In a decision released November 25, the SCC in Németh v. Canada (Justice), 2010 SCC 56 (“Németh”), unanimously allowed the appeal. (The same ruling took effect with respect to Németh‘s twin decision, Gavrila v. Canada (Justice), 2010 SCC 57, in which Romania requested the extradition of Tiberiu Gavrila after his conviction for forging visas.) The decision did not come with blanket immunity, however. In a case that beheld a battle between Canada’s various international obligations, the SCC ruled that individuals with refugee status do not necessarily escape extradition. However, the Minister’s decision regarding the Némeths was unreasonable because he had applied the wrong legal test and incorrectly placed the burden on the Némeths to show a continuing risk of persecution.

The Omnipotent’s Dilemma

In 2001, Jószef and Jószefne Németh and their children arrived in Canada seeking refugee protection. They alleged a fear of persecution in their homeland of Hungary because of their Roma ethnic origin. In three incidents between 1997 and 2001, Mr. Németh (and once with his wife) had been attacked by Hungarian citizens for his Gypsy heritage. The Minister of Citizenship and Immigration granted the Németh family refugee status.

In 2003, Hungary issued an international arrest warrant for the Némeths for selling a right of lease in Budapest that they did not actually possess. The Minister sought and was granted an order from the Superior Court of Quebec that confirmed the Némeths’ committal as a Canadian offence of fraud under s. 380(1) of the Criminal Code. He then ordered their surrender.

The Némeths and the interveners argued that Canada’s Extradition Act (the “EA“) ought not to apply to refugees so as to avoid a conflict between the EA and the Immigration and Refugee Protection Act (the “IRPA“). The potential conflict concerned the international “principle of non-refoulement” rooted in Article 33 of the UN Convention Relating to the Status of Refugees (the “Refugee Convention“) and re-articulated in s. 115(1) of the IRPA. In Németh, the Court described non-refoulement as a principle that

prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations. The object of the principle is the prevention of human rights violations and it is prospective in scope.

The Minister argued that any tension between extradition and non-refoulement was already addressed by the EA in sections I will soon discuss. On this issue the SCC agreed with the Minister.

Harmony: A traditional way of looking at our legislation

First, Justice Cromwell, writing for the Court, accepted that the protection against refoulement in Article 33 of the Refugee Convention included protection against extradition. The article states:

Article 33. – Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

However, the corresponding provision in the IRPA only specified general “removal.” Section 115(1) reads:

115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

Justice Cromwell decided that the term, “removal,” referred to “removal orders” in the IRPA and therefore had a specialized meaning within that Act that did not include removal by extradition.

Rather, the Court held that ss. 44(1)(a) and (b) of the EA specified the grounds on which the Minister must refuse to surrender a person sought. Section 44(1)(b) in particular reads:

44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

….

(b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.

In a detailed analysis of international treaties, Justice Cromwell concluded that s. 44(1)(b) and its inclusive protection of human rights were what gave effect to Canada’s international non-refoulement obligations where the extradition of a refugee was requested. The provision’s drafting was, according to the Court, inspired by the European Convention on Extradition and the UN’s Model Treaty on Extradition, which were both considerably influenced by the Refugee Convention. Therefore, the extradition of refugees was already considered in Canada’s EA and there was no conflict between the EA and the IRPA.

No, Minister

With the Némeths’ extradition looming menacingly near, Justice Cromwell then decided that the Minister’s decision in this case was still unreasonable because he had applied the wrong legal principles. The Court concluded that:

1. The Minister did not grant sufficient consideration to the Némeths’ status as refugees, particularly under the “prejudiced position” branch of s. 44(1)(b) (which the Court determined to be distinct from “prosecution by reason of ethnic origin” in the first part of the provision).
2. The Minister erred in requiring the Némeths to prove, on a balance of probabilities, that persecution would occur should they be returned to Hungary. Both the IRPA and the Refugee Convention pointed to a burden of establishing only a risk of persecution.
3. The Minister wrongly imposed the burden of proof on the Némeths. As they had already been granted refugee status, it would be unfair for them to be compelled to show – six years later – that they still required refugee protection. Rather, the burden of proving that refugee status ought to be terminated should have fallen on the state.

In the end, Justice Cromwell allowed the appeal and remitted the matter back to the Minister for reconsideration.

A Fine Balance

After eighty pages, Justice Cromwell and the SCC had delivered a carefully reasoned judgment that meticulously sought out Canada’s position in a labyrinth of international obligations. On one hand, Canada was bound to the protection of refugees by international treaties such as the Refugee Convention and Canada’s own commitment to human rights and the security of the person – note the Canadian Charter of Rights and Freedoms. On the other hand, Canada also had a responsibility to international extradition agreements between states, including the Model Treaty on Extradition, facilitated by Canada’s domestic EA.

The SCC’s final stance – both giving some and taking some – may have been predictable, but in my opinion, it also represented a reasonable balance of Canada’s international responsibilities. Extradition can be a serious impairment of individual autonomy and, as is clearly expressed in s. 44(1) of the EA, surrender should be refused for certain reasons including oppression and discrimination. It would seem equally unfair, however, to refuse the surrender of an individual facing criminal charges merely based on refugee status, particularly if circumstances in the home country had changed and a risk of persecution no longer existed. The Court may have been overreaching in asserting that the principle of non-refoulement was encapsulated in s. 44(1)(b) – and in the “prejudiced position” part of the provision in particular.  However, I think the drafting of the section was sufficiently ambiguous to come to broader inferences, which is what the Court did here in reaching a reasonable and balanced conclusion.

Article 33 of the Refugee Convention may prohibit the refoulement of a refugee in “any manner whatsoever,” but I would agree with Justice Cromwell that refugee status is temporal. If a risk of persecution no longer persists, it may well be that an individual is no longer considered a refugee. This idea is bolstered by ss. 108 and 109 of the IRPA, which allow the Minister of Citizenship and Immigration to apply for an order to cease refugee protection. The fact that the Minister must be the party to initiate the application likewise indicates that the government ought to bear the burden of proving that refugee status should be terminated. This too was the Court’s conclusion and one of the reasons for deciding that the Minister’s decision was unreasonable.

Although there were no sweeping victories in this ruling, the SCC rendered a closely reasoned decision that will set a much clearer precedent for future extradition cases. I might also add that it is very welcome to see Justice Cromwell finally baring some of his own colours and delivering a strong judgment for the Court. We have much to look forward to as next year’s docket comes around. Happy Holidays!

A Quick Lesson on State Immunity

According to the internationally respected principle of absolute state immunity, courts are limited from exercising jurisdiction over actions brought in their jurisdiction against a foreign state. This principle has been codified in s. 3 of the federal State Immunity Act, R.S.C. 1985, c. S-18 (“SIA”). The SIA reflects the restricted immunity approach as it contains exceptions to absolute state immunity. Of particular relevance to this decision was the commercial activity exception in s. 5, which denies immunity in “any proceedings that relate to any commercial activity in the foreign state.” Other countries, including England have a similar regime.

Tail spinning into Disaster

This case arises out of Kuwait Airways Corp.’s (“KAC”) action for damages against Iraqi Airways Company (“IAC”) for appropriating its aircraft, equipment, and parts during the 1990 invasion of Kuwait. Iraq had funded and supervised IAC’s defence. Based on the perjury and tactics used to deceive the British courts during the defence, an English court awarded $84 million in costs against Iraq. The English court held that Iraq could not rely upon its state immunity because its involvement in the defence was related to its commercial interests in IAC, and thus the commercial activity exception applied. This international case migrated to Canada when KAC found out that Iraq had assets in Montreal. Accordingly, KAC applied to have the Quebec Superior Court recognize the English court’s decision. Since Iraq was unwilling go down in flames, it opposed the application on the basis that the impugned acts were sovereign acts, and thus protected by state immunity. As discussed above, Iraq’s position was that the Quebec court could not simply recognize the English decision, but had to independently decide the issue of state immunity. Thus, the main issue that the SCC had to determine was whether the SIA applies to an application for recognition of foreign judgment.

Who’s Law is it?

Before addressing the main issue, the SCC had to determine whether the Civil Code of Quebec, S.Q. 1991, c. 64 (“CCQ”) or the Civil Code of Lower Canada applied. The latter is predecessor of the CCQ and was in force in Quebec from July 1, 1867 to December 31, 1993. Iraq argued that the latter applied because the litigation that led to the English order for damages was commenced before the coming into force of the CCQ on January 1, 1994. If the Civil Code of Lower Canada applied, then the matter would have to be retried on the merits at the time of the application. The SCC swiftly disposed of this matter by referring to s. 170 of the Act respecting the implementation of the reform of the Civil Code, S.Q. 1992, c. 57 (“Implementation Code”). As its name suggests, the Implementation Code is meant to smooth the transition from the Civil Code of Lower Canada to the CCQ by providing solutions where the latter pieces of legislation are inconsistent with each other.

According to s. 170 of the Implementation Code, the CCQ applied because the English decision was rendered in 2004, after the CCQ came into force. The SCC stressed that “the relevant data for determining which code applies is not that on which the litigation between these two parties began.”

Having dealt with that preliminary issue, the SCC tackled the main issue of whether the SIA applied. KAC argued that because the English court had already decided the issue of state immunity, res judicata applied to preclude the re-litigation of the issue in the context of the application for recognizing the English decision. The SCC rejected this argument. According to Article 3076 of the CCQ, “The rules contained in this Book apply subject to those rules of law in force in Québec which are applicable by reason of their particular object.”[Emphasis added]. Since the SIA is a rule of law in force that governs  state immunity, its statutory framework governs the determination of the issue. This conclusion was fleshed out by the SCC through quoting Robert C.J.Q. of the Court of Appeal:

[translation]  To the extent that a foreign state is found to be entitled to immunity under this Act, the Canadian court simply does not have jurisdiction to consider an application against that state, including an application for recognition and enforcement of a foreign decision.  It is only in the case of an exception to the general principle of immunity that the court may rule on the merits of an application against a foreign state.

Thus, the [SIA] must apply and must govern the issue of whether Iraq is entitled to state immunity in Canadian courts.

This conclusion means that it does not matter that: (i) the issue of state immunity was already decided; and (ii) that the enforcing court will be in essence reviewing the merits of the foreign judgment. In regards to the first point, the problem of inconsistent decisions that is addressed by the principle of res judicata seems to have been conveniently set aside because state immunity is at stake. The SCC addressed this criticism at paragraph 22 when it endorsed Robert C.J.Q.’s observation that “if [the issue was res judicata], the effect would be that the British court and the United Kingdom law were delimiting the jurisdiction of the Quebec courts”. That response is satisfactory but the second point mentioned above chips away at the confidence upon which that response is accepted.

The second point, as alluded to earlier, is contrary to the basic rule in conflict of laws that an enforcing court shall not review the merits of a foreign judgment. Enforcing courts are not supposed to be appellant courts of foreign courts. However, the framework developed by the SCC for dealing with foreign judgments on state immunity is reminiscent of the interaction between appellant and lower courts. At paragraph 23, after the response on res judicata, the SCC stated:

However, the court hearing the application must confine itself to the role conferred on the Quebec authority for the consideration of an application for enforcement.  As I mentioned above, the court cannot review the merits of the decision …It may not retry the case and therefore must not reassess the facts.  Thus, the issue of state immunity and the exceptions to state immunity must be considered within the framework of the law currently applicable in Canada, including public international law, but on the basis of [the English court’s] findings of fact. [Emphasis added].

According to this statement, the enforcing court has to determine state immunity using the SIA (which arguably constitutes a review of the merits of the case), but cannot review the facts of the case – it must use the foreign court’s findings of fact. That conclusion is an interesting proposition to ponder, and considering it further, one is reminded of the role of an appellant court. Unless there has been a palpable and overriding error, an appellant court does not review the lower court’s findings of fact. The appellant court can uphold or quash the lower court’s decision. While it is clear that the enforcing court is to embark on an independent analysis of state immunity using the SIA, and thus is not upholding or quashing the foreign decision, the requirement that the foreign court’s findings of fact be used is reminiscent of the interaction between appeal and lower courts.  That similarity probably explains the initial discomfort with reviewing the merits of a foreign judgment but not the findings of fact.

Thank you for Flying with KAC

Despite taking the longer route, SCC ultimately reached the same destination as the English court. It agreed with the latter that Iraq was not protected by state immunity because its involvement in IAC’s defence was not a state act, but an act directed towards protecting its commercial interests. Although the SCC has settled many of the critical issues, the litigation between the parties will probably continue on into the future given Iraq’s stalwart determination not to pay the damages. It will be interesting to see what legal maneuvering it employs in the future to elude enforcement of the damages award.

Commentator for LawisCool.com: Omar Ha-Redeye, Juris Doctor, University of Western Ontario; founding contributor of LawisCool.com.

Commentator for TheCourt.ca: James Yap, Juris Doctor, Osgoode Hall Law School, York University; former Senior Contributing Editor, TheCourt.ca.

The Facts

Copper Mesa Mining Corporation is a Canadian company based in British Columbia who planned through one of its subsidiaries to build an open pit copper mine in the Intag cloud forest just south-west of The Cotacachi Cayapas Ecological Reserve, an area of the Andes Mountains of Ecuador. The company is listed on the Toronto Stock Exchange (TSX), but it does not have significant assets or operations in the province of Ontario aside from two of its non-management directors residing in the province.

The Plaintiffs in the case are local activists in Ecuador who have opposed the mine, on the grounds that it will create major deforestation and desertification in the area and threaten more than a dozen animals with extinction. They allege that Copper Mesa through its agents used armed assaults and death threats to intimidate the local activists. Due to a perceived inability to hold Copper Mesa accountable in their country, the Plaintiffs brought a suit in Ontario against Copper Mesa, its directors, and the TSX.

The most novel aspect of the suit is the claim against the TSX for approving and listing Copper Mesa on the exchange, resulting in an influx of capital that would allegedly be used for further intimidation and violence against opponents. Local politicians in Ecuador and environmental supporters in Canada had brought the human rights allegations to the attention of the TSX before its listing. Further, the final prospectus filed by Copper Mesa’s subsidiary to the TSX acknowledge the existence of the conflict,

“[t]ensions surrounding potential exploration and mining work on the Junin property have risen, creating the potential of further escalating violence unless steps are taken to diffuse the situation,” and goes on to report a specific incident in which members of an “anti-mining group” felt “threatened”;

The liability, according to the Plaintiffs, flows from the failure to take any steps to avoid the violence, and that the Defendants knew or ought to have known that violence would ensue if the Copper Mesa subsidiary was financed through the TSX, and should have taken measures to ensure funds raised were not used for improper purposes. The project was highly dependent on funding from the TSX, with over 80% of the US$26.7 million raised by the Copper Mesa subsidiary raised on the TSX alone. According to the Plaintiffs, it was a brokered private placement of shares approved by the TSX that raised US$4.5 million that allowed Copper Mesa to hire the private security forces allegedly responsible for the armed assaults that form the basis of the claim.

The TSX is considered a specialized exchange for mining, and over 60% of the world’s mining companies are listed on the TSX and related exchanges.

The Decision

This comment will only deal with the claim against the TSX, which is the more novel aspect of this litigation. Campbell J. began by enunciating the governing test, which is that laid out in Anns v. Merton London Borough Council, [1978] A.C. 728. Under that well-established test, the requirements for a duty of care owed by the defendant are the twin criteria of proximity and foreseeability. With respect to the former, Campbell J. concluded that there is simply “no connection between the Plaintiffs and the TSX Defendants.” Likening the TSX to a “voluntary regulator,” he reasoned that such an entity could not be found liable in tort for the adequacy of its regulatory activities. As for foreseeability, Campbell J. reasoned that “[i]n order to foresee [the alleged] harm, the TSX Defendants would have had to foresee political and business events in Ecuador which allegedly led to unlawful conduct by agents of Copper Mesa. Such a chain of events was not foreseeable or reasonably foreseeable.”

LawisCool.com (Omar Ha-Redeye):

I agree with the decision rendered by Campell J. in striking the action on a Rule 21 motion. To be clear, the grievances of the Plaintiffs are real and decidedly unfortunate. But sympathies alone cannot guide the actions of a court.

Rule 21 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states,

RULE 21

DETERMINATION OF AN ISSUE BEFORE TRIAL

WHERE AVAILABLE

To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.
[emphasis added]

The Plaintiffs have based their opposition to the motion largely on the basis of R. 21.01(1)(b), that there is no reasonable cause of action. They correctly invoke Hunt v. Carey Canada Inc. in para. 27 of their Responding Factum, and state that the novelty of a cause of action should not by itself result in it being struck.

But it’s not just the question of novelty of the cause against the TSX that provides a basis for striking the cause. There are significant questions of proximity that can be put to question here, and the Plaintiffs assertion of an existing duty of care to individuals from an entirely different jurisdiction where the TSX has very limited direct influence is suspect. As noted in the facts, it was the inability of the Plaintiffs to hold Copper Mesa accountable in their country that resulted in the proceedings being issued in Ontario. Although corruption, intimidation, violence and environmental harm are all regrettable, again, the courts cannot be led by sympathies alone.

As Campell J. indicates in para. 38, the TSX is governed by the Securities Act, R.S.O. 1990, c. S.5. There is no ambiguity about the purpose of the Act,

Purposes of Act

1.1 The purposes of this Act are,

(a) to provide protection to investors from unfair, improper or fraudulent practices; and

(b) to foster fair and efficient capital markets and confidence in capital markets.
[emphasis added]

The main functioning role of the TSX then is to protect investors, and not those that might be affected by enterprises that those investors engage in. The TSX also plays the role of maintaining the function of the exchange, of which confidence in the market is a significant aspect. Neither of these roles provides a duty of care to the Plaintiffs, and in fact, creating a duty of care could arguably undermine confidence in the markets by exposing capital to litigation from functions remotely distant from the regulatory function of the exchange. I know of no other statute in the jurisdiction of Ontario that would provide a statutory cause of action of this type.

For this reason, the Plaintiffs are incorrect when they say in para. 38 of their Responding Factum that, “There are no negative policy implications sufficient to negate a duty of care.” The policy reasons above would also be sufficient to negate the second branch of the Cooper-Anns test, thereby preventing the creation of a new duty of care by the courts. There are even additional policy considerations in R. 21.01(1)(a) that emphasize the role of the courts in conserving costs and avoiding unnecessary litigation that could burden the judicial system. Creating a new cause of action of this type without any restrictions or constraints could potentially open the floodgates to all sorts of litigation related to ancillary actions of multinational conglomerates with only tenuous connections to Ontario, thereby overwhelming our court system even further.

However, the Plaintiffs also invoke in para. 38 what they call an “overwhelming policy reasons to recognize such a duty.” If the nature of Canadian investments is such that they are overwhelmingly affecting the indigenous peoples of other nations adversely in a manner that compromises our values and human rights, this could potentially affect confidence in the market, especially given the specialized nature of the TSX for mining and exploration companies. The Plaintiffs cite Justice Ian Binnie in para. 88 of the Responding Factum, indicating that governance gaps make it difficult to redress human rights abuses committed by private enterprise,

The root cause of the business and human rights predicament lies in the governance gaps created by globalization—between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation.

The proper venue to address this governance gap is the body responsible for governance, namely the legislature. It is the legislature that determines appropriate sanctions and reparations, especially when dealing with the highly politicized nature of globalization. Committees can analyze the economic repercussions of such sanctions, the appropriate scope, and maintain the proper balance between various interests. As Campell J. states in his decision,

[53] If there were policy considerations that would favour extending liability as sought by the Plaintiffs, such policy would be appropriately be a matter for the legislatures and not the courts, at least on these facts.

Fortunately, Parliament is undergoing this exact endeavour right now. Bill C-300, An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, goes into its Third Reading this Fall Session, and is scheduled for its first hour of debate on the very first day that MPs return to session, September 20, 2010. The Standing Committee on Foreign Affairs and International Development (FAAE) has already heard evidence on this Private-Member’s Bill. And rather than create a statutory cause of action as sought by the Plaintiffs in this case, the Act would provide the Minister of Foreign Affairs and the Minister of International Trade the responsibility of holding corporations accountable by submitting annual reports to the House and Senate. For now, this is the appropriate balance that the elected representatives of Canadians have identified. If through their reports they identify a pressing and compelling problem, a carefully-tailored Canadian version of the American Alien Tort Claims Act might be appropriate, but until then foreign citizens lack standing to issue such claim, and Ontario courts lack jurisdiction to hear them.

Consequently, my opinion is that even if the Plaintiffs were successful above under R. 21.01(1), they would subsequently fail at R. 21.01(3), which provides the Defendants specific grounds for dismissing a motion,

To Defendant

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

Jurisdiction

(a) the court has no jurisdiction over the subject matter of the action;

Capacity

(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Although Campbell J. did not discuss this element of the claim, it’s my opinion that the claim would also fail on jurisdictional and capacity grounds. This would provide an additional basis for dismissing the action under R. 21.01(1)(a) by disposing the action in its entirety.

The test used in Ontario for determining the proper jurisdiction is the real and substantial connection test. A jurisdiction does not have to present the most or strongest connection, just a real and substantial connection. There is a rather tenuous connection between the Defendants and the province of Ontario, and the TSX seems to almost be a fortuitous factor rather than a direct party causing the alleged harm. The connection to the Plaintiffs is even more remote, and it’s difficult to see what connection, if any, they have to the Province of Ontario. After the Court of Appeal’s decision in Van Breda v. Village Resorts Limited, the primary focus for determining a real and substantial connection is the first two factors of the “Muscutt test,” namely the respective connections of the Plaintiff and the Defendant to the proposed jurisdiction. Applying the test to this case would likely result in the court finding that a strong connection does not exist. Also, a motion by Defendants for forum non conveniens would likely have followed a successful ruling on this motion, as all the witnesses and evidence of the alleged harm are more properly located in Ecuador, especially if the TSX was struck as a Defendant.

Despite supporting the decision by Campbell J., I do think the case of Piedra v. Copper Mesa Mining Corporation has been a success. If the proper venue for recourse is in the legislature, it requires supporters of Ecuadorian activists to raise awareness here in Canada. This case has done just that by bringing to light the very serious nature of Canadian complicity in human rights violations abroad. Ideally this case, and others like it, will be vigorously discussed in Committee, the House and the Senate. It will require members of the Canadian public to support the passing of Bill C-300. And ultimately it might fall upon the conscience of Canadians to allow our courts to adjudicate human rights issues abroad against corporations with ties to our society. But until then the cause of action brought in Piedra against the TSX is not likely to successful, and in my opinion it should not be and is properly struck on a Rule 21 motion.

TheCourt.ca (James Yap):

I am not quite so convinced. It seems to me that Campbell J. is a step too hasty to characterize the TSX as a mere “voluntary regulator.” Such language seems to imply that the TSX has a merely regulatory function, akin to any state regulatory body. However, this is not strictly so – in reality, the TSX’s activities go much deeper than this. As Campbell J. in fact acknowledges, the TSX is not a state body but a private for-profit corporation. A duty of care thus need not derive from statute, the TSX may be subject to the same duties as other private actors. On the face of things it appears equally plausible, as the plaintiffs argued, to characterize the TSX as a private for-profit entity which holds out a service to the paying public – a service which, in the Copper Mesa case, may have led to the commission of a tort. Framed in such terms, the suggestion that the TSX may be liable in tort becomes much more palatable - akin, for instance, to a firearms dealer who sells a weapon to a customer in the knowledge that the customer intends to use it for an unlawful purpose. It is regrettable that Campbell J.’s analysis does not contain more thorough and deliberate reasoning as to why one characterization describes the TSX’s role more accurately than the other. Hopefully the Court of Appeal’s analysis will delve into greater depth.

Further, I am not sure that Campbell J. is asking the right question when he reasons that “[i]n order to foresee [the alleged] harm, the TSX Defendants would have had to foresee political and business events in Ecuador which allegedly led to unlawful conduct by agents of Copper Mesa. Such a chain of events was not foreseeable or reasonably foreseeable.” The question of foreseeability should not focus on whether the precise events that led to the harm were foreseeable, but on whether harm itself – regardless of the specifics of how it may have come about – was generally foreseeable (see e.g. Hughes v. Lord Advocate, [1963] UKHL 8 – although admittedly this case discusses foreseeability in the context of remoteness and not duty of care). As such, the question should not be whether the TSX should have foreseen the precise “political and business events” that allegedly led to the harm, but whether the TSX, given what it knew about the situation, should have foreseen that allowing Copper Mesa to raise funds on the exchange would have led to greater violence.

In light of all this, I am not so convinced that it is “plain and obvious,” as is the standard on a Rule 21 motion, that the plaintiffs do not have a reasonable cause of action. The plaintiffs’ claim is certainly novel and has its more tenuous aspects. However, this is not a sufficient basis to deny them their day in court altogether.

As my colleague suggests, however, even if the plaintiffs are successful on appeal they will face many difficult legal hurdles later on (although unlike my colleague, I am not convinced that jurisdiction is one – particularly with respect to forum non conveniens, where the joinder of the TSX would make it difficult to establish that another forum is clearly more appropriate. Tellingly, the defendants never filed a forum non conveniens motion – although it is still open for them to do so in future.). Ultimately, Campbell J. may have done little more than save the plaintiffs several years’ worth of expensive litigation costs.

The Claim

The corporate defendant, Green Park International Ltd., is a Quebec-registered corporation that has been involved in constructing and developing settlements for Israelis on occupied land in the West Bank. The land in question falls within the territory of the village of Bil’in. The plaintiffs are the Village Council of Bil’in, as well as Ahmed Yassin, now deceased, who claimed to own part of the land in dispute.

The structure of the claim is somewhat intricate. The plaintiffs allege that the corporate defendants are engaged in constructing residential buildings intended for Israeli civilians on village land, in furtherance of an Israeli state policy of inducing its civilian population to settle occupied territory with the ultimate objective of facilitating the eventual assimilation of these lands into its own territory.

The West Bank is not part of Israel but has been under Israeli military occupation since 1967. Thus, it falls squarely within the purview of the Geneva Conventions, which set out much of the international law with respect to military occupation. Under Article 49(6) of the Fourth Geneva Convention, it is illegal for an occupying state to “transfer parts of its own civilian population onto the territory it occupies” (the same prohibition is also set out in Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court). The plaintiffs allege that Israel is in breach of this law, and that the defendants are assisting in this breach.

Under international law, it so happens that a breach of Article 49(6) of the Fourth Geneva Convention is classified as a war crime. The term “war crime” has no clear, universally accepted definition, but essentially war crimes are those violations of the laws of war so grave that they have been specially designated by the international community as an extraordinary class of offence whose reprehensible nature would “shock the conscience of all right-thinking people” (to use the words of Cory J. in R. v. Finta, [1994] 1 S.C.R. 701). Laws against war crimes are generally aimed at atrocities against civilians, prisoners of war, and other non-combatants.

A war crime, to put it succinctly, is a very serious matter. Further, it is easy to see why the offence in question falls into this special category. Article 49(6) is essentially a law to prevent colonialism. One need look no further than the current condition of the indigenous peoples whose domain once spanned the entire expansive breadth of this continent to appreciate the gravity of the consequences territorial dispossession can inflict upon a population. Most war crimes deal with offences against individuals or groups of individuals, but the offence in Article 49(6) is one that threatens the integrity of an entire people. It clearly qualifies as an exceptional offence of higher order that is of grave concern to the global community as a whole.

The plaintiffs’ allegation that the defendants are participating in war crimes is not only very serious but highly politically charged. Thus, although the Geneva Conventions Act, R.S.C. 1985, c. G-3, and the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, confers on Canadian courts criminal jurisdiction over war crimes committed anywhere in the world, a prosecution of the Bil’in defendants would never proceed in Canada. Under the Canadian legislation, it would require the personal consent of the Attorney General or Deputy Attorney General, which, due to such political considerations, would be next to impossible to obtain. However, the plaintiffs have framed participating in war crimes as a civil wrong, invoking the standards of conduct articulated in the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act to argue that the defendants are liable in tort under Article 1457 of the Civil Code of Quebec, R.S.Q., c. C-25, which sets out the basic principle of extra-contractual civil liability under Quebec civil law:

1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

In bringing this claim, the plaintiffs have become the first in Canada to institute a civil claim for war crimes since a failed attempt by the family of Shidane Arone to bring a civil claim in Ontario courts for Arone’s torture-death at the hands of Canadian peacekeeping soldiers in Somalia (which was dismissed in an unreported judgment).

The defendants, not to be outmatched in creativity, filed in response a series of motions to dismiss, pleading no cause of action, state immunity, lack of standing, forum non conveniens, and even res judicata.

The Judgment

Cullen J. dismissed most of these motions either in whole or in part. Notably, he also accepted, for the first time in Canada, that the commission of a war crime constitutes a civil wrong:

[175] A war crime is an indictable offence. As such, it is an imperative rule of conduct that implicitly circumscribes an elementary norm of prudence, the violation of which constitutes a civil fault pursuant to art. 1457 C.C.Q.

He further accepted that a person may also commit a civil wrong by knowingly participating in a war crime:

[176] In theory, a person would therefore commit a civil fault pursuant to art. 1457 C.C.Q. by knowingly participating in a foreign country in the unlawful transfer by an occupying power of a portion of its own civilian population into the territory it occupies, in violation of an international instrument which the occupying power has ratified. Such a person would thus be knowingly assisting the occupying power in the violation of the latter’s obligations and would also become a party to a war crime, thereby violating an elementary norm of prudence.

However, the good news for the plaintiffs ends there. Despite delivering the not altogether stunning ruling that the commission of a war crime does, indeed, constitute a civil wrong in Canada, Cullen J. nevertheless exercised his discretion under CCQ Article 3135 to decline jurisdiction on the grounds of forum non conveniens.

In some ways this result is unsurprising. The doctrine of forum non conveniens has long been a staunch ally to Canadian corporations beset by human rights claims launched from abroad. However, the plaintiffs here put up a vigorous legal resistance which was innovative and not without appeal.

One of the relevant factors in the forum non conveniens analysis in Quebec, as in common law Canada, is the law governing the dispute. In Quebec, as in the rest of Canada, the law to be applied in a tort action is the lex loci delicti – the law of the place where the tortious act occurred. However, CCQ Article 3081 provides that “[t]he provisions of the law of a foreign country do not apply if their application would be manifestly inconsistent with public order as understood in international relations” (this is roughly analogous to the public policy exception in common law conflict of laws). The plaintiffs argued that the legality of settlements with respect to the Geneva Conventions is not justiciable in Israeli courts. The law as applied by Israeli courts would fail to take account of the Geneva Conventions and, insofar as it would condone the commission of a war crime recognized under both domestic and international law, would be “manifestly inconsistent with public order as understood in international relations.” Accordingly, sending the claim for disposition to Israel would lead to a result that would offend this notion of “public order.”

Furthermore, it is questionable whether Israel can even be considered an available forum, let alone an appropriate one. Insofar as the Israeli courts are effectively unable to hear the action framed as it is in terms of war crimes, it could be said that this claim is not one that is even capable of being tried in Israel. Declining jurisdiction in favour of the Israeli courts would leave the plaintiffs with no viable alternative forum in which to pursue their claim, which would plainly not be in the interests of justice.

Either analysis presents a compelling argument. It would plainly be unjust to send a civil suit for war crimes to the forum whose state is allegedly responsible for those war crimes, particularly where the legality of state action with respect to war crimes is not a justiciable issue. To support their position, the plaintiffs filed the affidavit of Orna Ben-Naftali, a professor of international law whose expertise lies chiefly in the field of international humanitarian law. Prof. Ben-Naftali explained how it is the judicial policy of Israeli courts to decline to review the legality of settlements with respect to international humanitarian law. The defendants, for their part, filed the affidavit of Israeli attorney Renato Jarach, which was substantially in agreement on the fact that Israeli courts would not review the legality of settlements with respect to war crimes, but pointed out that it was not for lack of legal tools to give judgment, but rather because a judicial determination with such broad political aspects should defer to the political process. At trial, counsel for the defendants pleaded respect for the principle of judicial deference to executive action in areas of government policy.

Cullen J. rejected the plaintiff’s argument by rejecting the evidence of Prof. Ben-Naftali – although, as we shall see, not in a way that entirely prefers Mr. Jarach’s evidence either. Embarking on his own interpretations of the Israeli case law, he concluded that it is not for political reasons that Israeli courts refrain from applying international humanitarian law to disputes respecting individual rights, but because the 1949 Geneva Conventions do not form part of domestic statute law in Israel. Furthermore, when the Israeli High Court of Justice was ruling on this question in the 1970s, it did not consider the 1949 Geneva Conventions to be rules of customary international law (which are automatically incorporated into the domestic law of all developed nations). In other words, Israeli courts do not apply the Geneva Conventions simply because they are not incorporated into Israeli law. Noting that “[a] similar requirement exists in Canada, where international instruments require legislative action to form part of Canadian domestic law,” he concluded that this requirement was not “manifestly inconsistent with public order as understood in international relations” within the meaning of CCQ Article 3081. Accordingly, the juridical advantage that the plaintiffs sought is not the advantage of being able to plead the Geneva Conventions, but rather the merely procedural advantage of not having to argue to an Israeli court that the Geneva Conventions have, since the 1970s, become part of customary international law (and therefore part of Israeli law). This minor juridical advantage, he found, is not enough to justify asserting jurisdiction, in light of the other connecting factors which, he concluded, pointed to Israel as the more appropriate forum.

Analysis

With respect, I am unable to agree with the reasoning of Cullen J. For the present purpose, I assert no position as to the legality of Israeli settlements under international law, or the commission of war crimes by Israel, or the state of Israeli law. However, I do agree with the basic reasoning that war crimes, by virtue of their nature, are a special category of higher-order wrongful conduct that would “shock the conscience of all right-thinking people,” and are consequently of deep concern to the global community as a whole. Given the grave and universally condemned nature of the acts alleged—acts which undoubtedly offend “public order as understood in international relations”—I feel that Cullen J.’s reasoning fails to disclose an adequate basis for declining jurisdiction—jurisdiction which the Quebec court, by virtue of the defendants’ domicile, is legally entitled to assert. I call attention, on this point, to the SCC’s citation in Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205, 2002 SCC 78 of the principle of forum non conveniens that in Quebec, “the plaintiff’s choice of forum should only be declined exceptionally, when the defendant would be exposed to great injustice as a result.”

I have some reservations, first of all, with the manner in which Cullen J. arrives at his determinations on Israeli law. The content of foreign law is not a question of law but a question of fact, which must be proven by expert evidence. A judge cannot simply disregard the pleadings of the parties and interpret the foreign law as he or she sees fit, as would be the case with domestic law (for example, SCC jurisprudence). Yet there is a strong argument to be made that this is exactly what Cullen J. did. The defence expert, Mr. Jarach, did not argue the point that Cullen J. ultimately relied on—namely, that the Geneva Conventions are non-justiciable merely because they are not considered customary international law. By embarking on his own analysis of Israeli case law and substituting his own legal interpretations of the judgments, and thereby arriving at factual conclusions that were not advanced in the testimony of any of the relevant experts, Cullen J. seems to skirt dangerously close to the limits of his judicial authority.

That said, I profess to having no expertise as to the proper interpretation of Israeli law and would not presume to challenge such a conclusion. Assuming, therefore, that Cullen J. properly came to the correct factual determination, and that the Geneva Conventions are indeed non-justiciable in Israel merely because they are not considered customary international law, I still fail to perceive the deductive progression between such a factual determination and the legal conclusions reached by Cullen J.

The plaintiffs’ argument, as I understand it, is that the failure of Israeli courts to apply the Geneva Conventions would in and of itself lead to a result “manifestly inconsistent with public order as understood in international relations,” insofar as it would condone the commission of a war crime. The reason behind the failure to apply such law—be it legal or political—is irrelevant. Rather, the relevant question is whether war crimes—prohibited as they are under international humanitarian and international criminal law and as indictable criminal offences under our own domestic penal law—are themselves acts that are “manifestly inconsistent with public order as understood in international relations.” If the answer is in the affirmative, then sending the claim to an Israeli court would lead to the application of a law that is “manifestly inconsistent with public order as understood in international relations,” regardless of the reasoning behind this law.

For this reason, I believe Cullen J. misses the point entirely by characterizing the question of whether the Fourth Geneva Convention is customary international law as “central to the dispute.” Although I happen to believe there is a very strong case to be made that, notwithstanding the Israel High Court of Justice’s opinion, the relevant norms of the Fourth Geneva Convention are indeed part of customary international law, I am of the opinion that this question is not central, but is, at best, peripherally relevant to the dispute.

I am further unconvinced by Cullen J.’s argument that, since 30 years have passed since the Israeli High Court of Justice pronounced in 1979 that the 1949 Geneva Conventions had not yet become part of customary international law, it is now open for the plaintiffs to argue before an Israeli court that since that time, the Geneva Conventions have indeed crystallized into customary international law. It seems only logical that a domestic plaintiff pleading that the application of a foreign law would lead to an unjust result ought to be entitled to presume that the foreign court will apply the law as it currently stands. It seems unreasonable to require the plaintiff to ask the foreign court to change the law on the strength of abstract speculation, wholly unsupported by evidence, that the foreign court may be receptive to such a change now that the current state of the law is 30 years old.

International Humanitarian Law

There is a further passage in the judgment where Cullen J. issues some remarks on the topic of international humanitarian law that raise interesting questions. After qualifying Prof. Ben-Naftali as an expert in “International Humanitarian Law,” Cullen J. offers the following commentary on her area of expertise:

[248] Professor Ben-Naftali refers to “International Humanitarian Law”. According to Sir Ian Bownlie [sic] the similar expression of “International Human Rights Law” is a convenient but perhaps confusing category of reference devoid of intrinsic substance:

Many lawyers in academic life refer to an entity described as “International Human Rights Law” which is assumed to be a separate body of norms. While this is a convenient category of reference, it is also a source of confusion. Human rights problems occur in specific legal contexts. The issues may arise in domestic law, or within the framework of a standard-setting convention, or within general international law. There is thus the law of a particular State, or the principles of the European Convention on Human Rights, or the relevant principles of general international law. In the real world of practice and procedure, there is no such entity as “International Human Rights Law”.

There is a key difference, however, between “international human rights law” and Prof. Ben-Naftali’s actual words, “international humanitarian law.” International humanitarian law is, of course, the field of law governing the rules of armed conflict between nations. Otherwise known as the laws of war or the law of armed conflict, it is the specific field of law that governs, inter alia, the commission of war crimes. The term “international human rights law” may very well be a “confusing category of reference devoid of intrinsic substance” (more on this contentious point below). International humanitarian law, however, is undoubtedly a well-defined and highly specialized field of law, and moreover the precise field of law that is implicated in this dispute.

It is puzzling why Cullen J. would conflate two decidedly distinct entities in such a manner. With the greatest respect to Cullen J., who for the most part delivered a thoughtful and well-reasoned opinion on a highly complex matter, the most likely reason seems to be that the judge, a specialist in civil and commercial litigation, simply failed to apprehend the distinction between international humanitarian law and international human rights law.

A careful examination of the rest of the decision seems to bear this explanation out. Other public international law concepts discussed in the judgment, such as customary international law, are duly defined and explained, but mysteriously there is no explanation of international humanitarian law anywhere in the judgment, outside of the confusing comparison with international human rights law. In fact, the term first appears placed inside quotation marks, as if the judge questions its universality or value. Nowhere is there any evidence to positively establish an affirmative awareness of the specialized meaning of the term.

Upon consideration, it is not inconceivable how a civil and commercial litigation specialist could develop such an impression. The precise meaning of the term “international humanitarian law” is not evident on the face of the words themselves, and the name does bear a potentially confusing similarity to the term “international human rights law.”

On its face, then, erroneously equating international humanitarian law with international human rights law appears to be merely a minor flaw in the judgment that does not affect the integrity of the decision as a whole. While it must no doubt be of no small consternation to the plaintiffs for the judge to be unaware of the name of the very field of law centrally implicated in this dispute, the judge in ruling on this motion made very little in the way of legal determinations concretely engaging international humanitarian law.

On closer consideration, however, this seemingly benign mistake does raise concerns that are serious enough to compromise the broader integrity of the decision. It raises an apprehension that every time the phrase arose in oral argument, in written submissions, or in relevant treatises that were consulted during the course of deliberations, there is a chance that the precise message may have been lost on the judge.

More significant, however, are this error’s implications on the judge’s assessment of the credibility of Prof. Ben-Naftali. An examination of the context of the passage quoted above makes it clear that Cullen J.’s purpose is to weaken Prof. Ben-Naftali’s credibility as a reliable expert and the weight of her evidence by erroneously finding that her testimony is plagued with terms that are “confusing” and “devoid of intrinsic substance.”

Further, as mentioned above, Cullen J. explicitly qualified Prof. Ben-Naftali as an expert in international humanitarian law. Accordingly, he deemed her to be an expert in a “confusing category of reference devoid of intrinsic substance,” of which “there is no such entity”—essentially, not much of a real expert in anything at all. Under this mistaken impression, he would then have assigned to her evidence a corresponding degree of weight.

It is unclear what conclusion Cullen J. may have reached with respect to the expert evidence before him had he been properly cognizant of the fact that, actually, Prof. Ben-Naftali was an expert in precisely the highly specialized and concretely defined field of international law that is squarely implicated in the dispute. Had he not mischaracterized her expertise, he may not have been so quick to substitute his own interpretation of Israeli law for hers. Whatever the case, it is clear that Cullen J.’s accidental conflation of international humanitarian law and international human rights law may have given rise to broader misconceptions that could have affected the final outcome.

International Law in Domestic Courts

The passage quoted above is not the only place where Cullen J.’s relative inexperience with respect to public international law is exposed. Later in the judgment, Cullen J. makes reference to “Israel’s absolute immunity to any judicial proceedings [in Canada]” [Emphasis added].

The term “absolute immunity” ordinarily refers to the conception of state immunity that confers on a state complete and total immunity, with no exception, from the jurisdiction of the domestic courts of another state. The doctrine of absolute immunity has been essentially defunct, at least in Canada, since at least 1982 when the federal government enacted the State Immunity Act, R.S.C. 1985, c. S-18, which codified the developing common law theory of restrictive immunity. In contrast to absolute immunity, the latter theory allows a number of exceptions to state immunity; for example, exceptions relating to commercial or criminal activity.

It is thus incorrect, and has been for some time now, to speak of Israel or any foreign state as enjoying “absolute immunity” in Canada. One expects that a judge with a stronger background in public international law would have avoided such wording, conflicting as it does with an established term of art—although given the many exceptions contained in the State Immunity Act, it is difficult to see how it could be said that Israel enjoys “absolute immunity” in either the doctrinal or the literal sense.

Further, Cullen J.’s dismissal of the term “international human rights law,” and his assumption that a sub-field of international law characterized by common subject-matter is “devoid of intrinsic substance” simply because it admits of many different sources, fundamentally misapprehends what is almost by necessary implication an intrinsic characteristic of many fields of international law. On this reasoning, there cannot be any sub-field of international law, whether “international human rights law,” “international environmental law,” “private international law,” “international trade law,” and so on.

If I were an international lawyer, I might point to these mistakes as a reflection of the generally ambivalent attitude towards public international law within the Canadian legal profession. To be sure, Canadian courts have also come out with some expertly written decisions on both state immunity and international humanitarian law. However, there are also many decisions such as Cullen J.’s where it is apparent that the judge is grappling with new and unfamiliar issues, often with unfortunate results. These kinds of issues will only arise more frequently in the future, as increasing international economic integration continues to produce more transnational litigation.

Conclusion

The plaintiffs have not yet filed an appeal, although one is expected. If Bil’in does find its way before the Court of Appeal, however, the plaintiffs certainly have a strong case to have the trial judge’s decision overturned. For the reasons outlined above, I am not convinced that Cullen J. properly identified and assessed the relevant considerations in his forum non conveniens analysis. He failed to properly assess the plaintiffs’ argument with respect to the non-justiciability of the legality of settlements under international humanitarian law in Israeli courts, and anchored his finding in an irrelevant consideration, i.e. the question of whether the reasoning behind this policy is legal or political. Further, he seriously mischaracterized Prof. Ben-Naftali’s expert evidence and qualifications and called her credibility into question on a faulty basis.

Ultimately, however, perhaps my strongest objection to this decision is what can only be characterized as its fundamental failure to give due consideration to the gravity of that special class of human rights abuses known as war crimes. Sending a civil claim for war crimes, over which the domestic courts lawfully have jurisdiction, to the courts of the same country alleged to have committed them is a proposition that ought to be suspect on its face, and to which domestic courts ought to accede only with extreme caution. Under no circumstances, in particular, should such jurisdiction be declined where, as the trial judge admitted here, war crimes are not justiciable in the courts of that country. This would lead to the grossly unjust result of leaving the plaintiff absolutely no forum in which to pursue the claim. Cullen J.’s claim that the refusal to adjudicate the commission of war crimes due not to their politically sensitive nature but because they are not customary international law essentially reduces international prohibitions against war crimes to the same status as any common treaty between nations: of no legal force in domestic courts until it is incorporated into domestic law by legislative enactment. It is a finding inconsistent with an awareness that war crimes are grave offences, not simply by virtue of their status as international law, but because they are in and of themselves serious and universally condemned violations of human rights, elevated to such exceptional status by broad international consensus—a consensus endorsed in Canada through such legislative enactments as the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act.

Cullen J. does not so much as acknowledge the difficulty this fact poses for his ultimate finding in his discussion of the “interests of justice” factor in forum non conveniens. Instead, he demurs to such factors as the plaintiffs’ failure to join any current owners or occupiers of the settlements (as if the issue concerned a mundane property dispute and not a war crime) and, incredibly enough, the need to conserve judicial resources. The non-justiciability of war crimes in Israel, meanwhile, is dismissed as akin to any mere difference between the laws of Israel and the laws of Quebec. Throughout the discussion, he seems blithely unaware of any reason why one might consider the non-justiciability of war crimes normatively problematic beyond the mere fact of simple divergence with the law of Quebec. Even on its most generous interpretation, such reasoning demonstrates nothing short of a complete failure to apprehend the exceptional character of the matters at stake in this litigation.

Such a ruling ought to trouble any observer, regardless of where on the spectrum he or she may fall with respect to the broader political context of this dispute. The issue at stake here is whether a civil claim for war crimes against a Canadian corporation can be heard in Canada, and not (at this stage) whether such war crimes were actually committed. The narrow and restrictive approach that Cullen J. took to the plaintiff’s arguments on justiciability and the failure to give effect to the exceptional level of censure that the international community has chosen to attach to war crimes could set a dangerous precedent that any observer measurably disturbed by the commission of war crimes in any form would be quick to condemn.

As authorities such as Binnie J. have noted, “[t]he enforcement mechanisms for human rights have lagged… [Y]ou cannot have a functioning global economy with a dysfunctional global legal system: there has to be somewhere, somehow, that people who feel that their rights have been trampled on can attempt redress.” In order to facilitate the introduction of such enforcement mechanisms, Canadian courts must act to significantly curb their current proclivity towards the liberal application of the forum non conveniens doctrine in such cases. Especially since the 1999 forum non conveniens stay in the Cambior case in Quebec (alongside a costs order against a Quebec NGO bringing a claim on behalf of Guyanese citizens that alleged health and other harms from a cyanide spill by a subsidiary of a Canadian gold mining company), Canadian courts have attracted—and often affirmed—a reputation as weak and ineffective when it comes to transnational corporate accountability. For example, when Sudanese citizens sought to sue Canadian company Talisman Energy, they went to US courts, arguing that the receptivity of Canadian courts to allowing a claim against a Canadian company was at best unclear, notwithstanding the fact that it was palpably clear Sudanese courts offered no viable alternative.

As it stands, the Bil’in judgment is a setback in the fight against war crimes, crimes against humanity, and human rights violations everywhere. If the reasoning stands, Canadian corporations will continue to successfully take shelter behind forum non conveniens regardless of the gravity of the allegations against them or the capacity of the foreign court to adjudicate the claim.

The author attended the hearing of Bil’in (Village Council) v. Green Park International Ltd. in Montreal in June with the assistance of the Nathanson Centre on Transnational Human Rights, Crime and Security. He has also provided legal research support and feedback to counsel for the plaintiffs.

Facts

In November and December of 2003 the New Haven (Connecticut) Fire Department administered written and oral examinations to fill vacant lieutenant and captain positions. At a cost of $100,000 to the City, these objective tests had been meticulously developed by an outside firm that specialized in designing entry-level and promotional examinations for fire and police departments. Minority firefighters were deliberately oversampled at every stage of the construction and compilation of the exams, such as ride-along’s and interviews with high-ranking firefighters, in an attempt to ensure that the exams would not be unintentionally biased in favour of white test-takers. Furthermore, two-thirds of the exam assessors pool (30 high-ranking firefighters from outside of Connecticut) was deliberately composed of minorities.

77 candidates completed the lieutenant examination, of which 34 (44%) passed. By race, 25 (58%) of the 43 whites, 6 (32%) of the 19 blacks, and 3 (20%) of the 15 Hispanics passed. 41 candidates completed the captain exam, of which 22 (54%) passed. By race, 16 (64%) of the 25 whites, 3 (38%) of the 8 blacks, and 3 (38%) of the 8 Hispanics passed. The number of vacant lieutenant and captain positions allowed for the 10 highest-scoring lieutenant candidates and the 9 highest-scoring captain candidates to be eligible for immediate promotions. The 10 highest-scoring lieutenant candidates were all white. The 9 highest-scoring captain candidates were 7 whites and 2 Hispanics. Altogether, of the 68 whites, 27 blacks, and 23 Hispanics who completed either the lieutenant or captain examinations, 17 whites and 2 Hispanics achieved eligibility for immediate promotion to those positions.

Based on the statistical disparity of test results, wherein whites greatly outperformed minority candidates, the City expressed concern that the tests had racially discriminated. Vociferous public debate ensued, with the City confronted with arguments both for and against certification of the test results — and threats of a lawsuit either way. The Civil Service Board ultimately voted against certification, throwing out the results of the tests.

19 white firefighters and 1 Hispanic firefighter then sued the City; they alleged discrimination against them based on their race, in violation of the “disparate-treatment” prohibition in Title VII of the Civil Rights Act of 1964, as well as in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The City responded that, by not certifying the test results, it had acted so as to avoid liability for discrimination against the minority candidates based on their race. This, the City argued, would have violated the “disparate-impact” prohibition in Title VII.

Law

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on “race, colo[u]r, religion, sex, or national origin”. As originally enacted and worded, Title VII held employers liable for intentional employment discrimination, known as “disparate treatment”, on its enumerated grounds. However, in the case of Griggs v. Duke Power Co., 401 U. S. 424 (1971), the United States Supreme Court interpreted the Act to also prohibit “disparate impact” discrimination: employers’ facially neutral practices that produce disproportionate results in terms of Title VII protected grounds, thereby “adversely affecting” such statistical minorities. This form of discrimination is unintentional, therefore lack of intent to “disparately impact” is no defence: statistical disparity alone serves to establish a prima facie case of disparate-impact discrimination.

In the event of a prima facie case of disparate impact discrimination, an employer may make the “business necessity” defence by demonstrating that the impugned practice is “job related for the position in question and consistent with business necessity”, as per the Civil Rights Act of 1991, which formally codified the prohibition against disparate-impact discrimination. Even with that burden met, however, an employee-plaintiff may still prevail by demonstrating that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.

Opinion of the Court

“Swing vote” Justice Anthony Kennedy, writing for the 5-4 majority (comprising of Justice Kennedy along with the conservative bloc of Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito), first found that “[t]he City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defence.” The City’s decision to essentially pull the rug out from under Frank Ricci et al. was intentionally and expressly race-based, done so in attempting to comply with Title VII’s disparate-impact prohibition. Thus, the matter at issue was how to reconcile the prohibitions on disparate-treatment and disparate-impact discrimination: “whether the purpose to avoid disparate-impact liability excuses what would otherwise be prohibited disparate-treatment discrimination.”

The petitioners (Ricci et al.) first proposed that “disparate-treatment” discrimination should trump or negate “disparate-impact” discrimination, such that no such after-the-fact corrective reverse discrimination ever be allowed, and that disparate-impact compliance never be used as a defence. The Court rejected this strict approach.

The petitioners alternatively proposed that compliance be allowed as a defence in a disparate-treatment suit only if an employer is in fact in violation of the disparate-impact prohibition. For their part, the respondents proposed that “an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision should be enough to justify race-conscious conduct.”

Rejecting the petitioners’ standard as still too strict and that of the respondents’ as minimal, Justice Kennedy imported the high “strong basis in evidence” standard of Wygant v. Jackson Board of Education, 476 U.S. 267, 290 (1986):

“We hold … that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” [My underlining.]

This, according to Justice Kennedy, achieves the stated aim of reconciliation:

“Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination.”

Applying this standard, Justice Kennedy found no issue as to the validity and business necessity of the tests, and alternatives thereto. It was thus held that the City had failed to meet this “strong basis in evidence” standard and had discriminated against the white firefighters on the basis of their race in violation of the prohibition against disparate-treatment in Title VII of the Civil Rights Act of 1964.

“… the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. … [T]here is no evidence —let alone the required strong basis in evidence— that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

Justice Alito’s opinion

Of particular interest is Justice Samuel Alito’s concurring opinion (joined by Justices Scalia and Thomas), an almost journalistic account of the grimy, behind-the-scenes goings-on of this matter: Mayor John DeStefano’s need to placate New Haven’s black community, led by a rambunctious, power-brokering Reverend Boise Kimber; Mayor DeStefano’s resolve to use his executive authority to override in the event that the Civil Service Board voted to certify; and how the City publicly pretended to deliberate the matter despite the fact that the decision to scrap the test results for political reasons had already been made by the Mayor and his cohorts.

The account lays waste to the City’s claims of good faith. That such machinations, quite possibly the disconcertingly all-too-common reality behind instances of “disparate impact”, are memorialized in a Supreme Court judgment is marvelous.

Justice Ginsburg’s dissent

While Frank Ricci and company have finally received the promotions they rightfully earned, Ricci v. DeStefano still leaves much to be desired. The case’s dissent, formed by the liberal wing of the Court (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer) and written by Justice Ruth Bader Ginsburg, begins with the ludicrous (“[the petitioners] had no vested right to promotion. Nor have other persons received promotions in preference to them”,) and the shockingly bitter (“[t]he Court’s order and opinion, I anticipate, will not have staying power.” ). This latter parenthesized statement, in particular, demonstrates a disrespect for stare decisis that seems unbecoming of a Justice of the Supreme Court.

What is most frustrating about Justice Ginsburg’s dissent (which espouses a laxer “good cause” standard) is her apparent inability to entertain the fundamental practical contradiction between eliminating “disparate-treatment” discrimination and “disparate-impact” discrimination, contrary to Congress and Title VII’s idealistic intention that the two prohibitions work hand in hand. This contradiction — if not the dubiousness of the notion of disparate-impact discrimination itself — may be represented particularly and parsimoniously in this case by the possibility that these white firefighters studied significantly harder and/or had a significantly greater aptitude than their minority counterparts, a possibility which the majority opinion thankfully allows for; or, it may be represented generally in the uneasy statistical reality voiced by a psychologist with whom the City consulted, that “‘[n]ormally, whites outperform ethnic minorities on the majority of standardized testing procedures’”. This reality still stands for science and academia to grapple with and resolve.

Furthermore, Justice Ginsburg’s statement that “African-Americans and Hispanics account for nearly 60 percent of the population” of New Haven suggests that she judges fairness by outcome. One might wonder whether she is keen to the flip-side of that statistic, that it is really whites who are a minority in the City of New Haven. One also wonders whether she believes that civil rights laws are intended to protect people of all races, or just ethnic minorities.

Also, her mention of the historical corruption and underrepresentation of minorities within the New Haven Fire Department and within public employers in general is not particularly helpful.  Such corruption and underrepresentation is precisely the reason for civil service testing, such as was used here. Yet, ironically, as Justice Alito’s concurring opinion recounts, this proved insufficient. Finally, Ginsburg’s pedantic and obtuse nitpicking in regards to the tests, concluding in her “best” criteria being those that promote more minorities, seems suspect in light of her lack of expertise in psychometrics (in which area the expert witnesses/consultants relied upon by the City were not helpful). This strange exercise indicates, perhaps, her flawed conceptualization of fairness.

The Wise Latina

It is lamentable that such a simple and plainly egregious set of facts did not lead to a 9-0 slam dunk, at least in result. How it came to this — how Ricci v. DeStefano reached the Supreme Court — is an interesting story in itself. Recent Supreme Court nominee Sonia Sotomayor, a jurist fiercely ethnic in outlook and a staunch, lifelong proponent and admitted beneficiary of ethnic preferences, formed part of the suspiciously cursory and unsigned summary order at the 2nd Circuit Court of Appeals.  This order disposed of Ricci et al.‘s appeal and affirmed the District Court’s decision in favour of the City. The case would have tumbled down the memory hole had Sotomayor’s old mentor and fellow 2nd Circuit member Justice Jose Cabranes (a New Havenite himself) not chanced upon an article in his local newspaper covering the dissatisfied reaction of counsel for Ricci et al. to this order, and jumped into action by requesting an en banc rehearing at which he wrote a harsh, rebuking dissent. “How Ricci Almost Disappeared” by Stuart Taylor Jr. of the National Journal tells the full story.

This June 29 decision of the United States Supreme Court overruling Justice Sotomayor’s appellate decision represented a considerable setback to the Obama Administration and its nod to replace retiring Justice David Souter. Justice Sotomayor was nonetheless successfully confirmed. Lead plaintiff Frank Ricci and the one Hispanic member of the lawsuit Ben Vargas (who alleges being beaten up by a black firefighter for taking part in it) testified at Sotomayor’s confirmation hearings. Their testimony is available here and here.

Justice Scalia’s opinion

In the end, Ricci v. DeStefano turns on very narrow legal grounds. The Supreme Court only answered the statutory question regarding Title VII of the Civil Rights Act of 1964.: corrective reverse discrimination is hard to engage in, and so still permissible. The Court expressly refrained, however, from answering the constitutional question. Justice Antonin Scalia’s brief concurring opinion highlighted this shortcoming:

“… this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the [Equal Protection Clause of the Fourteenth Amendment to the United States Constitution]?
…
The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid ‘remedial’ race-based actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result.” [Italics in original.]

Justice Scalia also touched on the difficulty in conceptualizing disparate-impact discrimination as a wholly unintentional form of discrimination, different from disparate-treatment:

“It might be possible to defend the law by framing it as simply an evidentiary tool used to identify genuine, intentional discrimination—to ‘smoke out,’ as it were, disparate treatment. … But arguably the disparate-impact provisions sweep too broadly to be fairly characterized in such a fashion—since they fail to provide an affirmative defense for good-faith (i.e., nonracially motivated) conduct, or perhaps even for good faith plus hiring standards that are entirely reasonable.”

Justice Scalia concluded:

“… the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.”

In closing

Returning victoriously to the steps of the New Haven Federal Courthouse where the journey to the United States Supreme Court began, Frank Ricci (the dyslexic lead plaintiff, who paid $1000 to buy textbooks and have his neighbour read them onto audiotapes, and who gave up a second job and studied 8 to 13 hours a day in preparation for the test,) beamed: “[i]f you work hard, you can succeed in America.” To Mr. Ricci I ask: Where do you find it within yourself to say that, after all you’ve been through?

Oh well, congratulations.

The media attention has focused largely on California, where the passage of Proposition 8 effectively stripped same-sex couples of the marriage rights that they had won just five months earlier. Last May in Re: Marriage Cases, 43 Cal.4th 757, the California Supreme Court declared that limiting marriage to only opposite-sex unions was contrary to the state constitution’s principles of equality. The Court ordered the state registry to begin issuing gender-neutral marriage certificates immediately. Over 17,000 same-sex couples were married after the Court’s ruling and before the November 4th passing of Proposition 8.

Proposition 8 brings about several legal conundrums. Characterized as a constitutional amendment, the proposition adds a single phrase to California’s state constitution: “Only marriage between a man and a woman is valid or recognized in California.” It remains to be seen whether this provision consequently nullifies the 17,000 same-sex marriages that have already been issued licences. Although California’s attorney general has stated that he will not challenge the validity of those licences, it’s unclear whether the licences would survive legal scrutiny should a challenge be brought, now that the constitution says that California will recognize only opposite-sex marriages.

It is also unclear how Proposition 8 can be made consistent with the constitution in which it finds itself. The California Supreme Court has already ruled that the right to marry “constitutes a basic civil or human right of all people” regardless of gender. In effect, Proposition 8 adds an unsightly asterisk to California’s constitutional guarantees of equality. Moreover, by allowing the whim of the majority to trample on the constitutional rights of the minority, Proposition 8 sets a scary precedent. Although thirty states in the U.S. have already banned gay marriage, this was the first instance of a state revoking marriage rights that it had previously bestowed. Various civil rights groups are already asking the California Supreme Court to either throw out the proposition or have it characterized as a revision rather than an amendment. A constitutional revision requires a 2/3 legislative vote before being presented to the electorate.

Canadians may view what’s happening south of the border with a mixture of disdain and smugness, but the road to marriage equality in our country was long and almost as tumultuous. In light of the recent developments south of the border, this post will look back at the path that led to the recognition of same-sex marriages in Canada.

Fighting for Equality in the Courts: From Egan to Halpern

The most important judicial decision regarding LGBT rights in Canada is arguably Egan v. Canada, 1995 SCC 49, which established sexual orientation as a grounds for discrimination that is analogous to those enumerated in section 15 of the Charter. In Egan, the plaintiff James Egan was set to receive retirement benefits under the Old Age Security Act. When he applied for his same-sex partner to receive spousal allowance, he was denied on the basis that the term “spouse,” as used in the Act, only included members of the opposite sex. Although the Supreme Court of Canada ultimately dismissed Egan’s appeal (the majority found that the Act did not discriminate against homosexuals as it served only to support legal marriage, an institution in which gays and lesbians could not participate), it did hold that sexual orientation attracts section 15 scrutiny.

Interestingly, La Forest J. wrote in Egan that marriage is inherently heterosexual because it is “firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate.” This reasoning was later rejected in Halpern v. Canada and in the Same-Sex Marriage Reference.

The ruling in Vriend v. Alberta, [1998] 1 S.C.R. 493, can be seen as a direct consequence of Egan. The plaintiff Delwin Vriend was fired from his job but could not seek a remedy under the Alberta Individual Rights Protection Act, the province’s human rights statute, because it did not recognize sexual orientation as a grounds for discrimination. Vriend appealed to the Supreme Court, arguing that the Act was contrary to what had been established in Egan. The Court agreed, though as a remedy, they chose to “read in” protection of sexual orientation into the Act rather than invalidate the Act altogether.

Also building on Egan was M. v. H., [1999] 2 S.C.R. 3, which established that common-law relationships should both include and award equal treatment to, same-sex couples. The case involved the dissolution of a same-sex relationship, with one partner wanting the division of property mechanisms to which opposite-sex common law spouses were entitled. The ruling was significant because it expanded section 15 of the Charter to recognize not only the notion that gays and lesbians should be protected against discrimination, but the idea that same-sex couples as a unit should treated the same as opposite-sex couples.

In response to M. v. H., the House of Commons passed Bill C-23, an amendment to the Modernization of Benefits and Obligations Act that, while extending common-law spousal benefits to same-sex couples, also defined marriage as “the lawful union of one man and one woman to the exclusion of all others.” The passage of the bill, while a victory for gay rights activists in some respects, was also a statutory blockade against having the word “marriage” include same-sex unions.

Drawing inspiration from the Civil Rights Movement in the United States, which firmly established that “separate but equal” is not equal, gay activists continued to pursue full marriage equality. Their efforts were rewarded in the watershed Ontario case, Halpern v. Canada, (2003) 65 O.R. (3d) 161. The Ontario Court of Appeal upheld the Ontario Superior Court of Justice’s decision (which can be read here) that found that the definition of marriage as a union between one man and one woman unjustifiably infringed on section 15 of the Charter. Both the OSCJ and the OCA rejected the argument once relied upon by La Forest J. in Egan to defend marriage as a heterosexual institution centred on supporting procreation and childrearing. Both courts pointed out that many heterosexual couples choose to marry for reasons other than raising children. Furthermore, many same-sex couples already have or could have children by other means, rendering this distinction between heterosexual and homosexual couples moot.

The Ontario Court of Appeal was the first appellate court in Canada to recognize the validity of same-sex marriages, but other provinces quickly followed suit; by the end of 2004, most provinces along with the Yukon had begun issuing same-sex marriage licences.

The Same-Sex Marriage Reference

The federal government chose not to challenge the decisions of the provincial appellate courts and instead promised to enact same-sex marriage legislation. In Re: Same-Sex Marriages 2004 SCC 79, the government submitted four questions to the Supreme Court regarding the constitutionality of the proposed legislation:

1. Is the [proposed legislation] respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada?

2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms?

3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

4. Is the opposite‑sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law–Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms?

The Supreme Court answered yes to question 1, finding that changing the common law definition of marriage was within the power of Parliament bestowed by Section 91(26) of the Constitution Act, 1867. While section 91(26) gave Parliament the power to oversee “marriage and divorce,” and marriage had traditionally included only opposite-sex unions, the concept of the Constitution as a “living tree” meant that the meaning of “marriage” in the constitution was not fixed.

The response to question 2 was also affirmative. The Court wrote that the purpose of the proposed legislation, “far from violating the Charter, flows from it.” Only a violation of rights could be deemed an infringement of the Charter, and “the mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another.”

With regard to question 3, the Court reiterated that the proposed legislation only dealt with civil marriages. However, if the state were to compel a religious official to perform a marriage contrary to her or his religious beliefs, it would likely be a violation of section 2(a) of the Charter.

Curiously, the Court chose not to answer question 4. They stated that a response, be it in the positive or negative, would be irrelevant because the federal government intended to legalize same-sex marriage anyway. Furthermore, the lower courts had all held that limiting marriage to opposite-sex couples was contrary to the Charter. If the Supreme Court were to answer yes to question 4, it would generate a considerable amount of ambiguity about the status of same-sex marriages, as is presently the case in California.

Still, the reasons the Court provided for not answering question 4 are rather flimsy, given that the rest of the reference strongly implies that the Court believes that the answer is no, ie. that the common law definition of marriage is not consistent with section 15 of the Charter. Professor Peter Hogg speculates that the real reason the Court refused to answer question 4 was “to make Parliament play a role in the legalization of same-sex marriage, so that it could not be claimed that such a controversial project was being entirely driven by judges.” Indeed, it was Parliament and not the court system that wrote same-sex marriage into law, with the Civil Marriage Act, which was passed on June 28, 2005 and received Royal Assent on July 20, 2005.

The passage of the Civil Marriages Act made Canada the fourth country in the world to nationally recognize same-sex marriages, after the Netherlands, Belgium and Spain. South Africa has since legalized same-sex marriage and the Supreme Court of Nepal has recently directed the Nepali government to introduce legislation recognizing same-sex partnerships or marriages.

Looking Forward

As the public demonstrations continue south of border in reaction to Proposition 8, it will be interesting to see where the American gay rights movement goes from here. Unfortunately, the relatively straight path (no pun intended) that same-sex proponents took in Canada towards marriage equality does not seem as realistic in an American context. The solemnization of marriage is a state power, and currently only Massachusetts and Connecticut have legalized gay marriage. Gay rights activists would need to win court battles state-by-state to gain national marriage equality. With the courts in several states having already expressed their opposition to same-sex marriage, one wonders how long it will take until gay and lesbian Americans enjoy the same rights as their northern neighbours.

The accused, S.A.C., pled guilty to numerous charges under both the Criminal Code and Youth Criminal Justice Act: nine assorted counts of motor vehicle theft, three counts of breaking and entering and theft, breach of an undertaking and breach of probation. S.A.C. had prior to these charges also been convicted of nine various offences under both acts. The judge sentenced him to 200 days in secure custody followed by 100 days of supervision in the community.

The issue arises with a discrepancy in the English and French versions of the Youth Criminal Justice Act. The English version of s.39(1)(c) of the Act stipulates that the court shall not commit a young person to custody unless “the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt.” The French version, however, says that the court shall not commit a young person to custody unless the young person “a commis un acte criminel pour lequel un adulte est passible d’une peine d’emprisonnement de plus de deux ans après avoir fait l’objet de plusieurs déclarations de culpabilité.”

(For readers not fluent in French, that translates as “[if the young person] committed a criminal act for which an adult would be liable to imprisonment for more than two years after having been the subject of more than one declaration of guilt.”)

This incongruity between the two translations leaves two areas open for interpretation: whether or not the offences being committed should be considered for determination under s.39(1)(c), and how to (and whether to) determine the “pattern of the findings of guilt.”

The sentencing judge concluded from his reading of the text that he was not required to consider only those indictable offenses carrying a maximum punishment of more than two years in establishing a pattern of findings of guilt. He also took the position that it was reasonable to consider the charges for which S.A.C. had just been found guilty as part of this pattern.

S.A.C. appealed, arguing that the sentencing was incorrect. The Nova Scotia Court of Appeal agreed with the sentencing judge, reasoning that “history” meant “time prior to the date of sentencing.” By this definition, the offences to which S.A.C. had just pled guilty qualified, as they happened before the date of sentencing. Bateman J.A. also agreed that in establishing the pattern of findings of guilt, non-indictable offences might be used, but took care to point out that indictable offences weren’t necessary to establish a pattern of findings of guilt in S.A.C.’s case.

The Supreme Court dismissed S.A.C.’s appeal, reasoning as follows:

Canadian jurisprudential tradition, in instances where the English and French versions of a law conflict but are not irreconcilable, is to follow the narrowest possible interpretation of the law in question (as exemplified in R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6).

The English use of “history” in this instance could mean either the history including the offences for which the individual was being sentenced, or the history up to but not including those offences. The French version, however, narrows this by using the word “après,” indicating that the offences for which the invidivual is being sentenced should not be considered. The French version is narrower, and thus for this part of the law, it prevails.

The second issue, the patterns of findings of guilt, flips narrowness around; where the French version of the law demands only one conviction (for a crime where an adult would be charged for more than two years’ imprisonment) to commit a young person to custody, the English version requires what amounts to a history of significant criminal behaviour. Since this latter is obviously more difficult for the state to prove, it is the narrower reading and thus prevails.

S.A.C. also argued that the pattern of findings of guilt should not include non-indictable offences, but Justice Deschamps strongly disagreed:

I am not convinced by this argument. The word “pattern” relates to prior findings of guilt, not to the finding in respect of which the young person is being sentenced. To hold that only prior convictions for indictable offences are to be considered would be to impose a limit that is not provided for in the English version and is totally absent from the French. Although similarity can be relevant to the determination whether a pattern exists, the threshold is a pattern of findings of guilt, not a pattern of findings of guilt for the same type of offence as the one for which the young person is being sentenced.

Since a harmonious interpretation had been derived from the conflicting English and French readings, it then fell to the Supreme Court to determine whether or not this new interpretation of the conflicting passages was in line with Parliament’s original intent (as was done in Schreiber v. Canada, 2002 SCC 62). Since Parliament’s intent in passing the Youth Criminal Justice Act was to reduce the number of youth incarcerations, and since the new interpretation will offer less opportunity to incarcerate young people than other readings (despite Deschamps J.’s willingness to consider non-indictable offenses in the pattern of findings of guilt), the Court found that it passed this test.

However, in an unfortunate conclusion for S.A.C., the Supreme Court then found that despite the higher threshold for sentencing a minor to custody, he satisfied the requirements necessary under the new interpretation to qualify. Which just goes to show you that sometimes, you just can’t beat the system – nor battez le système.

This is the most troubling aspect of the Supreme Court’s decision in Khadr: its willingness to rely on American jurisprudence to determine whether the occupation of Guantanamo Bay was illegal. Is this not nonsensical? The United States Supreme Court found in Hamdan v. Rumsfeld, 126. S. Ct 2749 (2006), that America’s procedural rules violated the Geneva Conventions. If Guantanamo Bay had been a Zimbabwean operation – Zimbabwe not being a signatory to the Geneva Conventions – are we to conclude that our Supreme Court would have found it legal? If Guantanamo had been a Chinese operation, are we expected to accept that China’s lack of enshrined habeas corpus rights would have made the events detailed in Rasul v. Bush, 542 U.S. 466 (2004), acceptable to Canadians?

Even if one considers these examples too hyperbolic, consider that neither Rasul v. Bush nor Hamdan v. Rumsfeld were particularly emphatic decisions by the U.S. Supreme Court; Rasul was a 5-3 decision and Hamdan a 6-3 decision. Given the highly politicized nature of the American judiciary, it may well be that only the continued good health of Justice Ginsburg and Justice Stevens (who significantly authored the majority decisions in both Rasul and Hamdan) in the last few years – both of advanced age, and both widely believed to be clinging to their seats to prevent dogmatic Republican appointees replacing them – prevented the decision turning the other way. If a slightly differently composed American Supreme Court had justified their federal government’s illegality in these cases, should we then expect our Supreme Court to toothlessly agree?

This line of thinking effectively conflates Canadian courts’ interpretation of international law with their American counterparts, and relies upon a diminished moral standard for Canadian action; the judgement of what is reasonable not by our own standard, but by the international equivalent of peer acceptance. (Indeed, the Court seems to recoil from this logic at para. 25, citing Canadian ratification of the Geneva Conventions and stating that “[i]t follows that participation in the Guantanamo Bay process which violates these international instruments would be contrary to Canada’s binding international obligations.”)

The Supreme Court follows its somewhat tepid determination of a violation of international law by further qualifying at para. 27 that violation of Canadian human rights obligations will typically require that assistance be tendered to a violative regime. Although the Supreme Court allows for the possibility that this not be the case, it fails to allow for how – and the obvious point to be made here is that deference of this sort – especially on an international level – amounts to tacit endorsement of that regime, or at the very least of that regime’s tactics, and in spirit if not letter thus a violation of Canada’s binding international obligations.

This distinction is especially important given the Court’s decision in para. 32 to restrict Canada’s disclosure obligation to information provided to U.S. authorities:

In this case, although Canada participated in the U.S. process by giving the product of its interviews with Mr. Khadr to U.S. authorities, it did not by virtue of that action step into the shoes of the U.S. prosecutors. The scope of the disclosure obligation in this context is defined by the nature of Canada’s participation in the foreign process. The crux of that participation was providing information to U.S. authorities in relation to a process which is contrary to Canada’s international human rights obligations. Thus, the scope of the disclosure obligation must be related to the information provided to U.S. authorities.

By taking this route, the Supreme Court is effectively washing Canada’s hands of the matter, all the more so when Khadr’s attorneys assert that only Canada can potentially deliver unto them required documents that the Supreme Court decided were not included within the bounds of disclosure. This is not a trifling matter; Khadr’s attorneys have asserted repeatedly (and produced evidence that would seemingly confirm) that the American government has doctored evidence against Khadr.

The level of deference shown by the Supreme Court to the American government and judiciary is disturbing. Where the Canadian government cannot be counted upon to defend the rights of Canadians abroad, it falls to the judiciary to force them to observe their Charter and international law obligations. Canada v. Khadr sets a standard that is simply too low; it demands nothing more than the bare minimum. We can do better.

Now imagine that your judgment is for some kind of non-monetary relief: an injunction, an order for specific performance or the like, and you are told that you cannot enforce this type of judgment across any international borders. Therefore, if you were faced with a defendant who skips across the border, you would have to start the entire litigation process again in the new jurisdiction to ensure that the defendant respects the judgment against him.

This was the unfortunate state of the common law before the SCC changed everything in the case of Pro Swing Inc. v ELTA Golf Inc. Until then, foreign non-monetary judgments were simply unrecognized in Canada. Unanimously, the SCC declared that it was time to update the common law and enfrorce foreign non-monetary judgments. Although I agree that the old common law rule no longer makes sense in an increasingly globalized world, I disagree with the fact that it was the judiciary who stepped in to make this change.

Throughout the SCC’s decision, we are alerted to the fact that there have been many provincial law reform proposals and studies that recommend the law be altered to recognize foreign non-monetary judgments, and yet no legislative action has been taken. The SCC therefore concludes that a need for change exists. I agree. The SCC also concludes that it is in the best position to make such an incremental change to the common law. I respectfully disagree. Regardless of how sensible the recommendations are, the fact that the executive has obviously been alerted to the problem and has chosen not to act is telling. Should the courts step in where the executive has (we must assume purposefully) rejected the idea of changing an established, long standing rule? It is my belief that they should not.

My position is strengthened when we look at how potentially wide-spread the implications of this decision are. Non-monetary judgments affect an individual’s rights in a way that simple monetary judgments do not (by for example, enjoining someone to do something or forcing them to take a specific course of action) and are therefore subject to stronger public policy concerns. Asking a court to decide whether or not to enforce a foreign order to produce certain documents despite glaring differences in our domestic privacy laws is a much different thing then asking a court to enforce a monetary debt that arose from foreign proceedings. The former requires a judge to engage more deeply in the delicate analysis of whether a foreign country’s law offended our Canadian sense of public policy or fairness since more is at stake.

Although our judges are empowered to invoke public policy as a reason to refuse enforcing a foreign judgment (monetary or otherwise), it remains an open question as to how many would feel confident and comfortable enough to make pass such bold judgment on another country’s legal system. I believe it is more likely that judges put in this difficult situation would hesitate and resort to finding overly technical reasons to avoid enforcing judgments that they believe are in contravention of our public policy. We can see this trend in the case law leading up to Pro Swing, and even in Pro Swing itself. In Uniforet Pate Port-Cartier Inc. v Zerotech Technologies In, for example, the British Columbia Supreme Court refused to give effect to a Quebec judgment ordering production of documents since it found the order to be insufficiently precise. The alleged imprecision arose since the Quebec court omitted to state who should pay for the photocopying costs of production, when production should occur and since were some ambiguities surrounding a few of the documents to be produced. One has to ask whether not specifying who shoulders the burden of photocopying costs in a judgment should be enough to completely nullify the judgment altogether.

Similarly, in Pro Swing the SCC (by a slim majority) decided that the foreign injunction in question was too vague to be enforceable. The only missing factor in that foreign judgment for injunction, however, was the explicit mention of whether it had effect outside of the United States.

One has to wonder if any foreign judgment could possess the necessary level of detail the courts require before declaring it to be precise enough to enforce. Such timidness on behalf of judges is understandable given the great public policy considerations at stake with each non-monetary judgment. However, this uncertainty does nothing to help the current state of the law. Rather, I believe that it actually hinders the development of the law since it muddies the legal waters, making it harder for parties to know their rights, either in the aim of settling or pursuing legitimate claims. Further (and perhaps more dangerously) it allows the executive to ignore a complex issue that they are clearly more equipped to grapple with.