International law and administrative decisions

• Author: Gib van Ert
• Pages: 398-430

398

9 International law and

administrative decisions

Administrative decision makers of all k inds may nd themselves in-

volved in matters concerning Can ada’s treaty commitments or other

aspects of internationa l law. Specic reception rules applicable to ad-

ministrative deci sion making have not yet developed in Canadian law

and may not be necessary. However, the application to administ rative

decision making of suc h established doctrines as judicial notice of

international law, the implementation requirement, and t he presump-

tion of conformity presents partic ular problems.

In Canada (Minister of Citizenship and Immigration) v Vavilov, the

Supreme Court of Canada undertook a thoroughgoing renovation of

its administrative l aw jurisprudence, seeking to “chart a new course

forward for determining the standard of review th at applies when a

court reviews the mer its of an administrative decision” and to “provide

additional guid ance for reviewing courts to follow when conducting

reasonableness re view.”1 e decision under review in Vavilov was chal-

lenged in signicant part for the decision maker’s neglect of relevant

international legal considerations in her interpretation of the statu-

tory regime she was ch arged with applying. e Vavilov decision is both

an illustration of how intern ational law can in form administ rative de-

cisions and guida nce as to how international law may be used to c hal-

lenge those decisions on judicial re view.

  SCC  [Vavi lov] at par a .

 • International law a nd administrative decisions

399

9.1 International law as a legal constraint in

administrative decision making

In Vavilov, the Supreme Court of Canada identied international law

as a potential legal constra int on administrative decision makers. One

sort of fundamental aw in an administ rative decision, Vavilov ex-

plains, is “when a decision is in some respect untenable in light of the

relevant factual a nd legal constraints that bea r on it.” After explain-

ing that “both statutory and common law wil l impose constraints on

how and what an administ rative decision-maker ca n lawfully decide,”

the court explained that internationa l law may also impose such con-

stra ints:

We would also note that in some ad ministrative de cision mak-

ing contexts, inter national law wi ll operate as an impor tant con-

straint on an adm inistrative dec ision maker. It is well establ ished

that legislat ion is presumed to operate in conformity with C anada’s

internationa l obligations, and the legisl ature is “presumed to comply

with . . . the values a nd principles of custom ary and conventiona l

internationa l law”. . . . Since Baker, it has also been clear that i nter-

national treatie s and conventions, even where they have not bee n

implemented domestical ly by statute, can help to in form whether a

decision was a reason able exercise of administr ative power. . . .

e explanation g iven here of why international law is sometimes an

important constraint on adm inistrative decision ma kers is the pre-

sumption of conformity with international law and the related notion

that Canada’s international obligations are part of the legal context i n

which Canadi an legislation is enacted and read.

is reliance on the presumption of conform ity, with its depiction

of Canadian law within an international context and its strong pref-

erence for internationally compliant inter pretations of domestic law,

suggests that an adm inistrative decision w ill not be susceptible to re-

view merely for disregarding some relev ant international obligation. A

decision maker might ig nore the obligation but still reach a resu lt that

 Ibid at para .

 Ibid at para  .

 Ibid at para . See a lso Mason v Canada (Citizens hip and Immigration),  SCC

 [Mason] at para .

Using International Law in Canadian Courts

400

conforms with it. Where, however, the decision under rev iew is con-

trary to or inconsistent wit h an international obligation of the state,

that decision wil l likely be unreasonable for that reason. Put another

way, the presumption that Canadian laws conform to Canada’s inter-

national obligations means t hat an administrative decision ma ker can-

not reasonably interpret a domestic provision inconsistently with the

state’s obligat ions.

In Mason v Canada, Jamal J for the majorit y of the Supreme Court

of Canada noted that the presumption of conformit y with internation-

al law “assumes additional force” in judicial review when interpreti ng

a law that makes its presumed intent to conform to the state’s inter-

national obligations ex plicit on the face of the enactment. e legisla-

tion at issue in Mason was the Immi gration and Refugee Protection Act

(I RPA ), provisions of which ex pressly identify the Act ’s objectives as

full lment of Canada’s international refugee l aw obligations and com-

pliance with inter national human rights instr uments to which Canada

is signatory. While the “interpretative va lue of international law is es-

pecially relev ant where a statute is explicitly enacted for the purpose

of implementing i nternational obligation s,” it remains true that Vavi-

lov founds the relevance of international law in administrative deci-

sion making not on an internat ional norm’s implementation status but

instead on the presumption that enactments comply wit h the state’s

international obligations – a presumption that applies equally to im-

plemented and unimplemented treaties – and the holding in Baker

that treaties can inform the reasonableness of an exercise of power

even where they have not been implemented domestically by stat ute.

 “In other words, in a ccordance with the presu mption of compliance with i nter-

national law, the d ecision maker can not reasonably interpret a Ca nadian provi-

sion in a manner t hat is incompatible with t he obligations imposed on Ca nada

by international law”: Elve v Canada (Citizenship and Immigration),  FC  

[Elve] at para .

 Mason, above note  at para .

 SC  c .

 Minister of Public Safety and Emerge ncy Preparedness v Verbanov,  FC ,

Grammond J at para .

 See the discussion i n Chapter , Section .(b).

 Even before Vavilo v, an unimplemented t reaty could “help in form the context-

ual approach to s tatutory interpretat ion and judicial rev iew”: Bhajan v Bhajan,

 ONCA   at para ; Ontario (Children’s Law yer) v Ontario (Information and

Privacy Commissioner),  ONCA  at p aras –.