Guest Blog: The Mugesera Stay Decision

 

The Mugesera case is still in the news. Today, federal Justice lawyers were in court in Montreal, arguing that Justice Fraiberg of the Quebec Superior Court did not have jurisidiction to order the stay of the deportation proceeding in the first place. While reporting wasn't clear on this, it appeared both sides were arguing the point on which the court issued the stay--that the request of the UN Torture Committee for a stay on the deportation need not be complied with by Canada as a matter of international law.

I am pleased to present here a guest post by Prof. Dr. Stéphane Beaulac (Cantab.), distinguished professor of international law at the Université de Montreal, who makes a compelling argument on the correctness (or lack thereof) of the stay decision.

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On Thursday, 12 January 2012, William Fraiberg J. of the Quebec Superior Court issued a one-week stay («mesure de sauvegarde») of the deportation order again Léon Mugesera. This decision, albeit interlocutory in nature, is wrong in law and should be overturned on appeal, hopefully as soon as next week. Simply put, the reason is pretty straightforward: the Ontario Court of Appeal decision in Ahani governs on the question at issue and should be followed in the case at bar. But there is more… of course.

The short discussion that follows is grounded in the epistemology of legal interpretation, the perspective I have been adopting to address issues of interlegality and the domestic reception of international law. Besides focussing on the ways by which international normativity may be resorted to by national courts, what I call the “operationalisation” of international law – which is twofold, namely (i) the contextual argument and (ii) the presumption of conformity – the methodology of interpretation as a prism through which understanding how non-domestic legal norms may have an impact domestically provides a heuristic scheme to help us appreciate why there is still a divide between the two legal realities, a dichotomy that indeed remains in spite of the revisionist suggestions of a full integration of the legal world.

To (re-)use – or rehash?! – my favourite formulation of the problematics, let me suggest this: as far as judges in most common law jurisdictions (including Quebec, regarding its public law) are concerned, the matrix within which states operate and international affairs are conducted continues to be based on the Westphalian model of international relations, at the centre of which is the idée-force of sovereignty. The legal by-products of this social construct are twofold: constitutional law and international law, which correspond to the exercise of internal sovereignty (that of Jean Bodin) and external sovereignty (that of Emer de Vattel) respectively. The traditional stance, therefore, has held that the Westphalian model of international relations, which is governed by the Vattelian legal structure, involves an international realm that is distinct and separate from the internal realms.

The distinctiveness and separateness of the international / national realities explain two fundamental legal principles, one from international law and one from constitutional law.  The first then is that a sovereign state is not entitled to invoke its internal law — which includes its constitutional structure — in order to justify a breach of its international obligations.  Essentially, the reason why domestic law cannot justify a failure to honour obligations vis-à-vis the international community is that these norms and duties belong to two distinct and separate legal systems. The second core legal principle springing from the international / internal divide, in fact a set of rules, concerns the administration of the relationship between the two systems. These rules determine, as a matter of law, how one legal system interacts with and treats the other legal system, including the way in which the normativity emanating from one may be taken into account or utilised in the other.  Accordingly, the rules on the status of international law within the jurisdiction of a sovereign state are domestic rules, usually deemed important enough to be part of constitutional law.

In terms of judicial activities, the international / domestic dichotomy means that domestic courts and tribunals of sovereign states apply their domestic law, while the International Court of Justice and other international courts and tribunals apply international law. Put another way, the constitutional mandate of domestic courts is to interpret and apply domestic law, not international law. But this normative division does not mean, of course, that international judicial bodies cannot take into account domestic law, which is in fact an explicit source of international law under article 38(1) of the Statute of the ICJ, or that domestic caselaw does not influence their decisions as a secondary source of international law or as evidence of international customs. Conversely, no authority needs to be cited for the proposition that domestic judges may resort to international law when it has also become part of the laws of the land (… if need, one would refer to the 1998 Reference re Secession of Quebec case).

This, however, does not modify the basic situation that the international judiciary applies the legal norms of its realm and that national judiciaries apply the legal norms of their realms. The international reality is distinct and separate from the internal reality and, therefore, the actualization of international law through judicial decision-making is distinct and separate from the actualization of domestic law through judicial decision-making. Thus, it must still be assumed in Canada (… and in Quebec) that it is if, and only to the extent that, national legal rules of reception allow international law to be part of domestic law — and that it has in effect become part of that domestic law, such as through implementing legislation — that international norms may have an impact on the interpretation and application of domestic law by domestic courts. Strictly speaking, therefore, international law qua international law cannot be binding on national judges, whose judicial authority is constitutionally entrusted by and for a sovereign state.  Put another way, international normativity cannot apply per se within domestic systems because courts are concerned with and competent over national law, not international law. What norms from the international legal order can do, and indeed ought to do whenever appropriate, is to influence the interpretation and application of the laws of the land.

These were certainly among the factors – one academic fellow might wishfully hope! – taken into account by the Ontario Court of Appeal when rejecting the arguments based on the International Covenant on Civil and Political Rights in the 2002 decision in the Ahani case. The question at issue – in addition to the procedural one, relating to the interim order – was whether the Optional Protocol to this convention was part of the laws of the land. The fact that there is no legislation in Canada transforming any of these human rights commitments is very well documented in legal literature. Both the majority and the dissenting judges of the Court of Appeal reached the inescapable conclusion that these international norms have no legal effect within the Canadian domestic legal system: “Canada has never incorporated either the Covenant or the Protocol into Canadian law by implementing legislation. Absent implementing legislation, neither has any legal effect in Canada” (Ahani, para. 31). It would lead to an “untenable result”, Laskin J.A. wrote for the majority, to “convert a non-binding request, in a Protocol which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court” (Ahani, para. 33). Justice Rosenberg, in dissent, agreed with the majority on this point: “On the legal side, they [the federal government et al.] invoke the established principle that international conventions are not binding in Canada unless they have been specifically incorporated into Canadian law. The Covenant, while ratified, has never been incorporated into Canadian domestic law and therefore does not create legal obligations enforceable in Canada” (Ahani, para. 73).

What about Mr. Mugesera now?  The international instrument is the Convention against Torture and other Cruel, Inhumane and Degrading Treatment or Punishment, to which Canada is a party – ratification in 1987 – and of which some substantive treaty provisions have been incorporated in Canadian law by means of implementing legislation (Criminal Code, section 269.1). This seems to make the situation different than Ahani’s and the non-incorporation of the ICCPR, but only at first consideration. Indeed, as regards the enforcement aspects of the matter, there is no international normativity that is binding domestically in Canada; no statutory provision which would force a national court judge to stay a deportation order. Sure, Canada has made a declaration – dated 13 November 2009 – pursuant to section 22 of the CAT recognizing the competence of the Committee against Torture to consider petitions from individuals, which is the basis of Mugesera’s communication. This feature, to draw a parallel, is the same as the Optional Protocol of the ICCPR, giving jurisdiction to the Human Rights Committee, as in Ahani. And, again, similar to the latter, there is no legislation in Canada that has given effect domestically to the enforcement provisions of the UN conventional regime on torture.

 Put another way, even if one could distinguish Ahani on the fact that the CAT has been incorporated domestically, it would be erroneous to argue that the jurisdictional features of the CAT are part of the law of the land. Only the substantive ones were implemented in 1987 by means of section 269.1 Criminal Code, not the supra-national enforcement conventional provisions relating to the Committee against Torture. Thus, as in Ahani, the relevant international normativity has not been implemented by Canada and, as in that case, it would be an “untenable result”, as Laskin J.A. opined for the majority, to “convert a non-binding request, in [an international instrument] which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court” (Ahani, para. 33). On that basis, stricto sensu, but also for the (more theoretical) reasons expressed above, it is likely that the Quebec Superior Court interim order will be quashed on appeal. I would argue that, not only does it amount to a basic application of the doctrine of stare decisis, but overturning the cavalier ruling of Fraiberg J. is essential to preserving the fundamental precepts of Canada’s and Quebec’s public law, specifically in regard to the constitutional framework applicable to problematics of interlegality.

Comments

[Gib van Ert]

Hi Stéphane,

Thanks for your post. Even if one accepts that Canada is not under an international obligation to stay Mugesera's deportation pending consideration by the Torture Committee (and there is an argument against that position, as you know), a decision to grant a stay is ordinarily a matter of discretion. Doesn't it go too far to say that overturning Fraiberg J.'s exercise of that discretion "is essential to preserving the fundamental precepts of Canada’s and Quebec’s public law"? I can't see how such a decision, whether for or against the applicant, could ever have such profound consequences.

I should confess that I have not read Fraiberg J.'s decision. Is it available?

Gib

[S. Beaulac]

Cher Gibran,

I'm glad to see that I am (slowly) getting you to think along the line I am suggesting... which BTW correspond to positive constitutional law. I presented on that topic at McGill last Friday... to a pretty 'hostile' crowd, a priori at least, but I feel I was winning them over, piecemeal, by the end. My presentation included challenging (what I call) the myth of Gérin-Lajoie political declaration... quelle hérésie!

On you precedural point, regarding the discretionary nature of the court order, I would just offer this suggestion: that, even if up to the judge, there must be a legal foundation first, to the very stay order. If the legal basis is there, then, the judge can decide (or not) to stay the order... but if it ain't there, and he/she does, then, indeed, I would say that it runs against such (pretty) fundamental principles of interlegality.

Thanks for engaging on that (which, you must admit Gib, we haven't done much, unfortunately!).

BTW, I have a latest piece on interlegality, just published in the Quebec JurisClasseur on constitutional law (LexisNexis). I could forward a '.pdf' if you want.

Cheers,

S

[Gib van Ert]

Salut Stéphane,

Have you read Nollkaemper's book, "National Courts and the International Rule of Law"? I recommend it. Please do send along your article.

Best,

Gib

[Gib van Ert]

I must add, Stéphane, that I have spent the morning reviewing the SCC's decision in Németh (also a Quebec case). The strict divisions you have so often argued for between international law and domestic law are not much in evidence in that decision. I would be interested to hear your thoughts on the case. Does it, too, imperil fundamental precepts of Canadian and Quebec public law? I certainly don't think so.

[S. Beaulac]

Good evening Gibran,

Know André Nollkaemper (and his work) pretty well indeed... I've been collaborating in his Amsterdam Center for International Law, including for a book, to be published momentarely, on ILDC in transitional justice and post-conflict societies (Intergensia). André hates that I highlight how most liberal democraties see their judiciaries work on the basis of (what he calls himself) the 'divide'... because he is a strong believer of greater integration. However, he agrees with me that, at the meta level, the separateness and distinctiveness of the international plane and the national realms is still (and is likely to remain, I would add personnally) the dominant epistemology.

As for Németh now, I read the relevant passage again tonite... and frankly I do not see how it supports an integrated reality of the legal world; especially when Cromwell J. emphasises on the fact that there is an express implementing piece of legislation (see para. 21 to 23). Moreover, I kinda like that judgment as it support another of my argument of mine, namely relegating the presumption of conformity with international law (i.e. the Charming Betsy rule) to a secondary role, because of the lingering preliminary condition of ambiguity, that must be fulfilled before resorting to it. Németh seems to suggest that it was an overlook (an omission), in Hape, to have talked in terms of presumption without alluding to the hurdle of ambiguity. In Németh, at para. 35, Cromwell J. says quite clearly that he won't resort to the international treaty norm because there is no ambiguity in the national statute. Periodically, in other words, we are reminded of the precarity of the Charming Betsy as a means to using international normativity in interpreting domestic law. Much better off (as yours truly has been arguing...) to resort to international law on the basis of the contextual argument of interpretation. Right, long post, sorry Rob... am getting carried away!

Gib, will send the JurisClasseur piece.

Bonne semaine,

S