Ahani V. Canada: A Persuasive Dialogue within the Courts. (Case Comment)

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Abstract

This paper is a comment on Ahani v. Canada (OCA). Canadian courts are presently involved in a dialogue over the role of international law domestically. The courts' own grappling with various norms of international law, however, has helped to clarify and reinforce the status of these norms. In Baker v. Canada, the Supreme Court gave a new prominence to the "persuasive approach" of applying international law. Ahani demonstrates that while the persuasive approach has begun to be internalized into Canadian law, the courts are still at odds with how persuasive international law should be. To complicate this account, the Supreme Court's discussion in Suresh of peremptory norms of international law demonstrates that an over-emphasis on the "persuasive" approach can in fact weaken the role of international law domestically. At the same time, the dialogue within the courts is linked to a much more general dialogue. The importance of cases such as Ahani ultimately stretches beyond the domestic context.

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On the night of June 18, 2002, Mansour Ahani, an Iranian Convention refugee and suspected terrorist, was deported from Canada to Tehran. This marked the end of his nine-year battle to prevent his deportation, which saw his case reach the Supreme Court of Canada on two occasions. In his first case, Mr. Ahani challenged a deportation order made by the Canadian government, on the ground that he would face a serious risk of torture were he to be returned to his native Iran. (1) He claimed that the prohibition on torture in international law is nonderogable and therefore superseded any provisions in the Convention Relating to the Status of Refugees that would allow for the refoulement of refugees. (2) Mr. Ahani's appeal to the Supreme Court was ultimately dismissed. The Court ruled that whereas Mr. Ahani had been given the proper procedural protections to prove his case, he had failed to establish that he faced a substantial risk of torture if deported. As he had exhausted all of his rights of review, it was now open to the Canadian government to deport Mr. Ahani.

In a last effort to prevent his removal from Canada, Mr. Ahani filed a "communication" with the United Nations Human Rights Committee (the Committee) for relief under the Optional Protocol of the International Covenant of Civil Political Rights (the Optional Protocol). (3) His claim was based on Articles 1 and 2 of the Protocol. These articles, respectively, call on signatory states to recognize the competence of the Committee, and to allow for individuals to bring claims once they have exhausted all available domestic remedies. (4) The Committee made an "interim measures" request that Canada stay the deportation order until it had considered Mr. Ahani's communication. (5)

The Optional Protocol of the ICCPR has been ratified by Canada but not implemented into Canadian law. By ratifying the Optional Protocol, state parties agree to recognize the Committee. However, since the language of the Protocol and the Committee's rules of procedures are permissive, the Committee is only empowered (under the Optional Protocol and the Rules of Procedure) to express its views and make requests to state parties. In this sense, parties are not legally bound to yield to the committee's requests or findings. Given the permissive language of the Protocol, the Canadian government took the view that the interim measures request was not binding and, as a result, chose not to accede it, wishing again to deport Mr. Ahani immediately. Mr. Ahani applied to the Superior Court of Ontario for an injunction to restrain his deportation pending the Committee's consideration of his communication. The effect of such an injunction would have been to force the Canadian government to follow the Committee's request. The central question in Ahani H then was whether Canada was bound--either on the principles of the Charter of Rights and Freedoms or of international law--by the procedures of a ratified but non-implemented international instrument, notwithstanding the fact that the relevant procedures are permissive only.

This question was ultimately answered in the negative. Both the Superior Court and the Court of Appeal of Ontario denied the request of Mr. Ahani for an injunction. His application for leave to appeal was further dismissed 2-1 by the Supreme Court of Canada on May 16, 2002. (6) This cleared the way for his deportation. Mr. Ahani's fate since his return to Iran is uncertain. What is more certain, however, is that his attempts to stay his deportation will help to shape how Canadian courts conceive of and apply international law in future cases. Of particular significance are the majority and dissenting judgments of the Court of Appeal. What we see emerge from those respective judgments is the continuation of an ongoing debate within the courts that is in fact part of a reconceptualization of the role of international law. The purpose of this paper is to examine that debate in more detail and how Ahani II fits into it. The significance of this debate is underscored by looking to other recent Canadian cases that address issues of international law. What we shall see, ultimately, is that the impact of Ahani II resonates beyond the domestic context.

The starting point of my analysis is the case of Baker v. Canada. (7) In that case, we are presented with competing visions of the relationship between international law and domestic courts. At issue in Baker was the deportation order of Ms. Baker, the mother of four dependant Canadian-born children, who had remained in Canada without legal status for over a decade. The issue, with respect to international law, was whether Canadian immigration officials had to give primary consideration to the interests of Ms. Baker's children when exercising their discretion on whether to issue a deportation order. The language of "the primary interest of the child" is found in the Convention on the Rights of the Child, a convention that Canada has ratified but never implemented into domestic law. (8) As Knop points out, there are essentially three different views of international law at play in Baker. First, there is Iacobucci J.'s minority judgment that takes a strict or traditional view of how the domestic courts can apply international law. On this view, "an international convention ratified by Canada is of no force or effect until its provisions have been incorporated into domestic law by way of implementing legislation." (9)

By contrast, the lawyers for Ms. Baker and two of the interveners took the view that international law should be applied by "default." On this view, "the legislature is presumed to comply with international law" and, as a result, statutes and the Charter of Rights and Freedoms should be interpreted to comply, as much as possible, with international conventions, "regardless of whether the conventions have been incorporated by domestic legislation." (10) In other words, on this view, upon ratification, a treaty or convention is not only binding on Canada as a matter of international law, but domestic law should then be interpreted so as to conform to that instrument. Finally, the majority judgment introduces a view that fits not entirely within either of these two positions. On the one hand, L'Heureux-Dube J. follows on previous rulings that "international treaties are not part of Canadian law unless they have been implemented by statute." (11) On the other hand, she also takes the view that non-implemented conventions that Canada has ratified do play a role in domestic law. On her view, international human rights law can be used as a tool to "help inform the contextual approach to statutory interpretation and …