International Law and Administrative Law: Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30

The pertinence of international law for Canadian administrative decision-makers was an issue in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30. The Supreme Court’s decision brings some clarity to the legal framework in this area, but could have been clearer on one point, about latent ambiguity, and unfortunately does not engage with the brief discussion of international law in Vavilov. It is difficult to draw definitive conclusions from this recent decision but the upshot might be a more expansive role for international law in administrative decision-making.

The Copyright Board had relied heavily on international law in determining that there is a ‘making available’ right in the Canadian law of intellectual property. At the Federal Court of Appeal, Stratas JA held that the Board’s decision evinced a “misunderstanding” of the relationship between international law and domestic law (2020 FCA 100, at para. 75):

Properly seen, the presumption [of conformity with international law] requires the Court and administrative decision-makers to take into account any relevant international law as part of the context surrounding the enactment of legislation, as explained above, unless the legislation is clear to the contrary: B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704. But the presumption does not permit those interpreting domestic legislation to leap to the conclusion, without analysis, that its authentic meaning is the same as some international law. Nor does it permit them to twist or amend the authentic meaning of domestic law to make it accord with international law. These would be steps too far: something forbidden under our constitutional arrangements and fundamental orderings. Seen in this way, the presence of international law is not an invitation for us to depart from the normal, accepted method of interpreting legislation; rather, in certain, defined circumstances, international law is appropriately considered as part of that method (2020 FCA 101, at paras. 91-92).

Stratas JA observed that where both a domestic statute and a treaty bear on an issue, “one must always start by discerning the authentic meaning of the domestic law” (2020 FCA 101, at para. 78). International law only enters into the analysis “in certain ways” (2020 FCA 101, at para. 87), (1) where the domestic legislation adopts international law wholesale; (2) where the domestic legislation is ambiguous; or (3) where the domestic legislation contains a latent ambiguity when considered in light of the treaty. In scenarios (1) and (2) international law can play a role, as indicated by the general presumption that Parliament intends to legislate in accordance with Canada’s international obligations. In scenario (3) international law can be used along with other indicators of context and purpose to resolve latent ambiguities.

The Supreme Court offered its own spin on the international law/domestic law relationship.

Rowe J held that international law “should be considered” whenever interpreting a statute that “purports” to implement a treaty “in whole or in part” (at para. 44). In interpreting statutes, the interpreter must consider text, purpose and context: international law “is relevant at the context stage of the statutory interpretation exercise” (at para. 44). “Textual ambiguity” is not a pre-condition to considering international law, as statutory context “includes any relevant international legal obligations” (at para. 45).

Rowe J then offered the following guidance:

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: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 31. If the statute is less explicit as to the extent to which it gives effect to a treaty, the weight given to obligations under the treaty will depend on the circumstances of the case, such as the treaty’s specificity and the statute’s text: Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002] 3 F.C. 537, at para. 36. Where the text permits, legislation should be interpreted so as to comply with Canada’s treaty obligations, in accordance with the presumption of conformity: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34; B010, at para. 48 (at para. 46).

In summary, international law will be part of the statutory context as far as the interpretation of domestic legislation is concerned, regardless of whether there is a textual ambiguity in the statute. That much is clear.

I take it that it is also clear that where a statute expressly disavows international commitments, in whole or in part, the treaty cannot be relevant: see e.g. M1-2021 v Minister for Home Affairs [2022] HCA 17, at para. 17.

What is less clear is what happens in the case of what was described in previous case law (and by Stratas JA, 2020 FCA 101, at para. 84) as latent ambiguity.

Perhaps the answer is found in the second sentence of paragraph 46: it depends “on the circumstances”, such that sometimes international law on the same subject-matter can influence the meaning given to a provision of domestic law. This would conceivably expand the role of international law as it would permit interpreters to rely upon treaties which contain “relevant international legal obligations” (at para. 45) without specifically identifying latent ambiguities.

However, Rowe J also commented that “while a treaty can be highly relevant to statutory interpretation, it cannot overwhelm clear legislative intent” (at para. 48). This comment is somewhat perplexing. In the preceding paragraphs, Rowe J presented the search for “legislative intent” as involving a holistic consideration of text, purpose and context, which includes a treaty. This comment suggests, by contrast, that text and purpose are more important than context. So perhaps it is necessary after all for the interpreter to identify at least a latent ambiguity in statutory text and purpose before resorting to international law.

So much for interpretation in general. What about administrative decision-makers specifically? In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at para. 114, the majority stated “in some administrative decision making contexts, international law will operate as an important constraint on an administrative decision maker”, because of the presumption of conformity, and can influence whether a particular exercise of administrative power is reasonable. In Vavilov itself, the administrative decision-maker’s failure to engage with international law arguments undermined the reasonableness of her decision. In short, international law was stated to be a constraint on what an administrative decision-maker might otherwise do.

However, Entertainment Software Association does not condition resort to international law on the presence of textual ambiguity. Rather, international law may form part of the interpretive context: as Entertainment Software Association permits reference to international law where “the circumstances of the case” justify reference to international law as part of the overall context (at para. 45), international law would serve more to liberate administrative decision-makers than to constrain them. This is because administrative decision-makers must consider text, purpose and context in interpreting statutes: Vavilov, at para. 118. The requirement to consider context could therefore be used as a lever to insert international law into the administrative decision-maker’s statutory interpretation exercise, thereby expanding the range of relevant interpretive considerations. This does not depend on first identifying textual ambiguity and may not depend on first identifying latent ambiguity (which is, as noted above, unclear).

Moreover, the majority noted in Vavilov that “[t]he specialized expertise and experience of administrative decision makers may sometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise” (Vavilov, at para. 119). This is subject to the proviso that an administrative decision-maker cannot reverse engineer its interpretive exercise to achieve a desired result (Vavilov, at para 121; 2020 FCA 100, at para. 49). Subject to that proviso, one can imagine scenarios in which administrative decision-makers have “specialized expertise and experience” about the interaction of international law and domestic law. In such scenarios, the courts should not too readily leap to the conclusion that the administrative decision-maker unreasonably analyzed the relevant statutory provisions and international obligations. This will be especially true where the relevance of international law depends on “the circumstances of the case”, with which the administrative decision-maker will generally be more familiar than the reviewing court. If the administrative decision-maker can provide a reasoned justification for its use of international law (which may include an explanation of its view of the presence of latent ambiguity), judicial intervention is less likely to be appropriate.

Given the Supreme Court’s failure to explicitly discuss the relationship between Entertainment Software Association and Vavilov, the foregoing is necessarily somewhat speculative. However, taken together, these cases may the basis for a (slightly) more expansive role for international law in administrative decision-making, in at least some cases.

This content has been updated on September 19, 2022 at 17:21.