For the Courts to Decide
Why Bill C-323 Is neither
Unconstitutional nor Substantial Legislation
Laws 2501
Nov 16,
2012
The
question of whether An Act to amend the
Federal Courts Act (Bill C-323) is constitutional or not lies upon the
false premise that the proposed new powers of the federal court would have a
jurisdiction in international rather than federal law. In fact, the proposed
new powers would be redundant because the federal court already has those powers
in existing federal law, both through the criminal code and through the Crimes
Against Humanity and War Crimes Act (2000). If such legislation did not exist, it could be
created; nor would such legislation not existing in any way limit the legislature's
power to create a court of theoretical jurisdiction subject to potential future
legislation. Further, international law is in fact judicially binding in Canada
anyways, even if it hasn't been legislated yet, making the entire issue a
completely moot point; international law
is Canadian law, so there is no conflict of jurisdictions to begin with.[1] Lastly, the proposed legislation is actually in the
sphere of private international law, meaning all these theoretical arguments about
jurisdiction aren't even applicable! It is the court that will decide on a
case-by-case basis if it has jurisdiction using the "real and substantial
connection test".[2] The argument against the constitutionality of Bill
C-323 on the grounds that it is outside of the jurisdiction of federal courts because
it is in the jurisdiction of international law, as allegedly presented by Rob
Nicholson, is both ignorant of existing constitutional, case, international and
federal law and a fallacy in argumentation of type ignoratio elenchi, as well as a textbook red
herring. Would we have been wise to expect better from Rob Nicholson? However,
despite the bill being fully constitutional, it is not of any serious
consequence, and little would change if it were passed.
Before discussing the actual
situation, it would be useful to outline the powers that the constitution gives
to the legislature to create new courts. These powers, as stated in s. 101 of
the Constitution Act, are very broad and subject solely to the restriction of
the court administering the "Laws of Canada".[3] As there is literally no restriction
present other than the obvious restriction that Canadian Courts must interpret
Canadian Law, there is absolutely no reason to suggest any further limitations
exist or were meant to exist. The sole question at hand is how to define
"Laws of Canada", but this is not a difficult quandary: the
"Laws of Canada" include legislation produced legislatively,
unwritten constitutional principles, case law and binding international
treaties. However, in context, the question is a little bit more subtle.
Whether international treaties are
Canadian Law or not is not a question that is controversial or up for debate.
The initial framers of the constitution meant to invest this power in the
executive branch through s. 132; however, as we no longer accept the authority
of the Monarch, this provision in the constitution is now considered obsolete.
Nor has the Prime Minister inherited absolute executive power in domestic
issues from the Monarch. The Prime Minister must table domestic legislation and
have it pass through the House of Commons like any other Member of Parliament.
While the context and meaning of s. 132 intends for International Law to be
Canadian Law, the constitution no longer provides for a mechanism to allow this
to come into force because we no longer have a comparable executive branch. However,
depending on how the legislation is properly interpreted through the division
of powers, either the federal or provincial legislatures are legally obligated
to legislate on the issue in order to convert their interpretation of the
international treaty into domestic statute: this is the existing interpretation
of s. 132. It has been left up to the judiciary to protect this constitutional
intention and enforce international treaty obligations should the relevant legislatures
refuse to carry out their constitutional duty in doing so.[4]
There is a mountain of case law
supporting the assertion that international law is not just Canadian Law but a higher
law than Canadian Law.[5] First,
consider the case of Pushpanathan v. Canada. A convicted narcotics dealer
was scheduled for deportation back to Sri Lanka, and attempted to avoid
this using refugee status. Domestic Canadian Law denied him refugee status on
the basis of him being a convicted offender, but the Supreme Court overturned
this on the argument that the restriction in the United Nations Convention Relating to the Status of Refugees, of which the immigration act was modeled on, did
not apply to narcotics dealers.[6] Second, consider the case of Thomson v. Thomson, where a child custody dispute between parents
in Scotland and Manitoba was decided by considering the Hague
Convention on the Civil Aspects of International Child Abduction rather than
the local Manitoba
statutes, which were based on the convention.[7] A third example is a little closer to
home: R v. Marshall, where the
contents of the centuries old treaties signed between the Mi'kmaq
and the British overpowered existing provincial law.[8] In R
v. Hape, the court stated the following: [9]
One final general principle bears
on the resolution of the legal issues in this appeal. It is a well-established
principle of statutory interpretation that legislation will be presumed to
conform to international law. The presumption of conformity is based on the
rule of judicial policy that, as a matter of law, courts will strive to avoid
constructions of domestic
law pursuant to which the state would be in violation of its international
obligations, unless the wording of the statute clearly compels that result. R.
Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002),
at p. 422, explains that the presumption has two aspects. First, the
legislature is presumed to act in compliance with Canada’s obligations as a signatory
of international treaties and as a member of the international community. In
deciding between possible interpretations, courts will avoid a construction
that would place Canada
in breach of those obligations. The second aspect is that the legislature is
presumed to comply with the values and principles of customary and conventional
international law. Those values and principles form part of the context in which
statutes are enacted, and courts will therefore prefer a construction that
reflects them. The presumption is rebuttable,
however. Parliamentary sovereignty requires courts to give effect to a statute
that demonstrates an unequivocal legislative intent to default on an
international obligation. See also P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp.
367-68.
The presumption of conformity has
been accepted and applied by this Court on numerous occasions. In Daniels v. White, [1968] S.C.R. 517, at p. 541, Pigeon J.
[T]his is a case for the
application of the rule of construction that Parliament is not presumed to
legislate in breach of a treaty or in any manner inconsistent with the comity of
nations and the established rules of international law. . . . [I]f a statute is
unambiguous, its provisions must be followed even if
they are contrary to international law . . . .
See also Zingre,
at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R.
437, at para. 137; Schreiber v. Canada (Attorney General), [2002] 3
S.C.R. 269, 2002 SCC 62, at para. 50. The
presumption applies equally to customary international law and treaty
obligations.
Now that we understand the actual place of international
law in the Canadian legal framework, we can discuss the proposed bill. A member of the opposition has produced a bill to modify the Federal Courts Act that would allow
foreign citizens to sue Canadian corporations in Canadian federal courts if
they are accused of breaking international treaties that Canada has signed,
whether the breach has occurred within Canada's geographic jurisdiction or not.
This bill also abolishes the statute of limitations for a long list of
proceedings, which are explicitly enumerated in the bill, and attempts to clarify
existing private international law conventions for determining which court has
the proper jurisdiction to hear conflict-of-law cases by writing new rules into
Canadian statute.[10]
It has been claimed that if the bill happens to pass then the government will
argue that it is unconstitutional under s. 101 because the proposed amendments
to the court's jurisdiction are not in the sphere of "Canadian Law".
Now that the proper background has been presented, it is
easy to see that this argument is preposterous. Canadian courts have long
upheld international law; once Canada
signs a treaty, it is judicially enforceable Canadian Law. There simply is no constitutional
conflict of jurisdiction.
However, let us suppose for the sake of argument that
there is a conflict of jurisdiction and that Canadian Courts are no longer
allowed to overrule domestic law with international law. Would this matter
much? While the Prime Minister does not have executive power, she does
generally have absolute control of the House of Commons if she has a majority.
So, it should be no surprise that Canada has legislated
essentially every international treaty that it's ever signed: majority
government allows for this privilege, and why else would a Prime Minister sign
on? The consequence of this is that when we speak of Canada signing an
international treaty, we also speak
of Canada enacting domestic legislation that interprets this international
treaty; it is not just the case that International Law is Canadian Law, it is also
the case that International Law is almost always legislatively enacted Canadian
statute law. Now, let us move from the general to the specific.
It so happens to be that the bulk of Bill C-323 is in
fact existing Canadian Federal Law under the Crimes Against Humanity and War Crimes Act
(2000), which binds Canadians to international law as a shifting set of
norms and conventions, rather than as a static set of statutes.[11] Of course, it
would be up to the court to determine what those shifting norms and conventions
are, meaning what Nicholson allegedly claims is unconstitutional is already
enacted federal law; the purpose of the proposed s. 25.2 amendment is not to
create new areas of jurisdiction (these already exist), but to remove certain
areas from the statute of limitations, pursuant to the proposed amendment in s.
39.3. So, even if we accept the faulty argument that Canadian courts can only
interpret Canadian statues, there is still not a meaningful question of
jurisdiction.
However, again, let us suppose that there is: let us
suppose that this enabling federal legislation does not exist. Would the law
then be unconstitutional? Well, if we wrongly deny that the court has the
ability to enforce international law then the only possible interpretation of
the bill is that the expanded jurisdictions are within the context of Canadian
law. While the bill may consequently be more or less useless until the proper
statute is enacted, that does not make it unconstitutional, it merely makes it
unenforceable. The constitution does not specify what the "Law of
Canada" is or ought to be, nor should it have as law is constantly
shifting and constantly being redefined. A constitution is meant to be a set of
rules that shape how law evolves over time, not a means of self-inflicting societal
stagnation or arrested development.
So, it's quite clear there is not a valid constitutional
issue at play here in relation to the question of jurisdiction. International
law is constitutionally enforceable in Canada. If it were not, existing federal
statues that mimic international law would be. If international law was not
enforceable and these statutes did not exist, the bill would be properly
interpreted as pre-empting the construction of those statutes and would
consequently not be unconstitutional: it would be providing enhanced
jurisdiction to a court of theoretically unlimited jurisdiction in an area of
law in which in no statutes yet exist, with the clear aim of pushing
legislators to legislate further in this area.
However, there is
a valid constitutional problem, namely the removal of the statute of
limitations, which is likely meant to allow for the prosecution of past wrongs
but is not likely to get past s. 11(g) of the Charter of Rights and Freedoms. As any action taken under the proposed
amendments would be against Canadian Citizens, such an amendment would likely
not be enforceable as it is meant in a Canadian court. While I cannot find a
reference in the constitution that explicitly protects the statute of
limitations, the fairness of removing it only for crimes against foreign
citizens is dubious at best; a s. 15 challenge from a Canadian citizen to remove the statute of limitations would
likely result in the court ordering the legislature to even things out. Further,
I would expect that a challenge based on the statue of limitations being an
"unwritten principle of democracy" would be successful. Should the
amendment to s. 39.3 be removed, the amendment to s. 25.2 would no longer serve
a purpose and should therefore be removed along with it. That would leave only
the amendments to s. 25.1 and s. 50.4, which together seek to regulate private
international law within Canada.
There are two wide branches of international law: public
and private. Public international law describes relationships between states.
Private international law describes relationships between private parties in differing
states. When court action occurs between individuals in different
jurisdictions, the result is called a conflict
of law. Canadian law has gone through a long evolution of thought on this
point, but has recently settled upon a "real and substantial connection"
test with a complex series of clauses.[12] The most
recent precedent-setting Canadian court decision in the matter is in Club Resorts Ltd. v. Van Breda (2012),[13]
which clarified the existing procedure to determine jurisdiction. It is the
court that will decide if it has jurisdiction by determining if there is a real
and substantial connection between the jurisdiction and the case. While the
test provided for some examples of a real and substantial connection (the defendant is domiciled or resident in the province, the
defendant carries on business in the province, the tort was committed in the
province, a contract connected with the dispute was made in the province), it explicitly pointed out that such a
list is not exhaustive. Further, it provided some instruction in determining
whether any new connections are "real and substantial". In most
cases, the defendant being a Canadian citizen would qualify as a real and
substantial connection, which would be enough to allow the court to declare it
has jurisdiction. In other words, the Supreme Court has, though precedent and
case law, recently constructed essentially the same thing that C-323 meant to
erect, rendering C-323 largely pointless.
The legislation does not attempt to take away the court's ability to
decide if it has jurisdiction, but it does attempt to guide it in doing so. The
amendments to s. 50.4, together, state that the court will only deny it has
jurisdiction if the defendant convincingly argues that a better court exists to
hear the case in. This is not, together, substantially different than the
"real and substantial connection" test, but it does provide a few
difficult points for the courts to work out - specifically the (d) clause that
states that jurisdiction can only be denied if it's in the "adamant"
interests of justice. Does this respect the independence of the judiciary?
Putting the constitutionality and
redundancy of the legislation aside, there are legitimate questions to be
raised regarding the eventual efficacy of the proposed legislation. While I
have very strong feelings about the negative effects of Canadian Colonialism in
the global south, and would argue strenuously that our government should be
taking strong actions against criminal actions as defined by existing federal
law such as the Crimes Against Humanity
and War Crimes Act (2000), it
is not at all clear that allowing civil litigation will lead to anything resembling
justice. Will the relevant victims have the financial means to
access our distant federal court system, or will such a remedy be restricted
only to those who do not need access to it, rendering it more of a political
symbol than a functioning dispute-resolution mechanism? Will corporate
governing structures continue to make it difficult to hold them accountable?[14]
Will the mining companies the legislation is meant to curb the behaviour of
perform cost-benefit analyses that lead to the conclusion that the crime is
worth the price of settlement, or to actions that produce even greater loss of
life in order to avoid court battles? Ought issues such as genocide and murder
be restricted to civil proceedings and financial settlements in the first
place, or ought the criminal elements embedded within the corporate elite face
consequences that affect them on a more substantial and personal basis? Upon
analysis, the member's motion truly seems more like an attempt to gain
political points than an attempt at bringing corporate Canada to its long
overdue justice; this bill would not create a useful tool to clean up our
corporate sector of criminality and corruption, and even seems to be based on
the silly classical liberal idea of contract law as the basis of an ordered
society. In order to solve the problems that currently exist, we need to
enforce our existing criminal laws, not provide inaccessibly expensive means of
civil litigation to the poorest and most exploited peoples of the world. What
many of our mining companies do in Latin America and Africa
on a day-to-day basis is already subject to life imprisonment under Canadian
Law, yet the CEOs of these companies continue to live
with impunity and luxury. Inevitable extradition problems aside, many of these
governments are routinely massively bribed by the precise interests that the
legislation is meant to hold accountable, making local enforcement a virtual
impossibility. Why isn't the RCMP doing its job and giving these mass murderers
the life sentences that they deserve?
There are currently a number of attempts
in process to bring Canadian mining concerns to justice, but they are still in
the trial stage. Should these cases by accepted under the new test for
jurisdiction, they will undoubtedly set significant precedent for future
action. This is currently happening with or without the aid of Bill C-323.[15]
It should also be pointed out that
the government's recent Justice for Victims of Terrorism Act, no doubt championed by
Rob Nicholson as a great victory for justice, attempts to provide
Canadians with the ability to sue foreign terrorist organizations.[16]
The bill also lifts the statute of limitations back to 1985. It is remarkably
difficult to argue that the widow of a murdered Ecuadorean miner is any less of
a victim of terrorism or should not have the same access to justice that the
family of a Canadian terror victim should, or at least it is without resorting
to open and crude displays of racism. It is consequently foreseeable that this
act may help in easing issues of jurisdiction; it is easy to see the court
making the argument that if the Government of Canada feels its citizens can sue
foreign organizations for terrorism then it must also feel that foreign
citizens can sue Canadian organizations for similar reasons. Of course, the
court is likely to interpret such legislation as subject to the norms of
existing private international law and any legislation to the contrary as an
attack on their independence.
The proposed bill is certainly not
unconstitutional under s. 101; in fact, it's completely redundant, offering no
substantial change to existing jurisprudential norms. However, there are legitimate problems with the bill: the
removal of the statute of limitations is unlikely to withstand a charter challenge, it is questionable whether it respects the
independence of the judiciary and it's not likely to be very effective in
accomplishing its long overdue goal of bringing Canadian Colonialism to
justice.
JURISPRIDENCE
Club Resorts Ltd. v. Van Breda [2012] S.C.C. 17,
online: <a
http://canlii.ca/en/ca/scc/doc/2012/2012scc17/2012scc17.pdf>
Pushpanathan v. Canada
[1998] 1 S.C.R. 982,
online: <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1627/index.do>
online: <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1627/index.do>
R. v. Hape, [2007] 2
S.C.R. 292,
online:< www.canlii.org/en/ca/scc/doc/2007/2007scc26/2007scc26.pdf>
R v. Marshall
[1999] 3 SCR 533,
online: < http://www.canlii.org/en/ca/scc/doc/1999/1999canlii665/1999canlii665.html>
Thomson v. Thomson [1994] 3 SCR 551,
online: <http://www.hcch.net/incadat/fullcase/0011.htm>
LEGISLATION
Bill C-323, An Act to amend
the Federal Courts Act (international promotion and protection of human rights),
First Session, Forty-First Parliament, 2012, online: Parliament of Canada
<http://parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5160018&File=4>
Crimes Against Humanity and War Crimes Act, SC 2000 c. 24,
online: Department of Justice Canada < http://laws-lois.justice.gc.ca/eng/acts/C-45.9/>
Constitution Act, 1867, R.S.C. 1985, s.101, online: Canadian Legal
Information Institute
< http://www.canlii.org/en/ca/const/const1867.html>
Justice for Victims of
Terrorism Act, SC 2012 c. 1, s.2,
online: Department
of Justice Cana <http://laws-lois.justice.gc.ca/eng/acts/J-2.5/page-1.html>
SECONDARY SOURCES
Ert, Gib Van. "Chapter Six: Canada",
in David Sloss, ed, The Role
of Domestic Courts in Treaty Enforcement (Cambridge:
Cambridge Press, 2009).
online: < www.litigationchambers.com/pdf/vanErt-domestic-courts.pdf>
Ovsep, Afarian et al. "The SCC Clarifies
the 'Real and Substantial Connection' Test" Mccarthy-Tetrault (April 23,
2012) online: Mccarthy-Tetrault
<http://www.mccarthy.ca/article_detail.aspx?id=5845>
Tetley, William. "Current
Developments In Canadian Private International Law" in 79 Canadian Bar Review (Saskatoon:
University of Saskatchewan, 1999).
online: <http://www.mcgill.ca/maritimelaw/conflicts/canprivtintl>
"Courting Justice: Victims of mining abuses sue in Canada", Mining Watch Canada (February 11, 2012) online: Mining Watch Canada <
http://www.miningwatch.ca/article/courting-justice-victims-mining-abuses-sue-canada>
[1] Gib
Van Ert, "Chapter Six: Canada", in David Sloss,
ed, The Role of Domestic Courts in Treaty Enforcement (Cambridge:
Cambridge Press, 2009), p. 6-20.
< http://www.canlii.org/en/ca/const/const1867.html>
[4] Gib
Van Ert, "Chapter Six: Canada", in David Sloss,
ed, The Role of Domestic
Courts in Treaty Enforcement (Cambridge: Cambridge Press, 2009), p. 2-20
[10] Bill C-323, An
Act to amend the Federal Courts Act, First Session, Forty-First Parliament,
2012
online:
Parliament of Canada
<http://parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5160018&File=4>
[11] Crimes Against Humanity and War Crimes Act, SC 2000 c.24, s.4, online: Department of Justice Canada
< http://laws-lois.justice.gc.ca/eng/acts/C-45.9/>
[12] William
Tetley, "Current Developments In Canadian Private International
Law" in 79 Canadian Bar Review (Saskatoon: University of Saskatchewan, 1999),
p. 152-199. online: <http://www.mcgill.ca/maritimelaw/conflicts/canprivtintl>.
[13] Afarian, Ovsep et al,
"The SCC Clarifies the 'Real and Substantial Connection' Test" Mccarthy-Tetrault
(April 23, 2012) online: Mccarthy-Tetrault
<http://www.mccarthy.ca/article_detail.aspx?id=5845>
[14] "Courting Justice: Victims of mining abuses
sue in Canada", Mining Watch Canada (February 11, 2012)
online: Mining Watch Canada
< http://www.miningwatch.ca/article/courting-justice-victims-mining-abuses-sue-canada>
[15] "Courting Justice: Victims of mining abuses
sue in Canada", Mining Watch Canada (February 11, 2012)
online: Mining Watch Canada
< http://www.miningwatch.ca/article/courting-justice-victims-mining-abuses-sue-canada>
online: Department of Justice Cana
<http://laws-lois.justice.gc.ca/eng/acts/J-2.5/page-1.html>