Evidence, pleadings, and jurisdiction

• Author: Gib van Ert
• Pages: 37-108

3 Evidence, pleadings, and

jurisdiction

Litigants seeking to rely on or respond to submissions concerning

international law must beg in by considering how to do so as a matter of

evidence and procedure. On their face, questions of ev idence and pro-

cedure are starkly pract ical. For instance, if a point of international law

requires proof, counsel must consider how to prove it. Conversely, if

no proof is required, counsel may wi sh to object to the admissibility of

opinion or other evidence concerning it. Beh ind these practical matters

is a question of principle. How does Canadi an law regard international

law: as law (as it clai ms to be) or as fact?

In the previous edition of thi s work, I noted that the balance of

Canadian authority, especially when supplemented with persuasive

Commonwealth and foreign sources, indicated th at Canadian court s

should generally treat internat ional law questions as legal matters to

be decided by the courts and not factual matters to be pleaded and

proved in evidence. I suggested that what uncertainty surrounded the

issue arose mostly from Canad ian courts’ fail ing to turn their minds

to the question – frequently, it seemed, because t hey rightly took it for

granted that they may have rega rd to international law in appropriate

cases.

Subsequent developments in the case law appear to have settled

the issue. Canadia n law generally treats international law as a matter

of law, not fact, for the purposes of pleading and evidence.

As expla ined below, however, there are exceptional cases in which

points of international law may requ ire proof in evidence. In these rare

instances, this m ay take the form of expert opin ion or executive certi-

cates. ere are also rare and il l-dened situations in whic h Canadian

37

Using International Law in Canadian Courts

38

courts may decli ne to consider international lega l issues at all on what

may loosely be called jur isdictional grounds. A ll these instances are ex-

ceptions to Canadia n law’s general stance of recognizi ng a competence

in Canadia n courts to hear and settle internationa l legal questions that

come properly before them as they would other questions of law.

. Judicial notice of international law

By the doctrine of judici al notice, courts and other adjudicating bodies

will accept the e xistence of certain matters w ithout requiring proof.

e doctrine is most often invoked in respect of facts, but courts also

take judicia l notice of law. is form of judicial notice ha s its origins in

the common law but has also been decl ared in statutes. It is also estab-

lished in Quebec civi l law. e varieties of law that judges are bound

to recognize by the doctrine of judicial notice include the pr inciples

of equity, common law precedents, and Acts of Parliament. As we w ill

see, judicial notice is al so taken of international l aw, though one evi-

dentiary consequence of thi s rule – namely, that opinion evidence on

international law’s requirements is general ly inadmissible – has s ome-

times been neglected.

Judicial notice of internationa l law is to be contrasted with the

treatment of foreign law (that is, the domestic law of other states), of

which judicial notice is not ta ken in the common law tradition. Rather,

foreign law is treated as a matter of fact to be ascer tained by the evi-

dence of experts. A n old decision of the US Supreme Court contrasts

foreign and international l aw directly: “Foreign municipal l aws must in-

 See S Lederm an, A Bryant, & M Fuerst, S opinka, Lederman & Br yant: e Law

of Evidence, th ed (Mark ham, ON: LexisNe xis, ) at § :; S Phipson & H

Malek,Phipson on E vidence,th ed (London: Sweet & Ma xwell, ) at ch ; R

Sulliva n,Sullivan on the Constru ction of Statutes, th ed (M arkham, ON: Lex is-

Nexis,  ) at § ..

 e judicial not ice of Acts of the federal Par liament is provided for by s  of t he

Canada Ev idence Act, RSC , c C- . e judicial notice of prov incial Acts is

provided for by prov incial legisl ation; for example, Evidence A ct, RSBC , c

, s  () (British Columbia), Inter pretation Act, RSO , c I. , s  (On-

tar io).

 Civil Code of Q uebec, CQLR c CCQ-, ar t  provides in par t, “Judicial

notice shall b e taken of the law in force in Qu ébec.” See generally art s –.

 See generally J Walke r, Castel & Walker: Canadian Conict of Laws, t h ed, loose-

leaf (Mark ham, ON: LexisNex is Canada,  ) at ss .–..

 • Evidence, pleadings, and jurisdiction

39

deed be proved as facts, but it is not so with the law of nations.” Lauter-

pacht considered that international l aw need not be proved in the same

way as foreign law in common law courts “apparently for the reason

that it is not foreign law.” e importance of this distinction between

international law and foreign law goes beyond the rules of evidence to

the foundation of the reception system. Wh ile foreign laws generally

have no claim to our obser vance, except insofar as intern ational com-

ity may require in certa in cases, international law is bindin g upon Can-

ada at the international leve l and may (if incorporated or implemented

in domestic law) be binding within Canada. e reception system ac-

knowledges this di erence by rules that receive and promote respect for

international law w ithin the domestic order – including judicial notice

of intern ational law. Anglo-Ca nadian law is not unusual in this rega rd.

A former president of the International Court of Justice, Dame R osalyn

Higgins, has observed, “ere is not a legal s ystem in the world where

international law is t reated as ‘foreign law.’ It is everywhere par t of the

law of the land; as much as contract s, labour law or administrative law.”

(a) Case law supporting judicial notice of international law

In , Lauterpacht observed that while English judicia l practice sup-

ported the proposition that internationa l law is judicially noticed a nd

therefore need not be specically proved, it was nevertheless dicu lt

“to trace any judicial pronouncement bear ing directly on the matter.”

 e Scotia  Wal l  (US Sup Ct ) [e Scotia].

 H Lauterpacht, “Is Inte rnational Law a Par t of the Law of England?” () 

Transactions of the Grotius So ciety  at .

 One commentator has a rgued against th is approach, suggest ing that both

internation al and foreign law are “ext ernal sources of law” a nd that “the blur-

ring of inter national law into comparat ive law” allows inter national lawye rs

“to develop a more complex a nd critical model of i nternational law in dome stic

courts.” See K Kno p, “Here and ere: Internationa l Law in Domestic Court s”

()  New York Journal of Internat ional Law and Politics  at ,  . In my

view, the dier ences between foreign and i nternational law are more s ignicant

than thei r similaritie s. See also S Toope, “e Uses of Metaphor: I nternational

Law and the Supreme Cou rt of Canada” ()  Cana dian Bar Review  .

 R Higgins, “e R elationship Betwe en International a nd Regional Human

Rights Norm s and Domestic Law” in Develop ing Human Rights Jurisprud ence, vol

 (London: Commonwea lth Secretariat , ) at . Quoted with approva l in

Nevsun Resources Ltd v A raya,  SCC  at para  [Nevsun].

 Instead, Lauterpac ht relies on e Scotia, above note  at  . See also e New

York ,  US  ().