International Law in the Jurisprudence of the McLachlin Court
This chapter reviews significant developments in the McLachlin Court’s understanding of the relationship between international and Canadian law in four distinct areas, two in each of the non-constitutional and constitutional contexts. First, the Court’s substantial extension of the scope of the interpretive presumption of statutory conformity with Canada’s international legal obligations will be discussed. Potential rigidification of that presumption in some of the Court’s recent jurisprudence will also be considered. Second, the Court’s first attempt to clarify the relationship between customary international law and Canadian common law since the issue was last explicitly considered by the Court in 1943 will be reviewed and critiqued. Third, the perplexing variability in the Court’s approach to using international law in interpreting the Canadian Charter of Rights and Freedoms will be assessed. Fourth, the possible emergence in the Court’s jurisprudence of a doctrine of adoption of international legal principles as unwritten principles of the Canadian Constitution will be examined. Finally, some concluding thoughts on future challenges facing the Court in further defining the relationship between international and Canadian law will be offered.
It should be noted that this article does not focus on those of the McLachlin Court’s cases that merely mention or make use of international law in various ways. Rather, the focus is on those cases that explicitly discuss rules governing the reception or application of international law in Canadian law. Nor does this paper analyze the Court’s understanding of the substantive content of the various rules and doctrines of international law upon which it relies in many of its judgments. In other words, the purpose of this article is to examine the normative framework developed by the Court for the use of international law in domestic cases, rather than to conduct a behavioural study of the Court’s reliance on or understanding of international law. As we shall see, even so confined, consideration of the Court’s approach to international law is a rich and multi-faceted topic.
John H Currie
John H. Currie is a professor at the Faculty of Law, University of Ottawa (Common Law Section).