Cross-referencing: Chapter 2(B)(9), “Interaction of Treaty Law with Domestic Canadian Law”, pp. 117-120; Chapter 2(C)(3), “Interaction of Customary International Law with Domestic Canadian Law”, p. 144
In its June 7, 2007, decision in R. v. Hape, a majority in the Supreme Court of Canada considered at length the relationship between customary international law and domestic Canadian law, as well as the role of international law in interpreting the Canadian Charter of Rights and Freedoms (“Charter”).
On the first of these, the majority, after reviewing the presumptive adoptionist stance taken by the Canadian courts to customary international law to date, wrote (at para. 39):
[F]ollowing the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.
While at first blush the sentence emphasized in this passage seems unequivocally to confirm the status of customary international law as Canadian common law, the remainder of the passage seems to suggest quite different rules. Indeed, this passage could be read as asserting as many as five different rules on the issue, some monist and some dualist in nature, as follows:
1. Customary international law is automatically part of the common law of Canada in the absence of conflicting legislation.
2. Customary international law should be incorporated into the common law of Canada in the absence of conflicting legislation.
3. Customary international law may be incorporated into the common law of Canada in the absence of conflicting legislation.
4. Customary international law may aid in the development of the common law of Canada.
5. Customary international law may aid in the interpretation of the common law of Canada.
The uncertainty thus introduced as to the status of customary international law in domestic Canadian law is not elsewhere clarified in Hape. Indeed this uncertainty is exacerbated by the fact that the majority’s discussion of the relationship between customary international law and domestic common law was likely obiter dicta, in a judgment turning solely on interpretation of the Charter.
With respect to the role of international law in interpreting the Charter, Hape also generates uncertainty by introducing an unprecedented rule. The majority writes (at para. 56): “In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a conclusion.”
On its face, this rule would seem to require that Canadian courts ensure that their interpretation of the Charter aligns with all of Canada’s international legal obligations, whether related to international human rights or not. As such, it departs radically from the Court’s prior jurisprudence on the role of international law in Charter interpretation. Neither Slaight Communications Inc. v. Davidson nor any of its successors asserted a presumption of Charter conformity with Canada’s international legal obligations. At their strongest, the Court’s prior judgments only ever suggested that international law established a floor of human rights protection below which Charter interpretation should not, “generally” and absent “exceptional circumstances”, drop — a floor, moreover, that was only to be established by reference to Canada’s international human rights obligations (see Slaight Communications at para. 23). By contrast, under the new rule articulated in Hape, Charter protections would not simply benefit from a minimum content presumption, but would also be subject to any ‘ceiling’ or ‘walls’ implied by any of Canada’s international legal obligations. Similarly, any interpretive ‘floor’ previously indicated by Canada’s international human rights obligations could conceivably be lowered by reference to Canada’s international obligations of a non-human rights character.
Moreover, some of the Court’s prior judgments eschewed any binding role for international law in interpreting the Charter, relegating international law to the status of mere context that “may inform” such interpretation, but “not as controlling in itself” (see for example Suresh v. Canada at paras. 46 and 60). In contrast, the Hape rule appears drastically to narrow any judicial discretion to adopt a Charter interpretation that does not conform to any of Canada’s international legal obligations: Only where the express wording of the relevant Charter provision is incapable of supporting an interpretation that complies with international is another interpretation permissible.
Unfortunately, the majority in Hape does not advert to these fundamental departures from its prior jurisprudence on the relationship between international law and Charter interpretation, leaving the basis for and scope of application of the new rule in some doubt. Moreover, its status as the rule now governing the use of international law in Charter interpretation has been cast into further doubt by the Court’s judgment in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, released the day after Hape. In deciding whether the Charter’s guarantee of freedom of association includes a right to collective bargaining, the majority in Health Services simultaneously reasserted Slaight Communications’ minimum content presumption (albeit without its qualifications), as well as the far more equivocal Suresh approach, all the while failing to advert to Hape’s novel presumption of conformity at all.
It therefore seems that Hape has not in fact resolved the Court’s ongoing struggle to define, with clarity, the appropriate role for Canada’s international legal obligations in interpreting the Charter’s provisions. Rather, it seems merely to have added yet another to the range of approaches from which the Court picks and chooses from case to case.