Evidence and procedure

• Author: Gib van Ert
• Pages: 41-72



 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 .