What’s IHRL Got to Do with It?

International Human Rights Law & the Charter of Rights and Freedoms

By Jena McGill

Early in the life of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada recognized international human rights law (IHRL) – including “declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms” – as a “relevant and persuasive” source for interpreting the rights and freedoms guaranteed by the Charter.[1]  Chief Justice Dickson concluded, “[t]he Charter should be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”[2]  More recently, the Supreme Court has expanded the scope of relevant IHRL sources beyond Canada’s formal commitments, confirming that the Charter should be interpreted in light of “the current state of international thought on human rights” more generally.[3]

The use of IHRL, broadly defined, is now a mainstay in the interpretation of Charter rights; indeed, the general principle that that the Charter should be interpreted, where possible, in a manner consistent with IHRL is widely accepted.[4]  Nevertheless, using IHRL to breathe life into Charter guarantees has proven easier said than done.

For starters, judicial reliance on IHRL in Charter interpretation is an entirely discretionary exercise.  In some circumstances, a court may refuse to consider IHRL sources, even where relevant documents or principles exist.  For example, in Gosselin v Quebec, the Supreme Court was faced with the question of whether Quebec’s provision of very low levels of social assistance to young adults, insufficient to meet their basic needs, infringed the section 7 Charter right to “security of the person.”[5]  In interpreting “security of the person”, the majority of the Court declined to rely on the International Covenant of Economic, Social and Cultural Rights, and in particular its right to an “adequate standard of living…including adequate food, clothing and housing”. [6]  Why the majority of the Court found it unnecessary to address this clearly relevant IHRL source in interpreting section 7 is left unexplained.[7]  When will IHRL be “relevant and persuasive” to the interpretation of Charter rights? What criteria should a court use to determine relevancy and persuasiveness in this context?

Even where IHRL is found to be “relevant and persuasive” to interpreting a Charter guarantee, it is unclear exactly how a court should make use of that source in a principled manner.  This difficulty comes into sharp relief in circumstances of competing IHRL sources or in situations where the scope of an IHRL right is narrower or more expansive than a Charter right.

In Canadian Foundation for Children, Youth and the Law v Canada, the Supreme Court had to assess whether a Criminal Code defence to assault related to the corporal punishment infringed children’s “security of the person” rights guaranteed by section 7 of the Charter.[8]  The Court divided on which IHRL sources were most compelling.  The majority relied on the fact that the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child (CRC)[9] do not “explicitly require state parties to ban all corporal punishment of children” to conclude that the corporal punishment defence was not a violation of section 7.[10] Justice Arbour, in dissent, was persuaded by the Concluding Recommendations of the Committee on the Rights of the Child, which stated that parties to the CRC ought to prohibit physical punishment of children.[11]  Should the language of formal treaties “trump” the opinions of monitoring bodies in Charter interpretation?  How should a court resolve inconsistencies between treaty language and treaty interpretation?  Does it matter that monitoring bodies like the Committee on the Rights of the Child are political, not legal entities?

To be sure, the realization of Chief Justice Dickson’s presumption of consistency between IHRL and the Charter is a highly complicated exercise, requiring courts to engage important considerations including the compatibility between IHRL and Canada’s unique constitutional order and the inherently political, often contentious, nature of the international human rights system and the various IHRL agreements born of that context.

What’s clear, however, is that the current approach to using IHRL in interpreting Charter rights leaves too many questions unanswered.  While IHRL has been an important, if inconsistently utilized, interpretive aid in Charter jurisprudence to date, the time has come for the development of a more principled, systematic approach to engaging IHRL in the Charter context.  Only then might we realize the full potential that lies at the intersection of IHRL and the Charter.

[1] Reference re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 at para 57 (Dickson CJ, dissenting).  International law is also relevant to assessing limits on Charter rights under section 1: Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 at 1056-57.

[2] Public Service, ibid.  More recently, see Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC 47.

[3] Ontario (Attorney-General) v Fraser, 2011 SCC 20 at para 92, citing Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 at para 78.

[4] Slaight Communications at 1056.

[5] Gosselin v Quebec (Attorney General), 2002 SCC 84.

[6] International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 11.

[7] Gosselin at para 93.

[8] Canadian Foundation for Children, Youth and the Law v Canada (Attorney-General), 2004 SCC 4.

[9] International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[10] Canadian Foundation for Children at para 33.

[11] Canadian Foundation for Children at para 187-88 (Arbour J, dissenting).

By |March 12th, 2015|Blog|

2014 Year in Review: Munyaneza – Canada’s International Criminal Justice System Comes of Age

By Juda Strawczynski

The Quebec Court of Appeal’s decision in Munyaneza was one of the most important cases to be appealed to the Supreme Court of Canada in 2014.  Désiré Munyaneza appealed his conviction and life sentence for seven separate counts under Canada’s Crimes Against Humanity and War Crimes Act, S.C. 2000, c.24 (“Act”).  The convictions arose out of his participation in the Rwandan genocide of 1994 and consisted of:

– two counts of genocide, one by murder and the other by causing serious bodily or mental harm;
– two counts of crimes against humanity, one by intentional killings and the other by acts of sexual violence;
– three counts of war crimes, the first by murders, the second by acts of sexual violence, and the third by pillage (QCCA at para. 7)

However, unlike the other top cases of 2014, in Munyaneza the Supreme Court denied leave to appeal. As reasons for denying leave are not provided by the Supreme Court, it only took Justices LeBel, Karakatsanis, and Gascon one sentence to provide closure for Munyaneza’s victims.

The Supreme Court of Canada’s decision to deny leave is itself a major victory for international criminal justice. It demonstrates that Canada’s approach to international justice has reached a level of maturity: jurisdictional issues that typically complicate prosecutions of crimes against humanity and war crimes no longer necessitate a full hearing at the Supreme Court. Rather, lower courts are entrusted with the hearing of prosecutions under the Act, despite their jurisdictional and factual complexity.  The Munyaneza trial, for example, took 8 months, the Court heard from 66 witnesses, and 200 exhibits were filed.

Canada’s trial courts also appear to be suited to review, interpret, and apply international criminal law.  In the Munyaneza trial decision, Justice Denis considered the Rome Statute, as well as case law from the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Court (ICC).  His decision demonstrates that Canadian courts at all levels are able to interpret,and participate in the transnational development of international criminal law, and thereby protect universal human rights.

The Supreme Court of Canada’s decision to deny leave to appeal sends the clear message that Canada has the proper authority under both national and international law to prosecute war crimes and crimes against humanity. Indeed, at the Quebec Court of Appeal, Munyaneza argued that certain charges against him could not be prosecuted in Canada because they were either not war crimes under international law at the time of the Rwandan genocide, or because this would give the Act retroactive effect contrary to the Charter of Rights and Freedoms. CLAIHR and the Canadian Centre for International Justice intervened at the Quebec Court of Appeal to respond to these arguments. The Quebec Court of Appeal ultimately rejected Munyaneza’s arguments.

The precedent-setting Munyaneza case stands for the principle that Canada will not allow the violation of human rights, wherever they have taken place, and even if Canada must use its own court system to see that justice is served.



By |February 20th, 2015|Blog|