Will Canada violate its treaty obligations after Supreme Court weakens presumption of conformance?

There is a principle of statutory interpretation that Canadian legislation is presumed to operate in conformity with Canada’s international treaty obligations. This presumption avoids interpreting a law in a way that conflicts with Canada’s international obligations and censure under international law. The presumption is important in many areas of the law including under copyright and other intellectual property statutes where Canada has numerous treaty and convention obligations including under the Berne Convention, the WIPO Copyright Treaties, GATT TRIPS, the Rome Convention, and the CUSMA.

The presumption of conformity has traditionally been applied in a robust way, only to be overridden by clear statutory language showing an intention of Parliament to depart from Canada’s international obligations. It has also been used as the starting point or context for the interpretive process in which the focus of the Court is construing the treaty obligations and only not give effect to them if such a construction would overwhelm the wording of the statute.

Yet, with the swipe of the Supreme Court of Canada’s digital pen, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 (Quebec v Directrice), the Court departed from its prior jurisprudence on interpreting a law intended to comply with Canada’s treaty obligations. It did so by putting the interpretive emphasis on the wording of the statute and the intent of Parliament and not on the obligations imposed by the treaty, as the primary source of interpretation. The decision is thus a very important one as it appears to have lessened the weight of the presumption of conformance and risks putting Canada offside its treaty obligations.

Traditional Application of the Presumption of Conformance

It is trite law that the modern principle of statutory interpretation requires the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”[1] Legislative intent is the central focus of the interpretive analysis. To glean legislative intention, in addition to the “modern principe”, courts use many other tools of construction. Relevant international treaties have always been strong evidence of Parliament’s intent.[2]

The Supreme Court has consistently held that “legislation is presumed to operate in conformity with Canada’s international obligations.”[3] Under leading jurisprudence of the Court this presumption can be rebutted only where the legislation “clearly” compels a different result.[4] In Quebec v. 9147-0732 Québec inc., the Court stated “international law that is binding on Canada … is not only potentially persuasive but also obligatory.”[5]

The Supreme Court has consistently ruled that Canada’s obligations under an international treaty are central to the contextual analysis of domestic provisions intended to implement the treaty. In Balev, the Court held that when “the purpose of [a statutory provision] is to implement the underlying convention, th[e] [c]ourt must adopt an interpretation consistent with Canada’s obligations under it.”[6] In Hape, the Court stated that “courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result”. However, Parliamentary sovereignty requires courts to give effect to a statute that may not conform to a treaty obligation but only if it “demonstrates an unequivocal legislative intent to default on an international obligation.”

To give full effect to the presumption of conformance, the Supreme Court jurisprudence has placed Canada’s international obligations at the context stage of the interpretative exercise and as a primary source of meaning of a statute. For example, in National Corn Growers, the Court stated that “the principle or presumption that the Crown does not intend to break an international treaty must have the corollary that the text of the international instrument is a primary source of meaning or `interpretation”.  In B010, the Court stated “[T]hese principles, derived from the case law, direct us to relevant international instruments at the context stage of statutory interpretation.”

The impact of Canada’s treaty obligations was recently reviewed in the ESA case. There the Supreme Court confirmed that treaties are relevant at the context stage and that treaties should be given effect to as long as the text of the statute permits it. According to the Court:

A treaty should be considered when interpreting statutes that purport to implement the treaty, in whole or in part. The treaty is relevant at the context stage of the statutory interpretation exercise…

If a statute implements a treaty without qualification, the interpretation of the statute needs to be wholly consistent with Canada’s obligations under the treaty…Where the text permits, legislation should be interpreted so as to comply with Canada’s treaty obligations, in accordance with the presumption of conformity…

The presumption of conformity is an aid to interpretation. The task remains to give effect to legislative intent. The separation of powers requires that courts give effect to a statute that demonstrates legislative intent not to comply with treaty obligations…

Accordingly, while a treaty can be highly relevant to statutory interpretation, it cannot overwhelm clear legislative intent. The court’s task is to interpret what the legislature (federally and provincially) has enacted and not subordinate this to what the federal executive has agreed to internationally. It is always the domestic statute that governs because “[i]nternational law cannot be used to support an interpretation that is not permitted by the words of the statute”.

The Quebec v Directrice Decision

The Quebec v Directrice case involved the interpretation of Quebec’s Youth Protection Act (“YPA”). This law was intended by the Legislature to comply with the Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (“CRC”), which was ratified by Canada on December 13, 1991, and by which Quebec declared itself to be bound through an order in council. In commenting on the effect of the Convention the Court confirmed that “the YPA must be interpreted in a manner consistent with Canada’s obligations under the CRC, insofar as the text allows.” However, and importantly, the Court went on to suggest the interpretive analysis of a statute has to give primacy to the intention of the legislature and not on the obligational content of the treaty. According to the Court:

While the interpretive weight of this international instrument is undeniable, I note that the analysis must remain focused on the legislature’s intention and not on the obligational content of the treaty. It is imperative to interpret first and foremost “what the legislature (federally and provincially) has enacted” rather than subordinating the result of this exercise to what the federal executive has agreed to internationally or to the international treaties by which a provincial executive has declared its intention to be bound through an order in council. This is a matter of respect for the principle of separation of powers…

Comments on the Quebec v Directrice Decision

The Quebec v Directrice decision confirmed prior jurisprudence that a statute should be interpreted to give effect to Canada’s treaty obligations in so far as the text permits. However, the decision appears, not so subtly, to have moved away from prior Supreme Court decisions that put international treaty obligations at the front and center and at the context stage of the interpretative analysis. Under the decision, the starting point for interpreting a statute is no longer what Canada had obligated itself to internationally. Further, the Court also appears to have moved away from its prior jurisprudence that only permitted courts to depart from treaty obligations where Parliament clearly had intended to do so – where complying with the treaty obligations would overwhelm the clear legislative intent. Under the decision, the focus now seems to be on legislative intention, with the presumption playing a more subordinate role.

The Supreme Court justified its changed interpretive approach as “a matter of respect for the principle of separation of powers”. The Court’s premise is that to do otherwise would subordinate the interpretation of statutes to “what the federal executive has agreed to internationally or to the international treaties by which a provincial executive has declared its intention to be bound through an order in council.” This premise is questionable as the presumption of conformance is based on the principle that Parliament intends laws enacted to implement treaties to comply with the obligations assumed under the treaties, unless the wording of the statutes in issue  “demonstrates an unequivocal legislative intent to default on an international obligation”. This formulation of the presumption gives full effect to the presumed will of Parliament. Watering down the presumption to what the Court otherwise determines the intention of Parliament to be arguably unjustifiably subordinates the will of Parliament to the courts. To the extent it has done so, the decision would be a marked departure from prior decisions of the Court and risks putting Canada offside its treaty obligations and the censure of the international community.