Interpreting the Charter with International Law: Pitfalls and Principles

AuthorBenjamin Oliphant
Winner of the 2014 McCarthy Tétrault Law Journal Prize
forExceptional Writing
Benjamin Oliphant*
CITED: (2014) 19 Appeal 105–129
While the use of i nternational human right s law in Canadia n courts is not an entirely
novel phenomenon,1 there is little doubt that it has be come more prevalent in the Supreme
Court of Canad a’s jurisprudence.2 Far from being treated “as some exotic branch of t he
law, to be avoided if at all possible,”3 the courts have come to embrace i nternational
law and human right s norms, notably in the course of den ing the guara ntees found
in the Canadian Char ter of Rights and Freedoms (t he Charter”).4 Indee d, more than
simply being considered among variou s aids to interpretation, it is often said t hat the
Charter must be presumed to provide at least as much protect ion as international huma n
rights law and norms, pa rticularly thos e binding treaties th at served as its inspirat ion.5
However, as I aim to show below, the Court has so fa r used international huma n rights
law inconsistently and imprecise ly in the process of Charter interpret ation, exhibiting
* The author would like to thank the Appeal Edito rial Board for their diligent work and h elpful
suggestions throughou t the process, and Judith Oliphant for h er editorial assistance and
unwavering support. Sp ecial thanks are also owed to Professor B rian Langille, who has been
a constant source of encourage ment and with whom many of these ideas be low were initially
1 See e.g. R v Shindler, [1944] AJ No 11, 82 CCC 206; R v Brosig, [1944] 2 DLR 232, 83 CCC 199; and
R v Kaehler and Stolski, [1945] 3 DLR 272, 83 CCC 353. For an overview of the evolving use of
international law in the pre- Charter period, se e William A Schabas, International Human Rights
Law and the Canadian Charter, 2d ed (Scarborough: Carswell, 1996) at 1-13 [Schabas, International].
2 Anne Warner La Forest, “Domestic Appli cation of International Law in Char ter Cases: Are We
There Yet?” (2004) 37 UBC Law Rev 157 at 157-159 [La Forest]. This increased use has generate d a
wealth of scholarship. See g enerally Schabas, International, ibid; Stephen J Toope, “Canada and
International Law” (1998) 27 Can Council Int’l L Pro c 33; AF Bayefsky, International Human Rights
Law: Use in Canadian Charter of Rights an d Freedoms Litigation (Toronto: Butterwo rths, 1992)
[Bayefsky, Human Rights]; Louise Arbour & Fannie Lafontaine, “Beyond Self- Congratulation: The
Charter at 25 in an Internatio nal Perspective” (2007) 45 Osgoode Ha ll LJ 239 at 250 [Arbour &
Lafontaine]; and the materials di scussed below.
3 Jutta Brunnee & Stephen J Toope, “A Hesitant Embrace: The App lication of International Law
by Canadian Courts” (2002) 40 Can Y B Int’l L 3 at 3 [Brunnee & Toope], citing Rosalyn H iggins,
Problems and Process: International Law and How We Use It (New York: O xford University Press,
1994) at 206.
4 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c 11.
5 See the survey in Schabas, International, supra note 1 at 10-13, 26-28.
little in the way of a meani ngful presumption of complia nce with international huma n
rights obligations. e pur pose of this paper is to provide a revie w of this development
in constitutional interpret ation, and propose tentative guideline s that may lead to more
principled and predictable use of internat ional human rig hts law in the future.
In Part I, a brief survey of t he Court’s relevant Charter jurisprudence w ill highlig ht
those circumsta nces in which international human ri ghts law has been used (or ignored)
in Charter cases. In the next Part, it w ill be argued t hat while international huma n
rights norms may be releva nt and persuasive, there should be no automatic ‘presumption’
that the Charter eec tively encapsulates a ll international laws a nd agreements to which
Canada is a sign atory. Such a proposition, if adhered to with any rigour, conicts w ith
the principles of federalism a nd the separation of powers by giving t he federal executive
the power to unilatera lly aect the mea ning of the Constitution. Part I II proposes
a number of factors that may be helpfu l in constructing a c onsistent and principled
framework for the use of internat ional human rights norm s in Charter interpretation.
In particul ar, I will arg ue that certain factors that a re frequently cited—such as whether
Canada is str ictly bound by the international law or norm s—are not part icularly
salient considerations once we acce pt that the court should look only to thos e laws,
norms and interpretations in so fa r as they are considered b oth relevant and persua sive.
Ultimately, while international hum an rights law may be useful in t he context of Charter
interpretation, greater attention should be pa id to its compatibility in the context of
Canada’s own constitutional order, and to the rea sons underlying and oered in support
of the international laws a nd norms.
Before surveyi ng the Court’s use of international huma n rights law in Charter
interpretation, it is important to deline ate the scope of inquiry, as the justi cation of
the use of international law i n domestic courts depends heav ily on the legal context
in which it is deployed.6 e analy sis here will be conned to t hose cases where the
Court has use d international law or human rig hts documents to reveal t he content of a
given Charter provision. Cases in which the Court ha s applied international law in the
process of s tatutory inte rpretation,7 de ning administ rative law duties,8 developi ng the
common law,9 interpreting treaty-implementing legisl ation,10 deciding the international
6 The Honourable Justice Claire L’Heureux-Dubé, “From M any Dierent Stones: A House of Justice”
(2003) 41 Alta L Rev 659 at 668.
7 There is a general presumption of statutor y interpretation that requires a s tatute to be
construed in accordance with inte rnational law to the extent possible (R uth Sullivan, Driedger on
the Construction of Statutes, 3d ed (Toronto: Butter worths, 1994) at 330). See e.g. 114957 Canada
Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40, [2001] 2 SCR 241; Schreiber
v Canada (AG), 2002 SCC 62, [2002] 3 SCR 269; National Corn Growers Assn v Canada (Import
Tribunal), [1990] 2 SCR 1324 at 1371, 74 DLR (4th) 449 [National Corn]; Ordon Estate v Grail, [1998] 3
SCR 437 at para 137, 166 DLR (4th) 193. See also Stephane Beaulac, “Recent Develop ments on the
Role of International Law in Ca nadian Statutory Interpretatio n” (2004) 25 Stat L Rev 19 [Beaulac].
8 See e.g. Baker v Canada (Ministry of Citizenship and Immigration), [1999] 2 SCR 817 at paras 69-71,
9 Canadian courts adhere to the doctr ine of adoption, such that customar y international norms
may be adopted into the common law prov ided that there is no legislation that cl early conicts
with the international rule. S ee the discussion in R v Hape, 2007 SCC 26 at paras 35-39, [2007] 2
SCR 292 [Hape], and the cases cited therein.
10 See e.g. Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 at
1019-1020, 160 DLR (4th) 193.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT