Why hadn't Canada signed the Apostille Convention before May 2023?

Question

Looking at this outdated map of signatories to the Hague Convention/Apostille Convention, one can see that Canada was the only Western nation (as well as the only NATO nation, etc.) to not be a signatory.

Canada signed the convention on May 12th 2023 and adopted it into law on January 11th 2024. Why not earlier? Canada certainly has acceded to many other treaties, and the convenience and non-controversial nature of apostilles, especially as compared to the hassle of legalisation, would seem to make signing on a no-brainer. Furthermore, every single one of Canada's "peer countries" is a party, and Canada is usually a strong supporter of multilateral international agreements.

What political factors have prevented Canada, uniquely, from becoming part of the Apostille Convention?

Answer 1

Good question, and something that has been puzzling me also for some time. Some info can be extracted from the answers of Canada to regular questionnaires of the Hague Conference (which were generally held as preparation for Special Commissions on the functioning of the Apostille Convention). It shows the devolved character plays a role, and that becoming a party is being (or has been) discussed. But how this explains such a long time period is not fully clear.

Devolved character:
The Hague Apostille Convention does not have a devolved entity clause, which allows certain devolved jurisdictions to become a party, while others do not. Such a clause has been added in several Hague Conventions afterwards (eg the 1985 Hague Trust Convention, which is now in force for 9 Canadian jurisdictions, which became party at different dates).

At the 2003 Special Commission questionnaire, Canada indicated that a convention amendment allowing for such a clause would be helpful: "A federal clause would facilitate Canada’s becoming a party to the Hague Convention of October 5, 1961, Abolishing the Requirement of Legislation for Foreign Public Documents, because then the consent of all the provinces/territories would not be required."

Becoming a party
Becoming a party is (or has been) studied as has been indicated in the questionnaires of

1. 2008: "Canadian provinces and territories are at present considering the desirability of implementing the Convention."
2. 2012 and 2016 In both years, on the question whether becoming a party is being studied, the answer was: "Yes. The timetable and outcome of the study are not determined."

Answer 2

OK - A little research.

It does have to do with the Federal/Provincial structure in Canada. In particular, the Federal government has no powers in family/probate/etc. law. Those powers belong to the provinces, and the there is no so-called "Federal State Clause" in the BNA act (what was the constitution in 1961) or the 1982 constitution. As a result, the Federal government cannot bind the provinces to do anything in that domain as part of a treaty. I believe that the "Supremacy Clause" of the constitution acts as the "Federal State Clause" in the US (that's a guess).

It appears that there's a movement to get Canada to sign that treaty somehow.

Here are some references: Blog entry about Apostilles in Canada - (read the comment by John Gregory) which points to A section in a Google Book of an International Law book

Original Post follows (the wild/educated guess version):

Canada has two legal systems for non-criminal law. Quebec civil law is based on the French Napoleonic traditions. In every other province, law is based on the traditions and rules of British common law. They are very different (a simple example, the word "notary" has a very different meaning in Quebec than it does in the rest of Canada or in the US (perhaps excluding Louisiana)).

In addition, getting this to work would require the cooperation of all of the provinces (and in particular, Quebec). Getting an agreement like this in place may not be worth the effort and (political capital) expense. Never under-estimate the complications of getting the federal government and all the provinces to agree to something in Canada.