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Applying International Law in Canadian Courts: A Pocket Guide for the Perplexed

By Azeezah Kanji

When and how is public international law relevant in Canadian courts, if it is ever relevant at all? The nutshell-portable answer is: it’s complicated! – but international law may be relevant in a variety of different contexts, and in a variety of different ways.

Broadly speaking, there are two ways of describing the relationship between domestic law and international law: “monist” and “dualist.” From a monist perspective, international law and domestic law are one unified system: international laws are automatically part of domestic law. Conversely, from a dualist perspective, international law and domestic law are two separate legal systems: while international laws may be valid internationally, they cannot be applied domestically unless they are first given force of law in domestic legislation.

Here’s another, more familiar (or should I say – familial), way of thinking about this. In monism, international law and domestic law are like blood relatives. They are automatically members of the same clan/system – even if international law is sometimes treated like the slightly eccentric distant cousin whose positions often fail to carry the day in family arguments. In dualism, however, domestic and international law are more like potential in-laws. Some legally transformative act must be performed before the two become one: marriage in the one case, domestic implementing legislation in the other.

Monism and dualism are not mutually exclusive. A domestic legal system may treat some sources of international law according to the monist model, and others according to the dualist one. English common law has usually taken a monist approach towards applying customary international law.[1] That is, international customs are generally considered to be part of the law of the land, and may be invoked in courts. In its 2007 decision in R v Hape, the Supreme Court of Canada confirmed that prohibitive rules of customary international law are part of domestic law, so long as they do not conflict with existing Canadian legislation.[2]

Treaties, in contrast, have traditionally been regarded through the lens of dualism.[3] As the Supreme Court of Canada held in the well-known Labour Conventions case, treaties signed by the state do not automatically become law in Canada: Canadian lawmakers must first domestically implement the treaty in question.[4]

The field is somewhat muddied, however, by the Canadian jurisprudence on application of international law. International law scholars Jutta Brunnee and Stephen Toope argue that “there appears to be a trend towards treating all of international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner – as relevant and perhaps persuasive, but not as determinative or, dare we say, obligatory.”[5] In other words, both types of international law – custom and treaty – seem to be “kind of, but not totally” applicable.

While treaties are not domestic law in and of themselves, judges may apply a “presumption of conformity” between domestic and international law. This means that legislation may be read so that it accords with Canada’s international treaty obligations (as far as the text of the law allows, and in the absence of express legislative intent to violate international law).[6] In Baker v Canada, Justice L’Heureux-Dube wrote for the majority: “International treaties and conventions are not part of Canadian law unless they have been implemented by statute . . . Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.”[7]

International law, particularly international human rights law, is also important in interpreting the Charter of Rights and Freedoms. In Slaight Communications Inc v Davidson, the Supreme Court held that the Charter should “generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”[8] Quite simply, Charter rights should be interpreted to at least meet, if not exceed, analogous international human rights standards. In Slaight, the Court also found that Canada’s international human rights commitments are relevant in interpreting section 1 of the Charter (to determine permissible limitations on Charter rights and freedoms).

On the other hand, the Supreme Court of Canada diminished the force of international law in Suresh v Canada, which concerned deportation to the possibility of torture. The prohibition of torture is the highest level of international norm possible – “jus cogens” (also known as “peremptory”) – meaning that states must never conduct, facilitate, or condone torture. The rule against torture is absolute and universal: no exceptions are permitted. However, in Suresh the Supreme Court did not regard the international law on torture as determinative or obligatory in its own right, but merely used it as a tool for interpreting Canadian law – and found that departure from the international norm might be permissible in exceptional circumstances.[9]

To sum up: while in theory customary international law is applied according to monism, and treaties according to dualism, the situation on the ground is (unsurprisingly) somewhat messier and less consistent.

Footnotes

[1] Ronald St. J. MacDonald, “International Treaty Law and the Domestic Law of Canada” (1975); Hugh M Kindred and Phillip M Saunders et al, International Law Chiefly as Interpreted and Applied in Canada (Edward Montgomery Publications Limited, 2006) at 187.
[2] R v Hape [2007] 2 SCR 292 at para 39.
[3] Canada (AG) v. Ontario (AG) [Labour Conventions].
[4] This may be accomplished in one of several different ways: through enactment of new legislation; through amendment of old legislation to bring it into line with international law; or through retention of pre-existing laws which fulfill the state’s obligations under the treaty.
[5] Jutta Brunnee and Stephen J Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” Canadian Yearbook of International Law (Volume 40) (2002) at 5.
[6] See, for example: Daniels v White [1968] SCR 517; National Corn Growers Assn v Canada (Import Tribunal) [1990] 2 SCR 1324; Ordon Estate v. Grail, [1998] 3 SCR 437; Canadian Foundation for Children, Youth and the Law v AG Can [2004] 1 SCR 76.
[7] Baker v Canada [1999] 2 SCR 817 at paras 69-70.
[8] Slaight Communications Inc. v. Davidson [1989] 1 SCR 1038. The Supreme Court’s decision in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia [2007] 2 SCR 391 similarly sets international human rights law as the “floor” of Charter protection (at para 70). However, the Court seemed to adopt a slightly different approach in Hape, released only the day before the Health Services judgement: “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” (at para 56). As Professor Craig Forcese points out, “under the [ . . . ] 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.” Craig Forcese, “Supreme Court of Canada Clouds Rules Governing Role of Customary International Law in Domestic Law and Of International Law in Interpreting Canadian Charter,” 1 February 2009, online:.
[9] Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at para 60.

By |January 1st, 2015|Blog|

2014 Year in Review: Judicial Independence in Canada

By Logan St. John-Smith

Canada’s justice system was briefly in the international spotlight in 2014, when in a rare move, the International Commission of Jurists (ICJ) publicly criticised the Canadian Government for interfering with the independence of the judiciary.

This came after a group of Canadian legal academics and lawyers asked the ICJ to investigate statements made by the Prime Minister and Minister of Justice regarding the conduct of the Chief Justice surrounding the appointment of Marc Nadon to the Supreme Court of Canada.

These statements, issued shortly after the Supreme Court ruled that Justice Nadon was ineligible for appointment to the Supreme Court of Canada, accused the Chief Justice of acting inappropriately by attempting to contact the Prime Minister regarding pending appointments to the court in the spring of 2013.

This public criticism of the Chief Justice led the Federation of Law Societies of Canada to issue a public statement expressing its concern that these comments risked diminishing public confidence in Canada’s democratic institutions.

In a public letter dated July 23, the ICJ called on the Prime Minister and the Minister of Justice to apologize, claiming that their comments “amounted to an encroachment upon the independence of the judiciary and the integrity of the Chief Justice”. The ICJ also found that nothing in the Chief Justice’s actions had violated international rules.

Specifically, the ICJ expressed its view that Chief Justice McLachlin’s attempt to alert the Minister of Justice to a potential legal issue arising from the nomination of a Justice of the Federal Court did not constitute a breach of the Bangalore Principles.

The Bangalore Principles are an international code of ethical conduct for members of the judiciary that promote the independence and integrity of the judicial system.

This kind of international criticism is rarely directed at Canada, and serves as a cautious reminder of the importance of judicial independence, even in a developed democracy like ours.

By |December 15th, 2014|Blog|

Welcome to the CLAIHR Blog

Welcome to the just launched Canadian Lawyers for International Human Rights (CLAIHR) Blog. You will find the CLAIHR blog the place to go for postings on a range of topics on international human rights, including:

  • “International Human Rights Law 101” which provides a general introduction to various IHR legal topics;
  • Practice tips for lawyers involved or seeking to become more involved in advancing international human rights;
  • Case comments and other timely, topical commentary; and
  • Think pieces on Canadian IHR issues.

CLAIHR members and supporters, including lawyers, law professors and others will be contributing to the blog.

If you have ideas to pass along, or are interested in guest blogging, please get involved by emailing blogeditor@claihr.ca.

So bookmark CLAIHR, RSS us, follow us, share us, Likes us, Pin us, or just mention the new CLAIHR blog to a friend.

We are also excited that the CLAIHR Blog continues our tradition of engaging with Canadian law students who share our passion for promoting international human rights thanks to a partnership with Pro Bono Students Canada. A dedicated team of volunteer PBSC law students have helped shape the CLAIHR Blog in a myriad of ways; we are grateful to both PBSC and all of our volunteers for their contagious energy and support.

By |November 20th, 2014|Blog|

Pro Bono, Professionalism, and the International Human Rights Movement

Thursday, November 27, 2014

Acting as pro bono counsel in international human rights cases. This panel features:

  • John Norris, Criminal Lawyer, Educator and Advocate
  • John Terry, Torys LLP
  • Emma Phillips, Sack Goldblatt Mitchell LLP
  • Daniel Sheppard, Sack Goldblatt Mitchell LLP
  • with CLAIHR’s President, Juda Strawczynski acting as moderator

Thursday, November 27, 2014
12:00-2:00 pm, lunch provided
Offices of Osler, Hoskin & Harcourt LLP
$50 (with annual membership fee); $25 for current members and all students
Register at https://claihr.ca/wordpress/support-us/

This program contains 1.0 professionalism hour
and 0.5 substantive hours

By |November 20th, 2014|Past Events|

“Evening with Dallaire” a Huge Success

On September 16, 2013, CLAIHR, in partnership with Child Soldiers Initiative and The Law Society of Upper Canada, hosted LGen Roméo Dallaire (Ret) and MP Paul Dewar for a panel discussion on child soldiers, conflict minerals, and Canadian responses.

Thank you to everyone who made this event a success, including Shangri-La Hotel Toronto for providing our guests’ accommodations. In case you missed the action, you’ll be pleased to know that we live-Tweeted the event, the summary for which is available here.

Happy reading!

By |September 18th, 2013|Uncategorized|

Child Soldiers, Conflict Minerals and Canadian Responses

September 16, 2013–CLAIHR, in partnership with Child Soldiers Initiative and The Law Society of Upper Canada,

Panelists: Lt Gen Roméo Dallaire (Ret) and MP Paul Dewar
Moderator: Paul Schabas, Bencher, Chair of the Law Society of Upper Canada’s Human Rights Monitoring Group

The summary for event is available here.

Watch the event:

By |September 16th, 2013|Past Events|

An evening with L.Gen. Roméo Dalliare (Ret.)

L.Gen. Roméo Dallaire (Ret.) will share insights on the plight of child soldiers in conflict zones during a Law Society panel discussion with NDP Foreign Affairs Critic Paul Dewar.

Bencher Paul Schabas, chair of Law Society of Upper Canada’s Human Rights Monitoring Group will moderate.

The event is presented by CLAIHR in association with the Roméo Dallaire Child Soldiers Initiative (CSI)

Date: Monday, September 16, 2013
Time: Discussion will start at 5:30PM; Guests are invited to a post-event reception at 7PM
Location: Osgoode Hall (130 Queen St W, Toronto) in the Lamont Room
RSVP: equityevents@lsuc.on.ca or (416) 947-3413/(800) 668-7380 ext. 3413

Thank you to everyone who has supported this event, including the generous sponsorship of Shangri-La Hotels Toronto. The event is officially SOLD OUT now. Please follow us on Twitter (@CLAIHR) and use the event hashtag #EveWithDallaire to join the discussion.

This event is a free public program. Lawyers in attendance may count this program as 1.5 Substantive Hours of their Continuing Professional Development requirement.

**Photographs and video taken at this event may be used in Law Society of Upper Canada, CLAIHR and CSI publications.

By |August 12th, 2013|Uncategorized|

Why do our global institutions fail to prevent and protect against mass atrocities?

May 10, 2013 – CLAIHR in partnership with Canadian International Council and Gowlings LLP

Topic: Why do our global institutions fail to prevent and protect against mass atrocities?

Guest speaker – Dr Mukesh Kapila, Former Head of UN in Sudan

By |May 20th, 2013|Past Events|

Dr Kapila, Former Head of UN in Sudan, to speak at Toronto event May 10th

CLAIHR is proud to partner with Canadian International Council and Gowlings LLP to present a free keynote event featuring Dr Mukesh Kapila OBE, former Head of the United Nations in Sudan. In the talk, entitled Why do our global institutions fail to prevent & protect against mass atrocities?, Dr Kapila will reflect on his experiences in Darfur when he attempted to alert the world to the unfolding genocide and will consider the current crises in Sudan today. He will draw upon his extensive international experience working within the UK government, the UN and Red Cross movement which also took him to Rwanda and Bosnia. Dr Kapila will highlight the importance of individual accountability as well as collective responsibility in the prevention of genocide and other crimes against humanity in Sudan and around the world and will pose lessons to be drawn for future practice.

Date: Friday, May 10, 2013
Time: Noon (attendee sign-in will begin at 11:45AM)
Venue: Gowlings LLP, First Canadian Place, 100 King St W, 16th Floor

Registration Instructions:
Participants *must* pre-register. No walk-ins allowed. Deadline to pre-register is 5PM, Thursday, May 9th.

By email: toronto [at] opencanada [dot] org
By phone: 416-590-0630
Online: http://cictoronto10may2013.eventbrite.ca/

Additional Details:
Light refreshments will be served after the talk.
Program is eligible for 1.5 hours of substantive CPD with LSUC.

Click here to download event flyer.

Dr Kapila’s New Book, “Against a Tide of Evil”
Dr Kapila is in Toronto as part of a cross-Canada tour to promote his new memoir about his efforts to bring attention to the mass atrocities in Darfur while he was UN Chief in Sudan. The book was launched in Geneva at the start of May, to coincide with the 10 year anniversary of the horrific events in Darfur. A portion of the proceeds from the books sold through the UK non-profit organization Aegis Trust will go towards preventing future mass atrocities.

MK Geneva press release to read the news release by Aegis Trust on the book and its launch in Geneva.

By |April 28th, 2013|Uncategorized|

Intervener Arguments Made in Munyaneza Appeal

On Monday, April 22nd, 2013, CLAIHR joined Canadian Centre for International Justice to present arguments as an intervener in the Muyaneza appeal. The arguments centered around whether the Crimes Against Humanity Act can be applied retrospectively to the 1994 Rwandan genocide since the Act was not made into law in Canada until 2000. CCIJ and CLAIHR submitted the argument that the intent of the Act was to make accountable those who perpetrated such crimes in the past, so long as international laws at the time would have considered their acts to be criminal.

Click here to read the full intervener factum. French and English summaries of the trial and appeal are available by clicking here.

By |April 25th, 2013|Our Work|