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

• Author: Jennifer Koshan
• Pages: 443-470

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thirteen

International Law as a Strategic Tool

for Equality Rights Litigation:

  

Jennifer Koshan1

A. INTRODUCTION

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.