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International/Comparative Human Rights, the Supreme Court of Canada and the Reconstitution of the Canadian Security Certificate Regime

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International/Comparative Human Rights, the Supreme Court of Canada and the Reconstitution of the Canadian Security Certificate Regime Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 10-2012 The Art of Persuasion: International/Comparative Human Rights, The uprS eme Court of Canada and the Reconstitution of the Canadian Security Certificate Regime Graham Hudson Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/phd Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the Human Rights Law Commons Recommended Citation Hudson, Graham, "The Art of Persuasion: International/Comparative Human Rights, The uS preme Court of Canada and the Reconstitution of the Canadian Security Certificate Regime" (2012). PhD Dissertations. 17. http://digitalcommons.osgoode.yorku.ca/phd/17 This Thesis is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in PhD Dissertations by an authorized administrator of Osgoode Digital Commons. The Art of Persuasion: International/Comparative Human Rights, The Supreme Court of Canada and the Reconstitution of the Canadian Security Certificate Regime By: Graham Hudson A Dissertation submitted to the Faculty of Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Graduate Program in Law Osgoode Hall Law School York University Toronto Ontario [October 2012] © Graham Hudson, 2012 Abstract In this dissertation, the author explores the jurisprudential foundations of the “relevant and persuasive” doctrine, which authorizes Canadian judges to rely on international and comparative human rights when interpreting the Charter o f Rights and Freedoms. Viewed in its best light, this doctrine improves respect for human rights in two distinct ways: securing Canada’s compliance with its international human rights obligations and enhancing the responsiveness of state law to the global and multicultural context of Canadian society. However, actual jurisprudence suggests that the doctrine has helped undermine principles of respect for constitutional supremacy and respect for international law, in part because it does not contain clear, objective criteria governing what counts as a relevant and persuasive norm. In the absence of such criteria, “result- oriented” judges are free to instrumentally pick norms that help rationalize decisions made entirely on the basis of political and ideological factors. Some would go so far as to argue that the doctrine enables judges to use the rhetoric of human rights to constitutionally entrench relations of domination; there is some empirical evidence to support this claim. Given the increasingly global context of contemporary judicial decision-making, it is surprising that judges have not yet offered a convincing justification for the relevant and persuasive doctrine. This dissertation attempts to offer such a justification. Weaving together a wide range of legal and moral philosophy, argumentation theory and international law/international relations theory, the author hypothesizes that judicial decisions about the relevance and persuasiveness of international and comparative human rights follow the contours of rhetorical and dialogical processes distinctive to law. With a view to testing this hypothesis, he develops analytical frameworks that help observers rationally identify, construct and evaluate “persuasive” international and comparative human rights arguments. Using the court-led reconstitution of the Canadian security certificate regime as a case study, he then attempts to demonstrate how the relevant and persuasive doctrine operates, how it coheres with principles of respect for constitutional supremacy and international law, and how it can improve respect for human rights among a wide range of globally-situated discursive communities. Acknowledgements I am indebted to family, friends, colleagues, teachers, and mentors for this dissertation. The journey was long, sometimes dark and foreboding, always uncertain, but rarely was it lonely. There were many without whose companionship I would have been lost. First, I would like to thank my supervisor, Harry W. Arthurs, for agreeing to take a chance on me, for helping me learn how to translate instinct into language, and for standing as a strong professional and personal role model. I am deeply grateful for your guidance and promise to pay it forward. I would also like to thank the members of my supervisory committee, Michael Giudice and Sean Rehaag, for their reliable, honest, and consistently constructive feedback. I would also like to thank Professors Michael Gilbert and Jutta Brunnee both for their invaluable intellectual contributions at my defence and for inspiring me in their capacities as my teachers. Finally, I thank my family for instilling in me a strong sense of fairness and justice, for showing me the power of dreams and the fulfillment that comes from following your heart, and for nurturing presence and authenticity in my adult years. This dissertation reflects and, in a small way, pays homage to the love and sanctuary provided by each of you. IV Table of Contents Abstract...............................................................................................................................ii Acknowledgements.............................................................................................................iii Table of Contents................................................................................................................iv Chapter 1: The Art of Persuasion: International/Comparative Human Rights, The Supreme Court of Canada and the Reconstitution of the Canadian Security Certificate Regime ................................................................................................................................... 1 Section A: Introduction ..............................................................................................1 Section B: Law or Not Law? Doctrine, Jurisprudence, and the Place of International Law in Canadian Courts ......................................................................9 Section C: Theoretical Perspectives on the Relevant and Persuasive Doctrine....20 Section D: Research Questions and Methodology ................................................. 26 Section D. I: Compliance, Persuasive Influence, and Respect for International Law........................................................................................ 27 Section D. II: Constitutional Perspectives on the Law of Reception ....... 32 Section E: International Law, Domestic Courts, and Transnational Legal Process ...........................................................................................-.............. 37 Chapter 2: The Place of International and Comparative Human Rights in Canadian Courts ...................................................................................................................40 Section A: Introduction ...........................................................................................40 Section B: International Human Rights and Domestic Courts ..............................40 Section B. I: What are International Human Rights?... .............................41 Section B. II: How do International Human Rights Relate to Domestic Courts?.........................................................................................................45 Section B. Ill: Summary .............................................................................48 Section C: International (Human Rights) Law in Canadian Courts: The Presumption of Conformity Doctrine .....................................................................49 Section C. I: Ambiguity, Canons of Statutory Interpretation, and the Value of International Law ................................................................................... 53 Section C. II: Implementation: Direct and “Passive” ...............................59 Section C. Ill: Bindingness and Compliance ............................................ 64 Section D: International Law in Canadian Courts: The Relevant and Persuasive Doctrine...................................................................................................................67 Section D. I: The Relevant and Persuasive Doctrine: Nature and Origins .........................................................................................................69 Section D. II: The Vices of Relevant and Persuasive Doctrine ................73 Section D. Ill: The Virtues of the Relevant and Persuasive Doctrine 77 Section E: Conclusion ............................................................................................ 86 Chapter 3: Doctrine and Judicial Decision-Making in Transnational Context.................90 Section A: Introduction .......................................................................................... 90 Section B: The Relevant and Persuasive Doctrine: Purposes and Functions ...... 94 V Section C: Toward a New Understanding of Compliance: Transnational Legal Process................................................................................................................... 103 Section C. I: What is Transnational Legal Process?.....................................................................................................104 Section C. II: Transnational Legal Process and Human Rights Advocacy ..................................................................................................I l l Section C. Ill:
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