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Public International Law - Proving International Law

. International Air Transport Association v. Canada (Transportation Agency)

In International Air Transport Association v. Canada (Transportation Agency) (Fed CA, 2020) the Federal Court of Appeal considered the treatment of international law in Canadian courts:

[14] It is settled law that questions of foreign law are treated as questions of fact, and as such, require proof through the evidence of properly qualified experts. However, the law appears to be somewhat less settled when it comes to the need for expert evidence addressing questions of international law.

[15] This Court commented on the use of expert witnesses to prove matters of international law in Turp v. Canada (Foreign Affairs), 2018 FCA 133, [2019] 1 F.C.R. 198. The Court stated that, in its view, parties do not need to file expert reports to prove international law, as international law is a matter of which Canadian judges can take judicial notice: Turp, at paras. 82-89. See also the cases cited in Turp: The Ship "“North”" v. The King, 1906 CanLII 80 (SCC), [1906] 37 S.C.R. 385, 26 C.L.T. 380; Jose Pereira E Hijos, S.A. v. Canada (Attorney General), 1996 CanLII 4098 (FC), [1997] 2 F.C. 84, (1996), 126 F.T.R. 167 (T.D.); Lord Advocate's Reference No. 1, [2001] ScotHC 15 (BAILII), [2001] S.L.T. 507.

[16] The Court was, however, clear that its comments in Turp were made in obiter, as the parties had not raised the evidentiary issue, and that its comments should thus not be taken to be a definitive ruling on the question.

[17] The Federal Court has also come to a similar conclusion to that reached in Turp with respect to the need for expert evidence regarding issues of international law: Pan American World Airways v. The Queen, 1979 CanLII 2790, 96 D.L.R. (3d) 267, at 274-275 (aff’d without comment on this issue 1980 CanLII 2610 (FCA), [1981] 2 S.C.R. 565 (SCC)).

[18] Indeed, in a series of articles, Gib van Ert argues persuasively that, in contrast to questions of foreign law (which are uniformly treated as questions of fact), matters of public international law are questions of law and as such do not require proof: Gib van Ert," “Recent Federal Court Decisions on Expert Evidence of International Law” "(31 December 2018) online (blog): Gib van Ert ; "“The Reception of International Law in Canada: Three Ways We Might Go Wrong”", (2018) in Centre for International Governance Innovation in Canada in International Law at 150 and Beyond, Paper No. 2; "“The Admissibility of International Legal Evidence"” (2005) 84 Can Bar Rev.

[19] That said, van Ert acknowledges that Canadian courts have been uneven in their evidentiary approach to international legal issues: van Ert, “Three Ways We Might Go Wrong”, above at 6. He cites examples of a contrary approach being taken, including in Bouzari v. Iran (Islamic Republic), [2002] O.J. No. 1624, [2002] O.T.C. 297 (Ont. S.C.J.), aff’d 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675 (Ont. C.A.) and Amaratunga v. Northwest Atlantic Fisheries Organization, 2011 NSCA 73, [2011] N.S.J. No. 453. I note the Federal Court also commented on the unsettled nature of the law on this point in Boily v. Canada, 2017 FC 1021, [2017] F.C.J. No. 1275 at paras. 25, 27-31.

[20] The appellants have also identified cases where a contrary view has been taken of the evidentiary issue, including Holding Tusculum B.V. c. S.A. Louis Dreyfus & Cie, 2006 QCCS 2827, [2006] Q.J. No. 4878. In that case, the Quebec Superior Court dismissed a motion to strike expert reports with respect to international arbitration law that raised arguments similar to those advanced here: paras. 4, 9-10. The disputed evidence was subsequently relied on by the Court in its decision on the merits: Holding Tusculum, b.v. c. Louis Dreyfus, s.a.s. (SA Louis Dreyfus & Cie.), 2008 QCCS 5904, [2008] Q.J. No. 15012.

[21] There have also been a number of cases where expert evidence with respect to international law (including the meaning of treaty obligations) has been accepted, apparently without objection to its admissibility: see, for example, Tracy v. Iranian Ministry of Information and Security, 2016 ONSC 3759, [2016] O.J. No. 3042 (Ont |S.C.J.), aff’d 2017 ONCA 549, leave to appeal to the Supreme Court of Canada ref’d [2017] S.C.C.A. No. 359.

[22] Similarly, in Najafi v. Canada (Public Safety and Emergency Preparedness), evidence of two international law experts as to the legality of the use of force in international law was adduced before the Federal Court, apparently without objection. That evidence informed the analysis of both the Federal Court and of this Court on appeal: 2013 FC 876, aff’d 2014 FCA 262, leave to appeal to the Supreme Court of Canada ref’d [2015] S.C.C.A. No. 2.

[23] A further example of this is found in Saskatchewan v. Saskatchewan Federation of Labour, 2012 SKQB 62. There, the Court of Queen’s Bench for Saskatchewan received expert evidence on Canada’s international treaty obligations with respect to labour relations and the right to strike: paras. 100 and 102. The matter was ultimately appealed to the Supreme Court of Canada. In her majority reasons, Justice Abella referred to the expert evidence on international law adduced by the Saskatchewan Union of Nurses, albeit without comment as to the admissibility of expert evidence on this issue: 2015 SCC 4, at para. 65.

[24] Indeed, as the appellants note, the Attorney General himself has adduced expert evidence with respect to international law issues in numerous cases: see cases listed at paras. 55-56 of the appellants’ memorandum of fact and law.

[25] The Attorney General notes that this Court has been prepared to strike inadmissible evidence at an early stage of the proceedings: Canada (Board of Internal Economy) v. Canada (Attorney General), 2017 FCA 43, [2017] F.C.J. No. 255 [Boulerice]. While the Court did find that the admissibility issue in Boulerice was better resolved at an early stage, this finding was based on the fact that the evidence in question was "“so clearly out of bounds ... that it ought to be stopped in its tracks”". The Court was further satisfied that there was "“simply no point in leaving it on the record, as it is so clearly inadmissible that there is no need to have a full record before coming to a final assessment of its merits”": at para. 30.

[26] What is apparent from the above review of the jurisprudence is that the evidentiary issue raised by the Attorney General’s motion to strike in this case is not as clear-cut as he contends. This suggests that it is preferable to leave the admissibility and necessity issues with respect to the evidence of the appellants’ expert witnesses to be determined by the panel assigned to hear this appeal.

[27] My finding in this regard is supported by the fact that this case is still at a very early stage. The parties have yet to file their memoranda of fact and law on the appeal, with the result that the issues raised by the appeal have yet to be fully fleshed out. The admissibility issues and the centrality of the disputed evidence to the ultimate issue or issues in this case are better determined once those issues have crystalized.

In addition, the court makes the following interesting observation on the role of international law in US courts:

[29] Dr. Dempsey was asked by the appellant, the International Air Transport Association, to provide his opinion on questions of American law relating to air passenger rights. In offering his opinion on these questions, Dr. Dempsey observed that the United States is a "“monist”" jurisdiction, meaning that, unlike the "“dualist”" system that we have in Canada insofar as international treaties are concerned, it is not necessary to enact domestic legislation to implement international treaties into American law. According to Dr. Dempsey, instruments such as the Montreal Convention are "“self-executing”", and are essentially deemed to be part of American law. The distinction between domestic law and international law is thus artificial in the American context, and that an opinion on the proper interpretation of international treaties, including the Montreal Convention, is an opinion on U.S. law.