e presumption
of conformity with
international law
e presumption of conformity with intern ational law is a rule of legal
interpretation whereby domestic law is read, wherever possible, consist-
ently with internationa l law and comity. e normative justication for
the presumption is respect for international law. To interpret the acts
of our legislatures in a way that failed to respect inter national law or
comity would impute to these bodies an un lawful or belligerent intent.
Such an imputation is certai nly uncharitable and usually w rong. ere
is also an import ant prescriptive justication for the presumption.
Violations of international law may bring internationa l responsibility
upon the state. e judiciary shou ld therefore avoid internationally un-
lawful constr uctions of domestic law wherever possible.
. Overview of the presumption
As a matter of statutory inter pretation, domestic law is presumed to
comply with Canada’s international obligations, and courts should
avoid interpretations that would violate those obligations. is pre-
sumption of conformity with international law has been a featu re of
See, e.g., Zingre v e Queen, [] SCR [Zi ngre] at –; Nat ional Corn
Growers Associa tion v Canada (Import Tribunal), [] SCR [Nationa l Corn
Growers] at ; Ordon Estate v Grail, [] SCR [Ordon Estate] at paras
–; R v Hape, SCC [Hape] at para ; Németh v Canada (Justice),
SCC [Németh] at para ; ibod eau v Air Canada, SCC [ibodeau] at
para ; B v Canada (Citize nship and Immigration), SCC [B] at para
; Canada (Minister of C itizenship and Immigrat ion) v Vavilov, SCC [Vavi-
lov] at para .
5 • The presumption of confor mity with international la w
1
Anglo-C anadian statutory interpretation since the early nineteenth
cen tur y.
Today the Supreme Court of Canada situates the presumption
within the “entire context” a spect of the modern ru le of statutory in-
terpretation. e modern ru le requires courts to read “the words of an
Act . . . in their entire context , in their grammatical a nd ordinary sense
harmoniously with t he scheme of the Act, the object of the Act, and the
intention of Parl iame nt.” e Supreme Court has armed that “the
values and principles of customa ry and conventional international law
form part of the context in whic h Canadian laws are enac ted,” and that
this “follows from the fact that to interpret a Ca nadian law in a way
that conicts wit h Canada’s international obligations r isks incursion
by the courts in the executive’s conduct of foreign aairs and censure
under inter national law.”
e presumption’s application is not restricted to primary leg is-
lation (i.e., Acts of Parliament or the provincial legislatures) but ap-
plies as well to secondar y legislation such as reg ulations. Nor is the
presumption restricted to laws e xpressly or demonstrably intended
to implement Canadian obligations under international law. Non-
implementing legislation, such as laws that pre-date the international
obligation or laws that have no connection to the obligation as a mat-
ter of legislative histor y, have nevertheless been subjected to the pre-
sumption. is is consistent with t he presumption’s nature as a rule of
judicial policy rather than a matter of historic legislative intent. e
presumption’s application does not depend on a preliminary ndi ng of
ambiguity on the face of the enactment. e presumption of conform-
ity with internationa l law is rebuttable in principle, although cases
where it has been found to be rebutted are few.
. Nature of the presumption
e presumption of conformity is not a conclusion about, or dependent
upon, the historical intent of the legislature. Rather, it is an interpret-
ive duty or policy of the judiciar y.
Bell ExpressVu Limited Partner ship v Rex, SCC at par a .
Hape, above note at para .
B, above note at para. .
Using International Law in Canadian Courts
As early as , Professor Lauterpacht detected in t he English au-
thorities a “duty of Judges to do their utmost to inter pret statutes so
as not to impute to the Legislature t he intention of disregarding Inter-
nationa l Law.” In Corocraf t v Pan American Airways, Lord Denning MR
declared it to be “the duty of these cour ts to construe our legislation
so as to be in conformity wit h international law and not in con ict
with it.” Similarly, in Attorney General v Guardian Newspapers Ltd (No
), Lord Go of Chieveley said, “I conceive it to be my duty, when I am
free to do so, to interpret the law in accordance with t he obligations of
the Crown” under a treaty to which t he United Kingdom was a part y,
the European Convention on Human Rig hts .
Turning to Canadian c ases, in Arrow River & Tributaries Slide & Boom
Co Ltd v Pigeon Timber Co Ltd, Riddell JA emphasized the sovereig n’s
“plain duty” under the treat y, saying “e K ing cannot be thought of as
violating his ag reement with the other contracting Power; and, i f the
legislation can fairly be read in such a way as to reject any imputation
of breaking faith, it must be so read.” In other words, the state’s duty
to live up to the obligation translates into a judicial duty to interpret
laws in conformity w ith that obligation, where the legi slation permits.
Similarly in R v Zing re (), Dickson J (as he then was) described it as
“the duty of the Court,” in interpreting a n extradition treaty and the
Canada Evidence Act , to apply “a fair and liberal interpretation with a
view to ful lling Canada’s international obligations.”
In R v Hape, the presumption of conformity was describe d in terms
of judicial policy rather than duty. Justice LeBel ex plained: “ e pre-
sumption of conformity is based on the r ule of judicial policy that, as a
matter of law, courts wil l strive to avoid constructions of domestic law
pursuant to which the state would be i n violation of its internation-
al obligations, unless t he wording of the statute clearly compels th at
H Lauterpacht, “ Is International L aw a Part of the Law of Engla nd?” []
Transactions of the Grotius So ciety [Lauterpacht] at .
[] WLR (Eng C A) [Corocraft] at . See also Salomon v Commission-
ers of Customs & Excis e), [] All ER ( Eng CA) at (“we ought always t o
interpret our st atutes so as to be in conformit y with internation al law”).
[] AC (HL) at .
Arrow River & Tributar ies Slide & Boom Co Ltd v Pigeon Timber Co Ltd (),
OLR (Ont Sup Ct App Di v) [Arrow River SCAD] at .
Zingre, above note at –; Canada Evidence A ct, RSC , c E-, s .
