THE MCLACHLIN COURT AND INTERNATIONAL LAW
Preliminary Paper Outline1 May 18, 2009
Professor John H. Currie Faculty of Law, University of Ottawa
Introduction
In its first decade, the McLachlin Court has continued to make frequent and even
increased reference to international law and other international sources in its judgments (Charter and non-Charter alike). Indeed in some instances international law has proved pivotal to the outcome of the case under consideration. This has sent a clear signal to lower courts that international law will often be a relevant and perhaps even crucial consideration in resolving domestic legal issues, a development widely considered desirable by international lawyers as emblematic of Canada’s commitment to the global rule of law. Recognizing the important
implications of these developments, in recent years the McLachlin Court has also made
conscious efforts to address explicitly the nature of the relationship between international and
Canadian law – efforts seldom found in the Court’s earlier jurisprudence. Preliminary
assessments of those efforts appear to reveal an emerging “convergence” of the rules governing
the relationship between various sources of international and domestic law, perhaps most notably
apparent in the form of the now nearly ubiquitous “presumption of conformity” of domestic law
with international law.
1 Preliminary draft for discussion purposes only, not for quotation or attribution. Please check against delivery. - 1 -
Notwithstanding these significant developments, there does however continue to be
uncertainty as to the precise circumstances in which international law should or must be taken
into account in the domestic legal context; precisely how international law is to be used in
interpreting or applying domestic law; and indeed whether some or all of international law is,
also, domestic law. These uncertainties may in part be attributable to two characteristics of the
Court’s approach to international law in its judg ments.
The first such characteristic is the Court’s occasional practice of invoking international
law or sources without explicitly adverting to rules or principles of “reception” to justify and
guide application of the international source to the specific case or issue under consideration.
The distillation, from the Court’s judgments, of the rules or principles governing the domestic
reception of international law in various contexts therefore necessarily becomes an inferential
process, subject to the vagaries of individual interpretation. The uncertainty thus generated is
heightened by periodic variability in the weight or status accorded by the Court itself to
international law in reaching its conclusions (a tendency most notable in the Court’s use of
international law in Charter cases). Similar uncertainty is introduced when the Court does
explicitly articulate a relevant reception rule, but does so in a manner that appears to depart from
prior articulations of the rule (perhaps best illustrated in the Court’s recent attempt, in Hape,2 to clarify the status of customary international law in domestic common law).
The second characteristic of the Court’s use of international law is that it tends to be
context-specific, by which I mean that it is not, at least explicitly, guided by any general or overarching theory of the essential relationship between international and domestic law. Rather,
2 R. v. Hape, [2007] 2 S.C.R. 292. - 2 -
the Court’s approach to international law varies depending on the source of that law (e.g.
customary international law vs. treaty law) and the domestic legal context in which it is being
considered (e.g. Charter interpretation vs. interpretation of implementing legislation vs. statutory
interpretation generally). There is nothing problematic or even undesirable in this per se –
different sources and contexts may well call for different rules of reception. However, the
absence of a general theory of reception can and does lead to some puzzling paradoxes and even
pot ential conflicts between the rules apparently governing different elements of the reception
equation.
For example, it is not self-evident why customary international law, which is not subject
to domestic (or even international) democratic input in its formulation, should receive easier
passage into Canadian law than do Canada’s treaty obligations, which at least benefit from
indirect democratic input through negotiation and ratification by an executive springing from,
and answerable to, a majority in the House of Commons. Nor is the widely recognized
requirement that treaty law be legislatively implemented in order to have domestic legal effect
readily reconciled with the apparently growing scope of the presumption of conformity of
domestic law with Canada’s international legal obligations – whether legislatively implemented
or not. These conundrums, and the legal uncertainties they potentially foster, may suggest a need
for an overall, coherent framework within which international law is received and applied in the domestic legal order. Such a framework might well accommodate different rules applicable in different contexts, but subjecting all such rules to a number of basic, guiding framework principles could ensure coherence among them. It is submitted that the articulation of such a
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theoretical framework, if undertaken, could be the McLachlin Court’s most important legacy in
the field of the reception of international law in domestic law.
This paper will illustrate the foregoing by reviewing the McLachlin Court’s approach to
international law in three distinct areas: (1) the use of international treaty law in construing or applying domestic non-constitutional law; (2) the status of customary international law in domestic law; and (3) the use of international law in constitutional cases, including Charter interpretation. It will conclude by suggesting some future courses the Court’s consideration of international law may take, as well as some principles or policy considerations that could guide
the Court in developing a general theory governing the reception of international law in domestic
law.
The Presumption of Conformity with International Law
The Court’s judgments have perhaps been clearest and most consistent in affirming the
interpretive presumption of statutory conformity with Canada’s binding international legal
obligations. This section will outline the genesis of this presumption as a means of avoiding
conflict between Canada’s treaty obligations and legislation purporting to implement them, an
approach premised on respect for legislative intent (e.g. National Corn Growers,3 Ward,4
Thomson v. Thomson,5 Pushpanathan6). It will also consider the McLachlin Court’s recent
application of the presumption, both within and outside the legislative implementation context.
3 National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 [hereinafter National Corn Growers] per Gonthier J. (for the majority) at 1371. 4 Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689. 5 Thomson v. Thomson, [1994] 3 S.C.R. 551. - 4 -
Interpreting Implementing Legislation
In its 2005 decision in GreCon Dimter,7 the Court had to determine which of two apparently inconsistent provisions of the Civil Code of Québec8 should prevail in determining whether the Québec courts had jurisdiction over an action in warranty brought by a Québec importer against a German manufacturer. The Court first noted that Canada (and thus Québec) is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards9 and that the “legislature has incorporated the principles of the New York Convention … into Quebec law by enacting the substance of the Convention”.10 This is an interesting finding in itself, given the somewhat indirect evidence that the relevant provisions of the Québec Civil Code were intended to implement the New York Convention. In particular, the Court noted that the Civil
Code’s rules governing international arbitration agreements were based on those of the
UNCITRAL Model Law on International Commercial Arbitration.11 As these “closely follow the provisions of the New York Convention”, the Court concluded that the Civil Code implemented
“the substance” of the New York Convention. This seems to signal that the Court, in determining whether or not a given treaty has been legislatively implemented, will look to the substance of domestic legislation rather than more formal indicators of legislative intent to implement.
6 Pushpanathan v. Canada, [1998] 1 S.C.R. 982 at 1029-35. 7 GreCon Dimter inc. v. J.R. Normand inc., [2005] 2 S.C.R. 401 [hereinafter GreCon Dimter]. 8 S.Q. 1991, c. 64, arts. 3139 & 3148(2). 9 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June, 1958, 330 U.N.T.S. 3, [1986] Can. T.S. No. 43 [hereinafter New York Convention]; see GreCon Dimter, above note xxx at para. 40. 10 GreCon Dimter, above note xxx at para. 41. 11 UNCITRAL Model Law on International Commercial Arbitration, 21 June, 1985, U.N. Doc. A/40/17 (1985), Ann. I. - 5 -
Having concluded that the New York Convention had been domestically implemented, the
Court found that the “New York Convention is therefore a formal source for interpreting the domestic law provisions.” 12 That finding is essentially consistent with the presumption set out and applied in National Corn Growers and other earlier cases in the legislative implementation context. However, in GreCon Dimter the Court went further in characterizing the role of the relevant treaty provisions in interpreting domestic law:
The interpretation of the provisions in issue, and the resolution of the conflict between them, must necessarily be harmonized with the international commitments of Canada and Quebec.13 [Emphasis added]
National Corn Growers articulated a rebuttable presumption of conformity of implementing legislation with international treaty obligations, one that courts “should … strive” to apply “where the text of the domestic law lends itself to it.”14 The above passage from
GreCon Dimter, by contrast, appears on its face to make such conformity mandatory and to give the treaty controlling effect. The Court ties this rule to the “presumption that the legislature is deemed not to intend to legislate in a manner that cannot be reconciled with the state’s international obligations”, 15 but does not explain why such a “presumption” entails a restatement of the National Corn Growers rule in such unqualified, compulsory terms. Was this the Court’s intent? While both the majority and dissenting judgments in the subsequent Dell Computer case relied on GreCon Dimter’s conclusion that the New York Convention was a formal source for the interpretation of domestic law, neither addressed the seemingly mandatory rule enunciated by the
12 GreCon Dimter, above note xxx at para. 41. See also Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 at paras. 38-41, 44-47 and 73-75, per DesChamps J; and at para. 175, per Bastarache and LeBel JJ. dissenting. 13 GreCon Dimter, above note xxx at para. 39. 14 National Corn Growers, above note xxx at 1371. 15 GreCon Dimter, above note xxx at 39, citing Côté at 367. - 6 -
Court in GreCon Dimter.16 Clarification of whether the Court intended in GreCon Dimter to
“harden” the presumption of conformity by privileging treaty compliance over legislative intent
will have to await future cases.
Whatever its precise ambit, the principle that a domestic court should have recourse to
treaties in interpreting domestic implementing legislation signals a partial departure from the
formerly strict rule of transformation applied by the Court in Capital Cities Communications17
and introduces a monist vein into the Canadian legal system’s posture towards treaties. It does so
by allowing a treaty to have at least indirect domestic effect through the interpretive device of reconciliation of domestic implementing legislation with the corresponding treaty. The result is in some sense to place the onus on a legislature purporting to implement a treaty to indicate explicitly and clearly any departures from the treaty’s provisions it intends to enact in the domestic law. While this technically preserves legislative supremacy, a failure to express such statutory intent clearly will often mean that the treaty itself will govern the domestic legal effect
of the implementing legislation. Just how far reaching this effect is will depend on whether
GreCon Dimter intended to depart appreciably from earlier articulations of the presumption of
conformity in the legislative implementation context.
Unimplemented International Law
This section of the paper will next review the Court’s extension of the presumption of
conformity beyond the legislative implementation context. Here the Court has embraced a
16 See Dell Computer, above note xxx at paras. 38-41, 44-47 and 73-75, per DesChamps J; and at para. 175, per Bastarache and LeBel JJ. dissenting. 17 Capital Cities Communications v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141 at 173. - 7 - presumption that domestic legislation should where possible be interpreted in such a manner as to comply with Canada’s binding international legal obligations – even if unimplemented. 18 The twin bases for this presumption are, first, that Canada’s binding international legal obligations form part of the legal context in which legislatures act and, second, that legislatures should be taken not to intend to violate binding international law unless they make such intention clear.
Accordingly, where more than one interpretation of domestic law is possible, the interpretation that accords with Canada’s international legal obligations will be preferred. Of course, the presumption is rebuttable where the terms of the domestic rule cannot, through interpretive ingenuity, be reconciled with the international legal obligation.
Notwithstanding this theoretical basis, the extension of the presumption of conformity beyond the legislative implementation context poses theoretical challenges. In construing implementing legislation, the courts are guided by evidence that the legislature has at least made the decision to implement a treaty. In this sense, the presumption does not do away at all with the need for implementation but merely eases the passage of treaty law into Canadian law. This is plainly not so in the absence of legislation that purports to implement the relevant treaty obligation. Moreover, if domestic law is wherever possible to be interpretively reconciled with
Canada’s international legal obligations – including treaty obligations that have not been implemented – it is difficult to see what practical scope remains for the requirement of legislative implementation of treaty obligations. It could even be said that the requirement of treaty
18 See, e.g., Zingre v. The Queen, [1981] 2 S.C.R. 392 at 409-10, per Dickson J.; Ordon Estate v. Grail, [1998] 3 S.C.R. 437 at para. 137, per Iacobucci & Major JJ.; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269 at para. 50; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 at para. 31, per McLachlin C.J.; Hape, above note xxx at paras. 53-54. - 8 -
implementation is thereby reduced to nothing more than the well-known, residual discretion of the legislative branch to violate international law as long as it does so in express terms.
It may be for this reason that the Court has not always clearly adhered to a presumption of conformity outside the legislative implementation context, preferring on occasion to treat
Canada’s international legal obligations as simply part of the broader socio-legal context that
“may inform” the Court’s interpretation of domestic law. This more flexible approach first gained prominence in Baker.19
In Baker, the issue was whether the best interests of Ms. Baker’s children had to be
considered when applying section 114(2) of the Immigration Act,20 even though the legislation did not in terms require any such consideration and Canada’s relevant treaty commitments under the Convention on the Rights of the Child21 had not been legislatively implemented. As is well known, the majority of the Court acknowledged the general rule that unimplemented treaties are not part of Canadian law, yet nevertheless held that “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.”22 Having reviewed the provisions of the Convention and other international law
sources, the majority thus concluded that the best interests of children must be considered under
section 114(2) as an important factor.23
19 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. 20 Immigration Act, R.S.C. 1985, c. XXX, s. 114(2). 21 Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990), art. 3(1), requiring states parties to consider the best interests of children when decisions are made that affect their future. 22 Baker, above note xxx at 861. 23 In a judgment concurring in the result, Justice Iacobucci (writing for himself and Justice Cory) voiced strong concern for the effects of such an approach on the rule of transformation: “I do not share my colleague’s confidence that the Court’s precedent in Capital Cities … survives intact following the adoption of a principle - 9 -
While the outcome of Baker appeared consistent with the presumption of conformity, the effect of the majority’s reasoning left the status of that presumption in a state of some uncertainty. In particular, the majority did not elaborate on what was meant by “values reflected by international human rights law,” as distinct from “international human rights law” per se. Was the distinction meant to suggest that the content of the Convention could also be found in customary international law and thus in common law principles directly applicable in construing the ministerial discretion? 24 If not, was it meant to signal that the presumption of conformity only operated with respect to the “values”, rather than the rules, reflected in Canada’s binding international legal obligations? Further, describing such values “as an aid in interpreting domestic law” that “may help inform . . . statutory interpretation,” seems to fall well short of relying on a presumption of conformity that places an obligation on courts to construe domestic legislation in accordance with international law wherever possible. Was this language intended to signal abandonment of the presumption of conformity in favour of a much weaker approach in which Canada’s international legal obligations are merely one of many optional sources of contextual guidance available to courts in interpreting domestic law?25 If so, would this not simply lump Canada’s binding international legal obligations in with non-binding sources, such
of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament”: ibid. per Iacobucci J. at 866. It is notable however that Iacobucci J. had, the year before, endorsed the rule that “a court must presume that legislation is intended to comply with Canada’s obligations under international instruments”: see Ordon Estate v. Grail, above note xxx at para. 137, per Iacobucci & Major JJ. 24 See W.A. Schabas, “Twenty-Five Years of Public International Law at the Supreme Court of Canada” (2000) 79 Can. B. Rev. 174 at 182. On the status of customary international law in Canadian common law, see further below. 25 See S. Beaulac, “Le droit international et l’interprétation législative: oui au contexte, non à la présomption,” in O. Fitzgerald, ed., Règle de droit et mondialisation: Rapports entre le droit international et le droit interne (Toronto: Irwin Law, 2007) 413. - 10 - as unratified treaties and even “soft law” instruments, as part of an amorphous reservoir of optional and merely “informative” sources of inspiration for judicial interpretation?
This section will show that there were some signs in the McLachlin Court’s subsequent case law, in particular Spraytech,26 that Baker did indeed signal a break with the presumption of conformity. However, it will also show that more recent decisions, in particular Schreiber,27
Canadian Foundation for Children,28 and Hape, have signalled a return to the “well-established principle of statutory interpretation that legislation will be presumed to conform to international law….”29 Some observations on the relative merits of each approach will be offered.
The Relationship between Customary International Law and Canadian Common Law
This section will consider in some detail the Court’s only recent explicit consideration of the relationship between customary international law and domestic common law. While the
British courts have clearly taken an adoptionist stance30 on this issue for some time, 31 the
Canadian approach has remained much less certain. The principal reason for this is that,
26 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Ville), [2001] 2 S.C.R. 241 at paras. 30-32 [Spraytech]. 27 Schreiber, supra note xxx. 28 Canadian Foundation for Children, above note xxx at para. 31, per McLachlin C.J.: “Statutes should be construed to comply with Canada’s international obligations.” 29 Hape, above note xxx at paras. 53, 55. 30 The term “incorporationist” is more common in British practice whereas “adoptionist” tends to be used in Canadian practice. On the vagaries of the terminology used in this area of the law, see G. van Ert, Using International Law in Canadian Courts (The Hague: Kluwer Law International, 2002) at 49-51. 31 See, for example, Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] Q.B. 529 (Eng. C.A.). In this judgment, Lord Denning traces the origins of this rule to the early eighteenth century and provides a succinct overview of the relevant precedents. Ibid. at 553. See also Buvot v. Barbuit (1737), 25 E.R. 777; Heathfield v. Chilton (1767), 4 Burrow 2015 (per Lord Mansfield); S. Fatima, Using International Law in Domestic Courts (Oxford: Hart Publishing, 2005) at 403-36; and I. Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003) at 41. A similar position is taken in the United States. See, for example, The Paquette Habana, (1900) 175 U.S. 688 at 700 (S. Ct.). - 11 - notwithstanding (or perhaps because of) the absence of any provisions in Canada’s constitutional documents expressly governing the matter, Canadian courts have tended to refrain from addressing the issue squarely and clearly. Rather, Canadian courts have for many years implicitly taken an adoptionist stance, giving rise to the cautious conclusion that “there is room for the view that the law on the relationship of customary international law to domestic law in Canada is the same as it is in England.”32 More recently, a number of lower Canadian courts have been more explicit in their support for the adoptionist approach to customary international law.33
As for the Supreme Court, it too has remained tentative on this issue ever since Chief
Justice Lyman Poore Duff’s judgment in the Court’s landmark 1943 decision in Reference Re
Powers of Ottawa (City) and Rockcliffe Park.34 While the Chief Justice’s judgment in that case is widely interpreted as espousing the adoptionist model, the Court’s subsequent judgments only ever implicitly did so.35 Perhaps sensing that clarification on the issue was long overdue, a
32 R. St. J. Macdonald, “The Relationship between International Law and Domestic Law in Canada,” in R. St. J. Macdonald, G.L. Morris, and D.M. Johnston, eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974), 88 at 111. See also J. Brunnée and S.J. Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002) 40 Can. Y.B. Int’l L. 3 at 42-51, reviewing the ambiguous and sometimes conflicting Canadian case law and tentatively concluding that “the best view appears to be that customary law can operate directly within the Canadian legal system” (at 44). 33 For example, in litigation arising from the 1995 boarding and arrest by Canadian officials of the Spanish fishing trawler Estai in international waters (during the so-called “turbot war”), the Federal Court (Trial Division) considered “well settled” the proposition that “accepted principles of customary international law are recognized and are applied in Canadian courts, as part of the domestic law unless, of course, they are in conflict with domestic law”: see Jose Pereira E Hijos S.A. v. Canada (Attorney General), [1997] 2 F.C. 84 at para. 20 (T.D.). Similarly, in addressing a lawsuit brought by an Iranian expatriate against Iran for torture, the Ontario Court of Appeal accepted that “customary rules of international law are directly incorporated into Canadian domestic law unless explicitly ousted by contrary legislation”: Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675 at para. 65 (C.A.), leave to appeal ref’d, [2005] 1 S.C.R. vi. See also Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 at para. 32 (C.A.), leave to appeal ref’d, [2003] 1 S.C.R. xiii. 34 Reference Re Powers of Ottawa (City) and Rockcliffe Park, [1943] S.C.R. 208 [Foreign Legations]. In this case, the Supreme Court of Canada was asked to give an advisory opinion on whether the Ontario Assessment Act, R.S.O. 1937, c. 272 [now R.S.O. 1990, c. A-31], applied to diplomatic property owned by foreign states in the national capital region, notwithstanding immunities from local taxation granted to foreign states by customary international law. 35 See, for example, Saint John v. Fraser-Brace Overseas Corp., [1958] S.C.R. 263 at 268-69 (per Rand J.) (again dealing with the effect of the customary international law of state immunities from municipal taxation); and - 12 -
majority of the Court ventured an opinion on the topic in the 2007 decision in Hape36 -- interestingly, a case turning solely on interpretation of the Charter. After reviewing the British position as well as the somewhat ambiguous adoptionist stance taken by the Canadian courts to date, the majority wrote:
Despite the Court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.37
While this attempt to clarify the direct domestic effect of customary international law is laudable, this section will show that this paragraph, and the majority’s subsequent application of the “doctrine of adoption”, gives rise to considerable uncertainties as to the true interpretation of that doctrine. In particular it is submitted that this and other passages from Hape could be read to endorse as many as five different understandings of the relationship between customary international law and Canadian common law:
Pushpanathan v. Canada, [1998] 1 S.C.R. 982 at 1029-35 (referring to the customary international legal meaning attributed to the words “contrary to the principles of the United Nations” in interpreting legislation implementing treaty obligations relating to refugee status). See also The Ship “North” v. The King (1906), 37 S.C.R. 385 at 394 (per Davies J.); Reference as to Whether Members of the Military or Naval Forces of the United States of America Are Exempt from Criminal Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483 at 502 (per Kerwin J.); Re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86; Reference re Secession of Québec, [1998] 2 S.C.R. 217 [Québec Secession Reference]; Spraytech, supra note xxx at paras. 30-32; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paras. 61-65 [Suresh]; and Schreiber, supra note xxx at paras. 48-50 (per LeBel J.). But see Gouvernement de la République démocratique du Congo v. Venne, [1971] S.C.R. 997. 36 Hape, supra note xxx. 37 Hape, supra note xxx at para. 39. - 13 -
• customary international law is automatically part of the common law of Canada in the
absence of conflicting legislation;38
• customary international law should be incorporated into the common law of Canada
in the absence of conflicting legislation;
• customary international law may be incorporated into the common law of Canada in
the absence of conflicting legislation;39
• customary international law may aid in the development of the common law of
Canada; and
• customary international law may aid in the interpretation of the common law of
Canada.40
In other words, Hape arguably formulates several mutually inconsistent versions of the doctrine of adoption, both monist and dualist in nature, without clearly articulating which one prevails. Some clarification as to whether the majority’s intention was indeed to endorse the first of these alternative formulations would therefore seem to be necessary. If on the other hand the
Court intended to endorse one or more of the latter, more discretionary, formulations of the doctrine of adoption, it will be shown that this may give rise to inconsistencies in principle with some other rules of reception long accepted in Canadian law.
38 See also ibid. at para. 56, where the majority refers to the principle of “the direct application of international custom.” 39 See also ibid. at para. 46, holding that principles of customary international law “may be adopted into the common law of Canada in the absence of conflicting legislation”; and at para. 36,where the English position is paraphrased thus: “Prohibitive rules of international law may be incorporated directly into domestic law through the common law.… According to the doctrine of adoption, the courts may adopt rules of customary international law as common law rules.” 40 See also ibid. at para. 70, where the majority refers to the “context and interpretive assistance set out in the foregoing discussion.” - 14 -
The Role of International Law in Constitutional Cases
Charter Cases
This section of the paper will trace the ongoing evolution of the Court’s use of international law and materials as sources of guidance in interpreting the Charter. While it is widely accepted that the Charter does not, at least formally, implement any of Canada’s international treaty obligations,41 the Court has liberally taken account of such obligations, particularly in the human rights area, when construing the fundamental guarantees set out in the
Charter.42 The starting point for this interpretive approach was the relatively early endorsement, by a majority in the Supreme Court of Canada in Slaight Communications Inc. v. Davidson,43 of the view that
the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.
...Canada’s international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights. 44
41 See, for example, Ahani v. Canada (Attorney General) (2002) 58 OR (3d) 107 at para. 31 (C.A.); W.A. Schabas and S. Beaulac, International Human Rights and Canadian Law: Legal Commitment, Implementation and the Charter, 3rd ed. (Toronto: Thomson Carswell, 2007) at 59-67; P.W. Hogg, Constitutional Law of Canada, 5th ed. Supp. (looseleaf) (Scarborough, ON: Thomson Carswell, 2007) at para. 36.9(c). For criticism of the Ahani decision, see J. Harrington, “Punting Terrorists, Assassins and Other Undesirables” (2003) 48 McGill L.J. 55. 42 Schabas and Beaulac, supra note xxx. 43 Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 [Slaight Communications]. 44 Ibid. at 1056-57 (per Dickson C.J.), quoting his earlier comment in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 at 349 (dissenting on another point). - 15 -
This approach, of course, is not really a rule of reception, in the sense that it does not contemplate judicial incorporation or transformation of Canada’s international legal obligations into Canadian law per se. Rather, the Court in Slaight Communications was articulating a rule of construction, to the effect that the Charter should generally be interpreted to provide protections no less generous than those found in Canada’s international human rights treaty obligations.45
Subsequent decisions of the McLachlin Court, however, have tended to focus on the qualifications to the Slaight Communications rule, 46 introducing uncertainty as to the strength or even existence of the “minimum content presumption” and suggesting that Canada’s human rights and other international obligations may merely “inform” Charter interpretation rather than firmly or positively guide it. 47 The Court’s decision in Suresh v. Canada (Minister of Citizenship and Immigration), in particular, signalled a retreat from the minimum content presumption, albeit without expressly disavowing it. In Suresh, while accepting that deportation to torture is categorically prohibited by the International Covenant on Civil and Political Rights48 and the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
45 See W.S. Tarnopolsky, “A Comparison between the Canadian Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights” (1982-83) 8 Queen’s L.J. 211; Hogg, supra note xxx at paras. 33.8(c) and 36.9(c); Schabas and Beaulac, supra note xxx at 61. See also J. Claydon, “International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms” (1982) 4 S.C.L.R. 287. But see the cautionary note sounded with respect to such a “minimum content” presumption by I. Weiser, “Effect in Domestic Law of International Human Rights Treaties Ratified without Implementing Legislation” (1998) 27 Can. Council Int’l L. Proc. 132 at 138-39. 46 In particular, the indication that the presumption was only to operate “generally” and the equivocal use of the word “inform” to describe the interpretive relationship between Canada’s human rights obligations and the meaning of the Charter. 47 See, for example, United States v. Burns, [2001] 1 S.C.R. 283 at paras. 79-81 [Burns] (endorsing the views that international law is “of use” in interpreting the Charter and that international human rights law “should inform” and “must be relevant and persuasive” to such interpretation); Suresh, supra note xxx at paras. 46 (Charter interpretation “is informed ... by international law, including jus cogens” [emphasis added]); and at para. 60 (“in seeking the meaning of the Canadian Constitution, the courts may be informed by international law” [emphasis added]). See also Canadian Foundation for Children, supra note xxx at paras. 9-10; and Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 350 at para. 90. 48 International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976; Article 41 entered into force 28 March 1979) [Civil Rights Covenant]. - 16 -
Punishment,49 to both of which Canada is a party, 50 the Court nevertheless concluded that “in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1.”51 In other words,
Charter protections may fall below those called for in Canada’s international human rights treaty obligations, at least in “exceptional circumstances”.
Against this background, the majority judgment in Hape appeared to announce a complete break with the Court’s prior jurisprudence and adopt a wholly novel approach. In particular, after briefly recalling and summarizing the Court’s previous rulings on the topic, the majority writes: “In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a conclusion.”52 This proposition is as surprising for its brevity as for its novelty. It is submitted that neither Slaight Communications nor any of its successors asserted a presumption of conformity, when interpreting the Charter, with Canada’s international legal obligations. At their strongest, the Court’s prior judgments only suggested that international law establishes a “floor” of human rights protection below which Charter interpretation should not, “generally” and absent “exceptional circumstances,” drop — a floor, moreover, that is only to be established by reference to Canada’s international human rights obligations. 53 At their weakest, the Court’s judgments eschewed any particular persuasive role
49 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85 (entered into force 26 June 1987). 50 Suresh, supra note xxx at paras. 66-75. 51 Ibid. at para. 78. 52 Hape, supra note xxx at para. 56. 53 See Slaight Communications, supra note xxx at 1056-57. - 17 -
for international law in interpreting the Charter at all, relegating it to the status of mere context
that “may inform” such interpretation.54
By contrast, the new rule asserted by the majority in Hape would seem to require that
Canadian courts “ensure” that their interpretation of the Charter aligns with all of Canada’s
international legal obligations, whether related to international human rights or not.55 If this is so,
Charter protections do not simply benefit from a minimum content presumption, but are subject
to any “ceiling” or “walls” implied by any of Canada’s international legal obligations. Similarly,
any interpretive “floor” previously indicated by Canada’s international human rights obligations
could conceivably be lowered by reference to Canada’s international obligations of a non-human
rights character. Note also that new rule appears to narrow drastically any judicial discretion to
adopt a Charter interpretation that does not conform to any of Canada’s international legal
obligations. Whereas the pre-Hape jurisprudence accorded either unfettered (“may inform” 56) or vaguely limited (“should generally be presumed”57) discretion to courts to depart from international law in interpreting the Charter, the rule in Hape seems to narrow the grounds for
departure from international law to situations where the express wording of the relevant Charter
provision makes “compliance” impossible. This is a marked departure from the Court’s prior,
54 See for example Suresh, supra note xxx at paras. 46 and 60. 55 It is conceivable that the majority was not in fact purporting to state a general rule of Charter interpretation but, rather, one applicable only to s. 32(1) (see Hape, supra note xxx at para. 56: “In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with…”) [emphasis added]. This seems highly unlikely, however, given the majority’s indication that the courts must interpret the Charter’s jurisdictional reach “as with the substantive provisions of the Charter” (ibid. at para. 33); its references to prior decisions governing Charter interpretation generally (ibid. at paras. 54-55); and its subsequent unqualified reference to the “presumption of conformity” (ibid. at para. 56). 56 Suresh, supra note xxx at para. 60 [emphasis added]. 57 Slaight Communications, supra note xxx at 1056 [emphasis added]. - 18 - cautious approach to the role of international law in interpreting the Charter, which looked to international law as evidence of the meaning of the Charter but “not as controlling in itself.”58
Given the open-textured wording of many of the Charter’s provisions, the effects of such a rigid approach can be expected to be far-reaching, as amply demonstrated in Hape itself. This section will explore some of the many implications of such an approach and argue that a presumption of conformity, while perhaps appropriate in the statutory or even common law interpretation contexts, is ill-suited to the distinct exercise of Charter interpretation.
Whatever the other merits of the Hape presumption of Charter conformity with Canada’s international legal obligations, it must be conceded that it brings a degree of certainty to the use of international law in Charter interpretation which, as seen above, has varied considerably over the course of the McLachlin Court’s first decade. Puzzlingly, however, such certainty was rather short-lived. Indeed, the day after Hape was released, the Court also released its judgment in
Health Services.59 In applying international human rights law to support its conclusion that the
Charter’s guarantee of freedom of association includes a right to collective bargaining, the majority in Health Services simultaneously reasserted Slaight Communications’ minimum content presumption – albeit without its qualifications60 – as well as the far more equivocal
58 Suresh, supra note xxx at para. 60. 59 Health Services, supra note xxx. 60 Health Services, ibid. at para. 70: “[T]he Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.” See also ibid. at para. 79: “[S]. 2(d) of the Charter should be interpreted as recognizing at least the same level of protection [as international conventions to which Canada is a party].” Note the absence of the qualification “generally,” which accompanied the articulation of the minimum content presumption in Slaight Communications, supra note xxx at 1056-57. - 19 -
Suresh approach,61 all the while failing to advert to Hape’s presumption of conformity at all. In
the result, precisely how and when international law is to be used in interpreting the Charter continues to be attended by some confusion or at least variability.
Moreover, the range of international sources that “may” or “should” be relied upon either
to inform or control Charter interpretation, or to establish its presumptive minimum content, has
evolved over time. The majority in Slaight Communications asserted a minimum content
presumption only in respect of Canada’s international human rights obligations.62 Yet the Court
subsequently, in Burns, expanded the range of interpretive tools thus available to courts to
include “various sources of international human rights law — declarations, covenants,
conventions, judicial and quasi-judicial decisions of international tribunals [and] customary
norms.” 63 More recently, the Court in Health Services apparently accorded the same weight to
Canada’s international human rights commitments and “the current state of international thought
on human rights.”64 Quite why these “various sources of international human rights law” —
some internationally binding on Canada, others not — should all be treated equally in
interpreting the Charter has not, however, been clarified by the Court.
Suresh also went a step beyond Slaight Communications and Burns in another vein,
holding in effect that interpretation of the Charter is “informed” no less by international law in
61 Health Services, supra note xxx at para. 20 (“international law ... may inform the interpretation of Charter guarantees”); and para. 69 (“Canada’s international obligations can assist courts charged with interpreting the Charter’s guarantees”) [emphasis added]. 62 Slaight Communications, supra note xxx at 1056-57. 63 Burns, supra note xxx at para. 80, adopting the enumeration of sources by Dickson C.J. (dissenting) in Public Service Employee Relations Act Reference, supra note xxx at 348: “The various sources of international human rights law–declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms–must, in my opinion, be relevant and persuasive sources for interpretation of the Charter’s provisions.” 64 Health Services, supra note xxx at para. 78. - 20 -
general than it is by international human rights law in particular,65 seemingly contradicting the
apparently differential value attributed to each of these categories in Burns.66 This particular innovation appears to have been endorsed in Hape,67 although it is arguable that Health Services
has re-established the differential approach taken in Burns.68
Some observations on the practical effects of all this variability in using international law
or other sources in Charter interpretation will be offered.
International Law in the Non-Charter Constitutional Context?
Finally, this section will touch upon a further potential innovation in Hape: the apparent
use of international law as a source of unwritten principles of the Canadian constitution. In
particular, the Hape majority’s secondary basis for concluding that “extraterritorial application of
the Charter is impossible”69 – that matters outside the territory of Canada fall outside the authority of Parliament70 – appears to be premised entirely on Canada’s international legal
obligations rather than on any previously recognized rule of domestic constitutional law. The far-
reaching implications of using international law as a source of unwritten domestic constitutional
principles in this way will be considered and commented upon.
65 See Suresh, supra note xxx at para. 46, where the Court accords the same interpretive weight to international law generally, “sources” of international human rights law in particular, and even jus cogens norms. See also para. 60. 66 See Burns, supra note xxx at paras. 79-81 (international law is “of use” in interpreting the Charter, but international human rights law “should inform” and “must be relevant and persuasive” to such interpretation [emphasis added]. 67 Hape, supra note xxx at para. 56. 68 Health Services, supra note xxx: Contrast para. 70 (“the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified”) with para. 20 (“international law ... may inform the interpretation of Charter guarantees”) [emphasis added]. 69 Hape, supra note xxx at para. 85. 70 Ibid. at para. 69. - 21 -
Some Suggestions for Future Directions
In conclusion and building upon the foregoing examination of the McLachlin Court’s use of international law in its first decade, a number of suggestions will be made concerning future directions the Court may wish to take in developing the law governing the reception of international law in Canadian law.
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