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20 January 2012


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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?


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.



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.



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,


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