Evidence and procedure

AuthorGib van Ert
Evidence and procedure
Litigants seeking to rely on or respond to submissions concerning
international law must begin by considering how to do so as a matter
of evidence a nd procedure. e practical importance of these i ssues is
at lea st twofold. First, if a poi nt of internationa l law requires proof,
counsel must consider how to prove it. Conversely, if no proof is re-
quired, counsel may wish to objec t to the admissibility of opinion or
other e vidence concerning it. Second, if the international legal ques-
tion in issue requires proof, appellate courts shou ld ordinari ly defer
to the tria l judge’s f‌i ndings on the poi nt and may hesitate to accept
international law submi ssions for the f‌irst time on appeal. If, however,
international law i s a question of law not fact, appe llate courts may
not feel so constrained. Behind t hese practical matters is an import-
ant theoretical question. How does Canadian l aw regard international
law — as law (as it claims to be) or as fact?
e balance of Canadian authority, especially when supplemented
with UK, US, and other persu asive sources, indicates that Canadia n
courts should general ly treat international law questions as legal mat-
ters to be decided by the courts and not factual matters to be pleaded
and proved in evidence. What uncertainty surrounds the issue arises for
the most part from Canadian cour ts’ failing to t urn their minds to the
question — frequently, it seems, because t hey take it for g ranted that
the y may ha ve rega rd to i nterna tiona l law i n appro priat e case s. ey a re
right to do so, but some conceptu al clari f‌ication of the point would be
welcome. As explained below, however, there are some exceptional cases
in which points of internationa l law may require proof in evidence.
     
. Judicial notice of international law
By the doctrine of judic ial notice, courts and other adjudicating bodies
will accept the existence of certain matter s without requir ing proof.
e doctri ne is most often invoked in respect of fac ts, but courts al so
take judici al notice of law. is rule has its origins i n the common law
but has also been declared in statutes. It is also est ablished in Quebec
civil law. e va rieties of law w hich judges are b ound to recognize by
the doctrine of judicial notice include the princ iples of equity, common
law precedents, and Acts of Parliament. Judicial notice is also taken of
international law, though the general rule and its application in par-
ticular c ases are not without some uncertainty.
(a) e orthodoxy
In , Lauterpacht observed that while English judicia l practice sup-
ported the proposition that international law is judicial ly noticed and
therefore need not be specif‌ically proved, it was ne vertheless dif‌f‌icult
“to trace a ny judicial pronouncement beari ng directly on the matter.
Macdonald made the same observation about Canad ian law in ,
See J. Sopinka , S. Lederman, & A . Bryant, e Law of Eviden ce in Canada, d ed.
(Toronto: Butterworth s, ) at ; M. Howard et al., eds., Phipson o n Evi-
dence, th ed. (London: Swe et & Maxwell,  ) at –; F. Bennion, Statutory
Interpretation: A Code, t h ed. (London, Butterw orths, ) at s. ; R. Su llivan,
Sullivan and Driedger o n the Construction of Stat utes, th ed. (Mark ham, ON:
Butterwort hs, ) at –.
e judicial not ice of Acts of the federal Pa rliament is provided for b y s.  of
the Canad a Evidence Act RSC  c. C- . e judicial notice of prov incial Acts
is provided for by prov incial legi slation; for example, Ev idence Act RSBC 
c.  s. () (B ritish Columbia), Civi l Code of Québec RSQ c. C- a rt. 
[CcQ] (Quebec).
CcQ art.   provides in part, “Judici al notice shall be t aken of the law in force
in Québec.” See genera lly arts.  –.
Bennion, above note  at s. ; Hal sbury’s Laws of England, th e d., vol.  (Lon-
don: Butterwor ths, –) at para. .
H. Lauterpacht , “Is Internationa l Law a Part of the Law of Engl and?” () 
Transactions of t he Grotius Society  at n(i). Instea d, Lauterpacht relies on
an Americ an case called e S cotia  Wall  at  (US Sup Ct  ) [e Sco-
tia] (quoted in the text fol lowing n. ). See also e New York  US  ().
See R. St. J. Macdonald, “ e Relationship Be tween Domestic Law and Inte r-
national L aw in Canada” in R. St. J. Macdon ald et al., eds., Canadian Perspec tives
on International La w and Organization (Toronto: Universit y of Toronto Press,
) at .
3 • Evidence and procedure 
and it holds true still. W hile international law is frequently considered
by our courts, there are only a few cases in wh ich the practice has been
explained in terms of judicial notice. e clearest statements of the
rule that courts ta ke judicial notice of internationa l law come not from
decided cases but from commentators. A previous edition of Halsbur y’s
Laws of England st ated simply, “e courts take notice of every branch
of English law, including the principles of international law . . . .” Simi-
larly, the Restatement (ird) of the Foreign R elations Law of the United
States observes, “State courts take judicial notice of federal law and will
therefore take jud icial notice of internationa l law as law of the Un ited
States.” e rule has won approva l from Canadian commentators.
Judicial notice of internationa l law is to be contrasted with t he
treatment of foreig n law (that is, the domestic law of other states), of
which judicial notice is not taken in the common law tradition. R ather,
foreign law is treated as a matter of fact to be ascertained by the evidence
of ex perts.  An old decision of the US Supreme Court contrasts foreign
and international law directly : “Foreign municipal laws must indeed be
proved as fac ts, but it is not so with the law of nations. Lauterp acht
considered that intern ational law need not be proved i n the same way
as foreign law in common law courts “apparently for the reason that it
is not foreign law.” e importance of th is distinction between inter-
national l aw and foreign law goes beyond the r ules of evidence to the
Halsbur y’s Laws of England, above note , vol.  at par a. ; see also vol.  at
para.  ; and Bennion, above note  at s. .
American L aw Institute, Restatement ( ird) of the Foreign Relations La w of the
United States (St. Paul, MN: e I nstitute, ) § Comment b.
Macdonald, ab ove note  at –; E. Dr iedger, e Construction of Stat utes
(Toronto: Butterworth s, ) at –; A. Baye fsky, International Human
Rights Law: Use in Canadi an Charter of Rights and Freedoms Liti gation (Toronto:
Butterwort hs, ) at –. Whi le these commentators address t hemselves
to the common law posit ion, Emanuelli ta kes the view that judic ial notice of
internation al law exists unde r Quebec civil law by v irtue of CcQ art . ,
which provide s that courts must ta ke judicial notice of t he law in force in Que-
bec, includi ng conventional and cust omary internat ional law. See C. Emanuel li,
Droit international pu blic: contribution à l ’étude du droit interna tional selon une
perspective cana dienne (Montreal: Wil son & Laf‌leur, ) at  (judici al notice
of custom) and  (ju dicial notice of treat y).
 See, generally, J. Walker & J.-G. C astel, Canadian Conf‌lict s of Laws, th ed.,
looseleaf (Ma rkham, ON: Lex isNexis Canada , –) at ss. .–..
 e Scotia, above note .
 Lauterpacht, abo ve note  at .

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