General Principles of Canadian Reception Law

AuthorMark Freeman, Gibran Van Ert
The very essence of an international human rights obligation is that the
state to which it applies undertakes to give effect to it in its domestic law.
At this point in our legal history, human beings continue to be governed
chiefly — indeed, almost exclusively — by the internal laws of states.
Therefore, international laws for the benefit of human beings must be
received into domestic law if they are to be more than empty promises.
How exactly this reception of international human rights law occurs
is, from an international law perspective, a matter of some indifference.
The important thing is that states meet their international obligations.
What steps they take to do so are generally up to them. Thus some
states give direct effect to international human rights law in their
domestic laws, while others require implementation of such obligations,
usually by legislation, before their nationals can rely on them. Neither
of these reception schemes is, as a matter of international law, inferior
or superior to the other. What matters is the scheme’s effectiveness in
securing the human rights guarantees to which the state is bound.
The Canadian reception system is notable for the lack of explicit
provisions on the status of international human rights law (or, for that
matter, international law in general) in the written constitution. In this
Canada may seem to compare unfavourably to such states as the Czech
Republic, Colombia, Japan, South Africa, Spain, and many others
whose constitutions make explicit reference to international human
rights obligations. This unfavourable impression is exacerbated, per-
haps, when one recalls that it is an unwritten rule of Canadian law that
chapter 8
treaties that purport to affect the rights of citizens require legislative
implementation before the courts will give them domestic effect. In
spite of these seeming obstacles, Canada’s reception system is arguably
among the most effective in the world at securing the human rights of
its citizens. How this can be so will become clear in the course of this
and the following chapters.
In the absence of constitutional or statutory provisions governing
the reception of international law in Canada, the question becomes one
of common law. Therefore we must occasionally turn to English law to
understand the Canadian position. The same is true in many other
Commonwealth countries, notably Australia, New Zealand, and certain
African and Caribbean states. But even without explicit constitutional
provisions governing the reception of international law, Canada’s con-
stitution has shaped Canadian reception law from a distance. The law
of federalism has significant consequences for the implementation of
treaties generally, and human rights treaties in particular. And the
entrenchment of certain human rights guarantees in the Charter is the
principal (but certainly not the only) means by which Canada dis-
charges its international human rights obligations.
A. The Four Pillars of Canadian
Reception Law
The Canadian reception system, like its counterparts in the UK and
other Commonwealth jurisdictions, consists of four pillars: the judicial
notice of international law by domestic courts, the interpretive pre-
sumption that domestic law conforms with the state’s international
obligations, the incorporation of customary international law by the
common law, and the necessity of implementing treaties by primary or
secondary legislation.
1) Judicial Notice of International Law
In the law of evidence, judicial notice is the power of courts to accept
the truth of certain propositions without proof. Usually this power is
considered in relation to the proof of facts,1but there is also a doctrine
148 international human rights law
1 See D. Paciocco & L. Stuesser, The Law of Evidence, 3d ed. (Toronto: Irwin Law,
2002) at 386.
of judicial notice of law.2This doctrine not only permits but requires
courts to take judicial notice of forms of law to which they must give
effect, including statutes, secondary legislation, the common law, and
international law. By contrast, Canadian courts do not take judicial
notice of foreign law, i.e., the domestic law of foreign states. Foreign
law must be proved.3The common law’s different treatment of foreign
and international law was succinctly explained by Lauterpacht: inter-
national law need not be proved in common law courts simply because
“it is not foreign law.”4This distinction between foreign law and inter-
national law is not peculiar to Canada and other common law coun-
tries. “There is not a legal system in the world where international law
is treated as ‘foreign law.’ It is everywhere part of the law of the land; as
much as contracts, labour law or administrative law.”5
While it is clear as a matter of practice that Canadian courts consid-
er themselves free, if not obliged, to consider relevant international
treaties, customs, and principles in the course of their decision-making,
there is nevertheless a paucity of direct authority for doing so. The lead-
ing Canadian case is The Ship “North” v. The King, in which the Supreme
Court of Canada expressly approved a lower court’s application of the
international law of hot pursuit, saying “The right of hot pursuit . . .
being part of the law of nations was properly judicially taken notice of
and acted upon by the learned judge.”6Though recent cases rarely make
the point so clearly,7 commentators agree that Canadian courts must
General Principles of Canadian Reception Law 149
2 Judicial notice of law is originally a common law doctrine but has been declared
in certain statutes, for example Canada Evidence Act RSC 1985 c. C-5 s. 18.
These declaratory provisions do not mention international law; however, judicial
notice of international law remains a common law rule.
3 See J. Castel & J. Walker, Canadian Conflict of Laws, 5th ed., looseleaf
(Markham, Ontario: Butterworths, 2002) at s. 7.1.
4 H. Lauterpacht, “Is International Law Part of the Law of England?” [1939]
Transactions of the Grotius Society 51 at 59.
5 R. Higgins, “The Relationship Between International and Regional Human
Rights Norms and Domestic Law” in Developing Human Rights Jurisprudence, vol.
5 (London: Commonwealth Secretariat, 1993) at 16 [Higgins, “Domestic Law”].
Of course, international laws that do not bind the state (for example, treaties to
which the state is not a party) are not “the law of the land.” Non-binding inter-
national laws are not the same as foreign law, but they are analogous to it.
6 (1906) 37 SCR 385 at 394.
7 But see: Post Office v. Estuary Radio Ltd., [1968] 2 QB 740 (CA) at 756–57 [Post
Office]; Jose Pereira E. Hijos, S.A. v. Canada (Attorney General), [1997] 2 FC 84
(TD) [Jose Pereira E. Hijos, S.A.]; Re Secession of Quebec, [1998] 2 SCR 217 at
para. 109 [Re Secession of Quebec]; Quebec (Minister of Justice) v. Canada (Minis-
ter of Justice) (2003), 228 DLR (4th) 63 (Que CA) at paras. 106–16 [Quebec
(Minister of Justice)].

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