Case law
Investor-state arbitration, court intervention, and the ICSID Convention in Canada
By Martin Valasek and Azim Hussain
Canada signed the ICSID Convention on Dec. 15, 2006. Does this mean that parties who choose a Canadian location as the venue of their ICSID arbitration can expect to benefit from the ICSID Convention’s self-enclosed system? The answer is probably no.
The WTO Panel decision in the case of United States Sections 301-310 of the Trade Act of 1974
By Bruce Macallum
In a ruling that offers valuable insights into how the multi-lateral trading system and its dispute settlement process relates to domestic trade law enforcement regimes, the WTO Panel clearly articulated its deference to the international dispute resolution system in comparison to domestic trade enforcement regime where the two systems could conflict.
CBSA inspection of mail, searches at the border and computer searches
By Daniel l. Kiselbach
Canada Border Services Agency officers have broad authority to conduct searches of goods, conveyances and persons at a customs port of entry. This article provides a brief outline of the law and policy published by CBSA.
Canadian government appeals repatriation of Khadr
By Katie Smeenk and Alex Derry
On November 13, 2009, the case of Omar Khadr went before the Supreme Court of Canada. The Attorney-General, the Prime Minister of Canada, CSIS, and the RCMP appealed a decision of the Federal Court of Canada ordering a request to be made for Mr. Khadr's repatriation to Canada
State immunity and the approval and enforcement of foreign arbitral awards in Quebec
By Richard Desgagnés
Notwithstanding the lack of a specific exception for arbitration in the State Immunity Act (SIA), if a creditor wants to have an arbitral award approved and enforced against assets owned by a foreign state that are located in Quebec, it should be able to rely on recognized international principles covering not only commercial activities, as understood in state immunity law, but also waiver, to offset any attempt by a foreign state to avoid the obligations to which that state itself voluntarily subscribed.
The duty of peacekeepers to adhere to the rules of international humanitarian law
By Katherine Hoy
The determination of whether IHL applies to peacekeepers as ‘civilians’ or peacekeepers as ‘combatants’ depends on the “actual conduct” of the peacekeepers in tandem with the existence of an armed conflict.
Section news
Canadian International Lawyer
Now in its 15th year of publication, CIJ is a law journal published jointly by
The Canadian Bar Association and the Ontario Bar Association.
Program of activities - International Law Section, CBA Quebec
The International Law Section is pleased to invite you to join in the following activities organized for the coming season.
The Section is currently looking for articles for the next newsletter
If you would like to contribute a submission to the next edition, please forward the submission to our Communications Officer at Sheryl.beckford@ontario.ca, before Jan. 30, 2010. Thank you.
Upcoming programs:
On the Section’s website:
- The Corporate Social Responsibility Program - Presented by the Rights of the Person and Communities Committee of the CBA’s National Section on International Law. View full details and listen to the recording.
- Audio replays: New Developments in Canada's Screening of Foreign Investments; International Trade, the Financial Crisis and the Role of the G20 – Do We Need Another Bretton Woods?
- Details on the Section’s four committees; their activities and areas of interest; how you can join.
Investor-state arbitration, court intervention, and the ICSID Convention in Canada
By Martin Valasek and Azim Hussain
The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) is a multilateral treaty in the area of international investment. The ICSID Convention establishes a system whereby foreign investors can sue host states for wrongs committed in respect of their investments. The Convention limits the ability of host states to invoke immunity. Very importantly, by virtue of its distinctive self-enclosed procedural system, the Convention excludes the possibility of court intervention in the arbitral process and provides for the direct enforceability of a final arbitral award in favour of the foreign investor, without there being any need for the investor to engage domestic laws on the recognition of arbitral awards and without there being the possibility on the part of the host state to invoke grounds to annul or refuse to recognize the award before a domestic court.
Read the full article 
The WTO Panel decision in the case of United States Sections 301-310 of the Trade Act of 1974
By Bruce Macallum
The World Trade Organization (WTO) case of United States Sections 301-310 of the Trade Act of 1974 is of interest to international lawyers because it offers valuable insights into how the multi-lateral trading system and its dispute settlement process relates to domestic trade law enforcement regimes. The panel's reasoning suggests that the ability of members to retain discretionary trade remedies in domestic legislation, which could be exercised in a manner inconsistent with the obligation not to take unilateral trade action, would undermine the objects and purposes of the multi-lateral trading system.
Read the full article
CBSA inspection of mail, searches at the border and computer searches
By Daniel L. Kiselbach
Persons importing goods into Canada via mail or bringing goods into Canada via ports of entry should be aware of the rights of Canada Border Services Agency (“CBSA”) officers to inspect and search persons and goods, and computer hard drives.
There are special rules that apply to the inspection of mail. Further, CBSA officers have broad authority to conduct searches of goods, conveyances and persons at a customs port of entry. These powers in many ways exceed the powers that domestic police authorities have to search persons, goods or conveyances in Canada. The issue of searches of computers has been raised, particularly by individuals who have a right to claim privilege in respect of documents and information contained on computers. A brief outline of the law and the policy published by CBSA is set out below.
Inspection of mail
International mail is presented by Canada Post to CBSA. CBSA officers inspect each piece of mail to determine its admissibility into Canada and to confirm whether it contains dutiable or taxable goods. If a CBSA officer determines that a mail item is not prohibited from entering Canada and is not subject to duties or taxes, the item is released to Canada Post for immediate delivery. Prohibited goods include obscene materials, hate propaganda, dangerous materials and narcotics.
CBSA officers have the authority to examine goods pursuant to section 99 of the Customs Act. Pursuant to subsection 99(2) of the Customs Act, a CBSA officer may not open any mail item that weighs less than 30 grams or less without the consent of the addressee or sender. See CBSA Memorandum D5-1-1.
Pursuant to section 17 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, a CBSA officer may examine any mail that is imported and open or cause to be opened, any such mail that the officer suspects on reasonable grounds contains currency or monetary instruments of a value equal to $10,000. Subsection 17(2) indicates that the officer may not open or cause to be opened any mail that weighs 30 grams or less without the consent of the addressee or the sender. See CBSA Memorandum D19-14-1.
Border searches
With respect to the ability of CBSA officers to search at the border, the law has been established in the cases of R. v. Jacoy [1988] 2 SCR 548 and Simmons v. Her Majesty the Queen [1988] 2 SCR 495. In both cases, the Supreme Court of Canada indicated that the CBSA officers have a right to inspect persons or goods that enter Canada’s ports of entry. Further, it indicated that CBSA officers have broader rights of search for the reason that individuals who cross international boundaries do not have a reasonable expectation of privacy and that governments have the right to search individuals and goods in order to protect against the importation of contraband or the entry of undesirable persons. This means that the CBSA has the right to conduct a personal search of persons, their baggage and conveyances, to the extent necessary to ensure that they are not importing prohibited goods and that the importation of goods into Canada is not unlawful.
Computer searches
It appears that, in Canada, the issue of the right to search is covered by the Jacoy and Simmons cases. The result in these cases suggests that computer searches may be undertaken by the CBSA officials to the extent necessary to ensure that a computer does not have any contraband loaded on it (e.g., obscene material, child pornography, or hate literature). See CBSA Memorandum D9-1-1. Further, a computer may be inspected for the purpose of ensuring that it does not contain any unsafe or dangerous items or that the importation of the computer is unlawful for any other reason. See CBSA Memorandum D19-13-5. US Immigration and Customs Enforcement (“ICE”) issued a directive (7-1.6) (the “US Directive”) respecting the border search of electronic devices. The US Directive titled “Border Searches of Electronic Devices” indicates that:
Searches of electronic devices are a crucial tool for detecting information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography; laundering monetary instruments; violations of copyright or trademark laws; and evidence of embargo violations or other import or export control laws.
Recommendations
In circumstances where a person is carrying a computer, personal handheld device or electronic item at a port of entry and the CBSA wishes to search that device, it is recommended that:
- The individual carrying the item state to the CBSA officer that the item contains privileged documents and information and that the person asserts the claim of privilege in respect of the documents and information contained on the computer, personal handheld device or other electronic item.
- The person claiming privilege indicate to the CBSA officer that because the documents and information are privileged, that they should not be disclosed to the CBSA officer and instead turned over to a legal officer for the Department of Justice for the purposes of dealing with the claim of privilege.
- If the CBSA officer insists on viewing the documents and information over which the person claims privilege, that the person note the time and circumstances of the privilege claim and contact legal counsel immediately for the purposes of addressing the claim to privilege. This is consistent with the approach set out in the US Directive which indicates that the ICE Office of the Chief Counsel or appropriate US Attorney’s Office should be contacted where agents encounter legal information.
- The person claiming privilege should not refuse to provide the item to a CBSA officer if it is demanded for inspection. A refusal might be treated by the CBSA officer as an instance of non-compliance, leading to further complications with CBSA.
Daniel L. Kiselbach, a partner in Miller Thomson LLP's International Trade, Customs and Commodity Tax Group, is based in Vancouver.
Canadian government appeals repatriation of Khadr
By Katie Smeenk and Alex Derry, members of Human Rights Watch (Toronto Network)
On November 13, 2009, the case of Omar Ahmed Khadr went before the Supreme Court of Canada. The Attorney-General, the Prime Minister of Canada, CSIS, and the RCMP appealed a decision of the Federal Court of Canada ordering a request to be made for Mr. Khadr's repatriation to Canada.
A Canadian citizen currently being held by the US military at Guantanamo Bay, Mr. Khadr faces several charges including the murder of an American solider during the 2001 U.S. invasion of Afghanistan. A 15 year-old when captured, Khadr has spent the last seven years of his detention at Guantanamo Bay.
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The CBA was also an intervener in Prime Minister v. Khadr. The CBA said the refusal to request Khadr’s repatriation is a continuation of the government’s conduct, which began when Canadian officials gained access to interrogate him in circum-stances that violated his international human rights.
The CBA has a long-standing interest in ensuring due process under law. Given the circumstances of the Khadr case, the CBA has argued that can best be accom-plished by repatriating him to Canada. The CBA has a particular interest in the case on appeal to ensure that the law on s.24(1) Charter remedies is developed in a principled manner that reflects the objectives of the Canadian Charter of Rights and Freedoms.
Lorne Waldman and Jackie Swaisland of Toronto represented the CBA pro bono in Khadr.
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In April of 2009, the Federal Court of Appeal ruled that the conduct of Canadian officials who interviewed Khadr at the U.S. military facility breached the detainee's constitutional rights under s. 7 of the Charter of Rights and Freedoms, in addition to violating Canada's international human rights commitments. The Court held that an appropriate remedy for the breaches is for Canada to request the repatriation of Omar Khadr.
The Government's appeal is grounded on the argument that Khadr’s rights under s. 7 were not breached, alleging the Charter and international human rights treaty obligations cannot be engaged extra-territorially, thus rendering Mr. Khadr outside of Canadian jurisdiction. Additionally, the Government questions the appropriateness of the repatriation remedy on the basis that it violates Canada's discretion in matters of foreign affairs, as provided by the Department of Foreign Affairs and International Trade (DFAIT) Act.
However, as Human Rights Watch highlights as an official intervener in the ongoing appeal, in the preceding case of R. v. Hape the Supreme Court held that the Charter applies extra-territorially when the Government of Canada has failed to fulfil their international human rights obligations. Many of the interveners, including the University of Toronto Law Faculty and the David Asper Centre for Constitutional Rights, take a similar position.
In Mr. Khadr's case, such obligations are contained in the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT). These are the obligations that the Canadian government has already been held to have violated in Canada (Justice) v. Khadr, 2008 SCC 28 (“Khadr 2008”), when its officials traveled to Guantanamo Bay to interrogate Khadr.
Evidence has come to light since Khadr 2008 indicating that Canadian officials were aware of Khadr’s legal status as a child under 18, as well as the degrading treatment and possible torture that he was subjected to when they came to interrogate him at Guantanamo. In addition to this, the purpose of the interview was not to ensure the welfare of a minor and Canadian citizen, but was for intelligence-gathering and law enforcement purposes.
Human Rights Watch takes the position that Canada has become complicit in an ongoing violation of Khadr’s international human rights, and in doing so has violated his rights as a Canadian citizen under the Charter.
Although the actions of the Canadian officials occurred outside of Canadian territory, this does not affect the jurisdiction of Canada’s international human rights obligations, nor its obligations to Canadian citizens under the Charter. According to the International Court of Justice and the UN Human Rights Council's definition of jurisprudence, the ICCPR and CRC can be applied extra-territorially.
By its continued inaction, the Government of Canada fails to fulfill its duty under the ICCPR and CRC to take positive steps to protect the human rights of those within its jurisdiction. While it must be acknowledged that the ability of the state to protect its citizens is limited by extraterritoriality, this does not excuse inaction or eliminate the duty of the state to provide fundamental justice to its citizens.
The foreign policy discretion that Canada alleges it has in these circumstances must be viewed in this light. Complicity in the violation of Khadr’s human rights and the direct violation of Khadr’s Charter rights cannot constitute appropriate foreign policy discretion.
As a result of the ongoing human rights violations suffered by Mr. Khadr, both international and federal law provide that there is an obligation to provide an appropriate remedy. The remedy of disclosure ordered though Khadr 2008 does not address the Charter violations discussed in the case currently before of the Supreme Court.
A critical aspect of the remedy for the present case is Canada's responsibility to take reasonable steps to ensure that ongoing violations against Omar Khadr cease. Furthermore, under the CRC, Canada has an obligation to ensure Khadr's rehabilitation, as he was considered a child at the time of his detention. To do so requires Canada to request Mr. Khadr’s repatriation in order to fulfill its obligations under international human rights law and the Charter.
The usual procedure for those who have suffered pre-trial violations would be to grant a stay of proceedings. Canada does not have jurisdiction to grant a stay for the charges brought against Omar Khadr by the United States. However, in the unusual circumstances of this case, putting forth a request for repatriation may act as the functional equivalent, thereby allowing the Canadian government to fulfill its obligation to provide reparation to Khadr for violation of his rights under the Charter and international treaty obligations.
The November hearing saw the Supreme Court reserve its decision, leaving Khadr to face a military tribunal in the United States. According to a recent poll conducted by Canwest Global News Services/Global Television and Ipsos Reid, 64% of Canadians favour Omar Khadr's repatriation should President Barack Obama close the prison at Guantanamo Bay. While the facility currently remains open, Obama did sign an order in January 2009 to shut it down by next year.
State immunity and the approval and enforcement of foreign arbitral awards in Quebec
By Richard L. Desgagnés
Notwithstanding the lack of a specific exception for arbitration in the State Immunity Act (SIA), if a creditor wants to have an arbitral award approved and enforced against assets owned by a foreign state that are located in Quebec, it should be able to rely on recognized international principles covering not only commercial activities, as understood in state immunity law, but also waiver, to offset any attempt by a foreign state to avoid the obligations to which that state itself voluntarily subscribed.
Richard Desgagnés is a partner with Ogilvy Renault LLP.
Read the full article (available only in French)
The duty of peacekeepers to adhere to the rules of international humanitarian law
By Katherine Hoy*
Despite the adoption of the Secretary-General’s Bulletin, Observance by UN Forces of International Humanitarian Law, the duty of UN peacekeepers to adhere to the rules of international humanitarian law (IHL) remains ambivalent. As the application of the Bulletin is confined to situations where peacekeeping forces are‚ actively engaged as combatants, Ray Murphy states the distinction between peacekeepers deployed as “civilians” as opposed to peacekeepers deployed in an enforcement capacity must be made at the onset in order to assess the applicability of IHL. For Jaume Saura, however, peacekeepers in both instances must be bound by IHL regardless of their function. The Bulletin therefore, is an incomplete document that must be further clarified by the UN in order to bind peacekeepers who are not involved in actual hostilities.
Read the full article
Also by this author:
The extraterritorial application of human rights norms
In examining the relationship between jurisdiction, human dignity and the power of the state, John Cerone states that the international community‘s conception of human rights law (IHRL) as both transcendental and universal has challenged the limits of jurisdiction "far more than the force of legal reasoning from positive law." The emergence of the individual human being as a subject of individual law constitutes, for Cerone, the key structural development in enabling human rights law to infiltrate the state‘s domestic jurisdiction. In this vein, the question of the application of human rights law extraterritorially centers on the purpose of the norms underlying the birth of human rights law, namely that the recognition of human dignity has at its foundation the protection of the individual from the abuse of states.
Read the full article
* Katherine M. Roy, LL.B and student-at-law at MacPherson Leslie & Tyerman LLP in Regina, is working towards her Masters of Law in Public International Law from Leiden University in the Netherlands.
Canadian International Lawyer
The Canadian International Lawyer is a law journal published jointly by the Canadian Bar Association and the Ontario Bar Association.
Now in its 15th year of publication, its primary objective is to provide Canadian business lawyers with practical insight and pointers on issues they encounter when assisting their clients with the international legal aspects of business, trade and investments.
The publication includes in-depth feature articles, case commentaries, practice notes, short articles on international treaties and recent developments in legislation from around the world, as well as informative display advertising.
If you or your law firm library would like to subscribe to the journal, kindly direct your enquiry to Andrea Stark, Publications Coordinator at OBA, at astark@oba.org. If you would like to advertise in the journal, please contact the journal’s Marketing Team Leader, Bernard Colas at bcolas@cmkz.ca. If you have an article you would like to submit for possible publication, or if you have an idea for a topic you would like to write on, please contact the journal’s Editor-in-Chief, Elo Tulving-Blais, at etulving@tulving-blais.com.
Dispute Resolution Clauses in Marine Law: Uncertainties and controversies
Thursday, Jan. 28, 2010
12 p.m.– 2 p.m., Montreal
Richard L. Desgagnés, Partner, Ogilvy Renault LLP
The Marine Liability Act provides for a system of exceptions for dispute resolution clauses. But the Federal Court, influenced in particular by anti-suit injunctions, has created exceptions to the exceptions, which in many respects brings us back to square one.
Recent International Law Developments
Tuesday, Feb. 2010
12 p.m.–2 p.m., Montreal
Chris Richter, Partner, Woods LLP
Frédéric Bachand, Faculty of Law, McGill University
Moderator: Hon. Anne-Marie Trahan, Superior Court
As in past years, our speakers will provide an overview of court decisions rendered in 2009 related to international private law, including governing law, the jurisdiction of Quebec courts and arbitration.
Enhancing Aviation Safety Through the Rule of Law
Wednesday, Feb. 24, 2010
5 p.m., Montreal
Jiefang Huang, Legal Officer, International Civil Aviation Organization (ICAO)
CBA Quebec’s International Law Section will once again hold one of its meetings in the offices of the International Civil Aviation Organization (ICAO), a United Nations agency headquartered in Montreal (999 University St.). The meeting will be held in the Raoul Dandurand Room of the Canadian Delegation (suite 15.35) at the invitation of the Representative of Canada, Mr. Lionel Alain Dupuis. The Secretary General of ICAO, Mr. Raymond Benjamin, will also be in attendance.
Strategic Aspects of the Jurisdiction of French Courts in Civil and Commercial Matters
Tuesday, March 9, 2010
12 p.m.–2 p.m., Montreal
Xavier P. Vuitton, Doctor of Laws, Advocate at the courts of Paris, Former Advocate at the Conseil d'État and the Cour de cassation, CARAKTERS, SELARL
Mr. Vuitton will begin with an overview of the types of situations in which the French courts will determine that they have jurisdiction, and in which they may therefore be seized of a case. His discussion will focus on certain rules of procedure and substantive issues that may prove to be the key elements of an international dispute such as, for example, the extremely quick and efficient approach of summary proceedings, or the process by which a French court may be seized of an Internet-related dispute.
Foreign Trusts: The myth and the reality
Friday, March 19, 2010
12 p.m.–2 p.m., Montreal
Éric Julien, Raymond Chabot Grant Thornton (Laval)
Éric Labelle, Raymond Chabot Grant Thornton (Montreal)
The speakers will address the pitfalls to avoid when settling an estate involving foreign beneficiaries. They will analyze the receipt of property by a foreign trust, and the tax avoidance rules that apply to foreign trusts created by Canadian residents.
Comparison of Quebec’s codified private international law with Canada’s common law
Thursday, April 8, 2010
5 p.m.-–6:30 p.m. (followed by a cocktail buffet), Montreal
Hon. Juge LeBel, Supreme Court of Canada
Based on recent decisions, it is important to determine the respective positions of Quebec’s codified private international law and those of the common law provinces. A major contribution on this topic will be presented by Supreme Court Justice Louis Lebel, a frequent speaker on this aspect of the law.
The International Jurisdiction of the Courts and Article 3148(3) of the Civil Code of Quebec since Spar Aerospace
Friday, May 21, 2010
12 p.m.–2 p.m., Quebec City
Geneviève Saumier, Faculty of Law, McGill University
The number of disputes regarding the international jurisdiction of Quebec courts in patrimonial matters is not declining, although the new provisions of the Civil Code of Quebec have been in force for 15 years. This conference will examine recent case law developments with a view to defining the current status of this issue and forecasting future trends.
International Contracts and Calls for Tenders: Legal implications and practical advice
Thursday, May 20, 2010
12 p.m.–2 p.m., Montreal
Daniel Desjardins
Senior Vice President, Legal Affairs, Bombardier Inc.
Daniel Desjardins will discuss the numerous facets of preparing tenders and negotiating and executing international contracts. His review of the legal, regulatory and tax aspects will include practical advice.
For more information, please contact the CBA Quebec Branch or the Chair of the CBA Quebec Branch International Law Section, Bernard Colas.
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