International Law as a Strategic Tool for Equality Rights Litigation: A Cautionary Tale

AuthorJennifer Koshan
International Law as a Strategic Tool
for Equality Rights Litigation:
  
Jennifer Koshan1
Since the early days of equality rights jurisprudence under the Canadian
Charter of Rights and Freedoms, the concept of human dignity has played
an important role i n dening the goal of constitutional equality protec-
tions. e role of dignity has become even more central since the Supreme
Court of Canada’s  decision in Law v. Canada, where the Court de-
scribed the purpose of section () of the Charter as follows:
to prevent the violation of essential human dig nity and freedom through
the imposition of disadvantage, stereoty ping, or political or social preju-
dice, a nd to promote a society in which all persons enjoy equal recogni-
tion at law as human bei ngs or as members of Canadian society, equally
capable and equally deser ving of concern, respect and consideration.
Similarly, dignity has a prominent place in international human rights
documents. e Universal Declaration of Human Rights (UDHR) notes in
its preamble “that recognition of the inherent dignity and of the equa l and
inalienable r ights of all members of the human family is the foundation
of freedom, justice and peace in the world.” e International Coenant
on Civil and Political Rights (the ICCPR) and the International Coenant
on Economic, Social and Cultural Rights (the ICESCR) also refer in their
preambles to “the inherent dignity of the human person” as the source of
human rights. More speci cally, the Conention on the Eli mination of All
     
Forms of Discrimination Against Women (the CEDAW) states “discrimi-
nation against women violates the principles of equality of rights a nd re-
spect for human dignity.”
Given their intersection at the point of dignity, one might expect that
Canadian courts would nd international human rights instruments to be
a fruitf ul source for interpreting the scope of section () of t he Charter.
is is not to accede to the argument that “ dignity” should be maintained
as the centerpiece of equality rights. However, as long a s dignity remains
at the core of section () of the Charter, international human rights norms
have a potential role to play in the interpretation of section ().
Even if dignity were displaced this would be the case, given the similar-
ity of equality norms at the domestic and international levels. International
human rights instruments, like the Charter, protect against discrimination
generally, and in more specic contexts. Regional human rights docu-
ments also include equality guarantees. Some international human rights
conventions have mechanisms for complaints, or reports by international
bodies, oering furt her opportunities for pronouncements on equality
and discrim ination at the international level. International human rig hts
sources thus provide fertile ground for Canadian courts in their interpreta-
tion of section () of the Charter.
My analysis will show that despite the richness of international human
rights material, the Supreme Court of Canada has been reticent in using in-
ternational law in relation to section  of the Charter. e Court’s silence
is particularly pronounced with respect to social and economic rights, a nd
women’s equality g uarantees. When the Court does refer to international
law in its equality rights decisions, it oen fails to provide reasons for why
it is doing so, ma king it dicult to a ssess the basis upon which the Cour t
nds international human rights law to be a compelling source in the do-
mestic context. In the absence of a clear explanation from the Court, I will
explore possible reasons for its reluctance to apply international law in the
equality context.
Another trend that I will expose is the Supreme Court’s use of interna-
tional law to narrow the scope of section  of the Charte r. International
human rights norms have been put forward by conservative interveners,
and used by members of the Court to defeat equality rights claims u nder
the Charter a s oen as they have been used to support a substantive equal-
ity approach. In other cases, international law seems to make little dier-
ence to the Court’s reasons for decision.

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