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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part IV Federalism, B Federalism in Context, Ch.28 International Treaty-Making and Treaty Implementation

Hugo Cyr, Armand de Mestral

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

(p. 595) Chapter 28  International Treaty-Making and Treaty Implementation

1.  Introduction

Treaties have always been a contentious subject in Canadian law. Although for many countries treaty-making may be a straight-forward endeavour, in Canada it is rife with uncertainty brought on by Canada’s unique brand of federalism. The very limited references to treaty-making in Canada’s constitution have resulted in disagreement between some provincial governments, which claim they possess treaty-making capacity, and the Government of Canada, which has consistently rejected these claims. Moreover, the issue of treaty implementation is central to any discussion on treaties within Canada, given that Canada is a dualist country.

The first broad section of this chapter deals with the current modus vivendi of treaty-making in Canada and discusses constitutional issues, political pragmatism, executive versus legislative powers, and the division of powers. The second section addresses (p. 596) treaty implementation in the Canadian federation. The twin issues with respect to implementation deal with the division of powers’ impact on implementation, and when legislative implementation will actually be necessary.

2.  Entering Into Treaties

A.  Background and the Current Modus Vivendi of Federal-Provincial Collaboration

Due to Canada’s unique history, there is no explicit treaty-making provision to be found in the Constitution Act, 1867.1 At the time of Canadian Confederation in 1867, the Fathers of Confederation, as well as the British Parliament, did not expect that Canada or the provinces would engage in international relations independently from London’s Foreign Office.2 Interestingly, almost 30 years later when the Australian Constitution was enacted it included, under s. 51(xxix), a provision giving the Parliament of Australia the power to legislate with respect to external affairs.3 Nevertheless, throughout the course of subsequent Canadian history, despite several efforts, it has proven politically impossible to agree on the addition of language governing the conduct of foreign relations or treaty-making and implementation.4 These matters are now largely governed by the law of Crown prerogatives and constitutional conventions and practices.

The one exception to the general lack of treaty-related provisions in the Constitution Act, 1867 is s. 132. S. 132 does not deal with treaty-making but rather with the implementation of treaties entered into by the British Empire, and it reads:

The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.5

Although this provision only applies to implementation, it has also been restrictively interpreted to only applying to treaties entered into by the British Empire. Thus, it is simply a relic of Imperial times.6

(p. 597) There are four distinct steps in the Canadian treaty process: negotiation, signing, ratification, and implementation. In the first stage—negotiation—the federal government has adopted an official position that it will not enter into treaties dealing with matters falling under provincial jurisdiction without prior consultation with the provinces.7 However, this does not mean that the federal government consults the provinces in all matters which may relate to provincial jurisdiction. For example, the provinces were not consulted when the federal government ratified the Kyoto Protocol.8 Conversely, two areas where the federal government has extensively sought consultation are trade agreements and human rights instruments. Especially noteworthy is the creation of an information-sharing forum for stakeholders (including federal, provincial, and others) in relation to trade,9 and a Continuing Committee of Officials on Human Rights for federal consultations with provincial entities on human rights-related issues.10

Moreover many Canadian delegations sent to negotiate treaties on behalf of Canada include provincial participation. For example, despite the federal government not having consulted the provinces prior to ratifying the Kyoto Protocol, several provincial representatives (including Alberta’s Energy Minister) formed part of the Canadian delegation to Kyoto.11 Likewise, Canada’s delegation to the Third United Nations Conference on the Law of the Sea saw extensive federal consultation with the provinces, industry (especially fishing and mining industries), and trade unions.12 The actual delegation to the conference included representation of diverse interests and skills that included provincial, trade, and industry representation, and at one point the Canadian delegation was the third largest in the conference.13 The support across industries, governments, and unions enjoyed by the delegation to the conference was perhaps exceptional. However, both the Kyoto Protocol and the Conference on the Law of the Sea are examples of a dominant trend where the federal government allows for provincial participation in Canadian delegations where the subject matter involves matters within provincial jurisdiction.14 Provincial participation in major diplomatic negotiations varies extensively, but the inclusion of provincial representatives (and other stakeholders) in a Canadian delegation has been an exclusively political decision with no real formal or legal basis.15 Thus, (p. 598) although there may be little formal law on treaty-making in Canada, there certainly seems to be significant pragmatism which allows for rich and complex Canadian foreign policy and further empowers the provinces to fulfill their own domestic missions.

Nevertheless, a constitutional convention—or, at least, an accepted practice—exists allowing the provinces to exercise some limited foreign representation. Québec has been the most active in maintaining representation abroad, though each province engages in some form of foreign relations.16 Furthermore, it is common practice for the provinces to sign “administrative agreements” with foreign states to maintain relations and collaborate on a variety of issues.17 For example, Ontario is a signatory of the Great Lakes Charter (1985), and the Great Lakes-Saint Lawrence River Basin Sustainable Water Resources Agreement.18 But while the federal government has accepted these administrative agreements, it has likewise long taken the view that the provinces are unable to enter into treaties.19 The current modus vivendi is that the federal government tolerates—and even appears to promote—administrative agreements on matters within provincial jurisdiction between the provinces and foreign governments.

On the rare occasions when a province has dealt with a foreign state in ways Ottawa deemed inappropriate, the federal government threatened to cut diplomatic ties. One example comes from 1968, when Gabon’s National Minister of Education officially invited his Québec counterpart to participate in the annual conference of education ministers of francophone countries.20 The invitation was sent directly to Québec instead of going through Ottawa. Québec’s then-education minister accepted, took part in the conference, and was treated with all the honours usually bestowed upon representatives of sovereign states, causing Canada to sever diplomatic ties with Gabon. As for treaties, the federal government has adopted the same approach. Although Canada has never challenged in court the validity of provincial administrative agreements, it has condemned the inclusion of an arbitration clause purporting to be governed by international law in an agreement between Québec and the Federal Republic of Germany.21 Following Canada’s objection, Germany quickly withdrew the clause.22 The current modus vivendi thus appears to be that the provinces can exercise limited foreign relations—provided they do so with Ottawa’s explicit, or tacit, consent.

(p. 599) B.  Executive and Legislative Powers: Parliament and the Democratic Deficit

In Canada, the executive branch has extensive power during the treaty-making stage: according to the federal government, the signing and ratification stages are “wholly controlled by the executive.”23 This has led to criticisms that the treaty-making process in Canada suffers from a profound democratic deficit.24 Indeed, unlike the Westminster tradition, there is no requirement that the Executive consult the legislature prior or after entering a treaty.25 Despite these criticisms and calls for reform, it is well recognized that the executive branch exercises exclusive treaty-making power.

The legislature has little say in the treaty-making process until implementation. There is simply no Canadian equivalent to Article II, section 2 of the United States Constitution granting a “power, by and with the consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.”26 This has heavily restricted Parliament’s role in the treaty-making process, although prior to the Pierre Elliott Trudeau years, the federal government would often submit major treaties for parliamentary scrutiny.27 One famous example of this is the General Agreement on Tariffs and Trade (GATT), which entered into force in Canada in 1948.28 At the time, it was customary for the Executive to seek parliamentary approval for important multi-lateral instruments.29

Beginning in 1968 with P.E. Trudeau’s election, the government ceased submitting treaties for Parliamentary approval.30 The fact that his terms coincided with a fierce battle between Québec and the federal government over provincial capacity to engage in international relations likely contributed to his Cabinet asserting treaty-making as the exclusive function of the federal executive.31 Indeed, prior to his becoming Prime Minister, tensions ran high following provincial Education Minister Paul Gérin-Lajoie’s statement that Québec had the desire and capacity to be an international actor.32 Although Québec’s international aspirations likely influenced P.E. Trudeau’s stance on executive power over treaty-making, such speculation is ultimately immaterial. Suffice (p. 600) to say that during the P.E Trudeau years, the legislature had no role in the treaty-making process, as reflected in the official policy statements of Canada’s Secretaries of State for Foreign Affairs.33 This view has greatly influenced Canada’s legal landscape, and is now the judicially-accepted position.34

Following the P.E. Trudeau years, parliamentary approval has been occasionally sought for controversial treaties. It would appear that although there is no legal requirement for legislative approval of treaties, the federal government has accepted that parliamentary approval can add democratic legitimacy to the treaty-making process. An example of this recognition was the Kyoto Protocol, signed in 1997.35 Prior to ratification in 2002 the Protocol was submitted to and approved by Parliament.36 Despite ratification in 2002,37 and federal implementation through the Kyoto Protocol Implementation Act in 2007,38 the federal government exercised its executive power to withdraw from the treaty in 2011.39 This unilateral withdrawal was contested in Turp v Canada, where the Federal Court had to determine whether parliamentary implementation and approval meant that the Executive’s treaty-making powers were somehow transferred, in whole or in part, to Parliament.40 Justice Noël rejected this argument, stating that “it is up to Parliament to pass a law that would force the House of Commons to be consulted before a treaty is ratified or withdrawn from.”41 As this was not done, he continued, the power to conclude and withdraw from treaties remained with the executive branch of government—thus, he recognized the Executive’s exclusive treaty-making jurisdiction.42

(i)  Moving Forward: The 2008 Treaty Policy

However, in recent years the Executive has recognized the need for more parliamentary input in the treaty-making process. In 2008, then-Prime Minister Stephen Harper announced a new policy to enhance parliamentary involvement in the treaty process by requiring that all treaties be tabled in the House of Commons before ratification.43 This policy grants the House the ability to debate and recommend action pursuant to the treaty, but no real power was transferred and the policy remains “courtesy on the part of the executive, which retains full authority to decide whether to ratify the treaty.”44 In short, the legislature still has no real treaty-making power.

(p. 601) The 2008 policy has certainly improved the democratic process in treaty-making, but does not go very far. According to Campbell McLachlan, out of all former British colonies, Canada has the least developed process for parliamentary involvement in treaty-making.45 In effect, the 2008 policy imports the Ponsonby Rule into parliamentary procedure without making it law, meaning the policy has no real substance.46 This was seen by executive ratification of the Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries in 2009, despite Parliament having voted by way of resolution against ratification.47 Thus, although the 2008 policy has definitely increased Parliament’s role in the treaty-making process, it would seem that this role is largely symbolic.

C.  The Division of Powers: Federal and Provincial Treaty-Making Powers

The federal government is the primary treaty-making authority. Although many would suggest that it is the only treaty-making authority in Canada, in this chapter we argue that Canadian provinces also have some limited capacity to enter into treaties. Both topics shall now be addressed.

(i)  Federal Powers

It is well established that the federal government has treaty-making powers. But although many, such as Bora Laskin,48 Peter Hogg,49 and Stephane Beaulac50 have claimed that this power is plenary, it is impossible to identify a constitutional source to support this claim. Because the Constitution Act, 1867 is silent on the matter, proponents of the exclusive federal power cite the Letters Patent 1947 as the source of plenary (p. 602) federal treaty-making power.51 The Letters Patent certainly reveal a formal transfer of treaty-making powers possessed by the British Crown in 1947 to the Governor General of Canada, but it is wrong to suggest that the Letters Patent are the source of all treaty-making powers.52 Indeed, if the Letters Patent were the only source of the federal treaty-making power, then Canada would not have been able to enter into treaties prior to 1947, including the Charter of the United Nations.53 As the validity of Canada’s adherence to these treaties is not in doubt, the federal treaty-making power must have some other source.

Although the Letters Patent transferred King George VI’s remaining treaty-making powers to the Governor General, the scope of his remaining powers in 1947 is difficult to ascertain. To be sure, the Letters Patent were far from purely declaratory, and the King certainly transferred the ability to enter into “Head of State” treaties, such as peace treaties, to the Governor General.54 However, the federal government had already entered into treaties of its own accord, meaning that Canadian treaty-making powers over now-dominant “intergovernmental treaties” pre-existed the Letters Patent. Some of these inter-governmental treaties included Canadian-ratified ILO Conventions that formed the basis for the Labour Conventions Reference.55 In the Labour Conventions Reference, the provinces challenged federal legislation which sought to implement several ILO conventions, and the dispute ultimately reached the Privy Council. There, Lord Atkin accepted the provinces’ arguments that the federal government has no explicit implementation power, ruling that the “watertight compartments” of Canadian federalism cannot be trenched simply because the federal government had come to some agreement with foreign nations.56 His conclusion was therefore that treaties were to be implemented in Canada according to the usual division of powers under sections 91 and 92 of the Constitution Act, 1867.

Although it is impossible to pinpoint the precise source of the treaty-making power in Canada, we do know that treaty-making forms part of the royal prerogative.57 As a British Dominion, Canada inherited the same law governing prerogatives as existed in the United Kingdom. Importantly, royal prerogatives are understood as always having existed or having been lost by devolution, but as never being acquired.58 Thus, what occurred in Canada was not the acquisition of royal prerogatives, but rather a devolution of the treaty-making power from the Imperial Crown as the latter was divided into the (p. 603) Canadian Crowns. Although many considered the Crown to be a single, indivisible creature,59 Confederation strained the idea of an indivisible Crown. Indeed, in Canada the Crown was a single entity, but, similarly to the Holy Trinity, split in three: the Imperial Crown in London, the Crown in right of Canada, and the Crown in right of each of the provinces.60 Importantly, the Privy Council in Liquidators of the Maritime Bank of Canada v New Brunswick confirmed that each of these entities exercised royal prerogatives, and that their jurisdiction parallels that of the division of legislative powers.61 Similarly, the Privy Council also recognized that each provincial “Lieutenant-Governor, when appointed, is as much the representative of Her Majesty for all purposes of provincial government as the Governor-General himself is for all purposes of Dominion government.”62 Thus there can hardly be any doubt that in 1867 the “Crown” in Canada had three heads: one imperial, one federal, and one provincial.

At the time of Confederation only the Imperial Crown possessed treaty-making prerogatives.63 Sometime between Canadian Confederation and the Letters Patent, these royal prerogatives began to be exercised by the Crown in right of Canada and the Crown in right of the provinces. Nobody seriously argues that the Crown in right of Canada, now assuming the exercise of certain prerogative powers formerly enjoyed by the Imperial Crown, does not enjoy some treaty-making power. The real issue is not whether the federal government can exercise treaty-making powers, but whether the provinces also enjoy some treaty-making capacities.

(ii)  Provincial Powers: Background

A useful starting point is international law, specifically, the Vienna Convention on the Law of Treaties.64 There is no provision in the Vienna Convention which expressly allows component states of Federations to enter into treaties.65 Instead, the Vienna Convention leaves that question to domestic constitutional law. Many federated entities currently exercise treaty-making powers despite not exercising all of the attributes of statehood, and states that have authorized their constituent entities to enter into treaties include Germany,66 Switzerland,67 Belgium,68 and Argentina.69 However, the Canadian experience has resulted in considerably more tension between the federal government and the provinces.

(p. 604) It was not by coincidence that the province most actively arguing for the right to enter into treaties—Québec—did so during a period where it experienced a profound rise in nationalism often referred to as the “Quiet Revolution.”70 The Quiet Revolution was the explicit political fuel that resulted in the Gérin-Lajoie doctrine, which argued that Québec was a member of the Canadian federation but nonetheless capable of entering into treaties.71 Other members of Québec society did not share Gérin-Lajoie’s view that Québec was an integral part of Canada, which led to two unsuccessful sovereignty referendums in 1980 and 1995.72 This, in turn, has led some to fear that recognizing provincial treaty-making powers would be a step towards an independent Québec. However, federalist governments in Québec since Gérin-Lajoie have all taken the opposite view: recognizing a certain provincial autonomy eases the desire for independences and thus reinforces the Canadian federation.73

Many Canadian authors argue that the federal government has exclusive treaty-making powers.74 Apart from the Letters Patent argument examined above, some commentators have also argued that Lord Atkin, in the Labour Conventions Reference, ruled that the federal government has exclusive treaty-making power.75 However, this position is rather curious as the Privy Council clearly distinguished between treaty implementation and treaty formation.76 In fact, the Privy Council expressly refused to answer the argument that the federal government did not have exclusive treaty-making capacity:

[It] will be seen that the Provincial contention 1.(b) relates only to the formation of the treaty obligation […] as their Lordships have come to the conclusion that the reference can be decided upon the question of legislative competence alone [treaty implementation], in accordance with their usual practice in constitutional matters they refrain from expressing any opinion upon the questions raised by the contention 1.(b) [emphasis added].77

There is thus nothing in the Labour Conventions Reference to ground any plenary federal treaty-making power.

Although some have argued that the federal practice of acting as if it had plenary treaty-making powers might have evolved into a rule of law, this contradicts the Supreme Court of Canada’s view expressed in the Reference Re Québec Secession about the so-called “principle of effectivity.” The Court clearly rejected the idea that “a party (p. 605) may act without regard to the law, simply because it asserts the power to do so.”78 The alleged principle of effectivity was declared “contrary to the rule of law”79 and thus rejected. Likewise, the same must be said about the argument according to which the federal plenary treaty-powers would be the result of a constitutional convention that would have developed over the years and that would have “crystalized” into law. Not only does this view not take into account the long-standing opposition of certain key actors that would negate the possibility of creating such a convention, it does not take into consideration the long analysis and clear rejection of the “crystallization of constitutional conventions into law” theory by the Supreme Court in the Patriation Reference.80

(iii)  Provincial Powers: The Case for Jurisdiction over Treaty-Making

Although under the current modus vivendi the provinces do not enter into treaties with foreign states, there is nonetheless a case for provincial treaty-making capacity. According to this theory, provinces can enter into treaties on matters that fall under their jurisdiction under section 92 of the Constitution Act, 1867. Whether this capacity will ever be practicable is a question we do not seek to answer, but it does follow the normal assumption of the Constitution of Canada that executive powers mirror legislative powers, even if this does not seem in line with the current modus vivendi.

The argument for provincial treaty-making powers is premised on the fact that there was never a complete transfer of the treaty-making power from the Imperial Crown. As seen above, the commonly accepted view is that Canada’s independence from the United Kingdom meant a “Canadianisation” of the Crown; the Crown continues to hold its prerogatives no longer in the name of the United Kingdom, but rather for Canada. The trouble is that seamless transformation of the Crown occurred in favour of a federation and not a unitary state. But Canadian constitutional law had long developed rules specifying how Crown prerogatives have to be divided between the Crown in right of Canada and the Crown in right of provinces. A long line of jurisprudence holds that royal prerogatives reflect the constitutional division of powers under sections 91 and 92.81 Chief Justice Laskin stated in 1978 in Alberta v Canadian Transport Commission: “The Constitution of Canada distributes legislative power between a central Parliament and provincial Legislatures and prerogative or executive power (which is formally vested in the Queen) is similarly distributed to accord with the distribution of legislative power.”82 (p. 606) Thus it is possible to argue that as there was a devolution of royal prerogatives, and as royal prerogatives are distributed according to the division of legislative power, then it follows that the treaty-making prerogative was distributed according to sections 91 and 92.

Treaty-making, like language, is not a distinct matter under sections 91 or 92 of the Constitution Act, 1867 but is rather “ancillary” to the exercise of jurisdiction with respect to some class of subject matter assigned to Parliament or legislatures. For example, in Devine v Québec, the Supreme Court confirmed that statutes broaching language rights will be classified for constitutional purposes as laws in relation to the sections 91 or 92 powers which they affect, such as employment.83 The same reasoning applies to treaty-making, especially as the Privy Council in the Labour Conventions case stated that “[f]or the purposes of sections 91 and 92, i.e., the distribution of legislative powers between the Dominion and the Provinces, there is no such thing as treaty legislation as such.”84 Thus, as the federal government does not exercise plenary treaty-making powers, and as it is impossible to pinpoint an explicit transfer of treaty-making power to the federal government, it naturally follows that the provinces possess some treaty-making capacity.

3.  Treaty Implementation in the Canadian Federation

In Canada, following the dualist tradition inherited from the United Kingdom, “performance of [the state’s] obligations, if they entail alteration of the existing domestic law, requires legislative action.”85 However, the executive branch can fulfil treaty obligations of the state in such matters as national defence and diplomatic relations without legislative action if fulfilling its obligations does not require a modification of domestic law.86 All this flows from Canadian constitutional traditions and is explained particularly by the principle that the Executive cannot make the law. Unlike the United States87 or France88, the legislature seldom has a role in treaty ratification. The situation is however quite different when it comes to treaty implementation. Here, as explained by the Privy Council in the Labour Conventions Reference,89 and more recently by Justices (p. 607) L’Heureux-Dubé and McLachlin (as she then was) in Thomson v Thomson,90 the normal division of powers governs the implementation of all treaties, and any action taken to enforce a treaty must be justified by law.

A.  Treaty Implementation Requiring Changes to Domestic Law

The leading case on the matter is the Labour Conventions Reference, where the federal government invoked section 132 of the Constitution Act, 1867 to argue that it had a general power to implement treaties. Reproduced above, it confers upon Parliament the authority to implement all treaties signed between the British Empire and foreign nations on behalf of Canada.91 However, this section was interpreted restrictively by the Privy Council, and no expansion of this power by analogy has ever been accepted subsequently by the courts. In the 1937 Labour Conventions Reference, Lord Atkin wrote that treaties signed by Canada as an independent international person do not fall under section 132.92 Instead, he decisively ruled that treaties must be implemented according to the head of power under which their subject matter falls.93 For example, the ILO Conventions subject to the reference had to be implemented by the provinces because labour relations fell mainly under provincial jurisdiction over property and civil rights under section 92(13).94 Despite academic criticism,95 judicial obiter,96 and ex cathedra statements97 that the Labour Conventions Reference may require revisiting, it remains good law. Indeed, this is true as it protects Canadian federalism from the risk of gutting provincial powers in an era where most domestic issues may be subject to international agreements. This means that section 132 has become nothing more than a historic relic of Canada’s Imperial legacy.98

(p. 608) Several notable judicial pronouncements have been made since the Labour Conventions Reference. First, in Francis v the Queen, the Supreme Court of Canada was asked whether a person deemed an “Indian” under the Indian Act could rely on the Treaty of Amity, Commerce, and Navigation to avoid paying duties on goods he imported from the United States under the Customs Act.99 As the treaty was never implemented by legislation, the question was whether implementation was required. The Court ruled that implementation was indeed necessary, but Justice Rand, in his concurring opinion, also reflected on the current state of the law with respect to treaties:

[Treaty] implementation may call for both legislative and judicial action. Speaking generally, provisions that give recognition to incidents of sovereignty or deal with matters in exclusively sovereign aspects, do not require legislative confirmation: for example, the recognition of independence, the establishment of boundaries and, in a treaty of peace, the transfer of sovereignty over property, are deemed executed and the treaty becomes the muniment or evidence of the political or proprietary title.100

Second, Chief Justice Laskin in Vapor Canada suggested that an explicit statement incorporated into a federal law to the effect that the purpose of the law was to implement a treaty could be seen as the exercise of the general power under section 91 and thereby provide constitutional justification for Parliament to implement the treaty.101 It is not clear whether he intended this statement to apply to treaties covering matters under provincial jurisdiction.102 In any case, this position has not been subsequently endorsed by the courts.

B.  Treaty Implementation: Canadian Practice

Implementation in Canada may take different forms. In very rare cases, it may involve giving the treaty text itself the force of law or giving “direct effect” to the treaty, but in most cases involves legislation translating the treaty into law or various forms of subordinate legislation, executive, or even judicial action. Thus, treaty implementation is effected in Canada by many different means. These include the application of a rule of the common law, executive action under the prerogative, or legislation by Parliament or the provincial legislatures. In fact, implementation is accomplished by at least 13 different approaches in current Canadian practice.103

The first form of implementation is textual incorporation, in whole or in part, of a treaty. This makes the text of the treaty itself part of Canadian law, and is often used in relation to definitions found in treaties.104 The second form of implementation is (p. 609) attaching the text of the treaty as a schedule to legislation, which typically gives effect only to certain articles of a treaty. An example is the incorporation of Article 1Fc of the Refugee Convention into the Immigration and Refugee Protection Act.105 Third, there may be specific implementation by reference to particular treaty provisions.106 The fourth form is the transposition of the treaty into Canadian statutory language. This is the most popular approach, most likely since it allows for the transposition of treaties into Canadian legal language, thus ensuring consistency among related statutes.107 Fifth, some acts include statements of intention to implement a treaty. Unfortunately, it would seem that these types of statements are treated by courts as merely declaratory, and will not be given direct effect.108 The sixth type relates to statements of intention to approve treaties, which occurs rarely due to the Executive’s power over ratification.109 Thus, this is also seen as purely declaratory.

The seventh way of implementing treaties is by adopting legislative or judicial instructions for interpretation that give priority to a treaty. This method requires that laws be interpreted consistently with the treaty in question.110 Similarly, the eighth form of implementation involves adopting legislative provisions which provide for the adoption of implementing measures by regulations or decisions by the Governor-in-Council, a minister, or an independent tribunal. However, it does not seem that the failure to respect the treaty’s terms has ever successfully been invoked vis-à-vis this method of implementation.111 Ninth, the government sometimes adopts regulations with the purpose of implementing a treaty, and regulatory agencies whose authority is broad enough may adopt regulations implementing treaties.112 The tenth form is by reliance upon a rule or provision of the Constitution. Indeed, since Slaight Communications v Davidson in 1989, the law is clear that the Canadian Charter is presumed to be as generous as the international human rights treaty obligations that Canada has undertaken to protect.113

The eleventh form of implementation is reliance upon pre-existing federal or provincial legislation or rules of the common law. Although this was a more controversial argument several decades ago, since then the Supreme Court has repeatedly stated that “where possible statutes should be interpreted in a way that makes their provisions consistent with Canada’s international treaty obligations,”114 and that “it is presumed that the legislature acts in compliance with Canada’s obligations as a signatory of international (p. 610) treaties and as a member of the international community.”115 However, a treaty will only have domestic legal effect if it does not contradict express statutory language. As held in Németh v Canada, the presumption that domestic law reflects international treaty obligations or customary international law is a rebuttable one, and unambiguous legislation which contradicts a treaty will be given legal effect.116 Similarly, the twelfth form of implementation involves implementation through the common law including the royal prerogative.117 Finally, the thirteenth form is reliance upon the intention of the treaty as self-executing or non-self-executing to determine its effects on the domestic legal system.118 Since under current law it is understood that statutes should, where possible, be interpreted in conformity with Canada’s international obligations, it is important to identify which treaties are actually self-executing. Some treaties aim to have direct effect, and thus should be used in statutory interpretation once they are ratified. Others do not, and require governmental discretionary action.

The leading decision with respect to the interpretation of treaties under Canadian law is National Corn Growers Association v Canada (Import Tribunal).119 In National Corn Growers the Canadian Import Tribunal conducted an investigation into whether subsidies paid to American producers substantially lowered Canadian corn prices, causing material injury to the domestic industry pursuant to section 42 of the Special Import Measures Act.120 In deciding whether injury occurred, the Tribunal interpreted section 42 in light of the GATT. This approach was contested both before the Federal Court of Appeal121 and before the Supreme Court. Justice Gonthier, writing for the majority, made several important statements about the law. First, he stated that “in circumstances where the domestic legislation is unclear it is reasonable to examine any underlying international agreement.”122 Second, he wrote that “[i]n interpreting legislation which has been enacted with a view towards implementing international obligations, as is the case here, it is reasonable for a tribunal to examine the domestic law in the context of the relevant agreement to clarify any uncertainty.”123 Finally, and most importantly, he rejected the idea that recourse to a treaty may only be made where domestic legislation is ambiguous:

It is reasonable to make reference to an international agreement at the very outset of the inquiry to determine if there is any ambiguity, even latent, in the domestic legislation. The Court of Appeal’s suggestion that recourse to an international treaty is only available where the provision of the domestic legislation is ambiguous on its face is to be rejected.124

(p. 611) A more recent, widely-cited but somewhat confusing decision is Baker v Canada (Minister of Citizenship and Immigration).125 In Baker the appellant contested her deportation under the Immigration Act, which would have resulted in the fact that she would have had to leave her Canadian-born children behind, and invoked the International Convention on the Rights of the Child, a treaty which was ratified by Canada after years of review by the federal and provincial governments but which, according to Justice L’Heureux-Dubé, was not yet implemented.126 Justice L’Heureux-Dubé, writing for a majority of the Supreme Court of Canada, emphatically stated that “[i]nternational treaties and conventions are not part of Canadian law unless they have been implemented by statute.”127 However, she continued by writing that “[n]evertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review,” and in doing so interpreted the Immigration Act consistently with Canada’s obligations under the Convention.128 Although the principle enunciated by Justice L’Heureux-Dubé concerning the utility of interpreting Canadian law in the light of treaty obligations is a sound approach, her assumption that treaties must be implemented by specific statute and that the Convention was an “unimplemented” treaty have led to considerable confusion. The Convention had arguably been implemented by the common law and a host of federal and provincial enactments already in force at the time of ratification, as well as judicial pronouncements, and it is by no means clear that further legislative action was needed to ensure that Canadian domestic law conformed to the provisions of the treaty.

Furthermore, treaties are now regularly cited to support judicial pronouncements. The Supreme Court of Canada recently invoked international law to great effect in Saskatchewan Federation of Labour v Saskatchewan to reverse the long-standing position that the freedom of association under section 2(d) of the Charter does not protect the right to strike.129 In this decision the Court came to its conclusion citing, among other things, ILO instruments and other labour-related conventions to which Canada is a party.130 Similarly, the Court has also been adamant in interpreting Charter rights consistently with Canada’s international human rights obligations. Justice LeBel and Chief Justice McLachlin said as much in Health Services and Support—Facilities Subsector Bargaining Association v British Columbia: “the Charter should be presumed to provide at least as great a level of protection as is found in the international rights documents that Canada has ratified.”131 According to Justice LeBel and Chief Justice McLachlin, it is ratification, not implementation, which lends legal authority to international human rights documents. Furthermore, this authority appears to be binding rather than merely (p. 612) persuasive: they place a presumption in favour of the treaty which can only be displaced pursuant to clear statutory language. Indeed, this presumption was turned into an injunction to the Courts: “in interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction.”132

Finally, it may be argued that not having legislative implementation as the only means of implementation undermines Canadian democracy. Considering that Parliament only exercises power over treaties at the implementation phase, eliminating pure legislative implementation as a requirement for treaties to have force of law in Canada in some instances seemingly places all power at the hands of the Executive.133 Although this argument may have been persuasive several decades ago, its persuasive force is largely non-existent today. The reason for this is that ratified treaties will only influence Canadian law if they do not contradict express statutory language or established rules of the common law. Following the 2008 Policy, there is no reason a diligent Parliament would be caught unaware by a treaty. Thus, although Parliament may have less of a formal role in the treaty-making process, it could always pre-empt the Executive, thereby eliminating the democratic deficit. Arguably, what is still required in Canada is the granting of a more explicit role to Parliament in the oversight of treaty negotiations and the formal approval of a treaty. This is even truer of the need to formalise provincial executive and parliamentary involvement in federal treaty-making dealing with provincial matters in order to ensure that such treaties are implemented effectively and without any democratic deficit.

4.  Conclusion

The constitutional nuances that drive treaty-making and implementation within Canada are far from simple. First, it was seen that the Executive possesses all treaty-making power within Canada. Second, the much more controversial issue of provincial powers over treaty-making was addressed, and we conclude that the provinces could, in fact, exercise limited treaty-making capacity despite focusing on the use of administrative agreements in the face of staunch opposition from Ottawa to recognize a full jus tractus to the provinces.

Treaty implementation benefits greatly from the existence of many more judicial pronouncements on the matter when compared to treaty-making. First, as has been seen, there are at least 13 different forms of implementation in Canada. Unlike Justice L’Heureux-Dubé’s view in Baker, a treaty does not necessarily need to be implemented by statute to have effect under Canadian law. This has become increasingly apparent (p. 613) from the Supreme Court of Canada’s judgments rendered after Baker, and it shows the richness of treaty law with respect to implementation in Canada. Second comes the question of which jurisdiction can properly implement treaties. The leading case on the matter is the Labour Conventions Reference, which still remains good law, and holds that implementation is to be done according to the division of powers—federal or provincial.

Chief Justice Laskin came very close to overturning the Labour Conventions case in Vapor Canada, but ultimately stated that “although the foregoing references would support a reconsideration of the Labour Conventions case, I find it unnecessary to do that here.”134 Chief Justice Laskin was a devoted centralist, and one of the staunchest advocates of increased authority for the federal government.135 During his early career as an academic, he was a particularly outspoken critic of the Privy Council’s restriction of the general power under s. 91.136 Some have pointed to his struggles as a young man from an immigrant family during the depression of the 1930s, where the provinces had insufficient funds to provide adequate social and economic benefits, being the source of his views about the necessity of a strong federal government.137 Tempora mutantur et nos mutamur in illis, but subsequent courts have not seen fit to take up Chief Justice Laskin’s lead, and there seems to be no likelihood that this will happen. This is particularly true in light of the drastic changes it would bring to the federal equilibrium between Ottawa and the provinces in an era where domestic matters are increasingly subject to international agreements.138

Bibliography

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  • Legislation

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  • An Act respecting the Ministère des Relations internationales, R.S.Q. c. M-25.1.1, s. 22.1
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Footnotes:

Hugo Cyr, LL.B., B.C.L. (McGill), LL.M. (Yale), LL.D. (U. de Montréal), is Dean and Professor of Public Law and Legal Theory at the Université du Québec à Montréal and a member of the Québec Bar. He is a member of the Centre de recherche interdisciplinaire sur la diversité et la démocratie (CRIDAQ). He has been a Boulton Fellow at McGill University, a law clerk to the Honourable Justice Ian C. Binnie of the Supreme Court of Canada, a Visiting Researcher at the European Academy of Legal Theory, a Visiting Professor at McGill University, and a Schell Fellow at Yale Law School.

**  Armand de Mestral, C.M., A.B. (Harvard), BCL, (McGill), LLM. (Harvard), Emeritus Professor, Jean Monnet Professor of Law, McGill University.

The authors wish to express their thanks to Robin Morgan, LL.B, BCL. (McGill), LL.M. candidate Harvard Law School for his invaluable assistance in preparing this manuscript.

1  See Peter Hogg, Constitutional Law of Canada (loose-leaf 5th ed Carswell 2007) 11–12; Constitution Act, 1982, ss 91–92, being Schedule B to the Canada Act 1982 (UK), 1982 c 11; Hugo Cyr, Canadian Federalism and Treaty Powers (P.I.E Peter Lang SA, 2009).

2  Cyr, above (n 1), 35.

3  Commonwealth of Australia Constitution Act 1900 Chapter 12.

4  This was seen in the two failed attempts to amend the Canadian Constitution, namely, the Charlottetown Accord and the Lake Meech Accord. For details see Hogg above (n 1) at ch 4.

5  Constitution Act, 1867 s 132.

6  AG Canada v AG Ontario (Labour Conventions) [1937] AC 326.

7  Edward G Lee, “Canadian Practice in International Law at the Department of External Affairs” [1986] Can YB Int’l Law 386, 397.

8  Cyr above (n 1) 212–213.

9  See Christopher Kukucha, The Provinces and Canadian Foreign Trade Policy (UBC Press 2008) 53–58.

10  See for example Canada, Final Report of the Standing Senate Committee on Human Rights, Children: The Silenced Citizens (April 2007) xi–xii.

11  Bruce Wallace and Danylo Hawaleshka, “Inside the Kyoto Deal” Macleans (22 Dec 1997) http://www.thecanadianencyclopedia.ca/en/article/inside-the-kyoto-deal/ accessed 23 June 2016.

12  Armand de Mestral and LHJ Legault, “Multilateral Negotiation—Canada and the Law of the Sea Conference” (1979–1980) 35 Int’l J 47, 51–52.

13  Ibid 53.

14  Armand de Mestral, “The Province and International Relations in Canada” in Jean-Francois Gaudreault-DesBiens and Fabien Gélinas, The States and Moods of Federalism (Éditions Yvon Blais, 2005) 309, 317–318.

15  Ibid 318.

16  See Cyr above (n 1) 186–196.

17  Ibid 186–196. See also de Mestral above (n 14) generally.

18  Great Lakes Charter, (Council of Great Lakes Governors 1985); Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement, (Council of Great Lakes Governors 2005).

19  See Paul Martin, Federalism and International Relations (Queen’s Printer 1968); see also de Mestral above (n 14) [322–323].

20  A summary of these events can be found in Prof. Jean-Herman Guay’s historical project Bilan du siècle: une base intégrée d’information sur le Québec (Anonymous, “1968 Participation du Québec à la conférence de Libreville” in Jean-Herman Guay et al., Bilan du siècle: une base intégrée d’information sur le Québec, online: Université de Sherbrooke, Faculté des lettres et sciences humaines, Bilan du siècle http://bilan.usherbrooke.ca/bilan/pages/evenements/1934.html).

21  De Mestral above (n 14) 323.

22  Ibid 323.

23  Laura Barnett, “Canada’s Approach to the Treaty-Making Process” (Parliament Background Paper, 6 November 2012) http://www.lop.parl.gc.ca/content/lop/researchpublications/2008-45-e.htm accessed 02/06/2016.

24  Armand de Mestral and Evan Fox-Decent, “Implementation and Reception: The Congeniality of Canada’s Legal Order to International Law” in Oonagh Fitzgerald (ed), The Globalized Rule of Law (Irwin Law, 2006) 31.

25  Ibid 56.

26  Art II US Constitution.

27  De Mestral and Fox-Decent above (n 24) 36–37.

28  See Canada, House of Commons, Debates, 20th Leg, 4th Sess, (1948).

29  De Mestral and Fox-Decent above (n 24) 36–37.

30  Ibid.

31  Ibid 36; Pierre Elliott Trudeau, Memoirs (first published in 1993, McClelland & Stewart, 1994).

32  Québec, Ministere des Relations internationales, Paul GL speech delivered at Montreal to the Consular Corps on April 12, 1965, online: https://www.saic.gouv.qc.ca/documents/positions-historiques/positions-du-qc/part2/PaulGuerinLajoie1965_en.pdf, accessed 2 June 2016.

33  Martin above (n 19).

34  See Turp v Canada 2012 1 FCR 439.

35  Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, UN Doc FCCC/CP/1997/L7/Add.1, 37 ILM 22 [hereinafter Kyoto Protocol].

36  See the debates: Canada, Hansard 37th Leg, 2nd Sess, (2 December 2002).

37  See the Kyoto Protocol Implementation Act, SC 2007 c 30 [repealed 28 June 2012].

38  Kyoto Protocol Implementation Act SC 2007 c 30, repealed 2012 c 19 s 699.

39  Hogg above (n 1) [11-5].

40  Turp above (n 34).

41  Ibid 31.

42  Ibid.

43  Barnett above (n 23); Foreign Affairs and International Trade Canada, “Canada Announces Policy to Table International Treaties in House of Commons,” News Release No 20, 25 January 2008.

44  Barnett above (n 23).

45  Campbell McLachlan, Foreign Relations Law (Cambridge University Press, 2014) 172.

46  Ibid.

47  Ibid; Canada, Eighth Report of the Standing Committee on Fisheries and Oceans, Vote No 158 40th Parliament, 2nd Session, Sitting No 128 (1 December 2009).

48  Bora Laskin, “The Provinces and International Agreements” in Ontario, Ontario Advisory Committee on Confederation, Background Papers and Reports, Vol. 1 (Queen’s Printer 1967). Bora Laskin argued that treaty-making was necessarily associated with sovereignty. However, since the time when Laskin wrote this article, it is now well-known that this is certainly not the case (see Cyr above (n 1) 150).

49  Hogg above (n 1) at ch 11. Of the three authors cited here Hogg is the most blunt in his proposition about the Letters Patent, stating that the source is necessarily and entirely the Letters Patent. He then goes on to echo Bora Laskin’s arguments concerning sovereignty.

50  Stephane Beaulac, “The Myth of Jus Tractatus in La Belle Province” [2012] 35 Dalhousie LJ 237; Cyr above (n 1) 196–199. Beaulac’s position is not quite that the Letters Patent were the transfer, but rather that they officialised the transfer of plenary powers to the federal government. However, he does claim that it is the de jure confirmation of the de facto plenary treaty-making powers, and thus does in fact argue that the legal source of the transfer is the Letters Patent.

51  Letters Patent Constituting the Office of the Governor General of Canada, 1947, reproduced at R.S.C. 1985, Appendix II, No. 31 (Letters Patent). For proponents of the exclusive power see Laskin above (n 48), Hogg above (n 1), Beaulac above (n 50).

52  Hogg above (n 1) 11-2;

53  Charter of the United Nations, 26 June 1945, Can TS 1945 No 7.

54  Cyr above (n 1) 107.

55  See, for example, the Weekly Rest in Industrial Undertakings Act 1935, St. Can. (25 & 26 Geo. 5, c. 14).

56  Labour Conventions above (n 6) 354.

57  Beaulac above (n 50); Cyr above (n 1) 196–199.

58  Albert V Dicey, An Introduction to the Study of the Constitution (10th ed Macmillan 1967) 424.

59  Cyr above (n 1) 109 and 293n.

60  Ibid. 109.

61  Liquidators of the Maritime Bank of Canada v New Brunswick [1892] AC 437.

62  Ibid 442.

63  See generally Cyr above (n 1) at ch 1.

64  Vienna Convention, (1969) 1155 UNTS 331.

65  De Mestral above (n 14).

66  See the Grundgesetz fur die Bundesrepublik Deutschland 2001, Art 32.3.

67  Constitution fédérale de la Confédération Suisse du 18 avril 1999, Art 56.

68  Texte coordonné de la Constitution du 17 février 1994 (Moniteur belge, 2nd ed. Feb. 17, 1994) updated 31 January 2014, art. 167.

69  Constitutión Nacional de la República Argentina 1994, Art 124(1).

70  Michael Gauvreau, The Catholic Origins of Québec’s Quiet Revolution 1931–1970 (McGill-Queen’s Press, 2005).

71  Paul Gérin-Lajoie speech, above (n 32).

72  Lysiane Gagnon, Chroniques référendaires: les leçons des référendums de 1980 et 1995 (Québec Amérique, 2015).

73  Québec Liberal Party, A Project for Québec: Affirmation, Autonomy and Leadership; Final Report of the Special Committee on the Political and Constitutional Future of Québec Society, (Montreal 2001).

74  Hogg above (n 1) at ch 11; Beaulac above (n 50); Laskin above (n 48).

75  See Beaulac above (n 50).

76  Labour Conventions above (n 6); Cyr above (n 1) 82–84.

77  Labour Conventions above(n 6) 348–349.

78  Reference re Secession of Québec [1998] 2 SCR 217 [107].

79  Ibid [108].

80  Re: Resolution to amend the Constitution [1981] 1 SCR 753, 774–784. Incidentally, the majority of the Supreme Court commented (p. 779): “There is nothing in the other judgments delivered in the Labour Conventions case, either in the Supreme Court or in the Privy Council that takes the matter there beyond its international law setting or lends credence to the crystallization proposition urged by counsel for the Attorney General of Manitoba.”

81  Examples include Liquidators of the Maritime Bank of Canada [1892] A.C. 437; Bonanza Creek Gold Mining Co v Regem [1916] 1 AC 566; Alberta v Canadian Transport Commission [1978] 1 SCR 61, 71; see also Cyr above (n 1) 111–112.

82  Alberta v Canadian Transport Commission, above (n 80) 71.

83  Devine v Québec (Attorney General) [1988] 2 SCR 790; Hogg above (n 1) 56-3.

84  Labour Conventions above (n 6) 351.

85  Ibid 347.

86  Francis Rigaldies and Jose Woehrling, “Le juge interne canadien et le droit international” (1980) 21 C. de D. 293, 314 reported that around 1980, 296 treaties ratified by Canada did not require any legislative action for their implementation. For a list of treaties falling within the exclusive jurisdiction of the executive branch, see Francis v R., [1956] S.C.R. 618 at 625ff.

87  See John Norton Moore, The National Law of Treaty Implementation (Carolina Academic Press, 2001).

88  See Monroe Leigh and Merritt R. Blakeslee, National Treaty Law and Practice: France, Germany, India, Switzerland, Thailand, and the United Kingdom (American Society of International Law, 1995).

89  Labour Conventions above (n 6) 348.

90  Thomson [1994] 3 SCR 551, 612. The opinion of the judges is otherwise rather confused, claiming erroneously, at 610, that the power of the Canadian government to make treaties flows from section 132 of the Constitution Act, 1867, a provision that, as we have seen earlier, clearly only refers to the implementation of Imperial treaties.

91  See above “Background and the Current Modus Vivendi” at n 5 and accompanying text.

92  Labour Conventions above (n 6).

93  Ibid.

94  Constitution Act, 1867.

95  Hogg above (n 1) at ch 11; FR Scott, “Labour Conventions Case” (1956) 34 Can Bar Rev 114; Torsten Strom and Peter Finkle, “Treaty Implementation: The Canadian Game Needs Australian Rules” (1993) 25 Ottawa LR 39.

96  Francis v Canada, [1956] SCR 618; Macdonald v Vapor Canada Ltd. [1977] 2 SCR 134.

97  Lord Wright, “Rt. Hon. Sir Lyman Poore Duff” (1955) 33 Can Bar Rev 1123; Ivan Rand, “Some Aspects of Canadian Constitutionalism” (1960) 38 Can Bar Rev 135.

98  A few acts of Parliament enacted under s. 132, such as the Boundary Waters Act RSC 1985 c I-17 made pursuant to the Treaty Relating to Boundary Waters and Questions Arising with Canada, United States and United Kingdom, 11 Jan 1901, 36 US Stat 2448 are still in force.

99  Francis above (n 96).

100  Ibid (per Justice Rand) 625.

101  Vapor Canada above (n 96); see also Capital Cities Communications v CRTC [1978] 2 SCR 141, 171–177.

102  Ibid.

103  De Mestral and Fox-Decent (n 24) 45–46.

104  Ibid 46–47. For an example see the Tax Conventions Implementation Act SC 2005 c 8.

105  See the Immigration and Refugee Protection Act SC 2001 c 27. See also Pushpanathan v Canada [1998] 1 SCR 982.

106  See An Act to Amend the Patent Act and the Food and Drugs Act SC 2004 C 23 s 21.02.

107  De Mestral and Fox-Decent above (n 24) 48–49.

108  Ibid 49–50.

109  Ibid 50–51.

110  Ibid 50–51. See also the North American Free Trade Agreement Implementation Act SC 1993 c 44 s 21.

111  De Mestral and Fox-Decent above (n 24) 52. For an example see the Chemical Weapons Convention Implementation Act SC 1995 c 25.

112  De Mestral and Fox-Decent above (n 24) 52–53.

113  Slaight Communications v Davidson [1989] 1 SCR 1038. See also Health Services and Support—Facilities Subsector Bargaining Assn. v British Columbia 2007 SCC 27 at [70], [79].

114  Németh v Canada 2010 SCC 56, [34].

115  R v Hape 2007 SCC 26, [53].

116  Németh above (n 114) 35.

117  De Mestral and Fox-Decent above (n 24) 55.

118  Ibid 56.

119  National Corn Growers Association v Canada (Import Tribunal) [1990] 2 SCR 1324.

120  Special Import Measures Act RSC 1985 c S-15.

121  National Corn Growers Association v Canada (Import Tribunal) [1989] FCJ No 1159.

122  National Corn Growers Association above (n 119) (Gonthier J).

123  Ibid.

124  Ibid.

125  [1999] 2 SCR 817.

126  Immigration Act (IRPA); Convention on the Rights of the Child, UNGA, Treaty Series vol 1577 p 3.

127  Baker above (n 125) [69].

128  Ibid [70].

129  Saskatchewan Federation of Labour v Saskatchewan 2015 SCC 4.

130  Ibid [67–75].

131  BC Health Services above (n 113) 70.

132  Hape above (n 115) 56.

133  See above under “legislative powers.”

134  Vapor Canada above (n 96) 169.

135  The Constitutional Law Group, Canadian Constitutional (Emond Montgommery, 2012) 295.

136  Ibid.

137  Ibid 296.

138  On the major constitutional difficulties that would arise in the different parts of the Canadian Constitution from a judicial reversal of the Labour Conventions, see Cyr above (n 1), at ch. III.