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Using Treaties in Canadian Courts

  • Gibran van Ert

Summary

Increasingly, litigants are seeking to rely on international treaties before domestic courts. The difficulties they face, together with the judges hearing these cases, are great. Public international law is unknown territory for the vast majority of Canadian lawyers, both at the bar and on the bench. Moreover, the rules according to which international treaties take effect in Canadian domestic law engage a wide variety of legal sources, including ancient common law jurisprudence, unwritten constitutional rules, federalism, and the provisions of the Canadian Charter of Rights and Freedoms and other Canadian human rights instruments. The object of this article is to describe in a comprehensive manner how international treaties may be used in Canadian courts. The disparate and seemingly unrelated norms informing the Anglo-Canadian law of treaty reception, including the implementation requirement, the treaty presumption, the rule in Labour Conventions, and the landmark decision in Baker v. Canada, are depicted as internally-consistent manifestations of the guiding principles of the Canadian reception system: self-government and respect for international law.

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1 Baker, infra note 133.

2 Some writers describe the application of international law in monist jurisdictions as proceeding by “adoption,” meaning that the international norm is adopted automatically by domestic law. I dislike this term, for to adopt something suggests a positive act of acceptance by someone, whereas the whole point of the monist/adoptionist model is that no such act is needed. I prefer the term “incorporation,” which is more common in modern English writing on the subject. Confusingly, incorporation is sometimes used to mean its opposite, namely, the implementation of treaty law by statute. See, for instance, Hunt, Murray, Using Human Rights Law in English Courts (Oxford: Hart, 1998), 12 n. 43 , where the author lucidly explains the difference between the “incorporation” of customary international law and the “transformation” of international treaty law, only to proceed immediately (at 15) to speak of “unincorporated conventions”!

3 For a lengthy treatment of the incorporation of customary international law in Canada, see Ert, Gibran van, International Law in Canada: Principles, Customs, Treaties and Rights (LL.M. thesis: University of Toronto, 2000) at chapter 3.

4 On international custom generally, see SirJennings, Robert and SirWatts, Arthur, eds., Oppenheims International Law, 9th ed., vol. 1 (Harlow: Longman, 1992), section 10, and Emanuelli, Claude, Droit international public: contribution à l’étude du droit international selon une perspective canadienne (Montreal: Wilson and Lafleur, 1998) at 4161.

5 At common law, the definition of an international convention (or treaty) is apparently the same as that recognized in international law, thus eliminating the unattractive argument that states: “While this agreement may be a treaty at international law, it is not one for the purposes of our law.” By contrast, American constitutional law distinguishes between treaties, which are part of “the supreme Law of the Land” under Article 6 of the constitution, and executive agreements, which are not necessarily self-executing. See Jennings and Watts, supra note 4 at 74–7. If, as is doubtful, there was a distinct common law definition of “treaty,” it has been swept aside by the 1969 Convention on the Law of Treaties, Can. T.S. 1980 No. 37 [hereinafter Vienna Convention], to which Canada is a party and which, in any event, is at least partly declaratory of customary international law: Shaw, Malcolm N., International Law, 4th ed. (Cambridge: Cambridge University Press, 1997) at 633 , citing Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, [1971] I.C.J. Rep. 16, 47, and the Fisheries Jurisdiction Case (United Kingdom v. Iceland) (Jurisdiction), [1973] I.C.J. Rep., 3, 18.

6 Vienna Convention, supra note 5 at art. 3.

7 See generally van Ert, supra note 3, especially at chapter 1.

8 SirBlackstone, William, Commentaries on the Laws of England, vol. 4 (Chicago: University of Chicago Press, 1979) at 66–7.

9 Ibid.

10 Canadian Charter of Rights and Freedoms, s. 11 (g), Part I of the Constitution Act 1982, being Schedule Β to the Canada Act 1982 (U.K.), 1982, c. 11.

11 For more on treaty-making, see Hogg, Peter, Constitutional Law of Canada, loose-leaf ed. (Scarborough: Carswell, 1997) at chapter 11; Copithorne, Maurice, “Canadian Treaty Law and Practice” (1996) 54 The Advocate 35 . A dated, but still useful, work is Gotlieb, A. E., Canadian Treaty-Making (Toronto: Butterworths, 1968). For a description of Canadian treaty-making practice by the Legal Bureau of the Department of External Affairs, see (1986) 24 C.Y.I.L. 397.

12 Vienna Convention, supra note 5 at art. 6.

13 See ibid. at art. 11.

14 In Thomson v. Thomson,, [1994] 3 S.C.R. 551 at 610, L’Heureux-Dubé J., in a concurring opinion, held that the federal treaty-making power is found in Section 132 of the Constitution Act 1867. That finding is, with respect, wrong. Section 132 grants the “Parliament and Government of Canada … all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.” This section only grants power to perform treaty obligations; it grants no power to incur such obligations. Canada lacked such power for much of its early history. Furthermore, Section 132 only grants power respecting Empire treaties. Such treaties no longer exist, and Section 132 is now spent. In a letter of February 1, 1985 to the Council of Europe explaining Canadian treaty practice (reprinted in (1986) 24 C.Y.I.L. 397), the Legal Bureau of the Department of External Affairs stated: “The Canadian Constitution contains no provisions regarding treaty-making apart from Section 132 of the Constitution Act, 1867 which has fallen into disuse … Treaty-making in Canada is part of the Royal Prerogative, the residue of authority left in the Crown, and in practice exercised by the Governor General in Council, i.e. the Governor General of Canada acting on the advice of Privy Councillors who are Ministers of the Government.”

15 Dicey, A. V., Introduction to the Study of the Law ofthe Constitution, 10th ed. (London: Macmillan, 1964) at 424.

16 Whether this power is vested wholly in the federal executive or divided between the federal and provincial executives is not entirely clear as a matter of domestic law. However, in practice, it is the government of Canada and not the provincial governments that binds Canada internationally. See van Ert, Gibran, “The Legal Character of Provincial Agreements with Foreign Governments” (2001) 42 Les Cahiers de droit (forthcoming), and Emanuelli, supra note 4 at 72–3.

17 The Canadian Abridgment gets this simple point of Canadian constitutional law wrong, confusing the meanings of “ratify” and “implement.” The Abridgment’s case digests on international law describe cases as concerning “Treaties — Effect of failure of Parliament to ratify.” This description is mistaken, for the Crown ratifies treaties without the participation of Parliament. Where the Abridgment says “failure to ratify” it means “failure to implement.” See the Canadian Abridgment, 2 nd ed. (Scarborough: Carswell, 1998) at 716. Our courts occasionally make the same mistake. In Re Canada Labour Code, [1992] 2 S.C.R. 50 at 90, La Forest J. said, “I would note that SOFA [the North Atlantic Treaty Status of Forces Agreement, [1953] Can. T.S. No. 13] has no legal effect in Canada, as it has not been ratified by domestic legislation.” In R. v. Rumbaut (1998), 127 C.C.C. (3d) 138 (N.B.Q.B.) at 140, Deschênes J. said: “Neither the Geneva Convention on the High Seas, 1958 … nor the United Nations Convention on Law of the Sea, 1982 … have been ratified by the Canadian Parliament and are not, as such, part of Canadian domestic law.”

18 Implicit recognition comes in the form of statements affirming that the legislative competence of the federal and provincial legislatures is, subject to the federalism provisions of the Constitution Act 1867 (and now the entrenching Section 52 of the Constitution Act 1982), as great as that possessed by the imperial Parliament. Thus, English authorities to the effect that the Parliament at Westminster may legislate contrary to international law apply also to Canadian legislatures. See Hodgev. The Queen (1883), 9 A.C. 117 (P.C.); Arrow River & Tributaries Slide & Boom Co. Ltd. v. Pigeon Timber Co. Ltd., [1932] S.C.R. 495 at 509–10 [hereinafter Arrow River], per Lamont J.; Croft v. Dunphy, [1933] A.C. 156 (P.C.) at 164; and British Columbia Electric Railway Co. Ltd. v. The King,, [1946] A.C. 527 at 541 (quoting Rand J.) [hereinafter British Columbia Electric Railway].

19 The leading cases are Capital Cities Communications v. C.R.T.C. [1978] 2 S.C.R. 141 at 173, per Laskin C.J. [hereinafter Capital Cities]; Daniels v. White and the Queen, [1968] S.C.R. 517 at 539, per Hall J. (dissenting, but not on this point, and with the concurrence of Ritchie and Spence JJ.); and Gordon v. The Queen in Right of Canada, [1980] 5 W.W.R. 668 at 670–1 (B.C.S.C.), per Meredith J. See also Re Foreign Legations, [1943] S.C.R. 208 at 231; Arrow River, supra note 18 at 510; Swait v. Board of Trustees of Maritime Transportation Unions, [1967] B.R. 315 (Que. Q.B.) at 319; British Columbia Electric Railway, supra note 18 at 542; and R. v. Meikleham (1906), 11 O.L.R. 366 (Ont. Div. Ct.) at 373. For a discussion of the residual sovereignty of Canadian legislatures to violate international law, see van Ert, supra note 3 at chapter 2.

20 Article 55 of the French constitution of October 4, 1958 provides that “Les traités ou accords régulièrement ratifiés ou approuvés ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité, de son application par l’autre partie.” Article 25 of the German Basic Law of May 23, 1949, provides that “the general rules of public international law constitute an integral part of federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory.” Article VI of the US constitution provides that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” However, subsequent US constitutional law has narrowed this provision by drawing a distinction between treaties and executive agreements (both of which constitute treaties for the purposes of international law).

21 A treaty may be declaratory of, or come to represent, customary international law. In that case, a Canadian court may look to the treaty, though unimple-mented or even unratified, to discern customary international law. When a court does so, it is not applying the treaty but rather the customary law that the treaty represents. An example is the use of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas and the 1982 United Nations Convention on the Law of the Sea by Deschênes J. in R. v. Rumbaut (1998), 127 C.C.C. (3d) 138 (N.B.Q.B.).

22 It is unwritten in the sense that it is not entrenched in the constitution of Canada as described in Section 52 (2) of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Constitution Act 1982]. Yet the rule that the Crown cannot unilaterally make law finds written expression in case law and in the Bill of Rights 1689, an act of the UK Parliament that passed into Canadian law by reception. This act continues in force in all Canadian jurisdictions. As Henri Brun and Guy Tremblay observe, “on peut toujours plaider l’application au Canada de certains anciens statuts anglais qui consituent l’armature de base du droit constitutionnel britannique, tels la Magna Carta de 1215, la Petition of Right de 1627, le Bill of Rights de 1689 ou l’Act of Settlement de 1700.” Brun, Henri and Tremblay, Guy, Droit constitutionnel, 2nd ed. (Cowansville, PQ: Les éditions Yvon Blais, 1990), 19.

23 Constitution Act 1867 (U.K.), 30 & 31 Vict., c. 3, preamble, reprinted in R.S.C. 1985, App. II, No. 5. On the role of the preamble in importing unwritten constitutional rules, see Reference Re Remuneration of Judges of the Provincial Court of Prince Edwardisland; Reference relndependence and Impartiality of Judges ofthe Provin-cialCourt of Prince Edward Island, [1997] 3 S.C.R. 3 at 68-–74, per Lamer C.J. The rule that the executive lacks legislative power is also implied by the definitions of the federal and provincial legislatures in the Constitution Act 1867.

24 Proclamations case, (1611) 12 Co. Rep. 75 at 76; 77 E.R. 1352 at 1354.

25 Archbishop of York and Sedgwick, (1612) Godbolt 201 at 201; 78 E.R. 122 at 122.

26 Bill of Rights, 1689 (U.K.), 1 William & Mary, sess. 1, c. 6.

27 Of course, the executive may exercise law-making power where that power is delegated to it by the legislature. Secondary legislation is not a violation of the rule that the Crown is not a source of law because the ultimate source of secondary legislative power is not the Crown but the legislature.

28 The Canadian executive has not always enjoyed a foreign affairs prerogative. Until the Statute of Westminster, the prerogative continued to be formally vested in the Imperial Crown (though Canada began to represent itself internationally to a limited extent soon after the close of the First World War).

29 As examples of such treaties, Hogg gives those “relating to defence, foreign aid, the high seas, the air, research, weather stations, diplomatic relations and many other matters.” Hogg, supra note 11 at section 11 .4.

30 The Parlement Belge, [1878–9] 4 P.D. 129 at 154.

31 Attorney General for Canada v. Attorney General for Ontario (Labour Conventions), [1937] A.C. 326 (P.C.) at 347, per Lord Atkin [hereinafter Labour Conventions]. In Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 at para. 89 [hereinafter Operation Dismantle], Wilson J. quoted this passage and described it as having “definitively established” the “law in relation to treaty-making power … for Canada and the rest of the Commonwealth.” Her Ladyship went on to observe (at para. 90) that it is not every treaty which requires implementation: “Legislation is only required if some alteration in the domestic law is needed for its implementation.”

32 Baker, infra note 133 at 861.

33 Francis, infra note 76 at 621, per Kerwin C.J.

34 Capital Cities, supra note 19 at 173. This statement is too sweeping. See the discussion in the section entitled “Unimplemented Treaties and the Treaty Pre-sumption” later in this article.

35 For instance, “les dispositions de l’ALENA ne font pas partie du droit interne applicable au Canada et, plus particulièrement, au Québec, par les tribunaux nationaux et … les dispositions mêmes de l’ALENA ne donnent pas ouverture au recours direct devant les tribunaux nationaux en cas, par hypothèse, de con-travention de certaines dispositions de l’ALENA”: Les Entreprises de rebuts Sanipan v. Procureur général du Québec, [1995] R.J.Q. 821 at 844. “According to well-established case law the rights created or conferred by an international treaty belong exclusively to the sovereign countries which are the contracting parties to it … it results from this principle that the provisions of an international treaty confer no right on an individual unless the treaty is implemented by legislation”: R v. Vincent (1993), 12 O.R. (3d) 427 (Ont. C.A.) at 437–8. “A treaty … may be in full force and effect internationally without any legislative implementation and, absent such legislative implementation, it does not form part of the domestic law of Canada”: Operation Dismantle, supra note 31 at 484. “Treaties … only become part of municipal law if they are expressly implemented by statute”: Re R. and Palacios (1984), 45 O.R. (2d) 269 at 276 (Ont. C.A.). “[N]o Canadian legislation has been passed which expressly implements the Covenant. Such enabling legislation is required in order to make the Covenant part of the domestic law of Canada”: Re Mitchell and The Queen (1983), 42 O.R. (2d) 481 (Ont. H.C.) at 492, per Linden J. “In the absence of some … legislative act the making of a treaty does not change the domestic law of Canada”: Mastini v. Bell Telephone of Canada (1971), 18 D.L.R. (3d) 215 (Ex. Ct.) at 217 [hereinafter Mastini]. “It has been settled law that a treaty binding the Government does not ipso facto, become part of our law and enforceable in the Courts”: R. v. Canada Labour Relations Board ex p. Federal Electric Corporation (1964), 44 D.L.R. (2d) 440 (Man. Q.B.) at 454. “[I]t has never, so far as I have been able to ascertain, been decided or admitted that the Crown could by its own act in agreeing to the terms of a treaty alter the law of the land or affect the private rights of individuals”: Bitterv. Secretary of State of Canada, [1944] Ex. C.R. 61 at 76–7, per Thorson, J.[T]he Crown cannot alter the existing law by entering into a contract with a foreign power”: Arrow River, supra note 18 at 510 , per Lamont J. See also the knowledgeable discussion, too long to quote here, of Roberts J. in R. v. Rebmann (1995), 122 Nfld. & P.E.I.R. 111 (Newf. S.C.T.D.) at 121–6.

36 Hunt, Murray, Using Human Rights Law in English Courts (Oxford: Hart, 1998) at 34 , citing an unpublished lecture by Lauterpacht, E., “International Law and Her Majesty’s Judges,” F.A. Mann Memorial Lecture, 1993 ; see also Hunt at 258–9.

37 J.H. Rayner Ltd v. Department of Trade and Industry, [1990] 2 A.C. 418 (H.L.) at 500, per Lord Oliver.

38 Lauterpacht, H., “Is International Law a Part of the Law of England?” (1939) Transactions of the Grotius Society 51 at 75. Lauterpacht cites three authorities: Civilian War Claimants’ Association v. The King, [1932] A.C. 14; Rustomjee v. The Queen (1876), 1 Q.B.D. 487; 2 Q.B.D. 69; and Baron de Bode v. The Queen (1848), 1 Q.B. 383, “where,” says Lauterpacht, “the question seems, in a sense, to have been left open.”

39 J.H. Rayner v. Department of Trade, [1989], Ch. 72.

40 Ibid. at 163–4.

41 Aerlinte Eireann Teoranta v. Canada (1987), 9 F.T.R. 29 at 43.

42 R. v. Bonadie (1996), 109 C.C.C. (3d) 356.

43 Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25.

44 Foreign Missions and International Organizations Act, S.C. 1991, c. 41.

45 In the term legislation, I include subordinate legislation, such as regulations promulgated by statutory authority. Where the legislature confers its law-making power upon a delegate, that power may be exercised to implement treaties (provided that such an exercise of the power is not ultra vires the grant). An example is Pan American World Airways v. The Queen, [1981] 2 S.C.R. 565, in which the appellants argued, inter alia, that the relevant treaty had been implemented in Canada by Section 6 of the Aeronautics Act, R.S.C. 1970, c. A-3 and the Air Regulations promulgated thereunder. See also Schavernoch, infra note 99, and the English case Benin v. Whimster, [1976] 1 Q.B. 297 at 308–9.

46 R. v. Canadian Labour Relations Board (1964), 44 D.L.R. (2d) 440 (Man. Q.B.) at 455, per Smith J.

47 Mastini, supra note 35 at 217.

48 This is subject to the rule, in the federal Parliament, that money bills can only be introduced upon recommendation by the governor general, that is, by ministers. Constitution Act 1867, supra note 22 at s. 54.

49 Baker, infra note 133.

50 Convention on the Rights of the Child, Can. T.S. 1992 No. 3.

51 House of Commons Debates (April 25, 1995) at 11794–800. The bill was C-254.

52 In Re Nakane and Okazake (1908), 13 B.C.R. 370 (Full Ct.).

53 British Columbia (Attorney General) v. Canada (Attorney General) (Re Vancouver Island Railway), [1994] 2 S.C.R. 41 [hereinafter Re Vancouver Island Railway].

54 Ottawa Electric Railway Co. v. Corporation of the City of Ottawa, [1945] S.C.R. 105.

55 Re Vancouver Island Railway, supra note 53 at 109.

56 Ibid. at 110. For a consideration of Iacobucci J.’s argument, see Pfizer Inc. v. Canada (T.D.), [1999] 4 F.C. 441.

57 I am relying in part on examples provided in Emanuelli, supra note 4 at 88–9.

58 Foreign Missions and International Organizations Act, supra note 44.

59 Extradition Act, R.S.C. 1985, c. E-23, now repealed and replaced by the Extradition Act, S.C. 1999, c. 18.

60 Loi sur les aspects civils de l’enlèvement international et interprovincial d’enfants, R.S.Q., c. A-23.01.

61 Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35.

62 W. (V.) v. S. (D.), [1996] 2 S.C.R. 108 at 133.

63 Schabas suggests that reference to a treaty in the preamble of a statute may be sufficient to implement the treaty. I disagree. The established rules of statutory construction accord preambles too little weight to accomplish the task of implementing a treaty in domestic law. See Schabas, William A., International Human Rights Law and the Canadian Charter, 2nd ed. (Scarborough, ON: Carswell, 1996), 22–3 (but see also 25–6).

64 The Legal Bureau of the Department of External Affairs affirmed, in a 1985 letter to the Council of Europe, that implementation may occur “by enacting the required legislation without express reference to the treaty”; reprinted in (1986) 24 C.Y.I.L. 397 at 401. Yet see the discussion of MacDonald, infra note 229, later in this article.

65 Ocean Dumping Control Act, S.C. 1974-75-76, c. 55.

66 Crown Zellerbach, infra note 235.

67 Thomson v. Thomson, [1994] 3 S.C.R. 551 [hereinafter Thomson].

68 Ibid. at 601–2.

69 Ibid. at 617–18.

70 See Jennings and Watts, supra note 4 at section 19 n. 23, and Brownlie, Ian, Principles of Public International Law, 5th ed. (Oxford: Clarendon Press, 1998) at 47.

71 See Bayefsky, Anne F., International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths, 1992) at 25 ; Macdonald, R. St. J., “International Treaty Law and the Domestic Law of Canada” (1975) 2 Dalhousie L.J. 307 at 308–10, 313–14; Read, J. E., “International Agreements” (1948) 26 Can. Bar. Rev. 520 at 528.

72 Walker v. Baird, [1892] A.C. 491 (P.C.).

73 Secretary of State of Canada v. Alien Property Custodian for the United States, [1931] S.C.R. 169 at 198.

74 Ritcher v. The King, [1943] Ex. C.R. 64 at 69.

75 Bitter v. Secretary of State for Canada, [ 1944] Ex. C.R. 61 at 76–7.

76 Francis v. The Queen, [1956] S.C.R. 618 at 621 [hereinafter Francis]. The remaining justices reached the same conclusion on other grounds.

77 Ibid. at 626. See also Rand J.’s similar observation in Attorney General for Ontario v. Scott, [1956] S.C.R. 137 at 142: “A treaty is an agreement between states, political in nature, even though it may contain provisions of a legislative character which may, by themselves or their subsequent enactment pass into law.” “By themselves” apparently refers to peace treaties.

78 “To the enactment of fiscal provisions, certainly in the case of a treaty not a peace treaty, the prerogative does not extend.” Francis, supra note 76 at 626, per Rand J.

79 Mastini, supra note 35.

80 Treaty of Peace with Italy, Can. T.S. 1947 No. 4.

81 Read, supra note 71 at 528.

82 Fawcett, J. E. S., The British Commonwealth in International Law (London: Stevens and Sons, 1963) at 58 . See also the report ofJuly 13, 1870 by the British Crown Law Officers to the Colonial Office in McNair, A. D., The Law of Treaties: British Practice and Opinions (New York: Columbia University Press, 1938) at 27–8, who advised the colonial secretary that territory could not be ceded in peacetime by prerogative alone.

83 Macdonald, R. St J., “The Relationship between Domestic Law and International Law in Canada,” in Macdonald, R. St J. et al., eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974), 88 at 120.

84 In R. v. Rebmann (1995), 122 Nfld. & P.E.I.R. 111 (Newf. S.C.T.D.) at 121–2, Roberts J. rejected the accused’s argument that a fishing treaty between Canada and France constituted a “prerogative treaty” analogous to a treaty of peace and therefore not requiring implementation. The learned judge did not deny the existence of such a category of treaty (though he quoted Read, supra note 71 at 528, that such a category is “doubtful”); rather, he held that the treaty purported to affect the rights and duties of Canadians and therefore required implementation.

85 Kerwin C.J. noted Indian and New Zealand authorities requiring implementation of treaties of cession in Francis, supra note 76 at 621.

86 Fawcett, supra note 82 at 59. This proposition is strengthened in Canadian law, I suggest, by the decision of the Supreme Court of Canada in the Re Secession of Quebec, [1998] 2 S.C.R. 217 [hereinafter Re Secession of Quebec].

87 Salus populi est suprema lex.

88 Ahmad v. ILEA, [1978] 1 Q.B. 36 (Eng. C.A.) at 48D-E.

89 Aerlinte Eireann Teoranta v. Canada (1987), 9 F.T.R. 29 (F.C.T.R.) [hereinafter Aerlinte Eireann Teoranta].

90 Aeronautics Act, R.S.C 1970, c. A–3.

91 Chicago Convention on International Civil Aviation, Can. T.S. 1944 No. 36.

92 Aerlinte Eireann Teoranta, supra note 89 at 43. It is interesting to observe, in the light of the dissent in Baker, infra note 133, that no objection was raised by Mul-doon J. to the plaintiffs’ attempt to use an unimplemented treaty to structure a statutory discretion. Counsel for the Crown included Ian Binnie Q.C., who later, as Binnie J., sided with the majority in Baker. The Crown’s solicitor of record, Frank Iacobucci Q.C. (as he then was), dissented in Baker on this point alone.

93 Bloxam v. Favre (1883), 8 P.D. 101 at 107 (Eng. C.A.) [hereinafter Bloxam].

94 I am using the term “statutory” for simplicity’s sake. The presumption of international legality applies equally to secondary legislation (Schavernoch, infra note 99) and instruments made under the royal prerogative (Post Office v. Estuary Radio, [1968] 2 Q.B. 740 (Eng. C.A.) at 757).

95 Bennion, F. A. R., Statutory Interpretation: A Code, 3rd ed. (London: Butterworths, 1997) at section 150; see also section 2.

96 Salomon v. Customs and Excise Commissioners, [1967] 2 Q.B. 116 (Eng. C.A.).

97 Garland v. British Rail Engineering, [1983] 2 A.C. 751 (H.L.). This case was in European law, but the same principles arguably apply to international law. See Hunt, supra note 36 at 17–21.

98 R. v. Secretary of State for the Home Department, ex p. Brind,, [1991] 1 A.C. 696 (H.L.) [hereinafter Brind]. Nevertheless, Brownlie considers English courts to have accepted the need to refer to relevant treaties even in the absence of ambiguity: Brownlie, supra note 70 at 48.

99 Schavernoch v. Foreign Claims Commission, [1982] 1 S.C.R. 1092 at 1098 [hereinafter Schavernoch].

100 National Corn Growers v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324 [hereinafter National Corn Growers].

101 Ibid. at 1372–3 [original emphasis].

102 See Sullivan, Ruth, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworth, 1994) at 462–3.

103 An example of this approach is Minister of National Revenue v. Seaboard Lumber (1994), 74 F.T.R. 231 (F.C.T.D.), in which Dubé J. held (at 239) that Section 2 (3) of the Softwood Lumber Products Export Charge Act, R.S.C. 1985, c. 12 (3 rd Supp.), which explicitly permitted judicial recourse to a 1986 memorandum between Canada and the United States for the purpose of “interpreting the schedule” of the act, did not preclude the application of the treaty presumption to the rest of the act.

104 Daniels v. White and the Queen, [1968] S.C.R. 517 [hereinafter Daniels].

105 Ibid. at 539.

106 Collco Dealings v. Inland Revenue Commissioner, [1962] A.C. 1 (P.C.) at 19.

107 Ibid.

108 See Bennion, supra note 95 at sections 157–8.

109 Hunt, supra note 36 at 23, citing A.V. Dicey, supra note 15 at 62–3.

110 Bloxam, supra note 93.

111 Bloxam is cited approvingly in Sullivan, supra note 102 at 330 [emphasis added].

112 ReCanada Labour Code, [1992] 2 S.C.R. 50, is cited in Sullivan, supra note 102 at 464, as an authority that holds that courts may rely on international instruments to interpret non-implementing legislation. While the case suggests a liberal approach, it does so in a roundabout way only. Sullivan’s short discussion of this matter is the only one I am able to find by a Canadian author. No mention of the scope of the treaty presumption is made in the discussion of treaties in Kindred, Hugh M. et at., International Law Chiefly as Interpreted and Applied in Canada, 5th ed. (Toronto: Emond Montgomery, 1993) at 168–95. Hogg’s chapter on treaties considers the treaty presumption only briefly, without discussing its scope. See Hogg, supra note 11 at 294, n. 21 (section 11.4 (a)). Emanuelli’s discussion implies, but does not say expressly, that the treaty presumption applies only to incorporating legislation. See Emanuelli, supra note 4 at 95–6. An earlier article by Emanuelli treats the treaty presumption in passing but does not consider its scope. Emanuelli, Claude1 and Slosar, Stanislas, “L’application et l’interpretation des traités internationaux par le juge canadien” (1978) 13 R.J.T. 69.

113 Capital Cities, supra note 19 at 173; Inter-American Radio Communications Convention, Can. T.S. 1938 No. 18; Broadcasting Act, R.S.C. 1970, c. B-11.

114 National Corn Growers, supra note 100 at 1371.

115 Re Canada Labour Code, [1992] 2 S.C.R. 50 at 90.

116 Re Mitchell and the Queen (1983), 42 O.R. (2d) 481 (Ont. H.C.) at 493.

117 Arrow River & Tributaries Slide & Boom Company v. Pigeon Timber Company, (19301) 66 O.L.R. 577 at 579.

118 Arrow River, supra note 18 at 509.

119 I find a similarity between the rhetoric of honour in this case and the language of the New Zealand Court of Appeal in Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257. Cooke P., as he then was, expressed his dissatisfaction with an argument that the minister was entitled to ignore New Zealand’s treaty commitments, saying (at 266): “That is an unattractive argument, apparently implying that New Zealand’s adherence to the international instruments has been at least party window-dressing.”

120 Sullivan, supra note 102 at 298–9.

121 Bennion, supra note 95 at section 270.

122 In Re Californian Fig Syrup Company’s Trade-Mark (1888), 40 Ch. D. 620.

123 Ibid. at 624.

124 Ibid. at 627–8.

125 Ahmad v. ILEA, [1978] Q.B. 36 (Eng. C.A.) at 48D.

126 R. v. Brown, [1994] 1 A.C. 212 (H.L.) at 256.

127 Baker, infra note 133.

128 Immigration Act, R.S.C. 1985, c. I-2. Section 1 gives the short title of the act as “Immigration Act, 1976–7.”

129 Declaration of the Rights of the Child, 20 November 1959, G.A. Res. 1386 (XIV). The status of the declaration as a non-binding, but morally forceful, resolution — as contrasted with the legally binding 1989 convention — is discussed in Van Bueren, Geraldine, The International Law on the Rights of the Child (Dordrecht: Martinus Nijhoff, 1995) at 12.

130 Bloxam, supra note 93 at 107 [emphasis added].

131 Corocraft v. Pan American Airways, [1968] 3 W.L.R. 1273 (Eng. C.A.) at 1281.

132 On the concentration of executive power in the Canadian system, see Savoie, Donald J., Governing from the Centre: The Concentration of Power in Canadian Politics (Toronto: University of Toronto Press, 1999).

133 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [hereinafter Baker].

134 Immigration Act, supra note 128.

135 Convention on the Rights of the Child, supra note 50.

136 Baker, supra note 133 at 820.

137 Ibid. at 859.

138 Baker v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 127 (F.C.A.) at 141 [hereinafter Baker F.C.].

139 Baker, supra note 133 at 860.

140 Why she did not do so is an interesting question. One reason may be that the applicability of the treaty presumption to statutory grants of discretion has been a matter of controversy in other Commonwealth jurisdictions. By not invoking the presumption explicitly, L’Heureux-Dubé J. may have hoped (in vain) to sidestep the debate. Another possible reason is the chronology problem: the act in question preceded the Convention on the Rights of the Child by over a decade.

141 R. v. Sharpe, [2001] S.C.C. 2 at para. 175, per L’Heureux-Dubé, Gonthier, and Bastarache JJ., citing Sullivan, supra note 102 at 330.

142 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town) [2001] S.C.C. 40 [hereinafter Spraytech] at para. 30 per L’Heureux-Dubé, Gonthier, Bastarache, and Arbour JJ., again citing Sullivan, supra note 102 at 330.

143 Baker, supra note 133 at 861.

144 Taggart, Michael, “Legitimate Expectation and Treaties in the High Court of Australia” (1996) 112 L.Q.R. 50 at 53.

145 Baker, supra note 133 at 865–6.

146 This is not to say that a judge, considering Ms. Baker’s claim that the decision-maker must treat the best interests of her children as a primary considera-tion, must refuse that argument merely because it has been the subject matter of an unimplemented treaty. The claim is simply that a judge must not arrive at this conclusion by giving such a degree of legal effect to the unimplemented treaty. She might arrive at this conclusion in other ways. She could, for instance, determine that the common law requires decision-makers to treat the best interests of the child as a primary consideration. In Minister for Immigration and Ethnic Affairs v. Teoh, (1995), 69 A.L.J.R. 423, three of five justices of the High Court of Australia (Mason C.J., Deane and Gaudron JJ.) advanced this proposition in obiter dicta. (A judge arriving at this conclusion must go on to conclude that this common law principle has not been displaced by the statute in question.)

147 Ashby v. Minister of Immigration, [1981] 1 N.Z.L.R. 222 (N.Z.C.A) [hereinafter Ashby].

148 Ibid. at 229.

149 Brind, supra note 98.

150 Ibid. at 748.

151 I offer this reasoning as a generalization only. It is clear that a human rights instrument may contain specific provisions requiring explicit legislative implementation. Likewise, other international instruments may contain broadly phrased commitments, such as the national treatment obligations found in many investment treaties.

152 Re Secession of Quebec, supra note 86 at 251.

153 However, Strayer J.A. in the Federal Court of Appeal raised federalism concerns. See Baker F.C., supra note 138 at 141.

154 Subject to the observations made in note 16 in this article.

155 See Jennings and Watts, supra note 4 at 84–5.

156 See generally “Numéro spécial: les politiques extérieures des états non souverains: convergences et divergences” (1994) 25(3) Études internationales; Jacomy-Millette, A., Coulombe, Françoise, and Lee, James, “Canadian Provinces and Foreign Relations,” background paper BP-97E of the Library of Parliament Research Branch, revised December 1990 ; Keating, Tom and Munton, Don, eds., The Provinces and Canadian Foreign Policy: Proceedings of a Conference, University of Alberta, Edmonton, Alberta, March 28–30, 1985 (Toronto: Canadian Institute of International Affairs, 1985); Jacomy-Millette, A., “Le rôle des provinces dans les relations internationales” (1979) 10(2) Études internationales 285 ; Johannson, P. R., “Provincial International Activities” (1978) International Journal 357.

157 International Covenant on Civil and Political Rights, infra note 244.

158 The exception is for invalid agreements, that is, those agreements tbat violate norms of jus cogens.

159 Blackburn v. Attorney-General, [1971] 1 W.L.R. 1037 (C.A.); Rustomjee v. The Queen (1876) 2 Q.B.D. 69. For the most recent Canadian discussion, see Black v. Chrétien, [2001] O.J. No. 1853.

160 See the text accompanying notes 141–2 in this article.

161 Baker, supra note 133 at 860.

162 Any suggestion that the rule in Baker applies only in respect of human rights treaties like the 1989 Convention on the Rights of the Child, and not in the case of international law more generally, has seemingly now been laid to rest by the Supreme Court of Canada’s ruling in Spraytech, supra note 142. There, L’Heureux-Dubé J. for the majority invoked the precautionary principle (which she controversially identified as a rule of customary international law) as an example of a principle of international law to which the Court may resort in construing statutes in the internationally consistent manner advocated in Baker.

163 See the text accompanying note 30 in this article.

164 Capital Cities, supra note 19.

165 Broadcasting Act, S.C. 1967–68, c. 25.

166 Capital Cities, supra note 19 at 148.

167 Inter-American Radiocommunications Convention, Can. T.S. 1938 No. 18.

168 Radio Act, R.S.C. 1970, c. R–1.

169 General Radio Regulations, SOR/63/297, s. 11.

170 Capital Cities, supra note 19 at 173.

171 Ibid. at 172–3.

172 Ibid. at 188.

173 Minister for Immigration and Ethnic Affairs v. Teoh (1994–5), 183 C.L.R. 273 (H.C.A.).

174 Convention on the Rights of the Child, supra note 50.

175 R. v. Secretary of State for the Home Department, Ex parte Ahmed, [1999] Imm. L.R. 22 (Eng. C.A.) at 36.

176 R. v. Uxbridge Magistrates’Court, Ex parte Adimi, [2000] W.L.R. 434 (Q.B.) at 456.

177 Thomas v. Baptiste, [1999] 3 W.L.R. 249 (P.C.).

178 Baker, supra note 133 at 839–40.

179 Ibid. at 841.

180 Ibid.

181 Baker F.C., supra note 138 at 147–51.

182 Ibid. at 146.

183 Labour Conventions, supra note 31.

184 Bennett’s statement was only true for the original dominions, of course. Quoted in Ewart, John S., The Independence Papers, vol. 2 (Ottawa: n.p., 1932), 601.

185 In Re the Regulation and Control of Aeronautics in Canada, [1932] A.C. 54 (P.C.) [hereinafter Re Aeronautics]. The attorney-general for Canada was represented by two King’s Counsel and a junior by the name of A.T. Denning.

186 Convention Relating to the Regulation of Aerial Navigation, U.K.T.S. 1922 No. 2 , Cmd. 1609.

187 In Re the Regulation and Control of Radio Communication in Canada, [1932] A.C. 304 (P.C.) [hereinafter Re Radio].

188 International Radiotelegraph Convention, 1928–9, 84 L.N.T.S. No. 1905.

189 Re Radio, supra note 187 at 311–2.

190 Treaty of Versailles, Can. T.S. 1919 No. 4.

191 Attorney-General for Canada v. Attorney-General for Ontario, [1936] S.C.R. 461.

192 Labour Conventions, supra note 31 at 347–8.

193 Ibid. at 351.

194 Ibid. at 348.

195 Ibid. at 351.

196 Ibid. at 351–2.

197 In Chung Chi Cheung v. The King,, [1939] A.C. 160 (P.C.) at 167–8, Lord Atkin famously declared: “It must always be remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure.” For an explanation of this somewhat deceptive statement, see van Ert, supra note 3 at ch. 3.

198 Labour Conventions, supra note 31 at 351.

199 Ibid. at 354.

200 Kennedy, W. P. M., “The British North America Act: Past and Future” (1937) 15 Can. B.R. 393 at 399.

201 An entire issue of the Canadian Bar Review was dedicated to the topic, with contributions from F.R. Scott, Vincent MacDonald, Ivor Jennings, and others. See (1937) 15 Can. B.R. 393–508.

202 Matas, R. J., “Treaty Making in Canada” (1947) 25 Can. B.R. 458 at 462, 470.

203 Szablowski, G. J., “Creation and Implementation of Treaties in Canada” (1956) 34 Can. B.R. 28.

204 McWhinney, Edward, “Canadian Federalism and the Foreign Affairs and Treaty Power. The Impact of Quebec’s ‘Quiet Revolution’” (1969) 7 C.Y.I.L. 3 at 4.

205 La Forest, Gerard V., “The Labour Conventions Case Revisited” (1974) 12 C.Y.I.L. 137 at 147.

206 Strom, Torsten H. and Finkle, Peter, “Treaty Implementation: The Canadian Game Needs Australian Rules” (1993) 25 Ottawa L.R. 39 at 47.

207 F.R. Scott, quoted in Strom and Finkle, supra note 206 at 57.

208 Rand J., quoted in Strom and Finkle, supra note 206 at 57.

209 Hogg, supra note 11 at section 11.5 (c).

210 MacDonald, Vincent, ‘The Canadian Constitution Seventy Years After’ (1937) 15 Can. B.R. 401 at 419.

211 Gotlieb, A. E., Canadian Treaty-Making (Toronto: Butterworths, 1968), 76–7; see also 83.

212 McWhinney, supra note 204 at 5.

213 Bernier, Ivan, International Legal Aspects of Federalism (London: Longman, 1973), 152–8.

214 La Forest, supra note 205 at 148.

215 Ziegel, Jacob S., “Treaty Making and Implementing Powers in Canada: the Continuing Dilemma” in Cheng, Bin and Brown, E. D., eds., Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenbeger on his 80th Birthday (London: Stevens and Sons, 1988), 339–40, 342.

216 Howse, Robert, “The Labour Conventions Doctrine in an Era of Global Interdependence: Rethinking the Constitutional Dimensions of Canada’s External Economic Relations” (1990) 16 Can. Bus. L.J. 160 at 171.

217 Rayfuse, Rosemary, “Treaty Practice: The Canadian Perspective” in Alston, Philip and Chiam, Madelaine, eds., Treaty-Making and Australia: Globalisation versus Sovereignty? (Sidney: Federation Press, 1995), 253 at 257–9.

218 Hogg, supra note 11 at s. 11.5(c).

219 Edward McWhinney defended the decision in several articles published in the 1960s. In particular, he drew Canadian attention to the fact that the Federal Constitutional Court of West Germany, faced with a problem identical to that in the Canadian case, explicitly preferred Lord Atkin’s judgment to the approach taken in American law. See Edward McWhinney, “Federal Constitutional Law and the Treaty-making Power — German-Vatican Concordat of 1933 — Decision of West German Federal Constitutional Court” (1957) 35 Can. B.R. 842; Edward McWhinney, “The Constitutional Competence within Federal Systems as to International Agreements” (1966) 3 Can. Legal Stud. 145 at 146; Edward McWhinney, supra note 204 at 5. The German decision is the Reichskonkordat case, Decision of the Federal Constitutional Court (Second Senate), March 26, 1957, (1957) 6 B. Verf. G.E. 309

W.R. Lederman, while not uncritical of the rule in Labour Conventions, sympathized with the federalism concerns that supported it and proposed a com-promise whereby Parliament would enjoy concurrent but paramount power to implement treaties of national importance. See Lederman, W. R., “Legislative Power to Implement Treaty Obligations in Canada,” in Aitchison, J. H., ed., The Political Process in Canada: Essays in Honour of R. MacGregor Dawson (Toronto: University of Toronto Press, 1963) at 171.

Robert Howse’s contributions to the Labour Conventions debate are notable for their general acceptance of the decision, subject to judicial recognition of federal jurisdiction under the peace, order, and good government and trade and commerce powers of the Constitution Act 1867. This argument is similar to the argument that I advance later in this article. In his 1990 article, Howse criticizes the “watertight compartments” approach to federalism espoused by Lord Atkin, yet demonstrates that critics of the judgment have failed to address his Lordship’s concern to maintain “the federal balance.” See Howse, supra note 216, especially at 163–71. In a later article, Howse argues that the 1992 North American Free Trade Agreement can be fully implemented by the federal Parliament. This article does not challenge Labour Conventions at all, though its subtitle suggests otherwise. See Howse, Robert, “NAFTA and the Constitution: Does Labour Conventions Really Matter Any More?” (1994) 5 Const. Forum 54.

Another supportive, or at least less critical, Anglo-Canadian commentator is Meekison, J. P., “Provinces and Foreign Affairs. Provincial Activity Adds New Dimension to Federalism. A Western View” (1977) 2 International Perspectives 8.

220 La Forest, supra note 205 at 137. La Forest, cited Morin, Jacques-YvanLa conclusion d’accords internationaux par les provinces canadiennes à la lumière du droit comparé” (1965) 3 C.Y.I.L. 127 at 137; Jacomy-Millette, A. M., L’Introduction et l’Application des Traités Internationaux au Canada (Paris: LGDJ, 1971) 75 et seq.; Dufour, André, “Fédéralisme canadien et droit international,” in Macdonald, R. St. J. et al., eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974) at 72.

221 Ziegel, supra note 215.

222 Final Text of the Consensus Report on the Constitution (Charlottetown, 26 August 1992), quoted in Struthers, Wallace W., “’Treaty Implementation … Australian Rules’: a Rejoinder” (1994) 26 Ottawa L.R. 305 at 308.

223 Attorney-General for Ontario v. Canada Temperance Foundation, [1946] A.C. 193 (P.C.) at 205 [hereinafter Canada Temperance].

224 Wright, Lord of Durley, , “Rt. Hon. Sir Lyman Poore Duff, G.C.M.G.” (1955) 33 Can. B.R. 1123 at 1125–8.

225 B.J. MacKinnon, letter to the editor, (1956) 34 Can. B.R. 115 at 117.

226 Francis, supra note 76 at 621.

227 Reference Re Ownership of Offshore Mineral Rights, [1967] S.C.R. 792.

228 Geneva Convention on the Continental Shelf, Can T.S. 1970 No. 4.

229 MacDonald v. Vapor Canada, [1977] 2 S.C.R. 134 at 168–9 [hereinafter MacDonald].

230 Rand, Ivan, “Some Aspects of Canadian Constitutionalism” (1960) 38 Can. B.R. 135 at 142.

231 MacDonald, supra note 229 at 171.

232 This “signal requirement” bears a striking resemblance to the dissenting opinion of Beetz J. concerning the emergency doctrine of the peace, order, and good government power in Re Anti-Inflation, [1976] 2 S.C.R. 373.

233 This approach to our constitution, namely that legislatures should be allowed to breach it so long as they are willing to pay the political price, is quite out of step with our post-Charter constitutional settlement, in which certain constitutional values are recognized as politically off-limits (subject, in certain cases, to the override provided in Section 33 of the Constitution Act 1982).

234 Schneiderv. The Queen, [1982] 2 S.C.R. 112 at 134–5. For trenchant criticism of this case, see A.L.C. de Mestral’s case note in (1983) 61 Can. B.R. 856.

235 R. v. Crown Zellerbach, [1988] 1 S.C.R. 401 [hereinafter Crown Zellerbach].

236 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Can. T.S. 1979 No. 36.

237 See Crown Zellerbach, supra note 235 at 416.

238 Section 91 of the Constitution Act 1867 reads in part: “It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and Good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

239 Crown Zellerbach, supra note 235 at 436, per Le Dain J.

240 Bayefsky, supra note 71 at 30.

241 MacDonald, supra note 229 at 443, per La Forest J.

242 L’Heureux-Dubé J. in Thomson, supra note 67 at 611.

243 As this article went to press, a decision of McKeown J. of the Federal Court (Trial Division) again cast doubt on Labour Conventions. In Chua v. Minister of National Revenue, [2001] 1 F.C. 608 (F.C.T.D.), the applicant sought judicial review of the minister’s decision to collect tax debts owing by the applicant to the United States government. The applicant argued, inter alia, that the law implementing the Third Protocol of the Canada-US Tax Convention 1980 was ultra vires Parliament as a matter of property and civil rights per section 92 (13) of the Constitution Act 1867. In considering this argument, McKeown J. quoted both from Lord Atkin in Labour Conventions and Laskin C.J. in MacDonald. This discussion was clearly obiter, however, for McKeown J. decided the matter by holding that the legislation in question “deals with taxation and therefore falls within the competence of the federal Parliament under section 91, class 3 as legislation in respect of taxation” (at para. 36).

244 Common preamble to the 1966 International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 and the 1966 International Covenant on Economic, Social and Cultural Rights, Can. T.S. 1976 No. 46.

245 The US 1776 Declaration of Independence described it as “self-evident” that “all men are created equal” and endowed with “certain unalienable rights.”

246 See, for instance, the 1789 French Déclaration des Droits de l’homme et du citoyen, which described the rights of man as “naturels, inaliénables et sacrés,” and the 1948 Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, which declares in Article 1 that “[a]ll human beings are born free and equal in dignity and rights” and in Article 2 that “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.”

247 1948 Universal Declaration of Human Rights, ibid.

248 For a longer discussion of the interaction of international human rights instruments and domestic human rights provisions (particularly the Charter), see van Ert, supra note 3 at chapter 5.

249 Blackstone, supra note 8 at 67.

250 That Canadian courts are free to consult unratified human rights instruments in construing the Charter is suggested by Dickson, C. J.’s observation in Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 [hereinafter Re PSERA] at 349–50, that international human rights laws “provide a relevant and persuasive source for interpretation of the provisions of the Charter, especially when they arise out of Canada’s international obligations under human rights conventions.” By “especially,” the chief justice appears to mean especially but not exclusively. In the same judgment, however, Dickson C.J. explains that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights which Canada has ratified” (at 349) [emphasis added]. The Supreme Court appears to have followed the former dictum, as Schabas demonstrates in his helpful collection of Supreme Court references to such unratified treaties as the 1969 American Convention on Human Rights, 1979, 1144 U.N.T.S 123, the 1950 European Convention on Human Rights, 1955, 213 U.N.T.S. 2889, the 1981 African Charter on Human and Peoples’ Rights, O.A.U. Document CAB/LEG/67/3, rev. 5, and certain International Law Organization conventions. See Schabas, William A., International Human Rights Law and the Canadian Charter, 2nd ed. (Scarborough: Carswell, 1996) at 284–7.

251 The leading federal human rights statutes are the Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III, and the Canada Human Rights Act, R.S.C. 1985, c. H-6. The major provincial rights-protecting instruments (excluding amendments) are as follows: Human Rights, Citizenship and Multi-culturalism Act, R.S.A. 1980, c. H-11.7 (Alberta); Individual’s Rights Protection Act, R.S.A. 1980, c. I-2 (Alberta); Civil Rights Protection Act, R.S.B.C. 1996, c. 49 (British Columbia); Human Rights Code, R.S.B.C. 1996, c. 210 (British Columbia); Human Rights Code, S.M. 1987–8, c. 45 (Manitoba); Human Rights Code, R.S.N.B. 1973, c. H-11 (New Brunswick); Human Rights Code, R.S.N. 1990, c. H-14 (Newfoundland); Human Rights Act, R.S.N.S. 1989, c. 214 (Nova Scotia); Human Rights Code, R.S.O. 1990, c. H.19 (Ontario); Human Rights Act, R.S.P.E.I. 1988, c. H-12 (Prince Edward Island); Charter of Human Rights and Freedoms, R.S.Q. c. C-12 (Québec); Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (Saskatchewan). Also of note is the Human Rights Act, R.S.Y. 1986 (Supp.), c. 11 (Yukon Territory).

252 Weiser, Irit, “Effect in Domestic Law of International Human Rights Treaties Ratified without Implementing Legislation,” in Canadian Council on International Law, The Impact of International Law on the Practice of Law in Canada: Proceedings ofthe 27th Annual Conference ofthe Canadian Council on International Law, Ottawa October 15–17, 1998 (The Hague: Kluwer Law International, 1999), 132 at 132.

253 Re PSERA, supra note 250.

254 Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 at 1056–7.

255 The Bangalore judicial colloquium of 1988 was the first of a series of annual meetings of leading Commonwealth and American judges. There are human rights statements similar to the Bangalore Principles arising from each annual meeting. See Lester, Lord, “The Challenge of Bangalore: Making Human Rights a Practical Reality” (1999) Eur. H.R.L.R. 273.

256 1988 Bangalore Principles, reproduced in Hunt, supra note 36 at 385–6.

257 Reproduced in Lord Lester, supra note 255 at 287–91.

258 See the discussion in this article under the heading “The Relevance of Chronology.”

259 Re Drummond Wren, [1945] O.R. 778 [hereinafter Re Drummond Wren].

260 Charter of the United Nations, Can. T.S. 1945 No. 7.

261 Re Drummond Wren, supra note 259 at 783.

262 Re Noble and Wolf, [1948] O.R. 579.

263 Ibid. at 594.

264 Noble and Wolfv. Alley, [1951] S.C.R. 64.

265 Bhadauriav. Seneca College (1980), 27 O.R. (2d) 142.

266 Ibid. at 147–9.

267 Seneca College v. Bhadauria, [1981] 2 S.C.R. 181 at 192.

Using Treaties in Canadian Courts

  • Gibran van Ert

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