The presumption of conformity with international law
| Author | Gib van Ert |
| Pages | 130-181 |
e presumption of
conformity with
international law
e presumption of conformity with international law is a rule of lega l
interpretation whereby domestic law is read, wherever possible, con-
sistently w ith international law and comity. e normat ive justifica-
tion for the presumption is respect for internat ional l aw. To interpret
the ac ts of our legislatures and courts in a way that fai led to respect
international law or comity wou ld impute to these bod ies an unlaw-
ful or belligerent intent. Such an imputation is cert ainly uncharitable
and usually wrong. ere is also an important prescriptive just ification
for the presumption. Violations of international law may bring i nter-
national responsibility upon the state. e judiciary should therefore
avoid internationally unlawf ul constructions of domestic law wherever
possible.
In the first ed ition of this book I spoke of the “pre sumption of internationa l
legality.” e phrase “pre sumption of conformity ” has since gained more cu r-
rency in the Ca nadian literatu re, and I adopt it.
e following de finition of comity was appro ved by Estey J in Spencer v. e
Queen [] SCR at :
‘Comity’ in t he legal sense, is neither a m atter of absolute obligation, on t he
one hand, nor of mere cour tesy and good wil l, upon the other. But it is the
recognition wh ich one nation allows w ithin its territor y to the legislative,
executive or jud icial acts of anot her nation, having due rega rd both to inter-
national dut y and convenience and to the rig hts of its own citizen s or of
other persons who a re under the protection of its law s: Hilton v. Guyot ()
US , at pp. –.
Similar ly, in R. v. Zingre [] SCR at [Zingre], Dickson J (as he t hen
was) described co mity as proceeding “not as a m atter of obligation but out of
mutual deference a nd respect.”
5 • The presumption of confor mity with international la w
. Nature of the presumption
Common law courts have long used interpretive presumptions “as pro-
tection against interference by the state with the liber ty or property of
the subject.” La Forest JA (as he then w as) expla ined that by insisting
on “clear language” in legislation that purports to interfere with rights,
“the cour ts help promote second thought and public debate, a debate
that all recogni ze as an essential safeguard in a parliamentary dem-
oc rac y.” By applyi ng such presumptions, cour ts engage legislatures in
a di alogue about the nature of their acts. In Canada, the langu age of
dialogue is usua lly associated with constitutional, and especially Cha r-
ter, review. While the Char ter changed the terms of this d ialogue, the
dialogue itself predates the C harter and other entrenched constitu-
tional laws. Even without entrenched provisions, common law courts
protected rights b y means of interpretive presumptions. is to-ing
and fro -ing between courts and legislatures is properly c haracterized
as d ialogue, rather than d isobedience to t he sovereign will of Parlia-
ment. In considering a n interpretive presumption against expropria-
tion without compensation, L ord Radcliffe descr ibed it as “a m istake”
to look on the court’s vig ilance in such matters “as representing any
conflict between the leg islature and the courts. e principle was, gen-
erally speak ing, common to both.”
(a) e presumption is rebuttable
Like all i nterpretive presumptions, the presu mption of conformity
may be rebutted. A s explained in C hapter , Canadian leg islatures are
competent to violate international law and a statute which does so will
be given effect by our courts. Yet, as Max well obser ved, if a legisl a-
E. Driedger, e Con struction of Statute s, d ed. (Toronto: Butterworths , ) at
.
G. La Forest, “e Canad ian Charter of R ights and Freedoms: An O verview”
() Can Bar Re v at .
Vriend v. Alberta [] SCR at para . ; R. v. Mills [] SCR at para.
; P. Hogg & A. Bushel l, “e Charte r Dialogue Betwe en Courts and Legi sla-
tures” () Osgoode Ha ll LJ .
Belfast Corporation v. O.D. Cars Ltd. [] AC at .
e presumption may also be rebutted by the existence of a second, contrary
internation al norm. us, in Re Canad a Labour Code [] SCR at para. , L a
Forest J observed t hat while the North At lantic Treaty Status of Forces A gree-
ture intends to viol ate internationa l law or comity “it must express its
intention with irresistible clear ness, to induce a Court to believe that
it entertai ned it; for if any other const ruction is possible, it would be
adopted, in order to avoid imputing such an intention to the Leg isla-
ture.” Simi larly, the Supreme Court of C anada has said that the pre-
sumption is rebutt able where a statute “demonst rates an unequivocal
legislative intent to default on an intern ational obligation.” us the
presumption of conformity with international law is vigorously applied
by our courts and tr ibunals. Were this not so, the principle of respect
for international law, which the presumption expresses, might pass out
of the reception system, placi ng Canada among those states in which
international law goes neglec ted.
(b) Legislative intent or judicial policy?
e presumption of conformity can be understood in two rather differ-
ent ways. e traditional approach views the presumption as a device
for the correct application of legisl ative intent. us in Daniels v. White
and the Queen, Pigeon J expla ined that “Parliament is not presumed to
legislate i n breach of a treaty or in any manner inconsistent with the
comity of nations and the established rules of intern ational law.” e
more progressive approach treats the presumption as the interpretive
policy, or even the interpretive obligat ion, of an internationally-mind-
ed judiciary. is approach was enunciated in the Bangalore Dec-
laration, which descr ibes it as
the vital duty of an independent, well-trained legal profession, to
interpret and apply nat ional constitution s and ordin ary legi slation
ment [] CanTS no. “might influenc e the interpretation” of the A ct in
question, that p ossibility was e xcluded by the provision s of a second treaty, the
Agreements Conce rning Leased B ases in Newfoundl and [] CanTS no. .
Sir Peter Benson Ma xwell, On the Inter pretation of Statutes, st ed. ( London: W.
Maxwel l & Son, ) at – .
R. v. Hape SCC at par a. [Hape].
As Bennion puts it, “ is is one of many inst ances where the express word s of
an Act are ta ken to be subject to implic ations altering the ir literal meaning ”: F.
Bennion, Stat utory Interpretation: A Code, t h ed. (London, Butter worths, )
at s. .
[] SCR at [Daniels].
See, general ly, M. Hunt, Using Human Rights Law in English Cour ts (Oxford: Hart,
), especial ly c. .
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