateral fora, and if it is to live up to its reputation as a helpful fixer on the international stage, then it should be prepared to implement that law domestically and to make it “the law of Canada.” Our ambition, therefore, was to organize a conference that would focus squarely on the topic, in order to begin addressing it over the medium and longer term. Consequently, the conference theme was organized with a critical mandate in mind, approaching the topic of implementation from a distinct perspective, namely, that of the “glass half-full.” In this we sought to examine what has been done to implement international law in Canada and, perhaps more importantly, to explore what remains to be done. Again, if international law is important to Canadian self-identity and if it preoccupies our thinking about how the world is and should be, as Michael Byers suggests in the introductory contribution to this volume, then it appears only reasonable to suppose that Canada should aim to implement it to the fullest extent possible. From this basic supposition came the metaphor that gave the conference – and this volume – its title: Is our house is in order? Admittedly, our approach was provocative, since it suggested that Canada is deficient and that someone is to blame. And in an age of accountability it would be easy to lay that blame primarily at the foot of government. After all, in a dualist legal system like Canada’s it is the role of government to negotiate, ratify, and implement international law, at least of the conventional kind, and it is also government that has a privileged position in determining and implementing customary international law. But there is undoubtedly much more to the question of implementation than simply blame. This is particularly true if we adhere to the view popularized by Lon Fuller of “law as an enterprise.”2 In Fuller’s view, law is a kind of “open source” contributed to by different actors and structures that constantly act and react against each other.3 If that view is correct, then the question of Canadian implementation is a question addressed not only to governments but also to



Introduction

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legislators who enact laws and insist on democratic scrutiny, to judges who apply the law, and to individual citizens and civil society, which rely upon the law in their legal dealings with each other. Thus, international law can be regarded as a body of law that is constantly being worked on and for which we have a greater collective responsibility to make it our own. At the same time, we realized that the implementation of international law is not an exclusively Canadian preoccupation, and this inspired us to look at what has already been done elsewhere. Implementation is a pressing matter globally because a lot of international law is being produced today, but the question of implementation normally comes ex post, that is, after international law has been created, and is therefore often neglected or overlooked. This has been particularly true since 1990, when a number of new institutions of international law came into being. They included regional courts of justice in the Andean Community (1984), the Arab Maghreb Union (1989), the European Free Trade Area (1994), the Common Market of Eastern and Southern Africa (1998), the International Tribunal for the Law of the Sea (1996), the ad hoc criminal tribunals for the Former Yugoslavia and Rwanda (1993, 1995), the World Trade Organization (1995), and the International Criminal Court (1998). In addition, inspection panels at the World Bank (1994), the Inter-American Development Bank (1995), and the Asian Development Bank (1995) were inaugurated around this time, and there was serious questioning about the efficacy of human rights bodies such as the UN Human Rights Commission (now the UN Human Rights Council). There were, moreover, a number of new compliance mechanisms, such as the UN Committees on the Rights of the Child (1990) and on the Rights of Persons with Disabilities (2007), as well as the continuing work of non-compliance bodies such as the Implementation Committee under the Montreal Protocol (1990), those under the Climate Change and Desertification Conventions (1992 and 1994, respectively), and under the Oslo Protocol.4 More generally, new thought was being given to ways of enlisting private sector support and of aligning private incentives for the purposes of international law, something that took the form of mixed instruments, soft law, and public-private partnerships.5 All of these institutional developments put an accent on whether international law works – that is, on whether it makes a difference. They are perhaps the most visible evidence of an earlier wave of

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Is Our House in Order?

interest in the real-world function of international law, as expressed in Thomas Franck’s The Power of Legitimacy among Nations6 and Abraham and Antonia Chayes’s The New Sovereignty.7 Those titles were refreshing for their turn away from abstraction and towards the realities of actually making international law effective.8 They also played into a nascent sense that individuals, ngos, and other members of civil society might have a stake in the creation and implementation of international law and that the private sector could contribute to these aims through its own engagement as well. Our own inquiry followed in the same direction but ultimately took a somewhat different path, turning inward to look at Canada’s own record of implementation. Some excellent work has been done on the topic recently by Gibran van Ert and Joanna Harrington, respectively, but their conclusions were neither comprehensive nor particularly encouraging. Van Ert’s work is a reminder that “Canadian judges and litigants remain largely unfamiliar with, and even wary of, international law,”9 and Harrington’s careful historical and comparative analysis of treaty implementation reveals that in terms of democracy and transparency, we may be living in a less generous age than in the past. Harrington’s work also indicates that the executive’s consultation with Parliament about international law is uneven, that public access to treaties and other documents is hit-and-miss, and that Canada has yet to formalize a role for the legislative review of international law, as is done in several other countries.10 These observations suggested the need for a broader inquiry into the nature of implementation in Canada. The specific subject of implementation is one that can be developed along several vectors. To implement is to put into place or to make effective, but how, by whom, and under what conditions is far from clear. Canada’s progressive evolution from a British colony to a self-governing dominion to an independent nation further obscures the subject. There is very little that can be looked to in either Canada’s Constitution or its laws that spells out how, by whom, and when international law is to become the law of the land. We simply think the process is spelled out, although finding hard authority for this proposition is a difficult task.11 Canadians have instead tended to manage as they often have – by muddling through. To try to deal with the subject systematically, we identified five major questions that we believe need to be answered:

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Introduction

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What has Canada done to ratify and implement the international agreements it has signed? What has the federal government done to open up the negotiation and ratification processes to Parliament and to the public? What has Canada done to give expression to customary international law in domestic law? What has Canada done to make federal and provincial actions under international law more accountable on an ongoing basis under implementation and compliance mechanisms? What else could be done to give fuller expression to international law in Canada?

Needless to say, it was impossible to cover all of these questions thoroughly in the course of a one-day conference. In the end, our contributors touched on only some of them, and even then only unevenly. We attempted to crystallize thinking further by asking each contributor to make specific recommendations on implementation, but even this was not wholly successful: some of our contributors were able to do so, others chose not to. Nevertheless, we did not come away from the conference disappointed. If anything, the results confirm that much remains to be done on the subject of implementing and operationalizing international law in Canada. In this respect, each contribution presented here can be thought of as a “sounding” – the taking of a preliminary reading. The contributions reflect the individual opinions of each contributor and should not be construed to reflect the opinion of the ccil, yet they also reinforce one of the principal conclusions of this volume: that Canada needs more ample and regular assessment of its implementation of international law. Institutions, mechanisms, and attitudes are all critical elements in ensuring that this body of law forms an integral part of “the law of Canada.” To set the stage, Michael Byers’s contribution (chapter 2) reminds us that Canada has long considered itself to be “a potentially influential and historically progressive power,” and yet Byers observes that recently its actions both abroad and at home have created cause for concern. He recalls the proud tradition of internationalism in Canadian diplomacy established by figures like John Humphrey and Allan Beesley and followed up more recently by Lloyd Axworthy, Paul Heinbecker, and the actions of many individuals in Canadian

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Is Our House in Order?

civil society, and yet he voices apprehension about Canada’s ongoing record on the treatment of war criminals, detainees, and climate change. Law is, as he explains, “how a society seeks to control its future,” and in Byers’s view, Canada has much more to benefit from embracing international law as part of that future than from standing off from it. Canada’s national interest is best served by policies of cooperation rather than conflict, trust rather than fear. Byers’s work sets the tone for this volume, a volume that is not designed to support the assertion that Canada is shirking its international obligations on a massive scale. Little could be further from the truth. Canada is, and can continue to be, a good international citizen and has on the whole played a constructive role in international affairs. But consistent with the general theme of this volume, what Byers and the work of other contributors reveals is a series of inconsistencies, failures to implement, and occasionally an outright hostility to international law that are, cumulatively, worthy of note. At the same time, what are detailed here are patterns that rarely make the headlines and are only occasionally the subject of academic commentary. They exist beneath the surface of an attitude that is apparently favourable to international law. What conclusions were arrived at? There appears to be no single, monolithic answer to this question, but a number of factors suggest what the contours of an answer might be. For starters, the question of implementing international law appears to depend fundamentally on the nature of the obligation in issue. Is it a negative obligation prohibiting a certain action, or is it of a more positive character, requiring a government to actually do something or to achieve a certain goal? The contributions of Jaye Ellis and Lucie Lamarche (chapters 5 and 6) reveal the difficulty of implementation when the goal is evidently a positive one and when implementation becomes linked with the question of political priority. In Ellis’s view, the novelty of obligations contained in the Kyoto Protocol and the fact that there has been little experience of them so far makes them difficult to implement without vision and political will. She also observes that successive Canadian governments have been unsure about just about how far they should go to do so. Likewise, Lucie Lamarche’s contribution highlights the difficulty of implementing international law in Canada in the form of economic, social, and cultural obligations, and how this task is complicated by ongoing changes at the sub-national level.



Introduction

9

She questions how such obligations can be adequately fulfilled in an era of privatization, when governance is occurring by contract and is subject to de-regulation, outsourcing, and downsizing. She provides examples��������������������������������������������������� from recent experience with public community partnerships in Quebec to illustrate her point. Similar difficulties are emphasized in the contributions of Anthony Daimsis, Robert Currie, and Christopher Penny (chapters 8, 9, and 10). Here the contributors probe different aspects of international law where the nature of the international duty is still less well defined and where states appear to have some leeway in its application. Daimsis focuses on Canada’s implementation of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.12 His work reveals that Canadian provinces have implemented the convention’s terms in at least three different ways, leaving it uncertain in many instances whether the convention has been faithfully replicated in provincial law. What Daimsis also reveals is that there is apparently little oversight of these inconsistencies and therefore little ongoing effort made to ensure that Canada has properly implemented international law. Robert Currie’s contribution examines the customary principle of territorial jurisdiction and application of the Libman case.13 This case, originally decided by the Supreme Court of Canada in 1985, formulates a “real and substantial connection” test for the exercise of qualified territorial jurisdiction. The two-part test requires a “real and substantial link” and international comity. Currie finds that the application of Libman remains inconsistent and, at times, deeply problematic, especially since “international comity” has not been fully analyzed by Canadian courts. The lack of analysis tends to carry over into recent case law involving Canadian assertions of jurisdiction and blends into legislative and executive confusion over qualified territoriality in many fields, including human trafficking, Internet offences, and the corruption of foreign public officials. For this reason, Currie concludes, Libman “is not being utilized to its full potential.” A like concern is voiced by Christopher Penny, who examines Canada’s implementation of international humanitarian law (ihl), the body of law meant to protect civilians in wartime. Penny notes that while Canadian courts have frequently recognized the applicability of distinct legal principles when assessing issues arising out of conflict situations, this has not necessarily resulted in the detailed

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Is Our House in Order?

application of ihl as a separate and identifiable body of law. Instead, specific provisions of ihl are often applied without explicitly establishing the overall context. As a result, there has been little domestic judicial treatment of the meaning of “armed conflict,” and the precise threshold for the application of ihl by Canadian courts remains unclear. The work of these contributors can be tied to the nature of obligations but also, as Currie and Penny demonstrate, to an attitude of hesitation vis-à-vis international law as law. Dwight Newman’s contribution (chapter 11) emphasizes a more subtle and complex phenomenon, which is the filling of a void in the exercise of jurisdiction with another state’s exercise of jurisdiction. Newman examines Canada’s failure to implement its international law commitments in the context of obligations to prohibit the corruption of foreign public officials, detailing how despite the oecd Convention on Bribery14 and ongoing efforts detailed in the relevant oecd reports on its performance,15 Canada has failed to enforce adequately its Corruption of Foreign Public Officials Act.16 His main claim, however, is concerned not simply with establishing that failure but with examining specific implications in terms of the reach of equivalent U.S. legislation, the Foreign Corrupt Practices Act.17 The fact of Canada’s close economic integration with the United States means that U.S. law has begun to regulate Canadian firms in certain respects by default. International law is implemented by a variety of actors and jurisdictions, diminishing Canada’s sovereignty if Canadians are not prepared to implement its international law commitments. Newman’s work is a reminder of the real consequences of Canadian hesitation vis-à-vis international law. My own work (chapter 7) highlights yet another aspect of implementation, which is that within frameworks that are strongly “synallgmatic,” or contractual, there may be – paradoxically – some benefit to non-compliance or to less-than-ambitious targets as a means of promoting the compliance of others. Simply put, in an environment like the World Trade Organization, where countries exchange trade concessions with each other and, more broadly, with the remainder of the organization’s membership, there is occasional virtue in not fully implementing, and therefore not fully complying with, international law if it underlines a determination that others must implement and comply as well. This is not hard to discern in Canada’s implementation of wto law. We are willing to play, but only to a point, and



Introduction

11

perhaps only to the point that other countries are willing to play at the same time. But if issues of orientation (positive/negative) and intensity (hard/ soft) enter into the implementation of international obligations, another consideration is surely the source of the obligation and clarity embodying its expression. It is worthwhile considering whether the source of the international obligation as either conventional or customary, or its foundation in general principles of law or as articulated by courts and publicists, plays a role, and here there was some evidence that the success of implementation does indeed depend on the success attained at the international level in articulating what that obligation is and how much it reflects deeper values already articulated in Canadian society itself. Here, Margaret Ann Wilkinson’s contribution (chapter 12) illustrates what can happen when the standards for protection in international law and in Canadian law diverge. Wilkinson’s concern is with personal-data protection. In Canada, the Supreme Court has given the right to censor information about identifiable individuals to corporations who hold this information, rather than to the individuals themselves, as required under the international standards to which Canada adheres. I����������������������������������������� t appears impossible for Canada to simultaneously fulfill both sets of obligations fully. Given this impossibility and given the multiplicity of complex information relationships in this area, she maintains that it would seem wise for Canada to develop policy in light of its own understanding of its own information environment and needs, quite apart from reference to any international obligations currently in place, and, eventually, to implement only law that has been fully and dispassionately analyzed from Canada’s own perspective. So not only is the intensity of the international obligation that arises in relation to implementation at issue but also Canadian perceptions of the international obligation’s appropriateness to Canadian conditions. A further issue is the domestic framework into which international law must be received and transformed. In this respect, Armand de Mestral points out (chapter 3) that Canadian courts traditionally have adopted a strongly dualist position whereby domestic law and public international law are viewed as two quite separate legal systems. Inspired by dicta from various decisions of the late chief justice of Canada Bora Laskin, Canadian courts have further confused matters by advancing a test of implementation that can be met only by

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Is Our House in Order?

adoption of the exact text of the treaty. There appears to be scant understanding in the courts that there are many ways of implementing a treaty. The Baker18 and Ahani19 decisions display the dangers of the current understanding. In both cases, representatives of the Department of Justice argued before the courts that the treaties were “unimplemented,” even though the department had previously advised the federal Cabinet that Canadian law was sufficient to ensure full implementation. A further sign of this current understanding is that until the recent decision of the Supreme Court of Canada in R. v. Hape,20 even customary international law was not unequivocally deemed to be part of Canadian law. De Mestral’s contribution defends the thesis that the Canadian vision of the relationship between international and domestic law must be fundamentally revised in order to promote much greater convergence between the two legal orders. This is particularly true, he maintains, given that the implementation of many treaties in the modern era is no longer a “one shot deal.” Instead, “far from being a single, static act, implementation can be a multifaceted, ongoing process.” To achieve this objective, Parliament should play a major role in the ratification, as well as the implementation, of treaties. Once they are duly ratified and implemented, courts, administrative tribunals, and public officials should be under a legal obligation to treat the content of treaties as having the force of law, in a manner appropriate to the content of each treaty. We were in some measure fortunate during the preparation of this volume to sit on the cusp of change. In January 2008 the federal government announced a new policy of tabling yet-to-be-ratified treaties for consideration in the House of Commons.21 While the new policy had been in the works for some time and can be regarded as a welcome sign of democratization in the implementation of international law, the change, as de Mestral points out, goes only so far. It does not promise a statutorily defined role for Parliament in the negotiation of treaties, and it does little to ensure their surveillance afterwards. If anything, it is hard to see how the new policy will amount to any real advantage, given that in the great majority of cases, the international instrument is essentially a “done deal” by the time it is laid before the House. There is, therefore, precious little opportunity for Canadians to have meaningful access to the crafting of international law, which can only generate skepticism – and more hesitation – about the relevance of international law for Canadian law as a whole.



Introduction

13

One solution, as Stéphane Paquin’s contribution (chapter 4) suggests, may be to open the treaty-making process to subnational participation. Canada already has some experience with this option. Paquin’s work compares this experience with the Belgian system of treaty-making and implementation, where federated states have a role of co-decision and where intergovernmental mechanisms are highly institutionalized. His conclusion is that the Belgian system is more effective largely because the subnational units have an important role at every step of the conclusion of a treaty. What sorts of observations can be drawn then from all of the above? Again, our contributors did not reach any consensus on this question. Instead, the particular responses varied from subject to subject. Nevertheless, some common themes are apparent. One is the need for enhanced surveillance and analysis. If modern implementation is more of an ongoing process than a single, extraordinary step, as Armand de Mestral points out, then Canada’s existing institutions must be reconfigured to take this into account. There is, for instance, no systematic review of Canada’s implementation of international law conducted by an independent authority in the same way that, for example, the auditor-general of Canada provides annual reports on management in the civil service. It is conceivable that an independent officer could be created to undertake this and to point to ongoing deficiencies in Canadian implementation. The position would require some careful balancing to ensure that judicial independence is safeguarded and that such supervision does not create what is, in effect, a further tier of judicial review. Under existing law, functions of this type are not entirely unknown. A model might usefully be sought in the example of the federal commissioner for competition, who comments on and renders advice to the government and whose office intervenes in matters relevant to the promotion of competition in Canada, or in that of advocates-general in the European Court of Justice, who provide widely respected opinions on the state of eu law in certain key cases. The officer could not only intervene in ongoing cases before the courts but would also be able to render reports from time to time on specialized topics, to convene and to work with federal and provincial officials to harmonize the national approach to international law, and to convene working groups in order to draft positions on these points.

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Is Our House in Order?

A further realization is that this watchdog function need not be performed by a civil servant but might instead be compiled by the ccil, the Uniform Law Conference of Canada, and other entities (such as the Canadian International Council), which could collaborate on an annual review of Canada and international law. A logical starting point would be treaties in the Canada Treaty Series, which could be subject to annual scrutiny. The function could also include a review of provincial implementation. Over time it could also come to encompass Canada’s implementation (or projected implementation) of obligations contained in treaties listed in the United Nations Treaty System (unts) and to include examination of official statements that purport to accept, qualify, or deny the force of international obligations in Canadian law. Some methodology might also be developed to deal with custom. All of the above could be supplemented with commentaries on recent decisions of note involving international law in Canada. A second theme apparent from these contributions is the need for more – and deeper – democracy, transparency, and accountability in relation to the implementation of international law. Chapter after chapter in this volume details the way in which the making of international law all too often remains in the hands of a powerful executive that is still, in most instances, unaccountable for its actions. Parliament retains only the merest advisory position with respect to foreign affairs, and even here, the existing committee framework appears to be overloaded with more pressing, go-forward business that eclipses the kind of sustained attention necessary to the ongoing application of international law in Canada. At the very least, the prevailing situation appears to call for better and more standardized reporting. It also calls for more legislative resources to be devoted to surveillance and analysis of Canadian implementation. The Joint Standing Committee on Treaties of the Australian Parliament is one possible example. The committee, created in 1996, is empowered to inquire and report on (a) matters arising from treaties and related National Interest Analyses and proposed treaty actions and related Explanatory Statements presented or deemed to be presented to the Parliament; (b) any question relating to a treaty or other international instrument, whether or not negotiated to completion, referred to the committee by either House of Parliament, or the Minister, and



Introduction

15

(c) such other matters as may be referred to the committee by the Minister for Foreign Affairs and on such conditions as the Minister may prescribe. There is a need for greater scrutiny of ongoing implementation in Parliament and elsewhere. If successive Canadian governments are proud to proclaim that “Canada is back as an international actor,”22 then they should be willing to assume the full responsibility of being that actor. In connection with this, a third theme is the need for greater harmonization across Canadian jurisdictions in their approach to international law. Without it, the question of responsibility for the implementation of international law can become lost. Anthony Daimsis’ case study of provincial implementation under the New York Convention hints at the inconsistency that has crept into Canadian law making vis-à-vis international obligations. One could, of course, point to the convention’s federal-state clause to excuse what has happened, but that is not the point. Today, increasingly, a co-ordinated approach is necessary if Canada is to promote itself internationally as a venue of legal certainty. Nor need this mean a single national approach but, rather, one that is standardized and that Canada can confidently represent to the world. A solution suggests itself in the work of the Council of the Federation, which is seeking to achieve the harmonization of national standards in many areas. It is surprising how little attention it has paid to this. The council’s mandate in this direction could be extended. A final observation – and perhaps the most challenging of all – is to effect a change in Canadian attitudes towards international law. As Jaye Ellis perceptively notes, there is at times a diffidence about international law in Canadian practice, something that matures into suspicion and even occasional hostility. When foreign governments and international organizations confront Canadians with evidence of Canadian non-compliance, this often provokes an “us-versus-them” reaction that obscures the reality of the situation. Anyone who has more than a passing knowledge of Canada and international law will be aware of many deficiencies on Canada’s part: the Charter challenges to implementation of the Convention on the Rights of the Child, the continuing non-compliance by Canada with certain decisions of the UN Human Rights Committee, the fact that Canada has lost virtually all the cases it has defended in wto dispute settlement,

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Inclusive Equality

and so forth. The chapters in this volume testify to these shortcomings. Not surprisingly, the resulting attitude towards international law is one of reluctance and wariness. More needs to be done to educate Canadians that international law is theirs, to encourage its use domestically, and to engender a habit of deference to it. The sum of these things will promote both the fullest expression of international law as law and serve as a powerful example of what a country can do. * Please note that the contributions in this volume are current as of the end of 2008. Developments occuring after that time are not reflected.

a n n e x : r e c o m m e n dat i o n s Chios Carmody 1 Parliament’s Standing Committee on International Trade should be tasked with conducting an annual review of Canada’s implementation of its wto commitments through reference to Canada’s most recent Trade Policy Review Mechanism review and the views of Canada’s trading partners. 2 Parliament’s Standing Committee on International Trade should assume a more active role in surveillance over the use of Canada’s rights of action and defence in wto dispute settlement. 3 The federal government should appoint an independent officer responsible to Parliament for receiving, reviewing, and recommending complaints of trade action in the wto and under other trade agreements, which the federal government should depart from only with written justification. Consideration could also be given to investing this officer with the power to receive petitions and, where necessary, to take legal action to enforce Canadian compliance with the w to agreement. Robert Currie 1 The Federal Department of Justice should embark on an in-depth survey on the use of qualified territorial jurisdiction by states around the world, with an eye toward being able to furnish an opinion on the parameters of the customary-law norm. 2 Parliament should consider amending s. 6 of the Criminal Code to incorporate some legislative stance on the exercise of qualified territorial jurisdiction. The structure of such an amendment would

 

have to be carefully thought through so as not to legislate aspects that are best handled by the common law. The proposed section could either attempt to incorporate a non-controversial version of qualified territoriality under international law (as determined by the study suggested in recommendation 1) or perhaps to link the assumption of jurisdiction to customary international law on point, as is done with the definitions of international crimes set out in the Crimes against Humanity and War Crimes Act.23 This could also help to flesh out the “international comity” portion of the Libman test – since it is possible that judges and counsel are shrinking from doing much with “international comity” because no one has any idea what the law is. 3 Parliament should consider legislative means by which to avoid a Larche-type charging situation. The Crown might be prohibited from splitting up the charges in this way, or at least a presumption against it might be built into the Criminal Code. The accused should be able to seek a ruling that foreign conduct is covered off under a Canadian indictment if an extradition request is pending or expected, so as to guard against extradition and having to make a double jeopardy argument in the extradition process. 4 A seminar about jurisdiction, in its international and transnational senses, and application of the Libman criteria, could be incorporated into judicial education conferences. Anthony Daimsis 1 Parliament should set up an effective inter-legislative committee tasked with monitoring and reporting on how Canadian jurisdictions have implemented and adhere to the New York Convention and other treaties. Where the committee finds that Canadian statutes are not in line with Canada’s international obligations under a treaty, it should recommend to these jurisdictions that they amend their laws. 2 Canada may wish to reconsider its treaty-making process both internally and externally. Internally, it may wish to formalize a process of consulting with provinces before ratifying treaties that cover s. 92 matters. 3 Externally, when considering entering into treaties covering s. 92 matters, the federal government may wish to use the more modern form of federal clause24 that would extend Canada’s obligations to those provinces that Canada declares apply the given treaty. For

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Is Our House in Order?

treaties that directly affect trade, such as the New York Convention, this may well prove to be useful. 4 Consideration should be given to resurrecting the habit of tabling proposed legislation before ratifying a treaty and to suggesting that provinces do the same. This method would slow down the treatyimplementing process, but as has been evidenced in other jurisdictions such as the United Kingdom, it would be invaluable in assuring compliance with international obligations owed under treaties. 5 Canada should keep the international community apprised of the status of its treaty obligations by publicizing their true status and application within Canada. In the case of the New York Convention, the uncitral Secretariat expects that such communication periodically be undertaken. Lucie Lamarche 1 In the context of the acknowledged need for an efficient federalprovincial-territorial human rights committee to be active in Canada, governments should consider inviting the participation of municipalities as well. 2 When social service delivery is contracted out to private or community partners, governments should develop a respect-for-human-rights clause as a best practice and ensure that service providers adhere to it. 3 In light of the wide variety of emerging multi-level governance arrangements, both public and private actors should promote a human rights impact assessment methodology that should be embedded in such arrangements. Dwight Newman 1 More thoroughgoing educational efforts should be made concerning the Corruption of Foreign Public Officials Act (cfpoa ) for Canadian prosecutors. 2 Steps should be taken in resource allocation and internal-priority development to encourage pursuing cfpoa prosecutions where warranted and then disseminating information concerning these prosecutions. 3 The federal government should consider the possibility of using confiscation of proceeds of crime to provide resources for cfpoa prosecutions.



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4 The Canadian private sector may have a role in promoting compliance with the cfpoa as well, and resulting recommendations to private sector firms already adopting best practices for compliance with anti-bribery obligations might include publicizing their compliance practices. Stéphane Paquin 1 Canada’s provinces should contemplate giving a more important – if not central – role to the Council of the Federation in order that the council can transform itself into a forum for discussion and coordination concerning the provinces’ international policies 2 The Council of the Federation could also appoint representatives who would negotiate on behalf of the provinces as part of Canada’s representation at international meetings. It would not be unthinkable for the federal government to negotiate an international agreement that would not apply to all provinces. In that case, the results would not create an entirely new precedent. The treaty could equally include asymmetric measures among the provinces. Again, there are previous examples of this sort of agreement. 3 There should be a guarantee on the part of the federal government for provincial participation in Canadian delegations to international negotiations that affect provincial fields of competence. In exchange, the provinces would undertake to ratify federally negotiated treaties within a reasonable time. The limitation of Ottawa’s exercise of powers on this question would allow for a diminution of conflicts. 4 There should be a reciprocal requirement of information, which is critical. The federal government and the provinces should employ the mechanism of federal-provincial sectoral conferences on foreign policy for this purpose. 5 The federal government should recognize the right of provinces to conclude binding international agreements within their fields of competence, with certain limitations. This practice is commonplace in Canada – Quebec has concluded some 550 international agreements – and also abroad. Christopher Penny 1 The federal Department of Justice should encourage greater exposure of the Canadian bar to international humanitarian law

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Is Our House in Order?

(ihl) through formal legal education and specialized seminars, through law schools, and through institutions such as the Canadian Bar Association National Military Law Section and the Canadian Council on International Law. 2 The federal Department of Justice should conduct further ihl training for individuals responsible for immigration and refugee determinations, reflecting the frequency of their current exposure to issues arising from armed conflict. 3 The federal Department of Justice should facilitate greater judicial familiarity with ihl through provision of specialized training in forums such as the National Judicial Institute, ideally involving members of the prosecution, defence, and judiciary of the icty and the ictr (and, in future, the icc) who have already addressed ihl issues. 4 The federal Department of Justice should encourage further academic study of domestic reception of ihl in Canada, in particular the relationship between ihl and the Charter.

notes 1 I would like to thank my colleague Valerie Oosterveld for helping to organize and host the conference on which the chapters in this volume are based; Ryan Brown and Carolyn Janusz for their hard work in the organization of the conference and the preliminary phase of editing; and Radha Subramanian, Caroline De Vit, and Stéphane Paquin for their help in the final editing and translation of this volume. 2 “The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort.” L. Fuller, The Morality of Law (New Haven: Yale University Press 1969) at 106. 3 J. Brunnée & S. Toope, “International Law and Constructivism: Elements of an Interactional Theory of International Law” (2000) Colum. J. Transnat’l L. 19 at 31. 4 An overview of these developments is available through the Synoptic Chart of the Project on International Courts and Tribunals, available online: .



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5 See for instance T. Borzel & T. Risse, “Public-Private Partnerships: Effective and Legitimate Tools of Transnational Governance,” in E. Grande & L.W. Pauly, eds., Complex Sovereignty: Reconstituting Political Authority in the Twenty-First Century (Toronto: University of Toronto Press 2005). 6 New York: Oxford University Press 1990. 7 Cambridge: Harvard University Press 1995. 8 See also R.B. Mitchell, Intentional Oil Pollution at Sea: Environmental Policy and Treaty Compliance (Cambridge: mit Press 1994). At the same time, a number of conferences on international law examined its effectiveness. In 1997, for instance, the title of the American Society of International Law’s Annual Meeting was “Implementation, Compliance and Effectiveness,” and in 2005 the title of the ccil’s own annual meeting was “Legitimacy and Accountability in International Law.” 9 G.V. Ert, Using International Law in Canadian Courts (The Hague: Kluwer International 2002) at 11. 10 J. Harrington, “Redressing the Democratic Deficit in Treaty-Making: Re-Establishing a Role for Parliament” (2005) 50 McGill L.J. 465; see also J. Harrington, “Scrutiny and Approval: The Role for WestministerStyle Parliaments in Treaty-Making” (2006) 55 i.c.l.q. 121. 11 As Armand de Mestral points out later in this volume (chap. 3), for example, it was only in R. v. Hape, [2007] 2 s.c.r.292, 2007 s.c.c. 26, that the Supreme Court of Canada confirmed that customary international law is part of the common law of Canada. 12 10 June 1958, 330 u.n.t.s. 38, Can. t.s. 1986 No. 43, 26 i.l.m. 714 (entered into force 7 June 1959). 13 Libman v. R., [1985] 2 s.c.r. 178. 14 oecd Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997, 37 i.l.m. 1 (entered into force 15 February 1999). 15 See especially oecd Directorate for Financial and Enterprise Affairs, Working Group on Bribery in International Business Transactions, Canada: Phase 2; Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions (25 March 2004) [oecd Phase 2 Report on Canada, 2004]; oecd Directorate for Financial and Enterprise Affairs, Working Group on Bribery in International Business Transactions, Canada: Phase 2; Follow-Up Report on the Implementation of the Phase 2 Recommendations on the Application of the Convention and the 1997

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Recommendation on Combating Bribery of Foreign Public Officials in International Business Transactions (21 June 2006) [oecd Phase 2 Report on Canada, 2006]. 16 Corruption of Foreign Public Officials Act, s.c. 1998, c. 34. 17 Foreign Corrupt Practices Act, 15 u.s.c. §§ 78dd-1 et seq. (1977). 18 Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 s.c.r. 817, 174 d.l.r. (4th) 193. 19 Ahani v. Canada (A.G.) (2002), 58 o.r. (3d) 107, 91 c.r.r. (2d) 145 (c.a.), leave to appeal ref’d [2002] 2 s.c.r. v. 20 See supra, note 11. 21 Foreign Affairs and International Trade Canada, News Release 08/20, “Canada Announces Policy to Table International Treaties in House of Commons” (25 January 2008). 22 In the 2007 Throne Speech the federal government observed that “Rebuilding our capabilities and standing up for our sovereignty have sent a clear message to the world: Canada is back as a credible player on the international stage.” Online: . 23 s.c. 2000, c. 24. 24 Such as Art. 93 of the Vienna Convention on the International Sale of Goods, 11 April 1980, 1489 u.n.t.s. 3, Can. t.s. 1992 No. 2, 19 i.l.m. 671 (entered into force 1 Jan. 1988). The convention entered into force for Canada and all its provinces on 1 May 1992.

part one

General Considerations

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2 Canada’s Implementation of International Law: Why It Matters MICHAEL BYERS

great canadians Canadians have historically excelled at international law-making. In 1948, John Humphrey, a McGill law professor, drafted the Universal Declaration of Human Rights,1 along with French diplomat René Cassin and American first lady Eleanor Roosevelt. Although the Declaration is only a non-binding UN General Assembly resolution, it led to fundamental changes in international affairs. The rights of individuals became recognized within customary international law. Treaties were adopted, and numerous commissions, committees, councils, and special rapporteurs were formed. These developments led in turn to the inclusion of systematic human rights abuses within the UN Security Council’s conception of “threats to international peace and security,” the development of a vibrant international “civil society” made up of grassroots activists and increasingly sophisticated non-governmental organizations, and a widespread recognition that nation-states had lost the authority to treat their citizens as they wished without comment or constraint. It was one of humanity’s greatest accomplishments, and Canada was there from the start. Beginning in 1967, Alan Beesley, a lawyer at the Canadian Department of External Affairs, was centrally involved in negotiating the UN Convention on the Law of the Sea.2 He served as the chair of the drafting committee at the final negotiating conference in Montego Bay, Jamaica, in 1982. The result was “a constitution for the oceans,” which cover 71 percent of Planet Earth. Canada’s interests were particularly well served. We benefit from unclos article 234 – the so-called “Arctic exception” – which allows coastal states

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General Considerations

to enact laws against maritime pollution out to two hundred nautical miles from shore when almost year-round ice creates exceptional navigational hazards. We also benefit from unclos article 76, which allows coastal states to claim exclusive jurisdiction over the resources of “extended continental shelves” provided they can establish – on the basis of scientific data – that the area claimed is a “natural prolongation” of the continental shelf closer inshore. As a result, when Russia, Denmark, Norway, Canada, and the United States race for the oil and gas beneath the Arctic Ocean, their focus is on the scientific mapping needed to support jurisdictional claims under an established legal process, rather than on military posturing. In 1997, then foreign affairs minister Lloyd Axworthy played a pivotal role in the creation of the Ottawa Landmines Convention.3 Five years earlier, grassroots activists and ngos led by Vermontbased Jody Williams had come together to create the International Campaign to Ban Landmines. The coalition, which quickly grew to include more than a thousand groups, sought a multilateral treaty that would prohibit the use and possession of anti-personnel landmines. Such a treaty would, quite literally, enable many millions of innocent people to “walk without fear.” However, since treaties are negotiated and ratified by nation-states, rather than ngos, a governmental “champion” was needed to carry the initiative into the sphere of interstate diplomacy. Axworthy responded by making a landmines convention one of Canada’s principal foreign policy objectives. He used his influence to persuade other countries to join the initiative and in December 1997, hosted a negotiating conference. The Ottawa Landmines Convention – named after the city where the conference was held – was adopted after just three days of meetings. It has since been ratified by 151 countries, with Canada being the first to do so. In 2002, Paul Heinbecker, then Canada’s ambassador to the United Nations, rescued the International Criminal Court (icc). The previous year, George W. Bush had arrived in the White House fiercely opposed to the newly created judicial institution. His administration immediately began pushing the UN Security Council to adopt a resolution providing immunity – on an indefinite basis – for soldiers and diplomats serving in un-authorized missions who are from countries that have not ratified the court’s statute. It seemed likely that the effort would succeed, since there are only fifteen countries on the council, and most of them were either already sceptical



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of the icc or small enough to be susceptible to u.s. pressure; that is, until Heinbecker insisted on being allowed to address them. He pointed out the need to respect the intent of the 160 countries that had drafted the icc statute. He argued that the court’s jurisdiction was well founded in international law, since it was already widely accepted that domestic courts had universal jurisdiction over war crimes and crimes against humanity. He appealed to the members of the council to recognize that the icc was part of a larger, decadeslong effort to humanize international affairs. In response, the Security Council made a small and seemingly meaningless concession. Instead of suspending the jurisdiction of the icc for soldiers and diplomats on an indefinite basis, it did so for one year only, while explicitly envisaging that the suspension would be renewed annually. Most people assumed that Canada had lost, and they seemed to be right when, one year later, the suspension was renewed with almost no debate. But then in April 2004, the photographs of the atrocities committed at Abu Ghraib Prison were published. Shocked by what they had seen, the other members of the council began to turn against the United States on the issue of the icc’s jurisdiction. As the year-long suspension drew to a close, u.s. diplomats frantically consulted the other delegations and then, remarkably, chose not to seek another renewal. Canada, acting on behalf of international justice, had taken on the superpower and won.

b r i n g i n g i n t e r n a t i o n a l l aw h o m e The contributions of these and other Canadians to international law-making have been paralleled by efforts to implement global rules at home. In 1976, Canada was one of the first countries to ratify the Optional Protocol to the International Covenant on Civil and Political Rights.4 In 1977, Sandra Lovelace, a Maliseet woman from New Brunswick, used the mechanism to file a complaint with the UN Human Rights Committee. She alleged that the Canadian government had violated international law when it stripped her of her status and rights under the Indian Act after she married a non-Native man. The Human Rights Committee upheld her complaint, and the Canadian government responded by doing the right thing: amending the Indian Act to make it consistent with international standards. In 1982, the adoption of the Canadian Charter of Rights and Freedoms was heavily influenced by international human rights.

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Indeed, the Charter can be viewed as implementing legislation for the iccpr. Canadian judges have regularly turned to international law when interpreting and applying the Charter, and the resulting jurisprudence has become an important point of reference for courts elsewhere – such as in South Africa. Since national court judgments are themselves a source of international law, a “feedback loop” of sorts is operating here. By bringing international law into Canadian law and interpreting and applying it, we strengthen and develop the rules. Those rules are then relied on by others, who further develop them – before we bring the modified rules back again. In 2000, the Canadian Parliament adopted legislation implementing the Statute of the International Criminal Court5 into domestic law. The Crimes against Humanity and War Crimes Act6 provides Canadian courts with jurisdiction over a wide range of international offences. It goes further than the icc statute by extending jurisdiction retroactively over crimes committed before the court came into existence and by not limiting its jurisdiction to crimes committed by the nationals of, or on the territory of, ratifying countries. As a result, anyone who is present in Canada and alleged to have committed genocide, torture, or another particularly egregious crime anywhere, at any time, can be prosecuted here. The Crimes against Humanity and War Crimes Act is a progressive piece of legislation that applies international law to its fullest possible extent and thus reflects Canada’s leadership role in the field.

s a f e h av e n f o r wa r c r i m i n a l s However, Canada has retreated from that leadership role of late, as the story of Léon Mugesera demonstrates. In 1992, the Rwandan politician made a widely broadcast speech in which he urged ethnic Hutus to stamp out the inyenzi – the Hutu word for cockroaches, used pejoratively to designate Tutsis. Within two years, more than eight hundred thousand Tutsis were dead, and Mugesera had relocated to Quebec City. The Canadian government responded by seeking to deport him to Rwanda. The case went all the way to the Supreme Court of Canada, which held, in December 2005, that there was sufficient evidence of incitement to genocide to permit the deportation. At this point, the Canadian government found itself in a bind. For in 2001 the same court had ruled that two men accused of a triple murder in Seattle could be deported only if u.s. authorities



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promised that they would not be executed. Since Mugesera is wanted for genocide by the now Tutsi-dominated government of Rwanda, he would almost certainly be executed if sent there. Canada asked for an assurance that the death penalty would not be applied, which Rwanda refused to give, and so Mugesera’s expulsion has been put on hold while officials determine whether his life could be in danger in Rwanda. In the meantime, the accused genocidaire lives freely in Canada. Curiously, while the Canadian government was willing to argue that Mugesera had incited genocide when seeking to deport him, it resisted the option of prosecuting him in Canada under the Crimes against Humanity and War Crimes Act. It did so even though any such prosecution would have trumped the deportation proceedings and even though prosecuting Mugesera in Canada is the only option that respects our commitments under both Canadian and international law. There appears to be a desire in Ottawa to avoid the trouble and risk inherent in a high-profile prosecution concerning crimes committed half a world away. As an unnamed Department of Justice employee told the Globe and Mail’s Stephanie Nolen in April 2001, the government preferred the easier route of deportation in dealing with Mugesera and others who face such charges. Unfortunately, Mugesera is only the tip of the iceberg. In September 2007, Rwandan prosecutors requested the extradition of five accused genocide “masterminds” believed to be hiding in Canada – Mugesera among them. The Rwandan prosecutors claimed the five are leading figures “among hundreds of lesser accused war criminals hiding in Canada.”7 That same month, Tom Quiggin, a former intelligence analyst at the International Criminal Tribunal for the former Yugoslavia, as well as at the war crimes units at both the rcmp and the Department of Citizenship and Immigration, told the Canadian Press: “If I were working as a consultant for war criminals, what I would tell them is that Canada is probably the best place to go in terms of avoiding prosecution and in terms of avoiding deportation.”8 Quiggin estimates that the number of suspected “modern” (i.e., post–World War II) war criminals in Canada reaches well into the thousands. Canada is prosecuting Desire Munyaneza in Montreal, but he is an alleged ground-level participant in the genocide, not a “mastermind” like Mugesera. Some will argue that cases against instigators are more difficult to mount than cases against perpetrators, and that

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may well be true. But what kind of signal does this send on Canada’s behalf – and what are the consequences? Will other countries decide to follow our lead by not prosecuting prominent alleged war criminals found on their territory, thus undermining the principle of “complementarity” in the icc statute and, ultimately, the icc itself? Will more war criminals move to Canada to escape the possibility of prosecution or revenge attacks elsewhere? Will international criminal law lose its deterrent effect as those who contemplate committing the most heinous crimes conclude there is little risk of actually being held accountable? For all these reasons, it is time to get serious about using the Crimes against Humanity and War Crimes Act. The problem is not an absence of international law or even a failure to implement but an abysmal lack of political will.

transferring to torture In 1998, I met dozens of torture victims while working with a coalition of human rights groups to have former Chilean president Augusto Pinochet extradited from Britain to Spain. The next year, I moved from Oxford to Duke University, where my new secretary was a former special-forces soldier who had been tortured by a Colombian drug cartel. More recently, I have had the honour of meeting Maher Arar, the Canadian who was wrongfully arrested in the United States in 2002 and taken to Syria, where he was tortured while imprisoned for a year without charge. On each occasion, the first thing that struck me about these people was the deadness in their eyes. Torture – the deliberate infliction of severe pain or suffering – is a despicable and inhumane practice. That is why it is absolutely prohibited by a wide range of treaties. That is why every civilized country has committed itself to preventing torture and punishing it wherever it is found. That is also why whenever we transfer individuals into the custody of another country, we should do what we can to protect against the possibility of their being tortured after they leave our hands. Under the UN Convention against Torture9 and customary international law, countries may never transfer a person to a situation “where there are substantial grounds for believing that he would be tortured.”10 Any country that does so is, under universally accepted rules of “state responsibility,” no less culpable than the country directly engaged in the abuse. The situation is analogous to a country



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that knowingly releases prisoners in a minefield while claiming that their safety is no longer its responsibility. That is why Canadians should hang their heads in shame – for our government has recently exhibited a casual disregard for the rights of prisoners transferred from the hands of Canadian soldiers to the custody of other countries. Canadian soldiers in Afghanistan took their first prisoners in January 2002 and promptly transferred them to u.s. custody. They handed the men over despite the fact that u.s. defence secretary Donald Rumsfeld had publicly refused to convene the “status determination tribunals” required by the Third Geneva Convention to investigate whether individuals captured on the battlefield are “prisoners of war,” a legal term referring to a category of prisoners entitled to special treatment.11 Canada, by choosing to hand over the prisoners in these circumstances, also violated the Third Geneva Convention. But the transfers did not undermine the prohibition on torture, since there was at that time no reason to believe that U.S. forces would mistreat the men. We soon learned better. The photographs from Abu Ghraib were only the first pieces of a growing body of evidence – including a series of leaked legal memoranda that sought to justify torture – that indicated a policy of law-breaking extending all the way up the chain of command. It was in this context that it was reported in September 2005 that Canadian soldiers in Afghanistan had again transferred prisoners to u.s. custody. After that continuing – and now all-the-more illegal – practice became public, Chief of the Defence Staff Rick Hillier signed a “detainee transfer arrangement” with the defence minister of Afghanistan to allow the transfer of prisoners to Afghan custody. Afghanistan promised to treat humanely any individuals received and to allow representatives of the International Committee of the Red Cross (icrc) to visit them. Yet the arrangement lacked basic verification mechanisms, such as the right for Canadian officials to conduct their own visits. In February 2007 the Globe and Mail reported that the Canadian Forces could not account for the location or condition of forty prisoners captured before April 2006 nor of dozens more captured since then.12 Two months later, the same newspaper reported that a number of former prisoners who had been transferred from Canadian to Afghan custody and later released were alleging they had been tortured. Some of the allegations were appalling, but none more so than this: “His tormentors were the Afghan police, he said, but the

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Canadian soldiers who visited him between beatings had surely heard his screams.”13 If there is any basis to this allegation – and I fervently hope there is not – it suggests that Canadian soldiers have not only transferred detainees into a known risk of torture but may have participated actively in the interrogations the alleged torture was intended to aid. The reports led to an uproar in the House of Commons, as the opposition parties demanded an explanation – as well a moratorium on transfers. The Conservative government responded poorly to the criticism, with Prime Minister Harper even suggesting that his critics cared more about the Taliban than they did about Canadian soldiers.14 Harper’s comment revealed either a serious lack of understanding or – ironically – an absence of concern for Canadian soldiers on his own part. For the prohibition on transferring to torture protects our soldiers, since their opponents are more likely to fight to the death rather than surrender if they have reason to believe they will end up being tortured. It facilitates the mission, for protecting human rights is an important factor in winning hearts and minds, and it upholds Canada’s hard-fought reputation as a civilized, law-abiding nation that strives to do good on the world stage. As it happens, just as the torture scandal broke, a case taken by Amnesty International and the British Columbia Civil Liberties Association on the same matter was being heard in Federal Court. In May 2007, under the immediate threat of an injunction against further transfers, Canada and Afghanistan signed a much-improved arrangement that included the right of visit and verification by Canadian officials. Even that improved arrangement soon proved inadequate. In November 2007, the London-based international secretariat of Amnesty International accused Canada of complicity in torture.15 Citing its own on-the-ground research and two reports from the UN secretary general, the most recent from September 2007, it reported that transferred prisoners remained “at substantial risk of torture and other ill-treatment.” It also highlighted the admission by the Department of Foreign Affairs the previous summer that Canadian officials had received at least six first-hand reports of torture. Amnesty International expressed particular concern about Afghanistan’s National Directorate of Security (nds), the secret police who ended up with custody of most of the transferred prisoners. It wrote that it had “received repeated reports of torture and other ill-treatment of



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detainees by the nds from alleged victims and their relatives, as well as a range of organizations including UN agencies.”16 One alleged victim claimed to have been taken to a room in the nds compound in Kandahar where “the walls were covered with blood.”17 There, he was hung from a hook on the ceiling and repeatedly beaten into unconsciousness. As Amnesty International explained, Canada’s reliance on occasional verification visits was misplaced. Monitoring “is a technique to detect torture only after it happens, and cannot substitute for prior precautions that prevent torture from happening in the first place.”18 The organization also criticized Canada for downplaying the number of transfers that occur. It suggested that as many as two hundred prisoners may have been moved from Canadian custody, not including the many immediate transfers that take place during joint Canada-Afghan military operations. It expressed concern that the Canadian government’s investigation into abuse claims earlier that year may have been neither “competent” nor “impartial” and called for a temporary moratorium on transfers while a comprehensive effort was made to reform the Afghan prison system. The Canadian Department of National Defence responded to Amnesty International’s report by stating that “Afghanistan is a sovereign country with a constitution that requires the protection of human rights, and which has the responsibility for detention of Afghans.”19 The response missed the point. Canada is a sovereign country too. We have our own constitutional and international legal responsibilities that are engaged whenever our soldiers act overseas. And we had, until recently, a strong reputation as a humanrights-respecting state.

climate change: our greatest challenge Between September 2006 and September 2007, Planet Earth lost 1.2 million square kilometres of Arctic sea ice. That is an area larger than Ontario. The loss of so much highly reflective ice cover is terrifying. It is the most obvious sign of climate change so far. And by allowing so much more solar energy to be absorbed into the oceans, it will eventually alter currents and weather patterns around the world. The basics of climate change are easy to understand. In the two centuries since industrialization – a geological millisecond – the concentration of carbon dioxide in Earth’s atmosphere has increased by

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35 percent; a third of that increase has come during the last four decades. Like a blanket around the planet, carbon dioxide and other greenhouse gases trap solar heat that would otherwise radiate back into space. As the levels of greenhouse gases rise, the blanket thickens, the lower atmosphere warms up, and the climate changes. The global average temperature has already increased by about 0.6 degrees Celsius over the past two centuries, and the ten hottest years on record have occurred within the past twelve years. Since greenhouse gases remain in the atmosphere for decades, they have an ongoing, cumulative effect. In 2007, the United Nations Intergovernmental Panel on Climate Change – a multinational group of twenty-five hundred scientists – warned that the planet faces “abrupt and irreversible” damage unless greenhouse gas emissions are stabilized by 2015 and then reduced dramatically. Canada is on the frontlines of climate change, with 40 percent of our territory in the Arctic – the region most dramatically affected by climate change so far. We also have the longest coastline of any country and are vulnerable to sea-level rise, especially in the Arctic, the Lower Mainland of British Columbia, and Prince Edward Island. But in terms of our contributions to addressing the threat, we are deserters of the worst kind: well-equipped and able but largely absent from the battlefield. Canadians are the second-largest per capita emitters of greenhouse gases. Our delinquency began with Jean Chrétien’s decision to treat the Kyoto Protocol as a cost-free opportunity for image enhancement. When his government signed the Kyoto Protocol in 1997 and ratified it in 2002, it did so without any plan as to how Canada would meet its obligations.20 For years, the Canadian effort to slow greenhouse gas emissions relied solely on exhortations (the One Tonne Challenge) and minor subsidies. But the exhortations have not worked, and subsidies fail as a public policy device whenever they reward people or companies for what they were likely to do anyway. According to Stephen Harper, Canada is now “headed to be 50 percent above its Kyoto target in 2012.”21 That is 50 percent above a legally binding commitment set out in a major multilateral treaty that Canada solemnly ratified. Of course, Harper is no friend of the Kyoto Protocol either, having once described it as “essentially a socialist scheme to suck money out of wealth-producing nations.”22 He has expressed concerns about burden sharing and free riding and



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argued that market-based measures for curbing emissions would somehow damage the economy. But firefighters do not check tax records before responding to an emergency call, and one purpose of mechanisms such as “cap-and-trade” is to create new opportunities for business. Harper has seized on a reduction in “emissions intensity” as his preferred approach to dealing with climate change. Yet businesses will always seek in self-interest to find more efficient ways of using energy, thereby lowering input costs. Reductions in emissions intensity are part and parcel of normal technological progress and do little to forestall overall increases. This is why the oil companies support the emissions intensity approach; for them, it simply means business as usual. In September 2007, Jeffrey Simpson, Mark Jaccard, and Nic Rivers predicted that Canada’s greenhouse gas emissions are “headed toward being 50 to 100 percent higher in 2050 than they are today.”23 The prime minister showed his true colours at a Commonwealth summit in Kampala, Uganda, in November 2007 when he scuppered a British-led initiative that would have seen developed countries take the lead in reducing emissions. Harper mimicked George W. Bush’s demand – always intended as a deal breaker – that any specific binding targets include developing states. Like Bush, he ignored the fact that developed states have benefitted substantially from two centuries of profligate burning of fossil fuels. In December 2007, representatives from all the UN member states gathered in Bali, Indonesia, to launch the next global effort to stop climate change. The sense of urgency was palpable, with Kevin Rudd, Australia’s new prime minister, explaining that an agreement was necessary because “there is no plan B; there is no other planet any of us can escape to.”24 But the Harper government closed its ears and partnered with the Bush administration to block an agreement that would have bound the world’s wealthiest countries to specific targets for reducing their emissions after 2012 – when the Kyoto Protocol expires. A few days later, I was asked by a British colleague what it felt like to be the citizen of a “rogue state.” It need not be this way. Geography gives Canada the potential to be a leader in wind, solar, hydro, geothermal, wave, and tidal power. It is time to introduce market-based measures to promote conservation, redirect investment, and spur technological change. Royalties on fossil fuel production must be raised – and subsidies for tar sands

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producers terminated – with the money made available by these measures being redirected towards improving public transportation and developing alternative energy sources. The fact that our Kyoto Protocol commitments have been rendered overly ambitious by a decade of inaction is no reason for failing to do our best now. The crisis facing Planet Earth demands that we do all that we can – even if we are starting late. In addition, international legal commitments must not be treated as empty words. Those who believe we should give up on the Kyoto Protocol undervalue the long-term benefits that accrue from a reputation for keeping promises. Those who insist on burden sharing with developing countries overlook the negative impact that our perceived selfishness can have. Canada’s soft-power – our ability to persuade – is at stake across the full range of foreign policy issues.

i n t e r n a t i o n a l l aw a n d n a t i o n a l i d e n t i t y How a country situates itself with regard to international law is both a political and a moral question. It is a decision – often unspoken and maintained over decades or centuries – that is based upon national interests, as well as a people’s conception of the kind of country they want to be. In 1998, Ian Brownlie, who led the legal team acting for the human rights groups in the Pinochet case, used precious minutes to remind the Law Lords that Lord Denning, in the 1978 Trendtex case, had established that customary international law is automatically part of English common law. He did so even though his clients wanted him to engage with the grander issues of universal jurisdiction and jus cogens. Brownlie knew that the Law Lords, especially in the context of a hugely public and politicized case, needed to be reminded that English courts have long taken an expansive view of the reception of international law into domestic law. They have done so for several reasons, including the importance of London as a centre for litigation and arbitration with generous rules concerning jurisdiction and forum conveniens, as well as the considerable influence the British have long exercised over the development of international law. Just think of the historic role played by the British Foreign and State Papers or Oppenheim’s International Law25or McNair’s Law of Treaties.26 An expansive approach to international law has long served the British national interest, since the British have, to a large extent, shaped international law – and profited handsomely from it.



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During the 1990s, I spent five summers at the Max Planck Institute for Comparative Public Law and Public International Law in Heidelberg, Germany. There I was struck by how very important international law and European law are to the current German legal system, and to German politics as a whole. Article 25 of the German Constitution stipulates, “The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.” Similarly, the treaties and institutions of the European Union are just as important to the lives of Germans today as statutes adopted by their own Parliament. The commitment towards international rules and institutions, which began in the immediate aftermath of the Nazis and the Holocaust, was intended to protect against future aggression and extremism. But while this move was encouraged by the United States, France, and Britain, the new approach has become deeply entrenched in German political culture – and to a significant extent, the German psyche. In July 2000, I spent three weeks teaching at the University of Hong Kong. The classroom windows provided a stunning view of one of the world’s largest container ports. I was teaching a course on the World Trade Organization, which Hong Kong had just joined. The government and people of Hong Kong were enthusiastic about the wto, and not just because of their interest in economic prosperity. The wto offered a way of maintaining a strong connection with the West and thus a degree of protection from Beijing – without being overtly political. In the summer of 2005, I taught at the University of Cape Town. The students and faculty were fascinated with international law – and no wonder! International rules and institutions had played a central role in overcoming apartheid, with the prohibition on statedirected racial segregation developing into a peremptory, jus cogens norm. International law – and particularly international human rights – were seized on by the new South African government as a way of anchoring the new multi-racial democracy to a much broader and deeper foundation. The new South African constitution made customary international law automatically part of domestic law. And the South African Constitutional Court has consistently reached for both international and comparative law as it grapples with the challenges of protecting human rights in a diverse society scarred by decades of severe oppression and deliberate fragmentation.

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Between 1999 and 2004, I taught at Duke University in North Carolina and witnessed how the United States moves through cycles of engagement and disengagement with international law. I reminded my students that the u.s. Supreme Court had embraced international law during the early decades of the Republic when the United States was a relatively weak country. I observed that American isolationism could have serious consequences, such as occurred after the Senate refused its “advice and consent” to the ratification of the League of Nations Covenant – a decision that made it impossible for that organisation to succeed. I watched as the so-called “antiinternationalists” – right-wing law professors such as John Yoo and Jack Goldsmith – were appointed to influential positions within the Bush administration, where they provided distorted interpretations of international law that facilitated the atrocities at Abu Ghraib and elsewhere. At the same time, I observed that the Bush administration was selective about international law: opposed to rules and institutions that did not serve its interests but willing to support and even promote the law in some circumstances. I watched Under-Secretary of State John Bolton working to undermine the International Criminal Court while concurrently – and very effectively – drawing various strands of the law of the sea together into the multinational Proliferation Security Initiative.27 I also watched the interests of the United States (or perhaps, only the United States’ perception of its interests) change over time. For instance, the u.s. Navy recently abandoned its decades-long opposition to unclos – leading to the heart-warming spectacle of President Bush asking permission from the Senate to ratify a far-reaching multilateral agreement. What is Canada’s national interest with regard to international law? Does our traditional embrace of international law reflect our interests today? Or is the current hesitancy, ambivalence, or even outright hostility to international rules and institutions more in tune with this country’s needs? Arguably, the increasingly interconnected character of humanity and the concomitant increase in shared opportunities and vulnerabilities strengthens rather than weakens the case for international law. Similarly, the significant costs incurred by the United States as a result of the Bush administration’s willingness to flaunt international rules – in terms of a dramatic loss of “soft power,” as well as the striking near-absence of allied assistance in the occupation and reconstruction of Iraq – would seem to point towards international law as a positive rather than a negative thing.



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But Canada’s recent ambivalence in terms of enforcing international criminal law or upholding the Kyoto Protocol is mirrored by an animosity towards international law in public discourse that, were it not so serious, could be taken as a parody of Bolton and other champions of the increasingly discredited American far right. Take the following passage written by Jonathan Kay of the National Post after William Schabas and I asked the prosecutor of the icc to consider an investigation into possible war crimes associated with the transfer of detainees by Canadian soldiers in Afghanistan: “Until international law became the obsessive focus of academics in the frivolous foreign policy lacuna between the Cold War and 9/11, it was generally taken for granted that wars involved messy moral compromises. This is especially true in a chaotic snake pit-like Afghanistan, where seemingly everyone has blood on their hands … This is fundamentally a humanitarian war we’re fighting. And humanitarian calculus is about arithmetic, not bright-line rules.”28 I wish that Kay had spoken with some of the dozens of soldiers who I have taught over the years – in Britain, the United States, Israel, and Canada. For all of them would disagree with him. Any possible short-term benefits of ignoring the rules concerning the treatment of prisoners is outweighed by the likely long-term costs in terms of what might happen to our own soldiers if they are captured and to their efforts to maintain the moral high ground and thus win hearts and minds. The same, I believe, applies to Canada’s approach to international law more generally. Canada, as a potentially influential and historically progressive power, has much more to benefit from embracing international law – both abroad and at home – than from standing off from it. Our national interest is best served by policies of cooperation rather than conflict, by trust rather than fear. As a successful trading nation with large diasporas, no civil conflicts, and an enviable set of diplomatic levers – including, most notably, our membership in the g8 – embracing the international community makes much more sense that shunning it. No less significantly, it cannot be in our national interest to follow in the footsteps of a widely discredited u.s. administration that has now run its course. And yes, more than our national interest is at stake. As my mentor Philip Allott has explained, law is how a society seeks to control its future. It is an act of self-definition, an expression of what we are – and what we wish to be. At the extremes, there are two images that

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set out the choice before Canada today: a hooded man standing on a box, with electrical wires dangling from his outstretched hands, or soldiers in blue helmets using a careful balance of diplomacy and military capability to bring peace to the world.

notes 1 g.a. Res. 217A (iii), u.n. Doc a/810 at 71 (1948). 2 10 December 1982, 1833 u.n.t.s. 396, 21 i.l.m. 1261 (entered into force 16 November 1994, accession by Canada 7 December 2003) [unclos ]. 3 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 3 December 1997, 2056 u.n.t.s. 211, Can. t.s. 1999 No. 4 (entered into force 1 March 1999). 4 23 March 1976, 999 u.n.t.s. 171, Can. t.s. 1976 No. 47 [iccpr ]. The First Optional Protocol creates an individual-complaints mechanism whereby individuals can submit complaints concerning human rights abuses to the UN Human Rights Committee (a treaty-based body that should not be confused with the Human Rights Council, formerly the Human Rights Commission). 5 Rome Statute of the International Criminal Court, 18 December 1999, 2187 u.n.t.s. 90, Can. t.s. 2002 No. 13, 37 i.l.m. 1002 (entered into force 1 July 2002). 6 s.c. 2000, c. 24. 7 “Rwanda urges Canada to Extradite Genocide Masterminds” cbc News (31 August 2007), online . 8 “Canada a Haven for Fleeing War Criminals: Source” ctv News (2 September 2007), online: . 9 1465 u.n.t.s. 85, Can. t.s. 1987 No. 36 (entered into force 26 June 1987). 10 See ibid., Art. 3.1. 11 Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 u.n.t.s. 135, Can t.s. 1965 No. 20 (entered into force 21 October 1950). Article 5 of the Convention provides in part that “[s] hould any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories [of prisoner of war defined by the Convention], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal” (emphasis added). 12 P. Koring, “A Third Probe for Afghan Abuse Claims – Case Could Lead to Wider Review of Detainee Policy” Globe and Mail (10 February 2007) A20.



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13 Graeme Smith, “From Canadian Custody into Cruel Hands – Savage Beatings, Electrocution, Whipping and Extreme Cold: Detainees Detail a Litany of Abuses by Afghan Authorities” Globe and Mail (23 April 2007) a1. 14 P. Koring, “Ottawa Denies Allegation of Cover-Up, Controversial References Blacked Out ‘to protect the government from embarrassment,’ ndp Charges” Globe and Mail, (26 April 2007) A18. 15 P. Koring, “Halt Detainee Transfers Now, Canada Urged” Globe and Mail (13 November 2007) a23. 16 Amnesty International, Afghanistan: Detainees Transferred to Torture; isaf Complicity? asa 11/015/2007 (13 November 2007). 17 Ibid. 18 Ibid. 19 M. Byers, “Transfer of Detainees is Complicity in Torture” Toronto Star (14 November 2007) 8. 20 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, U.N. Doc. fccc/cp/1997/7/Add.1, 37 i.l.m. 22 (entered into force 16 February 2005). 21 Interview with the Rt Hon. Stephen Harper, as reported on ctv Question Period (12 January 2007). 22 See “Harper’s Letter Dismisses Kyoto as ‘Socialist Scheme’” cbc News (30 January 2007). 23 M. Byers, “Climate Change: How Much Does Canada Care?” review of J. Simpson et al., Hot Air: Meeting Canada’s Climate Change Challenge, Globe and Mail (29 September 2007) d8. 24 M. Byers, “From Rogue Nation to World Leader” Toronto Star (1 January 2008) 6. 25 L. Oppenheim, Oppenheim’s International Law, 9th ed. by Sir R. Jennings and Sir A. Watts (Harlow: Longman 1992). 26 A.D. McNair, The Law of Treaties (Oxford: Clarendon Press 1961). 27 The Proliferation Security Initiative (psi) is an international effort led by the United States to prevent transfers of banned weapons and weapons technology. The psi consists of fifteen core countries, which include the United States, Russia, Japan, France, Germany, the United Kingdom, and Canada. A further sixty countries have agreed to cooperate on an ad hoc basis. The PSI was developed after fifteen Scud missiles found on a North Korean freighter had to be released when it became apparent that international law did not allow them to be confiscated. 28 J. Kay, “Jonathan Kay on Afghan Prisoner Torture Allegations: ‘This is a war, not a grad seminar’” National Post (30 April 2007).

3 The Relationship of International and Domestic Law as Understood in Canada ARMAND DE MESTRAL

introduction: h av e w e g o t i t r i g h t i n c a n a da ? Canadians generally consider themselves to be good international citizens. They support the United Nations and most multilateral organizations. Canada is the host to a major UN specialized agency, the International Civil Aviation Organization (icao), and to specialized international secretariats, not to mention a large number of ngos. Canadians are proud of the role that their government has played in many international law-making initiatives, whether it be in the Third United Nations Conference on the Law of the Sea,1 in the Kyoto Protocol2 negotiations or in the negotiation of the Ottawa Landmines Convention.3 Canadians are also proud of its record on international human rights and, with a few notable exceptions, the government of Canada strongly supports and has ratified most major international conventions in this field, beginning with the United Nations Covenant on Civil and Political Rights4 and the United Nations Covenant on Economic and Social Rights.5 Despite the complexities of the division of powers under Canadian federalism, Canada has signed and ratified a host of international treaties. Canadians are probably aware that in recent years the Supreme Court of Canada and a number of other senior tribunals have begun to hear arguments and to respond to pleas based on public international law.6 This has been particularly true of cases involving the Canadian Charter of Rights and Freedoms,7 but it is also true of cases in a



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number of other fields such as international trade law and environmental law. While UN peace making causes concern to many Canadians, Canada has a proud record of initiating and supporting United Nations peace-keeping efforts since 1956. In short, Canadians see themselves as supporters of many efforts at international lawmaking and support the creation of an international order based on international law. This being the case, most Canadians would be surprised to learn that public international law enjoys a rather tenuous place in the Canadian domestic legal order. As recently as 2002, two leading scholars expressed the concern that recent decisions of Canadian courts left some doubt whether the rules of customary international law were in fact fully recognized as part of the law of Canada, despite assertions of the principle in the United Kingdom and in Canadian public law cases for over two and a half centuries.8 The legal effect of treaties in Canadian domestic law is the source of even greater uncertainty. Canadian courts have long been reluctant to accord any legal status to a duly ratified treaty binding on Canada under international law. This reluctance has been justified by the assertion that the executive power can make no law – an intriguing assertion in the face of the vast range of powers of the executive in the modern state, a phenomenon decried by Lord Hewart9 and detailed in the 1975 Anisman study10 describing the existence of many thousands of discretionary powers of the federal executive. It is further asserted that giving effect to treaties in Canadian law would be undemocratic, in that Parliament plays no role in treaty-making. This, too, is curious, as nothing prevents Parliament from studying and approving treaties before Canada is bound to them; it was in fact once the practice in Canada, and the constitutions of many democratic states actually require just such a process by their legislatures.11 It is also said that treaties must be implemented to have any effect in Canadian law. There is little doubt that justice departments across Canada diligently attempt to implement treaties before they are ratified by the federal government. This would appear to be the almost universal practice.12 The problem is that no less than thirteen forms of implementation are being used with treaties.13 This, in turn, creates a considerable degree of confusion, possibly leading representatives of attorneys general to take contradictory positions before the courts. Thus, the federal attorney general, having assured the federal Cabinet that Canadian law supported the ratification of the United

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Nations Covenant on Civil and Political Rights and the Convention on the Rights of the Child, has subsequently taken the position in the Baker and Ahani14 cases that these very important conventions were “unimplemented” in Canadian law and thus of no legal weight. The Supreme Court of Canada has accepted these assertions rather uncritically and developed a doctrine of the “unimplemented treaty” that tends to suggest that virtually no treaty has legal effect in Canada except double-taxation treaties that faithfully reproduce every word of the treaty in the statute. The unimplemented-treaty doctrine appears to embrace even treaties whose implementing legislation explicitly states that the purpose of the law is to implement a particular treaty.15 The result of all this is that Canada, professing to be bound by principles based on parliamentary supremacy and representative democracy derived from British public law, is currently adopting approaches that would be deemed somewhat anomalous before the courts of Great Britain. Canadian approaches to the status of treaties would seem not only totally inappropriate in a monist state, where international law is deemed to be part of domestic law, but would also be deemed inappropriate in many democracies where constitutional texts and constitutional principles accord much greater weight to ratified treaties than is done in Canada. By way of explanation, it may be asserted that the situation in Canada results from the fact that our constitutional texts contain only the most fragmentary references to international law.16 This is true, and there is little doubt that a strong constitutional mandate to give greater legal effect to international law would be taken seriously by the judiciary. However, it is by choice that successive federal governments since 1968 have deliberately deprived Parliament of any role in approving even the most major treaties – with the glaring exceptions of nafta in 1994 and the Kyoto Protocol in 2002. This, and the positions taken by the federal attorney general, must surely add to the reluctance of judges to accord legal weight to international treaties. In the view of this writer, the current situation is unacceptable. It flies in the face of Canada’s international obligation to ensure good faith observance of the international treaties that it ratifies.17 It also reflects a state of considerable incoherence, in that courts have difficulty in resolving legal issues involving international law on a caseby-case basis, since they are currently faced with a vastly increased



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number of pleas based on international law. The Charter of Rights and Freedoms has been an extraordinary catalyst for many pleas in human-rights cases based on treaties or customary international law, but international trade and international environmental law have also given rise to increased demands on the courts to rule on issues of international law.18 The solution surely lies in promoting a greater degree of acceptance of international law as part of Canadian law. Most representative democracies to which Canada compares itself and to which Canadian courts look to make section 1 comparisons under the Charter, have gone much further towards according customary and treaty law a place in their domestic legal orders.19 There are no doubt difficulties in the way of further recognition of the legal force of the principles of customary and treaty law in Canada, but these difficulties can surely be overcome. The current situation is anomalous and in many ways unfortunate. It certainly is deeply out of step with the self-image of Canadians as citizens of a country that supports the rule of international law. Surely Canadian judges should see themselves as charged with the duty of enforcing international law as well as domestic law. The rule of law does not stop at the border. Parliament should play a much greater role in authorizing major international treaty negotiations and in approving the outcomes of these negotiations. Democratic controls should also not stop at the border. International treaty law is law. It is binding on Canada. How is it that a treaty can be binding on Canada but can be deemed to have virtually no force and effect in the Canadian legal order? The legal relationships of most Canadians do not stop at the border. Surely it is time that the domestic legal order be adjusted to reflect this contemporary reality.

c u s t o m a r y i n t e r n a t i o n a l l aw : w h a t i s i t s p l a c e i n c a n a d i a n l aw ? As early as the eighteenth century, many important decisions asserted the principle that “international law is part of the Law of England.”20 The courts of the United Kingdom continue to maintain this position.21 This principle was taken up by American courts and made more explicit with respect to treaties in the Charming Betsy decision.22 Many Canadian decisions before and after Confederation can be cited to the same effect. They have come to be understood as focusing essentially on customary international law. In cases such as

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the Foreign Legations Reference23 and the Frazer Brace24 decision, the Supreme Court of Canada was understood to be asserting the principle, but in recent years, in part owing to broad references to comity rather than customary international law or the notable absence of a customary foundation to certain important conclusions in the Quebec Secession Reference,25 some scholars began to be concerned that the Supreme Court was moving away from the principle.26 One concern of the courts may have been that the Canadian provinces are perceived as being unable to influence the development of customary international law and in need of shielding from negative developments. This is speculation, but if there is truth to the suggestion, the concern was surely founded on the false premise that it is possible to shield a province from the effects of a rule of customary international law, which is analogous to the false premise that it would be possible to immunize the federal government from it. The fact remains that custom is by its very nature based on state practice, reflecting a sense of obligation that can be confirmed by a host of public and private acts. Once it is ascertained that a given rule amounts to a norm of customary international law, courts are under the obligation to give it the same effect as that which Is routinely conferred on a rule of common law.27 Whatever the source or the nature of the concern, if indeed the concern ever existed, the decision of the Supreme Court of Canada in R. v. Hape28 has gone a long way to dissipate the uncertainty that may have clouded the issue. In that decision LeBel J., writing for the Court, appears to have explicitly set aside any uncertainty that may have existed and reaffirmed the long-standing rule that international customary law is part of Canadian law and hence can be pleaded before the courts and is enforceable in Canada.29 This assertion of the principle is as timely as it is welcome. As long as Canadian law views domestic and international law as two separate legal systems with respect to international treaty law, it is imperative that customary international law be pleaded in situations where an individual’s rights have been left in limbo by the neglect or the refusal of the government or the legislator to ratify a treaty or to implement it properly. The Hape decision is certainly welcome. However, it may not have resolved all issues concerning the status of customary international law in Canada. The most serious difficulty remains that of proof of international custom. Every national court has to ascertain custom for itself without the aid of an authoritative judicial decision maker.



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One must sympathize with any Canadian judge faced with conflicting claims concerning the process of determination of the substance of international custom in a particular case. This is true because the determination of the existence of a custom is inherently more difficult than the process of ascertaining a legal rule that has been consigned to a written text in the form of a treaty. In this process, much is left to chance and the resources of advocates on either side. Judges are given scant assistance from the resources of the court. Canada has never envisaged the appointment of advocates general to assist the courts, and public officials seem to be increasingly unwilling to intervene with a clear statement of their view of the law. There is no tradition, as in some European states, of calling on leading research organizations to provide an impartial review of authorities and offer an opinion as to the state of the law. For all these reasons, while one must be extremely grateful to the Supreme Court of Canada for its leadership in this matter, there is still the possibility that judges will shy away from their duty to apply customary international law. Clear legislative guidance as to the place of international custom and the means required to prove it would thus be very welcome.

t r e a t y l aw : s o u r c e s o f c o n f u s i o n Introduction If the situation with respect to customary international law in Canada’s normative hierarchy has become clearer, the same cannot be said of bilateral and multilateral international treaties that Canada may wish to negotiate, sign, ratify, and implement in Canadian law. As set out below, a number of factors, both old and new, seem to militate against the adoption of a relationship between domestic and international law that would be more in tune with the importance of international law in a globalized world. This is not to say that serious efforts are not made to implement international treaties that Canada ratifies. Indeed, the exigencies of our federal system since the Labour Conventions Case30 have made it imperative that a judgment be made by the attorney general as to the division of legislative powers in relation to any treaty before it can be ratified. Serious consideration is always given within the federal Department of Justice, and often provincial departments, both as to the competent legislative authority as well as to the means of implementation, before a treaty

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is ratified and made binding upon Canada. Sadly, this fact does not seem to have been made plain to the courts in all cases, and serious ambiguities exist concerning the process of implementation and its significance in domestic and international law. Too Much Executive Power The conduct of international relations is an executive function involving the maintenance of relations with other states and with international organizations, as well as the conduct of negotiations on a host of issues by the executive. In some states, the executive enjoys virtually complete discretion as to how it conducts international relations, but in many countries, concern for the rule of law and the maintenance of democratic legitimacy have led to a considerable role for the elected representatives in their respective legislative assemblies. This is true of virtually all European countries, as well as the European Union. In addition, it is also true and reflected in recent decisions in Australia and New Zealand, and it has always been a feature of political life in the United States in the sense that the u.s. Congress plays an important role in international affairs, with the possible and sometimes unfortunate exception of national defense. In a great many democratic states, the constitution requires that the legislature must approve a treaty before it becomes binding on the state. This is not the case in Canada. Since 1968, virtually no important international treaties have been submitted to Parliament for approval. Even the practice of tabling treaties and exchanges of letters in the House of Commons and allowing a brief explanation at the end of the day by a parliamentary secretary has fallen into abeyance. Before 1968 it was the practice of successive governments to seek the views of Parliament and to hold a debate in the House of Commons before deciding to approve international treaties. Indeed Prime Minister Mackenzie King acknowledged as early as 1926 that the ratification of a treaty is an executive function but that the government should nevertheless not bind Parliament to an international obligation without its knowledge.31 This practice had developed during the interwar years, when Canada was affirming its position as a full member of the international community. It continued until about 1968, after which it was sharply curtailed for reasons that were never fully made plain.32



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In recent years, when they were questioned about the practice, successive ministers of foreign affairs have asserted that the conduct of international affairs is essentially an executive function and that it would be inappropriate for Parliament to be consulted on such matters. According to this view, it would be still less appropriate for Parliament to be asked to grant a negotiating mandate or to oversee the conduct of particular negotiations. The result, with a few notable exceptions, such as nafta, the Kyoto Protocol, or the Third United Nations Conference on the Law of the Sea, has been to leave the conduct of Canada’s international relations entirely in the hands of the executive branch of government. Parliament has been deliberately excluded, and arguably the courts have been strongly influenced by this fact. It would seem that the absence of parliamentary controls has reinforced the view of the courts that international treaties relate essentially to the executive power and have scant legal significance, unless explicitly transposed into domestic law by a Canadian statute. For this reason, treaties appear to have become, in the eyes of the courts, mere negotiating and policy documents, having little legal weight in domestic law. Analysis of Canadian jurisprudence has led one Canadian commentator to suggest that treaties should be treated like foreign or comparative legal sources having persuasive force but having no true legal weight.33 This view is difficult to justify in face of the Vienna Convention on the Law of Treaties,34 which is binding on Canada but whose legal significance in Canadian law has seldom, if ever, been discussed by the courts. To sum up, in Canada decisions relating to the negotiation and eventual ratification of treaties have been left almost exclusively to the executive power. This, in turn, has contributed to the view, enunciated most explicitly by Wilson and Iacobucci JJ., that treaties are of no force and effect in Canadian law. Not Enough Parliamentary Authority If the executive has too much power in respect of treaty-making and ratification, Parliament has too little. At a time when the Parliament of Great Britain, as well as those of Australia and New Zealand,35 has been called on to play a much greater role in the oversight of foreign affairs of their respective countries, the Parliament of Canada is virtually without a voice in this sphere. At a time when domestic legislation on a host of matters, both federal and provincial, is

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conditioned by or finds its source in international treaties, the Canadian position is increasingly anomalous. If only as a matter of efficacy, it would seem unwise to remove Parliament from any role in approving a mandate to negotiate major international treaties that are subsequently presented to Parliament as a fait accompli, where there is virtually no policy option left but to do what the treaty says. In most cases, the policies inherent in treaties are perfectly reasonable and defensible and are in the Canadian interest, but it is surely inappropriate for the Parliament of a great country to be treated as a rubber stamp. This situation contributes to the sentiment of the powerlessness of Parliament, and it may also contribute to the absence of democratic legitimacy of the laws that are adopted pursuant to treaties and the decisions of major international organizations. In the United States, the Senate must approve treaties by a twothirds majority, after which these instruments are accorded the force of law. Congress also exercises oversight of many areas of international treaty-making. A particularly good example is the granting by Congress of a mandate to open negotiations for a trade treaty, frequently with strict negotiating guidelines and completed only when Congress approves the treaty resulting from the negotiations. In a great number of democratic countries the constitution calls for parliamentary approval of all major treaties and states that the decision by the legislature to approve a treaty has the effect of giving the treaty the force of law in the domestic legal order. The eu has tried very hard to respond to the charge of the absence of democratic legitimacy of an institution dominated by states in the form of the European Council and a technocratic European Commission. It has done so by expanding the powers of the European Parliament. Nowhere is this more striking than in the field of treaty approval, where the European Parliament now participates extensively in the decision to approve broad categories of treaties made by the commission before they can be binding and have legal affect in eu law. Compared with these developments, the work of the Joint Committee of the Senate and the House of Commons on Foreign Affairs – however useful it may be – pales in significance. The Joint Committee is simply not given the kind of role that would allow Parliament to be regarded as the final decision maker in treatymaking. It is submitted that until Parliament is given this role, the legal status of treaties in the domestic legal order will continue to be diminished.





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The Constitution of Canada: Vague or Silent

With the exceptions of s. 132 of the original Constitution Act 1867 and s. 11(g) of the Charter,36 the Constitution of Canada makes no explicit mention of international law or international treaties. It is not clear that the Imperial draftsmen gave much thought to this, but if they did, the expectation in 1867 was that the United Kingdom would continue to act for the new Dominion in foreign affairs and international trade. The concept of an “Empire Treaty” is virtually spent and has not proven sufficient to found any expansion of the federal treaty power. Section 11(g) of the Charter has an important impact on jurisdiction, but in an extremely specific area. The Privy Council appeared to drive the point home when it stated in the Labour Conventions case that “there is no treaty power as such.”37 Attempts by Chief Justices Laskin and Dickson to base the treaty power on the peace, order, and good government power of the Constitution Act s. 9138 appear to have come to naught, for reasons discussed below. Since the conduct of foreign affairs has long been a bone of contention between Ottawa and Quebec, clarification of the treaty power by way of constitutional amendment, or even legislation or formal federal-provincial agreement, has never been high on the constitutional reform agenda. The result of all this has been both a political and a legal stalemate. It has been impossible to adopt a more explicit provision dealing with the place of either customary or treaty law in the Canadian Constitution. Arguably this has made the courts more cautious than they might have been otherwise. Courts have had to seek guidance by falling back on the history and structure of Canada’s public law roots in the legal culture of the United Kingdom or on reasoning based on the nature of the executive and the legislative powers and their relationship under the Canadian federal system. The result has been a rather conservative approach on the part of the judiciary to issues of principle. On the rare occasions when the courts have tried to strike out in new directions, as did Laskin c.j.c. in the Vapor Canada case, it was with respect to issues of federalism and not with respect to the place of international law per se.39 Having said this, one must recognize the very considerable efforts of the judiciary, led by the Supreme Court of Canada, in the last fifteen years. The courts, under increasing pressure from litigants, have risen to many challenges, particularly in the field of human rights.

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Much room has been created by the courts for greater recourse to international treaties as an adjunct to statutory interpretation.40 Many creative leads have been offered with respect to the presumption of conformity with international law.41 For instance, the Suresh v. Canada decision, although ultimately, and unfortunately, decided on constitutional and administrative law grounds, contains a truly remarkable discussion of the interpretation of three treaties binding on Canada, customary international law and jus cogens.42 Canadian courts are rising to the occasion, but they have not been given adequate tools to do the job. How much easier would it be if the Constitution of Canada, like many other constitutions, contained an explicit mandate to give international treaties the force of law?43 What Is Implementation? Considerable confusion appears to surround the issue of implementation. Under the Vienna Convention on the Law of Treaties every state has an obligation to perform its obligations under a treaty in good faith. Ratification of the treaty is the intergovernmental act by which one state commits itself under international law to other treaty partners. The decision to ratify implies that the state has already taken the requisite domestic steps to implement the treaty in its domestic legal order. Performance of obligations through implementation takes different forms as dictated by the nature of the treaty. Frequently a treaty will involve political commitments that can be met by purely administrative actions. Similarly, in many cases a treaty can be performed by governmental action alone. But in many cases involving law making or the construction of complex cooperative regulatory schemes, it is necessary to perform the obligations of the treaty by recourse to legislation. This is particularly true when no legislation on a matter already exists or where legislative powers are incomplete in the face of the regulatory scheme that has to be created and maintained over time. When this is the case, several options are open to a state, which under international law enjoys wide discretion as to how it chooses to incorporate the obligations of the treaty into its domestic law. In some states, such as the United States for treaties ratified by the Senate44 or directly effective treaty provisions in the eu, the treaty may be given the full force of law and be invoked by citizens before the courts.45 In other states, a treaty may be given a status equivalent to other domestic statutes, as



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is the case in France and Mexico.46 In these cases little or no legislation may be required. In Canada, where no constitutional provision regulates the status of treaties or governs the process of implementation, the government has a wide variety of options with respect to implementation. There is no doubt that the issue of implementation is taken very seriously by the respective attorneys general in advance of the decision to ratify a treaty. Frequently the process of analysis of a treaty, accompanied by complex federal–provincial negotiations, will proceed for many months, and in some cases many years, before a decision is reached to ratify.47 While it is clear that the process of implementation is taken very seriously in Canada, it is by no means always clear why a particular method of implementation has been chosen. Furthermore, there is no public and official record of the methods chosen that is available to assist the courts in understanding what has been done. This author has enumerated at least thirteen different modes of implementation that characterize Canadian treaty implementation.48 These methods vary from the complete incorporation of the exact language of the treaty, incorporation by reference of certain provisions, the adoption of an implementing statute that uses quite different language from that of the treaty, the use of existing regulatory powers to adopt implementing regulations, and, perhaps the least understood, the use of existing legislation or constitutional provisions to ensure implementation. Finally, many treaties can be implemented under existing administrative or prerogative powers. Implementation is thus a complex matter, and it is important to stress that implementation is not necessarily done by a single legislative act. It may require legislation, new or existing, and regulatory measures taken from time to time; ongoing administrative and ministerial action is also often required. Equally significant may be the role of administrative tribunals and the courts that are called on to act in conformity with a treaty. Thus, far from being a single, static act, implementation can be a multi-faceted and ongoing phenomenon. This gamut of approaches creates some uncertainty for many observers. At a time when Canada is bound by a very large number of treaties, the result has been considerable confusion on the part of the courts about the very nature of the process of implementation and its significance in international and domestic law. In the Baker case the Supreme Court of Canada adopted the concept of the “unimplemented” treaty, which, when applied logically, embraces virtually all

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Canadian treaties.49 Sadly, this was done with respect to one of the most widely ratified treaties50 in modern history and one whose implementation had been studied for many years by federal and provincial attorneys general, who came to the conclusion that Canadian constitutional principle and existing legislation fully supported the requirements of the Convention on the Rights of the Child and permitted Canada to ratify without the adoption of any new legislation. Unfortunately, this fact was not adequately put before the courts in the Baker case by the federal attorney general, perhaps because his representatives took the position that the convention was unimplemented and hence not legally binding on the minister of justice in an immigration proceeding. Until the courts accept that there are many legitimate modes of implementation, this state of confusion will persist and will reinforce the idea that treaties have no legal force in domestic law unless they have been textually incorporated by some kind of extraordinary legislative act. This is a most unfortunate situation at a time when Canada is legally bound by an unprecedented number of treaties and when the ties between international and domestic law need to be strengthened. Legislative Jurisdiction to Implement Treaties: Chief Justice Laskin’s Objectives In the Vapor Canada case,51 Laskin c.j.c., when faced with a request to validate federal legislation purportedly implementing an international convention on trademarks, began by making the traditional statement that a treaty could have legal effect in Canadian law only if it were properly implemented by a legislative act. He then proceeded to state, in a significant obiter dictum, that he would be fully prepared to accept that any law that explicitly stated that its purpose was to implement an international treaty could be validly adopted by Parliament under the peace, order, and good government power of s. 91 of the Constitution Act 1867. This constituted a significant departure from the received wisdom of Labour Conventions, which Laskin C.J.C., like many other constitutional lawyers of his generation, considered to be an unwarranted limitation on federal authority over international relations. Some years later, in Schneider,52 Dickson C.J.C. repeated the same statement, also obiter dictum, but subsequently the Supreme Court of Canada appears to have abandoned this position, and the obiter has never found itself worked



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into a dispositive ruling. What has been picked up and frequently repeated is Laskin C.J.C.’s original premise, of the requirement of the necessity of implementation by express legislative provision. Such is Laskin C.J.C.’s authority that Canadian courts have refrained from questioning the premise, nor have they yet sought to adopt a more nuanced understanding of its effects when applied literally. Laskin C.J.C. was not really interested in treaty implementation from the perspective of the respect for international law; rather, his concern was to enhance federal legislative jurisdiction. Canadian courts have refused to follow his lead on the peace, order, and good government power but have continued to hew to his first premise, thus providing a remarkable example of the theory of unintended consequences. In this way Laskin C.J.C. appears to have contributed to the confusion in Canada concerning implementation of treaties by overstressing the distance between domestic and international law. Uncertainty as to the Mode of Implementation One obvious difficulty concerning implementation of treaties is the absence of any official record concerning the mode of implementation adopted for each treaty. Arguably, it would be much easier for the courts to determine the legal consequences were they able to consult an official document indicating exactly how a treaty has been implemented. It is in fact the practice of the federal Department of Justice to give implementation anxious consideration at the same time as an analysis is made of the legislative jurisdiction to implement. It is quite mistaken to think that this matter is glossed over by law officers of the Crown. What they rather fail to do, in most cases, is to inform posterity as to the mode of implementation. Occasionally, there is a record, in particular with respect to trade treaties such as nafta, where, following the practice in the United States, the Department of Foreign Affairs and International Trade issues a lengthy statement known as the Canadian Statement on Implementation at the time of ratification to show that the treaty was fully implemented.53 In the field of human rights, the reports required to be furnished by the states parties to the conventions often provide a useful post facto indication of how the convention is being implemented. But this is seldom the case, and courts are left to fend for themselves in most instances or, as in the Ahani case, are left to rely on the pleadings of the Crown, which may well have an interest

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in characterizing a treaty as unimplemented, so as not to be held to be bound to respect it in administrative decision making. As pointed out above, implementation is often an ongoing phenomenon and not a one-time affair. Treaties may be implemented by a law, new or existing, regulatory action, or ongoing administrative implementation, as well as by the actions of administrative tribunals and courts. A public record of the various steps taken to ensure full implementation of a treaty would be a valuable contribution that the Departments of Foreign Affairs and Justice could usefully make. Implementation: The Impossible Test? As pointed out above, the result of all this is the highly unfortunate doctrine of the “unimplemented” treaty, recently propounded by the Supreme Court of Canada in the Baker case. The principle is perfectly appropriate. A treaty that is not implemented cannot have legal force in domestic law. The problem is in the application of the principle. Applied as presented in the Baker and Ahani cases, virtually no treaty has been implemented in Canada. Even treaties that state explicitly that their object is to implement a particular treaty54 do not make the cut, as was shown in the National Corn Growers case, where the Supreme Court of Canada, though ready to use the treaty as an aid to interpretation, clearly preferred not to stray too far from the implementing statute, and the dissenters refused even to go that far.55 Apart from double tax treaties, which are taken verbatim as the language of the statute, it does not seem that any treaty has been fully implemented by Canada if one adopts the Baker approach. This is all the more unfortunate since in the two leading cases of “unimplemented treaties” the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, the conventions in question were the object of many years of legal analysis in various government departments, public consultation, and scrupulous federal-provincial consultations. At the end of this process, governments were informed by officials that Canadian law was largely in place to ensure full implementation and that where necessary, appropriate measures had been taken.56 Rather than being concerned with the development of doctrines designed to facilitate the coexistence of Canadian and international law, our courts seem to be putting enormous obstacles in the way of this necessary process. This is not the time to create new barriers



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between Canadian and international law. International law is in fact the source of an ever-increasing percentage of Canadian law – both customary and statutory. Canadians lead increasingly complex lives in which their activities span many legislative jurisdictions and are addressed by a host of international treaties governing transportation, trade, economic and monetary relations, environmental controls, and the protection of public health, to name but a few. The time has come to build bridges towards international law, not to erect new walls against it. Treaties Are Law There is in the opinion of this writer insufficient understanding or acceptance in Canada of the fact that international law is law. Few Canadian judges appear willing to affirm that their duty of fidelity to the rule of law embraces not just Canadian law but also international law. Law does not stop at the border, but many in the legal community have been educated to believe otherwise, and the received wisdom generally reinforces this belief. Surely it is time for legislators, judges, and the legal community to abandon this approach. We are told in many decisions by distinguished jurists that the separation of international and domestic law is constitutionally mandated and is required by the very nature of our legislative and administrative powers. Curiously, many other like-minded countries, whose constitutions function along very similar democratic lines, do not appear to have understood this.57 They are willing to grant international treaties the force of law equivalent to domestic statutes, and their courts appear to be far more willing than Canadian courts to apply rules of international law in their judgments, and yet their political systems do not appear to be suffering unduly. Each country has a duty to implement the rules of international law. This is a clear command of every treaty and of the Vienna Convention on the Law of Treaties. But each country enjoys very considerable discretion concerning the methods of implementation to be adopted. Were Canada to decide to open its legal system more fully to the rules of customary and treaty law, there can be no doubt that Canada might wish to do so differently from France, Germany, the United States, the eu, or even the United Kingdom. The means to be adopted can well vary considerably. Perhaps it would be appropriate to give only the principles of treaties the force of law, rather than all

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their provisions, or to limit the force of law to certain provisions containing a clear negative or positive command? A striking case in point is the European Community Treaty, which comprises over three hundred articles and which has been declared by the European Court of Justice to be capable of direct effect in the domestic legal systems of all eu member states. Citizens can invoke the provisions of this treaty before their domestic courts against their governments and against each other. However, only the most important articles of the treaty, which involve direct positive and negative commands, have been declared to have direct effect. The direct effect of these articles is closely scrutinized by the ecj and has evolved slowly over the years under careful examination and wide legal debate. The same would have to happen for any treaty that might be deemed susceptible to producing direct effects in Canadian law. It must also be said that not all treaties should be part of domestic law. A very large number of treaties reflect political commitments that are frequently executed outside the national territory. Unfortunately, Canadian legislatures or courts have seldom posed these questions or embarked on the search for appropriate solutions. Surely the time has come to do so?

some proposals The following proposals are set out in very schematic form.58 Their purpose is to provide the outlines of a program of legislative and judicial reappraisal of existing understandings and arrangements in order that they better reflect the true significance of public international law. Customary International Law The Hape decision points in the right direction, holding that the rules of customary international law are part of the law of Canada. The consequences of this principle will have to be further elaborated in subsequent decisions to ensure that the principle is fully consolidated. Ensuring respect for the principle in every context is not an easy matter, as exemplified by some key British decisions.59 Parties to litigation should be able to plead the benefit and the protection of a customary rule and a government should not be allowed to act contrary to an international rule to the detriment of a citizen. Custom



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can no longer form the basis of a criminal charge, but if it is the basis of new legislation, the customary rule should be capable of being invoked in order to clarify the nature of the offense. What should happen if an individual or company acts in conformity with a customary rule that is not reflected in domestic law or is even contrary to domestic law? Should an individual be penalized for acting in conformity with international custom that a state should be applying? The answers to these questions are not self-evident and will have to be worked out over time by the courts. Rules of customary international law should receive direct effect in Canadian law. They should be pleaded, and judges should be free to take judicial notice where it is appropriate. Proof of a customary rule is often a matter of some difficulty, and it may be that creative solutions should be sought to assist the courts in this difficult task, either by way of elaboration of rules of court or even legislative guidance.60 Enhancing the Role of Parliament in the Adoption and Approval of Treaties The most important single measure that should be taken is surely to increase the role of Parliament with respect to treaties. The current situation, where Parliament is virtually excluded until it is presented with a fait accompli in the form of legislation designed by the executive to implement various facets of a treaty, is surely no longer acceptable. It is an anomaly in comparison with virtually all other democracies and a serious impediment to the judiciary taking treaties seriously. Were Parliament to be seen granting a mandate to negotiate a major new treaty, being informed as to the progress of negotiations, granting its approval to ratification by Canada and adopting legislative measures – where required – to ensure full implementation, Canadian courts would surely take another view of the significance of treaties. Currently it is only too easy for the courts to view treaties as essentially a matter of executive policy-making and not part of the law, since Parliament is totally excluded from the process. Were Parliament to be closely involved, this would remove a fundamental legal obstacle and would give much greater democratic legitimacy to treaties in Canada. As long as the executive arm of government alone controls treaty-making and adoption, it will remain all too easy to

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claim that treaties have no democratic legitimacy and cannot be considered to be part of the law in Canada.61 It is presumed that this is what was intended in the first Speech from the Throne of the Conservative government of Prime Minister Stephen Harper.62 Unfortunately, nothing further appears to have been done to follow up on the suggestion made in the Throne Speech, subject to observations contained in the postscript to this chapter. The Status of Treaties Should Be Enhanced: They Should Be Given the Force of Law If treaties are binding on Canada and if Canada has an obligation to implement under international law, which is also recognized as reflecting customary norms of international law, it is not appropriate to maintain that they have no legal effect in Canadian domestic law. Why should courts, administrative tribunals, and officials be free to turn their backs on documents that are part of the fabric of the law in force today? It is one thing to say that they have no force and effect until ratified and implemented, but it is quite another to adopt the same position once these steps have been taken, when domestic law is in place and when Canada is internationally obliged to respect a treaty. Yet this is what Canada appears to be doing today with respect to the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. Surely the prevailing situation is not appropriate, and it should be open to the courts to alter it to ensure greater respect for the rule of law in Canada, for the rule of law embraces international law. How might this be done? In the first place, administrative tribunals, ministers of the Crown, and other public officials whose duty it is to administer the law and who hold their office by virtue of the law should be held bound by the requirements of international treaties that Canada has ratified and implemented. This is surely not too great a step to take. When domestic law is in conformity with the treaty, why should it be wrong to seek to enforce the very treaty itself as well as domestic law in appropriate circumstances? A legal obligation surely flows from the treaty, as well as from the domestic rule. Superior courts should consider it their duty to ensure respect for treaties by administrative tribunals and all officials. This also suggests that in appropriate circumstances where a treaty creates clear duties of a negative or positive character for states or where



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rights are manifestly created for the benefit of individuals, citizens should be able to invoke these rights and obligations before administrative tribunals and also require that these rights and obligations be respected by officials. What of the courts? Should they be required to apply the provisions of international treaties directly? One answer is simply to say that the same principle should apply to the courts as to administrative tribunals and officials. This is surely the ideal solution in principle. Should there be reluctance to go so far, an intermediate step would be to require this result unless the legislator has specifically lifted the duty from a court. Another solution, which merits further examination, is for the courts not only to treat the rules of customary international law as legally enforceable as part of the common law but also to treat the general principles inherent in each treaty as having a status equivalent to the rules of the common law. These general principles of treaties, especially major law-making and regulatory treaties, would then assume their place among the rules of common law. Any of these approaches involve complex decisions of public policy and would involve complex and delicate decisions by the courts in the future. But any suggestion to the effect that this is impossible or beyond the reach of Canadian courts should be set aside in the face of the record of the Canadian judiciary in rising to the challenges presented by the Charter of Rights and Freedoms. Adoption of a Canadian Treaties Act The process of enhancing the status of treaties in Canadian law would surely be assisted by the adoption of appropriate legislation setting out the process of negotiation (including the mandate to negotiate), ratification (subject to parliamentary study and approval), and implementation. Legislation should also deal with the issues set out above concerning the legal effects of treaties in Canadian law once duly implemented and ratified. Legislation of this kind would surely be useful to the courts and other public bodies and would be taken as a mandate to give legal effect to treaties as set out in the legislation and as required by international law. Given the division of powers, mirror legislation of a similar type would be required by each provincial legislature. Federal and provincial legislation should also clarify the necessary cooperative steps that must be taken to

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ensure proper coordination of implementation measures required at both levels of government in the face of treaties whose subject matter falls within both federal and provincial legislative jurisdiction. The experience of the United Kingdom in adopting the European Communities Act 197263 is surely strong evidence that such legislation is possible and would be respected by the courts and adapted to the needs of Canadian law. Official Record of Implementation As suggested above, an official record of measures of implementation adopted prior and possibly subsequent to ratification would greatly assist courts in understanding the true nature of the process of implementation and would put the lie to the myth of the “unimplemented” treaty in Canada. Federal-Provincial Cooperation The registry proposed above should also contain information concerning the measures of federal-provincial cooperation taken to implement a treaty whose subject matter falls within both federal and provincial legislative jurisdiction. Further Consequences Complex matters of state responsibility for provincial acts in violation of treaties remain to be resolved in Canada. Similarly, the anomalous situation whereby provinces do not enjoy the capacity to adopt extraterritorial legislation remain to be resolved in Canada, despite a series of decisions of the Supreme Court of Canada attempting to loosen the shackles originally created by judicial decisions many years ago.64 It is suggested that any comprehensive effort to clarify the status of international law should deal with these issues as well.

postscript On 25 January 2008 the government of Canada issued a statement indicating that henceforth all treaties binding Canada under international law would be tabled in the House of Commons and that no



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action would be taken by the government for a period of twenty-one days, during which period the House may “review and discuss the policy of the treaty” should it wish to do so.65 The government is also committed to refraining from adopting implementing legislation before the expiry of the twenty-one-day period. This constitutes a very positive development, reflecting a sense of the significance of international treaties in the policy-making process in Canada, and it should be welcomed. However, many questions remain unanswered, and many issues are simply not dealt with by this partial approach to a major problem. The most obvious question is, what may be the effect of a debate in the House of Commons? Will the government decide not to ratify a treaty if the sense of the House is negative? Will the government heed the call of the House of Commons with respect to the manner of implementation? What weight will be given to the views of the majority of parliamentarians, as opposed to the opinions of members of the governing party? Equally unclear is the manner in which the House of Commons should proceed. Will there be a short debate at the end of the day’s business, or will there be extensive analysis in committee? Will a special and reinforced Committee of the House of Commons on Foreign Affairs be established? How realistic is the twenty-one-day deadline? Debate over free trade or the Kyoto Protocol lasted many months: will twenty-one days suffice? Most serious of all is the fact that this period for debate comes when the treaty is in final and virtually unchangeable form. In short, this procedure, which does little more than re-establish a practice that existed with respect to significant treaties until 1968, does not really provide an answer to the broad range of problems canvassed by this paper concerning the relationship of international law – and particularly treaty law – to domestic law. It may be the beginning of a process of change, but it is not the comprehensive solution that this author considers to be long overdue.

notes 1 �������������������������������������������������������������������� The Third UN Conference on the Law of the Sea began in 1973 and ended in December 1982 with the conclusion of the UN Convention on the Law of the Sea, 10 December 1982, 1833 u.n.t.s. 396, 21 i.l.m. 1261 (entered into force 16 November 1994) [unclos ].

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2 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, u.n. Doc. fccc/cp/1997/7/Add.1, 37 i.l.m. 22 (entered into force 16 February 2005) [Protocol]. The protocol was ratified by Canada on 17 December 2002 after a motion in the House of Commons calling on the government to ratify. It was passed by a vote of 476 to 477. See House of Commons Debates (10 December 2002) at 2524–5. As Joanna Harrington notes, “Parliament did not, however, examine the text of the Kyoto Protocol prior to adopting a call to ratify.” J. Harrington, “Redressing the Democratic Deficit in Treaty Law-Making: (Re-) Establishing a Role for Parliament” (2005) 50 McGill L.J. 465 at 468 [Harrington]. 3 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 3 December 1997, 2056 u.n.t.s. 211, Can. t.s. 1999 No. 4 (entered into force 1 March 1999). 4 International Covenant on Civil and Political Rights, 19 December 1966, 999 u.n.t.s. 171, Can. t.s. 1976 No. 47, 6 i.l.m. 368 (entered into force 23 March 1976). 5 International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 u.n.t.s. 3, Can. t.s. 1976 No. 46, 6 i.l.m. 368 (entered into force 3 January 1976). 6 Mr Justice Louis LeBel of the Supreme Court of Canada indicated in a speech in April 2002 that between 1984 and 1996 there were about fifty decisions in which the Supreme Court turned to international law in its deliberations and that in the last four years preceding the speech the number had doubled. See L. LeBel & G. Chao, “The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law” (2002) 16 Supreme Court L.R. (2d) 23. 7 Part I of the Constitution Act, 1982, being Schedule b to the Canada Act 1982 (u.k.), 1982, c. 11. 8 J. Brunnée & S.J. Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002) 40 Can. Y.B. Int’l L. 3 [Brunnée & Toope]. 9 G. Hewart, The New Despotism (London: Ernest Benn 1929). 10 P. Anisman, “A Catalogue of Discretionary Powers in the Revised Statutes of Canada” (Ottawa: Law Reform Commission of Canada/ Information Canada 1975). 11 See for a general discussion on this point, Harrington, supra note 2. 12 See, for instance, the Canada -u . s . Softwood Lumber Agreement, signed on 12 September 2006. The agreement entered into force on 12 October



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2006. In order to implement the agreement the government of Canada introduced Bill c-24 (An Act to Impose a Charge on the Export of Certain Softwood Lumber Products to the United States and a Charge on Refunds of Certain Duty Deposits Paid to the United States, to Authorize Certain Payments, to Amend the Export and Import Permits Act and to Amend Other Acts as a Consequence) in the House of Commons on 20 September 2006. The bill received second reading on 18 October 2006 and Royal Assent on 14 December 2006 as the Softwood Lumber Products Export Charge Act 2006, s.c. 2006, c. 13. 13 See infra note 48. 14 Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 s.c.r. 817, 174 d.l.r. (4th) 193 [Baker]; Ahani v. Canada (a . g .) (2002), 58 o.r. (3d) 107, 91 c.r.r. (2d) 145 (C.A.), leave to appeal ref’d [2002] 2 s.c.r. v. In the Ahani case the Ontario Court of Appeal denied Ahani’s request to remain in Canada, primarily on the basis that neither the iccpr nor its Optional Protocol, which specifically provides for the right of individual petition, were incorporated into Canadian law. As stated by Laskin j.a. for the majority, “neither has any legal effect in Canada.” Laskin j.a. also noted that “neither the [UN Human Rights Committee’s] views nor its interim measures requests are binding on Canada as a matter of international law, much less as a matter of domestic law.” Laskin j.a. came to the conclusion that it would therefore be “an untenable result to convert a non-binding request, in a Protocol, which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court, and more, into a constitutional principle of fundamental justice.” 15 See World Trade Organization Agreement Implementation Act, s.c. 1994, c. 47; North American Free Trade Agreement Implementation Act, s.c. 1993, c. 44. 16 The closest provision on the subject of treaty-making is s. 132 of the Constitution Act, 1987 (u.k .), 30 & 31 Vict., c. 3, reprinted in r.s.c 1985, App. ii, No. 5. This provision refers to the federal power to perform what is termed “empire treaties.” At the time of Confederation the exercise of the treaty power with respect to Canada was reserved to her Majesty in Right of Great Britain under the constitutional arrangements governed by the Colonial Laws Validity Act 1865 (u.k.), 28 & 29 Vict., c. 63. 17 This is an obligation required by article 26 of the Vienna Convention on the Law of Treaties, concluded 14 October 1970, 1155 u.n.t.s. 331, Can. t.s. 1980 No. 37 (entered into force 27 January 1980).

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18 See on this topic A. Bayefsky, “International Human Rights in Canadian Courts,” in B. Conforti and F. Francioni, eds., Enforcing International Human Rights in Domestic Courts (The Hague: Martinus Nijhoff 1997) 295 at 297. 19 The applicability of customary and treaty law in the domestic legal order has, for instance, been affirmed in other relatively more recent British cases. See, for example, D.R. v. Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte (No. 3), [1999] 2 w.l.r. 827 (h.l.). Also note that the constitutions of some countries explicitly establish that customary international law is part of domestic law, as for example with article 25 of the Grundgesetz (Basic Law) of the Federal Republic of Germany and the Constitution of the Republic of South Africa, 1996, article 231. 20 In Buvot v. Barbuit (1737), Cas. T. Talb. 281, 25 e.r. 777 Lord Talbot stated that “the law of Nations, to its fullest extent, was the law England”; in Triquet v. Bath (1764), 3 Burr. 1478 at 1480–1, 97 e.r. 936 at 937 Lord Mansfield reiterated Lord Talbot’s dicta; in Heathfield v. Clinton (1767), 4 Burr. 2015 at 2016, 98 e.r. 50 Lord Mansfield affirmed that the law of nations is part of the common law of England. The unity of customary international law with the common law was also affirmed by Lord Langadale, m.r., in Duke of Brunswick v. the King of Hanover (1864), 6 Beav. 1 at 45, 49 e.r. 724 at 741. 21 See D.P.P. v. Jones, [1999] 2 a.c. 240, where the House of Lords held that customary international law is part of the domestic law of England and Wales without the need for any domestic statute or judicial decision. 22 Murray v. The Schooner Charming Betsy, 6 u.s. 64 (1804). In this decision the Supreme Court of the United States stated that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Since then, this canon of construction has become an important component of the legal regime defining the relationship between domestic and international law in the United States. 23 Reference as to Powers to Levy Rates on Foreign Legations and High Commissioners’ Residences, [1943] s.c.r. 208. 24 John v. Fraser-Brace Overseas, [1958] s.c.r. 263. 25 Reference re Secession of Quebec, [1998] 2 s.c.r. 217. 26 See Brunnée & Toope, supra note 8. This is despite the strong opinion in favour of incorporation of customary law by the leading student of the matter: R. St. J. MacDonald, “The Relationship between International Law and Domestic Law in Canada,” in R. St. J. MacDonald et al., eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press 1974) at 127.



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27 Whether a rule of customary international law should be viewed as a rule of “English common law,” jus commune, “federal common law,” or as a rule of Canadian public law is a matter requiring further analysis. 28 2007 scc 26, [2007] 2 s.c.r. 292 [Hape]. 29 In Hape LeBel j. declared that “In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary.” See Hape, ibid., at para. 39. 30 Attorney General for Canada v. Attorney General for Ontario, [1937] a.c. 326 (j.c.p.c.) [Labour Conventions]. 31 House of Commons Debates (21 June 1926) at 4762, as cited in Harrington, supra note 2 at 476. 32 This coincided with the deepening conflict between Quebec and Ottawa over the conduct of international affairs. On this point see Hon. P. Martin, Secretary of State for External Affairs, Federalism and International Relations (Ottawa: The Queen’s Printer 1968) at 11–13. 33 K. Knopp, “Here and There: International Law in Domestic Courts” (2000) 32 n.y.u. j. Int’l L. & Pol. 501. 34 23 May 1969, 1155 u.n.t.s. 331, Can. t.s. 1980 No. 37, 8 i.l.m. 679 (entered into force 27 January 1980). 35 ����������������������������������������������������������������������� The United Kingdom, New Zealand, and Australian parliaments have in recent years been accorded a greater role in the process of treaty negotiation and implementation. See generally on this point, Harrington, supra note 2. 36 Section 11(g) of the Charter provides that “Any person charged with an offence has the right: … (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.” 37 Labour Conventions, supra note 30. 38 MacDonald v. Vapor Canada Ltd., [1977] 2 s.c.r. 134 [Vapor Canada]; Capital Cities Communications v. c . r. t . c . (1977), [1978] 2 s.c.r. 141. This dictum was later adopted by Dickson C.J.C. in Schneider v. The Queen, [1982] 2 s.c.r. 112 [Schneider]. 39 See Vapor Canada, ibid. 40 National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 s.c.r 1324.

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41 See generally G. van Ert, Using International Law in Canadian Courts (The Hague: Kluwer Law International 2002) [ran Ert]. 42 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 s.c.r. 3 �������������������������������������������������������������������� at para. 60. In this case the Court stated that “������������������� International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law.” See also Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 s.c.r. 76. 43 As an example, article 25 of the German Basic Law (Grundgesetz) provides that the general rules of international law shall be part of federal law and shall override inconsistent federal or sub-federal laws. Once a treaty has been ratified, its terms become part of federal law. 44 Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are “self-executing” or if they have been implemented by an act. 45 See Van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62; [1963] e.c.r. 1; see also Costa v. enel , Case 6/64, [1964] e.c.r. 585. 46 Article 55 of the 1958 French Constitution provides that “Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party.” Similarly, article 133 of the Mexican Constitution provides that “This Constitution, the laws of the Congress of the Union that emanate from it, and all the treaties that are in accordance with it, subscribed and that are subscribed by the President of the Republic, with the Senate’s approval, shall be Supreme Law of the Union.” See English versions of the French and Mexican Constitutions, online: International Constitutional Law, http://www.servat.unibe.ch/icl/index.html. 47 ������������������������������������������������������������������������� For instance, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“icsid Convention”), 575 u.n.t.s. 159, 4 i.l.m. 524, was concluded 18 March 1965 but was not signed by Canada until 15 September 2006. A similar delay occurred with Canadian implementation of unclos, which was originally concluded 10 December 1982 but not ratified by Canada until 7 December 2003. 48 ������������������������������������������������������������������������ The following list illustrates some of the common means of treaty implementation: (i) incorporation textually of the whole or part of a treaty, giving the text of the treaty force of law, (ii) scheduling the text by referring to all or parts, (iii) specific implementation by reference or incorporation of particular treaty provisions, (iv) translating the treaty into Canadian



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statutory language, (v) adding a statement in text of intention to implement, (vi) adding a statement in the treaty text of the intention to approve a treaty, (vii) adding instructions for interpretation that give priority to a treaty, (viii) adopting provisions that provide for the adoption of implementing regulations or decisions by the governor-in-council, a minister, or an independent tribunal, (ix) adopting regulations for the purpose of implementation, (x) reliance on rule or provision of the Constitution, (xi) reliance on pre-existing federal and provincial legislation, (xii) reliance on the common law, including the Royal Prerogative, (xiii) reliance on the intention of the treaty as self-executing or specifically non-self-executing to determine the effect of the treaty in the legal system. For a more detailed discussion of the different possible modes of implementation see A. de Mestral & E. Fox-Decent, “Implementation and Reception: The Congeniality of Canada’s Legal Order to International Law,” in O.E. Fitzgerald, ed., The Globalized Rule of Law: Relationships between International and Domestic Law (Toronto: Irwin Law 2006) at 45–6 [de Mestral & Fox-Decent]. 49 Baker, supra note 14. 50 Convention on the Rights of the Child, 20 November 1989, 1577 u.n.t.s. 3, Can. t.s. 1992 No. 3, 28 i.l.m. 1456 (entered into force 2 September 1990). 51 Vapor Canada, supra note 38. 52 Schneider, supra note 38. 53 See Department of External Affairs, North American Free Trade Agreement: Canadian Statement on Implementation, C. Gaz. 1994 Part I (1 January 1994). A like document was published when Canada ratified the wto Agreement. See Department of External Affairs, Agreement Establishing the World Trade Organization: Canadian Statement on Implementation, C. Gaz. 1994 Part i (31 December 1994) at 4847ff. 54 See, for instance, World Trade Organization Agreement Implementation Act, s.c. 1994, c. 47; North American Free Trade Agreement Implementation Act, s.c. 1993, c. 44. 55 National Corn Growers, supra note 40. 56 International Covenant on Civil and Political Rights, 19 December 1966, 999 u.n.t.s. 171, Can. t.s. 1976 No. 47, 6 i.l.m. 368 (entered into force 23 March 1976, accession by Canada 19 May 1976). 57 This is particularly true in countries such as France, Mexico, and South Africa. 58 For a more detailed analysis of this see de Mestral & Fox-Decent, supra note 48; see also generally van Ert, supra note 41.

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59 See, for example, D.R. v. Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte (No. 3), [1999] 2 w.l.r. 827 (h.l.). 60 See Mack v. R (2002), 60 o.r. (3d) 737, 2002 Carswell Ont 2927 (c.a.) for a good illustration of how difficult it can be for a domestic court to determine a rule of customary international law. 61 See on this topic Harrington, supra note 2. 62 In its first Speech from the Throne the Conservative government made the promise that “Significant international treaties will be submitted for votes in Parliament.” See Speech from the Throne (4 April 2006) online: . 63 European Communities Act 1972 (u.k.), 1972, c. 68. 64 Morguard Investments Ltd. v. De Savoye, [1990] 3 s.c.r. 1077; Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 s.c.r. 63; British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 s.c.r. 473. 65 Foreign Affairs and International Trade Canada, News Release 08/20, “Canada Announces Policy to Table International Treaties in House of Commons” (25 January 2008).

4 Federalism and Multi-Level Governance in Foreign Affairs: A Comparison of Canada and Belgium S T É P H A N E PA Q U I N

introduction The issue of substate governments in the foreign policy of federal states leads to the fundamental question in contemporary political science: Who governs?1 How are decisions concerning foreign affairs taken and implemented when the respective fields of endeavour of federated states are implicated? What is the role of the substate governments, like the Canadian provinces or the Belgian regions and communities, in the conclusion (negotiation, signature, and ratification) and the implementation (or application) of international treaties when those treaties affect their respective competences? Today virtually all government activity enters into the field of competence of at least one intergovernmental organization, and frequently many more.2 In this way, in the context of international organizations and international conferences, themes are dealt with that relate to education, public health, cultural diversity, the environment, business subsidies, the treatment accorded to investors, and the removal of non-tariff barriers, barriers to agriculture, to services, and so forth. The enlargement of the stakes on the international scene means that at the level of taking decisions concerning foreign policy, all ministries, from the least to the most important, have at least part of their activities internationalized. This implies that ministries of foreign affairs no longer have the ability to centralize decision making and representation and to control functions concerning foreign affairs.

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In this context, subnational governments are more aware that their political power and their sovereignty, or, in other words, their ability to formulate and implement policy, are subject to negotiation in multilateral fora. This phenomenon is magnified in Europe by the process of European integration and in North America by the North American Free Trade Agreement (nafta). Thus, since the 1960s there has been a noticeable increase in the number of federated states that are interested in and participate actively in international questions. In the United States, for instance, only four states had offices in other countries in 1970, in contrast to 42 states with 233 offices in 30 countries in 2001.3 In Germany, the states (Länder) have set up some 130 representative offices since 1970, of which 21 are located in the United States.4 Quebec, one of the pioneers in the field, has some 30 representative offices around the world.5 In Spain, the autonomous communities of Catalonia operate some 50 representative offices abroad, and the Flemish government opened its hundredth representative office in September 2004.6 This phenomenon of subnational representation is also evident in Japan and many other countries.7 In Canada, following Belgium, Germany, Austria, Switzerland, and Spain, the role of subnational entities in foreign policy has arisen as an election issue. During the federal elections of 2006 in Canada, the leader of the Conservative Party, Stephen Harper, confirmed that in making arrangements to allow Quebec to participate at meetings of unesco, he was inspired by the agreement concerning Quebec’s participation at the Francophone Summit. Since then, agreement has been reached on the role of Quebec within the Canadian delegation to unesco, and a matter has been referred to the Council of the Federation to ascertain how Canadian provinces can play a more significant role in Canadian foreign policy when their subjects of jurisdiction arise. The question of research is therefore not simply theoretic. This question generates great debate in Canada and is subject to two opposing positions. The first, asserted by Quebec’s former minister for intergovernmental affairs, Benoit Pelletier, seeks a significant role for the provinces, through the agency of the Council of the Federation, in all phases of the conclusion of treaties. This goal would amount to giving a role of co-decision to the provinces, as well as a place at the negotiating table for their representatives. The second, maintained, among others, by the Liberal Party of Canada, asserts that international relations must remain the monopoly of the federal government to ensure the coherence and efficiency of Canada’s foreign policy.



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At the level of theory concerning federalism and international affairs, the two conceptions also enter into conflict: in the hands of the centralist school and the school devoted to multi-level governance. At the level of the centralizing approach, one of the leading theoreticians of federalism, Professor Kenneth Wheare, has asserted that a monopoly of foreign affairs is a “minimum power” of all federal governments.8 In his landmark study, Wheare highlighted the negative consequences, for the national interest and for the functioning of the international system, of an unbundling of central control over foreign affairs. In the same vein Rupert Davis has maintained that questions concerning international relations are at the heart of federal regimes.9 Centralization of the foreign affairs power is a requirement of international law according to Bertrand Badie and Marie-Claude Smouts, because a centralized political system is a necessary condition for states to be able to play the role they are assigned in international law and practice. In essence, without the existence of a central government that has a plenary authority on its territory in relation to foreign affairs and the ability to participate in international relations and to enforce international obligations in the domestic order, inter-state relations can only be seriously compromised.10 If a power of co-decision is granted in federated states regarding foreign affairs, this risks paralyzing a state’s foreign affairs and harming the state’s image in the international arena.11 In Canada many foreign affairs specialists have underlined the constitutional difficulties for the federal government of negotiating and implementing international agreements when these involve provincial subjects of jurisdiction.12 Supporters of the concept of multi-level governance take a different view.13 According to Brian Hocking, diplomacy or foreign policy cannot be considered a monopoly of the central government.14 Federated states will always have an important role, even if it is only for the purposes of implementing international agreements concluded by the central state. In addition, giving a monopoly over foreign affairs to central governments in federal regimes risks putting in danger the distribution of powers between the different orders of government for the benefit of central authorities. According to Hocking, there are many examples of federal states that must operate with important constitutional limitations on their powers. As Hocking sees it, foreign policy should be thought of as a complex system where different actors at the heart of a federal state

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structure work with each other. Specialists in favour of multi-level governance thus maintain that there are “obligations of cooperation” between central governments and federated states. In order to put into practice a coherent foreign policy, it is important to consult, and indeed accord, an important role for federal states by means of intergovernmental mechanisms, so that they can participate actively in the country’s foreign policy. Regional integration, the growth of mutilateralism, and globalization have thus rendered centralist theses obsolete. The requirements of cooperation between the different orders of government are more and more important, and it is for this reason that one notices a considerable increase in executive federalism or intergovernmental relations in the conclusion of international treaties in federal regimes.15 In this respect, Canada exhibits this tendency even if temptation to govern from the centre remains dominant.16 Richard Simeon regards intergovernmental relations form the weakest link of Canadian federalism.17 According to a number of experts (Smiley, Watts, Simeon, Gagnon, Rocher, Brown), the culture of intergovernmentalism in Canada is largely informal; intergovernmental arrangements are rarely constraining but work instead by “soft” consensus. Hence, the question for research: Does the fact that we give an important role to subnational governments in the foreign policy of a country by means of institutionalized intergovernmental mechanisms affect the foreign policy of a state negatively or positively? And is this a positive- or a negative-sum game at the level of the conclusion and implementation of treaties? The more specific object of this chapter is to assess the efficiency of the two systems of governance with respect to foreign policy. The proposed research will allow us to evaluate the performance of the two contrasting systems: the Canadian system, where the decisionmaking process is more centralized and where intergovernmental mechanisms are poorly institutionalized, and the Belgian system, where federated states have a role of co-decision and where intergovernmental mechanisms are highly institutionalized. In comparing the performance of these two systems, we are going to be in a position to assess the validity of the positions and of those who advocate centralist position and of those who advocate multi-level governance. The methodology employed here is comparative. The two cases under examination are very similar, except with respect to the level of the object of study. We therefore have to compare two contrasting cases, which we can submit to the same research questions. At the



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level of political systems, the two cases being compared are similar in many ways, given that they involve decentralized federal regimes, two multicultural and pluri-ethnic countries, and two industrialized democracies that have a liberal conception of relations between state and citizen. But the cases of Canada and Belgium remain fundamentally distinct where it matters, that is to say, at the level of their system of governance in matters of foreign policy. It is indeed in the Belgian federation that the substate actors have the most important role to play within the foreign policy processes of the nation-state. This chapter is divided into three parts. Following this introduction, the second part deals with the Canadian case and the third with the Belgian case. I then offer a comparative analysis centred on the Canadian case. The conclusion is that, on a preliminary view, the Belgian system seems to be more efficient, but other in-depth studies are required to form definite conclusions.

federalism and international r e l at i o n s i n c a n a da In Canada the role of provinces in foreign policy has been an electoral issue many times in the past. Following the election in April 2003 of the Liberal Party in Quebec led by Jean Charest, the Quebec government claimed, as an important matter in intergovernmental relations, the place of Quebec (and that of Canada’s other provinces) in international organizations and negotiations. In Canada the issue is particularly important because in 2002 Quebec’s National Assembly adopted by unanimity a law that requires the National Assembly’s approval of all international agreements concluded by Canada where they involve Quebec’s matters of competence. With such a law, the National Assembly of Quebec has become the first British-style legislature to be closely associated with the process of concluding international undertakings by the central government.18 In June 2004, for example, the National Assembly approved two international agreements that Ottawa concluded, an agreement with Chile – even though it had already been in force for seven years – and an agreement with Costa Rica, which had been in force since 2001. While the Liberals voted to approve these treaties, the Parti Québécois voted against.19 The Parti Québécois justified its refusal by referring to the fact that the two treaties included measures comparable to those in the much-criticized nafta chapter 11. In 2005

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the Quebec National Assembly became the first parliament in the world – even before the Parliament of Canada – to approve the unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Many commentators on Canadian current events have not understood the importance of what is at stake when the Quebec government demands a place in Canada’s international organizations and negotiations when its fields of competence are in play. Many have linked this reaction to Quebec nationalism, suggesting that this question is more a matter of whim than of reason. Thus, one could see at this time on the Globe and Mail editorial page the statement that “even the most decentralized federations reserve one power for the central government: the power to represent the country abroad. In foreign affairs, a nation must speak with one voice.”20 To give a role to the provinces with respect to international affairs “is a recipe for diplomatic disaster.”21 The Ottawa Citizen added, “The idea is ridiculous. Operating on the international stage – at the United Nations, signing treaties, declaring and ending wars – is one of the core functions of a national government.”22 The same sentiments were expressed by the National Post: “For a nation to be well-represented abroad, it must speak with one voice. If Quebec gets its wish to have standing at international negotiations relevant to areas of provincial jurisdiction – unesco, which deals with education and cultural affairs, is one of its preferred examples – Canada’s official position will become incomprehensible on any issue on which the federal government and the province are not in full agreement.”23 This kind of reaction was not restricted to anglophone Quebec. In Quebec, the editorial page editor of the daily La Presse, André Pratte, wrote on 17 November 2004 that “the Québécois have no reason to complain about the manner in which the government of Canada is defending their interests in the world.” He maintained, moreover, that “international relations belong to federal jurisdiction.”24 The first assertion has to be demonstrated, the second is plainly wrong. Despite much evidence to the contrary, federal government representatives continue to maintain that the government of Canada possesses an exclusive monopoly with respect to international relations, meaning that federalism has no real impact on the conduct of international relations by the federal government. In fact, in Canada



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there exists no constitutional acknowledgment of an exclusive federal power in international relations. Federalism and provincial rights have had important effects on the conduct of international relations. The imperative to cooperate is important and greatly underestimated by federal and provincial representatives. Canada even has a number of characteristics of systems of multi-level governance. The Constitution Act, 1867 does not deal much with the question of international relations. In fact, there is no attribution by the Constitution Act of the exclusive power of foreign affairs. This state of affairs is not unusual, since in 1867 Canada did not become a sovereign government, but a dominion at the heart of the British Empire. Thus, responsibility for foreign affairs rested not with the Canadian government but rather with London. The only article of the Constitution Act, 1867 that dealt with international law was article 132 concerning imperial treaties. This article specified that the “Parliament and the Government of Canada shall have all of the powers necessary to fulfill Canada’s obligations, or those of its provinces, as part of the British Empire, towards foreign countries, arising from treaties concluded between the empire and those foreign countries.” In sum, the federal government could not conclude treaties but had the capacity to implement empire treaties even within the provinces’ fields of power. It was only with the Statute of Westminster of 1931 that Canada acquired its sovereignty in matters of foreign affairs. The question was then raised rapidly in the context of Canadian federalism: does the federal government have the power to force the provinces to implement treaties even when those treaties deal with subjects that fall within the exclusive jurisdiction of the provinces according to the constitution? It was the Ontario government, in the Labour Conventions case, that challenged the ability of the Canadian government to legislate in provincial fields of jurisdiction in order to implement international engagements.25 Following his election in 1930, the prime minister of Canada, R.B. Bennett, ratified three ilo conventions: one applicable to hours of work, one on the weekly period of rest, and one on the establishment of a minimum wage. In implementing these conventions for the provinces, the government of Canada interfered in the field of labour, which involves provincial jurisdiction. The Judicial Committee of the Privy Council in London – at that time Canada’s final court of appeal – gave its judgment in 1937. It is of fundamental importance to the powers of the government of

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Canada and the rights of provinces with respect to international relations. The judges observed that federalism is the foundation of Canada and that by virtue of the principle of Parliamentary sovereignty, the provinces are not obliged to undertake legislative measures in order to implement a treaty concluded by the executive branch of the federal government. Since then, the conclusion of treaties has followed two fundamental steps: (1) the conclusion of the treaty, that is, its negotiation, signature, and ratification, and (2) its implementation. The first step belongs exclusively to the federal government. The second step, that is, the adoption of the legislative measures necessary to apply a treaty as a matter of domestic law, belongs exclusively to the federal and provincial governments. It is therefore necessary to incorporate treaties as a matter of domestic law by legislative action at the appropriate level. In Canada, a treaty does not apply apart from applicable law. Judges judge the law and not treaties. For example, the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards was concluded by the federal government (step 1) but was implemented (step 2) by the two levels of government, federal and provincial. The Hague Convention on Civil Aspects of the Abduction of Children was concluded by the federal government (step 1) but implemented exclusively by the provinces (step 2). This constitutional situation poses a sizeable problem for Canada: provincial collaboration is inevitable when the provincial fields of power are affected by a treaty or an international convention. This problem is even more obvious when it is a question of Canada’s involvement in the work of international organizations that affect provincial areas of competence, such as unesco, the World Health Organization, or even the International Labour Organization (ilo). To avoid being denounced, the federal government has historically adopted three strategies: (1) refusal to participate or to engage, (2) use of the federal clause, and (3) the creation of formal consultative mechanisms with the provinces’ mechanisms of multi-level governance. Refusal to Participate or Engage Refusal to participate or to engage means that the government of Canada will abstain from participating in a final vote when a treaty affects the provincial spheres of competence or that it will simply



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refuse to participate in the work of an international organization. Since 1938, for instance, a semi-official but very detailed procedure has been put in place to define Canada’s participation in the ilo, since work is a matter of provincial jurisdiction. When a draft convention was under consideration, the Canadian delegation had to vote in favour of taking the matter into consideration but had to abstain from the final vote if the draft convention applied to a matter of provincial jurisdiction, unless the “provinces had provided proof of sufficient support in order for there to be a reasonable hope that it would be effectively adopted in Canada.”26 In the contrary case, the federal government had to find ways to limit the extent of the convention to matters falling under federal jurisdiction. For example, the Canadian delegation at the San Francisco Convention of 1945 objected to the UN Charter making reference to full employment among the aims of the United Nations, because labour is a matter of provincial jurisdiction.27 In other instances, the Canadian government has refused to participate in the work of certain international organizations. It declined on several occasions the invitations to participate in the Hague Conference on Private International Law. It was not among the founders in 1955 and did not become a member until 1968. Federalism and provincial rights with respect to foreign affairs in Canada have a direct quantitative impact, in the sense that the federal government has ratified fewer international treaties than countries with a unitary structure. Prior to 1961 Canada had ratified only 18 of the 111 conventions adopted by the ilo.28 With respect to conventions concerning human rights, Canada had ratified only 6 of 18 by 1969, whereas the average among countries of a unitary structure was 10.29 Use of the Federal Clause The use of a federal clause implies that Canada has no requirement to ascertain the application of an international treaty coming from an international organization if it affects the jurisdiction of a province. Such a requirement would compromise Canada’s image, but equally its ability to influence international relations. The most recent solution is to have recourse to federal-state clauses. When an international negotiation affects a field of provincial jurisdiction, Canada will support the process but secure the addition of a federal

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clause in the final text. The federal clause (sometimes referred to as the Canada Clause) subjects the treaty’s implementation to Canada’s constitutional requirements and confirms that the federal government undertakes to observe the treaty only within the limits of its constitutional competencies.30 Canada has frequent recourse to such clauses because doing so permits it to avoid the question of jurisdiction with the provinces. Countries with unitary structures will contest such clauses, since they signify that Canada is bound only to the extent of its powers, which is not the case with a country like France. In addition, there is no obligation of result for Canada. The question is therefore posed: is the Canadian government seeking to meaningfully involve the provinces in the process?

the creation of formal mechanisms o f c o n s u l tat i o n w i t h t h e p rov i n c e s : t o wa r d s m u l t i - l e v e l g o v e r n a n c e Federal-state clauses evolved and, most notably in commercial agreements, began to impose obligations so that federal states could seek to make their provinces adopt international agreements. This transformation of federal clauses and the formulation of the Gérin-Lajoie Doctrine in Quebec in 1965, whereby Quebec affirmed the right to represent itself when its fields of competence were involved, forced the federal government to consult the provinces when international treaties affected their fields of power, since, if it did not, it risked being denounced.31 Because the federal government is conscious of its limits, many consultative mechanisms between the federal government and the provinces have been put forward.32 The first federal-provincial understanding, in 1974, dealt with the Hague Conference on Private International Law. With respect to treaties adopted at the Hague Conference, the federal minister of justice created a consultative group composed of civil servants of provincial ministries of justice representing four regions of Canada. This consultative group is replaced every four years and is tasked with giving advice to the minister of justice on questions of private international law. Following the recommendations of this group, the provincial ministers are consulted in order to specify Canada’s negotiating position and to determine questions of implementation. Moreover, provincial representatives can form part of the Canadian



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delegation to sessions of the Hague Conference. Afterwards, the Uniform Law Conference of Canada prepares model laws that the provinces may adopt if they wish.33 Other consultative mechanisms have come into being, such as the Federal-Provincial Conference of Ministers Responsible for Human Rights. The conference meets biennially and gathers a standing committee that includes representatives of the federal government, the provinces, and the territories. The committee is tasked with the job of proceeding to consultations and providing liaison between the different orders of government. The specific functions of the committee include serving as a consultation mechanism on the ratification of international human rights conventions; encouraging information exchange among governments in Canada with respect to the interpretation and implementation of international human rights instruments and related matters; facilitating the preparation of reports on conventions that have been ratified, as well as other reports on human rights requested by the United Nations or other organizations; encouraging information exchanges and research on human rights matters of common interest to all jurisdictions; providing views with respect to the development of Canada’s positions on international human rights issues; and organizing and providing follow-up to ministerial conferences on human rights.34 Decisions on ratification and implementation of conventions concerning human rights are made within the framework of these conferences. In the field of education, in 1977 the Canadian Ministry of Foreign Affairs concluded an understanding with the Canadian Council of Ministers of Education (ccme) that foresaw that for all international matters involving questions related to education, the ccme would recommend the composition of the Canadian delegation and designate the head of the mission that would negotiate on behalf of the provinces. This understanding, agreed to by all provinces including Quebec, has since regulated Canada’s international relations in the field of education.35 In the economic field, the federal government also instituted different consultative mechanisms with the provinces. Since the beginning of the Tokyo Round, the government of Canada has developed

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consultative mechanisms on federal initiatives related to international trade.36 These mechanisms were required because the Tokyo Round negotiations began to touch on matters clearly within provincial jurisdiction. Since the subsequent rounds have also involved provincial jurisdiction, the mechanisms have remained in place.37 The consultations have increased in importance because international negotiations increasingly deal with domestic policy concerning subsidies to business or to provincial or local regulations that create distortions or obstruct international trade. This approach to intergovernmental negotiations will continue in a number of fora, including e-trade. Every three months the committee brings together federal, provincial, and territorial civil servants in order to exchange information and to identify a Canadian position on a range of questions related to commercial policy, including negotiations.38 The federal government must thus consult the provinces to obtain technical opinions and to develop the arguments for negotiation. Nevertheless, the mechanisms do not signify that the federal government recognizes a role for the provinces with respect to international relations. The minister of foreign affairs frequently recalls that the steps taken to conclude a treaty arise from the federal government’s discretionary power and that Canada should speak with a single voice on the international scene.

federalism and international relations in belgium Since 1993 Belgium has been, according to the first article of its Constitution, “a federal state composed of communities and regions.” Belgian federalism has consequences for the conduct of international relations. The constitutional revision of 1993, which sought to end debate about the division of powers between the federal state, the communities, and the regions, permits the regions and communities to become real international actors, something that includes the power of representation and the power to sign treaties with sovereign states. The Belgian sovereign, who previously exercised exclusive power over international relations, continues to do so at present, “without prejudice to the power of communities and regions to regulate international cooperation, including the conclusion of treaties, concerning subjects arising from their powers under the Constitution or by virtue of it.”39



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Since the revision of the Constitution in 1993, the organization of Belgium’s international relations has been fundamentally adapted to the federal state structure. The autonomy of the Belgian federated states with regard to external policy is unique in the world. Its exceptional nature arises from recognized constitutional principle of in foro interno, in foro externo. On top of that there is an absence of hierarchy between different levels of administration. In essence, in conformity with article 167 of the Belgian Constitution, international cooperation will remain from now on in the hands of the federal government, the communities, and the regions, each of which operates within the limits of its respective powers, including with respect to the conclusion of treaties. In sum, the Constitution recognizes that the federal states of Belgium (including communities and regions, but which in the case of Flanders have merged together) are sovereign within their fields of competence and that this arrangement applies to international relations. This provision rests on the idea of equally applying the principle of exclusivity of powers of federal states observed in the internal order to the field of international relations. For this reason, the Belgian federal states possess a true international legal personality, and in practice, this means that foreign countries and international organizations must accept the idea that they are negotiating and concluding treaties with the federated states. Subfederal units’ treaties with foreign states are considered sui generis in Belgium in terms of their status in international law. Since the revision of the Constitution in 1993, there have been three categories of treaty in Belgium: (1) treaties that exclusively involve the powers of the federal government and that are concluded and ratified by this same federal government, (2) treaties related exclusively to community or regional powers and that are concluded and ratified by communities and regions, and finally, (3) mixed treaties. When an agreement involves federal powers and either community or regional powers at the same time, the treaty is concluded according to a special procedure convened among the different orders of government. It must also be approved by all the parliaments involved.40 Thus, in Belgium the substate actors enjoy greater autonomy concerning foreign policy than all other regions in the world. Quebec, which is often cited as a leader in regional autonomy, is relatively behind when compared with Belgium’s regions and communities. The new system of multi-level governance allows regions to become

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true international actors, which includes the power to sign actual treaties with sovereign states. They also possess the right of representation, that is, the right to open “mini-embassies.” The communities and regions of Belgium have the option of designating their own representatives abroad, whether as part of or separately from the diplomatic and consular posts of the Belgian state.41 Flanders has one hundred “quasi-embassies” around the world. Within Europe, the Flemish have generally preferred to maintain representatives outside Belgian embassies, whereas elsewhere in the world, they have generally sought the opposite. The status and exercise of the functions of these representatives is fixed by virtue of a cooperation agreement concluded in 1995 between federal authorities and the federative states. The Belgian ambassador has no superior hierarchical authority over the representatives of federated entities.42 As one Flemish civil servant has observed with respect to many matters, “there is nothing more useless than a Belgian ambassador.”43 With the Lambermont Accords of 29 June 2001, which are accords of a constitutional character, even power over foreign trade has been regionalized. Flanders is probably the most globalized region in the world: it exports 89 percent of its GDP. No country is as decentralized as Belgium when it comes to international relations.

decision making under the system o f m u l t i - l e v e l g ov e r n a n c e In order to avoid conflicts and ensure coherence in Belgian foreign policy, an Interministerial Committee on Foreign Policy (icfp) was created. The committee brings together the representatives of different authorities at the highest political and administrative level and is conceived of as an institution of permanent dialogue designed to avoid conflicts.44 The committee shelters many sectoral interministerial conferences. The icfp functions as a body for the exchange of information and dialogue; decisions are taken by consensus. If consensus is not achieved, Belgium abstains from taking a position, although this is a positive abstention, one that signifies that Belgium does not block the decision-making process. This method of proceeding puts considerable pressure on those involved to arrive at a joint position. The icfp secretariat is maintained by the Foreign Service in Charge of Relations with Communities and Regions. It looks after



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both the organization and the management of working groups and committees that are active in the context of the ICFP.45 It is through this system that mixed treaties are concluded, as are positions taken by Belgium in intergovernmental organizations. On 30 June 1994 a Framework Agreement was promulgated concerning the participation of Belgium and its federative entities in international organizations. The agreement imposes a requirement of systematic and horizontal dialogue, which is a precondition of each ministerial meeting of an international organization. Representatives of Belgium’s prime minister, other federal ministries, and community and regional representatives responsible at a technical level or responsible for external relations are invited to all dialogue meetings. Under the terms of article 7 of the Cooperation Agreement, a working group on the representation of the Kingdom of Belgium in international organizations ensures follow-up and general coordination. The working group is required to meet at regular intervals within the framework of the icfp. Owing to the absence of hierarchy among federal, community, and regional authorities, the proper functioning of the system depends entirely on the good faith of the different authorities. Federal diplomats involved with the process assert that the system of cooperation is a kind of appeal system, with a dialogue committee at its head. However, the situation is different at the level of working groups within the icfp. Cabinet and administrative delegates sit on the working groups. In parallel, two working groups have been created under the icfp. A number of formal and informal mechanisms have been created under cooperation agreements at this level. In practice, the common external policy of the Belgian federation is maintained above all by the working groups.46 The Belgian federative states also have the right to directly formulate policy in the multilateral sphere, that is, within intergovernmental organizations.47 For the last few years the federative states have been represented within the Belgian delegation to international organizations such as the European Union and the wto. It is important to emphasize that they do not occupy a separate seat in these organizations but occupy the seat of Belgium. In the case of certain organizations that deal with matters that are exclusively communitarian or regional, Belgium is represented only by ministries of the federated states. At unesco, this means that for most of the time there is no representative of the Belgian state, since the organization’s

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mandate is largely outside federal Belgian jurisdiction. If, however, unesco wanted to accept a new member like Palestine (or Quebec), it would be a representative of Belgium that would occupy the Belgian seat. With respect to la Francophonie, the French Community of Belgium is a member state and is not placed alongside the Kingdom of Belgium. By comparison, Quebec has the status of a participating government and goes by the designation of Canada-Quebec in the organization. Since hierarchic principles do not apply, substate entities in Belgium play a more important role than an ambassador named by the federal government in Belgium. When there is a question of content, such as in the case of a provisional agreement, it is the Flemish and Walloon representatives that will have a say. At the moment, there appear to be few conflicts between the two communities in this regard.48 In sum, in Belgium different levels of government have concluded a series of cooperation agreements with respect to the representation of Belgium in international and supranational organizations. The most important agreement involves Belgium’s participation in the eu Council of Ministers, where ministers of the federative states can represent Belgium and conclude agreements in its name.49 The Belgian position in the eu Council of Ministers is discussed in a special coordinating section within the Ministry of Foreign Affairs between all the orders of government. In some instances, account has to be taken of the existence of levels of power and a non-hierarchical juridical order. As Eric Philippart states: “In many cases, Belgium can no longer participate in the work of the eu Council without the adoption of common provisional position by the different levels of power concerned.”50 A rotation system has been initiated among the communities and regions so that Belgium is represented in each ministerial council only by a single minister. At the time of the last Belgian presidency of the eu, a first in eu history occurred when the ministers of the federative states officially presided over the eu. Thus, on the basis of intraBelgian accords, the Flemish ministers of education, youth, and tourism presided over the eu Council of Ministers, while the Flemish minister of culture organized an informal ministerial council on culture.

c o m pa r at i v e a n a lys i s Belgium’s recent experience is ambiguous. It is true that subnational Belgian entities enjoy more autonomy than all other subnational entities



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concerning paradiplomacy. The new Belgian system of international relations allows regions to become true international actors, which includes having the power to sign treaties with sovereign states. As a result of the Lambermont Accords of 29 June 2001, even international trade has been regionalized. The Belgian federal states are the most vigorous subfederal actors on the international stage. Even if, a decade after the St Michel Agreements, there is little evidence of conflict between Flemish, Walloon, and federal representatives, the new system of international relations in Belgium, which can be regarded as a response to previous problems, could prove to be a new source of tension in a country that has difficulty forming coalition governments. As Eric Philippart observes, “the system has become harder to manage because it presupposes a number of vertical and horizontal actions. It is thus more diffuse, lacking in leadership and centers of gravity.”51 Will the Belgian foreign policy system survive the next constitutional crisis, which is, it seems, inevitable? In addition, according to Françoise Massart-Piérard, “the protection of territorial integrity appears to be something that is becoming an important part of the Flemish national interest. It dictates Flanders’ international behaviour.”52 For instance, Flanders is opposed to the idea of the Framework Convention on the Protection of National Minorities put forward by the Council of Europe in October 1993. According to Flemish authorities, the Framework Convention would endanger the Flemish language regime by granting additional rights to francophones in the areas surrounding Brussels. The Flemish community has therefore sought to introduce a reservation by which Belgium would not be held to have any national minorities. Thus, Belgium had to abstain from signing the convention. As Françoise Massart-Piérard emphasizes: “In this case, where matters vital to its interests were involved, the Flemish community blocked Belgium’s accession to this international agreement.”53 Despite this experience, the fact remains that in practice there are fewer conflicts between federal and central governments concerning foreign affairs in Belgium than there are in Canada. One possible explanation arises from the fact that federated states participate in the decision-making process and therefore are more likely to make the necessary legal changes to do so. In addition, in cases of inaction by the subfederal state on the subject of an international agreement, the federal state can substitute for the subfederal state, which puts significant pressure on subfederal states. In Canada, contrary to

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received ideas, the Canadian government has been required to share parts of its foreign affairs powers with the provinces because its constitutional powers are limited. Federalism and the negotiation of international agreements have necessitated ever closer federalprovincial cooperation since the 1970s. The analysis of different federal-provincial mechanisms reveals that the provinces have a limited role in intergovernmental mechanisms. Given the importance of the provincial role in the implementation of treaties that affect their spheres of jurisdiction, one might have expected more institutionalised settings that are not simply discussion fora, where decisions are taken jointly and where the federal government is obliged to take into account the views of provinces, as is the case in Belgium. Existing mechanisms remain insufficient and are the cause of numerous conflicts. For instance, it is difficult to assess in advance how Canada’s obligations under existing and projected free-trade agreements will evolve. This poses problems of scale for all levels of government but is exacerbated at the provincial level for many reasons. According to Stephen de Boer, a former senior Ontario civil servant, federal government representatives have already negotiated, without consultation, very significant undertakings that have important and irreversible effects on provincial fields of competence.54 This is the case in relation to nafta chapter 11, which involves the protection of foreign investors and their investments. According to de Boer, the failure of federal negotiators to give meaning to provincial laws on expropriation caused a number of foreseeable legal problems. The presence of a provincial negotiator at the table could have drawn the attention of federal negotiators to this issue. The same has happened with respect to international negotiations that are ongoing in international organizations. One can look to the example of the negotiations of the Multilateral Agreement on Investment (mai), which, if it had been ratified and implemented, would have placed in jeopardy a considerable part of Quebec’s model of development. Another problem linked to Canada’s international obligations arises from the fact that the provinces are not at the negotiating table before, during, and after the conclusion of a treaty. As a result, provinces do not always have a good idea of their obligations. Until recently – and it is still the case for many provinces, particularly the smaller ones – the provinces followed only from a distance the



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negotiations concerning international agreements that affected their interests. The result of this approach was foreseeable: there was a great risk that the provinces would introduce legislation that would be incompatible with Canada’s international obligations. Furthermore, it is not clear that the political decisions taken in the course of important bilateral and multilateral meetings on the means of liberalizing exchanges, in which the federal government is a participant, take account of the difficulties of implementation at the provincial level. The question is, do politicians and senior civil servants in the process of policy formulation consider the sometimes considerable difficulties of implementation at the provincial level? Since the provinces are often poorly informed about the extent of international obligations that have been negotiated or are under negotiation by the federal government, there inevitably follow inquiries from foreign governments that point out the inconsistency of provincial government policies with Canada’s international obligations. For example, if a province grants a subsidy that violates one of Canada’s obligations and a foreign government challenges Canada over this action, who should pay compensation in the case of a successful claim, the province that has not participated in the process of negotiation or the federal government, which has not made known to the province Canada’s international obligations? In Canada there is no general legal norm that regulates the responsibility of the Canadian state with respect to international law if a province does not fulfill obligations flowing from a treaty related to its sphere of competence. The federal government has had recourse to indemnification agreements concluded with a province when Canada has been held to be responsible to a foreign state for the failure of a province to fulfill an international obligation of Canada. However, this method is not always relevant, since the failure to fulfill international obligations does not always involve a financial loss. Nevertheless, Christiane Verdon emphasizes that as a general rule: “the juridical status of a federal-provincial agreement by which the provinces agree to implement a treaty by putting in place implementing legislation is not well-defined. Does it involve an agreement that creates rights and obligations whereby the penalty for failure to fulfill would be recognized by a court or does it more likely involve a political agreement that is not obligatory in law?”55 This situation risks creating multiple problems in the future. Would it not be better to reconsider the distribution of roles in the

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field of international relations? In case of a conflict, the federal government and concerned provincial governments would therefore be required to work together to defend Canada’s position. This would include provincial participation in wto dispute settlement hearings. Intergovernmental cooperation in Canada in this respect is not formalized. It is odd that the provinces do not have a more important role, because when a foreign government challenges a policy or law of a provincial government, it is the province that will have the best arguments and legal opinions to defend its position. The province in question should have the right to defend its position directly, even if only within the Canadian delegation.

conclusion Today, it is rare that Canadian federal government representatives do not consult their provincial counterparts on international matters when the powers of the provinces are affected. The problem arises instead from the fact that intergovernmental mechanisms do not cover the totality of negotiations and international organizations and that the majority of these mechanisms are poorly institutionalized. The absence of clear, consistent, and foreseeable rules is the source of many intergovernmental conflicts. In conclusion, to improve the Canadian model of managing foreign relations by adopting a multi-level governance structure, the following elements from the Belgian model could be adopted: 1  Canada’s provinces should contemplate giving a more important – if not central – role to the Council of the Federation so that the council can transform itself into a forum for discussion and coordination concerning the provinces’ international policies, somewhat like the model of the Canadian Council of Ministers of Education described above. The Council of the Federation would be the institution where provincial policy concerning universal international organizations would be decided, as well as provincial positions concerning bilateral and multilateral trade negotiations when their fields of competence are affected. It is in this institutional setting that the Belgian example of a “constructive abstention” could come into play. If the provinces cannot arrive at a consensus, Canada could abstain from taking a position that would affect provincial jurisdiction, something that would allow the



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negotiations to continue. Canada’s abstention would not block the negotiations. This mechanism would put strong pressure on the provinces to adopt a common position accepted by all. This idea of constructive abstention would make it easier to reconcile provincial interests that can diverge. Creation of such a mechanism would allow another problem to be resolved, that of the lack of representation of smaller provinces in the process of treaty negotiation by the federal government. In Canada many provinces do not have the resources or a sufficiently clear interest in the course of commercial negotiations to implement agreements concluded by Ottawa and any successor arrangements. The problem of resources has been accentuated by the crisis in public finance, fiscal imbalance, and many budgetary cutbacks in the 1990s. A foreseeable consequence of this is that a number of concerns that affect certain provinces are not transmitted to the federal level and vice versa. The proposed change would allow the provinces to develop a better understanding of matters arising from treaties ratified by Canada that affect provincial fields of competence. With such a process, the federal government would be less vulnerable to international claims that involve provincial policies. 2  The Council of the Federation could also appoint representatives who would negotiate on behalf of the provinces as part of Canada’s representation at international meetings. It would not be unthinkable for the federal government to negotiate an international agreement that would not apply to all provinces. In that case, it would not create a precedent. The treaty could equally include asymmetric measures among the provinces. Again, there are precedents for this sort of agreement. For instance, during ratification by the federal government of the convention providing a Uniform Law on the Form of an International Will, the government specified that the convention applied only to Manitoba and Newfoundland. A few months later, the convention’s application was extended to Ontario and Alberta. Another example occured in 1983 when the federal government approved the Hague Convention on the Civil Aspects of International Child Abduction. At the time of its ratification, the Hague Convention applied to only four provinces. Thereafter, the convention’s application was progressively extended to other provinces and today is in force throughout Canada.

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3 The third mechanism that could be adopted would be for the federal government to guarantee provincial participation in Canadian delegations on Canadian bilateral and multilateral policy that affected provincial fields of competence. In exchange, the provinces would undertake to ratify federally negotiated treaties within a reasonable time. The limitation of Ottawa’s exercise of powers on this question would allow for a diminution of conflicts. 4 The final proposal concerns the reciprocal requirement of information, which should be central. The federal government and the provinces should employ the mechanism of federal-provincial sectoral conferences on foreign policy. When certain matters would interest only one province, as was the case with the unesco Convention on Cultural Diversity for Quebec, it would be worthwhile to create, either on an ad hoc or on a permanent basis, a Quebec-Ottawa committee, to determine Canada’s position in the organization. 5 The federal government should recognize the right of provinces to conclude binding international agreements within their fields of competence, with certain limitations. This practice is commonplace in Canada – Quebec has concluded some 550 international agreements – and abroad. This step would remove an important source of problems.

notes Financial support for this research has been received from the Fonds québécois de la recherche sur la société et la culture (fqrsc), as well as the Social Sciences and Humanities Research Council of Canada (sshrc). The author would like to thank Nadine Khoury of the University of Sherbrooke for her comments and her assistance on preliminary versions of this work. 1 R. Dahl, Who Governs? Democracy and Power in the American City (New Haven: Yale University Press 1961). 2 M. Karns & K. Mingst, International Organizations: The Politics and Processes of Global Governance (Boulder: Lynne Rienner 2004); M.-C. Smouts, “Que reste-t-il de la politique étrangère” (1999) 88 Pouvoirs 11–29. 3 E.H. Fry, The Expanding Role of State and Local Governments in u . s . Foreign Affairs (New York: Council on Foreign Relations Press 1998); E.H. Fry, “Sub-State Strategies in an Era of Globalization and the Information Technology Revolution,” in G. Lachapelle & S. Paquin, eds.,



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Mastering Globalization: New Sub-States’ Governance and Strategies (London: Routledge, 2005) 116–23. 4 R. Kaiser, “Sub-State Governments in International Arenas: Paradiplomacy and Multi-level Governance in Europe and North America,” in G. Lachapelle & S. Paquin, eds., Mastering Globalization: New Sub-States’ Governance and Strategies (London: Routledge 2005) 90–103. 5 S. Paquin & L. Beaudoin, eds., Histoire des relations internationales du Québec (Montreal: vlb éditeur 2006). 6 S. Paquin, Paradiplomatie identitaire en Catalogne (Québec: Les Presses de l’Université Laval 2003); S. Paquin, “Les actions extérieures des entités subétatiques: quelle signification pour la politique comparée et la théorie des relations internationales?” (2005) 12:2 Rev. internationale de politique comparée 129–42; S. Paquin, “La paradiplomatie identitaire: le Québec, la Flandre et la Catalogne en relations internationales,” research note in (2005) 23:3 Politique et Sociétés 203–37; S. Paquin, “Paradiplomatie identitaire et la diplomatie en Belgique: le cas de la Flandre” (2003) 33:3 Can. J. Pol. Sci. 643–556; S. Paquin, “Globalization, European Integration and the Rise of Neo-Nationalism in Scotland” (2002) 8:1 Nationalism and Ethnic Politics 55–80. 7 P. Jain, Japan’s Subnational Governments in International Affairs (New York: Routledge 2005); N. Cornago, “Exploring the Global Dimensions of Paradiplomacy: Functional and Normative Dynamics in the Global Spreading of Subnational Involvement in International Affairs,” Workshop on Constituent Units in International Affairs, Hanover, Germany (October 2000) [unpublished]. 8 K.C. Wheare, Federal Government (Oxford: Oxford University Press 1967). 9 R. Davis, “The Federal Principle Reconsidered,” in A. Wildavsky, ed., American Federalism in Perspective (Boston: Little Brown 1967). 10 B. Badie & M.-C. Smouts, Le retournement du monde: sociologie de la scène internationale, 3d ed., revised (Paris: pfnsp et Dalloz 1999). 11 F. Scharpf, “The Joint-Decision Trap: Lessons from the German Federalism and European Integration” (1988) 66(3) Pub. Admin. 239–78. 12 D.M. Brown & E.H. Fry, eds., States and Provinces in the International Economy (Berkeley: Institute of Governmental Studies Press 1993); G. Skogstad, “International Trade Policy and Canadian Federalism: A Constructive Tension,” in H. Bakvis & G. Skogstad, eds., Canadian Federalism: Performance, Effectiveness and Legitimacy (Toronto: Oxford University Press 2001). 13 I. Bache & M. Flinders, eds., Multi-Level Governance (Oxford: Oxford University Press 2004); L. Hooghe, ed., Cohesion Policy and European

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Integration: Building Multi-Level Governance (Oxford: Oxford University Press 1996); L. Hooghe & G. Marks, “Europe with the Regions: Channels of Regional Representation in the European Union” (1996) 26:1 Publius 73; L. Hooghe & G. Marks, “Unraveling the Central State, But How? Types of Multi-Level Governance” (2003) 97:2 Am. Pol. Sci. Rev. 233; C. Jeffery, “Sub-National Mobilization and European Integration: Does It Make Any Difference?” (2000) 38:1 J. Common Market Studies 1. 14 B. Hocking, Localizing Foreign Policy: Non-Central Governments and Multilayered Diplomacy (London: St Martin’s Press 1993). 15 J.P. Meekison, ed., Relations intergouvernementales dans les pays fédérés: une série d’essais sur la pratique de la gouvernance fédérale (Ottawa: Forum des Fédérations) 105–23 [Meekison]. 16 D.J. Savoie, “Power at the Apex: Executive Dominance” in J. Bickerton & A.-G. Gagnon, eds., Canadian Politics, 4th ed. (New York: Broadview Press 2004) 145–63. 17 R. Simeon, “Conclusion” in Meekison, supra note 15. 18 Bill 52, An Act to Amend the Act respecting the Ministère des Relations Internationals and Other Legislative Provisions, 2nd Sess., 36th Leg., Quebec, 2002 (entered into force 8 June 2002). 19 É. Desrosier, “Les temps changent” Le Devoir (5 June 2004) C3. 20 “Why Canada Speaks for Quebec Abroad,” editorial, Globe and Mail (5 October 2005) A22. 21 Ibid. 22 “One Country, One Voice,” editorial, Ottawa Citizen (5 October 2005), online: . 23 “Let Canada Speak with One Voice,”editorial, National Post (2 September 2005) online: . 24 A. Pratte, “La place du Québec” La Presse (17 November 2004), online: . 25 A. Patry, Le Québec dans le monde (Montreal: Leméac 1980) 155. 26 “Some proposals concerning Canada and the International Labour Organization,” a memorandum of the Permanent Delegate of Canada to the League of Nations, 30 November, 1938, cited by R. Dehousse, Fédéralisme et relations internationales (Brussels: Bruylant 1991) 191 [Dehousse]. 27 J. Eayrs, “Canadian Federalism and the United Nations” (1950) 16 Canadian Journal of Political Science 175. 28 Dehousse, supra note 26 at 181. 29 Ibid. 30 A. Patry, La compétence internationale des provinces canadiennes (Montreal: André R. Dorais éditeur 2003) 6.



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31 S. Paquin, ed., Les relations internationales du Québec depuis la doctrine Gérin-Lajoie (1965–2005) (Ste-Foy: Presses de l’Université Laval 2006). 32 J. Zeigel, “Treaty Making and Implementation Powers in Canada: The Continuing Dilemma,” in B. Cheng & E.D. Brown, eds., Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger on his Eightieth Birthday (Agincourt: Carswell 1988); D. Turp, Pour une intensification des relations du Québec avec les institutions internationales (Québec: Ministère des Relations Internationales 2002). 33 A.C. Belluscio, “La conclusion et la mise en œuvre de traités dans les États unitaires et fédérés” [unpublished]. 34 See the Heritage Canada site: . 35 Y. Dussault, “Les négociations interaméricaines en matière d’éducation: le rôle des acteurs fédérés canadiens” (2004) [unpublished]. 36 I. Bernier, “La Constitution canadienne et la réglementation des relations économiques internationales au sortir du ‘Tokyo Round’” (1979) 20 Cahiers de Droit 673ff. 37 H.S. Fairley, “Jurisdictional Limits on National Purpose: Ottawa, the Provinces and Free Trade with the United States” in M. Gold & D. Leyton-Brown, eds., Trade-Offs on Free Trade: the Canada-u . s . Free Trade Agreement (Toronto: Carswell 1988). 38 S. de Boer, “Canadian Provinces, u.s. States and North American Integration: Bench Warmers or Key Players?” (2002) 8:4 Choices irpp 4 [de Boer]. 39 É. Philippart, “Gouvernance à niveau multiple et relations extérieures: le développement de la ‘paradiplomatie’ au sein de l’Union européenne et la nouvelle donne belge” (1998) 29:3 Etudes internationales 632. 40 Ibid. 41 Interview with Herbert Tombeur of the Flemish Ministry for Administrative Affairs, Foreign Policy, Media and Tourism (July 2001) Brussels. 42 Alen, supra note 40 at 57ff. 43 Interview with an anonymous Flemish civil servant (July 2001). 44 C.-E. Lagasse, “Le système des relations internationales dans la Belgique federale” (1997) Courrier Hebdomadaire 1549–50 at 10. 45 B. Kerremans, “Determining a European Policy in a Multi-Level Setting: The Case of Specialized Co-ordination in Belgium” (2000) 10:1 Regional and Federal Studies at 42–4. 46 Ibid. at 44. 47 ���������������������������������������������������������������������������� F. Massart-Piérard, “Politique des relations extérieures et identité politique: la stratégie des entités fédérées de Belgique” Études internationals 30:4 (1999) 714 [Massart-Piérard].

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48 Interview with Herbert Tombeur of the Flemish Ministry for Administrative Affairs, Foreign Policy, Media and Tourism (July 2001) Brussels. 49 F. Massart-Piérard, “Les entités fédérées de Belgique: Acteurs décisionnels au sein de l’Union européenne” (1999) 18:1 Politique et Sociétés 25. 50 É. Philippart, “Gouvernance à niveau multiple et relations extérieures: le développement de la ‘paradiplomatie’ au sein de l’Union européenne et la nouvelle donne belge” (1998) 29:3 Etudes internationales 639. 51 Ibid. at 640. 52 Massart-Piérard, supra note 47 at 710. 53 Ibid. 54 de Boer, supra note 38 at 7. At the time this text was drafted de Boer was senior policy advisor and team leader, Trade and International Policy Branch, Ministry of Enterprise, Opportunity and Innovation, Government of Ontario. Today he is a federal civil servant. 55 C. Verdon, “La conclusion et la mise en œuvre des traités dans les États fédérés et unitaires,” Académie internationale de droit comparé, xiie Congrès, (Montreal 1990) at 17.

part two

Canada’s Implementation of International Law

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5 On the Nature and Meaning of International Legal Obligation: Canada’s Responses to Kyoto J AY E E L L I S

introduction We Canadians are used to thinking of ­ourselves as good international citizens, respectful of international law and willing to cooperate with partners abroad to achieve shared objectives. In a similar vein, we think of ourselves as green: as respectful of the environment and appreciative of the remarkable natural landscape with which we are endowed. In recent years, however, the response of successive federal governments to Canada’s obligations under the Kyoto Protocol to the United Nations Convention on Climate Change1 has shaken that self-image. True, Canada has ratified the Kyoto Protocol, but successive federal governments have made little meaningful progress towards implementing the obligations set out in this convention or towards developing a coherent and detailed plan to do so. Therefore, the volte-face on Kyoto that occurred on Stephen Harper’s becoming prime minister may have been, in certain respects, more apparent than real. Whether it is more accurate to describe federal policy on Kyoto in terms of continuity or rupture, it is clear that the Harper government’s rhetoric is at odds with that of previous administrations, and indeed at odds with international (and now Canadian) law.2 Canadians have witnessed a phenomenon that is highly unusual in international law: a head of government publicly, unequivocally,and repeatedly declaring that his country will be in breach of international law.

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A fairly well-accepted theory exists to explain declarations by Harper and the former and current ministers of the environment, Rona Ambrose and John Baird respectively, to the effect that Canada will violate its Kyoto obligations. According to this theory, the federal government is betting that Canada can persuade other states that are parties to the Kyoto Protocol to essentially forgive Canada’s noncompliance by allowing Canada to adopt much softer targets in a second round of reductions. The emissions reductions targets in the Kyoto Protocol are to be met by 2012, and negotiations towards a new target after that date are currently under way. The Harper government appears to be preparing the ground for those negotiations. If this theory is correct – and it does seem to explain the various features of the federal government’s action and rhetoric on this matter – then Canada’s current position may be understood less as an outright rejection of its international legal obligations than as a strategy whose objective is to have those obligations reduced to the point where compliance with them would require little effort or cost. While such an attitude is clearly not grounded in a deep respect for international institutions and a willingness to commit to global environmental protection goals, it at least reflects a reluctance openly to defy international law. The government is apparently unwilling simply to repudiate its obligations,3 something that it would have the right to do.4 This is an ambiguous position, to say the least, and raises pointed questions about the government’s attitude towards international law. Much of the extensive literature on the status of international law within the Canadian legal system5 focuses on the role that courts do or should play in the domestic implementation of international legal obligations. This matter is governed by a complex series of rules of reception that have given rise to often controversial and contradictory judicial pronouncements on the legal authority of international law before Canadian courts. The goal of this chapter is not to wade into this fraught area, particularly since it seems fairly clear – as clear as is possible given the complexity of the law in this area – that the Kyoto Protocol, as an unimplemented treaty, does not have the status of law within the Canadian legal system. This does not mean that it is without relevance to Canadian law, since there is a presumption that Canadian law is compatible with conventions, including unimplemented conventions, to which Canada is a party.6 I will therefore leave to one side the question whether Canadian



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courts could or should hold the Kyoto Protocol to be Canadian law. However, the literature on responses by the courts to international law is highly relevant to understanding executive and legislative action – or inaction – in the face of the Kyoto Protocol.

bac k g ro u n d o n k yo to The Framework Convention on Climate Change7 and the Kyoto Protocol8 to that convention set in motion one of the most complex regimes in international law. The Kyoto Protocol is nevertheless based on a structurally very simple obligation: a group of states, Canada included, accepted to reduce their emissions of specified greenhouse gases by certain amounts over 1990 levels in the period 2008–12.9 The emissions reduction target, or “assigned amount,” accepted by Canada was 6 percent.10 Making matters much more complicated is a series of “flexibility mechanisms” that provide means other than emissions reductions at home for states to meet their targets. The most important of these for present purposes are the possibility of purchasing emissions credits on an international carbon market (carbon trading)11 and the possibility of earning credits by investing in greenhouse gas reduction projects in developing countries (the Clean Development Mechanism or cdm).12 The only states to have adopted binding emissions targets are developed states.13 However, two of these states, the United States and Australia, both signatories to the Kyoto Protocol, have refused to ratify the protocol. Furthermore, among developing states there are two, China and India, with very high levels of greenhouse gas emissions. Indeed, China has apparently surpassed the United States as the world’s largest emitter.14

c a n a d i a n p o l i cy o n k yo to As mentioned above, the Harper government has made it clear that Canada will not meet its Kyoto targets.15 Canadian emissions have increased by 24 percent since 1990. This situation is the result of inaction on the part of the Chrétien and Martin governments, and most certainly cannot be placed entirely on the doorstep of the Harper government. Nevertheless, current government policy, as reflected in its plan on air emissions published in April 2007,16 does not take compliance with Kyoto as its objective at all. The baseline

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year referred to in government documents is 2006, rather than 1990, and the government’s benchmarks are 2020 and 2050, rather than Kyoto’s deadline of 2012. Furthermore, these publications make it clear, at times explicitly but often implicitly through the presentation of projected emissions levels, that the Kyoto target will be exceeded by a wide margin. Critics of the government’s plan have raised concerns that the projections for 2020 and 2050 are overly optimistic and that Canada will miss its target by a greater amount than is indicated by these projections.17 The most obvious problem with the government’s plan is that its policies call for targets for industry based on intensity rather than overall emissions amounts,18 meaning that industry subject to these targets must decrease their emissions per unit of output. Kyoto, however, mandates overall emissions reductions. If industries expand their activities, their emissions will grow, even if their intensity targets are being met. The government’s plan does not set out the assumptions concerning industry activities that lie behind the projected emissions levels. There are further reasons to be sceptical of the numbers appearing in this report. New facilities are treated differently – more leniently – than existing facilities, and there is uncertainty as to the nature of the obligations they will have to assume.19 In addition, the government has created a number of flexibility mechanisms of its own, including contributions to a technology fund in lieu of meeting targets.20 The impact of participation in these mechanisms on overall emissions levels is not known, but if investment in the technology fund proves to be a popular option, emissions levels could be much greater than those projected. Not only is Canada on track to violate its Kyoto obligations, but the federal government appears already to be in breach of a domestic legal obligation to produce a plan demonstrating how it will meet its Kyoto targets. This obligation is contained in legislation introduced by Pablo Rodriguez, a backbench Liberal mp, as Bill c-288, which was adopted with the support of all three opposition parties. This legislation represents an interesting approach to bringing the Kyoto Protocol into Canadian law, calling for implementing legislation and policies. The federal government responded in August 2007 with the publication of a document entitled A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act 2007,21 but this document, like the policy document presented in April 2007, presents a policy that falls well short of Kyoto targets.22 One interesting feature of this document is the amount of space devoted to



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explanations for the shortfall, focusing on ����������������������� the disastrous implications of meeting Kyoto’s obligations for Canada’s economy. A good deal of space is also devoted to discussions of the failure of China, India, and the United States to accept emissions reduction targets.23 In other words, this document is as concerned with the presentation of excuses and justifications for Canada’s failure to respect Kyoto as with explanations of how those targets could be met. At this late stage, it is eminently clear that Canada cannot meet its Kyoto obligations through emissions reductions at home. It remains open for Canada to take advantage of the flexibility mechanisms – carbon trading and the Clean Development Mechanism. The investments required for participation in international carbon markets or in cdm projects could come from government – a possibility that both the current and the former environment ministers have consistently and roundly rejected24 – or from the private sector. The inconsistency of the federal government’s intensity-based emissions reduction targets with Kyoto’s approach, which is based on overall reductions, may pose an obstacle to Canadian firms’ participation in a carbon market for the purposes of Kyoto compliance. It is not inconceivable that Canadian firms could nevertheless engage in a doubleaccounting exercise, tracking emissions intensity for the purposes of compliance with federal government targets and overall emissions to determine how many emissions credits could be purchased. A similar approach could potentially be adopted to allow Canadian firms to sell emissions credits on international markets. However, the very different structure of Kyoto and Canadian emissions reduction obligations would have to be addressed in some manner, which would require cooperation among Canadian firms, the federal government, and Canada’s Kyoto partners abroad. In any event, the Harper government has made it clear that such cooperation is not to be forthcoming; its position is that Canadian firms will not be permitted to participate in international carbon markets.25 The federal government’s rationale for this position is based, with apparently unintended irony, on its deep respect for Kyoto objectives: it is feared that the trading of carbon permits will undermine the parties’ ability to achieve meaningful reductions in greenhouse gas emissions.26 The government is here referring to a phenomenon that has attracted criticism from a wide range of actors, namely, the widespread availability of “hot air,” or credits that have been artificially created by the size of the assigned amounts that

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the Russian Federation and other states in Eastern Europe have negotiated. These states are known collectively as countries with economies in transition, or ceits, a designation that reflects the fact that, although they are developed, industrialized states, their economies are currently performing weakly as they make the transition from centrally planned to market economies. This weak economic performance has resulted in significant reductions in their greenhouse gas emissions, reductions that are in no way attributable to emissions reduction measures within those states. As a result, ceits are in a position to sell large volumes of emissions credits that are not based on any genuine progress in control and reduction of emissions. The Harper government evokes concern with the presence of international carbon markets as hot air to justify refusal to permit Canadian participation, and although concern about hot air is far from being out of place, it is less clear that emissions trading as a whole must be rejected in response. The Harper government, after initial hesitation,27 has decided to permit Canadian firms to participate in the cdm in order to earn credits at home.28 The same concerns about the compatibility of Canada’s intensity-based targets with Kyoto’s overall reduction targets arise in this context, and the federal government has not explained how this problem might be resolved. In addition, the government does not refer to concerns that have been expressed about the potential impacts of the cdm on Kyoto objectives and on the states that are recipients of cdm funding. These concerns are real enough and merit attention and debate within Canada. 29 In an effort to shed some light on the Canadian response to Kyoto, I will turn to a scholarly debate on the issue of Canada’s rules of reception and the treatment of international law before Canadian courts. In this particular debate, particularly cogent questions are posed about Canadian attitudes towards international law generally, notably questions about where international law is situated in relation to Canada and to Canadians: are we to think of it as “there,” foreign, separate from Canadian law, or as “here,” part of our legal system and belonging to us? The main participants in this particular debate are Jutta Brunnée, Stephen Toope, Karen Knop, and René Provost.

here and there Karen Knop, in commenting on a critical article by Stephen Toope regarding Canadian courts’ responses to international law,30 introduced



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the twin metaphors of “here” and “there” to discuss two different attitudes to the question of reception.31 The central issue in the reception debate is, of course, whether and to what extent rules of international law are to be treated as formally binding before Canadian courts. Knop expresses discomfort with this preoccupation with questions of formal bindingness. She states, “In the traditional model, the court’s inquiry is structured by a set of binary choices. Under the rules of reception, the binding/non-binding distinction corresponds to the all-or-nothing application of an international legal norm domestically … The process is thus modeled as dichotomous: binding or nonbinding, all or nothing, particular or universal.”32 She continues: “By premising the use of international law in domestic courts on bindingness, the traditional model simplifies how these courts actually use international law and therefore neglects the potential of domestic interpretation as a practice for recognizing difference in international law.”33 Knop reminds us that there are various ways in which international law could be meaningful within Canada. In particular, she is concerned that an exclusive focus on the binding or non-binding status of international legal rules in Canadian law distracts our attention from the processes through which international rules are drawn out of the international legal system and made meaningful and useful within a domestic Canadian context. To speak of rules of reception that “transplant” international rules into Canadian law by attributing formal legal bindingness to them is, Knop argues, to misconceive the complexity and significance of the processes through which international rules – or rules from any legal system outside Canada – come to be incorporated into a Canadian context. In opposition to the metaphor of transplantation, she suggests the metaphor of translation.34 Rules are not plucked from one system and grafted onto another. Rather, rules, norms, concepts, and approaches located in other legal systems attract our attention and strike us as holding lessons for problems or dilemmas we are facing at home for a wide range of reasons. In reaching into other legal systems, we seek ideas and inspiration as much as packages of rules and procedures. In any event, the rules and procedures, in order to be made to function and flourish in a different context, must somehow be transformed to fit that context. Knop argues that justice can be done to this notion of translation by thinking of international law as “there,” in a manner similar to the municipal law of another jurisdiction.35 When we take foreign

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law into account in devising solutions to problems at home, the fact that a process of translation is necessary appears perhaps more obvious or apparent. Similarly, Knop argues, we should treat international law as presenting us not with ready-made rules but rather with complexes of meaning that need to be understood and reimagined before their meaning can be properly conveyed to us. Knop’s point about the need to translate rather than transplant international law is well taken, as becomes quite clear when one reflects on the elaborate process that must be undertaken at all levels of government and throughout Canadian society in order that the apparently simple formula of 6 percent over 1990 levels by 2012 be transformed into legislation, policies, behavioural changes, understandings, attitudes, and outcomes. However, I share concerns expressed by Toope and Provost regarding Knop’s reference to the model of comparative law as an appropriate one for the case of international law. Toope is receptive to Knop’s argument regarding the different ways in which courts can be open to norms of international law or those of other legal systems but notes that “the ‘foreign’ metaphor is not the whole story.”36 He refers to a different pairing of metaphors, namely state sovereignty, giving rise to a state legal system with definite boundaries, and transnationalism, whose central feature is the interpenetration of normative systems, presuming a fluidity and an openness of the boundaries around state legal systems.37 Toope argues that neither one of these two metaphors aptly describes our current situation; rather, we are operating between the two of them.38 Canadian courts must navigate between them, giving rise to two possible roles for the courts with respect to international law. On the one hand, the courts can take up the transnationalism metaphor, treating international law as a persuasive source that is highly relevant to our own context, but taking care to bring international rules through a process of translation rather than purporting to import them wholesale from the international realm. The second role, however, implies a recognition of the continued relevance of state sovereignty and of the distinctiveness of the Canadian legal system. This creates a need for courts to “take greater care to distinguish amongst international obligations that should shape Canadian law and international legal values that can shape Canadian law.”39 In other words, some clarity on the rules of reception – on when international law must be treated as binding and when it is merely open



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to courts to treat it as persuasive – must be attained. “International law,” concludes Toope, “is both ‘foreign’ and ‘part of us.’”40 Provost shares concerns expressed by Brunnée, Toope, and others to the effect that Canadian courts are already far too eager to treat international and foreign law in the same manner, namely as merely persuasive but in no respect binding.41 As for the proposition that international law be treated as comparative law, Provost points to a fundamental difference between foreign and international law: Canada is bound, at the international level, by international law.42 Provost notes that it is inappropriate for courts to treat international law as “le droit des autres,”43 for two reasons. The first, embodied in Knop’s position, has to do with the increasing interpenetration of various legal orders and the necessity of turning outwards to other legal systems when navigating our own. The second reason, however, is not referred to by Knop: international law is already “here” in that Canada has participated in its formation and is formally bound by it at the international level.44

from there to here: c a n a d a , k y o t o , a n d i n t e r n a t i o n a l l aw As I have already stated, I am less interested in the formal status of the Kyoto Protocol within Canadian law than in the attitudes toward international law that the Harper government’s reaction to Kyoto reveals. A major emphasis of the Harper government is on the distinction between the Kyoto Protocol – imposed from outside, calling for massive investment offshore in the form of purchases of carbon credits and participation in the cdm – and a “made-in-Canada approach,”45 which involves initiatives on Canadian territory based on targets and timetables set within Canada. This language is misleading in various ways. First, the Kyoto Protocol is, in an important sense, “made in Canada.” The Canadian government participated in its negotiation and signed and ratified it. Second, in line with Knop’s argument regarding the need to translate rather than transplant international rules into domestic law, any Canadian response to Kyoto will necessarily be “made in Canada” as well. The obligations that Canada has assumed under the protocol leave states with much room to manoeuvre and a large margin to develop homegrown normative, policy, and technical approaches to reaching Kyoto targets.

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Does this reaction to Kyoto – this attempt on the part of the federal government to push it away – say anything about Canadian attitudes more generally to international law? As Toope has noted, Canadians are, in many senses, very attached to international law and proud of our reputation for being a cooperative actor at the international level. But how deep do this attachment and this pride go? What are Canadians willing to do in order to live up to international commitments? As noted above, it is becoming apparent that the Harper government has its sights set on Kyoto ii – an instrument that will set out emissions reductions targets for the period following 2012. It is apparently preparing a negotiating position that calls on commitments from the developing states that are among the world’s largest emitters, commitments from the United States, and a lessening of the burden on Canada. The first two objectives are shared by many other international actors and observers of the international scene; the third is a good deal more controversial. It would appear that the Harper government is playing a two-level game: on the one hand, it is seeking to convince its Kyoto partners that Canada cannot meet its Kyoto targets and should be given a break; second, it is seeking to convince the Canadian population that attempts to meet its Kyoto targets would have disastrous results for the Canadian economy. These two games feed into one another: if the government succeeds vis-à-vis the Canadian population, its position at the international level will be strengthened, in that it will be able to point to strong domestic opposition to Kyoto and argue that its hands are doubly tied by the distance between Canada’s current emissions levels and its Kyoto targets and by domestic opposition to efforts to close this gap. This strategy could fail for various reasons: Canadians’ belief in the feasibility of significantly reducing greenhouse gas emissions, their perceptions of the urgency of the problem of climate change, and their willingness to accept the changes and the burdens that Kyoto compliance will inevitably impose. Its failure might also depend on the strength of Canadians’ commitment to international law. Committed they may be,46 but to what extent? The students enrolled in my Public International Law course from year to year provide me with a glimpse into the attitudes of Canadians to international law. One thing that strikes me is the number of students who begin the semester believing that international law is not binding on states. My students constitute a highly skewed sample of



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the Canadian public: they have demonstrated their interest in and curiosity about international law by enrolling in a non-obligatory course on the subject. Interestingly, however, they still tend to see international law as “there,” although the majority of them clearly wish to see it brought closer. This gap could of course be narrowed by more and better education of the Canadian public generally regarding international law: they could be made to see that it is “here” in that it is binding on states generally and that it is in certain circumstances binding within Canada as well. But what reasons do Canadians have for thinking of international law as “theirs,” as “here?” This question inevitably brings us onto the difficult terrain of the compatibility of international law, at the international and domestic levels, with democratic principles. True, negotiations of international conventions are becoming more transparent, with regular updates on the Internet and participation of members of civil society. Canadians can, in theory at least, exercise influence over their government’s position at these negotiations by making their beliefs and preferences known. When the issue is of a sufficiently high profile, such as is coming to be the case with global warming, the media keep Canadians abreast of developments at the international level and in the government’s position at international negotiations. On the other hand, our democratic institutions, notably the federal Parliament, have little to do with the acceptance by Canada of international obligations. The sense that international law is “there” is perhaps to be expected; what is perhaps surprising is the extent to which Canadians embrace international law and consider it their own. Ultimately, bringing international law closer to home will involve efforts to close the democratic deficit that international law suffers: the only actors with any real access to the machinery of international law are states, and not all states can claim to exercise any real influence at the international level. Yet the acceptance – or rejection – by states of international legal obligations inevitably has impacts for individuals and communities within states. Addressing the democratic deficit of international law will require, at the very least, the creation of mechanisms through which a wider range of interests and perspectives can be represented in international fora. As modest as such a recommendation may seem, it is already a very tall order in a context in which a large number of states’ governments do not provide for adequate representation of the interests of members of their populations locally, let alone at the international level.

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Closer to home, there is much that could be done to narrow the democratic deficit. Public officials could cease taking an us-versus-them approach when discussing international law, and emphasize the part that Canada plays in international institutions, including law. Canadian parliaments could adopt a practice of debating international issues and discussing their policy implications for the country and its constituent parts. Conventions could be subject to parliamentary debate prior to ratification. Parliaments and bureaucracies could make an effort to engage the public in debates and discussions as preparations for the negotiation of conventions get underway. In short, public officials should treat international law as a Canadian affair, vital to the interests and aspirations of Canada.

notes This contribution is up-to-date as of August 2008. The author would like to thank Philipp Kastner for his invaluable research assistance, as well as comments and suggestions on an earlier draft. The financial support of the Fonds québécois de la recherché sur la société et la culture is also gratefully acknowledged. 1 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, u.n. Doc. fccc/cp/1997/l.7/Add.1, 37 i.l.m. 22 (entered into force 16 February 2005) [Kyoto Protocol]. 2 See infra regarding the failure of the Harper government to respect its legal obligations under Bill c-288. 3 See, e.g., D. Bueckert, “Kyoto: Rona Ambrose fera de la figuration à la réunion de Bonn,” Le Devoir (2 May 2006) at a2. 4 The Kyoto Protocol provides in Art. 27 that three years after the entry into force of the Protocol, any party can withdraw upon giving notice, the withdrawal becoming effective one year later. 5 See, e.g., N. Affolder, “Domesticating the Exotic Species: International Biodiversity Law in Canada” (2006) 51 McGill L.J. 217; E. Benvenisti, “Judicial Misgivings regarding the Application of International Law: An Analysis of Attitudes of National Courts” (1993) 4 e.j.i.l. 159; D. Bodansky & J. Brunnée, “The Role of National Courts in the Field of International Environmental Law” (1998) 7 r.e.c.i.e.l. 11 [Bodansky & Brunnée]; J. Brunnée, “International Environmental Law in Canadian Courts” (1998) 7 r.e.c.i.e.l. 47; J. Brunnée, “A Long and Winding Road: Bringing International Environmental Law into Canadian Courts” in M.



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Anderson & P. Galizzi, eds., International Environmental Law in National Courts (British Institute of International and Comparative Law 2002) 45; K. Knop, “Here and There: International Law in Domestic Courts” (2000) N.Y.U. J. Intl L. & Pol. 501 [Knop]; J. Brunnée & S.J. Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002) Can Y.B. Intl L. 3; L. LeBel & G. Chao, “The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalising International Law” (2002) 16 s.c.l.r. (2d) 23; R. Provost, “Le juge mondialisé: Légitimité judiciaire et droit international au Canada” in M.-C. Belleau & F. Lacasse, eds., Claire L’Heureux-Dubé at the Supreme Court of Canada 1987–2002 (Montreal: Wilson and Lafleur 2004) 569 [Provost]; S.J. Toope, “Canada and International Law” in The Impact of International Law on the Practice of Law in Canada: Proceedings of the 27th Annual Conference of the Canadian Council on International Law (The Hague: Kluwer Law International 1999) 33 [Toope, “Canada and International Law”]; S.J. Toope, “The Uses of Metaphor: International Law and the Supreme Court of Canada” (2001) 80 Can. B. Rev. 534 [Toope, “Uses of Metaphor”]; G.V. Ert, Using International Law in Canadian Courts (The Hague; New York: Kluwer Law International 2002) [Ert]. 6 See Ert, ibid. at 121. 7 United Nations Framework Convention on Climate Change, 9 May 1992, 1771 u.n.t.s. 107, 31 i.l.m. 849 (entered into force 21 March 1994). 8 Supra note 1. 9 Ibid., Art. 3(1). 10 Ibid., Annex B. 11 Ibid., Art. 6. 12 Ibid., Art. 12. 13 These are the states listed in Annex i to the Kyoto Protocol. 14 See N.G. Mankiw, “One Answer to Global Warming: A New Tax” New York Times (16 September 2007) at 6. 15 The current minister of the environment, John Baird, is not given to public statements to this effect, but his predecessor in the portfolio, Rona Ambrose, stated this repeatedly and publicly: see, e.g., B. Curry, “Liberals Blasted on Kyoto; Opposition Critics Using Protocol to ‘Create Divisions,’ Ambrose Says” Globe and Mail (16 November 2006) at A4 [“Liberals Blasted on Kyoto”]; B. Curry, “Ambrose Feels the Heat as Blunders Pile Up; Critics Heap Scorn on Rookie Minister Leading Sensitive ClimateChange File,” Globe and Mail (12 December 2006) at a3 [“Ambrose Feels the Heat”]; A. Castonguay, “Les objectifs de Kyoto sont inaccessible, dit Ambrose: les emissions de ges ont encore augmenté” Le Devoir (9 April

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2006) at a7. ��������������������������������������������������������� Nevertheless, recent federal government publications presenting projections of Canada’s greenhouse gas emissions make this clear: Environment Canada, Clean Air Regulatory Agenda – Regulatory Framework for Industrial Air Emissions: In-depth Technical Briefing (30 April 2007) at 9, projecting a 72 Mt reduction in greenhouse gas emissions over 2006 levels by 2015. However, as stated in Government of Canada, Canada’s Report on Demonstrable Progress under the Kyoto Protocol: Demonstration of Progress to 2005 (2006), Canada is obligated to reduce greenhouse gas emissions by 6 percent over 1990 levels, that is, to 563 Mt. Canada’s 2004 emissions were 785 Mt, 26.6 percent higher than in 1990 and 34.6 percent higher than Canada’s Kyoto target. A reduction of 72 Mt by 2015 would clearly place Canada a long way from compatibility with its Kyoto target. More recently, in Environment Canada, A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act 2007 (2007) at 9 [Canada, A Climate Change Plan], the government stated that it is “committed to reducing Canada’s total emissions of greenhouse gases, relative to 2006 levels, by 20 percent by 2020 and by 60 percent to 70 percent by 2050.” This document also acknowledges (at 19) that in light of its recently adopted policy on air emissions, set out in Government of Canada, Regulatory Framework for Air Emissions (2007) [Regulatory Framework for Air Emissions], Canada is anticipating emissions of 739 Mt in 2012, roughly 31 percent greater than its Kyoto target. For a summary and analysis of the federal government’s projections and their implications for compliance with Kyoto obligations, see M. Bramley, Analysis of the Government of Canada’s April 2007 Greenhouse Gas Policy Announcement, Pembina Institute (28 May 2007) at 3–4 [Bramley]. 16 Regulatory Framework for Air Emissions, ibid. 17 Bramley, supra note 15. 18 Regulatory Framework for Air Emissions, supra note 15 at 7; Bramley, ibid. at 5. 19 Bramley, ibid. at 5, 11–12. 20 Ibid. at 12–14. 21 Supra note 15. 22 See discussion in note 15. 23 Canada, Climate Change Plan, supra note 15 at 20ff. See also Government of Canada, The Cost of Bill c-288 to Canadian Families and Business (2007). In this document, the claim is made that a carbon tax of $195 per tonne of greenhouse gases would have to be imposed. By contrast, the Green Party of Canada has called for a carbon tax of $50 per



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tonne: B. Curry, “Carbon Tax Won’t Hurt Economy, Report Says; Findings Back Idea That Taxing Emissions Gets Results, Green Party Leader Says” Globe and Mail (21 June 2007) at a11. This same article cites a report prepared by Marc Jaccard for Natural Resource Canada’s Office of Energy Efficiency that presents projections for impacts on the economy of carbon taxes ranging from $10 to $250. This report, which was obtained by Green Party leader Elizabeth May under access-to-information legislation, indicates that a $50 carbon tax would remove $4.8 billion from the Canadian economy in 2010, representing about 0.09 percent of gdp, but that the impact of such a tax would be slightly positive by 2020. The Cost of Bill c -288 has been criticised by a number of Canadian economists: L.-G. Francoeur, “Kyoto: Les économistes rejettent le plan Harper: une erreur au plan environnemental et économique” Le Devoir (7 June 2006) at a3. 24 For Ambrose’s position, see, e.g., D. Bueckert, “Le Canada n’aidera pas les pays pauvres à combattre les gaz à effet de serre” Le Devoir (11 September 2006) at a2; “Minister Says Made-in-Canada Environmental Plan Coming,” ctv – Canada am (3 May 2006). 25 The government’s position was not clear while Rona Ambrose held the environment portfolio. Ambrose made frequent comments to the media about the possibility of an emissions trading system to be based in Montreal: see “Liberals blasted on Kyoto,” supra note 15. The current minister, John Baird, has been clear in his rejection of Canadian participation in a carbon-trading system under Kyoto, citing concerns about an abundance of credits from Russia and other countries of the former Eastern Bloc that result from an economic downturn rather than from new and effective environmental controls. On the other hand, he has referred to the possibility of a North American trading scheme: B. Curry, “Canada to Ban Traditional Light Bulbs: By 2012, Retailers Will Be Required to Stock More Efficient Lighting such as Compact Fluorescent and Halogen Bulbs” Globe and Mail (26 April 2007) at a11. 26 See Regulatory Framework for Air Emissions, supra note 15 at 13ff. 27 Ambrose was highly critical of the cdm: “Ambrose Feels the Heat,” supra note 15. Baird, for his part, has accepted it: G. Galloway and B. Curry, “Green Plan’s Cost Pegged at $8 Billion a Year: Environment Minister Defends Price Hikes on Cars and Appliances as Necessary Sacrifices” Globe and Mail (27 April 2007) at a1. 28 Regulatory Framework for Air Emissions, supra note 15 at 15ff. 29 For a good overview of the contributions and drawbacks, actual and potential, of the cdm, see Jane Ellis et al., “cdm: Taking Stock and Looking Forward” (2007) 35 Energy Policy 15. Among the concerns referred to are

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the concentration of cdm projects in a small number of relatively wealthy states that already attract a significant amount of foreign direct investment, doubts about the extent to which cdm projects will result in collateral benefits such as technology transfers to the states in which they are realised, and concerns about the relatively small contribution of current cdm projects to sustainable development goals beyond reductions of greenhouse gas emissions. 30 Toope, “Canada and International Law,” supra note 5. 31 Knop, supra note 5. 32 Ibid. at 515. 33 Ibid. at 518. 34 Ibid. at 506. 35 Ibid. at 525. 36 Toope, “Uses of Metaphor,” supra note 5 at 540. 37 Ibid. at 534. 38 Ibid. 39 Ibid. at 540. 40 Ibid. 41 Provost, supra note 5 at 583. 42 Ibid. at 585. 43 Ibid. 44 Ibid. 45 See, e.g., B. Curry, “Energy Producers Left in Dark over Future” Globe and Mail (31 August 2006) at a6. 46 Recent polling data suggests that the environment generally and climate change in particular is rising to the top of Canadians’ concerns: see e.g., B. Laghi, “Climate Concerns Now Top Security and Health” Globe and Mail (26 January 2007) at a1.

6 Economic and Social Rights in an Era of Governance and Governance Arrangements in Canada: The Need to Re-visit the Issue of the Implementation of International Human Rights Law LUCIE LAMARCHE This chapter is not about the “legal” nature of social and economic rights, despite its title. It will nevertheless take as a basis of discussion the United Nations International Covenant on Economic, Social and Cultural Rights (cescr), which Canada ratified in 1976,1 while keeping in mind that all human rights are interdependent, indivisible, and guaranteed by different international human rights instruments.2 Generally acknowledging the indivisibility of all human rights, as well as of the legal nature of economic and social rights, is not the same as saying that the domestic implications of such recognition are well understood by the courts or by the governments in Canada. In that regard, Canadian and foreign academics have written excellent pieces both about the legal nature of economic and social rights and its consequences3 and about the Charter implications of the cescr ratification by Canada.4 The time to revisit the consequences of what was probably the most unnoticed Canadian commitment at the time of signature, ratification, and acceptance by provinces – namely, the cescr and its obligations in practice – has now come about. Despite three decades of Canadian adherence to the un human rights framework, including the International Bill of Rights and its associated instruments, no one can seriously pretend that Canadians are better off today. In fact, data shows the exact opposite.5

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Civil society’s organizations are better informed today about the role of governments as “duty holders”6 in respect of human rights and are active at the international level, notably when the time has come for the UN Experts’ Committee to assess the domestic implementation of economic and social rights guaranteed under the cescr.7 As a consequence of civil society intervention, the committee is being more and more critical of Canadian governments’ poor understanding of their international obligations – whether at the federal, territorial, or provincial level. Obviously, in this regard our house is not seen to be in order. That said – and the problem has been written about extensively by other authors – I want to raise some issues that make the architecture of this “house” even more complex in an era of decentralization, privatization, and new governance arrangements. Until quite recently, accountability concerning international human rights was restricted to judicial accountability. The expectation seemed to be that the proper levels of government would implement internationally guaranteed economic and social rights by adopting appropriate legislation in conformity with the Canadian Charter of Rights and Freedoms. But times are changing. In the first section of this chapter I intend to re-visit some assessments of the implementation of cescr made by the UN Experts’ Committee regarding Canada, in order to illustrate some unspoken challenges that these assessments raise in the context of the Canadian federation. In addition, I would like to underline that the committee’s observations do not necessarily provide useful guidance concerning the challenges raised by the context of the Canadian federation. The second section will address the modern notion of governance, as opposed to a more classical reading of jurisdictional issues as related to social law and social rights in Canada. Increasingly, the “international personality” of Canada is challenged by the international action of provinces and subordinate-level agencies of governments. If we accept a broad definition of social rights, it is possible to maintain that such actors are now playing a decisive and autonomous role in respect of them, although this behaviour is sometimes uncontrolled and contradictory. The third section will raise questions related to the notion of accountability in the context of new governance arrangements. What can we really expect from the classical actors in the Canadian federative regime as they outsource in a more systematic manner their



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obligations in the field of economic and social rights? Using some ongoing research in Quebec,8 I will offer examples to illustrate the point. At their core, the questions I raise concern as much the role of nonstate actors and public subgovernmental actors as federal and provincial governments in the same role. Accordingly, putting our house in order may require renewed attention and a renewed framework.

e c o n o m i c a n d s o c i a l r i g h t s i n c a n a da : the mysteries of a federal state Hugo Cyr argues that the Labour Conventions9 case of 1937 rightly concluded that a distinction should be made between the federal government’s treaty-making power and the implementation process of a treaty in the context of Canadian federalism. He proposes that such a distinction respects the jurisdictional powers of provinces as provided for by the Constitution Act, instead of subordinating them to the Canadian Parliament. Cyr’s analysis seems to me to be incomplete in regard to social law and social rights in Canada. In fact, for a long time provincial and federal jurisdictions had been more in a cooperative than in a competitive relationship in regard to social law, something that ended in the 1990s when the Liberal government started to off-load social responsibilities onto the provinces in a unilateral manner.10 The fact that the Supreme Court of Canada’s decision in Reference re Employment Insurance Act (2005)11 was followed by an agreement between Quebec and the federal government12 confirms – rather than denies – this harsh reality. After all, this was about Quebec! Social law in Canada today is indeed a complex amalgam of cooperation, confrontation, transfer of tax points, debate about national standards, and off-loading onto the provinces.13 But as complex as it may be, the current state of social law needs to be assessed against the fact that Canada’s ratification of the cescr in 1976 proceeded with absolutely no provincial opposition. The Labour Conventions case thus becomes more or less irrelevant. What really matters is the implementation of international human rights law in a federated state such as Canada in light of the systematic and generally resistant attitude of the provinces. In other words, although it sounds reasonable to promote the distinction made between treaty-making and treaty implementation in the Labour Conventions case, it seems that provincial governments chose the opposite approach when

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confronted by issues related to the international monitoring of their commitments under the cescr. What I will assert is that they habitually ignore the monitoring process and behave as though treatymaking and treaty implementation in respect of social obligations are both a federal issue. In the last decade various provinces have been asked by various un committees, and in particular by the cescr Experts Committee, to properly implement economic and social rights guaranteed under the cescr. These demands normally are consolidated in the concluding observations that the committee adopts after having examined periodic implementation reports produced by Canada. Here it is important to recall that cescr article 28 states that the provisions of the covenant shall extend to all parts of federal states, without limitation or exception.14 For this reason, the cescr committee occasionally has expressed itself in a double-aspected manner. When adopting its concluding observations in 1998, the committee spoke directly to the provinces: The Committee notes with concern that at least six provinces in Canada (including Quebec and Ontario) have adopted “workfare” programmes that either tie the right to social assistance to compulsory employment schemes or reduce the level of benefits when recipients, who are usually young, assert their right to choose freely what type of work they wish to do. In many cases, these programmes constitute work without the protection of fundamental labour rights and labour standards legislation. The Committee further notes that in the case of the Province of Quebec, those workfare schemes are implemented despite the opinion of the [Quebec] Human Rights Commission and the decisions of the Human Rights Tribunal that those programmes constitute discrimination based on social status or age.15 However, in its conclusion the committee recommended specific changes directed at the federal government: “The Committee, as in its review of the previous report of Canada, reiterates that economic and social rights should not be downgraded to ‘principles and objectives’ in the ongoing discussions between the Federal Government and the provinces and territories regarding social programmes. The Committee consequently urges the Federal Government to take concrete steps to ensure that the provinces and territories are made aware of their legal



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obligations under the Covenant and that the Covenant rights are enforceable within the provinces and territories through legislation or policy measures and the establishment of independent and appropriate monitoring and adjudication mechanisms.”16 In 2006 the committee appeared to return to an understanding of international law that conceives of Canada as a federal state with shared responsibility for Canada’s obligations in the sense that is reiterated in its 1998 recommendation. On the other hand, it also tried to avoid the problem of overreaching by proposing what may look more like a “unitarian state” solution to the case of Canada: “The Committee reiterates its concern that federal transfers of social assistance and social services to provinces and territories still do not include standards in relation to some of the rights set forth in the Covenant.”17 The committee seems to be hereby insinuating, without more analysis or justification, that the only means of guaranteeing respect for the cescr in a federated state is to ask the federal government to control such matters by adopting national standards. It is true that national standards had been a preferred way of controlling federal expenses and transfers to provinces in the field of social rights. The classic example is the original Canada Assistance Act18 (until its abrogation) and now the Canada Health Act.19 Some may believe that the “national standards” approach may represent the most efficient way politically to implement the cescr in Canada. But a political solution is not a legal answer to the complex issue of the relationship between the provincial and federal governments in Canada and the question of responsibility for international human rights. It is quite clear that Quebec, for example, would disagree with a “unitarian state” approach to the problem. The cescr Experts Committee also operates under the impression that an institutional mechanism called the Federal-ProvincialTerritorial (fpt) Human Rights Committee is an existing and valid procedure in Canada. Yet in a public presentation at the University of Ottawa in March 2007, former Liberal justice minister Irwin Cotler quite rightly reminded the public that he regretted not having had the time during his mandate to revitalise the committee – a committee that has not seriously met for the last seventeen years! Quite clearly, the question of the implementation of economic and social rights in Canada goes beyond the scope of the constitutional debate: provinces simply do not care about economic and social rights and find an “anti-Labour Conventions” approach convenient

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as a means of cloaking the issue of their responsibility for international human rights obligations. Would the revival of the fpt Human Rights Committee fix it? An unqualified “yes” could be dangerous, since the provinces are otherwise more and more assertive on the international stage, but my point is here that they are assertive precisely when they want to be. When they do not want to be, then responsibility is another matter.

i n t e r n a t i o n a l l aw a n d t h e p rov i n c e s : “ o u t c o m e ” ? The case of Quebec is undoubtedly the most interesting when we look at the assertion of international personality by Canadian provinces. The following statement by the government of Quebec speaks for itself: Increasing numbers of norms and standards resulting from international conventions and agreements have a direct impact on the responsibilities of the Government of Quebec. Its ability to make collective decisions, enact legislation, and adopt regulations is now influenced by these international norms. The government can either be subjected to these changes or strive to influence events in a direction favourable to its interests and the values of Quebec’s society. Quebec has opted for the second alternative. In order to achieve this, it must be able to join the networks responsible for setting the norms, have access to foreign decisionmakers, and avail itself of every possible means in order to have a real influence in the international arena.20 Two priorities flow from this position: (1) the government of Quebec wishes to increase its presence and participation in international organizations, as well as in negotiations and discussions dealing with Quebec’s interests, and (2) the government of Quebec wishes to intensify relations with political and economic decision makers of countries, federated states, and regions having shared interests with Quebec. As can be seen from the Quebec Department of International Relations website, Quebec wants the government of Canada to recognize the legitimate role of non-sovereign entities in international relations. In fact, the province, alone or in conjunction with other neighbouring provinces and states, has been acting as a sovereign



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entity or as a quasi-sovereign entity in regard to a number of different subjects. It concluded environmental cooperation agreements with New England states and has participated, within the framework of the New England Governors’ Conference and the Eastern Canadian premiers, in a number of action plans that deal with concerns shared by all members: acid rain, cross-border atmospheric pollution, mercury, and climate change.21 In 2004, Quebec and New Hampshire signed a bilateral agreement on security. The agreement aims to increase the sharing of information, particularly on possible terrorist threats on both sides of the border. Quebec and New Hampshire are presently working together on security matters as part of the Canada-United States Cargo Security Project, and they previously concluded two agreements concerning trans-boundary environmental impacts and cultural cooperation.22 Some observers might see these “soft” international activities with provinces or neighbouring states (that are not, strictly speaking, convention- or treaty-making) as business as usual. After all, Canada’s provinces signed the Agreement on Internal Trade in 1984,23 and this agreement respects their jurisdictional autonomy. But from a human rights perspective, such a conclusion would be a bit simplistic for at least two reasons: first, provinces are increasingly involved in activities that could potentially threaten or infringe human rights, as in the field of border security, for example. Second, the provinces tend to act as quasi-sovereign actors – if not states – in several respects, thereby blurring the classic division in international law between state and substate entities. If my view is right, it then indicates that Canada has come a long way since the Labour Conventions case. Because the implementation of international commitments has often been described as “the” constitutional issue in the Canadian context,24 it is possible to wonder how Canada and Canadians intend to approach the auto-determination by provinces of the extent of their human rights commitments without paying substantive or explicit attention to the International Bill of Human Rights? One of two things could result: either Labour Conventions would need to be revisited in the light of increasing international activity by the provinces, or all provincial activities would need to be submitted to a federal state-centric control mechanism aimed at protecting human rights. Is this last option viable in contemporary international society, where we seem to like to recall that “the global is also the local”?

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Other approaches emphasizing the “role of non-sovereign entities in international relations” can be derived from governance theory. In a recent book, Harvey Lazar and Christian Leuprecht propose the following definition of governance theory, which they also describe as a case of multilevel governance: “a condition of power and authority that is shared in institutional relationship in which the scope of public policy and the mechanisms of policy making extend by necessity beyond the jurisdiction of a single government.”25 According to human rights theory, it is the state that is ultimately accountable for implementing treaty and non-treaty obligations in the field of human rights. This does not imply that the state, as an international sovereign entity, is the only actor responsible for the appropriate policy-making process. At the moment that some rights, such as social and economic rights, require more than legislative implementation, the issue then becomes one of mainstreaming in a cohesive manner all public actors’ decisions in a way that is compatible with the rights’ requirements and their authentic realization. Consequently, governance and governmental responsibility are not incompatible if a dialogue about human rights as a process is promoted. This aspiration to dialogue is obviously not the case in Canada at present. The presence of numerous non-classic actors in the landscape of inter-regional, provincial, and local agreements and protocols constitutes a twin challenge: on one hand, such actors are less concerned about the limits of their constitutional or statutory jurisdiction, while on the other they are not called upon to account for human rights. This division applies with a vengeance in the field of human rights, where many different ways of implementation are provided for and are necessary, as is recognized under the cescr. Municipalities comprise another level of international actors in global governance.26 In this case, the puzzle of power and responsibility is still more profound, since under Canadian administrative law municipalities are provided with only the powers set out in their constitutive charters. Two examples will illustrate the issue I am pointing to here. In 2000, at the invitation of the un mayors from all over the world gathered in Venice to constitute the UN Advisory Committee of Local Authorities, a new advisory organism. The Declaration of Venice was followed by the creation of the United Nations Human Settlements Programme (UN Habitat)27 and in 2004 by a high-level Group of Experts on Decentralization (agred), whose mission is to guide international dialogue on decentralization and



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urban life. According to UN Habitat, decentralization is a process that reflects the interdependence of various spheres of governance. In the course of its recent work the Governing Council of UN Habitat has referred to the principle of subsidiarity as the underlying rationale for the process of decentralization and has noted, “according to this principle, public responsibilities shall be exercised by those authorities which are closest to the citizens.”28 The explicit connection between citizenship, human rights, and decentralized governance is perhaps the most striking aspect of this approach. Mayor Yves Ducharme of Gatineau, Quebec, co-chaired agred from 2004 to 2007. When reviewing a speech Ducharme delivered in 2004 in the context of the founding meeting of agred, one can see how Canadian municipalities are being anything but shy about their contribution to “Canada’s place in the world”: diplomacy, peace-building and international relationships, economic development and trade, and overseas development assistance were all identified as important issues.29 Clearly, municipalities, as subsidiary public actors, intend to share the load of Canada’s Department of Foreign Affairs and International Trade, mainly because they represent citizens that see themselves as part of a networked world and, in addition, because they can indeed be significant actors in international cooperation. Thus, municipalities can also be seen as “actors” in global governance and “duty holders” in matters related to human rights. If the example of municipalities as international actors reinforces the classical paradigm of international relations, the following one may extend it a bit further. The Montreal Charter of Rights and Responsibilities (mcrr)30 came into force in January 2006. It is the first charter of its kind adopted by a major Canadian city. The mcrr covers the main sectors of municipal activity: democracy, economic and social life, cultural life, recreation, physical activities and sports, environment and sustainable development, security, and municipal services. It is an ordinary bylaw that provides for the designation of Montreal’s ombudsman to promote mediation, and it looks for solutions when citizens and the city or boroughs disagree on issues covered by the charter. The mcrr is a transposition of the European Charter for Safeguarding Human Rights in the City Initiative (2002),31 whereby large municipalities commit themselves to guarantee human rights in

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urban areas. The preamble to the mcrr emphasizes the connection between the mcrr and international human rights law in clear terms: Whereas citizens enjoy the rights and freedoms proclaimed and guaranteed by the Universal Declaration of Human Rights of December 10, 1948 and under international and inter-American human rights conventions ratified by Canada and to which Quebec has declared itself a party; Whereas all basic rights are indivisible, interdependent and interrelated under the Vienna Declaration issued by the World Conference on Human Rights (1993); Whereas citizens enjoy the basic rights under the Quebec Charter of Human Rights and Freedoms (1975) and the Canadian Charter of Rights and Freedoms (1982). Clearly, the city of Montreal ombudsman will eventually be asked to interpret human rights in accordance with international standards. Such action may or may not be compatible with the position of Canada at the international level. Access to water presents an interesting case study. Chapter 2 of the mcrr, entitled “Economic and Social Life” (articles 17–18) states that the city of Montreal is committed to providing citizens with access to sufficient quantities of quality drinking water (article 18(f)) and to ensuring that no citizen is denied a supply of drinking water for economic reasons. Yet in 2002 Canada was the only country to vote against a un resolution entitled Promotion of the Realization of the Right to Drinking Water and Sanitation, which was adopted by the former SubCommission on the Promotion and Protection of Human Rights.32 The Canadian government has since then declared that water is an important issue but maintains that countries are responsible for ensuring that their own populations have access to it. Canada has clearly stated that it does not believe that international law should recognize the existence of a right to water.33 Canada also does not support the cescr Experts Committee General Comment No. 15, entitled The Right to Water,34 although such a right is implicitly contained in the cescr. In the light of the above, this “local” stewardship of an internationally recognized right may provide effective remedies for the population, even if the right to water is not guaranteed either by the



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Canadian Charter or by the Quebec Charter. The drafters of the mcrr took great care in expressing the soft nature of the document. But no one can predict how courts will eventually consider such a by-law in the process of adjudication. Consequently, the mcrr is a clear case where a local government acts in the realm of local or urban governance and attempts to actualize human rights for rights holders, although this may have unpredictable results in the future. From that standpoint, it does not really matter that the city of Montreal is acting within the limits of its jurisdiction or that the province of Quebec holds jurisdictional power over water. Since the city of Montreal evidently took inspiration from the international law of human rights in proposing and adopting the mcrr, experience with the document suggests that the debate over the implementation of Canada’s international commitments towards human rights soon may turn. We see movement towards the search for accountability mechanisms at the sub-provincial level and at other levels where human rights standards find an institutional framework for the purpose of policy-making. Historically, municipalities were described more as “policy-takers” than as policy-makers. The era of multi-level governance may change the big picture in that regard. Ultimately, the above examples raise the point about the subsisting treatymaking power of the federal government, since initiatives taken by other levels of governments point in different directions and in a manner unrelated to the theory of powers as provided for under the Canadian Constitution. So far, the examples and discussion in this chapter have remained focused on the realm of public actors’ behaviour. However, when social and economic human rights are concerned, the portrait is largely incomplete if no account is taken of the phenomena of the outsourcing of state activities and the place of non-state actors in the same context. The point I would like to make in the last section of my contribution concerns the capacity of non-state actors in modern governance arrangements to redesign and redefine the limits and the scope of recognized human rights for which Canada holds international responsibility. Are non-state actors new duty holders in regard to human rights or new unaccountable actors?35 The case of Quebec, where community actors have long claimed a right to act autonomously in the delivering of social

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goods, will be briefly examined. Since Quebec is often described as the most “social” province of Canada, it makes for an interesting case study.

n e w p u b l i c m a n ag e m e n t, g ov e r n i n g arrangements, community actors and human rights in quebec: a sustainable bouillabaise? New Public Management (npm) is a management philosophy that has been used by governments since the 1980s to “modernize” the public sector. Based on the idea of public choice and on the managerial school of thought, npm seeks to enhance the efficiency of the public sector and the control that government has over it. The main hypothesis of npm and the wave of reform that it has created is that more market orientation in the public sector will lead to greater cost efficiency for governments, without having negative side effects on other objectives and considerations. npm reflects a change in attitude: the idea is to make the public system function like the private sector. Some modern authors define npm as a combination of disaggregation (splitting large bureaucracies into smaller, more fragmented ones), competition (between different public agencies and between public agencies and private firms), and incentivization (along more economic/pecuniary lines).36 In Canada, experience with npm was patterned on previous experience in New Zealand, Australia, and the United Kingdom.37 The most distinctive organizational innovations of npm in the Canadian public sector go under the rubric of “alternative service delivery,” which has been defined as a process of public sector restructuring that improves the delivery of services to clients by sharing governance functions with individuals, community groups, and other government entities.38 The province of Quebec has distinguished itself by strong governance arrangements with community groups known as pcps (Public Community Partnerships). A pcp is based, on one hand, on parameters promoted by the 2000 Public Administration Act39 and, on the other, by a policy introduced in 2001 named Community Action: A Crucial Contribution to the Exercise of Citizenship and the Social Development of Quebec,40 supplemented by the 2004 Cadre de référence en matière d’action communautaire.41



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With these documents in mind, the Quebec government has recently been active in concluding pcp agreements and even in adopting laws that provide for the terms of such agreements. The case of the Chagnon Foundation is illustrative.42 In June 2007 the Quebec National Assembly assented to the Act to Establish the Fund for the Promotion of a Healthy Lifestyle.43 The adoption of this act is in line with the creation of a partnership between the government and the Chagnon Foundation aimed at fostering healthy nutrition and active lifestyles. The minister of employment and social solidarity and the Chagnon Foundation also signed an agreement in June 2007 to increase the support provided to family daycare providers in underprivileged communities. This three-year, $12.6 million agreement will be used to foster child development, improve underprivileged children’s chances of school success, and facilitate social integration. Such agreements and dedicated legislation are the result of the adoption in 2002 of Quebec’s Act to Combat Poverty and Social Exclusion,44 article 11 of which states that “actions to promote the involvement of society as a whole must provide for the inclusion of stakeholders representative of the broader Quebec community. For that purpose, such actions must, in particular … recognize the social responsibility of enterprises and include the labour market partners; and recognize the contribution of volunteer and community action.” An update provided by the Community Action Secretariat of the Quebec Government for 2004–5 states that in that year approximately $630 million was distributed to some five thousand community groups for pcp contracts under seventy-five different government programs.45 The provincial ministries of Labour, Family, and Social Services were the main providers of such contracts. New governance arrangements in this “land of social service delivery” highlight not only the “contractualization” of government functions but also new accountability models anchored in the “result-based management” approach promoted by the Quebec Public Administration Act. Accountability mechanisms cover different types of protocols, agreements, and regional frameworks that structure the relation between the state and the community services providers. But analysis of such documents reveals a general silence around the “user’s rights,” confined to the cluster of customer’s rights. In other words, the mixture of npm and governance arrangements termed “pcp” seems to confuse two issues: one related to what the

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state commits itself to deliver and the other that requires an assessment of the correlation between what is delivered and what has to be delivered in order to promote and protect the “consumer’s” or the “client’s” human rights. Many questions in this regard will require serious exploration in years to come. Some paths of inquiry are offered in the growing literature in this field, since different expressions are used to describe the pcp process: governance by contract;46 privatization, deregulation, outsourcing, or downsizing;47 or privatization of the state.48 Basically, the literature explores the question of the nature of such contracts and their qualification in the light either of public administrative law49 or the international law of human rights.50 The United Kingdom is even more sensitive to the potential for a clash between npm-inspired service delivery and human rights because of the passage in 1998 of its Human Rights Act and of the continuing privatization process begun under the Thatcher government.51 The u.k. Charity Commission felt the need to explain that the Human Rights Act applies only to those charities that undertake public functions (for example, functions that a charity undertakes for, or instead of, a central or local authority) and that even where it does apply to a charity, the act relates only to its public functions and not to any functions that are of a private nature (for example, charitable purposes that are not undertaken pursuant to a statutory mandate).52 The closest that Canadian law comes to this sort of situation was reflected in the Supreme Court of Canada’s decision in Eldridge,53 in which a deaf patient was denied sign language interpretation when giving birth in a Vancouver hospital. One of the issues at stake was summarised as follows by La Forest J.: “Legislatures have created many other statutory entities, however, that are not as clearly autonomous from government. There are myriad public or quasi-public institutions that may be independent from government in some respects, but in other respects may exercise delegated governmental powers or be otherwise responsible for the implementation of government policy. When it is alleged that an action of one of these bodies, and not the legislation that regulates them, violates the Charter, it must be established that the entity, in performing that particular action, is part of “government” within the meaning of s. 32 of the Charter.”54 La Forest J. concluded that a “private” hospital in Vancouver was clearly an agent of the government for the purpose of the Hospital



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Insurance Act and that accordingly, s. 15 of the Canadian Charter of Rights and Freedoms, which sets out a standard of substantive equality, applied to the hospital’s provision of health services: in the present case there is a “direct and ... precisely-defined connection” between a specific government policy and the hospital’s impugned conduct. The alleged discrimination – the failure to provide sign language interpretation – is intimately connected to the medical service delivery system instituted by the legislation. The provision of these services is not simply a matter of internal hospital management; it is an expression of government policy. Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act. The Legislature, upon defining its objective as guaranteeing access to a range of medical services, cannot evade its obligations under s. 15(1) of the Charter to provide those services without discrimination by appointing hospitals to carry out that objective. In so far as they do so, hospitals must conform with the Charter.55 It is precisely this strong link between government and agent that npm-inspired governance arrangements erode. npm governance privatizes relations between the citizen-client and the provider of many different kinds of social services. As a result, many human rights abuses will be excluded from the scope of existing human rights protections against government and be confined, at best, to the scope of federal and provincial human rights codes. In the case of Quebec’s pcp it could be said that the method of service delivery, which is designed to regulate, among other things, private contractual relations, is made questionable by its introduction of alternate resolution mechanisms in the case of abuse: ethics committees, ombudspersons, and even express ethical commitments embedded in the contract between the state and the not-for-profit community service provider. Clearly, Quebec is working at transforming the nature of what La Forest J. termed in Eldridge “government’s entities” in the execution of a public mandate. This attempt constitutes a convincing case of the privatization of international human rights standards. An additional point to remember is that community service providers are often small not-for-profit entities that come and go. In

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comparison with charities, the size of their activities and the specifics of their model of governance (often membership-driven) do not permit a clear distinction between their community mission and the service delivery component of their activities. This reality reveals that pcp constitutes a form of “privatisation by stealth.” Furthermore, community groups often do not see themselves as providing public services. In certain cases they will assert their autonomy, even when providing public services. Consequently, the pcp looks more like a bouillabaisse than like a chosen virage, or departure, from the public to the private. The frontier between the not-for-profit private sector and the for-profit one is becoming more blurred and looks surprisingly like a form of conflation prescribed by the npm theory. This raises the issue of the accountability for human rights of nonstate community actors that deliver a myriad of different social services. Let us use a hypothetical – or perhaps not so hypothetical – example. A not-for-profit community group provides social housing and manages housing units for the benefit of mentally challenged adults. Users participate in the management of the group but are deprived of the benefit of a lease, notwithstanding the number of years of residence, normally as a form of user protection in order to prevent the imposition of tenancy requirements on a vulnerable population. A user, experiencing a severe depression, develops disturbing behaviour. The group’s administrators decide to expel him from his housing unit without any regard for the provincial tenancy law. This is because in the pcp contract between the Ministry of Social Services and the not-for-profit community group there is no reference to the requirement of the not-for-profit community group to respect the tenancy law. Instead, the purpose of the contract is described as being to provide for results-based monitoring of a client’s autonomy. Consequently, the disturbed resident has no legal security of tenure. The net result of this three-way arrangement is to restrict the tenant to seeking recourse against the administrators and to eclipse any liability of the province as a duty holder in regard to the right to housing. Results-based contracts increasingly dominate the Quebec scene. Is it therefore time to demand the inclusion of a contractual clause providing for the duty of non-state actors executing statutory obligations to protect the human rights of users? Or should we simply continue to recall the accountability of provinces in the field of human rights, notwithstanding the fact that this is increasingly diluted by contract law?



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discussion and conclusion Multi-level governance and new governance arrangements are altering discussion about the implementation of human rights treaties in Canada. Social and economic rights usually fall within the jurisdiction of the provinces, which have traditionally hidden behind the responsibility of the federal government at the international level. Notwithstanding this behaviour, it is the responsibility of provinces in large part to make such rights real. This explains why the model of a federal-provincial-territorial ministerial committee on human rights is normally pointed to as the solution to the complex case of federated states and their responsibility under international law. In the context of governance and governance arrangements, all actors – public and private – may decide to commit themselves internationally to realize human rights by various methods. Alternatively, they may ignore human rights and at the same time be the real actors in human rights’ implementation through the delivery of social goods as a result of results-based contracting. Increasingly, the implementation of social and economic rights in Canada relies on the private law of contract. At the same time, subgovernmental and public actors are behaving as “non-sovereign entities engaged in international relations” of a different kind. International relations driven by those entities, as well as private law, are somehow developing in a chaotic or anarchic manner, but with state approval under the influence of the new public management theory. Is our house in order? In respect of internationally protected social and economic rights, of course not. And why should we proceed to make order? Because the beneficiaries of those rights still have them! It becomes clearer and clearer that only a proposal aimed at promoting the liability of “other” actors, such as municipalities or nonstate actors, in regard to human rights can provide an appropriate answer to the growing disconnect between duty holders and rights holders. Such a proposal could take inspiration from the un’s efforts to articulate Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights.56 It is not only transnational corporations investing abroad that are concerned with the implementation of human rights and that have obligations. According to the emerging theory of the horizontal duty of actors that do not make treaty law,57 non-state actors at least have the duty not to violate human rights. Some entities,

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such as sub-governmental actors, seem to want to do more internationally, while others, such as community groups, seem to believe that the sole fact of their being “good intentioned” will suffice for them not to violate such rights. To whom and how should they both be held accountable? This question raises more fundamental ones that deserve serious attention: how much of human rights standards should belong to the law of contract? Is the distinction between public and private agents still a sustainable one? Which actors have the legal legitimacy to take on the implementation of international human rights standards? Such questions are not simple, and they evolve differently from one part of Canada to others. For sure, though, they highlight the urgent need to move beyond the classical Canadian academic debate based on the Labour Conventions (treaty-making power) case and focus more and more on different ways, loci, and methods of insuring the respect of social rights in Canada (implementation). They touch on issues related to multi-level governance, human rights mainstreaming at all relevant levels of policy-making, and the relationship between contract law and human rights. If I am allowed a short wish list to close this chapter, it would go this way: 1 In the context of the well-acknowledged need for an efficient ­federal-provincial-territorial human rights committee to be activated in Canada, governments should consider putting municipalities on board as well. 2 When contracting out social services delivery to private or community partners, governments should develop as a best practice an explicit “human rights respect” clause. 3 Finally, and considering the wide variety of emerging multi-level governance arrangements, public actors, as well as private ones, should promote a human rights impact assessment methodology embedded in such arrangements.

notes 1 International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, 6 I.L.M. 368 (entered into force 3 January 1976). 2 See World Conference on Human Rights, Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (1993), reprinted in (1993) 32 I.L.M. 1661.



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3 See C. Scott, “Canada’s International Human Rights Obligations and Disadvantaged Members of Society: Finally into the Spotlight?” (1999) 10 Const. Forum 97; C. Scott, “Reaching beyond (without Abandoning) the Category of ‘Economic, Social and Cultural Rights’” (1999) 21(3) Hum. Rts Q. 633; C. Scott, “Social Rights: Towards a Principled, Pragmatic Judicial Role” (March 1999) 1:4 Econ. & Soc. Rts. Rev. 4; M.M. Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights, School of Human Rights Research Series No. 18 (Antwerp: Intersentia 2003). See also L. Lamarche, Perspectives occidentales du droit international des droits économiques de la personne (Brussels: Bruylant 1995). 4 The author is a co-researcher member of the Social Rights Accountability Project (www.srap.ca). SRAP is funded by the Social Sciences and Humanities Research Council of Canada as a Community University Research Alliance project. The SRAP website makes available the best of academic writings on this topic. See B. Porter, “Claiming Adjudicative Space: Social Rights, Equality and Citizenship” in S. Boyd et al., eds., Poverty: Rights, Social Citizenship and Legal Activism (Vancouver: UBC Press 2007) 77; M. Jackman, “Canadian Charter Equality: Reflections of a Card-Carrying Member of the Court Party” (December 2005 – January 2006) 27:1 Policy Options 72. 5 National Council of Welfare, Solving Poverty: Four Cornerstones of a Workable National Strategy for Canada, 2007, available at http://www. ncwcnbes.net/en/research/antipoverty-antipauvrete.html. 6 I borrow this expression from the former UN special rapporteur on the right to development Arjun Sengupta. See A. Sengupta, “On the Theory and Practice of the Right to Development” (2002) 24:4 Hum. Rts. Q. 837. 7 Section 16(1) of cescr provides that the States Parties to the cescr undertake to submit reports on the measures that they have adopted and the progress they have made in achieving the observance of the rights recognized under the convention. The Experts Committee on Economic, Social and Cultural Rights has been created to receive and scrutinise such reports. See http://www.ohchr.org/english/bodies/cescr/index.htm. 8 Ligue des droits et libertés du Québec and Université du Québec à Montréal, 2007–9, Ministère de l’éducation, des sports et des Loisirs, Le citoyen-usager et ses droits dans le contexte des partenariats publics/communautaires: de nouveaux enjeux pour la responsabilité étatique (on file with the author). 9 Canada (a . g .) v. Ontario (a . g .), [1937] A.C. 326 [Labour Conventions case].

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10 See B. Cameron, “The Social Union, Executive Power and Social Rights” (2004) 13 Canadian Women Studies, available at www.srap.ca. 11 Reference re Employment Insurance Act [2005] 2 S.C.R. 669. This decision concerns the Paid Parental Leave regime adopted by the government of Quebec and incorporated in the Act Respecting Parental Insurance, R.S.Q., c. A-29.011. 12 ���������������������������������������������������������������������� See Government of Québec, Secrétariat aux affaires intergouvernementales canadiennes, Agreement 2007–60, Entente finale Canada – Québec sur le régime québécois d’assurance parentale. Available at http://www.cgap. gouv.qc.ca/publications/pdf/CGAP_RQAP_entente.pdf; following Agreement 2004–029: Entente de principe Canada-Québec sur le régime d’assurance parentale. Such technical agreements were designed to avoid the problem that contributions from Quebec residents to the Employment Insurance Fund would increase or double because of the autonomous administration of the Régime de congé parental du Québec. 13 A useful compilation of the history of social law in Canada can be found in D. Guest, The Emergence of Social Security in Canada, 3d ed. (Vancouver: UBC Press 1997). 14 To limit Canada’s liability where a treaty, even partially, concerns an area of provincial legislative jurisdiction, that treaty usually contains a “federal clause.” To varying degrees, depending on the purpose of the treaty and the wording of its articles, the federal clause informs all the parties that the government of Canada may have certain difficulties in implementing the treaty because to do so it will have to secure the cooperation of the Canadian provinces. The inclusion of this clause limits the responsibility of the government of Canada should even one province refuse to pass or amend its legislation in accordance with the provisions of a treaty. The effect of the federal clause is ambiguous, however. On the one hand, it might be claimed that it constitutes an “obligation of means” for the government of Canada, but on the other hand, it might be claimed that it constitutes an “obligation of result.” See Government of Canada, Law and Government Division, International Treaties: Canadian Practice (April 2000), available at http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/ prb0004-e.htm#PARTICIPATION%20BY%20THE%20PROVINCES(txt). The cescr presents, to say the least, a very weak federal clause, which does not make the life of the cescr Experts Committee easier. 15 U.N. Doc. E/C.12/1/Add.31, para. 30 (10 December 1998). 16 Ibid., para. 52. 17 Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on



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Economic, Social and Cultural Rights: Canada, U.N. Doc. E/C.12/CAN/ CO/4 and E/C.12/CAN/CO/5, para. 20 (22 May 2006). 18 Canada Assistance Plan, R.S.C., 1985, c. C‑1. 19 Canada Health Act, R.S.C. 1985, c. 6. 20 See Government of Quebec, Department of International Relations, International Policy, available at http://www.mri.gouv.qc.ca/en/politique_ internationale/capacite_action/index.asp. 21 See, for example, 28th Annual Conference of the New England Governors and the Eastern Canadian Premiers: Resolutions and Reports (7–9 Sept. 2003), available at http://www.negc.org/28thConference.html. See similar resolutions in 2006 and 2007, available at the same website. 22 For a detailed review of the North American legal context in regard to environment and impact assessment, see N. Craik, “Deliberation and Legitimacy in Transnational Environmental Governance,” Institute for International Law and Justice Working Paper 2006/10 (Global Administrative Law Series). 23 For a consolidated version of the 1995 Agreement on Internal Trade and its seven Protocols see http://www.ait-aci.ca/index_en/ait.htm. AIT Art. 300 states that “Nothing in this Agreement alters the legislative or other authority of Parliament or of the provincial legislatures or of the Government of Canada or of the provincial governments or the rights of any of them with respect to the exercise of their legislative or other authorities under the Constitution of Canada.” 24 ������������������������������������������������������������������������ See J.-Y. Morin, “La conclusion d’accords internationaux par les provinces canadiennes à la lumière du droit comparé,” Canadian Yearbook of International Law, vol. 3, 1965,  126; Jean-Yves Grenon, “De la conclusion des traités et de leur mise en œuvre au Canada,” Canadian Bar Review, vol. 40, 1962, 151; Anne-Marie Jacomy-Millette, L’introduction et l’application des traités internationaux au Canada, LGDJ, Paris, 1971, 118–28, and more generally A.E. Gotlieb, Canadian Treaty-Making (Toronto: Butterworths 1968) 15–17. 25 H. Lazar & C. Leuprecht, eds., Spheres of Governance: Comparative Studies of Cities in Multilevel Governance Systems (Institute of Intergovernmental Relations, School of Policy Studies, Queen’s University 2007) 3. See also L. Hooghe & G. Marks, “Unravelling the Central State, but How? Types of Multilevel Governance” (2003) 97:2 Am. Pol. Sci. Rev. 233. 26 It is estimated that 80 percent of Canadians live in the four largest Canadian cities and that 90 percent of immigrants live in urban areas in Canada. See also N. Brenner, New State Spaces: Urban Governance and the Rescaling of Statehood (Oxford: Oxford University Press 2004).

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27 Pursuant to UN Habitat Governing Council Resolution 19/12. See also Governing Council of the United Nations Human Settlements Programme, “Dialogue on Effective Decentralization and the Strengthening of Local Authorities: Report of the Executive Director,” UN Doc. HSP/GC/20/7 (17 November 2004). 28 Ibid. See also UN Habitat, available at http://www.unhabitat.org/content. asp?typeid=19&catid=366&cid=411. 29 See Federation of Canadian Municipalities, available at http://www. icmd-cidm.ca/ev.php?URL_ID=3021&URL_DO=DO_TOPIC&URL_ SECTION=201&reload=1080161056. 30 See Ville de Montréal, available at http://ville.montreal.qc.ca/portal/ page?_pageid=3036,3377687&_dad=portal&_schema=PORTAL. 31 A copy of the charter is available at http://www.comune.venezia.it/flex/ cm/pages/ServeBLOB.php/L/EN/IDPagina/2198 (18 May 2000). 32 UN High Commissioner for Human Rights, Sub-Commission on Human Rights, Res. 2000/8. 33 On the other hand, the Canadian government also states that “All of Canada’s international trade obligations clearly preserve Canada’s ability to deliver drinking water to its citizens by municipal, regional or provincial governments, or by these governments through procurement of water distribution services from private sector firms” and that “Canada has no GATS commitments in respect of water collection, purification and distribution services and has no plans to make any.” Finally, Foreign Affairs and International Trade Canada affirms that “the GATS (WTO General Agreement on Trade in Services) services sectoral classification list, on which the majority of WTO Members’ commitments, including Canada’s, are based, explicitly excludes collection, purification and distribution services of potable water” and that “Nothing in the GATS, or any other trade agreement, prevents governments from setting standards to ensure that Canadians have access to safe drinking water.” See Foreign Affairs and International Trade Canada, WTO Trade in Services, available at http:// www.international.gc.ca/trade-agreements-accords-commerciaux/services/ gats_agcs/faq/faq-environment.aspx?lang=en (November 2007). The government of Canada also recently stated that “In so far as trade in goods is concerned, the NAFTA and the WTO do not impose disciplines on the ability of governments to regulate the extraction of water from its natural state, nor do they create obligations that would compel Canada or any province to allow the extraction of bulk water, including for export, without any limits. Because the proposed Accord relates to water in its natural state, it would not be subject to the provisions of these trade agreements



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with respect to trade in goods. Furthermore, as long as regulations governing the extraction of water from its natural state do not discriminate among NAFTA investors, or investments of investors, in like circumstances, on the basis of nationality, such regulations will be consistent with the national treatment obligation of Chapter 11 of the NAFTA. Also, such measures, if properly implemented, should not constitute an expropriation under the NAFTA.” See Government of Canada, Paper on Bulk Water Removal and International Trade Considerations, July 2008, available at http://www.canadainternational.gc.ca/san_francisco/bilat_can/bulkwatermassifs_deau.aspx?lang=eng. Consequently, the trade dimension of the human right to water should not be seen as the “legal” reason why Canada resists international acknowledgement of the human right to potable water. 34 U.N. Doc. E/C.12/2002/11 (January 2003); The Right to Water, General Comment No. 15, U.N. Doc. E/C.12/2002/11 (20 Jan. 2003). 35 Interestingly enough, the question of the accountability of non-state actors in regard to human rights has been limited so far to foreign investors and human rights protection abroad. See, for example, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, U.N. Doc. E/CN.4/ Sub.2/2003/12/Rev.2 (2003). 36 See P. Dunleavy et al., “New Public Management Is Dead – Long Live Digital-Era Governance” (2006) 16:3 J. Pub. Adm. Research & Theory 467. 37 See J. Boston, “Organizing for Service Delivery: Criteria and Opportunities” in B. Guy Peters & D. Savoie, eds., Governance in the Twenty-first Century: Revitalizing Public Services (Montreal: McGillQueens University Press 2000) 281; see also J. Boston, P. Dalziel & S. St John, eds., Redesigning the Welfare State in New Zealand (Auckland: Oxford University Press 1999). 38 See S. Borins, “New Public Management, North American Style” in K. McLaughlin, S. Osborne & E. Ferlie, eds., The New Public Management: Current Trends and Future Prospects (London: Routledge 2000). See also R. Ford & D. Zussman, eds., Alternative Service Delivery: Transcending Boundaries (Toronto: KPMG and IPAC 1997). 39 L.R.Q. c. A-6.01, Art. 1 of which reads, “This Act affirms the priority given by the Administration, in developing and implementing the rules of public administration, to the quality of the services provided to the public; thus, it establishes a results-based management framework centred on transparency.”

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40 Government of Quebec, Community Action: A Crucial Contribution to the Exercise of Citizenship and the Social Development of Québec, available at . 41 Government of Quebec, Plan d’action gouvernemental et cadre de référence en matière d’action communautaire, available in French only at . 42 For more information see . 43 S.Q. 2007, c. 1. 44 R.S.Q., c.L-7. 45 See Government of Quebec, Update on Government Activity related to Community Action (March 2006), available in French only at http://www. mess.gouv.qc.ca/saca/action-communautaire/etat-situation.asp>. 46 See D. Guttman, “Governance by Contract: Constitutional Visions; Time for Reflection and Choice” (2003–2004) 33 Pub. Cont. L.J. 321; A.C.L. Davies, Accountability: A Public Law Analysis of Government by Contract (Oxford: Oxford University Press 2001) [Davies]. 47 See D. Mullan & A. Ceddia, “The Impact on Public Law of Privatization, Deregulation, Outsourcing and Downsizing: A Canadian Perspective” (2003) 10:1 Ind. J. Global Legal Stud. 199, 200 [Mullan & Ceddia]. 48 See B. Hibou, Privatizing the State (New York: Columbia University Press 2004). 49 See Davies, note 44 and Mullan & Ceddia, supra note 47. 50 See K. De Feyter & F. Gomez Isa, eds., Privatisation and Human Rights in the Age of Globalisation (Antwerp: Intersentia 2005); J. Delbruck, “Transnational Federalism: Problems and Prospects of Allocating Public Authority beyond the State” (2004) 11:1 Ind. J. Global Leg. Stud. 31; and the well-known study by Andrew Clapham, Human Rights in the Private Sphere (Oxford: Clarendon Press 1996). 51 See C. Saunders & K. Yam, “Government Regulation by Contract: Implications for the Rule of Law” (2004) 15:1 Pub. L. Rev. 51. 52 This distinction is taken from the U.K. Charity Commission website . 53 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. 54 Ibid., para. 36. 55 Ibid., para. 51. 56 Supra note 33. 57 See, for example, the case of corporate actors: John Gerard Ruggie, “Business and Human Rights: The Evolving National Agenda”(October



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2007) American Journal of International Law 101.4 819�������������� –������������� 40; or in humanitarian law: Marco Sassoli, “L’effet horizontal des droits humains dans le contexte de la mondialisation,” in Gorghi & Meyer Bisch, eds., Société civile et indivisibilité des droits de l’homme (Fribourg 2000), 341– 64; and more recently, the case of non-state actors in the fight against global poverty: Margot E. Salomon, Global Responsibility for Human Rights, World Poverty and the Development of International Law (Oxford: Oxford University Press 2007).

7 Canada’s Implementation of the WTO Agreement CHIOS CARMODY

introduction The Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement)1 is Canada’s principal undertaking in the field of international economic law. Since its conclusion in 1994 the treaty has attracted considerable attention owing to its coverage of trade in goods, services, and intellectual property, as well as its highprofile system of dispute settlement. This broad scope has tended to confirm the treaty’s characterization as an international economic constitution and raised fears about its potential to undermine domestic sovereignty.2 In light of these concerns, Canada’s implementation of the wto Agreement presents a subject of real interest in relation to Canada’s implementation of international law generally. At the same time, Canadian implementation of the WTO Agreement cannot be examined clinically – that is, provision by provision – without appreciating the broader context that implementation happens within.3 As I will demonstrate, Canadian implementation is driven by many factors, including the reciprocity and vagueness inherent in the treaty, the government’s piecemeal approach to implementation, the need for federal-provincial consultation, the role of domestic interests, and Canada’s sense of its own national priorities. It is also influenced by Canada’s position in the wto, which has evolved since 1994 as emerging economies like Brazil, China, and India have begun to play a larger role in the organization and as middle powers like Canada have had to seek new ways to influence and shape international economic law. Thus, an accurate picture of



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Canadian implementation is obtained by examining both the law and the broad range of Canada’s behaviour in the wto. What I want to highlight in this chapter is the way in which implementation of a treaty as large and diverse as the WTO Agreement is hardly a “one-shot deal.” As Armand de Mestral observes in his contribution to this volume, the implementation of international law today may require ongoing legislative and regulatory action, as well as significant administrative and ministerial activity. Similarly, courts and tribunals may be called upon to act in conformity with international law. Consequently, “far from being a single, static act, implementation can be a multifaceted, ongoing process.”4 The size and the scope of the WTO Agreement virtually ensure that it will be a good example of this implementation-as-process.5 Nevertheless, the iterative character of Canada’s implementation requires that it be open, transparent, and accountable, and on that score Canadian implementation of the WTO Agreement falls woefully short. Despite much-vaunted claims about consultation and consultative “mechanisms” made by the federal government, the fact remains that the great majority of Canadians are excluded from meaningful participation in Canada’s implementation of the WTO Agreement. Canada’s Department of Foreign Affairs and International Trade (DFAIT) may point proudly to the department’s own Sectoral Advisory Groups (SAGITs), to periodic consultations with affected interests, and to a very public “we’re open for business” attitude on the part of ministry officials, yet most Canadians are poorly informed about Canadian implementation or Canada’s positions in the WTO. Canadians would probably be surprised to learn that Canada has undertaken action in WTO dispute settlement on behalf of hormone-treated beef, asbestos manufacturers, and a single aircraft manufacturer. They would also be surprised to learn about Canada’s residual protectionism in relation to agricultural managed supply and pharmaceuticals. I maintain that this combination of exclusion and favouritism feeds the latent sense of skepticism concerning the WTO Agreement and reinforces a sentiment that the treaty, and free trade more generally, are something “out there” – that is, an elite project not fully internalized in either Canadian law or the Canadian psyche. One consequence is that there is little sense of public responsibility for what Canada does in the WTO. By the same token, it then becomes acceptable for governments to continue to protect certain sectors, to

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offer subsidies, and to take action on behalf of specific domestic interests that are hard to justify as being of benefit to Canadians as a whole. If we are concerned with reinforcing the WTO Agreement and consolidating what has been achieved to date, I argue that we need to bring implementation of the WTO Agreement closer to Canadians, to make it more accountable and ultimately more democratic. This can be accomplished, at least in part, by opening up Canada’s participation in the WTO to greater democratic scrutiny, by de-politicizing Canadian trade action, and by including the issue of Canada’s compliance with the WTO Agreement as a regular item for parliamentary debate and public discussion. These suggestions are all part of implementation-as-process, and they should go some way to helping legitimate the WTO Agreement as an integral part of Canadian law. This chapter is divided into six parts. Following this introduction, the second part provides an overview of the WTO Agreement and of the way in which Canada’s federal government chose to implement the treaty in domestic law. The third part examines the actual concessions and commitments that Canada undertook as part of its accession to the WTO, and the fourth looks at how Canada has acted in the WTO’s much-discussed system of dispute settlement. The fifth part then analyzes Canada’s performance in the WTO Trade Policy Review Mechanism (TPRM). Finally, the sixth part offers some recommendations to enhance Canadian implementation of the agreement.

t h e wto a g r e e m e n t i n c a n a d i a n l aw The WTO Agreement came into existence in April 1994 to extend and formalize pre-existing arrangements under the General Agreement on Tariffs and Trade of 1947 (GATT). The GATT was originally envisaged as an interim arrangement pending the conclusion of the Havana Charter and the creation of an International Trade Organization (ITO). When both these projects failed in the late 1940s, the GATT was left to operate alone without a formal legal structure.6 Over the next few decades the GATT membership met periodically in negotiating rounds to reduce tariffs and to conclude a number of “side codes” that elaborated on basic GATT provisions. Not all GATT members agreed to the codes, however, which gave rise to differential obligations by the end of the 1980s. The WTO Agreement came into being at the end of the Uruguay Round to bring this diversity to an end and to provide a formal



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institutional framework for rules on international trade. At Marrakesh a “snapshot” of GATT 1947 was taken, and this, along with certain GATT decisions and protocols, was inserted into the WTO Agreement as “GATT 1994.” GATT 1994 is legally distinct from GATT 1947 but nevertheless continues a number of its practices, including decision making by consensus.7 The WTO Agreement itself is a relatively brief instrument of sixteen articles that provide the WTO’s basic structure.8 Attached to this are four annexes that contain most of the substance of the agreement. Annex 1 contains three sub-annexes that cover trade in goods, services, and intellectual property. This is where GATT 1994 is now found. Annex 2 contains a common set of rules for dispute settlement. Annex 3 contains a periodic review of countries’ trade policies known as the Trade Policy Review Mechanism (TPRM). Finally, annex 4 contains two plurilateral agreements, one on government procurement, the other on trade in civil aircraft. The core of GATT is the obligation undertaken by countries in GATT article II not to impose tariffs on goods in excess of individually agreed “bound” levels.9 These bindings are supplemented by rules on other trade-related topics such as subsidies and dumping, customs valuation, licensing, and technical standards. Over time they have been substantially supplemented and enhanced by both GATT and WTO law and practice that, taken together, form a kind of acquis. The entire package is, however, subject – at least presumptively – to the requirement in GATT article 1 that “any advantage, favour, privilege or immunity” granted to one member country be given to all other member countries, a requirement that automatically extends obligations to more than a country’s immediate trading partners. Thus, there is a subsisting tension in WTO arrangements between bilateralism and multilateralism. The treaty’s obligations are reinforced by the WTO Dispute Settlement Understanding (DSU) in annex 2. Pursuant to the DSU, WTO member countries can take each other before panels where there is reason to believe that the laws of another member “nullify or impair” benefits accruing under the WTO Agreement.10 This may be followed by an appeal to the WTO Appellate Body, which has the power to uphold, modify, or reverse the legal findings and conclusions of the panel. If a violation is found, a recommendation is normally made to the offending country to bring its laws “into conformity” with the WTO Agreement. Conformity is supposed to

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involve “a solution mutually acceptable to the parties and consistent with the covered agreements.”11 In the absence of such a solution, however, the DSU goes on to specify that “the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measure concerned.” The wrongdoer is then given a reasonable time to comply, failing which the parties to the dispute can negotiate compensation for ongoing damage, or as a last resort the plaintiff can request permission from the organization to retaliate. Retaliation usually consists of the suspension of trade concessions. There are also a number of remedies that are specific to certain causes of action and sub-disciplines under the WTO Agreement.12 Canada has long been an active participant in this framework. Canada worked actively in the eight rounds of multilateral trade negotiations held under the GATT and in 1990 was instrumental in putting forward the first formally accepted proposal for the creation of an international trade organization to replace the GATT. Partly for that reason Canada was included in the original “Quad” group of countries, along with the United States, the European Communities, and Japan, that steered the Uruguay Round to a successful conclusion. Canada’s championing of the WTO Agreement meant that it could have been expected to implement the treaty with enthusiasm, but reality was different. As Debra Steger has pointed out, the federal government took a “minimalist” approach to implementation prompted by awareness that the WTO Agreement, like the CanadaU.S. Free Trade Agreement and the North American Free Trade Agreement were politically contentious.13 The federal government therefore signed the WTO Agreement at Marrakesh in April 1994 and implemented it in mid-December of the same year with little public debate or consultation. The wto Agreement Implementation Act14 entered into force on 1 January 1995, just as the new organization began operation. The act is an exercise in both vagueness and technicality. Instead of enthusiasm, it suggests a wariness borne of a realization that implementation could be difficult and often politically charged. Brevity was best. Article 3 of the act says simply that “the purpose of the Act is to implement the Agreement,” and article 4 that the act is “binding on Her Majesty in right of Canada.” Article 13 gives the Cabinet the right to suspend trade concessions for the purposes of the DSU. Beyond this, most of the real detail of what the law does is buried in



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articles 14–220, which consist of a series of amendments to, and repeals of, existing legislation. The general impression from these changes is one of legislative legerdemain. The implementing legislation says nothing about the relationship between WTO and Canadian law and is otherwise silent on a number of key issues.15 It establishes no system of parliamentary review of Canadian involvement in the WTO, no input into Canada’s negotiating priorities, and no examination of the results of WTO dispute settlement, and it says nothing about the need to regularly consult Canadians on these or other WTO-related points. To be fair, some of these matters have been addressed since then, but on the whole the legislation’s top-down approach is dirgiste and at odds with the general ethos of democratic government towards transparency, inclusion, and participation.16 Most important from the point of view of democratic legitimacy is the implementing legislation’s position on a right of action. Articles 5–6 of the act deprive individuals of any private cause of action associated either with the treaty’s implementation or “that is claimed or arises solely under or by virtue of the Agreement.” This distancing may minimize potential complications arising from continuing non-compliance, and it therefore allows the government a margin of manoeuvre, but it also removes any real sense that this body of law was “by, for and of” Canadians. Consequently, the act makes it easy to regard WTO law as something mysterious, an attitude that surely plays into the hands of free trade sceptics. At the time of the act’s passage the federal government also published a 113–page guide in the Canada Gazette setting forth its interpretation of the WTO Agreement. This document, known as the Canadian Statement on Implementation (CSI), followed a similar document published some months before in connection with passage of the nafta Implementation Act.17 Both can be seen as Canada’s response to the publication by the United States of lengthy Statements of Administrative Action (SAA) in the case of U.S. ratification of both NAFTA and the WTO Agreement and are to be interpreted as signs of a determination to protect Canadian interests.18 The CSI also provided that “[b]y enacting the WTO Act, Canada has taken the steps required to bring its laws into conformity, and indicates its intention to abide by the obligations in the WTO Agreement.”19 Thus, the federal government was able to assert confidently that “Canadian laws, regulations and policies already fully

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conform to the obligations of GATT 1994 … [and] [n]o new legislative action is required to bring their provisions into effect.”20

c a n a d a’ s i m p l e m e n t a t i o n o f t h e wto a g r e e m e n t The foregoing statements leave the impression that Canada completely fulfilled its obligation to comply with the WTO Agreement, but in fact, as subsequent developments demonstrate, this was only partly correct. The treaty has three principal subjects of coverage – goods, services, and intellectual property – and it is only with respect to the first subject – goods – that such statements are generally accurate. Actual implementation of the WTO Agreement required a series of staged tariff reductions on goods, with Canada’s MFN tariff dropping some 50 percent in the period 1995–2000. The decrease, however, varied across a wide range of products, reflecting the fact that Canada had important bilateral negotiations with Japan, the EC, Korea, and some twenty other countries during the Uruguay Round of negotiations. Within the same period Canada was also able to reduce or eliminate duties and quotas on products of interest to least developed countries (LDCs) and today maintains low tariffs on many tropical products such as sugar and cotton, which, because of continuing protectionism in other developed countries, have since become a matter of North-South rancour and discord in the WTO.21 Accompanying GATT 1994 is the WTO Agreement on Agriculture (AA). In the AA, WTO member countries agreed to the tariffication of remaining trade barriers in the field of agriculture in an effort to clarify the remaining impediments in this sector. They did so with an eye to eventual tariff reduction and the normalization of global trade in agriculture, as happened with clothing and textiles.22 The AA also mandated reductions in trade-distorting domestic support for agricultural products, limits on export subsidies, and increases in market access. On paper Canada’s implementation of the AA is straightforward. The CSI states that Canada’s remaining quantitative restrictions have been replaced by tariff rate quotas that only provide equivalent trade protection. The government justified this move as important to the “effective operation of orderly marketing programs in Canada.”23 Nevertheless, the degree of protection in some cases remains high, particularly for dairy, poultry, and eggs. In most instances the quota



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allocated for these products is low and this, together with a high over-quota tariff, effectively prohibits additional imports. For instance, the annual import quota for concentrated and condensed milk and cream is only 11.7 tonnes, all of which has been allocated to Australia; the over-quota tariff is 305 percent. High over-quota tariffs are also recorded for cream (344 percent), other products of milk constituents (317 percent), butter (351 percent) and ice cream (326 percent). In the intervening years the federal government has also not been averse to considering other measures designed to shield Canadian producers.24 There can be many objections raised to such blatant protectionism, but the fact remains that many countries – particularly developed countries – continue to protect agriculture, which is an acute source of tension in the current round of multilateral trade negotiations. Canada has escaped the most pointed criticism in the WTO because it has been relatively liberal in reducing or eliminating tariffs and quotas on high-profile tropical products that are of export interest to developing countries, but it continues to protect a number of agricultural items through systems of managed supply that have occasionally resulted in WTO disputes with Canada’s leading trading partners. As part of its implementation of the WTO Agreement the federal government also undertook extensive amendments to Canada’s regime of trade remedies (anti-dumping, countervail, and safeguards). Most of the changes elaborated on pre-existing legislation and involved modification and further refinement of definitions used in trade action. Thus, for instance, a new evidentiary standard was introduced for injury in the case of dumping or subsidization, requiring disclosure of a reasonable indication that the dumping or subsidization of goods “has caused injury or retardation or is threatening to cause injury.”25 The changes have ensured that Canadian legislation remains current and have also allowed Canada to challenge the trade remedies of other countries with some authority.26 Services were another field of WTO coverage that required amendments to Canadian legislation. Here, WTO disciplines were entirely new and proceeded on the basis of general obligations and disciplines that mirror GATT but are followed by a negative list of specific commitments limiting their coverage. Thus, all WTO members commit to principles of MFN and transparency in service-related regulation but are responsible for National Treatment only in respect of foreign service providers in the sectors and sub-sectors they have

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committed in. This restriction includes, most importantly, the idea of market access, which may involve limits on the number of service suppliers, service operations or employees in the sector, the value of transactions, the legal form of the service supplier, or the participation of foreign capital. In addition, Canada and many developed countries registered a number of formal exemptions to the MFN principle for listed enterprises that are undertaken for an undesignated period.27 Significant carve-outs were also registered with respect to air transport services, maritime transport services, basic telecommunications, and financial services. In Canada’s case additional exclusions were registered in the field of film co-production, fisheries-related services, and the dispute settlement provisions of bilateral investment agreements. The reason for such extensive opt-outs arises from the prototypical nature of WTO service commitments. The WTO services agreement (GATS) was the first multilateral agreement of its kind and raised novel issues of coverage and interpretation that could be worked out only over time. To maintain momentum towards service liberalization, however, GATS also set out a program of future work under which progress has been made at the sectoral level. Negotiations on basic telecommunications were successfully concluded in February 1997, and negotiations in the area of financial services were finished in December 1997.28 Here, significantly improved commitments were registered with a broad level of participation across the WTO’s membership. Canada’s own service commitments reflect an appreciation of the need to undertake obligations in this field in a careful, calibrated way. The federal government removed the remaining ownership restrictions on foreign financial institutions, as well as the 12 percent domestic market-share limitation on foreign banks. Foreign banks are, however, required to operate by means of a subsidiary in Canada and must seek ministerial approval to open more than one branch. Canada also made limited commitments in the fields of air transport and maritime services, professional services (including legal services, accounting, auditing and bookkeeping, architectural services and engineering services), telecommunications, construction, and tourism. Since 1995 it has also participated actively in negotiations for further services liberalization, but agreement has been elusive owing to the failure to reach an overall balanced package that includes other areas of coverage.



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Finally, in the field of intellectual property Canada undertook to implement and abide by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), an agreement that seeks to establish thresholds for the protection of intellectual property. TRIPS has seven areas of coverage (patent, trademark, copyright, geographic indications, industrial design, integrated circuitry, and confidential information), and it links these areas to the possibility of trade action should a country fail to abide by its commitments. Canadian implementation of TRIPS required amendments to a number of important pieces of legislation.29 The amendments elaborated on existing provisions but otherwise made few substantive changes to the basic framework for intellectual property protection in Canadian domestic law. Since 1995, however, the development of a global knowledge economy has meant that intellectual property has become a contested subject of regulation, pitting profit-seeking innovation against low-cost public use. In the WTO this contest flared during the late 1990s in debate over the compulsory licencing of pharmaceutical patents. TRIPS article 31 allows for the assignment of patents to third parties under certain conditions. In the view of many critics of TRIPS, compulsory licencing must be permissible in cases of public health emergencies as part of a country’s right to protect its population. As a result of these concerns, a certain ripening of the compulsory licencing issue occurred towards the millennium, and a new “balance” embodying the emerging global consensus about intellectualproperty protection was ready to be struck. The Doha Declaration on TRIPS and Public Health of November 200130 achieved this by acknowledging that “intellectual property protection is important for the development of new medicines” and also confirming that “the TRIPS Agreement does not and should not prevent [WTO] Members from taking measures to protect public health.”31 Proceeding from these principles, the Declaration recognized that the flexibility inherent in the TRIPS Agreement allows each member “the right to grant compulsory licences and the freedom to determine the grounds on which such licences are granted.” The Declaration likewise recognized that “[e]ach Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency,” specifically mentioning “those relating to HIV/AIDS, tuberculosis, malaria and other epidemics.”

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The Doha Declaration on TRIPS and Public Health was able to establish a framework for resolving many questions in a comprehensive manner. However, one issue that it did not resolve was identified in paragraph 6 of the Doha Declaration: “We recognize that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licenses under the TRIPS Agreement.” The Declaration therefore instructed “the [WTO] Council for TRIPS to find an expeditious solution to this problem and report to the General Council before the end of 2002.” This statement provided impetus for negotiation and agreement on the Decision on the Implementation of Paragraph 6 in August 2003.32 The Decision solved the problem of exporting compulsorily licensed pharmaceuticals to countries with little pharmaceutical manufacturing capacity by waiving the requirement in TRIPS article 31(f) that “any such use shall be authorized predominantly for the domestic market of the Member authorizing such use.”33 The Decision effectively allows – but does not require – countries to identify whether they will be eligible “importing Members,” that is, whether they will use the system established by the Decision to import compulsorily licensed pharmaceuticals, and in parallel, whether they wish to be designated as “exporting Members” to produce pharmaceuticals for export to eligible importing WTO members. Canada’s implementation of the Doha Declaration and the Decision is emblematic of the powerful forces aligned on either side of the compulsory licencing debate. Canada’s Parliament enacted the Jean Chrétien Pledge to Africa Act34 in May 2004 to allow for such compulsory licences, but it took a full year to come into effect and three more years before the first pharmaceuticals were manufactured and exported under the act.35 Critics also contend that the process for obtaining a compulsory licence is expensive and must be renewed every two years, making the production of generic drugs financially unattractive for many companies. It is also noteworthy that as of mid-2008 Canada had not yet ratified an amendment to TRIPS, known as TRIPS article 31bis, which seeks to make the Doha Declaration and the Decision a permanent part of the WTO Agreement.36 One remaining area of coverage is government procurement. The WTO Agreement on Government Procurement (GPA) expanded the scope and coverage of government procurement obligations. The



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Canadian offer, which entered into force after a short delay in early 1996, covers federal departments and agencies and state-owned corporations. Perhaps the most important issue was the coverage threshold applicable to contracts for products, services, and construction. These were purchases of goods and services over SDR 130,000 by federal departments and agencies and purchases of construction services over SDR 5 million. Coverage for state enterprises includes purchases of goods and services over SDR 355,000 and purchases of construction services over SDR 5 million. Canada was prepared to table an offer at the sub-central level if other GPA signatories were prepared to include sectors of priority to Canadian suppliers (principally steel and transportation) and to agree to circumscribe the use of small business and other set asides in a manner that would provide an acceptable security of access.37 However, to date no agreement has been reached on sub-central coverage, and procurement by Canada’ provinces and territories remains outside GPA disciplines.

canada and wto d i s p u t e s e t t l e m e n t One of the most notable innovations in the WTO Agreement is the binding system of dispute settlement in annex 2. The system has been popular among WTO member countries, rendering some three hundred decisions since 1995. In the process, it has become an important – and even a pre-eminent – source for the interpretation of WTO members’ rights and obligations, particularly in the light of the continuing stalemate in multilateral trade negotiations since then. Canada has been an active user of the new system. As of mid-2008 it had launched thirty cases and was a respondent in fifteen, proportionately more than most other countries of its size.38 It has also used its rights as a third party extensively in order to monitor ongoing developments and to promote interpretations of the WTO Agreement that are consistent with Canada’s interests.39 This record might be interpreted as a sign of faith in a rules-based multilateral system, but as mentioned above, the prevailing political scheme has largely insulated any effective review of this action. At present there is no public or systematic analysis of which cases Canada will take or defend in WTO dispute settlement or of how they might benefit Canada as a whole. Instead, the minister of international trade is said to consult with SAGITs composed largely of industry interests and, on occasion, with provincial governments.40

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The final decision remains exclusively in the hands of the federal Cabinet. So far the relevant parliamentary committee – the House of Commons Committee on International Trade – has shown virtually no interest in the matter. The results speak for themselves. Canada has been in the invidious position internationally of pursuing WTO action on behalf of producers of hormone-treated beef, manufacturers of asbestos products, and a single aircraft maker.41 Much of the rest of its actions have been with respect to raw materials, with softwood lumber and wheat accounting for more than half the complaints taken, highlighting the continuing predominance of raw materials in Canada’s economic profile. Of particular note are Canada’s WTO actions against the United States, which is by far Canada’s largest export market. Canada has invoked WTO dispute settlement in conjunction with procedures under NAFTA chapter 19 to challenge certain determinations of the U.S. Department of Commerce on Canadian softwood lumber, and WTO procedures alone against U.S. Byrd Amendment legislation; measures on cattle, swine, and grain; and alleged subsidization of the U.S. corn industry. The actions can be regarded as a Canadian effort to maintain the largest trading relationship in the world through law. In most instances, however, Canada has enjoyed only mixed success, and the outcomes are a useful reminder of the limits to a legalized approach.42 At the same time, the actions that Canada has taken in WTO dispute settlement are naturally of less interest to the issue of domestic implementation than the cases that Canada has had to defend. After all, it is in the implementation phase of these cases that abstract WTO obligations become reality, and it is at that point that Canada seeks to implement, in a manner that meets WTO law, the demands of Canada’s trading partners and, more generally, the WTO’s membership. On this score too, Canada’s results have been less than stellar. Canada has lost all but one of the cases it has been called on to defend, a record that suggests that it should not have defended them in the first place.43 In addition, the federal government has been circumspect about the specific action it has taken to comply with WTO dispute settlement results. Few summaries of implementation action are posted on the relevant government website. Specialists have to hunt diligently elsewhere for information in order to follow up what has actually happened, gleaning what they can online and from WTO



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documents. The obscurity does not suggest a welcome attitude to implementation and compliance. The cases Canada has defended reveal a surprising degree of homogeneity and, as might be expected, fall in those subject areas where Canada had to make the most substantial amendments in order to implement the WTO Agreement or where some sort of flexibility or special regime exists. It could be argued that here, particularly, the nature and scope of obligations might be unclear and therefore a subject over which reasonable litigants might disagree. In Canada – Term of Patent Protection,44 for instance, the United States challenged s. 45 of the Patent Act, which provided patent protection for a term of seventeen years from the date of grant of a patent granted prior to 1989. The United States argued that the requirements of TRIPS articles 33 and 70 mandated a patent protection period of twenty years from the date of filing of the patent application. The Appellate Body agreed that article 70.2, mandating a twenty-year term from the date of filing, applied to pre-1989 patents because they were “subject matter existing … and which is protected” on the date of application of the TRIPS Agreement for Canada. The federal government subsequently amended the Patent Act to comply with the results of dispute settlement.45 Likewise in Canada – Patent Protection of Pharmaceutical Products,46 the European Communities challenged s. 55.2(1)-(2) of the Patent Act, which provided for regulatory review and stockpiling exceptions to the normal exclusivity provisions of a patent. The WTO panel agreed that the regulatory review exception was consistent with TRIPS but that the stockpiling exception, which allowed generic manufacturers to stockpile copies of a pharmaceutical during the last six months of a patent’s term, abrogated a patent holder’s right to exclude “making” and “using” the patented product by another party. Canada subsequently amended regulations to the Patent Act in order to eliminate the stockpiling exception.47 In Canada – Certain Measures Affecting the Automotive Industry,48 Japan challenged the maintenance of the Motor Vehicle Tariff Order, 1998, and Special Remission Orders, which had the effect of giving preferential duty treatment to certain vehicle imports but not others. The Appellate Body agreed that the preferential treatment was a violation of MFN and agreed also that an export contingency requirement for securing preferential treatment was a prohibited export subsidy contrary to article 3.1(a) of the WTO Subsidies and

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Countervailing Measures Agreement (SCM). Canada later removed the preference in a settlement of the matter reached with Japan and the EC.49 In Canada – Certain Measures Concerning Periodicals,50 the United States challenged Tariff Code 9958, which prohibited the import into Canada of certain periodicals, including “split-run editions,” certain provisions of the Excise Tax Act that imposed an excise tax on those editions, and a postal subsidy for Canadian magazines. The Appellate Body agreed that Canadian and American periodicals were “directly competitive or substitutable” products and therefore concluded that Canada was under an obligation to accord American periodicals substantially similar treatment. After some delay, Canada removed the import prohibition and excise tax and reformulated the postal subsidy to make it WTO-consistent.51 In Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products,52 New Zealand and the United States challenged Canada’s milk classification scheme as export subsidies contrary to AA article 9.1(c). They also asserted that Canada had provided export subsidies in excess of quantity commitments levels undertaken in the Uruguay Round. The case was complicated by the fact of the provincial legislation involved. The Appellate Body agreed with these assertions. However, during the implementation phase Canada’s replacement legislation was also challenged by New Zealand and the United States as inadequate largely for the same reason that the original legislation was inadequate. Canada later negotiated a settlement over the matter with the United States.53 In early 2008 Canada, together with the United States, lost its bid to continue retaliation in the Continued Suspension54 case, a dispute arising out of the EC’s failure to remove restrictions on imports of Canadian and American exports of hormone-treated beef. The original dispute found against the EC restrictions in July 1999, following which Canada retaliated against $11.3 million worth of EC products.55 The retaliation, which was also joined by the United States in a much larger amount, continued for several years. In June 2006 the EC announced that it had revised its ban to fully comply with the WTO Agreement, a claim that Canada and the United States disagreed with. The EC therefore undertook the Continued Suspension case to seek an end to the retaliation. In May 2008 Canada, the United States and the EC each announced that



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they would appeal aspects of the Continued Suspension panel report. In one other complaint, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain,56 the complaint was dismissed. Canada remains so far the only country in the WTO to have been “punished” in the course of WTO dispute settlement for publicly maintaining that it will not comply with certain WTO settlement results. In Canada – Aircraft II,57 which involved a complaint concerning Canada’s subsidization of its passenger jet industry, arbitrators assessing the amount of proposed retaliation by Brazil noted a Canadian statement that notwithstanding dispute settlement results that showed Canada to have violated the SCM, Canada would continue to honour contractual commitments to grant financing found to be an illegal subsidy. In light of this, the arbitrators indicated that they considered it appropriate to adjust the calculation based on the amount of the subsidy upwards by 20 percent in order to “induce compliance.”58 Canada and Brazil later settled the dispute bilaterally without the adjusted Brazilian retaliation taking place.59

c a n a d a a n d t h e wto tprm Surveillance of national trade policies is a fundamentally important activity in the WTO. At the centre of this work is the Trade Policy Review Mechanism (TPRM) contained in annex 3 of the WTO Agreement. Over time all WTO members come under TPRM scrutiny. The frequency of the reviews depends on the country’s size. The four biggest traders – the European Union, the United States, Japan, and China (the “Quad”) – are now examined approximately once every two years. The next sixteen countries (in terms of their share of world trade) are reviewed every four years, and the remaining countries are reviewed every six years, with the possibility of a longer interim period for least-developed countries. In each review, two documents are prepared: a policy statement by the government under review and a detailed report written independently by the WTO Secretariat. These two reports, together with the proceedings of the Trade Policy Review Body’s (TPRB) meetings, are published afterwards. In the TPRB process two discussants are chosen from the membership in advance of each review meeting. They act on their own responsibility, not as representatives of their governments. Canada has been the subject of five TPR reports – in 1996,

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1998, 2000, 2003, and, most recently, in June 2007.60 This review followed a four-year interval, a result of the fact that Canada had fallen in the TPRM’s sequence of examination owing to the rapid growth of China. What do these reviews say about Canada’s trade policy overall? The reviews in 1996, 1998, 2000, and 2003 tend to congratulate the country for being “amongst the world’s most transparent and liberal [trade and investment regimes].”61 At the same time they tend to note “persistent barriers in a few but important areas” including agri-food, textiles, and clothing and certain service sectors. These comments are to be compared with the 2007 review, which presents a somewhat more mixed picture. The review of 2007 begins by noting that while there is an “outward-looking orientation of the regime … productivity growth has been relatively slow, significant trade barriers still protect certain agricultural activities, and foreign investment restrictions remain in areas such as telecommunications, audiovisual, and air transport.”62 At the same time, the review notes that all of this has unfolded against a background of relative fiscal discipline, and it notes that Canada has remained the world’s fifth largest merchandise trader, with goods and services trade accounting for close to 72 percent of Canada’s GDP in 2005. The review goes on to observe that “Canada participates actively in the WTO,” having concluded no new preferential bilateral or regional trade agreements since 2003.63 Other key developments included •

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a drop in the MFN tariff from 9 percent in 1994 to 6.5 percent in 2006, although the average tariff on agriculture remained 22.4 percent; maintenance of tariff preferences and quota-free access to all imports from LDCs, but tariff preferences beyond the MFN rate for a number of free trade areas (FTAs) in which Canada participates, raising concern about trade diversion and general consistency with WTO disciplines; a sharp reduction in the number of contingency (i.e., antidumping, countervail, safeguard) actions in force during the review period; a continuing prohibition on the import of used motor vehicles from countries other than from the United States; concern over export financing by Export Development Canada (EDC), which was the subject of challenge in Canada – Aircraft i and ii ;

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reference to Canada’s implementation of the Doha Declaration on Public Health, the Decision on Paragraph 6, the extension of certain data protection in Canadian law, and amendments to the Trade-marks Act to provide for the phased elimination of European wine and spirit appellations on Canadian labels; the continuation – and increase – of agricultural support, primarily owing to increased ad hoc payments linked to sanitary and weather problems, although the percentage of support remained below the OECD average “and is relatively less trade distorting” than that of other countries; and continuing concern over the use of state trading enterprises such as the Canada Wheat Board and systems of managed supply.64

Canada’s TPRM reviews provide a good overview of the country’s economic progress, particularly across time, and have occasionally foreshadowed problems that were later resolved through dispute settlement or negotiation. At the same time, by virtue of the WTO Secretariat’s need to maintain neutrality, they lack many specifics of Canadian non-compliance. A more pointed – and openly critical – source of analysis of Canada’s behaviour is the U.S. National Trade Estimates (NTE) published by the U.S. Department of Commerce. The 2007 NTE Review indicates, for instance, •

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the operation by the Canadian Egg Marketing Agency of a dualpricing scheme for processed egg products that results in high egg prices for Canadian consumers and the subsidization of Canadian egg exports; the prohibition of imports of fresh or processed fruits and vegetables in packages exceeding certain standard package sizes. Canada is the only NAFTA country to require such packaging; the maintenance of kernel visual distinguishability (KVD) requirements for wheat sales, resulting in discrimination against wheat imports that cannot meet the requirements; the maintenance of comparatively low personal duty exemptions for Canadians travelling on short trips abroad ($800 in the United States versus $200 in Canada); continuing market access barriers to foreign wines and spirits in several provinces, including “cost of service” mark-ups, listings, reference prices, and discounting distribution and warehousing policies; restrictions on the labelling of fortified foods;

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in the aftermath of the softwood lumber dispute, continuing assistance programs in Quebec and Ontario to help provincial lumber industries, and concern about lax federal administration of required export measures; concern over the Technology Partnerships Canada (TPC) loan funding program for “pre-competitive” and development activities in Canada, which the NTE observes is disproportionately targeted at aerospace and defence companies and of which only 3 percent of disbursed amounts have been repaid; weak intellectual property enforcement, lax administration of related border measures, illegal camcording of movies, and mandated pricing for patented pharmaceuticals; and residual discriminatory licencing in the audiovisual and communications services sectors, widespread illegal usage of U.S. satellite television in Canada, and continuing foreign ownership limits on facilities-based telecommunications services.

In many instances this list merely repeats longstanding U.S. grievances related to Canadian regulatory policy and can be regarded as founded upon a form of regulatory “imperialism,” or in other words, the idea that any policy is automatically suspect if it is at odds with American standards. Where international standards exist or where existing ones bear no rational connection to the regulatory aim they seek, then a justifiable question arises as to their legitimacy. Where they do not, however, Canada arguably has the sovereign right to legislate as it sees fit. Nevertheless, the NTE present a different viewpoint – a perspective à l’invers – that departs from the tone of official Canadian statements. They are worth paying attention to.

conclusion What sort of general conclusion can be drawn about Canada’s record of implementation as a whole? Over the broad range of WTO obligations it is hard to say much that is definitive about Canada’s behaviour. One could hope that the country’s record of implementation would be perfect, but as this chapter has demonstrated, there are a number of shortcomings in Canada’s approach. Some are attributable to Canada’s history and political culture; others can be attributed to tactical and strategic purposes. After all, non-implementation and the lack of compliance can be used as a bargaining chip. Almost all



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WTO members have demonstrated some lapses in implementation. The TPRM Reviews of quite a few countries reveal non-conformity to some degree or another, although conformity remains the desired goal. The benefits are evident. Compared with 1979 – the end of the next-to-last round of multilateral trade negotiations, when much of Canada’s economy operated behind a wall of protectionism – the Canadian economy is now considerably more open, flexible, and dynamic, and the consensus opinion appears to be that the country is in a better position to withstand external economic shocks than it was in the past. Canada sits at or near the top of most global indicators of well-being and most Canadians benefit today from a high standard of living. At least some of this can be attributed to Canada’s decision to implement concessions and commitments under the WTO Agreement. Fear is often expressed that implementation will have dire consequences, yet this scenario is not borne out. The outcome of the Periodicals dispute is instructive. The WTO challenge brought by the United States to Canada’s split-run magazine ban was predicted to decimate the Canadian periodicals industry, and yet, in its aftermath no such thing occurred. Canada continues to have vibrant magazine and book-publishing industries that convey a Canadian perspective on the world. There are, of course, sectors of the Canadian economy that have undergone wrenching change as a result of WTO-induced liberalization. For instance, most basic manufacturing, textiles, and clothing and many routine service operations have been moved offshore, but the truth of the matter is that this has permitted the Canadian economy to adjust to higher value-added activity that contributes to the Canadian standard of living. Attention often gravitates to remaining barriers, yet what so often seems to go unnoticed is just how much Canada has changed since the WTO Agreement came into existence. Canada has also revealed itself to be an active participant in WTO dispute settlement. In this way it has contributed to the development of a new body of international law. Its implementation of WTO dispute settlement results can be slow, but again, this is not atypical of WTO members generally. Non-compliance may indicate a desire to use the non-conformity as a bargaining chip. Nor should WTO dispute settlement be considered in isolation. There is a creative aspect in what is happening and in Canada’s role within it. Issues identified in the WTO disputes find themselves the

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subject of attention in other fora. Canada has moved on several fronts outside the organization to consolidate a position favourable to Canadian interests and perspectives. With the co-leadership of France it launched negotiations in UNESCO that led to conclusion of the Convention on Cultural Diversity (CCD) in 2005.65 This convention can be seen as a response to the outcome of the Periodicals dispute but also to the less well-defined perception that the pre-existing situation – a situation that left the subject of cultural disciplines largely unprotected in the face of free trade obligations – could not continue. The CCD has raised the visibility of culture as an international discipline and re-engaged the United States in UNESCO.66 The federal government has also undertaken to negotiate an AntiCounterfeiting Treaty (ATCA) that, while criticized by some commentators as “TRIPS+,” can be seen as a means of protecting intellectual property and as tempering some of the more extreme consequences that IP protection causes.67 There are a number of other initiatives linked to WTO action and championed by Canada, such as the OECD Aircraft Sector Understanding, that need to be seen as part of a commitment to building an international rule of law. Implementation of the WTO Agreement in Canadian law cannot then be regarded in terms of a simple “box-score” of cases won or lost, of concessions given and received. Over the long term it must be regarded as part of a larger process that has contributed to Canadian well-being. An additional feature of Canada’s implementation is the role that the country plays in the organization itself. The world has hardly stood still since 1995, when 109 countries signed the WTO Agreement at Marrakesh. Today the agreement has a membership of 153 countries, with approximately 30 more at various stages of accession. Inevitably, the increase in membership has worked, along with Canada’s steadily falling share of world trade and the rise of new global players like Brazil, India, and China, to diminish Canada’s once-considerable influence. Canada is no longer formally included in the inner core of negotiating parties, although it has had some success in carving out an informal niche for itself as the organization’s statistician and record-keeper. At the same time, Canada has not always been the keen player it may believe itself to be. Canada’s system of managed supply in agriculture is a good example. It costs Canadians dearly in terms both of their pocketbooks and their credibility. As Jeffrey Simpson observes,



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“This hypocrisy has been widely noted abroad, but it apparently causes no ripples in Canada, where people either do not know about it or believe that Canada, being a moral superpower in its own mind, can afford the occasional lapse from unsullied virtue.”68 Canada has also been hesitant about implementing further service commitments, about necessary amendments to TRIPS, and about the continuing viability of the WTO as a “single package,” given the number of free trade agreements it has recently undertaken or concluded.69 In addition, ordinary Canadians rarely have the benefit of direct access on trade issues. Ongoing implementation of the WTO Agreement in Canadian law remains surprisingly opaque. The cost-benefit analysis Canada has undertaken in cases like Hormones and Brazil – Aircraft often seems to be tallied on the basis of a narrow political calculation rather than on measuring the broader benefit of action to Canada as a whole. Those lacking in immediate political clout, like Canada’s ice-wine producers, have had to wait years for the federal government to negotiate access to foreign markets. The lack of transparency is reflected in a review of Canada’s WTO action by Canada’s elected officials. There appear to be no legislative mechanisms for continuing examination of what Canada is doing with respect to its WTO commitments or how the country plans to exercise its rights. The relevant parliamentary committee – the House of Commons Standing Committee on International Trade – was created only recently and appears to spend much of its time reviewing ongoing trade negotiations instead of the implementation of existing agreements. Team Canada Inc., the SAGITs, and the various agency advisory boards all continue their work, but again, as mentioned, the general tendency of this work is in one direction. There is, therefore, no real democratic check or balance on what Canada does in the WTO. How could all this be changed? A number of recommendations could be made: 1 Parliament’s Standing Committee on International Trade should be tasked with conducting an annual review of Canada’s implementation of its WTO commitments through reference to Canada’s most recent TPRM Review and the views of Canada’s trading partners. Existing committee documents, such as the 2007 report “Ten Steps to a Better Trade Policy,”70are silent about this task.

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2 Parliament’s Standing Committee on International Trade should assume a more active role in surveillance of the use of Canada’s rights of action and defence in WTO dispute settlement. 3 The federal government should appoint an independent officer responsible to Parliament to receive, review, and recommend complaints of trade action in the WTO and under other trade agreements, which the federal government should depart from only with written justification. Consideration could also be given to investing this officer with the power to receive petitions and, where necessary, to take legal action to enforce Canadian compliance with the WTO Agreement. There are two other developments that, strictly speaking, are outside the realm of WTO implementation but that should be considered going forward. The first is the increasing momentum behind the conclusion of bilateral and regional free trade agreements. Canada has recently intensified its efforts to conclude more of these accords and has been called on by other WTO members to clarify how these are consistent with WTO disciplines in its TPRM reviews. Its answers in this respect have been oblique, reflecting the fact that no WTO member is entirely clear about how to formally reconcile FTAs and RTAs with WTO obligations and to deal with the associated issue of trade diversion. Moreover, members have taken only halting steps to resolve the problem. A solution is not expected soon. The second development – so far little discussed – is the impact of domestic liberalization requirements under the Agreement on Internal Trade (AIT). The AIT is essentially a free trade agreement between the provinces and the federal government that commits the parties to progressive liberalization and harmonization of government regulations. It is backed by a non-binding dispute settlement system that has been little used since the AIT was created in July 1994. Recent developments promise some intensification of AIT disciplines in future. One aspect of the AIT is the decision by the Council of the Federation – the assembly of provincial and territorial leaders – in August 2007 to develop an effective enforcement mechanism. This is foreseen to involve a binding panel process with a right of appeal but without recourse to the courts. Guidelines are also being developed for monetary penalties that reflect the seriousness of the violation, the impact of the violation, and the population of the jurisdiction involved. Another aspect of the AIT is case law. Until recently the AIT was considered to benefit only Canadian suppliers of goods and services.



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However, in Canada (Attorney General) v. Northrop Grumman Overseas Service Corp.71 the Federal Court of Appeal applied certain AIT rules related to government procurement to non-Canadian suppliers. This created a new remedy for foreign suppliers who feel that their bids have not been properly evaluated. It remains to be seen whether foreign suppliers will make expansive use of this remedy and whether Northrup Grumman presages more imaginative use of the AIT by foreign entities in future. A further development is the conclusion of “AIT+” agreements in the future. Like WTO members, Canada’s provinces and territories have been busy concluding agreements among themselves that go beyond the AIT and will, in all probability, result in new national standards in the years to come. In April 2007 the Trade, Investment and Labour Mobility Agreement (TILMA) came into effect between Alberta and British Columbia. The TILMA provides reciprocal access to investors and covers several subjects that the AIT does not, including specific provisions concerning the energy sector and binding dispute settlement. In April 2009 it will be extended to municipalities, including in their procurement contracts, and to provincially regulated financial institutions in those provinces. In June 2006 Ontario and Quebec also concluded an agreement concerning labour mobility and the recognition of qualifications, skills, and work experience in the construction industry. The agreement aims to facilitate access to the construction sector of the labour market in both provinces.

notes 1 15 April 1994, 1867 U.N.T.S. 410, 33 I.L.M. 1125 (entered into force 1 January 1995). An indication of Canadian wariness concerning the WTO Agreement may be the fact that although treaty itself was definitively accepted by the federal government in the World Trade Organization Implementation Act, S.C. 1994, c. 47, it has received no entry in the Canadian Treaty Series. 2 See J. Jackson, The World Trade Organization: Constitution and Jurisprudence (London: Royal Institute of International Affairs 1998); G. Evans, Lawmaking under the Trade Constitution 44 (The Hague: Kluwer Law International 1999); D. Cass, The Constitutionalization of the World Trade Organization (Oxford: Oxford University Press 2005). Also P. Gerhart, “Two Constitutional Visions of the World Trade Organization”

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(2003) 24 U. Pa. J. Int’l Econ. L. 1. For a critical appraisal of the constitutional view see J. Dunoff, “Constitutional Conceits: The WTO’s Constitution and the Discipline of International Law” (2006) 17:3 E.J.I.L. 647. 3 Two authoritative sources on Canadian implementation of the WTO Agreement are D. Steger, “Canadian Implementation of the Agreement Establishing the World Trade Organization” in J. Jackson & A. Sykes, eds., Implementing the Uruguay Round 243, 245 (Oxford: Oxford University Press 1997); M. Hart, “Canada” in P.J. Macrory et al., eds., The World Trade Organization: Legal, Economic and Political Analysis, vol. 3 (New York: Springer 2004) 30. 4 See A. de Mestral, “The Relationship of International and Domestic Law as Understood in Canada,” this volume, chapter 3. 5 For process-driven views of international law and implementation see A. Chayes & A.H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge: Harvard University Press 1995). The authors observe that “the fundamental instrument for maintaining compliance with treaties at an acceptable level is an iterative process of discourse among the parties, the treaty organization, and the wider public.” See ibid. at 25. 6 The failure of the Havana Charter and the ITO has been attributed to U.S. congressional opposition to further multilateral engagement in the late 1940s. When the Truman administration indicated in early 1950 that the United States would not ratify the Havana Charter, none of the other participants decided to ratify either. Countries therefore participated in GATT as “Contracting Parties,” that is, as governments, and assumed only minimal obligations concerning its implementation and compliance. See J. Jackson, World Trade and the Law of gatt (Indianapolis: Bobbs-Merrill 1969). 7 The reason for the change had to do with GATT 1947’s lack of a formal institutional structure and the desire to omit certain GATT decisions and practices from the ambit of the new treaty. Article II:4 of the WTO Agreement makes clear that GATT 1994 is legally distinct from GATT 1947. 8 The treaty establishes the organization’s legal personality, its administrative organs, rules on voting, amendment, and membership, and other miscellaneous provisions related to conformity and internal and external hierarchy. 9 The bindings function as ceilings on the tariff that may be imposed on qualifying imports. They do not prohibit countries from actually applying lower rates in practice, and in ordinary trade policy applied and bound rates often differ, thereby leaving governments a margin of freedom in responding to actual events.



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10 Understanding on Rules and Procedures Governing the Settlement of Disputes, 33 I.L.M. 112 (1994). 11 Ibid., Art. 3.7. 12 A number of these can be found in appendix 2 of the DSU, which contains special or additional rules and procedures applying to disputes that involve one or more of the Multilateral Agreements on Trade in Goods. They prevail over the DSU in the event of conflict. For instance, Art. 4.7 of the WTO Subsidies Agreement provides that if a measure “is found to be a prohibited subsidy, the panel shall recommend that the subsidizing Member withdraw the subsidy without delay.” 13 D. Steger, “Canadian Implementation of the Agreement Establishing the World Trade Organization” in J. Jackson & A. Sykes, eds., Implementing the Uruguay Round 243, 245 (Oxford: Oxford University Press 1997) (“The bills introduced in Parliament have also been minimalist in character, that is, they contain only the amendments necessary to bring Canadian legislation into conformity with the obligations of the international agreement. The government has avoided tacking on free riders or other major legislative changes that were not absolutely required to implement the treaty. This approach was perceived to be the most constitutionally defensible.”) 14 S.C. 1994, c. 47. 15 Contrast this with Art. 102 of the U.S. Uruguay Round Agreements Act, 19 U.S.C. § 3512 (1994), providing for “the relationship of the agreements to United States law and State law.” 16 In the Quebec Secession Reference, [1998] 2 S.C.R. 217 at para. 67 the Supreme Court of Canada noted that “[t]o be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation.” For this reason “[t]hey must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution.” 17 See Department of External Affairs, Agreement Establishing the World Trade Organization: Canadian Statement on Implementation, C. Gaz. 1994 Part I (31 December 1994) at 4847ff. [csi ]. The nafta Implementation Act, s.c. 1993, c. 44, was accompanied by publication of Department of External Affairs, North American Free Trade Agreement: Canadian Statement on Implementation, C. Gaz. 1994 Part I (1 January 1994). 18 This was particularly true vis-à-vis the United States, which Canada foresaw would be – and in fact has been – the source of the most protracted challenges to Canadian law under WTO law. See Uruguay Round Agreements, Statement of Administrative Action, H. Doc. 103–316(I) at 659 (1994). The SAA, which was expressly approved in the URAA, is “regarded as an authoritative expression by the United States concerning the

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interpretation and application of the Uruguay Round Agreements and ... [the URAA] in any judicial proceeding in which a question arises concerning such interpretation or application.” URAA, § 102(d), 19 U.S.C. § 3512(d). In u . s . – Sections 301–319 of the Trade Act of 1974 (Complaint by the EC) (1999), WTO Doc. WT/DS152/R at para. 7.111 (panel report) the panel observed that the SAA contains the view of the American government “on which domestic as well as international actors may rely.” 19 csi , supra note 17 at 4862. 20 Ibid. at 4865. 21 Challenges by Brazil of U.S. subsidies on domestically produced cotton in 2002 and by Australia, Brazil, and Thailand of EC subsidies on European sugar in 2003 have been important indicators of a new sense of assertiveness on the part of developing countries to protest subsidization and agricultural protection by developed countries. See United States – Subsidies on Upland Cotton (Complaint by Brazil) (2004), WTO Doc. WT/DS267/R (panel report); ec – Exports Subsidies on Sugar (Complaint by Brazil) (2004), WTO Doc. WT/DS266/R (panel report). 22 Clothing and textiles were not covered in the GATT 1947 and eventually became subject to many quotas and other restrictions from importing countries. To regularize these restrictions, a series of “Multifibre Arrangements” (MFA) were entered into that came to be associated with GATT and later the WTO. The last of these MFAs provided for the complete integration of disciplines on clothing and textiles into GATT 1994 as of 1 January 2005. 23 csi , supra note 17 at 4872. 24 In February 2008, for instance, Canada announced its intention to seek consultations in the WTO to impose a tariff rate quota (TRQ) on milk protein concentrates under GATT Art. XXVIII. Canadian food producers voiced strong opposition to the negotiations, but the government indicated that it was committed to going forward with the TRQ. Canadian dairy farmers strongly favored both the Canadian TRQ and an associated new regulation that would define the minimum percentage of milk protein that domestic or imported cheese must have in order to be sold in Canada. According to a Canadian government analysis published in the Canada Gazette, cheese processors would suffer from higher ingredient prices, which would lead to higher cheese prices in Canada if the regulation went into effect. The cost of the regulation is estimated to be $72 million, while increased revenues for Canadian milk producers are estimated to amount to $187 million. See “Finance Rejects Efforts to Curb Milk Protein Concentrate Imports” Inside u . s . Trade (12 October 2007).



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25 This requirement now appears in s. 2 of the Special Import Measures Act, r.s. 1985, c. S-15, which implements standards set out for antidumping in the WTO Antidumping Agreement Art. 3.5 and WTO Agreement on Subsidies and Countervailing Measures Art. 11.2. 26 Canada has launched several trade remedy cases in the WTO so far. All cases that have proceeded through dispute settlement involve the United States: see u . s . – Preliminary Determinations with respect to Certain Softwood Lumber from Canada, WTO Doc. WT/DS236/R (September 2002); United States – Final Countervailing Duty Determination with respect to Certain Softwood Lumber from Canada, WTO Doc. WT/DS257/ AB/R (19 January 2004); United States – Final Dumping Determination of Softwood Lumber from Canada, WTO Doc.WT/DS264/AB/R (11 August 2004); United States – Investigation of the International Trade Commission in Softwood Lumber in Canada, WTO Doc. WT/DS277/R (22 March 2004); United States – Determination of the International Trade Commission in Hard Red Spring Wheat from Canada, WTO Doc. WT/DS310/R; United States – Reviews of Countervailing Duty on Softwood Lumber from Canada, WTO Doc. WT/DS311/R (settled by mutually agreed solution 12 October 2006); United States – Subsidies and Other Domestic Support for Corn and Other Agricultural Products, WTO Doc. WT/DS357/R (ongoing). 27 Canada’s GATS Art. II exemptions are listed in WTO Doc. GATS/EL/16 (15 April 1994); GATS/EL/16/Supp.1 (28 July 1995); GATS/EL/16/Supp.1/ Rev.1 (4 Oct. 1995); GATS/EL/16/Suppl. 2 (26 Feb. 1998). 28 wto Agreement on Basic Telecommunications, 17 February 1997, 2061 U.N.T.S. 214, 36 I.L.M. 354 (entered into force 5 February 1998); WTO Agreement on Financial Services, 14 November 1997, 2065 U.N.T.S. 159 (entered into force 1 March 1999). 29 Canada amended the Copyright Act to make the concept of copyright infringement clearer. It also amended the Pest Control, Fertilizers Act and Food and Drugs Act to allow a regulation-making authority in respect of undisclosed test data. The Patent Act, the Industrial Design Act, and the Trade-marks Act were all amended to allow for applications from nationals of WTO member countries. The Integrated Circuits Topography Act was amended to make it binding on the Crown and to specify procedures for compulsory use of layout designs for integrated circuits. The Trade-marks Act was also amended in respect of geographic indications for wines and spirits. The csi specified that “Canada’s existing intellectual property statute provisions, together with the common law and the Quebec Civil Code, already satisfy the

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remaining obligations of the TRIPS Agreement.” See csi , supra note 17 at 4939. 30 WTO Doc. WT/MIN(01)/DEC/2 (20 Nov. 2001). 31 WTO Declaration on trips and Public Health, WT/MIN(01)/DEC/2 (20 Nov. 2001). 32 Decision on the Implementation of Paragraph 6 of the Doha Declaration on the trips Agreement and Public Health, WT/L/540 (2 September 2003). 33 The Decision also waives TRIPS Art. 31(h), which provides that in securing a compulsory licence for a patented product “the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization.” 34 An Act to Amend the Patent Act and the Food and Drugs Act, S.C. 2004, c. C-23. 35 In July 2007 Rwanda made the first notification under the Paragraph 6 system when it notified the WTO about the importation of 260,000 doses of TriAvir, a combination anti-retroviral, from Canada. See WTO Doc. IP/N/RWA/1 (19 July 2007). Canada reciprocated by notifying the WTO of the export of the doses in October 2007. See WTO Doc. IP/N/10/CAN/1 (5 October 2007). 36 The amendment requires ratification by two-thirds of the WTO membership, or approximately one hundred countries. As of the deadline for doing so in December 2007 only thirteen countries had ratified. In December 2007 the ratification deadline was postponed until 31 December 2009. See WTO Doc. WT/L/711 (21 December 2007). 37 Canada explained its position in a series of responses to questions put forward by GPA signatories in June 2001. On that occasion it pointed to discriminatory and restrictive U.S. state procurement legislation in the form of small-business set-asides and Buy American laws as the underlying reason for its failure to commit at the sub-central level. See “Canada – Review of National Implementing Legislation,” WTO Doc. GPA/51 (18 June 2001) at 4. 38 A comparison of leading trading countries suggests that Canada is one of the more active users of WTO dispute settlement. For example, in mid2008 data for other comparable countries in terms of number of cases as complainant/respondent were Australia (7/10), Brazil (23/14), China (2/11), India (17/19), Japan (13/15), Korea (13/13), and Mexico (17/14). 39 DSU Art. 10, entitled “Third Parties,” is the principal provision according WTO members the right to intervene. It is well known that countries intervene for the purpose of monitoring developments and securing interpretations favourable to their interests. See C. Carmody, “Of Substantial Interest: Third Parties under GATT” (1997) 18:4 Mich. J. Int’l L. 615.



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40 Michael Hart has described the official consultative machinery of trade policy in Canada as divided into (1) the Team Canada Inc. Advisory Board, which provides the federal government with advice on trade policy and market access questions, as well as issues related to trade and investment promotion, (2) the SAGITs, of which there are twelve and which are composed mainly of business executives and representatives from industry associations, as well as labour unions, environmental groups, and academics, (3) ministerial advisory bodies (such as those belonging to the minister of agriculture), and (4) the Deputy Minister’s Academic Advisory Committee, made up of fifteen senior academics from a variety of disciplines to provide senior officials with a bi-annual opportunity to discuss the full range of trade policy issues. See M. Hart, “Canada” in P.J. Macrory et al., eds., The World Trade Organization: Legal, Economic and Political Analysis vol. 3 (New York: Springer 2004) 30 at 44–5. 41 See ec – Trade Description of Scallops, WTO Doc. WT/DS7 (settled by mutually agreed solution 19 July 1996); ec – Duties on Imports of Cereals, WTO Doc. WT/DS9 (discontinued); Japan – Taxes on Alcoholic Beverages, WTO Doc. WT/DS10/R; Australia – Measures Affecting the Importation of Salmon, WTO Doc. WT/DS18; Korea – Measures Concerning Bottled Water, WTO Doc. WT/DS20 (settled by mutually agreed solution 6 May 1996); Hungary – Export Subsidies of Agricultural Products, WTO Doc. WT/DS35 (settled by mutually agreed solution); Brazil – Export Financing Programme for Aircraft, WTO Doc. WT/DS46/R; ec – Measures Concerning Meat and Meat Products, WTO Doc. WT/DS48/R; India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WTO Doc. WT/DS92/R (settled by mutually agreed solution 3 April 1998); ec – Measures Affecting Asbestos and AsbestosContaining Products, WTO Doc. WT/DS135/R; ec – Measures Affecting Imports of Wood from Canada, WTO Doc. WT/DS137 (discontinued); u . s . – Certain Measures Affecting the Import of Cattle, Swine and Grain from Canada, WTO Doc. WT/DS144 (discontinued); ec – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WTO Doc. WT/DS153 (discontinued); u . s . – Countervailing Duty Investigation with respect to Cattle from Canada, WTO Doc. WT/DS167 (discontinued); u . s . – Reclassification of Certain Sugar Syrups, WTO Doc. WT/DS180 (discontinued); u . s . – Measures Treating Export Restraints as Subsidies, WTO Doc. WT/DS194/R (29 June 2001); u . s . – Section 129(c)(1) of the Uruguay Round Agreements Act, WTO Doc. WT/DS221/R (15 July 2002); United States – Preliminary Determinations with respect to Certain Softwood Lumber from Canada, WTO Doc. WT/DS236/R (27 September 2002);

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United States – Final Countervailing Duty Determination with respect to Certain Softwood Lumber from Canada, WTO Doc. WT/DS257/AB/R (19 January 2004); United States – Final Dumping Determination on Softwood Lumber from Canada, WTO Doc. WT/DS264/AB/R (11 August 2004); United States – Investigation of the International Trade Commission in Softwood Lumber from Canada, WTO Doc. WT/DS277/R (22 March 2004); ec – Measures Affecting the Approval and Marketing of Biotech Products, WTO Doc. WT/DS292/R (29 September 2006); u . s . – Determination of the International Trade Commission on Hard Red Spring Wheat from Canada, WTO Doc. WT/DS310 (discontinued); China – Measures Affecting Automobile Parts, WTO Doc. WT/DS342/R (18 July 2008); u . s . – Subsidies and Other Domestic Support for Corn and Other Agricultural Products, WTO Doc. WT/DS357 (continuing); ec – Certain Measures Prohibiting the Importation and Marketing of Seal Products, WTO Doc. WT/DS369 (continuing); China – Measures Affecting Information Services and Foreign Financial Information Suppliers, WTO Doc. WT/DS378 (continuing). 42 For an overview of legal proceedings in the softwood lumber dispute revealing these limits see C. Carmody, “International Decisions – Softwood Lumber Dispute (2001–2006)” (2006) 100 Am. J. Int’l L. 664. 43 Recent work by Juscelino Colares hypothesizes that persistent high rates of loss among respondents in WTO dispute settlement, ranging from 83 to 91 percent, may be explained by a litigation bias that consistently construes WTO law against respondents either by curtailing rights or creating new obligations. See J.F. Colares, “A Positive Theory of WTO Adjudication” (July 2008) [unpublished, available from author]. 44 WTO Doc. WT/DS170/AB/R (18 September 2000). 45 See An Act to Amend the Patent Act, R.S. 2001, c. 10 (12 July 2001). See also Canadian Intellectual Property Office, CIPO News Release, “Government of Canada Brings Patent Act into Conformity with Obligations under the World Trade Organization” (12 July 2001). 46 WTO Doc. WT/DS114/R (17 March 2000). 47 At a meeting of the WTO Dispute Resolution Body (DSB) on 23 October 2000 Canada informed WTO members that, effective from 7 October 2000, the government had repealed the Manufacturing and Storage of Medicines Regulations providing for the exception and therefore had fully implemented the DSB’s recommendations in this case. See WTO Doc. WT/ DSB/M/91 (30 Nov. 2000) at para. 119. 48 WTO Doc. WT/DS139–142/AB/R (31 May 2000).



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49 At a meeting of the WTO Dispute Resolution Body (DSB) on 23 October 2000 Canada informed WTO members that, effective 17 September 2000, Canada had repealed the Auto Pact’s production-to-sales ratio and therefore had fully implemented the DSB’s recommendations in this case. See WTO Doc. WT/DSB/M/101 (8 May 2001) at para. 116. 50 WTO Doc. WT/DS31/AB/R (30 June 1997). 51 In its final status report Canada indicated that Canada Post would harmonize the commercial postal rates for domestic and foreign publications by reducing the foreign rate (approximately 43 cents) to the Canadian rate (approximately 38 cents). In addition, the Department of Canadian Heritage, in cooperation with Canada Post, would restructure the administration of the postal subsidy program and, as of 30 October 1998, would make payments directly to magazine publishers’ accounts at Canada Post for each eligible magazine mailed. Publishers would be billed by Canada Post for the full cost of mailing minus the subsidy they received. See Canada – Certain Measures Concerning Periodicals, “Status Report by Canada,” WTO Doc. WT/DS31/9/Add.5 (9 Oct. 1998). 52 WTO Doc. WT/DS103. 53 The final settlement provided that Alberta, British Columbia, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, and Québec would amend their respective regulations and thereby eliminate the commercial export milk (CEM) program, that the federal government would amend necessary federal legislation “as expeditiously as possible,” that Canada would not exceed its WTO export subsidy commitments for butter and skim milk but would continue to do so for a limited time in respect of cheese and other milk products. See “Notification of Mutually Agreed Solution,” WTO Doc. WT/DS103/33 (15 May 2003). 54 Canada – Continued Suspension of Obligations in the ec Hormones Dispute, WTO Doc. WT/DS321/R (31 March 2008). 55 The amount of retaliation was mentioned in Foreign Affairs and International Trade Canada, News Release 99/158, “Canada Receives WTO Arbitration Report” (12 July 1999). 56 WTO Doc. WT/DS276. 57 WTO Doc. WT/DS222/ARB (17 Feb. 2003). 58 Ibid., para. 3.121. 59 Foreign Affairs and International Trade Canada, News Release 02/178, “WTO Issues Report in Aircraft Dispute” (23 December 2002). In August 2007 Canada and a number of OECD countries signed the Aircraft Sector Understanding on Export Credits for Civil Aircraft, OECD Doc. TAD/

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PG(2007)4/FINAL (2007). The Understanding was also signed by Brazil, although Brazil is not an OECD member. See Department of Finance Canada, News Release 07/63, “Canada’s New Government Supports OECD Revised Aircraft Sales Financing Agreement” (30 July 2007); B. Marotte, “New Accord Takes Aim at Aircraft Subsidies,” Globe and Mail, (31 July 2007) B1. 60 See WTO Docs. WT/TPR/S/22 (7 October 1996), WT/TPR/S/53 (19 November 1998), WT/TPR/S/78 (4 December 2000), WT/TPR/S/112/Rev.1 (17 March 2003), WT/TPR/S/179 (4 June 2007). 61 WTO Doc. WT/TPR/S/78 (4 December 2000) at vii. 62 WTO Doc. WT/TPR/S/179 (4 June 2007) at vii. 63 Ibid. 64 These include the Canadian Dairy Commission, the Freshwater Fish Marketing Corporation, ten provincial and three territorial liquor boards, and the Ontario Bean Marketing Board. 65 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005, 45 I.L.M. 269 (entered into force 18 March 2007). 66 The United States withdrew from UNESCO in 1984 because of dissatisfaction with the organization’s orientation and management. It was followed by the United Kingdom and Singapore. After these departures, the organization was reorganized, and the number of UNSECO divisions halved. The United States rejoined in 2003, in part to forestall the normative effect of the CCD by voting against its adoption. 67 The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed plurilateral trade agreement that would strengthen enforcement of intellectual property rights related to Internet activity and trade in information-based goods. As of mid-2008 the agreement was being negotiated by the governments of the United States, Japan, Switzerland, Australia, New Zealand, South Korea, Canada, Mexico, and the EC. The treaty would establish an international coalition against copyright infringement, imposing strong, top-down enforcement of copyright laws in developed nations. The atca has been criticized in certain quarters for conflating different types of IP infringement, “piracy,” and counterfeiting and for the non-transparent way in which the treaty is being negotiated. See “U.S. Seeks New Anti-Counterfeiting Treaty with Key Trading Partners” Inside u.s. Trade (26 October 2007). 68 J. Simpson, “The Ugly Canadian at Global Trade Talks in Geneva” (Globe and Mail) 29 July 2007, A11. 69 As of mid-2008 Canada had free trade agreements with the United States, Mexico, the European Free Trade Area, Peru, Costa Rica, Chile, and



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Israel. It was in the process of negotiating agreements with Colombia, Jordan, the Andean Community, Panama, Korea, CARICOM, the Dominican Republic, the “Central America Four” (Nicaragua, Honduras, El Salvador, and Guatemala), and Singapore, and was engaged in negotiations for the Free Trade Area of the Americas. 70 See L. Benoit, Chair, “Ten Steps to a Better Trade Policy: Report by the Standing Committee on International Trade,” 39th Parliament, 1st Session (April 2007). 71 Doc. A-398-07 (F.C.A.). The case involved an appeal by Northrop Grumman to the Canadian International Trade Tribunal (CITT) concerning a procurement opportunity originally notified by Public Works and Government Services Canada. Northrop Grumman alleged that the procurement opportunity had not been conducted in accordance with the AIT. A preliminary point was whether Northrup Grumman, an American company, had standing before the CITT as a “potential supplier” under the citt Procurement Inquiry Regulations (citt ipr ). On this point the CITT found that Northrup Grumman fell within the definition because neither the citt Act nor the citt ipr contained any express requirements as to the nationality of a potential supplier. This decision was later confirmed by the Federal Court of Appeal.

8 Canada’s Indoor Arbitration Management: Making Good on Promises to the Outside World ANTHONY R. DAIMSIS

introduction In 1986, Canada acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.1 This treaty has two broad goals: to facilitate the enforcement of foreign arbitration agreements and to facilitate the enforcement of foreign arbitration awards. The success of this treaty may be measured in part by the fact that 144 states are currently party to it. Leading commentators have said it is the most effective instance of international legislation in the entire history of commercial law.2 The reason is that state-parties adhere closely to the uniform rules it sets down regarding the enforcement of arbitration agreements and awards. Deference to the rules set out in the New York Convention has played a significant role in the emergence of international commercial arbitration as the premier method of resolving international business disputes. Because the New York Convention’s subject matter falls broadly under s. 92 of the Constitution Act, 19823 and therefore within the class of subjects traditionally reserved to provincial jurisdiction, Parliament sought approval from the provinces and territories before acceding to the New York Convention.4 This fact places Canada in a precarious position. The scope of Canada’s obligations under the convention is to ensure that arbitration agreements and awards that fall under the convention are enforced where federal or provincial implementing legislation is concerned and, owing to the convention’s federal clause, that the federal government brings the principles



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of the convention to the provinces’ notice. But Canada’s federal government can do little in the face of provincial legislation that does not adhere to the convention. This fact is especially unfortunate given that arbitration lies mainly within the provincial domain. The growth of international commercial arbitration is tied to the movement towards the uniform application of rules and principles in this area. In particular, the uniform application of rules governing the validity of arbitration agreements under the New York Convention is a good example. The practical impact of replacing the convention’s provisions on this score is that Canadian jurisdictions are effectively substituting a domestic standard for an international one. While the replacement has not resulted in a stricter one, the precedent of substituting a domestic standard for an international one is dangerous, since it does not preclude the insertion of a domestic rule that is stricter than an internationally accepted uniform rule. To avoid the perception that Canada is shirking its international obligations, Parliament should reassess its treaty-making process through inter-legislative dialogue and revert to methods of implementing legislation that help to avoid inter-jurisdictional inconsistency, use modern legal provisions found in many recent treaties, and finally, adopt a transparent approach to the application of Canadian law. How these goals can be achieved is set out in the final section of this chapter. The second part of this chapter provides an overview of Canada’s accession to the New York Convention and a brief overview of the treaty itself. The third part explains how certain Canadian statutes conflict with the substantive rules, directives, and legislation examined in the second part and then considers their effects. The fourth part provides a set of recommendations about what Canada should do to remedy this state of affairs.

the constitutional position Part 6 of the Constitution Act, 18675 provides for the distribution of legislative powers between the federal government and the provinces. Section 91 outlines the classes of matters over which the federal government enjoys exclusive legislative authority,6 while s. 92 specifies the classes of matters over which the provincial governments have exclusive competence.7 Section 2 of the Constitution Act, 18718 empowers Parliament to create additional provinces and

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territories and allows Parliament to delimit their respective powers. As a result, Parliament, by federal statute, has conferred powers on Canada’s three territories similar to those that the provinces enjoy over the classes of matters enumerated under s. 92.9 However, arbitration is not an enumerated class identified in either s. 91 or s. 92. Consequently, the question arises whether arbitration falls within the residual power of Parliament by virtue of s. 91 or whether it falls within one of the enumerated classes of matters listed in s. 92. Section 92(13) provides that “property and civil rights in the province” are within the exclusive competence of the provinces. The private contractual right to enter into arbitration agreements falls generally within the legislative competence of provinces and is caught by s. 92(13). Furthermore, as s. 92(14) confers exclusive competence on the provinces to administer justice within provinces, this section has been held to mean that matters regarding court enforcement of arbitral awards stemming from arbitration agreements is also within provincial competence, as it is the provinces that hold the power to constitute courts, which in turn enjoy jurisdiction over both provincial and federal matters.10 Finally, federal legislation on international commercial arbitration does have a place in the Canadian framework, although in limited form. Federal legislation applies in relation to matters where at least one of the parties is Her Majesty in Right of Canada or a department of the Canadian federal government or a Crown corporation, or in relation to maritime or admiralty matters.

t h e n e w yo r k c o n v e n t i o n As stated at the outset, the New York Convention is a treaty regulating the enforcement of foreign arbitration agreements and awards.11 Its inception marked a watershed in international commercial arbitration by creating a simple method for parties to enforce their arbitration agreements and awards in any state party to the treaty. According to the treaty, courts may refuse enforcement only on limited grounds. Unlike earlier conventions on the subject of arbitration,12 the New York Convention shifts the burden onto the losing party to establish the grounds on which a court should refuse to enforce the arbitration award.13 Additionally, the introduction of a uniform rule governing the formal validity of arbitration agreements was included in the final draft of the New York Convention.14



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Article 2 states: 1 Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. 2 The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 3 The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. This provision of the treaty establishes a substantive rule to govern the formal validity of arbitration agreements for states party to the New York Convention. In short, this rule requires a written arbitration agreement signed by all parties to the agreement and if unsigned, the arbitration agreement must be contained in a written exchange. This is the standard by which the formal validity of an arbitration agreement is judged under the New York Convention. Before this, both the Geneva Protocol and the Geneva Convention tied the formal validity of arbitration agreements to the requirements of a specific national or municipal law.15 Reservations Permitted by the New York Convention Article 1(3) of the New York Convention reads: “When signing, ratifying or acceding to this Convention, or notifying extension under Article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration” (emphasis added).

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This article allows a state to make reservations. The first of these is the reciprocity reservation.16 Its effect is to narrow the scope of the New York Convention’s application. Instead of applying to all arbitration awards, a Convention State may choose to recognize and enforce only arbitration awards made in other contracting states. Because of the number of parties to the New York Convention, it is said that this reservation is of lesser practical relevance.17 The second reservation is the commercial reservation, which allows countries to narrow the scope of the New York Convention by making it applicable only to awards from legal relationships considered “commercial” under the law where enforcement is sought. For example, this would exclude arbitration awards from labour or family disputes if these disputes were not commercial under the relevant law. Quebec is the only Canadian jurisdiction that has not made use of this reservation.18 Finally, according to the New York Convention’s travaux préparatoires, without prejudice to articles 1(3), 10, 11, and 14, no reservations are permitted under the treaty.19 Article 1(3) has already been discussed. Article 10, the colonial clause, allows a state-party to exclude one or several of its territories from the New York Convention. Such a clause does not apply to Canada. Article 11, the federal clause, is discussed later in this chapter, and article 14, also discussed later in this chapter, is the treaty’s overarching reciprocity provision. Article 2, the provision that governs arbitration agreements, is not included in the above list. Nevertheless, it is a cornerstone of the treaty.20 Moreover, the provisions of the New York Convention that buttress article 2 are equally excluded from reservation.21 Canada’s Accession to the New York Convention As mentioned, Canada acceded to the New York Convention with the consent of its provinces in 1986.22 In Canada, the authority to ratify, sign, or accede to a treaty such as the New York Convention vests in the governor-general23 and is exercised by the executive through the prime minister and the Cabinet.24 The question whether the federal government may enter into treaties, the subject matter of which lies mainly within provincial legislative competence such as arbitration, has arisen and has been resolved in favour of the federal government’s right to enter into and negotiate treaties even where the subject matter lies exclusively within provincial competence.25 Nevertheless, the



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decision to consult with Canada’s provincial premiers before acceding to this treaty was a prudent one given that it covers a subject matter falling mainly within provincial competence. Parliament implemented the New York Convention by enacting the United Nations Foreign Arbitral Awards Convention Act.26 Canada’s only declaration upon accession was that it would apply the New York Convention only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in the case of the province of Quebec, where the law did not provide for such limitation.27 The remaining Canadian jurisdictions that have implemented the New York Convention have done so either within the same statute they have used to adopt the Model Law on International Commercial Arbitration28 or by separate statute.29 Canada alone owes obligations under the New York Convention internationally. The convention’s federal clause, article 11, is aimed specifically at countries in which competence in specific fields of the law are divided amongst different constituent organs, as with Canada and its provinces and territories, and is phrased as follows: In the case of a federal or non-unitary State, the following provisions shall apply: (a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal authority, the obligations of the federal Government shall to this extent be the same as those of Contracting States which are not federal States; (b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent states or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent states or provinces at the earliest possible moment; (c) A federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of this Convention, showing the extent to which effect has been given to that provision by legislative or other action.

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In essence, article 11(b) of the New York Convention directs a federal government to urge its constituent states to take account of the articles of the New York Convention to which the federal government has adhered on behalf of the state. Article 11 represents the “old” form of federal clause, the effect of which is to release the federal government from responsibility for provincial legislation that does not observe the requirements of the New York Convention. In doing so, the New York Convention implicitly recognizes that Canadian provinces and territories owe no obligations to other contracting states. This provision, indeed the treaty as a whole, reinforces the classic view that international law is a deliberate commitment between parties who possess the requisite power to bind themselves to international agreements. It remains then that Canada’s obligations apply only in a mandatory way to federal law. The uniform rules included in the New York Convention apply in the provinces and territories only once implemented into domestic law. This process, known as the dualist theory, explains Canada’s approach to the interaction between international law and national law. Specifically, under the dualist theory, international and national law operate on different levels. Although Canada follows the dualist model, strict application of this theory has been questioned by Canada’s highest court.30 Uniform Law Conference of Canada In 1999, the Uniform Law Conference of Canada (ULCC) adopted a Commercial Law Strategy with its stated goal being to “modernize and harmonize commercial law in Canada, with a view to creating a comprehensive framework of commercial statute law which will make it easier to do business in Canada, resulting in direct benefits to Canadians and the economy as a whole.”31 Briefly stated, the method used by the ULCC to draft uniform statutes whose purpose is to serve as a blueprint for Canadian jurisdictions seeking to implement treaties is as follows. The ULCC marshals legal expertise to discuss the treaties in question and drafts uniform statutes intended to reflect their purposes. Part 1, article 2(2) of the ULCC’s suggested uniform statute on international commercial arbitration, which was drafted for use by Canadian jurisdictions seeking to implement the New York Convention into their domestic law, reads:



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2(2) The Convention applies to arbitral awards and arbitration agreements (emphasis added) whether made before or after the coming into force of this Part, but applies only in respect of (a) the recognition and enforcement of arbitral awards made in another Contracting State, whether the award is made before or after the State becomes a Contracting State; and (b) differences arising out of commercial legal relationships, whether contractual or not.32 Following this provision is a note explaining, “[J]urisdictions not wishing to base Part I on a reciprocal basis should delete paragraph (a). Jurisdictions not wishing to restrict the application of Part I to commercial transactions should delete paragraph (b).” This note serves to alert legislators to the two prominent reservations permitted by the New York Convention, discussed above. Of particular concern, however, is the fact that article 2(2) provides that the New York Convention applies to both arbitration agreements and arbitration awards. The ULCC Draft Statute does not seek to carve out article 2 (arbitration agreements) from the New York Convention.

j u r i s d i c t i o n s c o n t r av e n i n g t h e n e w yo r k c o n v e n t i o n A number of Canadian jurisdictions do not include in their implementing legislation concerning the New York Convention the crucial provision that mandates arbitration agreements in written form. Article 2 is a cornerstone of the New York Convention, in particular because it was intended to create a uniform, substantive rule to regulate the formal validity of those arbitration agreements falling under the New York Convention.33 The three approaches used by Canadian legislatives to delete article 2 from their implementing legislation on the New York Convention are (1) the Ontario approach, (2) the Quebec approach, and (3) the Blanket approach. The Ontario Approach The Ontario Foreign Arbitral Awards Act34 implemented the New York Convention into Ontario law. However, upon Ontario’s adoption of the Model Law, the province decided to repeal the legislation implementing the New York Convention, believing that the Model

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Law sufficiently covered its substance.35 Formally then, Ontario has no statute that brings into force the New York Convention, at least not in the sense familiar under Canada’s dualist approach. Nevertheless, section 10 of its current international commercial arbitration act reads: “For the purposes of articles 35 & 36 of the Model Law, an arbitral award includes a commercial arbitral award made outside Canada, even if the arbitration to which it relates is not international as defined in article 1(3) of the Model Law.”36 Section 10 has been said to effectively implement the New York Convention into Ontario law.37 However, some precision is necessary. As is evident from its wording, this section provides only for the enforcement of arbitration awards made outside Canada and does not mention arbitration agreements that lay the groundwork for such awards. To be precise, section 10 brings into force only those provisions of the New York Convention that concern recognition and enforcement of arbitration awards made outside the enforcing state, in this case, outside Canada.38 Section 10 is an attempt to fill the gap in the Model Law for foreign non-international arbitrations whose awards the New York Convention requires member-states to enforce. This was thought necessary because the Model Law applies only to arbitration awards and agreements that are “international” as this term is defined under article 1(3) of the Model Law. However, the scope of the New York Convention is broader than this. It can include domestic arbitrations leading to awards, so long as these awards are rendered in another foreign state. For example, an award rendered in Germany regarding a local commercial dispute between two German parties is held to be enforceable in Canada pursuant to the New York Convention because according to article 1(1) the award was made in the territory of a state other than the state where the recognition and enforcement of such awards is sought. However, this same award is not enforceable under the Model Law, because it may not pass the “international” test. Because of the repeal of the statute implementing the New York Convention and owing to section 10 of Ontario’s International Commercial Arbitration Act, parties wishing to enforce arbitration agreements in Ontario that would normally fall under the New York Convention have recourse only to the statute that adopts the Model Law.39 In particular, parties may not rely on article 2(2) of the New York Convention, which provides courts with a substantive rule governing the formal validity of arbitration agreements but must rely on article 7(2) of the Model Law. It may be worthwhile to compare these two provisions.



Indoor Arbitration Management

New York Convention Article 2(2) The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.

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Model Law Article 7(2) The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.

The Model Law widens the scope of the writing requirement in three ways. First, the Model Law’s language is more expansive, allowing for the formation of arbitration agreements by any means of telecommunication that provide a record of the agreement. This includes exchanges by electronic mail, a means that has not always been permitted under the New York Convention. Second, article 7(2) of the Model Law allows tacit acceptance, or implied consent, to arbitrate through statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another. In effect, this could allow parties to proceed to arbitration based on a questionable original arbitration agreement. Third, article 7(2) accounts for a common trade practice of incorporating terms, in this case an arbitration agreement, by reference to another document. The Model Law requires, however, that the contract be in writing, and the reference is such as to make that agreement part of the contract. Canadian law recognizes that legislatures may implement a treaty into domestic law by giving effect to its provisions even where the statute makes no mention of the treaty.40 This appears to be Ontario’s justification for repealing its statute on the New York Convention.41

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It was probably also believed that Ontario’s international commercial arbitration act adopting the Model Law, in particular article 7, already met the requirements of the New York Convention, thereby making explicit reference to article 2 unnecessary. Whether this belief was correct, the purpose underlying Ontario’s legislative approach appears not to be a desire to withdraw its original pledge to implement the New York Convention. Nevertheless, legally speaking, Ontario has no formal statute on the New York Convention and to the extent that the treaty is operative, its application is restricted to enforcing arbitration awards. Judicially, the question of whether courts in Ontario should apply the New York Convention or its provisions despite there being no formal implementing legislation remains unresolved.42 For example, in Kanto Yakin Kogyo Kabushiki-Kaisha v. Can-Eng Manufacturing Ltd.,43 the respondent pointed out that article 4 of the New York Convention requires translation of an award into the enforcing court’s official language and argued that the applicant’s non-compliance with this requirement was sufficient grounds for the court to refuse recognition and enforcement of the award.44 However, the Ontario court refused to take note of the New York Convention, and this requirement in particular, because the respondent offered no evidence that the New York Convention was in force in Ontario.45 Implicit in Kanto is the revelation that there appears to be no obligation to interpret provincial legislation in a manner consistent with a treaty to which Canada has obligated itself and for which the province agreed to implement into domestic law. In Automatic Systems Inc. v. Bracknell Corp.,46 by comparison, while acknowledging that the New York Convention was not in force in the province, the Ontario Court of Appeal nevertheless referred to it approvingly. The court emphasized the fact that Parliament, as well as other provinces, had implemented the treaty. To this end, the court called attention to the fact that “predictability in the enforcement of dispute resolution provisions is an indispensable precondition to any international business transaction and facilitates and encourages the pursuit of freer trade on an international scale.”47 What these cases reveal is that the decision to apply the New York Convention in Ontario is a discretionary exercise and is hardly predictable. For example, in Kanto the court refused outright to take note of the New York Convention despite Canada being a party to it and despite the legislative indicia that Ontario subscribes to its



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provisions. In Automatic Systems, while the court did reference the New York Convention, it nevertheless pointed out that it was not in force. Furthermore, the court took for granted that the provisions of the New York Convention that govern arbitration agreements and their enforcement were the same as those found in the Model Law. Such judicial unpredictability can be disruptive to international trade. Knowledgable arbitration practitioners consider many factors when making decisions on where to hold their arbitrations. Predictability is one. It is also a requirement for the proper governance of any contractual relationship. Foreign practitioners will avoid arbitral venues that introduce uncertainty. This is not to say that Ontario’s judiciary cannot be counted on to render consistent interpretations, but when a simple question such as whether courts in Ontario apply the New York Convention cannot be answered simply, prospective arbitration parties may shy away. More relevant for this study is that there appears to be little regard given to the scope of Canada’s obligations or to the Ontario legislation purporting to implement the treaty. The Quebec Approach While Quebec also has no formal legislation that implements the New York Convention, article 948(2) of Quebec’s Code of Civil Procedure states the following: “The interpretation of this Title shall take into account, where applicable, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards as adopted by the United Nations Conference on International Commercial Arbitration at New York on 10 June 1958.”48 Whether this provision effectively implements the New York Convention into Quebec law is uncertain.49 Nevertheless, Quebec courts should take note of the New York Convention, especially where such a clear directive to do so is contained within one of Quebec’s key legislative texts. This appears to be the position taken by the Supreme Court of Canada in GreCon Dimter Inc. v. J.R. Normand Inc.50 In GreCon, LeBel J., for a unanimous Court, explained that at least with respect to Quebec, domestic statutes with an international scope must be interpreted in a manner consistent with Quebec’s international commitments.51 Because the New York Convention governs foreign arbitration agreements and because “Quebec is a party to the [New York Convention], as a result of Canada’s belated

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accession to the Convention, which came into force here on August 10, 1986,”52 the Court reasoned that the New York Convention is a formal source for interpreting the domestic law provisions governing the enforcement of arbitration agreements in Quebec.53 On its face, this decision strongly endorses international commercial arbitration and its role within Quebec’s legal framework. The Supreme Court appears open to the view that Quebec law should be interpreted in light of the New York Convention. This position confirms the existence of an obligation to interpret provincial legislation in a manner consistent with Canada’s international obligations. However, the GreCon decision does not quite get there and requires critical analysis, not least because of its regrettably injudicious drafting. One difficulty with GreCon is that article 948(2) C.C.P. is the only provision that references the New York Convention����������������� . Since th������� is section of the code is concerned only with the enforcement of foreign awards, it would appear that the directive to take into account the New York Convention is limited to t������������������������������� his aspect of the arbitral process. Book 7, title 2, makes no mention of arbitration agreements, nor does it contain a provision equivalent to article 2 of the New York Convention. A separate Quebec statute governs the form and validity of arbitration agreements.54 This fact makes it difficult to square the Supreme Court’s conclusion that the New York Convention is a formal source to interpret the enforcement of arbitration agreements in Quebec.55 Another difficulty with GreCon is LeBel J.’s statement that Quebec is a party to the New York Convention and thus owes international commitments.56 As seen earlier, this is at odds with Canadian law. In fact, neither Quebec nor any of the other Canadian provinces or territories is formally a party to the New York Convention. Consequently, the New York Convention cannot create formal or legal international obligations for Quebec, nor indeed for any other Canadian province or territory. The choice of wording is unfortunate. It may be that LeBel J. was merely careless. If on the other hand LeBel J. meant to use these words, then what we have is a decision from Canada’s highest court that appears to pay little regard to the application of international law under Canada’s federal structure, or does not abide by it. Either way, the opportunity for Canada’s highest court to fashion an unmistakable obligation to interpret provincial legislation in a manner consistent with Canada’s obligations has been missed.



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The Blanket Approach As shown above, each Canadian jurisdiction (except the provinces of Ontario and Quebec) has formal implementing legislation that brings the New York Convention into force. These statutes either implement the convention separately or implement it within the same statute that adopts the Model Law.57 British Columbia, Saskatchewan, and the Yukon, jurisdictions adopting the former approach, have removed article 2 of the New York Convention from their respective statutes by modifying ULCC article 2(2) to read as follows: British Columbia This Act applies only to the recognition and enforcement of awards respecting differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the law of British Columbia. Yukon This Act applies only to the recognition and enforcement of awards made in another State respecting differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the law of the Yukon.58 Saskatchewan This Act applies only to the recognition and enforcement of awards respecting differences in legal relationships, whether contractual or not, that are considered as commercial pursuant to the law of Saskatchewan.59 The result for parties who seek to enforce arbitration agreements in these jurisdictions is that they must rely on another statute that covers the enforcement of foreign arbitration agreements. However, if these same parties were to seek enforcement of a foreign arbitration award stemming from the very same arbitration agreement just mentioned, the statute that implements the New York Convention would ostensibly apply. British Columbia, Saskatchewan, and the Yukon each have legislation bringing into force the Model Law. Therefore, parties may use the Model Law to enforce their arbitration agreements. Indeed the relevant provisions of the Model Law propose to duplicate those of

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the New York Convention.60 It is important to note, however, that article 1(1) of the Model Law makes it subject to any relevant treaty that is in force in a Model Law jurisdiction. For example, where both the New York Convention and the Model Law apply, the provisions of the New York Convention rank ahead of those of the Model Law. While it is tempting to argue that the application of one over the other is a distinction without a difference, the difference between how the New York Convention and the Model Law treat the validity of arbitration agreements may be significant in some cases, as mentioned above, and as I will discuss further below. Summary of the Approaches and Analysis The three approaches outlined above each lead, more or less, to the same result. The principles of the New York Convention are reflected in the law, but only as they relate to the enforcement of arbitration awards. In each case, the formal requirements of article 2 are absent, replaced instead with domestic law counterparts. Where the Model Law is the applicable statute, the counterpart is article 7. In Quebec, which has used the Model Law as a guide only, the counterparts are CCQ articles 2638–2642.61 These jurisdictions’ laws have set up a framework whereby courts may refer to the New York Convention when enforcing arbitration awards62 but must refer to a separate statute (Model Law in the cases of British Columbia, Ontario, Saskatchewan, and the Yukon, and the CCQ and CCP in Quebec) in determining the substantive validity of arbitration agreements.63 From a Canadian perspective, this appears not to cause much difficulty. However, under the New York Convention, it does. Article 5 of the New York Convention governs the recognition and enforcement of arbitration awards and applies even in those Canadian jurisdictions that limit the New York Convention’s scope to awards only.64 The problem lies in the fact that article 5(1)(a) is tied inextricably to article 2. Article 5(1)(a) provides that a court may refuse to recognize and enforce the arbitration award if “the parties to the agreement referred to in article ii were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made.” In essence, article 5(1)(a) directs the enforcing court to gauge the validity of the arbitration agreement against article 2 of the New



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York Convention. This makes the statutes of British Columbia, Saskatchewan, and the Yukon, which remove article 2 but which maintain the text in article 5 referring back to article 2, problematic. How should courts deal with the tie-in between article 2 and article 5(1)(a)? Should they read into article 5(1)(a) a reference to domestic provisions governing international arbitration agreements? In other words, should these courts, when applying the New York Convention, simply substitute Model Law article 7(2) for article 2(2)? At first glance, this does not appear problematic. After all, Model Law article 7 is an extension of article 2(2) and is, essentially, a surrogate provision. Furthermore, because article 7 is more expansive than article 2, a credible argument can be advanced that this provision conforms to the treaty. However, such an argument relies on interpreting article 2 not as a uniform standard but as a minimum standard only. In other words, provided a jurisdiction does not set standards for arbitration agreements that are stricter than article 2, its legislation complies with the treaty. Taking this view to its limits, even a verbal arbitration agreement could be enforced under the New York Convention. However, this result creates many difficulties, not the least of which is article 4(1)(b) of the New York Convention. This provision requires a party seeking recognition and enforcement of an arbitration award to supply the court with the original agreement referred to in article 2 or a duly certified copy thereof. Indeed, article 4(1)(b), like article 5(1)(a), is linked inextricably to article 2, something that creates problems in trying to avoid it. It is also an obstacle to the suggestion that allowing the enforcement of verbal arbitration agreements does not violate the New York Convention, as has been asserted by the Ontario attorney general.65 Finally, as discussed in part 1, the New York Convention does not permit opting out from article 2. It does allow recourse to sources that are equally or more favourable towards arbitration within a state-party’s jurisdiction. However, article 7(1), the provision that sanctions this recourse, does not authorise combining provisions of the New York Convention with other sources. In other words, the New York Convention is a “take it, or leave it” styled legal instrument, except for those reservations identified in the treaty. If one wishes to use its provisions on the enforcement of arbitration awards, one must also use its provisions on enforcement of arbitration agreements.66 The first paragraph of article 7 of the New York Convention

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reads: “The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.” This provision allows parties to circumvent the strict requirements of the New York Convention, including the form requirements of article 2.67 This allows a party seeking enforcement to rely on laws,68 statutes, or treaties that are more liberal to enforce awards and arbitration agreements. Therefore, if a more favourable law permits verbal or tacit arbitration agreements, for example, a party may rely on this law.69 Interestingly, the Model Law has no equivalent provision. While article 7(1) provides a practical solution for a party, it does not diminish and does not affect any of the New York Convention’s provisions. Most importantly, it does not sanction substituting the New York Convention’s uniform rules with more lenient ones. Article 7(1) simply allows parties to use other means available in a New York Convention jurisdiction. This subtle distinction is important. A New York Convention award is different from an award enforced in a New York Convention state using a more favourable law sanctioned by article 7(1). An arbitration award that meets the New York Convention’s standards is also enforceable in any of the 144 signatory states.70 Therefore, a possessor of such an award may enforce against an opponent’s property located in any signatory state until the award is satisfied. Relying on article 7(1) entitles the winning party to enforce only against property located within the territorial scope of the law or requires a reciprocal judgment treaty with a state where a party seeks to enforce its rights.

conclusion Returning to the question of whether jurisdictions that extend the New York Convention only to arbitration awards violate the treaty’s spirit, one would have to conclude that it seems so. There are several reasons that underlie this opinion. As mentioned, the New York Convention does not allow parties to reserve article 2. Second, both articles 4(1)(b) and 5(1)(a) of the New York Convention are inextricably tied to its article 2. Finally, article 7(1), while permitting recourse



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to more favourable laws, does not permit their intermingling with the treaty and thereby reinforces the view that the New York Convention applies as a whole. The consequence of replacing article 2 with domestic provisions is that it could permit parties to the New York Convention that have entered the reciprocity reservation to deny recognition of arbitral awards made in those Canadian jurisdictions that do not apply article 2 directly. Article 14 of the New York Convention reads: “A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention.” The intention of this provision is to allow state-parties to refuse to extend the treaty’s benefits to other state-parties that do not apply the New York Convention in part or in whole.71 Because of article 14 it may be possible for jurisdictions to refuse to extend the benefits of article 2 to awards made in Ontario,72 British Columbia, Saskatchewan, Quebec, or the Yukon. Such jurisdictions could instead use their own domestic standards to determine the validity of arbitration agreements, which in turn could create an obstacle to the enforcement of awards from Canadian jurisdictions. What this means for Canada is far from clear and brings to light a weakness of its so-called “legislative federalism.” The weakness is that Canada’s constitutionally enshrined separation of powers doctrine may lead to results that appear at odds with the requirements of international law; on the one hand, owing to the realities of applying international law to a federal state. On the other, this rationalization has a hollow ring for commercial players seeking a stable and uniform application of internationally accepted norms. It is also at variance with the values of a country that is respected for its principled approach and insightful solutions to the many issues that buttress a globally integrated economy.

r e c o m m e n dat i o n s By overlooking how provincial legislatures have implemented the New York Convention, Canada has failed to ensure compliance with this treaty. For Parliament to rely on its internal structure as a means of justifying its disregard for treaty-based rules is inconsistent with Canada’s reputation as a nation that respects hard and soft international obligations. Parliament should play a

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stronger role in monitoring how its provinces respect international treaties. To this end, Parliament should implement the following four changes. It should set up an effective inter-legislative committee tasked with monitoring and reporting on how Canadian jurisdictions have implemented and adhere to the New York Convention and other treaties. Where the committee finds that Canadian statutes are not in line with Canada’s international obligations under a treaty, it should recommend to these jurisdictions that they amend their laws. Canada may wish to reconsider its treaty-making process both internally and externally. Internally, it may wish to formalize a process of consulting with provinces before ratifying treaties that cover s. 92 matters. Externally, when considering entering into treaties covering s. 92 matters, it may wish to use the more modern form of federal clause73 that would extend Canada’s obligations to those provinces that Canada declares apply the given treaty. For treaties that directly affect trade, such as the New York Convention, this may well prove to be useful. It would appear that it is now time to consider resurrecting the habit of tabling proposed legislation before ratifying a treaty and suggest that provinces do the same. This method will slow down the treaty-implementing process, but as has been evidenced in other jurisdictions such as the United Kingdom, it is invaluable to assuring compliance with international obligations owed under treaties. Finally, Canada should keep the international community apprised of the status of its treaty obligations by publicizing their true status and application within Canada. In the case of the New York Convention, the UNCITRAL Secretariat expects that such communication be undertaken periodically.

notes 1 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 330 U.N.T.S. 38, Can. T.S. 1986 No. 43, 26 I.L.M. 714 (entered into force 7 June 1959) [New York Convention]. 2 M. J. Mustill, “Arbitration: History and Background” (1989) 6 J. Int’l Arb. 43 at 49. 3 The Constitution Act, 1982, being Schedule b to the Canada Act 1982 (U.K.), 1982, c. 11.



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4 See G.-A. Beaudoin, La Constitution du Canada (Montreal: Wilson & LaFleur 1990) at 572–5 for a thorough examination of how this practice came to be and its political rationale. 5 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5 [Constitution Act]. 6 In this chapter, “Parliament” will be used interchangeably with “the federal legislature” for ease of reading. 7 Parliament retains residual power to legislate in matters not specified in s. 92 of the Act. 8 Constitution Act, 1871 (the British North America Act, 1871) 34 & 35 Vict., c. 28. 9 Northwest Territories Act, R.S.C. 1985, c. N-27, ss. 16, 17, Yukon Act, S.C. 2002, c. 7, s. 18 and Nunavut Act, S.C. 1993, c. 28, s. 23(1)(e)(l). 10 Desputeaux v. Éditions Chouette (1987) Inc., 2003 SCC 17, [2003] 1 S.C.R. 178 at para. 43. 11 The best-known work on the New York Convention is A.J. van den Berg, The New York Arbitration Convention of 1958 (Deventer, Netherlands: Kluwer Law and Taxation 1981) [van den Berg]. 12 Geneva Protocol on Arbitration Clauses, 1923 [Geneva Protocol] and the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 [Geneva Convention] being the most prominent. 13 Prior to this, the burden was on the party wishing to enforce an arbitration award to prove that the award was not deficient. This meant that parties had to first win a substantive case during the arbitration proceedings and then win a procedural case at the enforcement stage. 14 Although originally intended as a separate Protocol on arbitration agreements that would accompany the New York Convention, it was decided to include Art. II, which governs arbitration agreements, within the New York Convention in the final stages of negotiation. This explains why the Convention’s title does not refer to arbitration agreements, despite its dual purpose of controlling the recognition and enforcement of both arbitration agreements and awards. See van den Berg, supra note 11 at 9 and 56. 15 Specifically, the law of the place where the arbitration agreement was concluded. 16 Emphasis added. This is distinct from reciprocity as it is understood in public international law. See van den Berg, supra note 11, at 14. 17 See A. Redfern, M. Hunter, N. Blackaby, & C. Partasides, Law and Practice of International Commercial Arbitration, 4th ed. (London: Sweet & Maxwell 2004). This may be true where contracting states act in a way inconsistent with the New York Convention, but less so where contracting

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parties have, even through inadvertence, breached some of the New York Convention’s mandatory provisions. 18 Art. 2639 C.C.Q. refers to categories of����������������������������������� disputes that may not be arbitrated: “Disputes over the status and capacity of persons, family matters or other matters of public order may not be submitted to arbitration.” An arbitration agreement may not be opposed on the ground that the rules applicable to settlement of the dispute are in the nature of rules of public order. 19 U.N. Doc. E/CONF.26/8/Rev. 1 and E/CONF.26/9/Rev. 1, in particular at para. 14. 20 According to Art. 19 of the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, a state may not formulate a reservation if “(i) it is prohibited by the treaty, (ii) the treaty provides that only specified reservations, which do not include the reservation in question, may be made, or (iii) the reservation is incompatible with the object and purpose of the treaty.” 21 For example, Arts. IV(1)(b) and V(1)(a) refer to Art. II. These provisions are explained in more detail in the following sections. 22 For a useful and insightful view of the negotiations that led to Canada’s late adoption of legislation dealing with international commercial arbitration, and in particular the discussions on the difficulty faced as a result of Canada’s federal makeup, see R.K. Paterson & B.J. Thompson, eds., uncitral Arbitration Model in Canada: Canadian International Commercial Arbitration Legislation (Toronto: Carswell 1987). 23 This is owing to the 1947 Letters Patent Constituting the Office of the Governor General of Canada, reproduced in R.S.C. 1985, App. II, No. 31. 24 The historical reason for this arrangement rests in the U.K. statute, The British North America Act 1867, which saw the powers exercised by the British Empire devolve to the Canadian federal government. 25 The genesis of this reasoning is Lord Atkin’s majority opinion in Canada (a.-g.) v. Ontario (a.-g), [1937] A.C. 326 at 347 (P.C.) [Labour Conventions]. The Labour Conventions case has been criticized, however, and judicially tempered by Canadian courts. See MacDonald v. Vapour Canada Ltd., 2 S.C.R. 134 (1977) and Schneider v. The Queen, [1982] 2 S.C.R. 112. 26 R.S. 1985, c. 16 (2nd Supp.). 27 For information on the current status of the treaty see . 28 As adopted by the United Nations Commission on International Trade Law in June 1985 [Model Law]. 29 Adoption together with the Model Law: North West Territories and Nunavut, International Commercial Arbitration Act, R.S.N.W.T. 1988,



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c. I-6, Sch. A (in accordance with section 29 of the Nunavut Act, S.C. 1993, c. 28, the ordinances of the Northwest Territories and the laws made under them are duplicated to the extent that they can apply in relation to Nunavut, with any modifications that the circumstances require. The duplicates are deemed to be laws of the legislature and the laws made under them. This includes the International Commercial Arbitration Act of the North West Territories; Alberta, International Commercial Arbitration Act, R.S.A. 2000, c. I-5, Sch. 1; Manitoba, International Commercial Arbitration Act, C.C.S.M., c. C151, Sch. A; New Brunswick, International Commercial Arbitration Act, S.N.B. 1986, c. I-12.2, Sch. A; Newfoundland and Labrador, International Commercial Arbitration Act, R.S.N.L. 1990, c. I-15, Part I; Nova Scotia, International Commercial Arbitration Act, R.S.N.S. 1989, c.234, Sch. A; Ontario, International Commercial Arbitration Act, R.S.O. 1990, c. I.9, s. 10 (by interpretation); Prince Edward Island, International Commercial Arbitration Act, R.S.P.E.I. 1988, c. I-5, Sch. A; Quebec, C.C.Q., L.Q. 1991, c. 64 and Code of Civil Procedure, R.S.Q., c. C-25 (Book VII, Title I, embodying the principles of the Model Law and the New York Convention and in particular at Book VII, Title II, Art. 948, where the Legislator has included a note referencing recourse to the New York Convention for interpretive purposes). For adoption by separate statute see Yukon, Foreign Arbitral Awards Act, R.S.Y. 2002, c. 93; British Columbia, Foreign Arbitration Awards Act, R.S.B.C. 1996, c. 154.; Saskatchewan, Enforcement of Foreign Arbitration Awards Act, S.S. 1996, c. E-9.12; Quebec, as above. 30 For example, see L’Heureux-Dubé J.’s majority view in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, 174 D.L.R. (4th) [Baker]. But see subsequent decisions in Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72, 2002 SCC 2; Ahani v. Canada (Minister of Citizenship and Immigration), 58 O.R. (3d) 107; and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] SCC 1, which have not sustained L’Heureux-Dubé J .’s position. 31 For a description of the strategy online see Uniform Law Conference of Canada: . 32 International Commercial Arbitration Act Draft Statute, available online at the Uniform Law Conference of Canada: . 33 van den Berg, supra note 11, at 173–8. Of late there is discussion that Art. II may be merely a minimum requirement and not a uniform one. This issue remains unresolved and not yet properly fleshed out. 34 S.O. 1986, c. 25

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35 The implementing legislation on the New York Convention, Ontario Foreign Arbitral Awards Act, 1986, S.O. 1986, c. 25 was repealed by the International Commercial Arbitration Act, S.O. 1988, c. 30, s. 14, the latter subsequently being replaced by the current Ontario International Commercial Arbitration Act, R.S.O. 1990, c. I.9. 36 R.S.O. 1990, c. I.9, s. 10. 37 C.R. Thomson & A.M.K. Finn, “International Commercial Arbitration: A Canadian Perspective” (2002) 18 Arb. Int’l 205; reproduced as “Canada,” The International Comparative Legal Guide to: International Arbitration 2004, (London: Global Legal Group 2003) and republished in (winter 2004) 40:1 The Canadian Law Newsletter of the American Bar Association. 38 In effect, it excludes Art. II of the New York Convention, which deals with the enforcement of arbitration agreements. 39 Model Law Art. 1 states that it applies only where the arbitration takes place outside the state. 40 Christiane Verdon, “Le Canada et l’unification internationale du droit privé,” (1994) 32 Can. Y.B. Int’l L. 3 at 30. 41 Policy discussion between Ontario Ministry of the Attorney General, Policy Division, and author (7 November 2005), in which the former stated, “the statute [on the New York Convention] was no longer considered necessary, because our law conforms completely with the requirements of the New York Convention without it” [Ontario AG letter]. 42 See F. Bachand, L’intervention du juge canadien avant et durant un arbitrage commercial international (Cowansville: Yvon Blais 2005) at 34ff., where the author exhaustively considers these and other cases. 43 (1992) 7 O.R. (3d) 779 (Ont. Gen. Div.); leave to appeal denied (1995), 22 O.R. (3d) 576 (Ont. C.A.) [Kanto]. 44 The relevant portion is found in New York Convention Art. IV(2): “If the said award or agreement is not made in the official language of the country in which the award is relied upon, the party applying for the recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.” 45 Kanto, supra note 43 at 793. In that case, the applicable statute was the 1988 International Commercial Arbitration Act, which includes the Model Law. What this means is that Art. 35 of the Model Law, which is a duplicate of Art. IV of the New York Convention, applied, making the discussion by the respondent and judge superfluous. If the judge had applied Art. 35, the respondent would have been vindicated and would possibly have won.



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46 18 O.R. (3d) 257, 113 D.L.R. (4th) 449 (C.A.) [Automatic Systems]. 47 The Court was quoting from Kaverit Steel and Crane Ltd. v. Kone Corp. (1992), 85 Alta L.R. (2d) 28787 D.L.R. (4th) 129 at 139 (Alta C.A.). 48 Art. 948 C.C.P. 49 Although the Act to Amend the Civil Code and the Code of Civil Procedure in respect of Arbitration, S.Q. 1986, c. 73 (“Bill 91”) was touted by Quebec’s Justice Minister, Herbert Marx, as implementing the New York Convention. Quebec, Legislative Assembly, Journal des Débats (30 October 1986) at 3672. 50 2005 SCC 46, [2005], 2 S.C.R. 401 [GreCon]. 51 Ibid. at para. 45. 52 Ibid. at para. 40 (emphasis added). 53 Ibid. at para. 41. 54 See Art. 2639ff. C.C.Q. 55 If the Court had considered this, perhaps its reasoning would have been limited to those provinces that did not limit the New York Convention’s scope in this way. Alternatively, perhaps LeBel J .’s wording was an attempt at infusing life into the Baker debate by blurring the lines between federal and provincial jurisdiction. 56 Supra note 52 and accompanying text. 57 Supra note 29. 58 R.S.Y., c. 70, s. 3. 59 S.S. 1996, c. E-9.12, s. 5. 60 P. Binder, International Commercial Arbitration and Conciliation in unci tral Model Law Jurisdictions, 2d ed. (London: Sweet & Maxwell 2005) at 60. 61 A significant difference being that Quebec does not require that arbitration agreements be signed. See Art. 2640 C.C.Q. 62 Article 1(1) of the Model Law subjects it to treaty law. In the case of provinces and territories, this assumes such a treaty is in force. 63 See Powerex Corp. v. Alcan Inc., 2004 BCCA 504 (CanLII), where the British Columbia court referred to the New York Convention for questions of enforcement, and see Pan Liberty Navigation Co. Ltd. v. World Link (H.K) Resources Ltd., 2005 BCCA 206 (CanLII), 253 D.L.R. (4th) 461, 39 B.C.L.R. (4th) 370, where the court referred to Model Law Art. 8 to stay an action in the face of a valid arbitration agreement. 64 Whether this is so for Ontario is less clear, given that there is no formal statute implementing the New York Convention in Ontario. 65 Supra note 41, which reads, “If we do not restrict such agreements [i.e., arbitration agreements] to those made in writing, we do more than the

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Convention requires, which is not a violation of the Convention.” Indeed, it may not be a violation in the strictest sense, but it is somewhat disingenuous to suggest that a statute allowing verbal arbitration agreements is in line with the New York Convention. 66 See van den Berg, supra note 11 at 86. 67 See “Recommendation regarding the Interpretation of Article II, paragraph 2, and Article VII, paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, adopted by the United Nations Commission on International Trade Law on 7 July 2006 at its Thirty-ninth Session,” available online at . The recommendation clarifies that Art. vii(1) includes arbitration agreements. 68 This includes a body of court-made rules on enforcement, familiar in common law jurisdictions. 69 For example see the German decision of 3 December 1992 of the Bundesgerichtshof, reported in 20 Y.B. Comm. Arb. 666 at 675 (1995). 70 This is assuming the jurisdiction applies the New York Convention properly without recourse to the idiosyncrasies of its municipal law. 71 van den Berg, supra note 11 at 14 72 See B. Casey & J. Mills, Arbitration Law of Canada: Practice and Procedure (Huntington: Juris 2005) at 22, note 5, where the authors comment on Ontario’s decision to repeal its implementing legislation on the New York Convention, “It can be presumed that an award from Ontario will be given recognition and enforcement in another Contracting State, although an argument to the contrary may be raised in resisting enforcement.” 73 Such as Art. 93 of the Vienna Convention on the International Sale of Goods, 11 April 1980, 1489 U.N.T.S. 3, Can. T.S. 1992 No. 2, 19 I.L.M. 671 (entered into force 1 Jan. 1988). The convention entered into force in Canada and all its provinces on 1 May 1992 (and subsequently in its territories). It is implemented in Ontario by the International Sale of Goods Act, R.S.O. 1990, c. I.10.

9 Libman at Twenty-five; or, Canada and Qualified Territoriality: Do We Understand Jurisdiction Yet? ROBERT J. CURRIE

introduction When considering the phrase “implementation of international law,” one immediately tends to think of passing legislation to bring Canada into compliance with treaties (“We finally ratified UNCLOS!” or “When are we going to implement the Torture Convention Protocol?”), or to a lesser extent, of what Canada’s customary international law obligations are. International law principles regarding the exercise of jurisdiction by states, while a cornerstone of international law texts, do not leap to mind as matters relating to implementation. However, the exercise of jurisdiction by any state over any subject matter, person, or thing is certainly a matter that can have profound implications for a state’s compliance with international law. This is particularly true of criminal law jurisdiction, which even in the allegedly postWestphalian world is still regarded as a central aspect of sovereignty and is jealously guarded by states. Jurisdiction is a legal subject matter that straddles both of the primary sources of international law: treaty and custom. For example, the past several decades have seen large majorities of states adopt treaties, often referred to as “suppression conventions,” which have as part of their primary mandate the provision of rules to guide states in the exercise of jurisdiction over particular forms of crime.1 Outside the treaty context, customary law provides guidance, some of it strongly normative and some rather fuzzy, about when it is appropriate for states to exercise jurisdiction and when they should or must refrain from doing so. However, the boundaries of jurisdiction

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are among the essential delimitations of state sovereignty–the guideposts for any state’s “duty not to interfere in the domestic affairs of another state.”2 Accordingly, it is imperative for Canada to have domestic mechanisms that allow it to exercise jurisdiction in accordance with its obligations under international law. Most importantly, as the Supreme Court of Canada has recently pointed out, the courts need to have the interpretive tools required to effectively adjudicate issues of jurisdiction, in accordance with “the binding customary principles of territorial sovereign equality and non-intervention … the comity of nations, and … the limits of international law to the extent that they are not incompatible with domestic law.”3 This chapter will focus on the “qualified territorial” principle of jurisdiction in the criminal and regulatory context and examine its domestic implementation in Canada. Territorial jurisdiction is, of course, the bedrock principle under customary international law; each state has complete and plenary jurisdiction over all offences that occur on its territory. “Qualified territoriality” refers to the ability of states to exercise territorial jurisdiction over acts that take place only in part on their territories or take place elsewhere but have significant enough effects on the state’s territory to justify the assertion of jurisdiction. It thus hovers somewhere between territorial and extraterritorial jurisdiction, though as will be seen, it is often confused with the latter. In Canada, the notion of qualified territoriality bedeviled the courts until the Supreme Court of Canada’s 1985 decision in Libman v. The Queen,4 wherein Justice La Forest updated and modernized the exercise of criminal jurisdiction by formulating the “real and substantial connection” test. Some twentyfive years after Libman, however, it is still not clear whether the courts of the land actually understand the nature of the test and when to apply it. Since it is the courts, in their exercise of “judicial jurisdiction,” that are the vehicles by which this customary international law principle is implemented, it is perhaps an appropriate time to take stock. This paper will briefly examine the Libman case, analyze its import, and survey how it has been applied by Canadian courts. Some problem areas will be identified, as will suggestions for reform and possible codification.

essential concepts and distinctions Customary Law Principles of Jurisdiction Some careful legal and analytical distinctions are required at the outset of any discussion of jurisdiction in its international law meaning.5



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The reader will be familiar with the five major customary international law principles regarding the exercise of criminal jurisdiction: territorial,6 nationality,7 protective,8 passive personality,9 and universal.10 The most basic point is that states will be entitled to exercise jurisdiction only over some persons, things and/or subject matter, namely, those in which they have some interest and to which they have some degree of connection. The jurisdictional principles constitute criteria, some more or less controversial than others, that allow states to demonstrate such a connection. This in turn allows states to broker or manage conflicts between themselves when there is a situation of “concurrent jurisdiction,” i.e., when more than one state asserts jurisdiction over an offence.11 Territorial versus Extraterritorial Jurisdiction Territorial jurisdiction is the default principle for the assertion of jurisdiction, as it must be in a system of law that is still mainly based on the sovereign equality of states. In terms of criminal jurisdiction, states have plenary authority over every act that is committed within their respective territories (including the territorial sea, internal waters, airspace, and certain maritime zones), regardless of the nationality or lack thereof of the perpetrator. The only hierarchy identifiable as between the international law principles of jurisdiction is that territoriality is generally considered to be the strongest kind of claim to jurisdictional connection that can be made out. This is truly based on practical reasons; the state in which an offence is committed will very often be the location of the event, the location of the victim, the location of any damage that resulted from the offence, the location of the evidence, and most importantly, the location of the perpetrator. Crime undoubtedly predates the Westphalian idea of sovereignty over territory, and thus as soon as there were states, there was crime that spilled over from one state to another and that occurred, as Justice La Forest memorably put it, “both here and there.”12 Legislatures and courts had to come up with mechanisms that allowed the effective prosecution of such crimes. International practice has developed in this regard to the point that any standard international law textbook describes two generally accepted sub-principles of territorial jurisdiction that have an amplifying effect on the idea of territoriality. Together, these are often referred to as “qualified territoriality.”13 The first is the “subjective” or “initiatory” principle, whereby “a state has jurisdiction over crimes which consist partly of

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an act committed within its territory and partly of consequences which take place in another state.”14 The second is the “objective” or “terminatory” principle, whereby “a state has jurisdiction over a crime which is completed within its territory.”15 Some state practice is observable that takes these two principles beyond the bounds of such definitions. For example, in both Canadian16 and British17 state practice, territorial jurisdiction is exercised over extraterritorial conspiracies that have as an object the commission of a crime in a state but involve no overt act within the state. Since territoriality is the starting point, it then follows that the other principles of jurisdiction outlined above are all extraterritorial in nature. In an exercise of extraterritorial jurisdiction, a state asserts jurisdiction over an offence that occurred entirely outside its borders. While the links between the state and an extraterritorial offence might often not be as strong as those of the territorial state, exercising extraterritorial jurisdiction is by no means unlawful but is simply subject to limitations. The traditional starting point for the consideration of such limitations has been the Permanent Court of International Justice’s proposition in the Lotus case that, international law being essentially permissive, states are free to exercise whatever jurisdiction they wish in the absence of a prohibitive rule that prevents it.18 Because the main “prohibitive rule” is that a state cannot exercise jurisdiction where it would interfere with the sovereign rights of other states,19 exercises of extraterritorial jurisdiction have tended to be based on certain kinds of links between the asserting state and either the offender, the criminal act, or the effects that have occurred. These links are embodied in the customary international-law principles of jurisdiction, which, as noted above, are used by states as legal justifications for their assertions of jurisdiction. As will be shown, the distinction between territorial/qualified territorial jurisdiction and extraterritorial jurisdiction is important but is not always well understood. Prescriptive and Judicial Jurisdiction Professor Akehurst’s classic essay on jurisdiction under international law provided an authoritative framework for understanding the assertion of jurisdiction by states, distinguishing between “the power of one State to perform acts in the territory of another State (executive jurisdiction), the power of a State’s courts to try cases involving a



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foreign element (judicial jurisdiction) and the power of a State to apply its laws to cases involving a foreign element (legislative jurisdiction).”20 This chapter is concerned with the latter two categories, judicial and legislative (or more popularly, “prescriptive”) jurisdiction. Executive or “enforcement” jurisdiction in the criminal context essentially is concerned with the means of obtaining custody over the offender, which typically is accomplished by arrest or extradition. Qualified territorial jurisdiction in Canada is a matter of both prescriptive and judicial jurisdiction because of our unique combination of a British approach to jurisdiction and our non-British codified criminal law. In keeping with its English law roots, Canada’s stance on criminal law jurisdiction historically has been primarily territorial. Section 6(2) of the Criminal Code codifies this approach, providing, “Subject to this Act or any other Act of Parliament, no person shall be convicted … of an offence committed outside Canada.” As Justice Cory noted in R. v. Finta, this imports a presumption that “Canadian courts, as a rule, may only prosecute those crimes which have been committed within Canadian territory.”21 The subsection provides for the possibility of prescribed extraterritorial jurisdiction, and Parliament is constitutionally competent to do so.22 Various grounds of extraterritorial jurisdiction are found in the Criminal Code, mostly within the confines of section 7, which implements Canada’s obligations under international treaties. However, absent clear and express language to the effect that a provision is intended to have extraterritorial effect, it is presumed to be territorial.23 This is true by operation of section 6(2) of the Code, but is also a principle of statutory interpretation. It is related to, but distinct from, the “well-established principle of statutory interpretation that legislation will be presumed to conform to international law”24 – distinct, because as we have seen, the exercise of extraterritorial jurisdiction will not always violate international law. The same principles of interpretation apply to “quasi-criminal” or regulatory offences.25 The “process,” if that is an accurate term, for exercising criminal jurisdiction in Canada thus works as follows: Parliament, in an exercise of prescriptive jurisdiction, creates a criminal offence within either the Code or a federal regulatory statute.26 The Crown, in its decision to charge an individual with an offence, is asserting that the conduct alleged is within Canadian jurisdiction; indeed, this is part of what the Crown must prove in order to make its case. The court

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must then exercise judicial jurisdiction and adjudicate the case, part of which involves making a finding as to whether Parliament has conferred upon it the jurisdiction to hear the matter. In the vast majority of cases the question is a purely formal one and does not arise, since the offence has taken place entirely within Canada. If the case has transnational aspects,27 a different set of questions arises. If the accused has been charged under a provision for which there is express or implied extraterritorial jurisdiction, the court must simply invoke the jurisdiction-conferring section and rule itself competent to hear the case. However, if the charge is under a “normal” provision that comes within section 6(2) of the Code (or, in the case of a regulatory offence, the usual presumption of territoriality), then the defence may argue that the offence actually took place outside Canada and that the court therefore has no jurisdiction. The court must then essentially apply section 6(2) and make a determination as to whether the conduct alleged took place in Canada – deciding (though it is never termed so in domestic parlance) whether Canada can properly exert jurisdiction on the basis of qualified territoriality. As noted, this is a very detailed and formal way of describing what courts usually do in an implicit manner. Prosecutions of purely extraterritorial crime are actually quite rare, and those cases that do arise have not produced much jurisprudence on the question of jurisdiction.28 It is usually obvious that the crime took place wholly outside Canada.29 It is in the cases with transnational aspects that the courts must wrestle with the most difficult questions. They must decide whether they are, to use Akehurst’s terminology, empowered to try cases involving a foreign element. It was to this exercise that the Supreme Court’s decision in Libman was directed.

the

libman

decision

The Libman case came before the Supreme Court of Canada in February 1985, and the decision was released in October of the same year. In the course of his reasons,30 La Forest J. reviewed the previous decades of jurisprudence in which Canada’s courts, in tandem with their English counterparts, struggled to articulate a usable test for determining whether to exert jurisdiction in cases where only part of the offence or its related activities had taken place in the Canada or where the effects of an otherwise foreign offence were felt here. Various versions of the objective and subjective sub-principles



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had come and gone, with the courts failing to agree even on a relevant list of factors for making the determination. In Libman itself, the accused had been committed for trial for fraud and conspiracy to commit fraud and applied to have his committal quashed on the basis that the alleged crimes occurred outside Canada. The facts were that Libman had employed a number of people from a Toronto location to sell what were apparently worthless shares in two fictitious mining companies. The sales were made by telephone to U.S. residents, who also received promotional material from Panama and Costa Rica. The purchasers sent their money to offices operated by Libman’s associates in Panama and Costa Rica, to which countries Libman would travel to obtain his share of the proceeds; he would then return to Canada with the money and pay his salespersons.31 Though not framed this way by the Supreme Court, Libman’s argument was essentially that subsection 5(2) (now 6(2)) of the Code should apply and defeat the charges. Importantly, Libman had been charged with conspiracy under section 423(1)(d)32 of the Code, which covered conspiracies to commit an offence in Canada, and not under section 423(3),33 which explicitly covered conspiracies to commit an offence outside Canada. The fraud provisions at the time contained no extraterritorial language. The factual question to be answered was whether or not the alleged acts had occurred in Canada, for if they had not, then Canadian courts had no jurisdiction. The legal question was what factors the courts should use to determine whether a transnational crime could be said to have occurred in Canada. Writing for the Court, La Forest J. began by noting the primarily territorial nature of criminal jurisdiction but cited the Lotus case for the proposition that “states increasingly exercise jurisdiction over criminal behaviour in other states that has harmful consequences within their own territory or jurisdiction.”34 His review of the “doctrinal confusion” 35 in past English and Canadian cases emphasized that the courts of neither country had felt bound by strict territoriality. Both English and Canadian legal systems had demonstrably taken jurisdiction over criminal conduct that had taken place in whole or in part in foreign countries, where it had unlawful or harmful consequences domestically, as well as over offences where the victim and impact were abroad.36 Subsection 5(2) of the Code, La Forest J. noted, “does not say that criminal law is confined to Canadian territory; it says rather that no person ‘shall be convicted in Canada for an offence committed outside of Canada.’”37

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Drawing on various aspects of the older cases, as well as on academic writings, La Forest J. then formulated a test to determine when Canada could take criminal jurisdiction over transnational crimes. The most frequently cited passage from the case is as follows: “I might summarize my approach to the limits of territoriality in this way. As I see it, all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. As it is put by modern academics, it is sufficient that there be a ‘real and substantial link’ between an offence and this country, a test well known in public and private international law.”38 However, it appears from the opinion that La Forest J. was proposing a two-part test: first, that there be a “real and substantial link” between Canada and the offence; and second, if a real and substantial link is established, “[o]ne must then consider whether there is anything in those facts that offends international comity,”39 specifically whether there is “anything in the requirements of international comity that would dictate that this country refrain from exercising its jurisdiction.”40 La Forest J. emphasized that the comity inquiry will shape the connection inquiry,41 but the latter must clearly precede the former, since a state without a real and substantial connection to a matter will not be able to exert territorial jurisdiction and international comity need not be considered. Analyzing the facts before the Court in Libman, La Forest J. concluded that the links between Canada and the offence were “ample.”42 He agreed with a lower court finding that the preparatory activities in which Libman had engaged in Toronto to perpetrate the frauds would alone support territorial jurisdiction, though he also emphasized the fact that the profits generated were brought to Canada. He further held that the fact that the harm to victims occurred outside Canada made no difference to the analysis.43 Nothing in relation to international comity would preclude Canada from prosecuting the crime, and in fact, La Forest J. suggested that international comity compelled Canada to do so.44 The committal for both fraud and conspiracy was upheld.

t h e p ro b l e m : a p p ly i n g

libman

In my view, the Libman decision has not been recognized for the legal tour de force it truly is. In one swoop, La Forest J. cut the



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Gordian knot that had surrounded the issue of qualified territorial jurisdiction in Canadian criminal law, and in so doing provided Canada with a flexible and usable test that would enable it to participate much more effectively in combating the scourge of transnational crime. In some ways the decision was ahead of its time, with La Forest J. taking a McLuhanesque, “global village” approach that is even more recognizable to twenty-first-century eyes. Some twenty-five years later such rhetoric is now our reality, and it is clear that cases with both territorial and extraterritorial aspects are becoming increasingly common. Large numbers of states are engaged in formulating their own approaches to qualified territoriality, and Libman has been influential. It is frequently cited in leading international texts and cases.45 Yet in Canada there is very little in the way of commentary on it, academic or otherwise.46 Judicial decisions often just mention the Libman test in passing, analogize other jurisdictional questions to it, apply it incorrectly, or fail to apply it at all. Odd decisions by leading appellate courts along the way, including the Supreme Court of Canada, have not helped matters. It seems that, at least with regard to qualified territoriality, we still do not understand jurisdiction. The Libman test can be restated as follows. In a case of alleged conduct that has extraterritorial aspects but is contrary to an offence provision that does not have any extraterritorial application, a Canadian court must determine whether there is territorial jurisdiction over the offence. Such conduct will be found to have been committed in Canada if 1 it has a “real and substantial connection”47 with Canadian territory; and 2 international comity does not require Canada to refrain from assuming jurisdiction. The “real and substantial connection” test has seen some fleshing out in subsequent case law. A thorough review of that case law is beyond the scope of this chapter,48 but it is clear that courts applying Libman have often taken the generous approach that La Forest J. intended. The focus is to be not on whether particular elements of the offence have taken place in Canada (which historically had been a popular approach) but rather on “all relevant facts that take place in Canada” – for example, the fact that the proceeds of the fraud

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in Libman were brought to Canada.49 The “real and substantial connection” portion of the test has been applied in such a way as to require an assessment of all the facts related to the alleged offence, including, but not limited to where some or all of the elements took place, where the offence was initiated, where the offence was prepared or formulated, where harm or injury resulting from the offence occurred, including the location of the victims, or where proceeds of the offence were brought. The inquiry is also shaped by the nature of the offence that is alleged.50 The “international comity” portion of the test, by contrast, remains significantly underdeveloped. It, too, was a major development in our understanding of when Canada could and should assert jurisdiction over transnational offences. “International comity,”51 in La Forest J.’s view, included a much more generous and expansive view of territorial criminal jurisdiction than was consistent with Anglo-Canadian tradition, since states no longer guarded so closely their respective administration of criminal law but in fact were actively co-operating to suppress criminal activity of various sorts. Jurisdictional elasticity was the key to combating modern transnational crime. “In a shrinking world,” La Forest J. memorably opined, “we are all our brothers’ keepers.”52 Given this level of active interest in cooperation among states, Canada should take steps to ensure that it does not allow itself to be used by sophisticated transnational criminals as a venue for throwing up jurisdictional hurdles to capture and prosecution. A more aggressive approach to territorial criminal jurisdiction would thus serve both domestic public law purposes and be consistent with emerging trends in international law. However, one sees very little actual application of this part of the test in the case law. It has been interpreted as requiring the court to ask itself, as part of the jurisdictional inquiry, whether any other state’s interests in prosecuting a particular offender are at play and if so, whether Canada should give way to that state and refrain from asserting territorial jurisdiction.53 In the cases to date, however, there has been no evidence of any competing claims to jurisdiction by other states, which has made it easy for courts to rule that international comity will not be infringed if Canada prosecutes. Most often courts simply make no finding as to international comity or make general remarks to the effect that prosecution will not affect it.54 This is doubtless because the Crown will make a number of decisions in the background prior to deciding to bring charges. For



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example, the Crown may satisfy itself that there is no competing claim prior to embarking on prosecution, even to the point of negotiating with other potential interested states to ensure that this is so. If there is a competing claim, a decision might be made to cede jurisdiction to another state with a greater interest or where practicality dictates, as in cases where the accused is actually within the competing state. It is possible, however, that in the future a case will arise where the Canadian Crown wishes to prosecute an individual for the same crime for which he/she is sought by another state. At that point, the courts will have to embark on a more nuanced inquiry as to what “international comity” requires in such situations than has been seen to date. Libman has sometimes been abused as well as used, however, because occasionally courts do not seem to realize that in applying the test they are deciding whether or not to take territorial jurisdiction. There is often confusion between whether there is territorial jurisdiction over cases with extraterritorial elements or whether there is truly extraterritorial jurisdiction, i.e., jurisdiction over matters occurring entirely outside Canadian territory. For the purpose of determining whether Canadian courts have jurisdiction over a crime, as we have seen, Libman applies to the former but not to the latter. In the socan case,55 the Supreme Court of Canada was dealing with whether music transmitted through an internet server located in the United States but received by Internet servers in Canada was a telecommunication to the public for the purpose of applying the offence provisions of the Copyright Act. Binnie J.������������������������ , writing for the majority, correctly observed that the Libman test applied and considered the issue of “real and substantial connection” to Internet transmissions. However, both the majority and the dissent framed the jurisdictional issue in terms of whether the Copyright Act had extraterritorial reach, Binnie J. even invoking the principle of statutory interpretation that presumes against extraterritorial effect at the beginning of his analysis.56 This suggests that Canada has taken jurisdiction over matters outside its borders, when in fact the case boiled down to whether the telecommunication had sufficient links to Canada such that it could be said to have occurred in Canada.57 When Parliament wishes the courts to take extraterritorial jurisdiction over persons or conduct completely outside Canadian borders, it must instruct the courts to this effect by making it explicit or necessarily implied in the legislation. Otherwise, territorial jurisdiction – as expanded by the Libman criteria – is the default.

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Similar confusion is apparent in R. v. Greco,58 which is often cited as the leading case applying Libman. In that case, the accused had assaulted his girlfriend while on vacation in Cuba. He was not charged with the assault, which had taken place entirely outside Canada, but was charged with breaching his probation order. Greco argued that section 6(2) of the Criminal Code divested Canadian courts of jurisdiction, since the conduct that formed the breach of the order did not occur in Canada. Moldaver J.A. reasoned that, since “there is nothing in the principle of territoriality that prevents Canada from enacting laws enforceable in Canada that govern the conduct of persons outside of its territory,”59 then a probation order could be interpreted as attaching to an individual even when he/she went outside Canada – despite there being no specific wording to this effect in the Criminal Code.60 He then conducted a brief Libman analysis, wherein he found sufficient links between Canada and the breach of the probation order to ground jurisdiction over the offence. Moldaver J.A. felt that he had to determine whether the offence provision applied to conduct that took place outside Canada prior to engaging the Libman analysis and determining whether the breach took place in Canada. With respect, this draws the question of jurisdiction too finely. Where a Criminal Code provision, such as the probation order in Greco, does not expressly bind extraterritorial conduct, it does not apply to an incident that took place wholly outside Canada. Canadians do not take their criminal law with them outside of Canada unless Parliament says so expressly or by necessary implication. The only inquiry that is necessary is whether the conduct can be said factually to have a “real and substantial connection” to Canada and thus be construed to have occurred here. Indeed, Greco was likely correctly decided on its facts. The conduct forming the breach of the probation order (i.e., the assault) was not within the jurisdiction of the court, since it took place entirely in Cuba. However, the effects of the breach of the order certainly spilled over into Canada, and since Canada was the only state even remotely interested in enforcing its own probation orders, no international comity considerations arose. The case was therefore resolvable as being properly within Canada’s territorial jurisdiction, without any need for inquiry into the provision’s extraterritorial effect. Justice Moldaver’s determination that the probation order did reach the conduct of the perpetrator abroad amounted to finding that the wording of the section necessarily implied extraterritorial effect.



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However, if that was the case (and, with respect, the ruling is fairly questionable), then no inquiry under Libman was necessary.61 The analysis of extraterritorial jurisdiction in Canadian criminal law appears to have been minimally clarified as a result of the Supreme Court of Canada’s recent decision in Hape, wherein the majority provided a strong interpretive framework for the interaction of international and domestic law, and drew a clear distinction between territorial and extraterritorial jurisdiction.62 However, that case dealt with enforcement jurisdiction and the extraterritorial application of the Charter,63 rather than with qualified territoriality. Libman was mentioned briefly as authority for the objective territorial principle,64 and again, in a manner that seemed to indicate ongoing confusion about what the Libman test is used for.65 Neither invocation did Libman justice.

from misunderstanding to … subversion? To be fair, it is not only the courts that have not been completely successful in applying Libman. It is arguable that there is some legislative and executive confusion about it as well. Canada is a party to the Human Trafficking Protocol66 to the 2000 UN Convention on Transnational Organized Crime.67 The Protocol obliges Canada to have a human trafficking offence as defined therein, and under the TOC Convention the offence must cover this crime when it is transnational in scope. The term “transnational” is assigned to a crime when (a) It is committed in more than one State; (b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; (c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or (d) It is committed in one State but has substantial effects in another State.68 The definition is clearly meant to oblige a state to exercise jurisdiction in accordance with qualified territoriality, and it has been described as being very Libman-like in approach.69 Canada in fact has two human trafficking offences: section 118 of the Immigration and Refugee Protection Act70 provides, “No person

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shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion,”71 while section 119 of the same statute criminalizes disembarking at sea for the purpose of inducing, aiding, or abetting persons to come into Canada illegally. These provisions themselves contain no language regarding extraterritoriality, but are subject to section 135 of irpa, which provides for extraterritorial jurisdiction over all offences in the act. However, in 2005 Parliament also enacted sections 279.01–.04 of the Criminal Code, which create offences of human trafficking that are linked to those in the protocol and are clearly designed to implement its obligations. There is no extraterritorial jurisdiction for these offences, but of course the Libman approach to jurisdiction is available to the Crown in prosecutions, an option that implements the obligation to exercise jurisdiction over the offences when they are transnational. What is not clear is why there are two separate offences. To be sure, the irpa offence is limited to trafficking people into Canada, while the Code provisions also catch domestic trafficking. However, under Libman the Code provisions are more than broad enough to catch all of the conduct criminalized under irpa, even to the extent that the organization of the trafficking occurred in another state, since the arrival of the persons in Canada would constitute the required “real and substantial connection.” Consider that even the broad extraterritorial jurisdiction given the irpa offence has a reasonably modest effect; an individual who, in another country, organizes the trafficking of persons into Canada may be prosecuted in Canada for so doing. This assertion of jurisdiction at an international law level is consistent with the concept of “transnational crime” as defined in the TOC Convention, and as an exercise of qualified territorial jurisdiction it is certainly commensurate with Libman. If Canada’s arrangements with the foreign state where the offender is located permit extradition for extraterritorial offences, and/or if that state is a party to the TOC Convention, then extradition is a viable option. However, all of this could be accomplished under the Criminal Code provisions. Perhaps there is a “belt and braces” aspect to the overlap, but on my reading it does not seem that any jurisdictional gap that exists between the irpa offence (based on extraterritoriality) and the Code offence (based on Libman) actually contains anything.



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Canada is also a party to the 1998 OECD-sponsored Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,72 which is implemented by the Corruption of Foreign Public Officials Act (cfpoa ).73 Article 4 of the convention requires states to exert jurisdiction over a bribery offence where it is “committed in whole or in part on its territory,”74 and the OECD’s Commentary to that article states that territoriality “should be interpreted broadly so that an extensive physical connection to the bribery act is not required.”75 Jurisdiction under the cfpoa is territorial, since no explicit grant of extraterritorial jurisdiction is made in the statute. In its ongoing review and consultations with the OECD regarding the implementation of the convention,76 Canada has maintained that its approach to qualified territoriality under Libman is sufficiently broad.77 This argument has been challenged by the OECD’s reviewers, who have found that the Libman approach requires “substantial links” between the offence and Canada and is “in fact much narrower than [that of] most parties to the Convention.”78 In reading the reviewers’ commentary it seems clear that this view is premised on a misreading of Libman and other cases that were provided to the reviewers.79 One would like to assume that the relevant law was clearly explained to the reviewers by Canadian officials, but the following comment casts doubt on this: The uncertainty about the effectiveness of territorial jurisdiction in respect of the CFPOA offence was confirmed by statements of the representatives of the Ontario Provincial Police and the Ontario Ministry of the Attorney General that jurisdiction could not be exercised where a person made a telephone call from Canada to set up a meeting with a foreign public official, and then flew from a Canadian airport to a foreign jurisdiction to meet with the foreign public official, in order to make an offer or promise or gift. The Canadian authorities point out that the interpretation of the law on criminal jurisdiction provided by the authorities in Ontario has not, however, been tested before the courts.80 While the hypothetical conduct put forth by the reviewers has not, to my knowledge, been tested before the courts, recall that in Libman what was central to determining a “real and substantial connection” were “all relevant facts that take place in Canada,” which subsequent cases have interpreted to include the planning, formulation, or

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initiation of the offence. Given that the “real and substantial connection” inquiry is also meant to be shaped by the nature of the offence alleged, the Ontario authorities’ skepticism regarding jurisdiction in the proposed hypothetical circumstances seems unwarranted. What appears to emerge is a division of opinion between Canadian prosecutorial authorities on the state of the law, based in part on a misunderstanding of Libman. One is moved to ask: how can we expect foreigners to understand Canada’s approach to qualified territoriality when we do not understand it ourselves? Of even greater concern is the potential for abusing or, at best, deliberately ignoring qualified territoriality in some transnational crime cases. The Supreme Court of Canada’s recent decision in Larche,81 while mainly about sentencing, has some illustrative and disturbing aspects. The facts were that the accused had been involved in an organized crime operation, smuggling cannabis from the Eastern Townships of Quebec into the United States and then bringing the proceeds back to Quebec. In June 2002 he was charged (with conspiracy to produce, possess, and traffic in cannabis and to possess the proceeds, as well as the related organized crime offence) by Canadian authorities, and less than a month thereafter by U.S. authorities (with conspiracy to distribute marijuana in Vermont and elsewhere). The Canadian charges were limited strictly to Larche’s activities in Quebec; as Fish J. characterized them, “[b]oth counts were drafted as if the underlying criminal enterprise, which was plainly transnational in scope, ended right at the U.S.-Canada border.”82 This had been done expressly to facilitate an expected extradition request pursuant to the U.S. indictment.83 Larche pleaded guilty to the Canadian charges. The sentencing judge invoked section 725(1)(c) of the Criminal Code, which allowed him to take into account “facts forming part of the circumstances of the offence” in determining the sentence, and took into account Larche’s uncharged activities in the U.S. portion of the operation, over Crown objections. Sansfaçon J. agreed with a submission by defence counsel that these activities were facts that “could constitute the basis for a separate charge” under s. 725(1)(c). The Crown appealed this finding, ultimately to the Supreme Court of Canada, presumably because it felt that sentencing Larche in part for his U.S. activities might raise a double-jeopardy bar to extradition. The questions were whether uncharged acts that were related to an offence, but occurred in another state, were properly “circumstances of the offence”



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for the purpose of sentencing and whether a Canadian sentencing court had the (territorial) jurisdiction to take them into account. Fish J., for a unanimous Supreme Court, agreed with most of the sentencing judge’s findings,84 noting that the bulk of the U.S.-based facts taken into account “might reasonably be characterized as the missing half of the single criminal enterprise that was the true substratum of the offence.”85 He briefly conducted the first part of the Libman analysis and found that most of the implicated U.S. activities had a “real and substantial connection” to Canada, given that they were part of an operation whose elements were “seamlessly connected,”86 and in fact were analogous to the transnational fraud operation in Libman itself.87 Turning to international comity88 he noted that the apparently imminent U.S. extradition request had still not been received at the time of hearing before the Supreme Court, and thus that to refuse to apply s.725(1)(c) “would be to have deprived Canadian law of its intended effect on a basis that might never materialize.”89 Fish J. then made some pointed comments on the most troubling aspect of the case: the fact that the Crown had structured the charges to take into account only what the accused had done in Canada, in order to ensure he could be extradited to the United States to face trial (and a much harsher sentencing regime)90 for conduct that was part of the same criminal operation. His remarks are worth setting out in their entirety: [I]t is not obvious to me how the principle of international comity would apply under s. 725(1)(c), even where a request for extradition has been made. If there is competing jurisdiction between Canada and the United States, as it would appear there was in this case, the applicable law is Article 17 bis of our bilateral extradition treaty (Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3 (am. Can. T.S. 1991 No. 3, Art. VII)). The principle embodied there is a choice of jurisdiction rather than a sharing of jurisdiction. This choice is made at the executive level, and the appropriate time for comity to be given effect is before either jurisdiction presses charges.  The comity principle will at that stage favour an agreement as to where the offender ought to be prosecuted for a single transnational offence.

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The choice of forum envisaged by the treaty has already been made once either jurisdiction has in fact charged and convicted the accused. Punishing the offender for all aspects of the transaction over which the sentencing court has jurisdiction well serves the treaty end that one signatory – not both – should try and punish an accused. The United States apparently has a provision similar to s. 725(1)(c), and Canadian courts have not objected to its application in a way that prevents us from punishing the prisoner afresh in Canada: see United States of America v. Fordham (2005), 196 C.C.C. (3d) 39, 2005 BCCA 197.91 By emphasizing that the goal of international criminal co-operation is to make sure that “one [state] – not both – should try and punish an accused,” Fish J. came close to drawing the obvious conclusion: that this kind of charging attempt puts the accused in a doublejeopardy situation via the back door and incidentally subverts the purpose of the extradition treaty. To be sure, it is entirely proper to prosecute an accused for his criminal activities in Canada and then to extradite him to the United States to face trial for related but separate activities that took place there.92 However, as Fish J. pointed out, the whole point is choice of jurisdiction, not division of jurisdiction. A single transnational offence should be tried in a single jurisdiction, and there are good and practical reasons for doing so. The use of qualified territoriality jurisdiction by states has developed because it is an effective way to facilitate the prosecution of offenders whose activities spill over borders. What is important is that the accused not be able to escape justice because of high jurisdictional walls and that states be able to protect their own interests by ensuring that perpetrators are tried and punished somewhere. By the same token, international law regarding jurisdiction is meant to, as Roslyn Higgins puts it, “allocate competence”93 to try offenders and not to punish an offender multiple times for what we all agree is the same conduct. It is clear that Larche could properly have been prosecuted in Canada for virtually the entire range of his conduct related to the drug smuggling operation. However, since the American authorities wished to prosecute him as well, Canada chose to prosecute him for part of it, rather than cede jurisdiction, and left him to the vagaries of an autrefois convict argument before the American courts. If Larche had been tried and acquitted, he still would likely have been extradited to the United States, since the



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Canadian approach to double jeopardy is heavily weighted towards ministerial discretion and facilitating extradition.94 In that case, he would not have had the benefit of the Supreme Court of Canada’s finding that his activities were a “seamlessly connected” operation. Surely it is not just for states to set forth jurisdictional rules that allow them to prosecute in one state a single set of transactions that straddles two or more states – on the theory that the offence can be said to have taken place in one of the states – and then subvert this principle when it suits the interests of a treaty partner to “divide up” the offence for the purpose of imposing as much punishment as possible on the offender. Surely prosecutors do not have the discretion to wave the magic wand of extradition and turn a single transnational offence into two separate domestic ones. Surely this is double jeopardy no matter how it is sliced.

conclusion Canada has in Libman a robust and flexible approach to qualified territoriality. I have argued here that it is not being utilized to its full potential, in large part because of lack of familiarity with, or misunderstanding of, qualified territorial jurisdiction and its application via Libman. This state of affairs is not desirable. We need Libman, and we need it to work well, since transnational crime continues to grow beyond the international community’s current legal capacity to deal with it. The first tentative efforts of the international community to deal with cyber-crime are case in point, indicating that jurisdiction is going to be the major issue – particularly as regards cases that touch on several jurisdictions.95 Moreover, Canada is not only being confronted with transnational cases with increasing frequency, it is agreeing to international obligations (like those under the TOC Convention and its Protocols, or the OECD Convention) that require a fairly vigorous approach to qualified territoriality. This in turn has a number of inter-related implications: 1 DFAIT officials must be able to cogently present Libman as a legal doctrine that is sufficient to meet Canada’s international obligations regarding jurisdiction. 2 Both the federal and the provincial prosecutorial Crowns must be able to effectively incorporate Libman into their charging strategies.

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3 The latter should be done in a manner that will facilitate Canada’s adherence to its international cooperation obligations, but in such a way that avoids abusive situations, as arose in Larche. 4 Judges must become familiar with qualified territorial jurisdiction, Libman, and the means by which they must make jurisdictional decisions in transnational cases. Accordingly, the following preliminary recommendations are offered: 1 The Federal Department of Justice should embark on an in-depth survey on the use of qualified territorial jurisdiction by states around the world, with an eye toward being able to furnish an opinion on the parameters of the customary law norm. This would feed into all the subsequent proposals offered here. 2 Parliament should consider amending s. 6 of the Criminal Code to incorporate some legislative stance on the exercise of qualified territorial jurisdiction. The structure of such an amendment would have to be carefully thought through so as not to legislate aspects that are best handled by the common law. The proposed section could either attempt to incorporate a non-controversial version of qualified territoriality under international law (as determined by the study suggested in recommendation 1) or perhaps to link the assumption of jurisdiction to customary international law on point, as is done with the definitions of international crimes set out in the Crimes against Humanity and War Crimes Act.96 This could also help to flesh out the “international comity” portion of the Libman test – since it is possible that judges and counsel are shrinking from doing much with “international comity” because no one has any idea what the law is. 3 Parliament should consider legislative means by which to avoid a Larche-type charging situation. The Crown might be prohibited from splitting up the charges in this way, or at least a presumption against it might be built into the Criminal Code. The accused should be able to seek a ruling that foreign conduct is covered off under a Canadian indictment if an extradition request is pending or expected, so as to guard against extradition and having to make a double jeopardy argument in the extradition process. 4 A seminar about jurisdiction in its international and transnational senses and application of the Libman criteria could be incorporated into judicial education conferences.



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notes Portions of this chapter are based on the author’s book International and Transnational Criminal Law (Toronto: Irwin Law 2010). 1 Recent examples include the International Convention for the Suppression of Terrorist Bombings, (1998) 37 I.L.M. 249, (2002) Can. T.S. No. 8; the International Convention for the Suppression of Terrorist Financing, (2002) Can. T.S. No. 9; and the United Nations Convention on Transnational Organized Crime, reprinted in (2001) 40 I.L.M. 335 [toc Convention]. 2 H. Kindred & P. Saunders, eds., International Law: Chiefly as Interpreted and Applied in Canada, 7th ed. (Toronto: Emond Montgomery 2006) at 547 [Kindred & Saunders]. 3 R. v. Hape, 2007 SCC 26, at para. 68 [Hape]. On Hape generally see Robert J. Currie, “Annotation: R. v. Hape” (2007), 47 C.R. (6th) 96. See also John Currie, “Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law” (2007) 45 CYBIL 55. 4 [1985] 2 S.C.R. 178 [Libman]. 5 For fuller discussion see S. Coughlan et al., “Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization” (2007) C.J.L.T. 6 29 at 30–2 [Coughlan et al.]; Kindred & Saunders, supra note 2, at 555–66. 6 Under which states exercise jurisdiction over crimes and offenders on their territories. 7 Under which states exercise jurisdiction over crimes committed by their nationals outside the state’s territory. 8 Under which states exercise jurisdiction over crimes that threaten their essential national interests, regardless of where and by whom they are committed. 9 Under which states exercise jurisdiction over crimes committed against their nationals, regardless of where and by whom they are committed. 10�������������������������������������������������������������������������� Under which states exercise jurisdiction over the most heinous crimes under international law (e.g., crimes against humanity, genocide, torture) or crimes where there is international agreement that unlimited jurisdiction is appropriate (e.g., piracy), regardless of where committed, by whomever they were committed, and in the absence of any other link to the offence. 11���������������������������������������������������������������������������� Ian Brownlie and others have suggested that the appropriate test for jurisdiction over an offence as a matter of international law is whether a particular state can demonstrate a “substantial and bona fide connection to the subject matter of the case”: I. Brownlie, Principles of Public

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International Law, 6th ed. (Oxford: Oxford University Press 2003) at 313, n76. It is worth noting, as well, that some of the suppression conventions have built-in mechanisms to resolve jurisdictional disputes between states. 12 Libman, supra note 4, at para. 63. 13 I attribute the phrase to I. Bantekas & S. Nash, International Criminal Law, 3d ed. (New York: Routledge-Cavendish 2007) at 73 [Bantekas & Nash]. 14 S. Williams & J.-G. Castel, Canadian Criminal Law: International and Transnational Aspects (Toronto: Butterworths 1981) at 29. 15 Ibid. 16 See Criminal Code, R.S. 1985, c. C-46, s. 465(4) [Code]. 17 C. Warbrick & G. R. Sullivan, “Territorial Jurisdiction: Criminal Justice Act 1993” (1994) 43:2 I.C.L.Q. 460. See also R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet, [1999] 2 All E.R. 97 (H.L.) at para. 125 per Lord Hope of Craighead. 18 The Steamship Lotus (France v. Turkey) (1927), P.C.I.J. (Ser. A) No. 10. 19 Hape, supra note 3. 20 M. Akehurst, “Jurisdiction in International Law” (1972–73) 46 Brit. Y.B. Int’l L. 145 at 145. 21 R. v. Finta, [1994] 1 S.C.R. 701 at 805–6. 22 See R.J. Currie & S. Coughlan, “Extraterritorial Criminal Jurisdiction: Bigger Picture or Smaller Frame?” (2007) 11 Can. Crim. L.R. 141 at 148–50. 23 R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (2002) at 594. See also s. 8(1) of the federal Interpretation Act, R.S.C. 1985, c. I-23, which deems all federal statutes to apply to “the whole of Canada.” 24 Hape, supra note 3, at para. 53. 25 See, e.g., Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626. More recently, see R. v. Stucky, 2009 ONCA 151, leave to appeal to the Supreme Court of Canada granted [2009] SCCA No. 186. 26 I am bypassing, for the purposes of this chapter, the question of whether Libman applies to provincial regulatory offences that happen to have a transnational aspect. The question does not seem to have come up in the case law, although it is worthy of further study. 27 The term “transnational” as will be used in this chapter (often in the phrases “transnational crime,” “transnational offence,” or “transnational criminal”) reflects Philip C. Jessup’s use of the phrase “transnational law”



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in reference to “all law which regulates actions or events that transcend national frontiers” (in P. Jessup, Transnational Law (New Haven: Yale University Press 1956) at 2). It also emerges from a modern trend to distinguish “transnational criminal law” (i.e., domestic criminal law with international aspects) from “international criminal law” (i.e., dealing with crimes under international law itself, such as genocide). See generally N. Boister, “‘Transnational Criminal Law’?” (2003) 14 Eur. J. Int’l L. 953. 28 But see R v. Klassen, 2008 BCSC 1762. 29 For example, in R. v. Bakker, [2005] B.C.J. No. 1577 (Prov. Ct. Crim. Div.), the accused had been charged with sexual acts with children in Cambodia. He was charged pursuant to s. 7(4.1) of the Criminal Code, which provides for extraterritorial jurisdiction over sexual offences against children by Canadian nationals. The case was resolved by a guilty plea. The trial of Désiré Munyaneza (R. v. Munyanzea, 2009 QCCS 2201) was the first conducted pursuant to the Crimes against Humanity and War Crimes Act, S.C. 2000, c. 24, s. 9, which provides for jurisdiction over genocide, crimes against humanity, and war crimes committed outside Canada. 30 Libman, supra note 4 at paras. 43–59. 31 Ibid. at paras. 3–5. 32 Now s. 465(1)(d). 33 Now s. 465(4), which came into effect only after some of the transactions were complete; Libman, supra note 4 at para. 9. 34 Libman, supra note 4 at para. 11. 35 Ibid. at para. 17. 36 Ibid. at paras. 66–8. 37 Ibid. at para. 66. 38 Ibid. at para. 74. 39 Ibid. at para. 71. 40 Ibid. at para. 78. 41 “Just what may constitute a real and substantial link in a particular case, I need not explore … The outer limits of the test may, however, well be coterminous with the requirements of international comity”: ibid. at para. 76. 42 Ibid. 43 Ibid. at para. 70–2. 44 Ibid. at para. 77. 45 See for example Bantekas & Nash, supra note 13 at 74. 46 Though see E.M. Morgan, “Criminal Process, International Law and Extraterritorial Crime” (1988) 38 U.T.L.J. 245.

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47 There is no particular distinction to be made between “real and substantial links,” which is the phrase used in Libman itself, or “real and substantial connection,” which is how La Forest J. rephrased the test for application in other contexts (e.g., Morguard Investments Ltd. v. de Savoye, [1990] 3 S.C.R. 1077, regarding assumption of jurisdiction in civil matters). The latter phrase is most frequently used now and will be used here. 48 For a more thorough review see R. Currie, International and Transnational Criminal Law (Toronto: Irwin Law 2010), chap. 8. 49 Libman, supra note 4 at para. 71. 50 This is a very offence-specific and fact-specific inquiry, which has not seen a great deal of explicit attention from the courts. It arises from Libman, where in dispensing with the “gist of the offence” approach that some courts had used, Justice La Forest emphasized that the offence of fraud consisted both of obtaining goods, money, etc. and that they have been obtained fraudulently, and similarly for obtaining property by false pretences. He wrote, “I can see no overriding policy reason that would favour the place of obtaining the goods [as the location of the crime]. There are many cases, it is true, where this is also the place where the impact is felt, but that is not necessarily so” (supra note 4 at para. 69). In R. v. Dos Santos (1992), 96 Nfld. & p.e.i.r. 13 (Nfld. S.C.), the offence was fishing in Canadian fisheries waters. The accused master of a fishing vessel was convicted because he had sent his crew to drop nets inside the prohibited zone, even though the main vessel stayed outside the zone, with the result that the “culmination of the offence” occurred inside the limit (at para. 65). This result, too, is arguably driven by the nature of the offence. 51 Which, the Supreme Court of Canada recently stated in Hape, is an interpretive tool: Hape, supra note 3 at paras. 47–52. 52 Libman, supra note 4 at para. 77. 53 In R. v. Larche, [2006] 2 S.C.R. 762 at 782, 2006 SCC 56 at para. 64 [Larche], Fish J. in obiter dicta suggested that an outstanding extradition request from a treaty partner would be relevant. 54 E.g., R. v. Doiron, [1989] No. 12 () (QL). 55 Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427, 2004 SCC 45. 56 Ibid. para. 54. 57 Coughlan et al., supra note 4 at 42–4. For an example of a court getting into similar trouble by applying SOCAN, see Lawson v. Accusearch Inc., 2007 F.C. 125 (F.C.T.D.), with commentary on this aspect of the case by D. Davis, “Tracking Cross-Border Data Flows: A Comment on Lawson v. Accusearch, Inc.” (2007) 6 c.j.l.t. 119.



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58 (2001), 159 C.C.C. (3d) 146 (Ont. C.A.), leave to appeal to S.C.C. ref’d 162 C.C.C.. (3d) vi [Greco]. 59 Ibid. at para. 17. 60 Ibid. at paras. 18–31. 61 The Ontario Court of Appeal recently re-affirmed its Greco analysis in R. v. Rattray, 2008 ONCA 74. 62 Hape, supra note 4 at paras. 57–65. 63 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 64 Hape, supra note 3 at para. 59. 65 Hape, ibid. at para 62 66 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 14 Dec. 2000, UN Doc. A/55/383 (2002), Can. T.S. 2002 No. 25. 67 Supra note 2. 68 toc Convention, supra note 2, art. 3(2). 69 D. McClean, Transnational Organized Crime: A Commentary on the UN Convention and its Protocols (Oxford: Oxford University Press 2007) at 53–6. 70 S.C. 2001, c. 27 [irpa]. 71 Ibid., s. 118(1). Section 118(2) states that “organize” includes “recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.” 72 Reprinted in (1998) 37 I.L.M. 1. 73 S.C. 1998, c. 34 [cfpoa ]. 74 The Convention requires them to consider exerting nationality-based extraterritorial jurisdiction as well. 75 The Commentary to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (21 November 1997), available online: at para. 25. 76 For background see Foreign Affairs and International Trade Canada, Sixth Report to Parliament (21 October 2005) available online: . 77 See OECD, Directorate for Financial and Enterprise Affairs, Canada: Phase 2: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (25 March 2004) available online: [Phase 2 Report].

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78 See OECD, Directorate for Financial and Enterprise Affairs, Follow-Up Report on the Implementation of the Phase 2 Recommendations (21 June 2006) available online: at 5. 79 See Phase 2 Report, supra note 77 at 32. 80 Ibid. at 32–3. 81 Supra note 53. 82 Ibid. at para. 8. 83 Ibid. at para. 9. 84 The exception was that Sansfaçon j.c.q had taken into account a single instance of possession of proceeds that occurred entirely in Vermont. Fish J. ruled that since this had taken place “entirely in the United States,” there was no territorial jurisdiction over it and thus it could not be taken into account in sentencing: ibid. at para. 61. 85 Ibid. at para. 14. 86 Ibid. at para. 56. 87 Ibid. at para. 62. 88 Though he did not identify it as part of the Libman analysis and expressly assumed “as a theoretical matter” that it applied to taking jurisdiction in the sentencing process: ibid. at para. 64. 89 Ibid. at para. 65. 90 Ibid. at para. 31. 91 Ibid. at paras. 66–8 (emphasis in original). 92 Though for a case that comes perilously close to the line, see Canada (Minister of Justice) v. Kunze, 2005 B.C.C.A. 87. 93 R. Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press 1994) at 56. 94 See G. Botting, “The Supreme Court ‘Decodes’ the Extradition Act: Reading Down the Law in Ferras and Ortega” (2007) 32 Queen’s L.J. 446. 95 See generally B.-J. Koops & S. Brenner, Cyber-crime and Jurisdiction: A Global Survey (The Hague: TMC Asser 2006). 96 S.C. 2000, c. 24.

10 Domestic Reception and Application of International Humanitarian Law: Coming Challenges for Canadian Courts in the “Campaign against Terror” CHRISTOPHER K. PENNY

introduction As Canadian courts are called on to address issues relating to the multilateral campaign against terrorism, they can increasingly expect to hear principles of international humanitarian law (IHL) cited in support of arguments.1 Also known as the laws of war or the law of armed conflict, IHL is a specialized body of international law that regulates the conduct of military operations and operates to protect civilians and other persons not actively participating in hostilities and to mitigate harm to combatants themselves. Unfortunately, however, this area of law has not yet received sustained or detailed judicial attention in Canada. Recognizing that this specialized body of law is relevant and material to the campaign against terrorism in at least some circumstances, this chapter addresses the legal principles governing the use of IHL in Canadian courts, including its reception in domestic law and the manner in which it has been applied to date. The chapter does not offer a legal critique of the application of substantive IHL principles in specific cases, either historical or ongoing; rather, it provides a systemic assessment of the actual and potential use of IHL in Canadian courts, with the goal of identifying trends and highlighting future challenges for the use of this body of law in judicial proceedings related to the campaign against terrorism. The second part of this chapter begins with a summary of the IHL regime and the specific sources of Canada’s resulting international legal obligations, followed in the third part by a general discussion

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of the principles governing the reception of international law into the law of Canada. Building on this general foundation, the fourth part outlines the direct incorporation of IHL obligations into the domestic law of Canada. This is followed in part five with a general assessment of the use of IHL in Canadian courts to date, outlining recurring themes, which are addressed in part six in order to identify potential challenges for the domestic application of IHL in the current campaign against terror. This chapter highlights a few broad areas of concern relating to the effective and appropriate application of IHL in Canadian courts. First, it is crucial that key threshold principles are recognized and applied, as IHL is generally applicable only during periods of armed conflict. The clear IHL distinction between rules applicable in international and in non-international armed conflicts must be similarly recognized. A final systemic concern relates to the limited application of customary IHL in Canadian courts. These areas have not received substantial judicial attention to date, and this will present challenges as Canadian courts are faced with legal issues arising from military aspects of the campaign against terror in future.

i h l a n d i t s a p p l i c at i o n to c a n a da IHL is a specialized body of international law applicable to Canada by virtue of Canada’s specific treaty commitments and the crystallisation of principles of customary international law. The following section addresses the general nature of Canada’s IHL commitments, providing a broad overview of the IHL regime as a whole and discussing its application to Canada. This section is not intended to undertake substantive analysis of particular aspects of IHL, but rather to highlight its major principles and assess the threshold criteria applicable to this specialized body of law, including its relationship with international human rights law. What is ihl ? IHL is a specialized body of treaty and customary law that applies during times of armed conflict to regulate the conduct of hostilities and protect civilians and other persons not actively participating in conflict. Its purpose is to mitigate net human suffering, while at the same time recognizing the need to balance such protection against legitimate military requirements. When applicable, IHL establishes,



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inter alia, prohibitions or restrictions on the use of particular weapons and the adoption of specific tactics, general principles governing the conduct of military operations, including requirements to direct attacks only against military objectives, prohibitions on mistreatment of civilians and captured combatants, and specific protections for medical personnel.2 In some circumstances, serious violations of IHL may give rise to individual criminal responsibility for war crimes. Nonetheless, this body of law is, and should be considered as, distinct from international criminal law. Not all IHL violations are criminal, and, as discussed below, IHL generally requires a nexus with armed conflict. Conversely, while international criminal law incorporates some IHL violations that are characterized as war crimes, it also establishes individual criminal responsibility for acts that may be committed within or outside of armed conflict, notably genocide and crimes against humanity.3 The “Armed Conflict” Threshold The legal regulation of conflict has a lengthy history. In particular, the nineteenth and early twentieth centuries saw the emergence of codified legal rules for the protection of war victims and the regulation of means and methods of conflict. In 1864, states adopted the first Geneva Convention to protect wounded soldiers (followed by more detailed protections for soldiers, sailors, and prisoners of war in 1906 and 1928). At the same time, rules governing the actual conduct of hostilities were negotiated, in particular through conferences held in The Hague in 1899 and 1907, which resulted in, inter alia, codified rules of land warfare.4 However, these treaty protections were understood as applicable only in circumstances amounting to formal interstate “war.”5 Recognizing this limitation, the second half of the twentieth century witnessed a deliberate shift away from “war” as a determinative legal threshold for IHL. Indeed, the concept of “war” has all but disappeared from modern international law protecting the victims of conflict and regulating the conduct of hostilities. The modern Geneva Conventions – that is, the four Geneva Conventions of 19496 – apply in “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them,” as well as to “armed conflict not of an international

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character occurring in the territory of one of the High Contracting Parties,” albeit establishing far greater substantive protections in the former context.7 The 1977 Additional Protocols8 to these conventions expanded the content of international humanitarian law applicable in both interstate and internal “armed conflict,” though maintaining a substantive distinction between provisions applicable in international and non-international armed conflicts. This shift away from “war” was intentional. Referring to the inclusion of “armed conflict” in the 1949 Geneva Conventions, the International Committee of the Red Cross (ICRC) Commentary to Common Article 2 (i.e., common to all four treaties) notes that [t]he substitution of this much more general expression for the word “war” was deliberate. One may argue almost endlessly about the legal definition of “war.” A State can always pretend, when it commits a hostile act against another State, that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression “armed conflict” makes such arguments less easy. Any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place.9 Reference to armed conflict thus avoids the problems that might otherwise arise in the absence of a formal state declaration of war. Similarly, armed conflict is the general focus of recent additions to the law governing means and methods of warfare10 (although some recent treaties establish absolute weapons prohibitions applicable in all circumstances, whether during peace or conflict.)11 However, there is no comprehensive definition of “armed conflict” in either the Geneva Conventions or their Additional Protocols, or in other relevant international treaties.12 The International Criminal Tribunal for the Former Yugoslavia (ICTY) has provided authoritative guidance for the interpretation of this concept. In its first case, Tadic,13 the Appeals Chamber found that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”14 In addition, the tribunal concluded that



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“[i]nternational humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.”15 International and Non-International Armed Conflict While IHL applies during any situation properly characterized as armed conflict, its substantive provisions nonetheless vary depending on the nature of the conflict in question. Reflecting its historical development, the majority of conventional IHL applies to international armed conflict; for example, only one article in the Geneva Conventions of 1949 – Common Article 3 – applies to internal conflicts.16 However, more recently, a substantial body of law has also developed to regulate the conduct of such non-international armed conflicts.17 Perhaps most importantly, beginning with the 1993 establishment of the ICTY, the international community has gradually but clearly recognized that individual criminal responsibility for the commission of war crimes may result from internal as well as international armed conflicts.18 Although the substantive differences have recently been reduced, particularly with the Rome Statute of the International Criminal Court, each body of IHL remains distinct. As a result, properly distinguishing between these two types of armed conflict remains necessary and important.19 That is not to say that such a distinction is easy, particularly when faced with non-state actors involved in conflict occurring on the territory of a single state with support of another state. Indeed, the ICTY has characterized the conflicts in the former Yugoslavia during the early 1990s as, at various times, international and, at others, non-international.20 The distinction between international and non-international conflict is further challenged in the context of the global campaign against terror, in particular by the involvement of transnational terrorist groups and the conduct of military operations in and by various states against groups of this nature.21 IHL and International Human Rights Law While fundamental international human rights norms generally continue to apply during periods of armed conflict, their protections must frequently be interpreted in the light of IHL provisions. This

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specialized body of law effectively reduces the practical protections offered by human rights law during periods of armed conflict. For example, IHL recognizes that an otherwise lawful attack on a legitimate military objective is not necessarily rendered unlawful even if it results in civilian injury or death, unless this collateral impact is “excessive in light of the concrete and direct military advantage anticipated.”22 Despite its fundamental character, the right to life is not absolute. Although most treaty expressions of this right characterize it as nonderogable, it is typically expressed as a qualified prohibition on arbitrary deprivation of life.23 The International Court of Justice concluded in a 1996 Advisory Opinion that “[i]n principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.”24 Citing and expanding upon this finding in 2004, the ICJ further concluded that [m]ore generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.25 Thus, while international human rights law continues to apply during armed conflict, it is IHL compliance that will frequently determine the arbitrariness of any resulting deprivation of life. This has the effect of limiting practical human rights protections in a wide variety of circumstances where the lex specialis of IHL applies, for example when addressing the incidental impact of legitimate military attacks on civilians or the killing of enemy combatants.



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c a n a d a’ s ihl c o m m i t m e n t s Canada is bound by a substantial body of IHL commitments, both treaty and customary in nature. Indeed, Canada is a state party to virtually all modern multilateral IHL treaties.26 As a result, there are few modern IHL provisions that do not apply to Canada as a matter of treaty law.27 In addition, Canada is bound by the substantial and growing body of customary IHL, which applies to it directly without requiring formal expression of its consent to be bound. The substantive content of this body of law is difficult to describe with certainty, although it is clear that numerous principles of IHL have crystallised as customary law. Making a significant contribution to this field, in 2005 the ICRC completed a decade-long study on customary IHL.28 While not determinative, this study is an authoritative assessment of the state of the law in this area. Judicial decisions in various forums, in particular the ICTY and ICTR, have also made a significant, albeit indirect, contribution to the interpretation of Canada’s treaty and customary IHL commitments.29 Domestic Reception of International Law In keeping with Canada’s independence, domestic courts have clearly recognized its ability to breach its international legal obligations should it expressly choose to do so.30 The Supreme Court of Canada itself has recognized this principle on numerous occasions.31 As recently as June 2007, the Court declared that “Parliamentary sovereignty requires courts to give effect to a statute that demonstrates an unequivocal legislative intent to default on an international obligation.”32 Nevertheless, while domestic law clearly recognizes the ability of Canada to breach its international legal obligations, compliance is the ordinary “default position.”33 The reception system generally operates to give effect to this overall presumption of legality, as discussed below. Since IHL is a specialized body of international law, its reception into Canadian law will therefore be governed by the general principles applicable to domestic reception of international law as a whole. The following section addresses the process through which international law may be received into the domestic law of Canada, with a focus on treaties and customary international law. In addition to discussing formal reception of international obligations, this section

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also addresses the use of international law to inform statutory interpretation in Canada.34 Treaties Treaties are not self-executing in Canada. This means that internationally binding agreements are not given direct effect in domestic law as a matter of course, even where Canada has ratified the treaty in question and it has entered into force.35 Treaties ratified by Canada must instead be specifically implemented by the legislature before they will be applied directly by Canadian courts as part of the law of Canada.36 Following upon established British jurisprudence,37 the Supreme Court of Canada has frequently recognized this implementation requirement.38 For example, in Baker v. Canada (Ministry of Citizenship & Immigration), L’Heureux-Dubé J. concluded that “[i]nternational treaties and conventions are not part of Canadian law unless they have been implemented by statute.”39 Other Supreme Court iterations of this requirement refer to, inter alia, “legislative implementation”40 or circumstances “where the treaty has been implemented or sanctioned by legislation.”41 Treaty implementation frequently takes place through enactment of legislation drafted specifically for this purpose, often, though not necessarily, with direct statutory reference to the treaty in question.42 In all cases, implementing legislation should clearly establish the intent of Parliament to give legal effect to the treaty provisions in question; as noted by Laskin C.J.C. in MacDonald v. Vapor Canada Ltd.,43 “[t]he Courts should be able to say, on the basis of the expression of the legislation, that it is implementing legislation.”44 Most obviously, implementation may result either from direct statutory incorporation of the treaty itself or through the employment of specific treaty language in statutory provisions.45 When purported implementing legislation deviates from this clear standard, it becomes more difficult to determine its precise legal effect.46 Indeed, appending treaty text as a schedule to a statutory instrument is likely insufficient to give it legal effect without further indication of legislative intent. Iacobucci J., writing for the majority of the Supreme Court of Canada in Vancouver Island Railway47 (a case involving interpretation of a federal-provincial accord included as a schedule to a statute), found “that statutory ratification and confirmation of a scheduled agreement, standing alone, is generally insufficient reason to conclude that such an



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agreement constitutes a part of the statute itself.”48 Similarly, “mere approval” was also considered insufficient to give legal effect to the scheduled agreement.49 Direct reference in the statute’s title to treaty implementation (for example, the Chemical Weapons Convention Implementation Act) is useful, though not necessarily determinative.50 Once implementing legislation has been enacted, Canadian courts should give effect to the substantive content of the provision in question (though not necessarily the treaty itself) as part of the domestic law of Canada. In interpreting domestic implementing legislation, the Supreme Court of Canada has indicated that the treaty itself may be used to clarify, and even discern, ambiguity; for example, the majority in National Corn Growers51 concluded that “[i]n interpreting legislation which has been enacted with a view towards implementing international obligations ... it is reasonable for a tribunal to examine the domestic law in the context of the relevant agreement to clarify any uncertainty. Indeed where the text of the domestic law lends itself to it, one should also strive to expound an interpretation which is consonant with the relevant international obligations.”52 This includes, where required, application of the international law rules of treaty interpretation.53 Further complicating this regime, implementing legislation may not be required in order to give effect to all of Canada’s treaty obligations. Indeed, many such commitments are undertaken with the knowledge, or at least the assumption, that domestic law is already compliant.54 Legislative changes may also be enacted to meet Canada’s international obligations with no explicit treaty reference. Each such instance raises clear practical concerns regarding the characterization of the legislation as intended to implement the treaty in question.55 Even without implementing legislation, however, there is a general presumption that domestic legislation should be read in conformity with Canada’s international obligations, where such a reading is possible. For example, McLachlin C.J.C. held in 2004 that “[s]tatutes should be construed to comply with Canada’s international obligations.”56 This presumption is discussed further below, in the context of statutory interpretation. Customary International Law In contrast to treaties, customary international law is generally considered part of the common law of Canada without any need for

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implementing legislation.57 This doctrine of “adoption” has a lengthy history in United Kingdom jurisprudence; by the mid-eighteenth century, British courts had already recognized the incorporation of “the law of nations” as “part of the common law of England.”58 The 2007 decision of the Supreme Court of Canada in R. v. Hape59 confirmed the application of this doctrine in Canada, despite historical treatment that has not always been consistent, or at least explicit.60 LeBel J., writing for the majority,61 concluded that [i]n my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.62 Elsewhere in his judgment, LeBel J. refers to the “direct application of custom.”63 This opinion refers to “prohibitive” rules of customary international law without elaboration. The reference suggests that the majority supports the proposition that mandatory rules are to be distinguished from permissive rules of customary international law, which permit, but do not require, a particular course of action.64 This distinction between prohibitive and permissive customary rules has some basis in judicial history, both in the United Kingdom65 and in Canada.66 There is a clear rationale for the distinction: while prohibitive rules require specific state action (or, at least, refraining from specific state action), permissive rules do not. The latter leave it open for a state to decide for itself whether to invoke the permissive rule to justify a particular course of action. As a result, it would be inappropriate for a court to impose a permissive rule on a state without its prior discretionary decision to rely upon it.67 Since customary international law is considered part of the common law, to the extent that it has been received in Canada, there



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should be no further requirement to plead it in support of specific cases; put another way, Canadian courts may take judicial notice of customary international law.68 The principle was recognized in, inter alia, The Ship North, where Davies J. noted that the international law doctrine of hot pursuit69 “being part of the law of nations was properly judicially taken notice of and acted upon.”70 Statutory Interpretation and the Presumption of Conformity Even absent direct incorporation or adoption, international law continues to have a substantial impact on the development and content of Canadian law. An accepted principle of statutory interpretation establishes a presumption that domestic law conforms to Canada’s international legal obligations.71 With reference to previous Supreme Court of Canada jurisprudence, the majority in Hape expressly recognized and applied this doctrine of presumed conformity, concluding that “[i]t 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.”72 In keeping with its previous judicial treatment of this principle, the Court also noted that “[t]he 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.”73 The Court concluded that “[t]he presumption applies equally to customary international law and treaty obligations.”74 Despite some historical uncertainty on this point,75 Hape also supported the presumption of conformity in the context of Charter interpretation; LeBel J., writing for the majority, concluded that “[i] n 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.”76 This position was not endorsed by the entire Court.77 However, it follows from the conclusion of Dickson C.J.C. in Slaight Communications78 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

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which Canada has ratified.”79 Slaight Communications also recognized that “[g]iven the dual function of s. 1 identified in Oakes, Canada’s international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives that may justify restrictions on those rights.”80 In addition to its application in Hape, the Supreme Court has used international law to inform various Charter rights and potential Charter s. 1 limitations in a number of other recent cases.81

d i r e c t i m p l e m e n t a t i o n o f ihl i n c a n a d a Despite being bound by the vast majority of modern IHL provisions, Canada has enacted specific implementing legislation relating to only a small portion of these commitments. This is not necessarily surprising, as many of these obligations relate primarily to Canada’s relations with other countries, rather than requiring direct domestic enforcement. However, the absence of comprehensive (express) implementing legislation may in some circumstances present challenges for the future application of IHL in Canadian courts. In addition, in most cases relevant domestic legislation does not appear to have displaced the application of customary IHL through its adoption into the common law. The following section outlines some of the key instruments providing for the domestic implementation of Canada’s IHL obligations. One of the most obvious domestic statutes implementing IHL is the Geneva Conventions Act.82 This legislation “approved” the four Geneva Conventions of 1949 and their two Additional Protocols of 1977, which were included in their entirety as schedules to the act itself.83 Unfortunately, it is not immediately obvious from this language whether the statute is implementing legislation for the Geneva Conventions regime as a whole or simply part of it. Courts in Canada have previously held that “approval” alone is not clear implementing language without further statutory indication of parliamentary intent.84 The Geneva Conventions Act itself includes provisions addressing the domestic implementation of only a few discrete elements of the treaties, in particular the “grave breaches” war crimes regime, applicable in international armed conflict, and the establishment of discretionary authority for the minister of national defence to give



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effect to the provisions of Geneva Convention III relating to prisoners of war.85 Some sections of the act refer to further obligations of the conventions as they apply in Canada and would be difficult to interpret absent full domestic implementation of these specific treaty provisions themselves.86 However, the vast majority of treaty provisions are not explicitly addressed in the statute itself. As a result, the relationship between this act and the implementation of the Geneva Conventions regime as a whole remains somewhat unclear. This uncertainty is highlighted by relevant Canadian treaty reservations. Upon its ratification of Additional Protocol I, Canada entered reservations to, inter alia, the provisions of article 38(2) that prohibit “use of the flags or military emblems, insignia or uniforms of adverse Parties” to “shield, favour, protect or impede military operations.” Despite this reservation, the Geneva Conventions Act includes this article in the “approved” and scheduled version of the treaty, without statutory reference to the reservation.87 Surely the federal legislature did not intend to give domestic legal effect through this schedule to a specific treaty provision from which Canada had formally exempted itself as a matter of international law.88 Despite this uncertainty, the Geneva Conventions Act clearly does implement significant elements of this modern treaty regime, if not in its entirety.89 The Rome Statute of the International Criminal Court90 is implemented, in part, through the Crimes against Humanity and War Crimes Act.91 In addition to addressing genocide and crimes against humanity, this act establishes IHL-based war crimes as indictable offences, whether committed within or outside Canada.92 In both cases, “war crime” is defined as “an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.”93 This definition removed the previous Criminal Code proviso that war crimes be committed during an “international armed conflict.”94 “For greater certainty,” the act establishes that the specific war crimes enumerated in the Rome Statute, as defined in this treaty, “are, as of July 17, 1998, crimes according to customary international law.”95 The schedule to the act directly incorporates, inter alia, article 8(2) of the Rome Statute, which delineates these substantive criminal provisions and, importantly, establishes individual criminal responsibility

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for crimes committed in either international or non-international armed conflict. The Criminal Code itself directly incorporates treaty and customary IHL in the context of terrorism. Specifically, the Criminal Code provides that “terrorist activity” “does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict ... to the extent that those activities are governed by other rules of international law.”96 The Criminal Code establishes as an indictable offence the financing of “terrorist activity” or “any other act or omission intended to cause death or serious bodily harm to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, if the purpose of that act or omission, by its nature or context, is to intimidate the public, or to compel a government or an international organization to do or refrain from doing any act.”97 These provisions clearly incorporate substantive IHL elements to restrict the scope of this offence during armed conflict. The Criminal Code may prevent the adoption of customary IHL as a general basis for criminal prosecution; s. 9(a) establishes that “[n]otwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730 ... of an offence at common law.” This statutory displacement of common law offences should preclude any conviction or discharge relating to the domestic adoption of war crimes under customary IHL.98 In contrast, the Criminal Code appears to permit invocation of treaty and customary IHL defences in Canadian courts, unless specifically displaced by statute.99 The Immigration and Refugee Protection Act100 also incorporates IHL elements relating to the exclusion of war criminals from the definition of a Convention refugee. In particular, the act’s schedule incorporates, inter alia, article 1(F) of the United Nations Convention relating to the Status of Refugees,101 which provides, in part, that “ [t]he provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crime; …” This schedule explicitly refers only to “international instruments” relating to war crimes, rather than incorporating the body of customary



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IHL also applicable in armed conflicts.102 In addition, the act establishes as “inadmissible” any person who has committed “an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes against Humanity and War Crimes Act” or who has been a “senior official” in a government responsible for war crimes (or other serious international crimes).103 IHL also appears to have been incorporated within the Canadian Charter of Rights and Freedoms104 itself, albeit through general mention of international law; section 11(g) provides that “any person charged with an offence has the right … not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.” This clearly incorporates international law, arguably beyond that already considered part of domestic Canadian law through specific treaty implementation or customary international law adoption. It also strongly supports the legality of the retroactive provisions of the Crimes against Humanity and War Crimes Act.105 In addition, specific IHL obligations are implemented through various other domestic statutes. For example, international obligations arising from a variety of weapons conventions have been incorporated into Canadian domestic legislation, including statutes addressing anti-personnel landmines,106 biological and toxin weapons,107 and chemical weapons.108 Some specific IHL obligations are implemented, albeit implicitly, through the National Defence Act,109 including a prohibition on use of children in armed conflict.110 Specific legislative provisions relating to use of protected IHL symbols such as the Red Cross have also been directly incorporated into Canadian law, through provisions of An Act to Incorporate the Canadian Red Cross Society111 and the Trade-marks Act (in addition to the general protections arguably established through the Geneva Convention Act itself).112 The language of “armed conflict” is incorporated, albeit not defined, in many of these domestic implementing statutes (though reference to “war” is maintained elsewhere).113 For example, both the Geneva Conventions Act114 and the Crimes against Humanity and War Crimes Act115 address “armed conflict.” Indeed, article 9 of the Geneva Conventions Act provides that a certificate issued by or for the minister of foreign affairs is admissible as proof of the fact that

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“at a certain time a state of war or of international or non-international armed conflict existed between the states named therein or in any state named therein.” Similar provision is made in Criminal Code s. 10. Conversely, these statutes do not establish the absence of such a certificate as determinative of the issue. As a result, these legislative provisions appear insufficient to prevent citation and reliance on authoritative international legal interpretations of the phrase “armed conflict” and related concepts, such as those outlined in Tadic and other judgments of the ICTY and ICTR, at least in the absence of a ministerial certificate.116

j u d i c i a l t r e a t m e n t o f ihl i n c a n a d a The following section provides a brief overview of the judicial treatment of IHL in Canada to date. Canadian courts at all levels have been called on to address IHL issues, albeit infrequently, given the large body of relevant domestic statutory and common law principles. The vast majority of reported cases addressing IHL relate to immigration and refugee issues.117 In contrast, this body of law has been used very rarely to address individual criminal violations during armed conflict or other issues relating to Canada’s IHL obligations outside of the criminal context. While not necessarily surprising,118 this limited and focused historical application of IHL presents some challenges for the use of these precedents in future cases, particularly in light of rapid international developments in this area of law. The following section focuses on general issues arising from the use of IHL by Canadian courts to date. It is not intended to address or critique judicial treatment of substantive IHL issues in individual cases. Instead, the purpose is to highlight key issues arising from the manner in which the IHL regime as a whole has been addressed, focusing on broad, at times interconnected, themes relating to the threshold for IHL application; in particular, the section addresses issues relating to the armed conflict threshold, the distinction between international and non-international armed conflict and the domestic use of customary IHL. Generally, IHL is applicable only during periods of “armed conflict.” While Canadian courts have frequently recognized the applicability of distinct legal principles when assessing issues arising out of conflict situations, this has not necessarily resulted in the detailed



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application of IHL as a separate and identifiable body of law.119 Instead, specific provisions of IHL are often applied without explicitly establishing their overall context (although this has not necessarily resulted in the misapplication of this body of law).120 In many instances, for example, the existence of armed conflict has been obvious.121 As a result, there has been little domestic judicial treatment of the meaning of “armed conflict” and the precise threshold for IHL application by Canadian courts.122 Similarly, there has been little detailed treatment of the precise legal threshold between international and non-international armed conflicts.123 It is often not necessary to address this specific issue, such as when the existence of armed conflict is clear and the alleged conduct would be contrary to IHL in either an international or noninternational context. However, when the distinction has been addressed, conflict occurring in the territory of a single state has often been considered non-international without further analysis, with similar underlying assumptions for conflicts involving the armed forces of two or more states (again without necessarily resulting in misapplication of relevant law).124 The legal implications of this distinction may also require more detailed assessment. Ironically, judicial treatment to date has arguably led to this distinction becoming too pronounced in domestic law, through ongoing reliance on historical precedent rather than modern international legal interpretations. Although substantive differences remain between IHL applicable in international and noninternational armed conflicts, these distinctions have narrowed significantly since 1991, particularly with respect to issues relating to individual criminal responsibility for acts or omissions in internal conflicts. Canadian courts have not wholly addressed the extent or timing of this development, particularly in the period between the establishment of the ICTY and the entry into force of the Rome Statute. One result of ICTY and ICTR jurisprudence and the negotiation of the Rome Statute has been to lessen the importance of the distinction between international and non-international armed conflict, as discussed above. Future cases relating to alleged criminal violations in internal conflicts may now rely on international determinations that such conduct can, at times, lead to individual criminal responsibility. There is also no doubt that Canadian courts have clear parliamentary guidance in the Crimes against Humanity and War Crimes Act, although this act does not directly address the commission of war crimes

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in internal conflict before 1998. For the period before 1998, the necessary foundation is established by customary international law. Some recent case law continues to suggest that war crimes could not be committed in internal conflicts prior to the entry into force of the Rome Statute, which clearly does not capture earlier developments in customary international law.125 The Crimes against Humanity and War Crimes Act recognizes that war crimes committed in non-international armed conflict were contrary to customary international law no later than 1998. It does not prevent recognition that earlier acts of this nature were contrary to customary international law. Indeed, the statutes of the ICTY and the ICTR as interpreted by these courts clearly recognize the customary legal characterization of some such acts as criminal no later than 1991, particularly with respect to violations of Common Article 3. This illustrates a broader systemic concern relating to the application of customary IHL in Canadian courts. This body of international law is substantial, and it has generally not been displaced by specific domestic legislation. Unfortunately, however, Canadian courts have typically not relied on customary IHL in their determinations.126 In contrast, Canadian courts have addressed customary international criminal law, particularly as it relates to crimes against humanity, in numerous recent cases; as a result, Canadian courts have developed considerable expertise and a significant body of case law in this area. 127 Interestingly, many of these crimes against humanity cases addressed the conduct of military personnel during periods of armed conflicts or other acts involving military force, yet did not address IHL itself in any detail.128

u s i n g ihl i n c a n a d i a n c o u r t s : challenges and prospects The ongoing international campaign against terror will almost certainly lead to an increase in IHL citation and application in Canadian courts beyond its current, albeit largely implicit, role in immigration and refugee claims. Related arguments have already been raised in the context of ongoing military operations in Afghanistan. The first domestic war crimes prosecution under the Crimes against Humanity and War Crimes Act has recently begun, addressing acts during the Rwandan genocide, and it is only a matter of time before courts are called on to address IHL issues arising from the campaign against



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terror under this statute.129 In addition, and of particular importance in the context of the campaign against terror, any domestic criminal case addressing “terrorist activity” may be required to assess applicable treaty and customary IHL principles.130 In all such cases, the application of the IHL “armed conflict” threshold will be important, as will a more nuanced distinction between the legal regimes applicable in international and non-international armed conflict.131 The lack of judicial familiarity with these and other IHL issues, coupled with the outdated nature of much of the existing case law, presents Canadian courts with a unique challenge. Domestic precedent must be followed with caution, given dramatic recent changes in this body of law, particularly since 1991 in relation to individual criminal responsibility for acts committed in internal conflict. This is further complicated by the patchwork nature of domestic implementing legislation relating to Canada’s IHL obligations. The unanimous 2005 Supreme Court of Canada decision in Mugesera132 has opened the door to more effective application of customary (and treaty-based) IHL in Canadian courts.133 In this decision, the Court expressly recognized the authoritative nature of ICTY and ICTR jurisprudence, noting that since 1994 “[t]hese tribunals have generated a unique body of authority which cogently reviews the sources, evolution and application of customary international law. Though the decisions of the ICTY and the ICTR are not binding upon this Court, the expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their findings should not be disregarded lightly by Canadian courts applying domestic legislative provisions ... which expressly incorporate customary international law.”134 Despite this recognition, the decision in Mugesera has not yet translated into widespread general citation of ICTY and ICTR jurisprudence or other relevant international judicial sources in similar cases requiring determination of IHL issues arising from armed conflicts. Mugesera itself is limited to the use of ICTY and ICTR decisions in situations involving express incorporation of customary law into domestic legislative provisions relating to crimes against humanity (such as the Criminal Code and the Crimes against Humanity and War Crimes Act). However, in the light of the doctrine of adoption and the presumption of legality, there is no reason that these authoritative decisions should not be applied in other contexts as well. Given the limited nature of Canadian precedent relating to IHL

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issues and the relative lack of judicial exposure to such arguments, reliance on ICTY and ICTR jurisprudence would clearly be warranted and beneficial in this context. A key future challenge will be determining the relationship between IHL and Canadian human rights law, in particular the Charter. Domestic precedent already indicates that Charter rights should be interpreted in the light of international human rights principles, where possible. International case law supports the interpretation, and potential limitation, of international human rights principles in the light of applicable, specialized IHL principles. Given these two conclusions, a strong, albeit preliminary, argument may be advanced that domestic Charter rights should also be interpreted using IHL, with respect to the right itself and any potential limitations justifiable under s. 1.135 This will likely include IHL use in interpreting the right to life under s. 7, as well as in potential justification of any violations under s. 1; indeed, the Supreme Court has already suggested that the “outbreak of war” may establish the “exceptional circumstances” necessary to justify a violation of this right.136

r e c o m m e n dat i o n s The ongoing campaign against terror will give rise to IHL arguments in domestic courts for the foreseeable future. Building on Mugesera, it is important that the Canadian judiciary continue to incorporate the substantial body of relevant international jurisprudence as it is called on to address these specialized issues, particularly given the limited nature of existing Canadian precedent. Since 1991 there has been a wholesale transformation of IHL, and almost all of this newly developed law is applicable in Canada by virtue of the statutory incorporation of IHL treaty obligations and the adoption of customary IHL as part of the common law. The effective domestic application of IHL by Canadian courts is a key to ensuring their continuing role as guardians of the rule of law during the campaign against terror. It is no longer advisable to treat IHL as an esoteric legal subject in light of its increasing relevance to domestic legal issues. Recognizing the importance of more frequent and nuanced IHL argumentation and application in Canadian courts, this chapter offers the following specific recommendations:

•

•

•

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Encourage greater exposure of the Canadian bar to IHL through formal legal education and specialized seminars, through law schools and institutions such as the Canadian Bar Association National Military Law Section and the Canadian Council on International Law. Conduct further IHL training for individuals responsible for immigration and refugee determinations, reflecting the frequency of their current exposure to issues arising from armed conflict. With respect, facilitate greater judicial familiarity with IHL through provision of specialized training in forums such as the National Judicial Institute, ideally involving members of the prosecution, defence, and judiciary of the ICTY and the ICTR (and, in future, the ICC) who have addressed IHL issues. And encourage the further academic study of domestic reception of IHL in Canada, in particular the relationship between IHL and the Charter.

notes This chapter is based on a research project commissioned by the Canadian Centre for Intelligence and Security Studies and completed in late 2007. 1 Indeed, Canadian courts have already been called on to address Canadian military operations in Afghanistan, with specific reference to the treatment of detainees. See, e.g., Notice of Application, Amnesty International Canada v. Canada (Attorney General), Federal Court of Canada, Court File Number T-324–07 (21 Feb. 2007). 2 Recent texts addressing IHL from various perspectives include, inter alia, Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University 2004); L.C. Green, The Contemporary Law of Armed Conflict, 2d ed. (Manchester: Manchester University Press 2000); R. Provost, International Human Rights Law and Humanitarian Law (Cambridge: Cambridge University Press 2002)[Provost]; M. Sassoli & A.A. Bouvier, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, 2d ed. (Geneva: International Committee of the Red Cross 2006); J.-M. Henckaerts & L. Doswald-Beck, eds., Customary International Humanitarian Law (Cambridge: Cambridge University Press 2005) [Henckaerts & Doswald-Beck]; D. Wippman & M. Evangelista, eds., New Wars, New Laws? Applying the Laws of War in

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21st Century Conflicts (Ardsley, NY: Transnational 2005) [Wippman & Evangelista]. 3 As noted by the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, at para. 153, crimes against humanity require a “widespread or systematic” attack, but “the existence of an attack does not presuppose armed conflict (though it does not preclude armed conflict).” 4 See, in particular, Convention (iv ) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907. 5 See, e.g., International Committee of the Red Cross, Commentary to Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art. 2, online: International Committee of the Red Cross [icrc Commentary]. 6 The 1949 Geneva Conventions are Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31 [Geneva Convention i]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85 [Geneva Convention ii]; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135 [Geneva Convention iii]; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 [Geneva Convention iv]. 7 See, e.g., Arts. 2 and 3, common to each of the four 1949 Geneva Conventions. However, the scope of legal protections applicable in noninternational armed conflict is much more limited than the regime applicable in international conflicts. 8 The Additional Protocols are Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, 15 August 1977, UN Doc. A/32/144 [Additional Protocol ii]; and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, 15 August 1977, UN Doc. A/32/144 [Additional Protocol ii]. A third supplementary treaty, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem [Additional Protocol iii], 8 December 2005, entered into force in January 2007, establishing the



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Red Crystal as a protected symbol along with the already-recognized symbols of the Red Cross, Red Crescent, and Red Lion and Sun. 9 icrc Commentary, supra note 5. 10 See, e.g., Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980, as amended [ccw], Art. 1 (reference to Geneva Conventions scope of application) and its Additional Protocols: Protocol on Non-Detectable Fragments [ccw Protocol i ], Geneva, 10 October 1980; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended [ccw Protocol ii ], Geneva, 10 October 1980; Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons [ccw Protocol iii ], Geneva, 10 October 1980; Protocol on Blinding Laser Weapons [ccw Protocol iv ], Geneva, 13 October 1995; Protocol on Explosive Remnants of War [ccw Protocol v], Geneva, 28 November 2003. 11 See, e.g., Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Ottawa, 3 December 1997 [Ottawa Convention], Art. 1, establishing obligations applicable “under any circumstances.” 12 Although there is a minimum threshold of violence established in the Geneva Conventions regime, as discussed below, which precludes its application during, inter alia, “internal disturbances.” 13 Prosecutor v. Dusko Tadic, IT-94-1–AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) [Tadic]. 14 Ibid. at para. 70. 15 Ibid. However, not all internal strife is captured by the concept of “armed conflict”; for example, art. 1(2) of Additional Protocol ii provides that “[t]his Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” Emphasis added. Treaty-based IHL provides no clear definition of “internal disturbance and tension” or “riot.” However, a minimum threshold of violence is generally required for IHL to apply in any given situation. 16 Specific provisions of this regime also apply during peacetime, in particular those relating to IHL dissemination. 17 See, in particular, Additional Protocol ii . 18 Although maintaining a strong distinction between the law applicable in international and non-international conflicts, the ICTY in Tadic supra note

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13, noted at 106–34, albeit in obiter dicta, that its statute must be read as establishing its jurisdiction to address some war crimes even where committed during internal armed conflict, with particular reference to violations of Common Article 3, which does not expressly establish criminal responsibility for such acts. This finding has been followed in various subsequent ICTY cases. The Statute of the International Criminal Tribunal for Rwanda expressly established individual criminal responsibility for Common Article 3 violations. The Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998) [Rome Statute] establishes a lengthy list of war crimes applicable in non-international armed conflict. 19 There is a slight distinction between the situations in which Common Article 3 and Additional Protocol ii apply, making this division into two categories simplistic; however, discussion of two general categories of international and non-international armed conflict is sufficient for the purposes of the present analysis. 20 See, e.g., discussion in Provost, supra note 2 at 241. 21 See, e.g., the differing perspectives offered by William Lietzau, “Combating Terrorism: The Consequences of Moving from Law Enforcement to War,” and Anthony Dworkin, “Military Necessity and Due Process: The Place of Human Rights in the War on Terror,” in Wippman & Evangelista, supra note 2, chapters 2 and 3 respectively. 22 See, e.g., Additional Protocol i, Art. 51. 23 See, e.g., International Covenant on Civil and Political Rights, (1966) 999 U.N.T.S. 171 [ICCPR], Art. 6(1) (no arbitrary deprivation); Convention for the Protection of Human Rights and Fundamental Freedoms, (1950) 213 U.N.T.S. 221, Art. 2(2) (self-defence, arrest, maintenance of public order); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3/ Rev.5 (1981), Art. 4 (no arbitrary deprivation); American Convention on Human Rights (1978) 1144 U.N.T.S. 123, Art. 4(1) (no arbitrary deprivation). 24 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] International Court of Justice Reports 226 [Nuclear Weapons], at para. 25. 25 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, [2004] I.C.J. Rep. 136 at para. 106. 26 For example, Canada is a state party to, inter alia, the following major multilateral treaties, each of which establishes IHL obligations: Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 17 June 1925; Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in



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the Field, 27 July 1929; Convention relative to the Treatment of Prisoners of War, 27 July 1929; Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948; the Geneva Conventions of 1949; Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954; Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954; Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972; Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, 10 December 1976; Additional Protocols i, ii, and iii to the Geneva Conventions; the Convention on Conventional Weapons, as amended, and ccw Protocols i, ii, iii and iv; Convention on the Rights of the Child, 20 November 1989; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 13 January 1993; the Ottawa Convention; the Rome Statute of the International Criminal Court; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000. See, e.g., Canada, Department of Foreign Affairs and International Trade, “Canada Treaty Information,” . See also International Committee of the Red Cross, “International Humanitarian Law – Treaties and Documents,” . 27 Exceptions include ccw Protocol v , which Canada has not yet ratified. In addition, Canada has entered reservations relating to particular IHL treaty provisions, including Arts. 11 and 39 of Additional Protocol I. 28 Henckaerts & Doswald-Beck, supra note 2. 29 Case law from the ICTY and the ICTR is available at and respectively. ICJ decisions are available at . Jurisprudence from various national courts also provides further guidance on the content of these obligations, in particular recent decisions from the United States Supreme Court and the Israel High Court of Justice. 30 Canada would nonetheless remain responsible internationally for any such breach of its obligations. 31 See, e.g., Capital Cities Communications v. c . r. t . c ., [1978] 2 S.C.R. 141 [Capital Cities] (re. treaty obligations relating to inter-American communications) and Reference as to Powers to Levy Rates on Foreign Legations and High Commissioners’ Residences, [1943] S.C.R. 208 (re

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customary international law), and discussion in G.V. Ert, Using International Law in Canadian Courts (New York: Kluwer Law International 2002) at 4 [van Ert], of these and other related Canadian and United Kingdom cases. 32 R. v. Hape, 2007 SCC 26 at para. 53 [Hape]. 33 van Ert, supra note 31 at 10. 34 For detailed discussion of principles governing the reception of international law in Canada see, in particular, van Ert, ibid. See also J.H. Currie, Public International Law (Toronto: Irwin Law 2001) [Currie]; and H. Kindred et al., International Law: Chiefly as Interpreted and Applied in Canada, 7th ed. (Toronto: Emond Montgomery 2006) [Kindred]. 35 Given the nature of the treaty ratification process in Canada this may be understandable; it prevents the executive branch from legislating and effectively usurping the domestic role of Parliament. See discussion in van Ert, ibid. at 172ff., with reference to The Parlement Belge, [1878–9] 4 P.D. 129 and the application of this principle in Miller v. Canada [2001] 1 S.C.R. 407. See also Currie, ibid. at 207. 36 This requirement for formal domestic internalization is frequently referred to as “transformation.” See, e.g., Currie, ibid. at 199–201, 205; Kindred, supra note 34 at 206; van Ert, ibid. at 51. 37 One of the more significant enunciations of this doctrine is that of Lord Atkin in Attorney General for Canada v. Attorney General for Ontario, [1937] A.C. 326 (P.C). See discussion in van Ert, ibid. at 175–7. See also Currie, ibid. at 205–8. In this case, Lord Atkin noted, at 347, that “[w] ithin the British Empire there is a well-established rule that 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. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes.” 38 See, e.g., Capital Cities, supra note 31 at 173; Francis v. The Queen, [1956] S.C.R. 618 at 621 [Francis]; Baker v. Canada, [1999] 2 S.C.R. 817; and, discussion in van Ert, supra note 31 at 175–7. 39 Ibid. at paragraph 69. 40 Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 at 484. 41 Francis, supra note 38. 42 Obvious examples include the Anti-Personnel Mines Convention Implementation Act, S.C. 1997, c. 33; the Biological and Toxin Weapons



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Convention Implementation Act, S.C. 2004, c. 15, s. 106 [not in force]; and the Chemical Weapons Convention Implementation Act, S.C. 1995, c. 25. However, titular reference to implementation alone is insufficient to give domestic legal effect to all treaty provisions, as discussed below. 43 [1977] 2 S.C.R. 134. 44 Ibid. at 171. See discussion in Kindred, supra note 35 at 207, and van Ert, supra note 31 at 179ff. 45 See, e.g., Currie, supra note 34 at 218; Kindred, ibid. at 207. Although in the latter case, as noted by Kindred, at 207, “the text of the treaty does not become a part of the domestic law; it confers no direct rights and imposes no direct obligations. The source of the rights and obligations is that part of the domestic law that reflects the treaty’s substance.” 46 See, e.g., Kindred, ibid. at 206–7; R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths Canada 2002), at 314–19 [Sullivan]. 47 British Columbia (Attorney General) v. Canada (Attorney General) re An Act Respecting the Vancouver Island Railway, [1994] 2 S.C.R. 41 [Vancouver Island Railway]. 48 Ibid. at paragraph 117. See discussion in van Ert, supra note 31 and Sullivan, supra note 46 at 318ff. 49 Vancouver Island Railway, supra note 47 at para. 117. See also Sullivan, ibid. at 314–19; van Ert, ibid. But see In re Nakane and Okazake, (1908) 13 B.C.R. 370. 50 See, e.g., Sullivan, ibid. at 295. 51 National Corn Growers Association v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 [National Corn Growers]. 52 Ibid. at 1371. See also discussion in Currie, supra note 34 at 220. 53 See, e.g., Pushpanathan v. Canada, [1998] 1 S.C.R. 982 at 1019–20, and discussion in Currie, ibid. at 220; van Ert, supra note 31 at 116–17. These rules are outlined in the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679 (entered into force 27 January 1980), Arts. 31–2. 54 See, e.g., Kindred, supra note 34 at 207. 55 See discussion in van Ert, supra note 31 at 185. 56 Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 at 100. 57 This process is typically characterized as “adoption” or “incorporation,” in contrast to “transformation” of treaty obligations. See, e.g., Currie, supra note 34 at 210; van Ert, supra note 31 at 50, 137ff. 58 Lord Mansfield in Heathfield v. Chilton, (1767) 4 Burrows 2015 at 2016. More recently, see inter alia, Trendtex Trading Corp. v. Central Bank of

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Nigeria, [1977] Q.B. 529 (Eng. C.A.), per Lord Denning, and discussion of judicial treatment of adoption in Currie, ibid. at 201; van Ert, ibid. at 138–42. 59 Supra note 34. 60 For an overview of significant Canadian authorities, see Hape, supra note 32 at paragraphs 37–8, citing inter alia The King v. The Ship North (1906), 37 S.C.R. 385 [The Ship North]; Reference as to Whether Members of the Military or Naval Forces of the United States of America Are Exempt from Criminal Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483; Re Foreign Legations, supra note 31; and Saint John (Municipality of) v. Fraser-Bruce Overseas Corp., [1958] S.C.R. 263. See also the discussion in Pushpanathan, supra note 53, of the customary rules of treaty interpretation, noted above. For discussion of the judicial history of adoption in Canada see, e.g., Currie, supra note 34 at 201–4; van Ert, supra note 31 at 142–50. Both Currie and van Ert suggest that the weight of judicial opinion in Canada supported the doctrine of adoption, even prior to Hape, although differing as to degree. 61 Consisting of McLachlin C.J., and LeBel, Deschamps, Fish, and Charron JJ. 62 Hape, supra note 32 at para. 39. 63 Ibid. at para. 56. 64 See, e.g., discussion in van Ert, supra note 31 at 160. 65 See R. v. Keyn (The Franconia), (1876) 2 Ex. D. 63 (CCCR), and discussion in van Ert, ibid. at 139, 160–3. 66 The dissenting opinion of LaForest J. in R. v. Finta, [1994] 1 S.C.R. 701 [Finta] recognized such a distinction. 67 See van Ert, supra note 31 at 160–3. 68 The Ship North, supra note 60; Jose Pereira E. Hijos, s . a . v. Canada (Attorney General), [1996] F.C.J. No. 1669 at paragraph 22. See discussion of these and other cases in Kindred, supra note 34 at 194–5; van Ert, supra note 31 at 30ff. Here there is an important distinction between international law and foreign law, the latter of which is an issue of fact that must be pled. 69 Permitting exercise of coastal state enforcement jurisdiction in international waters following hot pursuit from internal or territorial waters. 70 The Ship North, supra note 60, at 394. 71 For further academic treatment of this presumption see, e.g., Sullivan, supra note 46 at 421–9; van Ert, supra note 31 at 99ff. 72 Hape, supra note 32 at paragraph 53, citing Daniels v. White, [1968] S.C.R. 517, at 541, and noting R. v. Zingre, [1981] 2 S.C.R. 392 at 409– 10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137; and



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Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, at paragraph 50. With reference to Sullivan, supra note 46 at 422, the majority noted (also at paragraph 53) 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.” This decision does not appear to require a prior finding of statutory ambiguity before using international law as an interpretive aid. This is consistent with recent Court decisions. See, e.g., National Corn Growers, supra note 51 at 1373 (discussed above, and supporting reference to international agreements to assist in “the preliminary stage of determining if an ambiguity exists”). However, previous decisions of the Court and, in particular, United Kingdom judicial treatment of this doctrine, had, at times, suggested the need for such a finding, leading to academic criticism. See, e.g., van Ert, supra note 31 at 122ff. 73 Hape, supra note 32 at paragraph 53. 74 Hape, ibid. at paragraph 54. 75 See, e.g., van Ert, supra note 31, chapter 7. 76 Hape, supra note 32 at para. 56. 77 Bastarache J., writing for Abella and Rothstein JJ, argued strongly against the use of customary international law to inform Charter interpretation, at para. 173. 78 Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 [Slaight Communications], citing his earlier findings in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313. 79 Ibid. at 1056. Also see discussion in Currie, supra note 34 at 223–4; van Ert, supra note 31. 80 Ibid. at 1056–7. 81 See, e.g., R. v. Zundel, [1992] 2 S.C.R. 731; United States of America v. Burns, [2001] 1 S.C.R. 283 [Burns]; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 [Suresh]; and discussion of these and other cases in van Ert, supra note 31, chapter 7. In Suresh, the Court observed with respect to section 7 that “[t]he inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law, including jus

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cogens. This takes into account Canada’s international obligations and values as expressed in ‘[t]he various sources of international human rights law – declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, [and] customary norms’” At paragraph 46, citing, inter alia, Burns, ibid. at paragraphs 79–81. 82 R.S.C. 1985, c. G-3. 83 Ibid., section 2. For example, s. 2(1) of this act provides that “[t]he Geneva Conventions for the Protection of War Victims, signed at Geneva on August 12, 1949 and set out in Schedules I to IV, are approved.” Section 2(2) “approves” Additional Protocols i and ii . Provisions giving effect to aspects of Additional Protocol iii have not yet entered into force. 84 See discussion above. 85 These provisions refer to domestic legislative changes required to implement Geneva Convention obligations, rather than simply reiterating the provisions of the treaties themselves. The latter situation would have been problematic for characterization of the Act as implementing legislation for the Conventions as a whole; as noted by Iacobucci J. in Vancouver Island Railway, supra note 47 at 110–11, in relation to different legislation, “[i]f the ... [scheduled] Agreement was intended to have statutory force, I would find this repetition of contractual provisions in the text of the [Act] to be inexplicable.” 86 For example, s. 4 defines “protected internee” as “a person interned in Canada who is protected by the Geneva Convention set out in Schedule iv.” 87 See Schedule v to the Geneva Conventions Act. 88 In contrast, for example, Schedule IV (incorporating Geneva Convention IV) specifically notes the existence of a Canadian reservation, albeit without its express citation, in a bracketed provision added at the end of the schedule. 89 But see Kindred, supra note 34 at 207, with specific reference to the Geneva Conventions “in toto” as “having thus become a Canadian law [through the Geneva Conventions Act], its text is a direct source of rights and obligations,” although the text offers no further discussion of this point. In Antonsen v. Canada (Attorney General), [1995] F.C.J. No. 259 [Antonsen], Reed J. observed at paragraph 64 that “[c]ounsel for the plaintiffs, on the other hand, refers to the Geneva Conventions Act ... which contains no express declaration that that convention shall be part of Canadian law, and to [Kindred, ibid. (4th ed., 136)]. That text refers to the Geneva Convention as being part of the law of Canada. I note, as counsel for the defendants pointed out, that the Geneva Conventions Act directly incorporates the provisions of the Convention, by independently drafted provisions which form part of the body of the statute which



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follows. Thus, the inclusion of a clause expressly declaring the agreement to be law in Canada is not required.” With respect, however, the Act directly incorporates only a small part of the Geneva Conventions regime within the body of the statute itself, with the remainder appended as schedules. Antonsen notes in paragraph 65 that, in general, “approval” alone is indeterminate. A number of other cases also rest on the presumption of implementation, without substantial analysis of the unique features of the act and its “approval” of scheduled treaties. See, inter alia, Fuentes v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 249, at para. 56 [Fuentes], which, referring to the 1949 Geneva Conventions and their Additional Protocols of 1977, notes that “all of which have been incorporated into and made part of Canadian law ... subject, in one case, to stipulated reservations.” However, Fuentes does not further discuss the basis for this finding or the specific reservation in question. See also Tarnopolsky J.A., in dissent in R. v. Finta, [1992] 92 D.L.R. (4th) 1, noting the implementation of the 1949 Geneva Conventions, albeit with specific reference to war crimes provisions that are directly referenced in sections of the Act itself. Neutral mention of “approval” is found in, inter alia, Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592. 90 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998) [Rome Statute]. 91 S.C. 2000, ch. 24. The preamble provides expressly that this is “[a]n Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts.” 92 Crimes against Humanity and War Crimes Act, ss. 4(1) and 6(1), respectively. The act specifically establishes retroactive jurisdiction with respect to acts committed outside of Canada prior to its coming into force. Such acts were already criminal if committed within Canada. 93 Sections 4(3) and 6(3), respectively. 94 The previous statutory definition of “war crimes,” found in s. 7(3.76) of the Criminal Code, R.S.C. c. C-46, referred only to acts or omissions “committed during an international armed conflict.” This narrow definition was in force in Canada when LaForest J. noted in his dissent in Finta, supra note 66, at para. 23, that for war crimes to occur “[t]here must, of course, be an ‘international armed conflict.’” 95 Sections 4(5) and 6(4), respectively. The act further provides that “[t]his does not limit or prejudice in any way the application of existing or developing rules of international law.” Ibid.

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  96 Criminal Code, s. 83.01(1).   97 Criminal Code, s. 83.02(b). This latter provision mirrors language found in Art. 2(1)(b) of the International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, 9 December 1999. Terrorism for the purpose of the Immigration and Refugee Protection Act has also been addressed in a similar manner by the Supreme Court of Canada in Suresh, supra note 81, at para. 98, citing Art. 2(1)(b) of this Convention.   98 However, this section does not preclude recognition of these acts as offences for other purposes; instead, it simply prevents their prosecution in Canada. In addition, the Charter appears to permit the possibility of direct prosecution for customary IHL offences, not through their adoption into the common law but by virtue of their status as violations of international law. These issues are discussed further below.   99 Section 8(3) of the Criminal Code establishes that “[e]very rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.” 100 S.C. 2001, c. 27 [irpa]. 101 Geneva, 28 July 1951 [Refugee Convention]. 102 Although customary IHL provisions are arguably implicitly included within subparagraphs (b) and (c), this limitation has had an unfortunate impact on the application of IHL in Canadian courts to date, as discussed below. 103 Paras. 35(1)(a) and (b). 104 Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. 105 For example, although enacted in 2000, s. 4(4), 6(4), and 6(5) establish the prior customary international legal status of various principles. See, e.g., Finta, supra note 66, at para. 107–8, for discussion by LaForest J., in dissent, of s. 11(g) effect on retroactive provisions of the Criminal Code. 106 Anti-Personnel Mines Convention Implementation Act, S.C. 1997 c. 33. Section 3 provides that “[t]he purpose of this Act is to implement Canada’s obligations under the [Ottawa Convention].” 107 Biological and Toxin Weapons Convention Implementation Act, S.C. 2004, c. 15, s. 106 [not in force]. Section 3 of the act provides that “[t]he purpose of this Act is to fulfil Canada’s obligations under the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction.”



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108 Chemical Weapons Convention Implementation Act, S.C. 1995, c. 25. Section 4 provides that “[t]he purpose of this Act is to implement Canada’s obligations under the [Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction].” 109 R.S.C. 1985, c. N-5. 110 Section 34 establishes that “[a] person who is under the age of eighteen years may not be deployed by the Canadian Forces to a theatre of hostilities.” This is consistent with Canadian international legal obligations arising from, inter alia, the Convention on the Rights of the Child. 111 S.C. 1909, c. 68. 112 R.S. 1985, c. T-13. See, in particular, paras. 9(1)(f)–(h), protecting the Red Cross, Red Crescent, and Red Lion and Sun, respectively, as well as para. (i) respecting civil defence designation symbols established in Additional Protocol i. 113 For example, the Foreign Enlistment Act, R.S.C. 1985, c. f-28, regulates, inter alia, participation by Canadian nationals in foreign military forces at “war” with friendly states. This act also establishes Governor-in-Council regulatory authority to address, mutatis mutandis, situations of “armed conflict”; however, it does not appear that this authority has actually been exercised. 114 Section 2. 115 S.C. 2000, ch. 24. 116 But see Sumunov v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 73, discussed below [Sumunov]. 117 In particular, most cases address issues relating to exclusion of individuals because of their involvement in war crimes, as provided in the irpa and discussed above. 118 Given the very limited involvement of Canada as a party to armed conflicts over the past half century. 119 Few reported cases explicitly cite “international humanitarian law,” the “law of armed conflict,” the “law of war,” or the “laws of war.” For example, QuickLaw searches of these terms in August 2007 identified only small numbers of individual cases, respectively, 11, 6, 9, and 6; in addition, many of these cases employed more than one of these key phrases. In contrast, “armed conflict” alone resulted in over 150 hits (albeit in the latter instance single cases often resulted in more than one hit). 120 See, e.g., Fuentes, supra note 89. While recognizing, at para. 12, that war crimes are “tied to the existence of an armed conflict,” while crimes against humanity are not, the Court did not conduct a detailed assessment of the meaning of this phrase.

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121 See, e.g., Hinzman v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 521; Hughey v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 522 (re: recent US-led invasion of Iraq). The Supreme Court of Canada did not assess this threshold in any depth in Finta, supra note 66. LaForest J. in dissent, at para. 23, recognized that for “war crimes” to be committed, “[t]here must, of course, be an ‘international armed conflict,’” without further assessment of this threshold (the limitation to international conflicts reflected the relevant Criminal Code provisions at the time). Elsewhere, he noted the “requirement that war crimes involve actions that occurred during a state of war” (para. 51). However, these concepts were not further developed. Cory J., writing for Gonthier and Major JJ., noted that war crimes require “that the actions constitute a violation of the laws of armed conflict” (para. 183). Elsewhere he concluded, at para. 257, that “[t]his was a time of war. The Russian armies were approaching the borders of Hungary. Hungary was in effect an occupied state.” Although the judgment refers to findings at trial, these did not directly address the threshold for IHL application. 122 For example, the majority of the Court Martial Appeal Court (Decary J.A., with the concurrence of Strayer C.J.) in R. v. Brocklebank, (1996) 134 D.L.R. (4th) 377, at para. 54, concluded that the Geneva Conventions did not apply to the Canadian Forces peacekeeping mission in Somalia, on the basis that “[t]here is no evidence that there was a declared war or an armed conflict in Somalia, let alone that Canadian Forces were engaged in any conflict.” At footnote 32, the Court concluded that the Secretary of State for External Affairs had, at that time, the authority to issue a certificate establishing the existence of an armed conflict, and, with “[n]o such certificate having been filed in this case, this Court is simply not at liberty to assume the existence of a state of war or of an armed conflict in Somalia. Without such evidence, the Convention cannot be said to be applicable.” Similarly, the Federal Court in Sumunov, supra note 116, determined that IHL did not apply in the context of the case without further addressing this threshold. 123 For example, Fuentes, supra note 89, notes this distinction, without detailed assessment of the differences in applicable law (nonetheless, this decision makes a clear and important distinction between armed activities directed against military forces and those directed against civilians). See, e.g., para. 65. See also Lebedev v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 975 (discussing IHL in context of Chechnya). 124 See, e.g., Sinnappu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 173.



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125 See, e.g., Ventocilla v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 773 (although in obiter dicta relating to acts committed between 1985 and 1992). Ventocilla itself relies upon the 2000 judgment of the Federal Court in Bermudez v. Canada (Minister of Citizenship and Immigration), 2000 F.C.J. No. 860, in which MacKay J. held that “[i]n my opinion, ‘war crimes’ have come to be understood internationally in the context of international conflict. The foundation documents for the concept of the international ‘war crime’ are the London Agreement of 8 August 1945 and the Charter of the International Military Tribunal. … Article 6 of the Charter defines crimes against peace, crimes against humanity, and war crimes: ‘… (b) War Crimes: namely, violations of the laws or customs of war. Such violations include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity ...’ While the definition of war crime [in the Charter of the International Military Tribunal at Nuremberg] does not specifically state that it has to take place in the course of an international armed conflict, the context in which it appears in the Charter suggests this is so. An inhumane action that would be a war crime during war time may well be a crime against humanity in the absence of international war. In this case, the alleged activities of the applicant have to do with the mistreatment of prisoners in the course of a civil war. The ill-treatment of civilians as a war crime is limited to crimes against the population of or in the territory of a country other than that of the perpetrator, in the course of an international war. This was not the case here.” Bermudez was decided prior to the establishment of the ICTY and the ICTR, and the entry into force of the Rome Statute. As noted above, these developments had a significant impact on IHL as it applies to noninternational armed conflict, in particular establishing a clear basis for finding individual criminal responsibility in this context. This narrow definition is consistent with Criminal Code s. 7(3.76), repealed in 2000 with the enactment of the Crimes against Humanity and War Crimes Act. This earlier act defined as war crimes only proscribed acts or omissions “committed during an international armed conflict.” However, while this section arguably displaced broader customary and treaty definitions of “war crimes” for the purpose of domestic criminal prosecution in Canada, there is little reason to consider it to have displaced the application of

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broader international definitions of these crimes in other circumstances. In particular, this domestic provision should not have prevented the use of international treaty and customary understandings of war crimes for the purpose of immigration and refugee proceedings; in this context, it should be open to Canadian courts to recognize that war crimes could result from acts and omissions committed in internal conflict, at least as early as 1991. 126 The judgment of the Supreme Court of Canada in Finta, supra note 89 is an exception to this rule; in particular, the judgment of Cory J., writing for Gonthier and Major JJ., cites national and international judicial decisions relating to the defence of superior orders. See supra note 66, at paras. 226ff. In the refugee context, the absence of customary IHL application may in part be explained, albeit not justified, by the particular wording of the Refugee Convention. Cited and implemented in a schedule to the irpa, this treaty denies refugee status to an individual who has committed a war crime “as defined in the international instruments drawn up to make provision in respect of such crimes.” Refugee Convention, Article 1(F)(a). This statutory language militates against the broad application of customary IHL. However, the concept of “international instruments” extends beyond treaties to incorporate other international documents, in particular the statutes of the ICTY and the ICTR. These ad hoc tribunals were established directly by the Security Council as Chapter VII enforcement measures, rather than through multilateral treaty negotiations; nonetheless, the UN High Commissioner for Refugees recognizes that their statutes are “international instruments” for the purposes of refugee exclusions. See, e.g., UNHCR, “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1(F) of the 1951 Convention relating to the Status of Refugees,” UN Doc. HCR/GIP/03/05, 4 September 2003, at para. 10. The Supreme Court of Canada has recognized the authoritative, albeit non-binding, nature of such UNHCR pronouncements. See, e.g., Chan v. Canada (Minister of Employment and Immigration), [1995] S.C.J. No. 78, at para. 46 (re: UNHCR Handbook). Arguably, then, this statutory language should not have precluded the exclusion of individuals responsible for customary IHL-based internal war crimes by virtue of the characterization of these acts or omissions as either “contrary to the purposes and principles of the United Nations” or as non-political crimes. These latter two grounds for exclusion are also expressly established in paragraphs (b) and (c) of the Refugee Convention, Art. 1(F), as scheduled to the irpa. Despite its applicability to these matters, it appears that in general Canadian courts



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addressing refugee issues have not explicitly relied upon customary IHL when addressing these issues. 127 See, e.g., Mugesera, supra note 3; Petrov v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 621. 128 See, e.g., Petrov, ibid. (re: Chechnya). See above for discussion of the differences between international criminal law and IHL. 129 Désiré Munyaneza, a Rwandan national, faces seven criminal charges, including three relating to alleged commission of war crimes. He was arrested in 2005. Criminal proceedings in Montreal are ongoing. 130 For example, to determine whether the act in question was contrary to IHL principles. As noted above, acts committed in compliance with IHL are excluded from the definition of “terrorist activity” under the Criminal Code. 131 For example, this distinction will be important when addressing legal issues arising from the ongoing conflict in Afghanistan. Here, the military operations of the Canadian Forces have arguably led to their participation in both international and non-international armed conflict at different times. 132 Mugesera, supra note 3. 133 These developments have substantially undermined the strength of LaForest J’s criticism, in his dissent in Finta, supra note 66, where he argued, at para. 13, that “while some of these crimes [war crimes and crimes against humanity] have been given a considerable measure of definition in international documents, as a whole they have not been reduced to the precision one finds in a national system of law.” 134 Ibid. at para. 126. 135 Here, the distinction between mandatory and permissive customary international law may be of significance. While this issue warrants further study, it is clear that some provisions of IHL are mandatory and others permissive. 136 The Court in Suresh, supra note 81, at para. 78, observed that “[a] violation of s. 7 will be saved by s. 1 ‘only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like,’” citing Re b.c. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 518; and New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99.

11 Letting the Elephants Watch the Mice: The Surrender of Canadian Anti-Bribery Legislation to American Jurisdiction DWIGHT G. NEWMAN Within the broader scope of this volume, in this chapter I examine one small treaty, but one that has interesting dimensions and important applications. Canada’s failure to implement its international law commitments in the context of obligations to prohibit foreign bribery by Canadian actors does not stand as a simple failure to implement international law. It manifests a more complex phenomenon, which is the filling of a sort of void in the exercise of jurisdiction with another state’s exercise of jurisdiction. I seek to establish these claims and to consider some of their implications concerning unexpected ways in which international law becomes implemented in Canada, albeit in ways that, through Canada’s own failure to implement international law, imply a gradual undermining of Canadian sovereignty – not through international law, as is sometimes facilely asserted, but through a failure to implement international law. In part 1 of this chapter, I will detail how, despite the OECD Convention on Bribery1 and ongoing efforts as detailed in the relevant OECD reports on its performance,2 Canada has failed to enforce adequately its Corruption of Foreign Public Officials Act (cfpoa ).3 My main claim, though, is not concerned simply with establishing that failure but with examining specific implications in terms of the reach of the U.S. Foreign Corrupt Practices Act (fcpa),4 which, in part 2, I will argue has in fact begun to regulate Canadian firms in certain respects. Indeed, I will seek to offer a model of the economic pressure on Canadian firms to comply with the American legislation and to use that model to show some implications of altering



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various assumptions. In part 3, I will turn to some of the implications for Canada of this mode of indirect “implementation.”5

n o n - e n f o r c e m e n t a n d c a n a d a’ s f a i l u r e t o i m p l e m e n t a n t i - b r i b e ry c o m m i t m e n t s Canada ratified the OECD Convention on Bribery on 17 December 1998, thereby voluntarily undertaking treaty responsibilities under the convention. Whether certain anti-bribery obligations have a customary international law character thus need not be a subject of discussion here, for there is no doubt that Canada is under treaty obligations on the matter. Shortly before ratification, Canada adopted implementing legislation in the form of the cfpoa .6 Considered at a simple level, the enactment of the cfpoa responds to Canada’s international legal commitments in the area. The key provision of the convention provides that state parties “shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.”7 Canada’s cfpoa carries out this requirement by making it an indictable offence when any person “in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official (a) as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or (b) to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.”8 Although the cfpoa includes some language establishing exceptions and requirements not specifically mandated under the convention,9 these exceptions and requirements are largely consistent with those contained in other states’ legislation10 and are not generally in fundamental tension with the convention.11

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Early OECD reports on Canadian implementation were generally commendatory of the Canadian legislation.12 However, the Working Group on Bribery has now begun to express greater skepticism about Canadian implementation, specifically focusing on a lack of investigations and prosecutions.13 In a June 2006 report, the Working Group notes that there has thus far been one conviction for a violation of the cfpoa and that “the absence of more cases is surprising given the extent of Canada’s international economic engagement.”14 This absence of cases could in theory be due to an absence of offences committed rather than to non-enforcement of the legislation. However, this possibility seems unlikely. There were pre-cfpoa allegations of bribery of foreign officials by Canadian firms in the energy, mining, and aircraft industries,15 and a Canadian firm was convicted in Lesotho in relation to bribery offences in connection with the Lesotho Highlands Water Project.16 Although there is some evidence of larger Canadian corporations seeking to develop compliance policies since the enactment of the cfpoa ,17 there is also evidence of a widespread lack of awareness of the legislation amongst small and medium-sized enterprises18 or, where businesses are aware of it, perceptions that the probability of prosecution is low.19 The appropriate inference, then, from the lack of prosecutions would seem to be a lack of enforcement of the legislation.20 Although Canada has “implemented” international law in a certain technical sense in that it has established legislation purporting to implement its international treaty obligation, it has failed to “implement” international law in the sense of genuinely enforcing it. This may be no fault of legislators (though they control budgetary resources that may affect abilities to prosecute) and may stem from executive decisions concerning priorities or from various institutional factors, but it remains nonetheless a Canadian failure to implement international law on bribery.

the reach of american legislation The conclusion reached in part 1 is certainly of some interest. However, perhaps even more interesting is that despite Canadian non-implementation of international law in this area, Canadian firms are potentially becoming increasingly subject to international law on bribery. To understand the American legislative mechanism by which this is occurring is to grasp a richer sense of the international legal order.



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The fcpa is of longer standing than anti-bribery legislation elsewhere in the world and, indeed, American pressure was vital to the development of the OECD Convention.21 The fcpa makes it “unlawful for any domestic concern ... or for any officer, director, employee, or agent of such domestic concern ... to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, [or] promise to pay ... anything of value to ... (3) any person, while knowing that all or a portion of such money ... will be offered, given, or promised, directly or indirectly, to any foreign official ... for purposes of (A)(i) influencing any act or decision of such foreign official ... in his ... official capacity.”22 There are of course further wrinkles to the legislative requirement in itself, with extensive jurisprudence having developed in the context of prosecutions over the years.23 What is interesting for present purposes is that whereas the Canadian legislation has been enforced to only a very limited degree, the American legislation has been enforced significantly over the years and, indeed, now vigilantly and with creative applications of the legislative provisions.24 These creative applications have developed within the U.S. Justice Department with little resistance from defendants; in the present environment, to challenge the Justice Department’s interpretation of the offence in the courts is to face in the process a significant degree of negative publicity, so defendants typically reach plea bargains that leave the Justice Department’s interpretations unchallenged.25 Canadian firms may be subject to the American legislation in a simple sense if their activities fall within the scope of the American legislation.26 Indeed, American prosecutors have shown some readiness to extend the application of the fcpa beyond American borders. In several recent cases, U.S. prosecutors have pursued corruption charges against individuals with no obvious connection to the United States at all,27 and there have been more general trends to interpreting the fcpa so it applies to foreign subsidiaries in ways not envisioned when the legislation was last amended.28 However, the application of the fcpa to non-American firms may also take place in yet more interesting forms. In particular, under an emerging doctrine of “successor liability,” U.S. prosecutors may prosecute an American domestic corporation that acquires a foreign entity that has committed what would have been a breach of the fcpa had the fcpa applied to it.29 This successor liability may be

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premised in part on a theory that the acquisition effectively reimburses the owners of the acquired company for their past bribery, whose benefits now accrue to the acquiring firm.30 On such a chain of reasoning, the doctrine of successor liability becomes a way of closing an otherwise potentially effective loophole in the fcpa, although the application of that rationale to various circumstances will of course be more nuanced. The doctrine will have further complications, but for the moment we can use this simplified description of it to note the effect of the American fcpa within the context of an international mergers and acquisitions market. Thus, aside from the possibility of direct application of the fcpa to Canadian firms in certain circumstances,31 past conduct that could give rise to successor liability under the fcpa, possibly even when committed by a Canadian firm that would not otherwise have been subject to the fcpa,32 can now become a liability carrying forward to an American successor firm. The effect is a devaluation, to a degree, of the firm that has engaged in this conduct.33 A Canadian firm that sees any prospect of being subject to an American acquisition in future is effectively under market pressure to avoid any fcpa successor liability. This market pressure, though, is more nuanced than this first description may suggest. The model basically states that a firm subject to the fcpa (typically a potentially acquiring American firm) will need to take account of fcpa successor liability in its readiness to make an offer for any firm it seeks to acquire. The result is that a firm displaying signs of potential fcpa issues34 will be subject, all other things being equal, to a discounting of its price through an effect on the readiness of some potential acquiring firms to acquire it at a given price. The implications, however, are complex. For example, other things being equal, the U.S. fcpa will exert greater influence to the extent that the American role in the international mergers and acquisitions market is more significant and will exert less influence to the extent that the American role in the mergers and acquisition market is seen as less significant. This functions both generally, at the level of the American role in the international economy, and more specifically, at the level of a particular economic industry. If within a particular industry American players have less of a perceived role, the impact of the U.S. fcpa will presumably be lessened, something that becomes a very live possibility in certain industries or under certain economic conditions. These market



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pressures are effective, moreover, only to the extent that a particular type of firm foresees a possible interest in later being subject to an acquisition; if a firm can gain a competitive advantage by being involved in bribery, it might conceivably choose simply to make use of that competitive advantage and generate profits without worrying about later acquisition issues. In this context, the Canadian legislation, even if not enforced and/ or perceived as not enforced, may gradually begin to exert some influence. If Canadian firms begin to see the potential for the Canadian legislation to be enforced, with this potential possibly being reinforced by observable prosecutions under the fcpa, the same kinds of market mechanisms may lead them to begin taking the cfpoa obligations more fully on board. Indeed, the mere presence of the legislation has some pedagogical force35 and, together with any impacts from the American market mechanism, is already encouraging some – primarily, though not exclusively, larger – Canadian firms to develop practices and processes concerned with developing antibribery mechanisms.36 Thus, although the Canadian legislation appears underenforced, a combination of law in other states and various market mechanisms mean that Canadian firms may nonetheless be gradually coming into compliance.

international legal pluralism, s o v e r e i g n t y, a n d o t h e r i m p l i c a t i o n s What began as a simple matter of Canada not enforcing the legislation that would have implemented its international legal obligations on bribery is thus more complex. In modern circumstances, despite Canadian non-enforcement of international law, it may nonetheless be enforced by other states against Canadian corporations, and market mechanisms may also help to implement international law. This conclusion implies the possibility of a somewhat thoroughgoing international legal pluralism in which actors are subject to international law implemented through a variety of mechanisms. Although Canada has “implemented” international law on antibribery obligations under the OECD Convention, in that it has established implementing legislation, the real implementation of such obligations on Canadian firms is occurring through other mechanisms. Legislation in the United States can help to enforce international law in Canada, as can the private sector. None of this, of course,

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should be surprising, for international law has always developed and become diffused in complex ways. To acknowledge the existence of alternative mechanisms achieving implementation of international law vis-à-vis Canadian firms even in the context of Canadian non-enforcement of Canada’s own implementing legislation, then, is not to let Canada off the hook, as it were. Canada remains subject to its treaty obligations, and an effective, even-handed implementation of our international law obligations will depend on stronger Canadian action. Resulting recommendations to the relevant Canadian government departments include launching more thoroughgoing educational efforts on the cfpoa for Canadian prosecutors, taking steps in resource allocations and internal priority development to encourage pursuing cfpoa prosecutions where warranted and then disseminating information concerning these prosecutions, and considering possibilities of using confiscation of proceeds of crime to provide resources for cfpoa prosecutions.37 At the same time, the Canadian private sector may have a role in promoting compliance as well, and resulting recommendations to private sector firms already adopting best practices for compliance with anti-bribery obligations might include publicizing their compliance practices.38 To do so will arguably come at no disadvantage to those firms but, rather, will bring public relations advantages, while simultaneously pressuring competitor firms to adopt similar practices. Some observers might challenge the realism of these recommendations, arguing that there will be ongoing competitive pressures on firms and, indeed, on the Canadian government itself to take competitive advantage of avoiding stringent implementation of antibribery policies. There were long debates in the United States after it implemented the fcpa decades before other Western states accepted the U.S.-backed OECD Convention, with some asserting that it put American firms at a competitive disadvantage.39 However, even throughout those debates, it was observed simultaneously that the legislation may have helped American firms limit their costs, since they could refuse to pay bribes when they were demanded.40 Moreover, to the extent that some firms adopt practices designed to comply with anti-bribery obligations, if there are competitive advantages to bribery practices, the compliant firms will be a source of pressure on the government to ensure that all firms operate on a level playing field.41 In addition, there are interests of national reputation in being seen as a



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state that complies with anti-bribery obligations.42 Thus, there are grounds for thinking there can be sufficiently significant support for fuller implementation through enforcement. To the extent that fuller implementation through enforcement does not occur but that international law is being implemented anyway, the potential for implementation of international law against Canadian corporations through a pluralistic legal order actually calls into question one of the assumptions with which some observers begin their discussions of international law – the assumption that Canadian implementation of international law is a sort of surrender of Canadian sovereignty. If international law will nonetheless apply against Canadian actors, Canadian implementation may be the sovereign response that helps to implement international law with respect to Canadian actors in a distinctively Canadian way, a response that declines to leave implementation to the values and mechanisms of foreign states.

notes I thank Erin Lalonde for helpful research assistance on this paper. I also thank Chi Carmody and Valerie Oosterveld for bringing together the Canadian Council on International Law conference at the University of Western Ontario at which I presented an earlier draft of this chapter, and Michael Byers, Robert Currie, Hugo Cyr, Maureen Irish, Margaret Martin, and Christopher Penny for helpful comments and discussion. 1 oecd Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997, Can. T.S. 1999 No. 23, 37 I.L.M. 1 (entered into force 15 February 1999) [oecd Convention]. 2 See especially OECD Directorate for Financial and Enterprise Affairs, Working Group on Bribery in International Business Transactions, Canada: Phase 2: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions (25 March 2004) [oecd Phase 2 Report on Canada, 2004]; OECD Directorate for Financial and Enterprise Affairs, Working Group on Bribery in International Business Transactions, Canada: Phase 2: Follow-Up Report on the Implementation of the Phase 2 Recommendations on the Application of the Convention and the 1997

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Recommendation on Combating Bribery of Foreign Public Officials in International Business Transactions (21 June 2006) [oecd Phase 2 Report on Canada, 2006]. 3 Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 [cfpoa ]. 4 Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1 et seq. (1977) [fcpa]. 5 To be clear, I do not discuss in this paper issues related to the United Nations Convention against Corruption, which was adopted by the UN General Assembly in 2003: GA Res. 58/4, UN GAOR, 58th Sess., UN Doc. A/58/422 (2003) (entered into force 14 December 2005). This Convention has been ratified by 121 states (including Canada) as of August 2008. It is immensely significant in the kind of international cooperation mechanisms it provides, but it is more concerned with states prohibiting corruption at a national level as opposed to prohibiting foreign corruption by actors connected to a state, as are the oecd Convention on Bribery and the Canadian cfpoa . 6 Supra note 2. For a helpful introduction to the Canadian legislation, see A.T. Martin, “Canadian Law on Corruption of Foreign Public Officials” (1999) 10 N.J.C.L. 189. 7 oecd Convention, supra note 1, Art. 1:1. 8 cfpoa , supra note 3, s. 3(1). 9 cfpoa , supra note 3, s. 3(4) (establishing an exception for “facilitation payments”), s. 3(3)(b) (establishing an exception for “reasonable expenses” related to promotion of products or the performance of a contract); ss. 2 and 3(1) (through their combined effect creating a requirement that a bribe have been in the course of business for profit). 10 See oecd Phase 2 Report on Canada, 2004, supra note 2 at 26–30. 11 Ibid. There were concerns on some other points, such as the limited scope of Canadian territorial jurisdiction: ibid. at 34. Robert Currie discusses related issues elsewhere in this volume, showing how these concerns may have arisen from mistaken readings of the Canadian jurisdiction jurisprudence. 12 This was the case certainly up to oecd Phase 2 Report on Canada, 2004, supra note 2. 13����������������������������������������������������������������������������� There has been only one conviction under the legislation, that of the president and an employee of Red Deer-based Hydro Kleen Group Inc., who pleaded guilty to bribing a U.S. immigration officer at the Calgary International Airport. For a description, see dfait , Corporate Social Responsibility – Bribery and Corruption, Sixth Report to Parliament, online at Trade Negotiations and Agreement .



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14 oecd Phase 2 Report on Canada, 2006, supra note 2 at 1. One may note a similar evolution in Transparency International Reports on Canada’s implementation of the oecd Convention. A report card on Canada’s compliance initially suggested satisfactory performance on most heads and referred to indications of several (minor) investigations that had been carried out: 2007 ti Progress Report Card on oecd Convention Enforcement – Canada, online at Transparency International – Canada . But see F. Heimann & G. Dell, Progress Report 07: Enforcement of the oecd Convention on Combating Bribery of Foreign Public Officials (Berlin: Transparency International 2007) [Heimann & Dell] (a more recent, farther-reaching international report on compliance groups Canada in poor company, stating that “there have been no significant prosecutions in three other major exporters: Japan, the United Kingdom, and Canada. Because the convention is based on a collective commitment to end foreign bribery, until all the major exporters play by the same rules, the success of the convention remains in doubt,” at 6). 15 oecd Phase 2 Report on Canada, 2006, supra note 2 at 6n. 16 For some discussion, see J. Hatchard, “Combating Transnational Crime in Africa: Problems and Perspectives” (2006) 50 J. Afr. L. 145. 17 oecd Phase 2 Report on Canada, 2004, supra note 2 at 10 (discussing the adoption of compliance codes within larger corporations, often with longer experience with the American legislation to assist them). 18 Ibid. at 9. 19 oecd Phase 2 Report on Canada, 2006, supra note 2. 20 Cf. the scathing statement of this in Heimann & Dell, supra note 14 at 6. 21 See, e.g., M. Pieth, “Introduction” in M. Pieth, L.A. Low & P.J. Cullen, eds., The oecd Convention on Bribery: A Commentary (Cambridge: Cambridge University Press 2007) 1 at 8–9 (discussing U.S. efforts to internationalize anti-bribery obligations due to concern by U.S. businesses that they would otherwise operate at a competitive disadvantage); D.P. Ashe, “The Lengthening Anti-Bribery Lasso of the United States: The Recent Extraterritorial Application of the U.S. Foreign Corrupt Practices Act” (2005) 73 Fordham L. Rev. 2897 at 2908–14. 22 fcpa, supra note 4, § 78dd-2(a). 23 For a helpful overview, see, e.g., B.A. Sanders, “Foreign Corrupt Practices Act – Antibribery Provisions,” in V.P. Nanda, ed., The Law of Transnational Business Transactions, looseleaf (New York: Clark Boardman Company 1981) 18–1 [Sanders]. 24 See, generally, J.F. Marceau, “A Little Less Conversation, a Little More Action: Evaluating and Forecasting the Trend of More Frequent and

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Severe Prosecutions under the Foreign Corrupt Practices Act” (2007) 12 Fordham J. Corp. & Fin. L. 285 [Marceau]. See also D. Newcomb, fcpa Digest of Cases and Review Releases relating to Bribes to Foreign Officials under the Foreign Corrupt Practices Act of 1977, online at Shearman & Sterling showing an increasing rate of prosecutions in recent years; H. Gonzalez & C.O. Sokenu, Foreign Corrupt Practices Act Enforcement after u . s . v. Kay (Washington: Washington Legal Foundation 2006) (indicating, e.g., at iii, 2, 15, the intensification of U.S. SEC enforcement action related to the fcpa) [Gonzalez & Sokenu]. 25 Marceau, ibid. at 287. 26 See generally R.A. Bassett, “Canadian Companies Beware: The U.S. Foreign Corrupt Practices Act Applies to You!” (1998) 36 Alta. L. Rev. 455 [Bassett]. 27 See, e.g., Marceau, supra note 25 at 293 (describing the NatWest Three case). 28 Marceau, ibid. at 294–5 (discussing the DPC case). See also generally Ashe, supra note 21. 29 Marceau, ibid. at 302–4. The U.S. authorities may refrain from prosecution if the acquiring company establishes a sufficient program in light of past bribery discovered during pre-acquisition due diligence. Thus, the Department of Justice issued an opinion indicating it would not prosecute in a case where a company requested an opinion concerning its acquisition of another company but undertook a number of steps to deal with the past bribery payments: United States Department of Justice, FCPA Opinion Procedure Release 2003–01 (15 January 2003), available at (accessed 30 September 2007). See also J.G. Martin, Compliance with the Foreign Corrupt Practices Act of 1977 in the Post-Sarbanes-Oxley World (Houston: Winstead, Sechrest & Minick P.C. 2004) at 41–2 (discussing U.S. Department of Justice approaches in a case involving development of a joint venture with a French company that had paid bribes in the past without violating then-existing French law); R.S. Bennett, G. DiBianco, & C.P. Mahoney, “Recent DOJ and SEC Settlements Illustrate the Importance of Anti-Corruption Compliance in the Context of Acquisition Transactions” (March 2007) 11:3 The M & A Lawyer 1 (describing several recent settlements showing applications of successor liability).



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30 There is no doubting the existence of parent company liability under the fcpa: L. Brown, “Parent-Subsidiary Liability under the Foreign Corrupt Practices Act” (1998) 50 Baylor L. Rev. 1. In one sense, successor liability is simply an extension of parent company liability. Cf. also Marceau, supra note 24 at 303. 31 Among others, the fcpa applies to Canadian companies registered with the U.S. Securities and Exchange Commission (S E C ). See generally Bassett, supra note 26, for a longer list of situations in which the U.S. legislation applies directly to Canadian firms. 32 See the discussion in note 29, supra. 33 Consider that when Lockheed Martin Corporation discovered past bribes paid by Titan Corporation to the government of Benin to assist a Titan subsidiary in obtaining contracts, Lockheed Martin sought steps by Titan to address the resulting fcpa allegations, and when Titan could not do so, Lockheed Martin terminated its acquisition of Titan: see Powell Goldstein International Practice Group fcpa Client Alert, Record Fines Imposed on Titan for Violating the fcpa, online: Powell Goldstein LLP < http://www. pogolaw.com/articles/1456.pdf >. 34 This might even apply to a firm not having sufficient internal controls to prevent fcpa violations. The lack of internal controls has become a major factor in fcpa enforcement: Gonzalez & Sokenu, supra note 24 at 30–2. 35 It has led to articles warning of potential consequences if firms fail to comply: see, e.g., J.M. Klotz, “Corruption Legislation Should Not Be Overlooked for Exporting Companies” Lawyers Weekly (13 October 2006) (using the American prosecutions to warn of potential future consequences under the Canadian cfpoa ); V. Krishna, “Corruption Payments and Legal Obligations” Lawyers Weekly (21 September 2007). 36 See, e.g., oecd Phase 2 Report on Canada, 2004, supra note 2 at 10 (discussing the adoption of compliance codes within larger corporations, often with longer experience with the American legislation to assist them). 37 This is possible because of the inclusion of cfpoa offences among the “designated offences” within the proceeds of crime provisions of the Criminal Code: Criminal Code, R.S.C. 1985, c. C-46, s. 462.3(1). There seem to be ongoing possibilities of using funds derived from proceeds of crime prosecutions to provide resourcing for prosecutions. That said, there have been criticisms of such tactics in the money-laundering arena, where there have been limited recoveries and worries about the incentives offered by the funds within proceeds of crime prosecutions: M.E. Beare & S. Schneider, Money Laundering in Canada: Chasing Dirty and Dangerous Dollars (Toronto: University of Toronto Press 2007) at 306–8.

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38 It has already become easy to access the full policies of some American firms who have made these publicly available: e.g., Willbros Group, Inc., Foreign Corrupt Practices Act Compliance Program and Manual (March 2005); Grant Prideco, Inc., Corporate Compliance and Business Ethics Manual (June 2005) at 10–11; Devon Energy, Inc., Foreign Corrupt Practices Act Compliance Policy (December 2003); Entrust, Foreign Corrupt Practices Act Policy (December 1998, revised March 2004); Tenneco, Corporate Compliance Policy Manual: Foreign Corrupt Practices Act (February 2003); Ennis, Inc., Foreign Corrupt Practices Act Compliance Policy, online: Ennis, Inc. Investor Relations . A search for Canadian compliance policies is significantly less fruitful, although Talisman Energy does make some less-detailed references on its website to compliance provisions within the Talisman Policy on Business Conduct and Ethics. 39 See, e.g., Sanders, supra note 23 at 18-1ff. 40 See generally K.E. Davis, “Self-Interest and Altruism in the Deterrence of Transnational Bribery” (2002) 4 Am. L. & Econ. Rev. 314. 41��������������������������������������������������������������������������� On private firms suing other firms who have engaged in bribery, see generally E.S. Burger & M.S. Holland, “Why the Private Sector Is Likely to Lead the Next Stage in the Global Fight against Corruption” (2006) 30 Fordham Int’l L.J. 45. 42������������������������������������������������������������������������ The American legislation originated substantially in embarrassment concerning American firms’ bribery being exposed in several incidents before the fcpa was adopted.

12 Confidential Information and PrivacyRelated Law in Canada and in International Instruments MARGARET ANN WILKINSON

introduction With rapid changes in technology and communications spurring globalization and the increasing value of information, any demonstrated international consensus around issues central to these changes cannot be independent of power struggles and coercion between nations and multinationals. The history of international intellectual property instruments illustrates shifting international views on technology and communication as globalization has evolved and the value of information in the new world economy has become evident.1 This shift has occurred simultaneously with the realization of a borderless communication world and virtual communities. More and more individuals in every society find themselves involved with intellectual property interests that in the industrial age were in the purview of, and preoccupied, relatively few. As intellectual property becomes more democratized in its reach and impact through the new technology and new mass media, its increasing diffusion brings it more frequently into the realm of other interests and values that are the subject of international attention, including privacy, education, and access to information.2 The novelty and increasing frequency of these intersections should give nations pause before they pursue single-mindedly intellectual property strategies that proved useful in the industrial era.3 Where intellectual property policies have been developed in virtual isolation from ­consideration of intersections with other areas of law and where

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countries have bound themselves to such policies before recognizing or evaluating these intersections, it would seem prudent to put off implementation of undertakings given in the intellectual property sphere.4 This chapter will explore these themes with a particular focus on the emerging area, claimed as intellectual property in international instruments, of confidential information. It will explore the intersection between this putative form of intellectual property and the development of personal data protection (which is a reaction to increased concern over privacy values).

confidential information as i n t e l l e c t ua l p ro p e rt y The term “intellectual property” was not known when the earliest intellectual property devices came into the law.5 Trademark, arguably the earliest of the devices, has its antecedents in antiquity, in the craftspersons’ mark. Patent and copyright, however, arise directly from the industrial and print revolutions.6 These three categories form the most widely recognized triumvirate in intellectual property – but they were more frequently separated in the nineteenth century than they are in the popular mind today. Trademark and patent were recognized as “industrial property,” whereas copyright was generally considered on its own. Patent and copyright were the result of a relatively long line of social, and hence legal, experimentation with attempts to intervene and control various markets.7 Patent was an exception to a general prohibition against national monopolies: it was recognized that the investments in technology required to advance an industry in the industrial age merited a guarantee of reward.8 Copyright was also developed as an incentive to the industrial middleman to invest in the technology necessary to compete in the age of the press.9 Trademark, on the other hand, appears to have developed more or less as a very early form of consumer protection law.10 But over the years all three have had in common a public interest aspect that continues to distinguish them from other forms of property interest.11 For example, in patent, the Supreme Court of Canada has twice recently reiterated that two of the central objectives of the Patent Act are “to advance research and development and to encourage broader economic activity.”12 Justice Binnie has been explicit about this process: “Having disclosed to the public the secrets of how to make



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or use the invention, the inventor can prevent unauthorized people for a limited time from taking a “free ride” in exploiting the information thus disclosed. At the same time, persons skilled in the art of the patent are helped to further advance the frontiers of knowledge by standing on the shoulders of those who have gone before.”13 Both patent and copyright are limited-term monopolies, after which the inventions and works to which they pertain enter into the normal competitive marketplace. In patent, the information about the invention is required to be published immediately, to advance the state of knowledge in the area of the invention, even though the right to manufacture, sell, use, and distribute the invention is held in the monopoly for a period of years. In copyright, the ideas and facts that are contained in an expression circulate freely in society throughout the period of the copyright monopoly: only certain uses of the expression of those ideas and facts are limited to the monopoly holder. Of course, not being held in a monopoly does not necessarily mean that it will be possible to access the information for free, but rather it opens up the market to other suppliers of the same expression, which is “an opportunity to produce new editions at a cheaper price and hence with wider circulation.”14 Making expressions available to the public actually occurs more through depository schemes,15 through access legislation, and through such mechanisms as Canadian content regulations in broadcasting, than through the presence or absence of copyright protection. But certain uses of a copyrighted work have not been traditionally included in copyright and are thus always available to the public if the work is available in any form – for example, reading a literary work. In trademark, the entire value of the mark rests with the public’s recognition of it and association of it with particular goods: if the mark is unrecognized or no longer associated in the public eye with particular goods, then the mark cannot be defended by its owner against any other user. What, on the other hand, is the public interest in the protection of confidential information? If no public interest can be identified, then what is the theoretical or philosophical link that binds its protection to the other types of intellectual property? One might point to the fact that works, inventions, marks, and secrets are all products of the mind, of the intellect. In this respect, confidential information finds itself perhaps more closely bound to the ideas and facts that are not the subject of copyright than to the expressions that are so subject.

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And the subject matter of confidential information may find itself more often identified with the disclosed information about a patentable invention than with any other aspects of the device of the patent. Furthermore, in defining itself as a product of the mind, confidential information allies itself with many areas of information law that are not defined as intellectual property, such as privacy, libel, and so on. The Supreme Court has clearly shied away from characterizing the protection of confidential information as related to property,16 because “the action is rooted in the relationship of confidence rather than the legal characteristics of the information confided.”17 Without a clear philosophical underpinning, Canada may wish to be somewhat cautious about binding international commitments to such an “intellectual property” device. Canada might wish to be even more cautious when the device of confidential information protection has only a comparatively short history in domestic law.18 Canada’s first clear recognition of confidential information protection was in 198919 – and the Supreme Court did not take the immediate opportunity to pronounce the existence of a cause of action in this regard: it did so only when no other new or old device presented itself.20 Since 1989, Canadian courts will recompense the confider for a breach 1 if the subject matter was secret or non-public – and then only – 2 if transmitted in circumstances of confidentiality – and then only – 3 if the information would save the confidante time, energy, and expense and is used in an unauthorized fashion to the detriment of the confider.21 The current Canadian “device” for protection of confidential information has at least three challenges that set it apart from the traditional intellectual property devices developed in the past: it is a product of judicial decision rather than legislative action22 and thus at this point cannot be reviewed under the Canadian Charter of Rights and Freedoms;23 it is an unbounded monopoly that, if the conditions of confidentiality are maintained, can last forever (unlike patent or copyright); and it would appear to have no element of public interest, other than indirectly in terms of the arguable general public interest in the success of the national economy (including the national economy’s interaction with the success of multinational and foreign businesses).



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c a n a da i n t h e i n t e r n at i o n a l i n t e l l e c t ua l p ro p e rt y e n v i ro n m e n t for confidential information The Paris Convention The Paris Convention for the Protection of Industrial Property was signed in 1883 and came into force in 1884. It initiated the international intellectual property norm of the principle of national treatment. This principle requires that each member state guarantee to the nationals of other member states treatment in law no less favourable than is accorded the state’s own nationals.24 The convention created a platform of guaranteed minimum standards for patent and trademark protection that each member country would provide and, through it, its members formed the Paris Union.25 As the Union met from time to time over the succeeding hundred years, new agreements were reached and came into force when a sufficient number of member states ratified them. However, it was not necessary for every member state to ratify later instruments in order to continue as members of the Union. Even in the most recent version of the Paris Convention, there remains language permitting states fairly wide latitude in tailoring patent and trademark protection.26 Canada originally acceded to the Paris Convention as a dominion of Britain, which was an original signatory. When Canada began to act as a nation internationally it continued participation in the Paris Union,27 becoming a party in its own right in 1925. Before entering into the trade commitments that required full adherence to the latest version in the mid-1990s, Canada had adhered only to the administrative, but not to the substantive, provisions of the latest 1967 Stockholm version of the convention.28 As the empires of the original architects of the Paris Union unravelled, the texture of the Union changed.29 Originally, it had had an instant global span precisely because the European powers were able to include their colonies in its scope.30 This created an effective global economic environment – one of the earliest large, multilateral, and effective ones.31 As the colonies became fully independent and chose to become members of the Union in their own right, the dominant economic interests of the Union, which operated democratically, began to shift – much of the enlarged membership consisted of economically underdeveloped nations.

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The chief point about this consensual environment for international cooperation in the protection of industrial property is, however, that, throughout its history from colonial to post-colonial, protection of confidential information has had no real place in it. The only consensus that ever developed over the century following the creation of the Paris Union related to protection of confidential information was a provision for protection against unfair competition.32 In the United Nations After the Second World War, international instruments of the newly formed United Nations were drafted to include references to the intellectual property devices represented by the much older international intellectual property bodies, including the Paris Union, and these United Nations documents reflected both perspectives inherent in traditional intellectual property: the reward for authors and creators but also access to information and innovation for society. Such references occur not only in the International Covenant on Economic, Social and Cultural Rights,33 where they might be expected, but also in the Universal Declaration of Human Rights, which states: 1 Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in the scientific advancement and its benefits. 2 Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.34 Eventually, in 1970 the Paris Union and copyright’s Berne Union formed the World Intellectual Property Organization (WIPO),35 which was formally integrated into the United Nations system (where it remains today).36 At this point in the 1970s, however, there was no international instrument that specifically addressed confidential information. In International Trade Law By the end of the 1980s the economically powerful members of the Unions, now joined on all fronts by the United States, which had formerly boycotted the Berne Union,37 chafed under the consensual



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environment of WIPO.38 As Ronald Bettig points out, “[t]he global proliferation of communications technologies and the expansion of the realm of intellectual property is a process that clearly benefits the advanced economies of the United States, Europe and Japan.”39 When the opportunity arose, encouraged and abetted by increasingly globalized multinational corporations, especially in the pharmaceutical sector,40 these leading states shifted the conversation about intellectual property away from WIPO and into the modern trade environment. The Uruguay Round of multilateral trade negotiations, launched in 1986 by the contracting parties of the General Agreement onTariffs and Trade,41 included a mandate to negotiate in the area of intellectual property.42 The Uruguay Round was concluded in 1994 with the creation of the World Trade Organization (WTO) and the inclusion of intellectual property in its mandate through the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This agreement, which forms part of the WTO Agreement, contains provisions protecting undisclosed information, particularly secret information with commercial value and data submitted for the purpose of regulatory or marketing approval. This development will be reviewed below. The strategy of the industrialized nations in moving the international coordination of intellectual property protection from the consensual environment of WIPO to the trade negotiation environment in the WTO initially proved very successful.43 Although various issues of disagreement between the industrialized nations that had become apparent during negotiation largely remained unresolved when TRIPS emerged, the overall approach of the developed nations prevailed, and “the developing countries’ proposal was all but forgotten.”44 Throughout this period, Canada’s domestic intellectual property policy reflected the pressure of the United States as it drove forward to strengthen international intellectual property protections in order to protect its exports:45 “the main impetus for change in Canada has come ultimately from U.S. corporate and political forces seeking to strengthen IP protection at the expense of IP dissemination ... Canada initially resisted such pressures but then ultimately adopted them as being in the national interest [emphasis added] in the new innovation age.”46 In every area of intellectual property policy-making, “by the late 1990s the federal government, in response to pressure and arguments from its industry and trade departments, was gradually adopting the view that the global agenda was in Canada’s interests.”47

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While in the areas of patent and copyright, TRIPS48 drew on over a century of global experience, cooperating internationally to harmonize domestic intellectual property devices by using the texts of the Paris and Berne Conventions as the threshold for patent protection and copyright protection, respectively, in the new trade environment, the international parameters of confidential information protection were laid out for the first time in the coercive conditions of trade negotiations.49 Through its inclusion in TRIPS,50 confidential information has become classed for the first time as intellectual property (whereas Canada’s Supreme Court has declined to declare it to be such.)51 Article 39 of TRIPS provides that Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial business practices,52 so long as such information: a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within circles that normally deal with the kind of information in question; b) has commercial value because it is secret; and c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. Article 39(3) provides that “Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.”

the clash of confidential information w i t h p e rs o n a l data p ro t e c t i o n Meanwhile, just as WIPO emerged and the move toward intellectual property protection through international trade instruments got



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under way, another area of law was emerging as a response to the developing information economy and information society: personaldata protection.53 By the late 1970s challenges were being recognized in the looming results of computerization – and, particularly in Europe, there was starting to be a nascent movement toward implementation of “data privacy” legislation. The value of “privacy” had been recognized and included in public international instruments that were created following the Second World War.54 But international consensus about how to operationalize “privacy” was not necessary, since none of these instruments55 were concerned about actually integrating information systems between nation-states or about actually guiding information flows that inevitably occur with the development of multinationals spanning jurisdictions. European countries began to seek domestic legislative implementation of privacy values in the face of the emerging data aggregation possibilities that occurred with increasing memory capacity, processing speed, and the ubiquity of computers. In less information-rich quarters than Europe, a concern emerged in reaction to the developing notions of data privacy that enclosing information within nation states through “privacy” restrictions would doom information-poor countries to even less opportunity relative to information-rich countries in the emerging “computer age,” and that portability of data between states was very important to ensuring that all nations could participate in the anticipated information economy.56 The resulting compromise between these two reactions to emerging telecommunications and computer globalization occurred in the Organization for Economic Cooperation and Development (of which Canada has been a member since its inception in 1960). The OECD Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data were published in 198157 and were intended to achieve two purposes: (1) to protect personal information58 and (2) to ensure the free flow of data between countries.59 Over time, and with familiarity, the second of these two purposes has been routinely overlooked and forgotten.60 However, it is important to recall the dual nature of the purposes the OECD Guidelines were developed to serve, if only because the connection of the OECD Guidelines to privacy is convoluted.61 The OECD Guidelines were developed through consultation and are voluntarily adopted: not surprisingly, the guidelines do not dictate to states what information they may seek from their inhabitants.

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Their tenets are relevant only if a state or organization has decided to seek information from an individual.62 What is clear is that the guidelines are intended to give an individual who is a data subject controls on the use of information when the information identifiably pertains to her or him and the information is in the hands of either public or private sector organizations.63 Organizations that fall under personal-data protection regimes are required to adhere to the dictates of national legislation implementing the OECD Guidelines so long as the information they hold continues to be identified with an individual.64 This responsibility arises and continues whether or not the individual subject is even aware either of the information’s existence within that organization or of the contents of that information. Moreover, in all Canadian jurisdictions, this responsibility continues for a number of years after the death of the subject individual.65 The guidelines’ eight principles66 relate to the collection of personally identifiable information (not whether it can be collected but how it is to be collected and from whom), the organization’s use of such information, the dissemination of such information, the retention of the information, and the disposal of the information:67 legislation flowing from the guidelines will control the entire life cycle of a record containing personally identifiable information while in the hands of an organization. Since confidential information law is intended to protect any information held in confidence by organizations and since personal data protection legislation gives individuals control over information about themselves held by organizations,68 there is inherent potential for conflict, or at least overlap, between these two legal developments.

c o m pa r i n g t h e l e v e l s o f i n t e r n at i o n a l c o n s e n s u s s u r ro u n d i n g p e rs o n a l data protection with the international coercive environment in confidential information While the WTO has a current membership of 153 states, the OECD has a current membership of only 30 and while the WTO is a trade initiative with mandatory dispute settlement and sanctions available, the OECD has neither of these enforcement mechanisms. On the face of it, why would any country pursue personal-data protection in line with the OECD Guidelines with any vigour?



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Two reasons may explain the rapid spread of personal data protection in Canadian law. First, it is largely for domestic political reasons that access to government-held information legislation was initiated across the country – and it was expedient and perhaps inevitable that personal data protection legislation, also for the public sector, became linked with access legislation.69 Second, the European Union was still the dominant force in the realm of privacy in the world, and it developed a directive that was worded to convey an extraterritorial effect.70 In the result, Canada has responded fully to its obligations under the OECD Guidelines, albeit in the private sector largely spurred on by the European Data Directive.71 The United States, on the other hand, has largely ignored the personal-data protection initiative – dodging it entirely for the private sector.72 And, indeed, recent legal developments in the United States such as the Patriot Act73 have undermined any possibility of personal data protection in the private sector such as is legislated in Canada. Clear evidence of the incompatibility between the current Canadian and American environments in this respect is the decision of the government of British Columbia to forbid personal data processing by any of its provincial or any municipal government bodies through any agency or operation in the United States.74

i s t h e r e e v i d e n c e t h a t c a n a d a’ s b e t t e r i n t e r e s t s l i e i n av o i d i n g full implementation of its international obligations? The Supreme Court in H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General) Canada’s domestic experience with the parallel existence of both confidential information protection and personal data protection in the private sector is less than a decade old. Already there are challenges within this experience. Two examples will be discussed as illustration. The first is the 2006 decision of the Supreme Court of Canada in H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)75 involving the subtle interplay of protection of confidential information with personal data protection in the context of the federal access legislation. The second is Canada’s evolving environment for innovation in the health sector.

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The majority of the Supreme Court in Heinz appears to have intended a triumph for privacy interests.76 Instead, the key result of the case appears to be that an individual’s right under legislation involving personal data protection can be exercised by a corporation without the individual’s knowledge. This result seems to run counter to the very structure of personal data protection and access legislation as they have developed across the country: personal-data protections are drafted into the statutes as rights of “individuals” – carefully distinguished from legal “persons” in order to exclude corporate “persons.” Corporations and companies, such as Heinz in this case (“artificial persons”), are classed as “third parties” in these statutes (with their own exemptions and protections related to protection of confidential information), not as “individuals” directly entitled to personal data protection. In the Heinz case, there were no individuals involved in the proceedings, even though much of the dialogue in the judgments was about the rights of individuals. Heinz sought to require the Canadian Food Inspection Agency, the government agency subject to the Access to Information Act that was holding the information subject to an access request, to withhold documents under the “privacy” exemption normally reserved for individuals. Heinz had been notified of the request for access by the agency because of its possible interest in parts of the same information as a “third party.” As a potential “third party” under the legislation, it was appropriate that Heinz be notified, in order that it could decide whether or not to make representations about why certain of the information, in which it could claim a “third-party exemption,” should not be released by the agency to the requestor. The majority of the Supreme Court noted that legislators in personal data protection statutes have contemplated and provided for situations in which the individuals involved consent to release of information about themselves – since the individuals who were the subjects of the information in question were unaware of the proceedings, they did not have that opportunity. The majority worried that under the federal legislation, absent involvement in the ongoing proceedings by the individuals who were the subjects of the information, the federal information and privacy commissioners lacked power to take direct action to stop the release of the personal information. The Court’s decision did stop the release of personal data – but neither directly through objection of the individuals nor through the actions of the information commissioner but rather indirectly through the objection of the third-party corporation, Heinz.



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It does not seem appropriate for the Court to have so empowered third-party organizations, albeit on behalf of individuals, when the Court itself identified the administration of the act, as legislated, as inadequate. The majority convinced itself that the “Access Act and the Privacy Act must be read together, with special emphasis given to the protection of personal information.” A better interpretation of the legislative intent in these statutes is that they were intended to balance access to government information with control over personal information, by the individuals affected, in both public and private sector settings: protection and control are different concepts. The minority77 noted the power imbalance that has occurred with this decision: companies have control over personal-data disclosure that even the individuals involved lack. The majority, in the name of protection, wrested some control of personal information away from individuals, back into the hands of corporations. While the result in the Heinz case, which gives control over the disposition of personal data held by one organization to another, outside organization, is inconsistent with the intent of the OECD Guidelines and might eventually create problems with European data exporters because of the European Data Directive, it appears completely consistent with Canada’s trade obligations with respect to confidential information. If Parliament steps in to “fix” this interpretation of the Supreme Court and reasserts the control of the individual over personal data, such a legislative intervention is bound to highlight the tension in the area of government-held information between the access and personal data protection regimes and the protection of confidential information that is represented by the “third-party” provisions in this legislation – legislation that probably is not entirely consistent with Canada’s obligations under the TRIPS Agreement. Medical Innovation A second looming problem area for Canada in terms of reconciling personal-data protection and confidential information protection is in the health arena. Although personal data protection in the public sector in many jurisdictions across Canada has gradually affected more and more Canadian health-related organizations over the past quarter century, the coming into force in January 2004 of all of the federal Personal Information Protection and Electronic Documents

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Act (pipeda), intended to encompass, among other sectors, virtually all commercial activities in the health environment, has brought the challenges in the health sector into stark relief. Taken together, the various pieces of personal data protection legislation now in place affecting health are intended to give patients full access and control over any data held about them in any medical environment. This is consistent with the OECD Guidelines. On the other hand, the medical establishments in four provinces have succeeded in persuading their legislatures to pass separate, sectoral legislation for health (combining private and public sector personal data protection into one single act for the health sector).78 In order to have the federal Cabinet suspend the operation of pipeda in respect of health organizations involved in commercial activities now to be encompassed in the provincial sectoral health enactments, these provinces would like to have their legislation deemed equivalent to pipeda .79 However, this has occurred in only one province – Ontario.80 The fact that the legislation in the others has not been deemed equivalent is strong evidence that these enactments are inconsistent with the federal government initiative in pipeda , as well as with the OECD Guidelines. Indeed, even in the case of Ontario, the provincial health enactments privilege, to a great extent, the traditional power of physicians and medical experts over the patient’s judgment about his or her own data.81 But even if all this personal health data protection legislation met the OECD Guidelines, there would still appear to be an unavoidable conflict between the patient’s right to control information in this environment, as demanded by personal data protection, and the right of entities to control confidential information in this environment. Canada’s Food and Drug Administration, through the Notice of Compliance (NOC) process,82 is responsible for “approving the marketing of pharmaceutical ... products which utilize new chemical entities,” to use the language of TRIPS article 39(3), quoted above, and requires “submission of undisclosed test or other data, the origination of which involves a considerable effort” (i.e., clinical trials)83 – and so Canada is obliged to “protect such data against unfair commercial use ... [and] against disclosure.” The only permitted exceptions to these obligations are “where necessary to protect the public” or where “steps are taken to ensure that the data are protected against unfair commercial use.” There is no permitted exception under TRIPS for meeting the personal data control rights of individual patients in such trials.



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The regulation of clinical trials in Canada is currently controlled in large measure through the administrative processes of ethics boards, many of which are situated in universities.84 These boards currently operate through panels (none of which are required to be composed, in part or in full, by lawyers providing legal advice) making decisions under institutional ethics policies whose drafting has been guided by the Tri-Council Policy Statement: Ethical Conduct in Research Involving Humans,85 created by Canada’s three large federal funding bodies (the Canadian Institutes of Health Research (CIHR), the National Science and Engineering Research Council (NSERC), and the Social Sciences and Humanities Research Council (SSHRC)).86 It should be noted that the enabling legislation for the CIHR actually includes commercialization in its mandate: “encouraging innovation, facilitating the commercialization of health research in Canada and promoting economic development through health research in Canada.”87 The Tri-Council Policy has been heavily influenced by guidelines prevalent in the medical research environment of the United States, a feature considered very important by the Canadian agencies because of the number of cross-border drug trials that occur.88 The authority of this policy flows from the fact that funding from the three lead federal agencies will not be made available for research if the mandated ethics processes are not met.89 The current content of these ethics guidelines does not reflect the new realities of the ubiquity of personal data protection legislation in Canada today and the range of institutions that can be involved in any particular health study90 – although it would appear that they must inevitably come to reflect this new legal reality.91 It seems difficult to envisage how, if patient subjects have the access and control to which they are entitled under personal data protection regimes,92 these trials will be able to be conducted in a way that maintains the confidentiality demanded in TRIPS article 29(3).

conclusion Canada has a number of international obligations that arise from two different impulses in information law: control of secrets by commercial entities and control of any information about individuals by those individuals themselves. Inevitably there are conflicts between the two. The international instruments involving each have arisen from different sectors entirely within the international community:

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one, within the past quarter century, from the consensual but small OECD; the other, despite its rhetoric of a long and inevitable history, only just over a decade ago in the huge, coercive environment of the wto. Currently, Canada has entered into specific international obligations in respect of each – and relatively recently has put law in place in respect of each. Canada’s short experience in each of these areas of law is revealing practical challenges in respect of the other area. In personal data protection, the Supreme Court of Canada has given the right to exercise the censoring of information about identifiable individuals to corporations whose primary objective is the protection of third-party confidential information – and not to the individuals who are the subject of the information, as required by the OECD Guidelines to which Canada is signatory. At the same time, an attempt to legislate in order to overcome the Supreme Court’s decision in the Heinz case may highlight the potential conflict between confidential information protection, which Canada must protect pursuant to both TRIPS and NAFTA, and personal data protection, particularly in the context of government-held information.93 In health, any personal data protection regime that is actually going to be in compliance with Canada’s international obligations under the OECD Guidelines has not only to overcome the power of the medical establishment but also, it seems, to ignore Canada’s obligations in TRIPS article 39(3). In an environment where health issues are a major source of international discontent with TRIPS, where costs associated with health care are an increasing and major burden for Canada, and where health information is increasingly important at the level of the individual, both as a subject and as a user, it would seem unwise for Canada to develop information policy in this sector merely as a reaction to international commitments made a few years ago and increasingly being demonstrated to be in conflict with one another. Thus, in these and other respects,94 both the Canadian legal environment for protection of confidential information and that for personal-data protection probably fall short of Canada’s international obligations. Indeed, it appears impossible for Canada to simultaneously fulfill both sets of obligations fully. Given this impossibility and given the multiplicity of complex information relationships involved in these areas (including perspectives, such as access, that are not part of either system but are protected in Canada’s Constitution), it would seem very wise for Canada to develop policy



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in the light of its own understanding of its own information environment and needs, quite apart from reference to any obligations currently in place, and, eventually, to implement only law that has been fully and dispassionately analyzed from Canada’s own perspective. Once Canada has developed its own internally consistent and domestically effective policy, it can then use that experience in the appropriate international forums to try to assist in the elimination of conflicts between international information-related (including intellectual property) instruments.

notes Professor Wilkinson’s work is supported through the Social Science and Humanities Research Council of Canada. She would like to thank law student Vanessa Bacher for timely assistance with this chapter. 1 See G.B. Doern & M. Sharaput, Canadian Intellectual Property: The Politics of Innovating Institutions and Interests (Toronto: University of Toronto Press 2000) at 99, observing: “The Canadian Intellectual Property Office and the Commissioner of Patents and Registrar of Trademarks have emerged in the 1990s from almost total obscurity as a technical operating agency [within government] to an agency now recognized as being very important to Canada’s capacity to be both innovative and internationally competitive.” 2 The Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3, 28 I.L.M. 1448 (entered into force 2 September 1990), for example, contains far-reaching and comprehensive provisions for rights to information for children. See M.A. Wilkinson & L.E.F. McKechnie, “Implementing the Information Rights of Canadian Children” (2002) 20 Can. Family L.Q. 429. 3 I have introduced this theme in an earlier paper where I challenge the notion of the “public domain” as a useful concept in the current environment. Long associated with copyright, in particular, I argue that its close semantic association with notions of property and its implied binary approach (“public/private”) is perhaps a rhetoric that actually detracts from the kinds of multi-dimensional approaches needed to situate intellectual property policy at both the national and the international levels within the whole arena of global information policy analysis. See M.A. Wilkinson, “National Treatment, National Interest and the Public Domain” (2003–4) 1(1&2) Univ. Ottawa L. & Tech. J. 23.

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4 Particularly when many of these obligations were undertaken during a period when, as Bruce Doern and Markus Sharaput ultimately conclude supra note 1 at xii, that “[i]n an overall sense, Canada has become more of a policy-taker than a policy-maker on matters of IP.” 5 And it should be noted that the concept as defined in the Convention Establishing the World Intellectual Property Organization, s. 2 (viii), does not include confidential information per se. Instead, the term “intellectual property” is defined as including the rights relating to “literary, artistic and scientific works,” “performances of performing artists, phonograms, and broadcasts,” “inventions in all fields of human endeavour,” “scientific discoveries,” “industrial designs,” “trademarks, service marks, and commercial names and designations,” “protection against unfair competition,” and “all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.” 6 Ronald Bettig traces the roots of copyright back to the Roman publishing system but points to the advent of the printing press in 1450 CE as the genesis of the role of copyright in the European context. See R.V. Bettig, Copyrighting Culture: The Political Economy of Intellectual Property (Boulder: Westview Press 1996) at 11 and 16. The earliest-known patent legislation, the Venetian Patent Act of 1474, also dates from the fifteenth century – also very early in the industrial revolution in Europe. 7 Between 1484 and 1533 in England, a statute (1 Rich. III, c. 9) that otherwise regulated and restricted foreign businesses in England, contained an exemption for printing and bookselling. This was replaced in 1538 by the first of a number of attempts to protect and encourage the indigenous English trade by licensing (Steele, Procl. No. 176 (Henry VIII, November 16, 1538)). See further L.R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press 1968). 8 Statute of Monopolies, 1624. This law replaced the earlier prerogative of the monarch to grant exclusive privileges under “letters patent [or open, rather than sealed]”and, for most fields of coverage, prohibited the creation of monopolies. In the area of patent, however, it continued the possibility of monopoly, but under the statute rather than through the Crown. 9 Statute of Anne, (1709) 8 Anne c. 19. 10 In United Artists Pictures Inc. v. Pink Panther Beauty Corp., [1998] 3 F.C.534, 225 N.R.82, leave to appeal allowed (1998), 235 N.R.399 (note), but appeal discontinued, the Federal Court of Appeal described the history of trademark as follows: “Historically, the marketplace has been very concerned with guaranteeing consumers the quality of goods that they had come to rely upon in the course of trade ... While the



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rationale for the tort [of passing off] was to protect the public, it was not the consumer who sued, but the owner of the trade-mark who brought the action, thereby protecting the public, as well as its own interest.” 11 R.J. Roberts, “Canadian Copyright: Natural Property or Mere Monopoly?” (1979) 40 C.P.R. (2d) 33; A. Drassinower, “A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law” (2003) 16 Can. J. L. & Juris. 3. See also W. Adams, “Personal Property Law and Information Assets” (2002) 36 Can. Bus. L.J. 267; W. Adams, “Secondary Markets for Copyrighted Works” (2002) 37 Can. Bus. L J. 321. The statutes in copyright and patent clearly establish that the two devices are purely statutory: see Copyright Act, R.S.C. 1985, c. C-42, s. 89 and Patent Act, R.S.C. 1985, c. P-4, s. 42. In Galerie d’Art du Petit Champlain Inc. v. Théberge, [2002] S.C.R. 336 Binnie J. wrote “Copyright in this country is a creature of statute and the rights and remedies it provides are exhaustive” (at 338), and further described the statute as creating a balance “between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated)” (at para. 30). Despite this history and the clarity of the Supreme Court of Canada on the matter, it has become fashionable both in Canadian and in American scholarly circles to identify intellectual property with property. See, for example, A.A. Keynes & C. Brunet, “A Rejoinder to ‘Canadian Copyright: Natural Property or Mere Monopoly?” (1979) 40 C.P.R. (2d) 54; W.M. Landes & R.A. Posner, “Trademark Law: An Economic Perspective” (1987) 30 J. L. & Econ. 265; F. Easterbrook, “Intellectual Property Is Still Property” (1990) 13 Harv. J. Law & Pub. Pol. 108; S. Carter, “Does it Matter That Intellectual Property Is Property?” (1993) 68 Chicago-Kent L. Rev. 715; L. Becker, “Deserving to Own Intellectual Property” (1998) 68 Chicago-Kent L. Rev. 609; A. Moore, Intellectual Property and Information Control (New Brunswick: Transaction Publishers 2001); E. Hettinger, “Justifying Intellectual Property” in A. Moore, ed., Intellectual Property: Moral, Legal and International Dilemmas (New York: Rowan and Littlefield 1997) 17; J. Child, “Moral Foundations of Intangible Property” in A. Moore, ed., Intellectual Property: Moral, Legal and International Dilemmas (New York: Rowan and Littlefield 1997) 57; A. Moore, “Toward a Lockean Theory of Intellectual Property” in A. Moore, ed., Intellectual Property: Moral, Legal and International Dilemmas (New York: Rowan and Littlefield 1997) 81; J. Hughes, “Philosophy of Intellectual Property,” in A. Moore, ed.,

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Intellectual Property: Moral, Legal and International Dilemmas (New York: Rowan and Littlefield, 1997) 135; N. Siebrasse, “A Property Rights Theory of the Limits of Copyright” (2001) 51 U.T.L.J. 1. 12 Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45, 219 D.L.R. (4th) 577, Bastarache J., for the majority, at 185, citing Free World Trust v. Electro Sante Inc., [2000] 2 S.C.R. 1024, at para. 24. 13 Ibid., Binnie J., for the minority, at para. 4. Justice Ginsburg of the United States Supreme Court demonstrated a slightly different view of patent, noting that, while patent requires disclosure to the public of the invention, and in copyright “disclosure [to the public] is the desired objective, not something exacted from the author in exchange for the copyright,” nevertheless, “[f]urther distinguishing the two kinds of intellectual property, copyright gives the holder no monopoly on any knowledge … [while] the grant of a patent, on the other hand, does prevent full use by others of the inventor’s knowledge.” See Eldred v. Aschcroft, 537 U.S. 186, 123 S. Ct. 769 (2003), rehearing den’d 538 U.S. 916, 123 S. Ct. 1505 (2003) at para. 787. However, while acknowledging the learned authority W. Copinger, Law of Copyright, 7th ed. (1936), cited by Justice Ginsburg, it seems the better view that patent gives no more monopoly on knowledge than does copyright and, indeed, provides a statutory requirement that knowledge of the invention be made public. 14 T. Drier, “Balancing Proprietary and Public Domain Interests: Inside or Outside of Proprietary Rights?” in R.C. Dreyfuss et al., eds., Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society (Oxford: Oxford University Press 2001) 295 at 305. 15 Note that Canada’s depository system, in the sense of making government information available to the public, has not been legislated: see E. Dolan & L. Vaughan, Electronic Access to Canadian Federal Government Information: How Prepared are the Depository Libraries? Report to Depository Services Program, Canadian Government Publishing (Ottawa: Public Works and Government Services Canada 1997). On the other hand, there has long been a legislated requirement for publishers to deposit monographs with the National Library of Canada, now the National Library and Archives of Canada. See Library and Archives of Canada Act, 2004, S.C. 2004, c.11, s. 10. 16 In R. v. Stewart, [1988] 1 S.C.R. 963, 50 D.L.R. (4th) 1 the Supreme Court of Canada refused to consider confidential information to be property, at least in the context of criminal law. 17 Cadbury Schweppes Inc. v. fbi Foods Ltd., [1999] 1 S.C.R.142, 167 D.L.R. (4th) 577.



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18 By contrast, since even before Canada became independent, it had experience with patent and copyright – enough experience that the two were explicitly included amongst the named heads of power in the division of power between provinces and federal government in 1867. The Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No.5, gives both powers explicitly to the federal government: s. 91(22) concerning “Patents of Discovery and Invention” and s. 91(23) concerning “Copyright”. 19 International Corona Resources Ltd. v. Lac Minerals Ltd., [1989] 2 S.C.R. 574, 61 D.L.R. (4th) 14. The cause of action cannot be maintained per se in the province of Quebec, where, as a civil law jurisdiction, the cause of action must be codified. An exact codification of the cause of action for breach of confidence does not exist, but there are related provisions: C.C.Q., 1991, c. 64, Art. 1457; 2002, c. 19, s. 15. See further R. Howell, “Database Protection and Canadian Law,” 2d ed., prepared for the Department of Canadian Heritage, online: and M. Goudreau, trans. David Vaver, “Protecting Ideas and Information in Common Law Canada and Quebec” (1994) 8 I.P.J. 189 at 205. 20 Fiduciary obligations law was emerging slowly at about the same time, but when faced with a case that would have permitted Supreme Court sanction on either one of the emerging causes of action, in Canadian Aero Service Ltd. v. O’Malley (1973), [1974] S.C.R.592, 40 D.L.R. (3d) 371, the Supreme Court chose to sanction the emerging doctrine of fiduciary obligation rather than the notion of an independent action for breach of confidence. See R.J. Roberts, “Corporate Opportunity and Confidential Information: Birds of a Feather That Flock Together or Canaeros of a Different Colour?” (1977) 28 C.P.R. (2d) 68. 21 Paraphrased from the language of the Supreme Court in International Corona Resources Ltd. v. Lac Minerals Ltd., [1989] 2 S.C.R. 574, 61 D.L.R. (4th) 14. 22 And it is an open constitutional question who has the power to legislate in this area. For a restrictive view see MacDonald v. Vapor Canada Ltd. (1976), [1977] 2 S.C.R. 134, 66 D.L.R. (3d) 1. There has been a similar challenge in determining jurisdiction over trademark: the federal government claims jurisdiction pursuant to its trade and commerce power (s. 91(2)), but the provinces also claim jurisdiction pursuant to their powers over “property and civil rights”(s. 92(13)) and “matters of a merely local or private interest” (s. 92(16)). Under its authority the federal government has legislated under the Trade-Marks Act, R.S.C. 1985, c.T-13, as

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amended, but has always left “room” for the provinces by recognizing other marks through s. 10. Recently, however, in connection with interpretation of s. 7 of the Trade-Marks Act, the Supreme Court of Canada has declared that both statutory and “common law” marks (through s. 10 of the Trade-Marks Act) are creatures of the federal statutory enactment; see Kirkbi ag and Lego Canada, Inc.,v. Ritvik Holdings Inc./Gestions Ritvik Inc. (Lego v. Mega Bloks), [2005] 3 S.C.R. 302, 2005 SCC 65. As will be noted below, the federal government, for reasons similar to those that have challenged it in the trademark area and will challenge it in the area of confidential information, legislated boldly in the area of personaldata protection for the private sector but attempted to avoid constitutional challenge by leaving “room” for “equivalent” legislation to be passed by the provinces, as described further below. 23 Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c.11. The s. 2(b) right to freedom of expression includes a right to access information (confirmed in Luscher v. Deputy Minister of Revenue (Customs and Excise), [1985] 1 F.C. 85 (F.C.A.)) and is therefore likely the Charter protection that would be raised in a challenge to legislation involving confidential information protection. Even though Canada’s common law action for breach of confidence may not completely satisfy the requirements of NAFTA or TRIPS, the vulnerability of any attempted legislative enhancement of the action to a Charter challenge might in itself discourage Canadian jurisdictions from legislating in the area. 24 The principle of national treatment was carried through into the Berne Convention, concluded in 1886, concerning copyright. 25 The Berne Convention similarly created a platform for minimum copyright protection, and again, member states were free to adhere to revisions or not. (There were six revisions, the last being at Paris in 1971). However, the Berne Convention, even in its earliest versions, reflected a greater degree of consensus around the basic elements of copyright than was ever achieved in the Paris Convention around patent and trademark – and thus nation states enjoyed relatively less freedom to create national differences in their copyright laws. Its members form the Berne Union. 26 Basic elements of patent law, such as the term of protection and defined criteria for patent, were never specified in the Paris Convention. In the realm of trademark, the Paris Convention does not specify exactly what a trademark is. Moreover, member states never agreed whether trademark protection should extend to services as well as goods. 27 Canada’s participation in the Berne Union parallels its experience in the Paris Union. Britain was a founding player and agreed to the Berne



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Convention immediately (see International Copyright Act of 1886 (49–50 Vic., c. 33, which applied to Canada as a dominion) and ratified effective 5 December 1887. Canada’s first independent participation in the Berne Union was through the Rome Convention, 1928. Canada’s adherence to the Berne Convention remained at the 1928 level until international intellectual property moved into the arena of international trade negotiations in 1986. 28 On 7 July 1970 Canada adhered to Arts. 13–30 of the Stockholm version, but decided not to adhere to the substantive provisions of Arts. 1–12. 29 Throughout their histories, the Berne and Paris Unions have been closely entwined. Indeed the Berne Union has always relied on the larger and wealthier Paris Union for administrative support. The comments made here about the Paris Union, therefore, are also applicable to the Berne Union. One long-standing difference between the two, however, has been that the United States joined the Paris Union early on but remained outside the Berne Union, although attending to observe its conferences, during the Union’s first century. 30 Sam Rickertson points out that “[d]espite relatively limited membership, the geographical sweep of the new [Berne] Union was considerable when account is taken of the colonial possessions of France, Germany, Italy, Belgium, Spain and the U.K.” See S. Rickertson, The Berne Convention for the Protection of Literary and Artistic Works, 1886–1986 (London: Centre for Commercial Studies, Queen Mary University, 1987) at 79–80. 31 There were four pivotal multilateral agreements affecting the information environment that came into being at the end of the nineteenth century: in addition to the Paris and Berne Conventions, there was the International Telegraph Union (1865), since renamed the International Telecommunications Union, and Universal Postal Union (1874). 32 The closest provision is Article 10bis: Unfair Competition

(1) The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition. (2) Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition. (3) The following in particular shall be prohibited: i. all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor;   ii. false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;

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iii. indications or allegations, the use of which in the course of trade, is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.

This provision was used as a “hook” to bring confidential information into TRIPS, a provision in the Paris Convention that was argued to already encompass confidential information and thus to lead naturally to inclusion of confidential information provisions in TRIPS. TRIPS Art. 39 begins: “(1) In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments and governmental agencies in accordance with paragraph 3.” See also the drafting history provided in D. Gervais, The trips Agreement: Drafting History and Analysis, 2d ed. (London: Sweet & Maxwell 2003) at 271. It can be seen, however, that the provisions of Article 10bis of the Paris Convention are actually far more directly related to legal concepts involved in passing off and trademark. 33 ICESCR Art. 15 provides

1  ... the right of everyone: a. To take part in cultural life; b. To enjoy the benefits of scientific progress and its applications; c. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

34 Universal Declaration of Human Rights, 10 December 1948, G.A. Res. 217(III), U.N. G.A.O.R., 3d Sess., Supp. No. 13, U.N. Doc. A/810 (1948) at 71, Art. 27. 35 WIPO was created at the Stockholm Conference of 1967 by the Convention Establishing the World Intellectual Property Organization. Canada ratified on 26 June 1970. 36 Given the strict economic, trade, and commercial origins of the unions, this marriage between the intellectual property unions, which now exist within the framework of WIPO, and the United Nations must be philosophically uneasy. This is despite the current economic interests of the majority of the UN membership and the language of intellectual property in other UN instruments such as the Universal Declaration of Human Rights. After all, these unions were formed



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to support and extend national legal monopolies to various international markets. 37 The United States joined the Berne Union in 1989. 38 Under article 28 of the Paris Convention, recourse to the International Court of Justice is provided – but this dispute settlement mechanism has remained entirely theoretical and has never been used. 39 R.V. Bettig, Copyrighting Culture: The Political Economy of Intellectual Property (Boulder: Westview Press 1996) at 5. Indeed, as mentioned above, the United States and Japan put forward the first proposal to fully include intellectual property in the international trade regime. It was drafts by the European Union and the United States that Daniel Gervais identifies as dramatically accelerating the process of negotiating TRIPS. See D. Gervais, The trips Agreement: Drafting History and Analysis, 2d ed. (London: Sweet & Maxwell 2003) at 16. 40 Pat Choate identifies specifically “two US corporate CEOs, John R. Opel of IBM and Edmund T. Pratt Jr. of Pfizer pharmaceuticals” as the progenitors of TRIPS: P. Choate, Hot Property: The Stealing of Ideas in an Age of Globalization (New York: Knopf 2005) at 18. 41 The General Agreement on Trade and Tariffs, concluded 30 October 1947, 61 Stat. A-11, 4 GATT B.I.S.D. 1 (1969), was provisionally applied between its “contracting parties” as of 1 January 1948. It contained no direct provision for intellectual property. GATT was later reformulated and incorporated into the wto Agreement along with the TRIPS Agreement. See the Marrakesh Agreement Establishing the World Trade Organization, (1994) 33 I.L.M. 1125. 42 See the Punta del Este Declaration, WTO Doc. MIN/DEC (20 September 1986) at 7–8, quoted by D. Gervais, The trips Agreement: Drafting History and Analysis, 2d ed. (London: Sweet & Maxwell 2003) at 11. 43 I say “initially” because there was a backlash after the adoption of TRIPS. The Doha Declaration of 2001, to the extent that it addresses intellectual property at all, reflects mostly the concerns of the developing nations. See Ministerial Declaration (14 November 2001), WT/MIN(01)/DEC/1, especially paras. 3, 19. 44 D. Gervais & E.F. Judge, Intellectual Property: The Law in Canada (Toronto: Thomson Carswell 2005) at 541. 45 The United States and Japan put forward the first notions of covering all intellectual property in the international trade environment in the late 1980s: see D. Gervais, The trips Agreement: Drafting History and Analysis, 2d ed. (London: Sweet & Maxwell 2003) at 10. 46 In Canadian Intellectual Property, supra note 1 at 183, Bruce Doern and Markus Sharaput observe that in the copyright environment,

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“copyright enjoyed an ascendancy in the 1990s because it was possible for Canadian policy-makers to cast it as a cultural policy which, unlike many other subsidy-based cultural policies which were seen as antithetical to market liberalism, could be presented as being entirely in keeping with ... pro-market framework rules.” Further evidence of the American domination of Canadian copyright policy is supplied through Ronald Bettig’s study by a scholar examining the American experience. See R. Bettig, Copyrighting Culture: The Political Economy of Intellectual Property (Boulder: Westview Press 1996). Many of the examples and case studies in his book involve the co-opting of Canadian intellectual property policy to the interests of the American entertainment industry elites. Canada is identified as the American entertainment industry’s “largest ‘foreign’ market in the Western Hemisphere.” Ibid. at 201. 47 Canadian Intellectual Property, supra note 1 at 183. Dan Dorner’s empirical analysis of the federal government during this period of information policy development demonstrates also that the federal Department of Industry, more than any other agency, dominated policy formation at this time. See D.G. Dorner, “The Essential Services Policy Network: Organizational Influence in Canada’s Information Highway Policy Development Process” (2002) 72(1) Lib. Quart. 27–84. It was only on 26 May 1996, however, pursuant to new trade obligations under NAFTA and TRIPS, that Canada adhered fully to the 1967 Stockholm version of the Paris Convention. For the same reasons, Canada adhered even a little later (26 June 1998) to the most recent version of the Berne Convention; see Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, 828 U.N.T.S. 221, Can. T.S. 1998 No. 18 (last revised 24 July 1971 and amended on 28 September 1979). 48 The signing of NAFTA, 17 December 1992, Can. T.S. 1994 No. 2, 32 I.L.M. 289 (entered into force 1 January 1994) preceded the conclusion of TRIPS but was based on the same international drafting experience. See D. Gervais & E.F. Judge, Intellectual Property: The Law in Canada (Toronto: Thomson Carswell 2005) at 556. 49 This probably makes the environment for patent and copyright much less risky for many of the players – even though they are now facing an environment of coercion, where non-compliance with obligations brings with it a dispute resolution mechanism and the possibility of trade sanctions as penalty. In the area of confidential information they have no prior experience of international harmonization. 50 The language of NAFTA with respect to confidential information protection differs somewhat from the language that entered the text of TRIPS, as



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will be elaborated on below. However, it will be sufficient at this point in the discussion to focus on the language in TRIPS. 51 Initially in International Corona Resources Ltd. v. Lac Minerals Ltd., [1989] 2 S.C.R. 574, 61 D.L.R. (4th) 14, and later in Cadbury Schweppes Inc. v. fbi Foods Ltd., [1999] 1 S.C.R.142, 167 D.L.R. (4th) 577 the Court canvassed a number of possible characterizations for the cause of action for breach of confidence and declined to classify it specifically. 52 The phrase “a manner contrary to honest commercial practices” is defined in a footnote in TRIPS as follows: “For the purpose of this provision, ‘a manner contrary to honest commercial practices’ shall mean at least practices such as breach of contract, breach of confidence and inducement to breach, and includes the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition.” 53 Perhaps because the social conditions that it was developed to meet were so new and on a global scale, the vocabulary in this area became valueladen and confusing almost before any law was formulated – and the term “privacy” became identified as synonymous with this new area. That identification is not apt, as is described herein, nor is it serving well the development of either the area of privacy law or the area of personal data protection law. I have made this point directly in connection with a critique of the recent decision of the Federal Court of Appeal in bmg Canada Inc. v. John Doe, [2005] 4 F.C.R. 81, 2005 FCA 193. See M.A. Wilkinson, “Battleground between New and Old Orders: Control Conflicts between Copyright and Personal Data Protection,” in Ysolde Gendreau, ed., An Emerging Intellectual Property Paradigm: Perspectives from Canada (Edward Elgar 2008), 305–52. In Canada, only five provinces have legislated privacy. Quebec, Canada’s civil law jurisdiction, gives privacy its strongest and clearest legal expression in the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12. The original Privacy Act in British Columbia was the first privacy legislation in common law Canada, S.B.C. 1968, c. 39, now R.S.B.C. 1996, c. 373, s. 1. Saskatchewan, Manitoba and Newfoundland are the other three common law provinces ( Privacy Act, R.S.S. 1978, c. P-24, s. 2; Privacy Act, R.S.M. 1987, c. P125, s. 2(1); and Privacy Act, R.S.N.L. 1990, c. P-22, s. 3, respectively), and in these three privacy is protected only in surveillance, eavesdropping, and certain itemized commercial situations. In the other common law provinces, neither the legislatures nor the courts have recognized such a tort. As the Manitoba Court of Appeal observed in Bingo Enterprises Ltd. v. Plaxton (1986), 26 D.L.R. (4th) 604,

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41 Man. R. (2d) 19, at para. 17: “It would appear that at common law the tort of violation of privacy in regard to disclosure of personal information has not been recognized in Canada. Neither counsel has supplied us with a case ... Counsel for defendants states simply that the tort has not been recognized although recognized in the United States of America.” The ambivalence of the common law in general towards privacy has been highlighted recently in Great Britain: Buxton L.J., speaking for the English Court of Appeal at paragraph 8 of Ash v. McKennitt, [2006] E.W.C.A. Civ. 1714., stated: “There is no English domestic tort of invasion of privacy.” Actions in Britain based upon the English Human Rights Act, Art. 8, which legislates respect for private and family life (and incorporates Arts. 8 and 10 of the European Convention on Human Rights into English law), have been successful but have been founded in breach of confidence. 54 The Universal Declaration of Human Rights Art. 12 states that “No one shall be subjected to arbitrary interference with his privacy ... Everyone has the right to the protection of the law against such interference or attacks.” 55 Including the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. No. 47, 6 I.L.M. 368 (entered into force 23 March 1976). Art. 17 of the ICCPR provides: “(1) No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation; (2) Everyone has the right to the protection of the law against such interference or attacks.” 56 C. Bennet, Regulating Privacy: Data Protection and Public Policy in Europe and the United States (Ithaca: Cornell University Press 1992). 57 The OECD Guidelines were created as a Recommendation of the Council of the OECD, becoming applicable 23 September 1980, and are available at . 58 Although paragraph 2 of the OECD Guidelines, concerning their scope, refers to “personal data ... which ... pose a danger to privacy and individual liberties,” the operative sections providing for the treatment of personal data, paragraphs 7–14, do not mention the concept of privacy, but rather refer throughout to the treatment of “personal data.” 59 Part 3 of the OECD Guidelines, paragraphs 15–18, is entitled “Basic Principles of International Application: Free Flow and Legitimate Restrictions,” and paragraph 16 provides specifically that “Member countries should take all reasonable and appropriate steps to ensure that transborder data flows of personal data, including transit through a Member country, are uninterrupted and secure.” Paragraph 17 provides that “A member country should refrain from restricting transborder data flows of



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personal data between itself and another Member country [in cases where the Guidelines are met].” 60 For example, Mary Marshall and Barbara von Tigerstrom, in their chapter entitled “Health Information,” in J. Downie et al., Canadian Health Law and Policy, 2d ed. (Markham, ON: Butterworths 2002) provide brief histories of the right to privacy in international law (at 159) and the right to privacy under the Canadian Charter of Rights and Freedoms (at 160–4). They then move on to a discussion of the OECD Guidelines, but without mentioning the second goal of the OECD Guidelines at all and putting the whole discussion in the context of privacy. They state that “[w]hile [the 8 principles of the OECD Guidelines] are not all directly related to the protection of privacy, they provide indirect protection (for example, by limiting collection of personal data), and, more generally, serve to safeguard the basic values of autonomy that underlie the right to privacy” (at 165). Halyna Perun, Michael Orr & Fannie Dimitriadis, in Guide to the Ontario Personal Health Information Protection Act (Toronto: Irwin Law 2005), completely omit any reference to the OECD Guidelines in their introductory chapter, focussing entirely on privacy. See ibid., 1–18. 61 I have previously argued that personal-data protection is philosophically more closely akin to legislated confidentiality law than to privacy law: see M.A. Wilkinson, “Privacy and Personal Data Protection: Albatross for Access?” in K. Adams & W.F. Birdsall, eds., Access to Information in a Digital World (Ottawa: Canadian Library Association 2004), 109–32 , where I point out that viewing personal data protection from this perspective may help to explain certain decisions of governments to make public information that would otherwise fall under personal data protection, such as Ontario’s decisions in the Adoption Information Disclosure Act, S.O. 2005, c. 25 and the Public Sector Salary Disclosure Act, 1996, S.O. 1996, c. 1, Sch. A, or Nova Scotia’s decision in the Ministerial Education Act Regulation 80/97, as up to N.S. Reg. 120/2006, concerning annual reporting of school board salaries, made under s. 145 of the Education Act, S.N.S. 1995–96, c.1. 62 Paragraph 7 of the OECD Guidelines referring to the collection limitation principle states: “There should be limits to the collection of personal data and all such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject.” 63 Paragraph 2 of the OECD Guidelines begins: “These Guidelines apply to personal data, whether in the public or private sectors.” 64 The definition in paragraph 1(b) of the OECD Guidelines is “‘personal data’ means any information relating to an identified or identifiable individual (data subject).”

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65 Federal rules under PIPEDA protect an individual’s information until twenty years after death or one hundred years after the document was created: see R.S.C. 2000, c. 5, ss. 7(3)(h)(i)-(ii). British Columbia has legislation with the same time frames: see Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 36. Nova Scotia has provincial legislation that protects personal information of deceased persons until twenty years after death only: see Freedom of Information and Protection of Privacy Act, R.S.N.S. 1993, c. 5, s. 30(c). Newfoundland’s legislation protects information for tweny years after a person’s death or for fifty years after the document was created: see Access to Information and Protection of Privacy Act, R.S.N.L. 2002, c. A-1.1, s. 42(c)(d). Alberta and Saskatchewan have statutes protecting personal information until twenty-five years after the individual’s death: see Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, s. 17(2)(i); The Local Authority Freedom of Information and Protection of Privacy Act, R.S.S. 1990–91, c. L-27, s. 29(1)(2); and The Freedom of Information and Protection of Privacy Act, R.S.S. 1990–1991, c. F-22.01, s. 30(2)). Prince Edward Island’s legislation protects personal information for twenty-five years after death, or seventy-five years after the creation of the record: see Freedom of Information and Protection of Privacy Act, R.S.P.E.I. F-15.01, ss. 15(2)(i) and 40(c)(ii). Ontario and Quebec legislation protects personal information until thirty years after death: see Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 2(2) and An Act respecting the Protection of Personal Information in the Private Sector, R.S.Q. 1994, c. P-39.1, s. 18.2. Manitoba’s provincial legislation protects information only until ten years after an individual’s death: see The Freedom of Information and Protection of Privacy Act, C.C.S.M. 1997, c. F175, s. 17(4). 66 Set out in part 2 of the OECD Guidelines, entitled “Basic Principles of National Application,” at paras 7–14. 67 Paragraph 11 of the OECD Guidelines, the “Security Safeguard Principle,” provides that “Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorised access, destruction, use, modification or disclosure of data.” 68 Specifically, paragraph 10 of the OECD Guidelines, the “Use Limitation Principle,” states: “Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with Paragraph 9 except: (a) with the consent of the data subject; or (b) by the authority of law.” Paragraph 9 is the “Purpose Specification Principle,” which provides: “The purposes for which personal data are



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collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfillment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose.” 69 The best illustration of this relationship is the extraordinary passage of the federal Access to Information Act together with the separate Privacy Act as one enactment: see Access to Information Act and Privacy Act, S.C. 1982, c. 111. The federal personal data protection legislation, which actually had its antecedent as part 4 of the Human Rights Act in 1977 (S.C. 1977, c. 33), before being re-enacted with the access legislation in 1982, is now the Privacy Act, R.S.C. 1985, c. P-21 (Canada). The other personaldata protection legislation for the public sector in Canada is the following: Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 (Alberta); Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 (British Columbia); The Freedom of Information and Protection of Privacy Act, S.M. 1997, c. 50 (Manitoba); Right to Information Act, S.N.B. 1978, c. R-10.3 (New Brunswick); Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A-1.1 (Newfoundland & Labrador); Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c.5 (Nova Scotia); Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (Ontario); Freedom of Information and Protection of Privacy Act, S.P.E.I. 2001, c. 37 (Prince Edward Island); An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1 (Quebec); Freedom of Information and Protection of Privacy Act, S.S. 1990–91, c. F-22.01 (Saskatchewan); Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20 (Nunavut & Northwest Territories); and Access to Information and Protection of Privacy Act, R.S.Y. 2002, c. 1(Yukon). Several jurisdictions also have privacy legislation for the municipal sector: Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M56 (Ontario) and Local Authority Freedom of Information and Protection of Privacy Act, S.S. 1990–91, c. L-27.1 (Saskatchewan). As will be further discussed below, in four provinces health information, including health information held in the public sector, has been protected by separate legislation: Health Information Act, R.S.A. 2000, c. H-5 (Alberta); Personal Health Information Act, C.C.S.M. c. P33.5 (Manitoba); Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A (Ontario); and Health Information Protection Act, S.S. 1999, c. H-0.021 (Saskatchewan).

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70 European Union, Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, EU Council Directive 95/56/EC, [1995] O.J. No. L. 281, p. 31. 71 In Quebec personal-data protection legislation for the private sector predates the EU Directive: see Act Respecting the Protection of Personal Information in the Private Sector, R.S.Q., c. P-39.1 (1993). However, all other personal-data protection legislation in Canada is a direct response to the federal government’s initiative, with the Personal Information Protection and Electronic Documents Act, R.S.C. 2000, c. 5 [pipeda], which responded to the EU Directive. The federal government, for constitutional reasons, left room for, and indeed encouraged, provincial regulation of private sector activities, and some provinces have taken up this invitation. The federal legislation anticipates the passage of “equivalent” provincial legislation, by providing that, once recognized as equivalent by the federal Cabinet, such provincial legislation will replace pipeda for provincial matters within that province: see pipeda at s. 26(2)(b). Quebec’s pre-existing act has already been recognized by the federal government as equivalent to pipeda. Several other provinces have passed legislation for the private sector and have succeeded in persuading the federal government that the legislation is equivalent to pipeda: see Alberta, Personal Information Protection Act, S.A. 2003, c. P-6.5, and British Columbia, Personal Information Protection Act, S.B.C. 2003, c. 63. As noted, several other provinces have passed specific personal data protection legislation for the health sector. In Ontario’s case, this legislation has been deemed equivalent to pipeda by the federal government. 72 See the International Safe Harbor Privacy Principles issued by the U.S. Department of Commerce (July 21, 2000), online: . The principles were developed in consultation with industry and the general public to facilitate trade and commerce between the United States and EU. The EU was persuaded to accept this voluntary system as compatible with its Directive. Few of the targeted private organizations have applied to be certified. This record is to be contrasted with the fully legislated administrative schemes created in Canada. Personal-data protection law is not an issue for organizations in the American health sector. In this connection see further W.W. Lowrance, “Privacy and Secondary Use of Data in Health Research” (2003) 8 Suppl 1 J. Health Services Research & Pol. 13–28 at 17–18. 73 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (usa Patriot Act) Act of 2001, H.R. 3162 (2001).



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74 Freedom of Information and Protection of Privacy Act Amendment Act 2004, S.B.C. 2004, c. 64 (“Bill 73”). 75 [2006] S.C.R. 441, 266 D.L.R. (4th) 675. 76 Justice Deschamps, writing for himself and Binnie, Fish and Abella JJ. in the majority, clearly holds that privacy trumps access to government-held information and is “quasi-constitutional.” Promptly thereafter, the Federal Court of Appeal referred to Heinz in Canada (Information Commissioner) v. Canadian Transportation Accident Safety Investigation & Safety Board, [2007] 1 F.C.R. 203, 267 D.L.R. (4th) 451, acknowledging the paramountcy of privacy. 77 The minority (McLachlin C.J.C., Bastarache, LeBel JJ.) maintained that corporate parties should be limited under these statutes to claiming the exemptions specifically targeted for them by the legislators. 78 As noted, these are Health Information Act, R.S.A. 2000, c. H-5, (Alberta); Personal Health Information Act, C.C.S.M. c. P33.5 (Manitoba); Health Information Protection Act, S.S. 1999, c. H-0.021 (Saskatchewan); and Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A (Ontario). 79 As noted, the provision for this process is contained in pipeda s. 26(2)(b). 80 See Personal Information and Protection of Electronic Documents Act: Health Information Custodians in the Province of Ontario Exemption Order, C. Gaz. 2005.I.331. 81 In this connection see the study by W. Peekhaus, “Personal Medical Information: Privacy or Personal Data Protection?” (July 2006) 5:2 Can. J. Law & Tech. 87. 82 The Food and Drugs Act, R.S.C. 1985, c. F-27, as am., is the mechanism used by the federal government to protect public health and safety by ensuring that only approved products are distributed in Canada. A food or drug product may not be marketed in Canada until a Notice of Compliance (“NOC”) has been issued under the Food and Drug Regulations, C.R.C., c. 870, ss. C.08.002(1) and C.08.004. The Patented Medicines (Notice of Compliance) Regulations, S.O.R./93–133, were actually enacted under s. 55.2(4) of the Patent Act, R.S.C.1985, c. P-4, as am., and came into force on 13 March 1993. They were substantially amended in 1998 (C. Gaz. Part II, Col. 132, No. 7 at1051 (1998)) and again in 2006 (Regulations Amending the Patented Medicines (Notice of Compliance) Regulations Registration, S.O.R./2006–242 (5 October 2006)). They are intended to link the Patent Act to the Food and Drugs Act by prohibiting the minister of health from allowing drugs that are the subject of a valid patent to be distributed in Canada by anyone not claiming through the patent.

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83 A generic drug manufacturer who can show that the drug for which the NOC is being sought is equivalent to a drug already approved is able to file an abbreviated submission for the NOC without having to do extensive clinical studies: see Food and Drug Regulations, s. C.08.002.1(2)(a) and (g)–(i). 84 Many commentators considering the ethics process in health research fail to discuss the relationship of law to the process at all: see for example E. Whittaker, “Adjudicating Entitlements: The Emerging Discourses of Research Ethics Boards” (2005) 9 Health: An Interdisciplinary Journal for the Social Study of Health, Illness and Medicine 513, and M. Aita & M.-C. Richer, “Essentials of Research Ethics for Healthcare Professionals” (2005) 7 Nursing and Health Sciences 119. Even when legal parameters are acknowledged, personal-data protection is often overlooked: see B.M. noppers, “Consent Revisited: Points to Consider” (2005) 13 Health L. Rev. 33. 85 Curiously, the composition of the boards, at least for biomedical research, is meant to include someone knowledgable in law, but even in that area that person is not to provide legal advice. Membership of the REB shall consist of at least five members, including both men and women, of whom “ a) at least two have broad expertise in the methods or in the areas of research that are covered by the RED; b) at least one member is knowledgeable in ethics; c) for biomedical research, at least one member is knowledgeable in the relevant law; this is advisable but not mandatory for other areas of research; d) at least one member had no affiliation with the institution, but is recruited from the community served by the institution.” The role of the member knowledgeable in the applicable law is to alert REBs to legal issues and their implications, not to provide formal legal opinions nor to serve as legal counsel for the REB. An understanding of relevant legal issues and contexts is advisable for all REBs, although for non-biomedical research such insights may be sought from someone who sits on the REB only for specific research projects. The institution’s legal counsel should not be a member of the REB. Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans (Canadian Institute of Health Research, Natural Sciences and Engineering Research Council of Canada, Social Sciences and Humanities Research Council of Canada, 1998) at 1.3. 86 In M. Hirtle, “The Governance of Research Involving Human Participants in Canada” (2003) 11 Health L. J. 137 at 148, Marie Hirtle asks, “[i]s an administrative model appropriate for what is closest to becoming the national standard for research in Canada or should other types of standards (ethical, legal, professional or scientific) be considered?”



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87 Canadian Institutes of Health Research Act, S.C. 2000, c. 6, s. 4(i). 88 For example, in the Ethics Review Board Application Form for Research Involving Human Subjects in a medical context at the University of Western Ontario, question 1.2 is “Is this a U.S. Food and Drug Administration (FDA) monitored study?” The first question involving Canada occurs later, at question 1.11, namely, “Does this project require Health Canada approval?” Question 12.2 accepts that the FDA may require access to identifiable or confidential data for monitoring or auditing purposes: see 89 It is interesting that CIHR’s Commercialization and Innovation Strategy document of November 2005 includes a heading “Ethical Perspective,” which states “Conscious of the issues that arise from the academic/industry interface and the potential for ethical conflict between profit and the public good, CIHR will lead an industry/university effort that will review and propose standards for ethical conduct of projects in the commercialization and innovation areas.” Nowhere in the document is there a discussion of the legal aspects of these relationships – or, indeed, any mention at all of the interests of patients involved in these processes. Patients are mentioned only as one of several designated recipients of one of the sought-after outcomes of the strategy: “accelerated drug and device development, which would ensure prompt delivery of discoveries to community, caregivers and patients.” The description of clinical research notes that research is “a key ‘bench to bedside’ link. Unless the training and careers of clinical researchers are better supported, and the specialized facilities for clinical research are available to clinical researchers in Canada, this will limit CIHR’s and Canada’s capacity for commercialization and innovation.” See online: 90 The Tripartite Panel on Research Ethics has just released seventeen reports from working committees considering revisions to the policy statement: see , under “Publications and Reports.” Among these, reports such as the SSWC [Social Sciences and Humanities Research Ethics Special Working Group] Recommendations Regarding Privacy and Confidentiality (February 2008) and the Ethics Review of Research in Multiple Settings and/or Involving Multiple REBs (previously multicentred ethics review): A Discussion Paper and Recommendations (April 2008) briefly comment on the need to reconcile the policy with applicable legislation. The conclusion that this need exists is also supported by empirical research, sponsored by the Social Sciences and Humanities Research Council of Canada, just completed by M.A. Wilkinson and M. Perry: for preliminary indications, see M.A. Wilkinson, “Social Sciences

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and Humanities Research and the Protection of Privacy in Universities,” a paper presented in the Privacy and Access Issues across the Professions: Ethics at Ryerson series (April 2007); online: 91 The possible impact of personal-data protection legislation on health research has been contemplated in K. Weisbaum et al., “A Voluntary Privacy Standard for Health Services and Policy Research: Legal, Ethical and Social Policy Issues in the Canadian Context” (2005) 14 Health L. Rev. 42 at 44; D. Willison, “Privacy and the Secondary Use of Data for Health Research: Experience in Canada and Suggested Directions Forward” (2003) 8 Suppl.1 Journal of Health Services Research Policy S1–17–23; and D. Willison, “Trends in Collection, Use and Disclosure of Personal Information in Contemporary Health Research: Challenges for Governance” (2005) 13 Health L. Rev. 107. 92 Given the primary focus of the CIHR on commercialization and the barriers to that process that differing provincial regimes and personal data protection can pose in general, it is perhaps not surprising that the CIHR has taken a lead role in trying to standardize this area. The CIHR commissioned the cihr Best Practices for Protecting Privacy in Health Research (Ottawa: Canadian Institutes for Health Research 2005). Although the document acknowledges that the law in this area differs across Canada and that various statutes govern practice in each jurisdiction and although it states that its guidelines are not to be relied on (at 26), the document nevertheless purports to be able to give health care practitioners a uniform code of practice for anywhere and everywhere within Canada. As such, it is misleading. In the health legislation of the four provinces that have passed it, including Ontario, patients’ control over personal information has been muted to reflect and preserve the professional judgments of medical personnel by adding a notion of implied patient consent to the traditional personal-data protection legislative standard of express consent in information situations (for example, see Ontario’s Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A, s. 18(2)). Under pipeda, express consent is the norm. It has already been noted that in the three provinces, apart from Ontario, with specific health legislation in this area, patients may still have rights under pipeda and patients in the remaining provinces and territories will have rights under pipeda in applicable situations. 93 Canada would probably prefer to avoid close scrutiny of its confidentialinformation protection provisions in the access and personal-data protection arena altogether. For example, under Ontario’s access legislation in



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the public sector, if an organization holds a trade secret or certain other information from a third party, that information will be released to a requestor unless it has been supplied in confidence and disclosure would have one of a series of legislated consequences. This may be too narrow to comply with TRIPS, let alone NAFTA; see Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 17. 94 NAFTA requires protection of information of potential commercial value, which Canada’s common law test, set out above, does not cover, although NAFTA requires only protection of trade secrets and thus would appear to be narrower in that respect than the protection that Canada offers. However, under either the NAFTA or the TRIPS standard, Canada’s requirement that the confider show detriment and benefit to the confidante is probably a higher standard than the demonstration of “commercial value” in international standards.

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Contributors

Mi ch a e l B y ers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. Prior to 2005, he was professor of Law and director of Canadian Studies at Duke University; from 1996 to 1999 he was a fellow of Jesus College, Oxford. Dr Byers is a regular contributor to the London Review of Books, the Toronto Star, and the Globe and Mail. He is the author or editor of five books, including Intent for a Nation: What Is Canada For? (Douglas & McIntyre 2007). Email: [email protected]. Ch i o s C a r m o dy is associate professor and Canadian director of the Canada-United States Law Institute at the University of Western Ontario Faculty of Law. He teaches in the field of public international law, international trade law, and international business transactions. His forthcoming book is A Theory of wto Law (Cambridge University Press). He is the editor of Trilateral Perspectives on International Legal Issues: Conflict and Coherence (American Society of International Law 2002). Email: [email protected]. Ro b ert J. Cu r r ie is associate professor, Faculty of Law, Dalhousie University, where he teaches International Criminal Law, International Advocacy, Evidence, and Civil Procedure. He specializes in public international law, particularly international and transnational criminal law, and his work in this area has been cited by Canadian courts, including the Supreme Court of Canada. He is a co-author of the seventh edition of International Law: Chiefly as Interpreted and Applied in Canada (Kindred and Saunders, eds.), and the author of International and Transnational Criminal Law (Irwin 2008). Email: [email protected].

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Contributors

An th on y D ai m s i s is professor and member of the International Law Group at the University of Ottawa Faculty of Law, where he teaches Contracts and International Commercial Arbitration. He is the coordinator of the Faculty’s international law program and supervises the Common Law Jessup Moot team and the Vis Arbitration Moot team. Before teaching at the university, he worked as an Associate at Salpius & Partners, an international law firm located in Austria. His work focused on foreign investment disputes, telecommunications, and underground resources, in addition to a number of international commercial disputes. He is co-authoring the forthcoming International Commercial Arbitration and nafta Ch 11 Disputes from a Canadian Perspective and is a contributing author for the publication International Business Transactions: Standard Forms and Documents. Email: [email protected]. Ar man d D e M es t r al is Jean Monnet Chair at McGill University Faculty of Law, where he teaches international law, international trade law, and the law of the European Community. His current research interest is the law of international economic integration. He has prepared books, articles, and studies in English and French on international trade law and on Canadian comparative and constitutional law and international law. He has served on wto and NAFTA dispute settlement and arbitration tribunals. From 1999 to 2001 he served as president of the Canadian Red Cross Society. Email: [email protected]. J aye E l l i s , B A Hons. (Calgary), LLB, BCL (McGill), LLM (UBC), DCL (McGill), is assistant professor and Hydro Québec Scholar in Sustainable Development in the Faculty of Law and School of Environment at McGill University. She teaches and conducts research in the fields of international environmental law, public international law, and global environmental politics. She has conducted research at the Max Planck Institute for Comparative and Public International Law in Heidelberg, Germany, and has been a regular contributor to the Yearbook of International Environmental Law. Her doctoral dissertation focused on principles of international environmental law and their influence on the development of international regimes for environmental protection. Current research projects focus on high-seas fisheries, principles of environmental law, and international rules governing the use of force. Of particular interest in each of these projects is the role of



Contributors

315

language, examined from the point of view of discourse ethics and rhetorical theory. Recent publications include “International Regimes and the Legitimacy of Rules: A Discourse-Ethical Approach” (2002) Alternatives: Global, Local, Political 27(3): 273–300; “The Straddling Stocks Agreement and the Precautionary Principle as Interpretive Device and Rule of Law” (2001) Ocean Development and International Law 32(4): 289-311; “Redistributing the Burden of Scientific Uncertainty: Implications of the Precautionary Principle for State and Non-state Actors” (2005) Global Environmental Politics 505–26 (co-author: Steve Maguire) and “Globalisation and International Environmental Law” in Benjamin J. Richardson & Stepan Wood, eds., Environmental Law for Sustainability: A Reader (Hart 2006) (co-author: Stepan Wood) 343-80. Email: [email protected]. L uc i e L a m arch e is professor at the University of Ottawa, where she holds the Gordon F. Henderson Chair in Human Rights (2007– 12). She previously taught at the Université du Québec à Montréal (1987–2006). After completing her P h D at the Université libre de Bruxelles in 1994, she was offered the Jean Monnet Fellowship by the European University Institute (1998–99). She is a member of the CURA-SSHRC Research Alliance entitled Social Rights Accountability Project, which is directed by Professor Martha Jackman (University of Ottawa). She has published in matters related to social and economic rights and women’s rights, as well as the implementation of such rights. Email: [email protected] Dwi g h t N e w m an, BA (Reg.), LLB (Sask.), BCL, M Phil, DPhil (Oxon.), member of the Ontario Bar, is associate professor and, since 2006, has been associate dean at the University of Saskatchewan College of Law, following the completion of his DPhil in Law at Oxford University. At Oxford, he studied as a Rhodes Scholar and SSRHC Doctoral Fellow. He completed a doctoral dissertation in which he developed a theoretical account of collective rights. He has served as a law clerk to Chief Justice Lamer and Justice LeBel at the Supreme Court of Canada and has worked for the Canadian government and for human rights organizations in China and South Africa. Dwight currently teaches in the fields of constitutional and international law. His research in the former area applies moral and political theory to Aboriginal rights issues; his research in the latter are is related to international criminal law. He has published some two dozen articles. Email: [email protected].

316

Contributors

St é ph a n e P aq u i n is assocoate professor, École de Politique Appliqué, Université de Sherbrooke. He has previously taught at the Institut d’études politiques de Paris, Northwestern University, and the Université de Montréal and has published five books, including one of the first introductions to international political economy in French. His forthcoming book, co-authored with Kim Nossal and Stephane Roussel, is about the politics of Canadian and Québécois foreign policy. He has published articles in many refereed journals and has also received SSHRC funding as a new researcher for the project “Canadian Federalism and the Capacity of the Federal Government to Negotiate, Conclude, and Implement Free Trade Agreements and International Treaties.” Email:stephane.paquin@ usherbrooke.ca. Ch r i sto p h e r Pe n n y is assistant professor of International Law and Acting Director of the Centre for Security and Defence Studies at the Norman Paterson School of International Affairs, Carleton University. His teaching and research focus on international law and international relations, in particular on matters relating to the use of force. In addition to his work at NPSIA, Chris is also a reserve legal officer (Army Major) with the Canadian Forces, serving in the Directorate of Strategic Legal Analysis in the Office of the Judge Advocate General. Email: [email protected]. Mar ga r e t A n n W i lk i n s o n is professor and director of the Area of Concentration in Intellectual Property, Information, and Technology in the University of Western Ontario Faculty of Law. She is also adjunct professor in the Ivey School of Business, where she has been involved in both the Biotechnology and the Health Sector programs. Her doctoral students, working in the area of Information Policy, Power, and Institutions, have won a number of international awards, and her course on the International Protection of Intellectual Property focuses students on a number of the themes related to this book. Her research explores various elements of intellectual property in relation to others (moral rights, user rights, and copyright in the “copyright” sphere) and on themes considering intellectual property and other areas of information law such as privacy, personal data protection, and freedom of expression. Email: [email protected].

Index

AA (WTO Agreement on Agriculture), 146 Abu Ghraib Prison, 27, 31, 37 access legislation, 277, 285–8, 305, 311 Access to Information Act, 286, 305 ACTA (Anti-Counterfeiting Trade Agreement), 172 Adoption of international law into domestic law, 47–69, 78, 86, 181, 194, 234–43 Advocate-Generals in the European Court of Justice, 13, 58 AGRED (Group of Experts on Decentralization), 123–4 Agreement on Internal Trade, 162–3, 173 Agreement on Trade-Related Aspects of Intellectual Property, Art. 39 (3), 53, 61, 149–50, 153, 281–2, 287–90, Ahani v. Canada (a . g .) (2002), 58 O.R. (3d) 107, 91 C.R.R. (2d) 145 (C.A.), leave to appeal ref’d [2002] 2 S.C.R. 12; 44, 55, 56, 195 AIT (Agreement on Internal Trade), 162–3, 173

Amnesty International, 32–3 Amnesty International Canada v. Canada (Attorney General), Federal Court of Canada, Court File Number T-324–07 (21 Feb. 2007), 245 anti-bribery legislation (Canadian implementation), 262–9 Anti-Counterfeiting Trade Agreement, 172 Antonsen v. Canada (Attorney General), [1995] F.C.J. No. 259; 254, 255 arbitration agreements, 174–90 arbitration awards, 174–90 armed conflict, 10, 20, 225–30, 236–51, 255–61. See also international humanitarian law Asian Development Bank, 5 Attorney General for Canada v. Attorney General for Ontario, [1937] A.C. 326 (J.C.P.C.), 67 Attorney General for Canada v. Attorney General for Ontario, [1937] A.C. 326 (P.C), 250 Axworthy, Lloyd, 7, 26

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Index

Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193; 22, 65, 195, 232, 250 Bali, Indonesia, 35 Beesley, Allan, 7, 25 Belgium: Belgian presidency of EU/ EU, 86; International Committee on Foreign Policy, 86; St Michel Agreements, 87 Bermudez v. Canada (Minister of Citizenship and Immigration), 2000 F.C.J. No. 860; 259 Berne Convention for the Protection of Literary and Artistic Works, 297, 300 Bettig, Ronald, 281, 292 Bingo Enterprises Ltd. v. Plaxton (1986), 26 D.L.R. (4th) 604, 41 Man. R. (2d) 19; 301 BMG Canada Inc. v. John Doe, [2005] 4 F.C.R. 81, 2005 F.C.A. 193; 301 bringing international law into domestic Law, 27–8, 109; translation, 105–6; transnationalism, 106; transplantation, 105 British Columbia (Attorney General) v. Canada (Attorney General) re An Act Respecting the Vancouver Island Railway, [1994] 2 S.C.R. 41; 232, 251 British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473; 70 British Foreign and State Papers, 36 Cadbury Schweppes Inc. v. fbi Foods Ltd., [1999] 1 S.C.R. 142, 167 D.L.R. (4th) 577; 294, 301

Campaign to Ban Landmines, 26 Canada Assistance Act, 119 Canada (Attorney General) v. Northrop Grumman Overseas Service Corp., 163, 173 Canada Health Act, 119 Canada Treaty Series, 14 Canada-United States Cargo Security Project, 121 Canada Wheat Board, 157 Canadian Aero Service Ltd. v. O’Malley (1973), [1974] S.C.R. 592, 40 D.L.R. (3d) 371; 295 Canadian Bar Association National Military Law Section, 245 Canadian content regulations, 277 Canadian Council on International Law, 3, 7, 14 Canadian Council on Ministers of Education, 81 Canadian Department of External Affairs, 25 Canadian International Council, 14 cap-and-trade, 35 Capital Cities Communications v. c . r. t . c . (1977), [1978] 2 S.C.R. 141; 67, 249 CCIL (Canadian Council of International Law), 3, 7, 14 CCME (Canadian Council of Ministers of Education), 81 CESCR. See under United Nations: International Covenant on Economic, Social and Cultural Rights CFPOA. See Corruption of Foreign Public Officials Act Chan v. Canada (Minister of Employment and Immigration), [1995] S.C.J. No. 78; 260



Index

Charter of Rights and Freedoms (Canada), 27, 42 45, 61, 116, 124, 129, 239, 278, 393; S.11(g), 51 Chayes, Abraham and Antonia, 6 civil society, 5–8, 25, 109, 116 Climate Change Convention, 5, 99, 101–2 Commercial Law Strategy, 180 Commissioner for Competition, 13 confidential information, 276–84 Constitution Act, 51, 54, 77, 117, 174–5; Peace, Order and Good Government, 51–5; s.91, 51, 54, 176; s.92, 17, 174–6, 192; s.132, 51 consumer protection law, 276 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York), 9, 78, 174, 185; Art. I(3), 185 Convention on the Rights of the Child, 15, 44, 54–6, 60 Convention Relative to the Treatment of Prisoners of War (Geneva), 40n11 copyright, 149, 209, 276–82; protection, 277, 282 Corruption of Foreign Public Officials Act, 18–19, 213, 262–68 Costa v. enel , Case 6/64, [1964] E.C.R. 585; 68 Council of the Federation, 15, 19, 72, 90–1, 162 Crimes against Humanity and War Crimes Act, 17, 28–30, 218, 237–43 Criminal Code (Canada), 16–17, 203, 210–18, 237–43 CSI (Canadian Statement on Implementation), 145–6

319

d . r.

v. Bow Street Metropolitan Stipendiary Magistrate, 70, 220 data privacy legislation, 283 depository schemes, 277 Desertification Convention, 5 DFAIT (Foreign Affairs and International Trade Canada), 141, 217 Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 285, 306 Doha Declaration on TRIPS and Public Health, 149–50 double jeopardy, 17, 214, 217–18 DSU (WTO: Dispute Settlement Understanding), 143–4 Duke of Brunswick v. the King of Hanover (1864), 6 Beav. 1, 49 E.R. 724; 66 Eastern Canadian Premiers, 121 Eldred v. Ashcroft, 537 U.S. 186, 123 S. Ct. 769 (2003), rehearing den’d 538 U.S. 916, 123 S. Ct. 1505 (2003), 294 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; 128, 138 emissions intensity, 35, 103 European Charter for Safeguarding Human Rights in the City Initiative, 123 European Communities Act 1972, 62 European Community Treaty, 58 European Court of Justice, 13, 58 European Data Directive, 285–7 European integration, 72

320

Index

European Union (EU), 37, 48, 85, 155, 285 Ex Parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827 (H.L.), 36, 66, 70, 220 explanatory statements, 14 Extradition Treaty between Canada and the United States of America, 215 (Foreign Corrupt Practices Act), 262–7 federal clause, 17, 78, 80, 174, 177–80; Canada clause, 80; federal-state clause, 15, 79–80 Federal Provincial Territorial Human Rights Committee, 119–20 federalism, 42, 51, 71–88, 117, 191, FIPPA (Freedom of Information and Protection of Privacy Act), 304–7 Food and Drugs Act, 307–8 Foreign Affairs and International Trade Canada, 141, 217 Foreign Corrupt Practices Act, 262–7 foreign law, 107 Francis v. The Queen, [1956] S.C.R. 618; 250 Franck, Thomas, 6 Freedom of Information and Protection of Privacy Act, 304–7 FTP (Federal Provincial Territorial Human Rights Committee), 119–20 fcpa

GATS (General Agreement on Trade in Services), 148

GATT (General Agreement on Tariffs and Trade), 142–7 Geneva Convention, 31, 177, 227– 9, 236–9; Act, 239; on the Execution of Foreign Arbitral Awards, 193n12 Geneva Protocol on Arbitration Clauses, 193n12 genocide, 28–9, 227, 237, 242 Gérin-Lajoie Doctrine, 80 governance theory, 122; multilevel governance, 122 GPA (WTO Agreement on Government Procurement), 150–1 GreCon Dimter Inc. v. J.R. Normand Inc., 185, 186, 197 Group of Experts on Decentralization, 123–4 H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] S.C.R. 441, 266 D.L.R. (4th) 675; 285–7, 290 Hague Conference on Private International Law, 79–80 Harrington, Joanna, 6 Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45, 219 D.L.R. (4th) 577; 294 Havana Charter, 142, 164 Heathfield v. Chilton, (1767) 4 Burrows 2015; 251 Heinbecker, Paul, 7, 26–7 Hocking, Brian, 73 Hong Kong, 37 House of Commons Committee on International Trade, 152 Human Rights Committee (UN), 15, 18, 27



Index

Human Trafficking Protocol, 9, 211–14 Humphrey, John, 7, 25 ICC. See International Criminal Court ICCPR (International Covenant on Civil and Political Rights), 28 ICESCR (International Covenant on Economic and Social Rights), 298 ICFP (Belgium: International Committee on Foreign Policy, Belgium), 86 ICRC (International Committee of the Red Cross), 31, 228, 231 ICTR (International Criminal Tribunal for Rwanda), 20, 231, 240–5 ICTY (International Criminal Tribunal for the former Yugoslavia), 20, 228–31, 240–5 IHL (international humanitarian law), 10, 20, 225–45 Immigration and Refugee Protection Act, 211, 238 Implementation Committee under the Montreal Protocol, 5 implementation of international law: Canadian Statement, 4–7; ex post, 5; regional courts of justice, 5; and ad hoc criminal tribunals for the former Yugoslavia and Rwanda, 20, 228–31, 240– 5; Andean Community, 5; Arab Maghreb Union, 5; Common Market of Eastern and Southern Africa, 5; European Free Trade Area, 5; International Criminal Court (see International Criminal

321

Court); International Tribunal for the Law of Sea, 5; World Trade Organization (see World Trade Organization) Indian Act, 27 Industrial Age, 275–6 industrial property, 276, 279–80 intellectual property, 140–9, 158– 60, 275–82, 291; interests, 275; international instruments, 238, 260, 275–80, 289; policies, 275; principle of national treatment, 279; sphere, 276 Inter-American Development Bank, 5 International Committee of the Red Cross, 31, 228, 231 International Copyright Act of 1886, 297 International Corona Resources Ltd. v. Lac Minerals Ltd., [1989] 2 S.C.R. 574, 61 D.L.R. (4th) 14; 295, 301 International Court of Justice, 230 International Covenant on Civil and Political Rights, 28 International Covenant on Economic and Social Rights, 298; Art.15, 298 International Criminal Court, 20, 26–30, 39, 245; icc Statute, 27– 30; Rome Statute of the international Criminal Court, 229, 237 international criminal law, 30, 39, 227, 242 International Criminal Tribunal for Rwanda, 20, 231, 240–5 International Criminal Tribunal for the former Yugoslavia, 20, 228– 31, 240–5

322

Index

international customary law, 46 international humanitarian law, 10, 20, 225–45 international legal pluralism, 267 International Sale of Goods Act, 22 international trade law, 43, 280 International Trade Organization (ITO), 142 IRPA (Immigration and Refugee Protection Act), 211, 238 Japan, 72, 144, 146, 153–5, 281 Jean Chrétien Pledge to Africa Act, 150 John v. Fraser-Brace Overseas, [1958] S.C.R. 263; 66 Joint Committee of the Senate and the House of Commons on Foreign Affairs, 50 Joint Standing Treaties of the Australian Parliament, 14 Jose Pereira E. Hijos, S.A. v. Canada (Attorney General), [1996] F.C.J. No. 1669; 252 jurisdiction, 8–10, 16–18, 26–28, 54–62, 72–90, 117–34, 175–81, 188–91, 199–218; concurrent, 201; executive/enforcement, 203, 211; extraterritorial, 200–19; judicial, 200–4, 219; legislative/prescriptive, 203; qualified territorial, 200–3; territorial, 200–19 jus cogens, 36–7, 52 Kampala, Uganda, 35 Kanto Yakin Kogyo KabushikiKaisha v. Can-Eng Manufacturing Ltd., 184, 196 Kyoto Protocol, 34–6, 42–9, 63, 99–110

land warfare, 227 Landmines Convention, 26, 42 Larche, 214–18 laws of war, 225. See also international humanitarian law Lebedev v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 975; 258 Lesotho Highlands Water Project, 264 libel, 278 Libman v. R., [1985] 2 S.C.R. 178; 9, 200, 204–24 Luscher v. Deputy Minister of Revenue (Customs and Excise), [1985] 1 F.C. 85 (F.C.A.), 296 MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134; 67, 194, 233, 295 Mack v. R (2002), 60 O.R. (3d) 737, 2002 Carswell Ont 2927 (C.A.), 70 Marrakesh Agreement Establishing the WTO, 140 McNair’s Law of Treaties, 36 MCRR (Montreal Charter of Rights and Responsibilities), 123–5 MIA (Multilateral Agreement on Investment), 88 Miller v. Canada [2001] 1 S.C.R. 407; 250 Model Law on International Commercial Arbitration, 179 monism/monist state (monis), 44 Montreal Charter of Rights and Responsibilities, 123–5 Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; 70, 222 Mugesera, Léon, 28–9



Index

Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; 243–4, 246, 261 Multilateral Agreement on Investment, 88 Munyaneza, Désiré, 29 Murray v. The Schooner Charming Betsy, 6 U.S. 64 (1804), 45, 66 National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R 1324; 56, 67, 69, 233, 251, 253 National Defence Act, 239 national interest analyses, 14 New England Governors’ Conference, 121 New Public Management, 126–9 New Sovereignity, The, 6 New York Convention, 9, 15–18, 174–92 non-intervention, 200 North American Free Trade Agreement (NAFTA), 72, 75, 88, 137, 144–5, 152, 157; Chapter 11, 75, 88, 137; Implementation Act, 145 objective principle, 202 obligation of result, 80 OECD. See Organization for Economic Co-Operation and Development Ontario Foreign Arbitral Awards Act, 181 Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441; 250 Oppenheim’s International Law, 36

323

Optional Protocol to the International Covenant on Civil and Political Rights, 27 Organization for Economic CoOperation and Development, 10, 160, 213, 217, 264–9, 283–90; Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 213, 262–9; Directorate for Financial and Enterprise Affairs, 269; Guidelines Governing Protection of Privacy and Transborder Flows of Personal Data, 276, 282–90; Eight Principles, 284 organized crime, 211, 214 Oslo Protocol, 5 parent company liability, 273 Paris Convention for the Protection of Industrial Property, 279; 1967 Stockholm revision, 279; Art. 10, 279 patent, 149–53, 276–82, 300–8 PCP (public community Partnerships), 126–30 personal data protection, 284–90; initiative, 284–90 Personal Information Protection and Electronic Documents Act (pipeda ), 288, 304 POGG. See Constitution Act: Peace, Order and Good Government Power of Legitimacy among Nations, The, 6 Privacy Act, 287, 301–4 Proliferation Security Initiative, 38, 41

324

Index

Prosecutor v. Dusko Tadic, IT-94– 1–AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), 228, 240, 247 Public Community Partnerships, 126–30 Punta del Este Declaration, 299 Pushpanathan v. Canada, [1998] 1 S.C.R. 982; 251, 252 Quebec Charter of Human Rights and Freedoms, 124, 301 Quebec Department of International Relations, 120 R. v. Bakker, [2005] B.C.J. No. 1577 (Prov. Ct. Crim. Div.), 221 R. v. Brocklebank, (1996) 134 D.L.R. (4th) 377; 258 R. v. Finta, [1994] 1 S.C.R. 701; 203, 220, 252, 255, 256, 258, 260, 261 R. v. Greco (2001), 159 C.C.C. (3d) 146 (Ont. C.A.), leave to appeal to S.C.C. ref’d 162 C.C.C. (3d) vi, 210, 223 R. v. Hape, [2007] 2 S.C.R. 292, 2007 S.C.C. 26; 12, 21, 46, 58, 67, 211, 219, 220, 222, 223, 234–6, 250, 252, 253 R. v. Keyn (The Franconia), (1876) 2 Ex. D. 63 (CCCR), 252 R. v. Larche, [2006] 2 S.C.R. 762, 2006 SCC 56; 17, 214, 218, 222 R. v. Oakes, [1986] 1 S.C.R. 103; 236 R. v. Rattray, 2008 ONCA 74; 223

R. v. Stewart, [1988] 1 S.C.R. 963, 50 D.L.R. (4th) 1; 294 R. v. Zundel, [1992] 2 S.C.R. 731; 253 Re b . c . Motor Vehicle Act, [1985] 2 S.C.R. 486; 261 real and substantial connection test, 9, 200, 207 Reference as to Powers to Levy Rates on Foreign Legations and High Commissioners’ Residences, [1943] S.C.R. 208; 46, 66, 249 Reference as to Whether Members of the Military or Naval Forces of the United States of America are Exempt from Criminal Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483; 252 Reference re Employment Insurance Act [2005] 2 S.C.R. 669; 117, 134 Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; 253 Reference re Secession of Quebec, [1998] 2 S.C.R. 217; 46, 165 respect-for-human-rights clause, 18 Rome Convention 1928, 297 Saint John (Municipality of) v. Fraser-Bruce Overseas Corp., [1958] S.C.R. 263; 252 Schneider v. The Queen, [1982] 2 S.C.R. 112 [Schneider]; 54, 67, 69, 194 Sectoral Advisory Group, 141 separation of powers doctrine, 191 Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038; 235, 236, 253



Index

Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427, 2004 S.C.C. 45; 209 softwood lumber, 152, 158 Somalia, 258 South Africa, 28, 37; South African Constitutional Court, 37 Special Import Measures Act, 167 Standing Committee on International Trade, 16, 161–2 state responsibility, 30, 62 successor liability doctrine, 265–6 Sumunov v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 73; 257, 258 supply management, 141, 157, 160 suppression conventions, 199 Supreme Court of Canada, 9, 12, 28, 42–56, 62, 117, 128, 165, 185, 200, 204, 207–14, 231–43, 276, 285, 290 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 52, 253, 256, 261 terminatory principle, 202. See also objective principle terror, 225–46 TILMA (Trade, Investment and Labour Mobility Agreement), 163 TOC (Convention on Transnational Organized Crime), 212, 217 Tokyo Round of GATT negotiations, 81–2 torture, 30–3, 199 TPRM. See WTO: Trade Policy Review Mechanism

325

Trade, Investment and Labour Mobility Agreement, 163 trademark, 54, 149, 276–9 Trade-marks Act, 157, 239; s.7, 296; s.10, 296 Treaty: European Community Treaty, 58; Extradition Treaty between Canada and the United States of America, 215; unimplemented treaty, doctrine of the, 44, 53, 56, 62, 100; United Nations Treaty System, 14 Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] Q.B. 529 (Eng. C.A.), 36, 251 Tri-Council Policy Statement: Ethical Conduct in Research Involving Humans, 289 TRIPS. See Agreement on Traderelated Aspects of Intellectual Property Triquet v. Bath (1764), 3 Burr. 1478, 97 E.R. 936; 66 threats to international peace and security, 25 UNCITRAL Secretariat, 18, 192 UNCLOS. See United Nations: Convention on the Law of the Sea Uniform Law Conference of Canada (ULCC), 180–1, 187 Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63; 70 unimplemented treaty, doctrine of the, 44, 53, 56, 62, 100 unitary State, 119 United Nations, 42–3, 76–81, 280; Advisory Committee of Local Authorities, 122; Committee

326

Index

on the Rights of Persons with disabilities, 5; Committee on the Rights of the Child, 5; Convention against Corruption, 270; Convention against Torture, 30; Convention on the Law of the Sea, 25–6, 38; a constitution for the oceans, 25; Arctic exception, 25; Art. 76; Art. 234, 25; Convention on Transnational Organized Crime, 212, 217; Declaration of Venice, 122; Foreign Arbitral Awards Convention Act, 179; General Assembly, 25; Human Rights Commission, 5, 118; Human Rights Committee, 15, 18, 27; Human Rights Council, 5; Intergovernmental Panel On Climate Change, 34; International Covenant on Economic, Social and Cultural Rights, 115–24; CESCR Experts Committee, 116–19, 124; Concluding Report, 118; Secretary General, 32, 179; Security Council, 25–7, 260; Treaty System, 14; UN Settlements Programme, 122 United States of America v. Burns, [2001] 1 S.C.R. 283; 253, 254 United States of America v. Fordham (2005), 196 C.C.C. (3d) 39, 2005 BCCA 197; 216 Universal Declaration of Human Rights, 25, 124, 280; Art. 12, 302 UNTS (United Nations: Treaty System), 14 Uruguay Round, 142–54, 281

van Ert, Gibran, 6 Van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62; [1963] E.C.R. 1; 68 Ventocilla v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 773; 259 Vienna Convention on the International Sale of Goods, 198 Vienna Convention on the Law of Treaties, 49, 52, 57 war crime, 27–30, 218, 227–9, 236–43 Westphalia, 199–201 Wheare, Kenneth, 73 WIPO. See World Intellectual Property Organization Working Group on Bribery in International Business Transactions, 269 World Bank, 5 World Conference on Human Rights, 124 World Intellectual Property Organization, 280–2; Convention Establishing the WIPO s.2 (viii), 298 World Trade Organization (WTO), 10, 15–16, 37, 85, 90, 140–63, 281–4; Agreement Implementation Act, 144; Agreement on Agriculture, 146; Agreement on Government Procurement, 150–1; Canadian Statement on Implementation, 145–6; Dispute Settlement Understanding, 143–4; Trade Policy Review Mechanism, 16, 142–3, 155–62