Executive and legislative power in the reception system

• Author: Gib van Ert
• Pages: 109-165

4 Executive and legislative

power in the reception

system

Most of this book concerns the judici al branch’s powers and duties in

the reception of international law i n domestic law. But a proper appre-

ciation of the judicial role depends crucial ly on a proper appreciation

of the executive and legisl ative roles. is chapter describes how Can-

adian constitutiona l arrangements allocate the foreign relations power

between its executive and leg islative elements.

e system governing the reception of inter national law in Canada

is a matter of constitutional law. is is not self-evidently so. ere is

hardly any reference to international law in those texts described col-

lectively in section () of the Constitution Ac t,  as “the Constitu-

tion of Canada.” But the constitution of Canada “embraces unwritten,

as well as wr itten rules.” “Unwritten” is something of a misnomer, for

unwritten constitutional rules can be found in written texts such as

statutes, judgments, and scholarly works. By “unw ritten” what is really

meant is unentrenched, meaning not to be found among those instru-

ments declared to be “the supreme law of Canad a” by section  of the

 But see s  of the Constit ution Act,  (“e Pa rliament and Govern ment of

Canada sha ll have all Powers nece ssary or proper for perfor ming the Obliga-

tions of Canad a or of any Province thereof, a s Part of the British Empi re,

towards Foreign C ountries, arisi ng under Treaties between the Empi re and such

Foreign Countr ies”) and s (g) of t he Charter (“Any person ch arged with an of-

fence has the ri ght . . . not to be found guilty on accou nt of any act or omission

unless, at the t ime of the act or omission, it const ituted an oence under Can -

adian or inter national law or was cr iminal accordi ng to the general princ iples of

law recogniz ed by the community of nat ions”).

 Reference re Remuneration of Judge s of the Provincial Court of Pr ince Edward Island,

[]  SCR  [Provincial Court Judge s] at para .

109

Using International Law in Canadian Courts

110

Constitution Act, . ere are numerous statutes, orders, and other

texts that, though not referred to in section (), are nonetheless

constitutional in nature. Also to be included in a complete account of

the Canadian constitution are conventions: non-legal rules of politica l

practice that determine some of the most basic features of Canadian

politics and gover nment.

Another part of the unw ritten constitution consists of common law

rules of a constitutional nature. It is these unwritten laws of the con-

stitution that most signicantly determine the place of international

law in the Canadian legal order. e common law is the principal au-

thor of the reception system. e dierent rules by which customar y

and conventional international law enter the Canadian legal system

are creations of the common law, not statute. e important role played

by interpretive presumptions and rules of judicial notice are features

of common law adjudication. Even such central features of the consti-

tution as parliamentary sovereignty and the royal prerogative, both

considered in this chapter, arguably exist only on the suerance of

the common law, or are at least heavily dependent on it. Everywhere

in these common law rules and st ructures we nd the conicting pri n-

ciples of respect for international law and self-government identied

in Chapter . And ever ywhere we nd the conict di used by rules that

alternatively favour one principle over the other in a manner that ul-

timately bala nces the two principles in a stable, if not always harmoni-

ous , mann er.

It might be thought that the silence of our written constitution on

the application of international law leaves a “constitutional vacuum.”

Yet the rules and principles according to which international law ap-

plies in Canadian jurisdictions are no less authoritative – and indeed,

no less constitutional – for being unw ritten. ose omissions the writ-

ten constitution has left in respec t of international law are suppl ied by

 See, e.g., Reference re Amendment of th e Constitution of Canada, []  SCR 

at – [Patriation Re ference]; A Heard, Canadian Constitutional Conventions:

e Marriage of La w and Politics (Toronto: Oxford University P ress, ); P Hogg

& W Wright,Constitutional Law of Canada, t h ed Supp (Toronto: omson Reu-

ters,  (updated  , release )) [Hogg & Wright] § :–: .

 S Toope, “Keynote Address: Ca nada and Internation al Law” in e Impact of

International La w on the Practice of Law in Canada: P roceedings of the 27th Annual

Conference of the Canadian Counci l on International Law, Ottawa O ctober 15–17,

1998 (e Ha gue: Kluwer Law Intern ational, )  at .

4 • Executive and leg islative power in the reception sys tem

111

the unwritten constitution and common law adjudication. at this is

so is not simply fortuitous, or a case of necessity being t he mother of in-

vention. e written constitution explicitly contemplates that unwrit-

ten rules will determine such matters as are not addressed by it. us

the preamble to the Constitution Act,  provides that Canada will

have a constitution “similar in pr inciple to that of the United Kingdom.”

Two common law features of Canada’s unwritten constitution are

considered in this chapter. First is the royal prerogative over foreign

aairs, including the Crown’s power to conclude treaties on behalf

of the state without legislative involvement. Second is the legislative

role in Canada’s performance, or non-performance, of international

obligations.

. e executive power to conduct external aairs

e executive’s chief role in the reception system is the conduct of ex-

ternal aa irs, and in particular t he negotiation and acceptance of legal

obligations binding on the state under international conventions. e

common law has always regarded the conduct of foreign a airs, includ-

ing the power to make treaties and (more recently) non-binding inter-

national arrangements, as an executive function. e treaty power is

anomalous in Westminster-model countries like Canada because it is

a power in the executive to ma ke law – albeit international not domes-

tic – without the legislature. is anomaly informs the Canadian ap-

proach to international ag reements in signic ant ways.

(a) e royal prerogative over foreign aairs

e royal prerogative, also known as the Crown prerogative or simply

the prerogative, has been described as the “residue of discretionary or

arbitrary authorit y, which at any given time is legal ly left in the hands

of the Crown.” e prerogative is “a limited source of non-statutory

 Reference as to the Eect of the E xercise of the Royal Prerogative of Merc y Upon

Deportation Proceedings, [] S CR  at , quoting A Dic ey, e Law of the

Constitution, th e d (London: Macmill an, ) at ; Canada (Prime Mini ster)

v Khadr,  SCC  [Khadr] at para .  is denition has been c riticized for

conating wh at the Crown is entitled to do b y virtue of monarch ial power and

what it can do by vi rtue of its powers as a natu ral person – a mista ke that may

lead to overly deferenti al approaches to judici al review. See J Kli nck, “Modern-