Evidence — letters rogatory — public policy against extraterritorial applications of US law

Morgan, Lewis & Bockius LLP v. Gauthier (2006), 82 OR (3d) 189 (29 August 2006). Ontario Superior Court of Justice.

The applicant MLB was a US law firm carrying on business principally in Philadelphia. It sought an order from the Ontario Superior Court of Justice giving effect to a letter of request issued by the Court of Common Pleas of Philadelphia County, Pennsylvania. This court sought the assistance of the Ontario court in obtaining document production and testimony from the respondent, Claude Gauthier, a Canadian citizen resident in Ontario.

On the occasion of a conference in honour of Ronald St. John Macdonald, the author revisits Macdonald’s important 1974 article “The Relationship between International Law and Domestic Law in Canada.” Macdonald’s discussion of the judicial notice of international law by Canadian courts is considered in light of recent case law. In particular, the practice of international lawyers giving expert evidence on international law is criticized as inconsistent with the doctrine of judicial notice. Finally, the author reflects on Macdonald’s view that a theoretical framework is needed to explain the reception of international law in the law of Canada

In Spraytech v. Hudson, the Supreme Court of Canada made a bold declaration on the status of the precautionary principle in international law. While the methodology of the majority is open to criticism, the judgment is a welcome clarification of the court’s groundbreaking decision in Baker v. Canada and, building on that case, offers the prospect of a truly internationalized Canadian jurisprudence. In a postscript to this comment, the judgment of the Supreme Court of Canada in Suresh v. Canada is briefly considered.

Increasingly, litigants are seeking to rely on international treaties before domestic courts. The difficulties they face, together with the judges hearing these cases, are great. Public international law is unknown territory for the vast majority of Canadian lawyers, both at the bar and on the bench. Moreover, the rules according to which international treaties take effect in Canadian domestic law engage a wide variety of legal sources, including ancient common law jurisprudence, unwritten constitutional rules, federalism, and the provisions of the Canadian Charter of Rights and Freedoms and other Canadian human rights instruments. The object of this article is to describe in a comprehensive manner how international treaties may be used in Canadian courts. The disparate and seemingly unrelated norms informing the Anglo-Canadian law of treaty reception, including the implementation requirement, the treaty presumption, the rule in Labour Conventions, and the landmark decision in Baker v. Canada, are depicted as internally-consistent manifestations of the guiding principles of the Canadian reception system: self-government and respect for international law.

In its August 1998 reference, Reference Re Secession ofQuébec, the Supreme Court of Canada discussed thetopic of the international recognition of Québec.The authors argue that the Court is incorrect in itssuggestion that recognition is a precondition forstatehood, confusing legal and political factors. Inthe authors’ view, the introduction of the conceptof international recognition by the Court is anattempt to provide a sanction against unilateralsecession and to back up the Court’s view that thereis an obligation to negotiate any departure byQuébec. The result, the authors consider, isunsatisfying for it leads the Court into legal errorand political conjecture.

Some advocates of Québec separatism claim thatQuebecers could retain their Canadian nationalityfollowing Québec’s secession from Canada. Thisarticle examines international nationality law totest the accuracy of that claim. A device known asan option exists in international law as a means ofallowing individuals to determine for themselves theeffect of state succession upon their nationality.This article considers the place of options in thelaw of state succession, both as it now stands andas proposed by the International Law Commission’sDraft Articles on the Nationality of Natural Personsin Relation to the Succession of States, 1997. Fourpossible arguments in favour of a Québécois optionare given, the most convincing of which arises byanalogy to state practice in the use of plebiscites.This argument suggests that international law wouldrequire the state of Québec to grant all Canadiansaffected by Québec’s secession a right to opt forCanadian nationality instead of Québécoisnationality with the caveat that those opting toretain Canadian nationality could face expulsionfrom Québec. Finally, the article suggests that thedevelopment of human rights in international lawshould extend to recognize a true human right ofoption in cases of state succession. Regrettably,the ILC Draft hinders, rather than encourages, thisdesirable development.