Panel 2B: The Tangled Skein: Assessing the Supreme Court of Canada’s Use of International Law
Séance 2B: Evaluation de l’utilisation du droit international par la Cour Supreme du Canada: l’enchevetrement
November 13, 2014
Chair/Président:
Robert Currie
Schulich School of Law,
Dalhousie University
Speakers/Conférencier(e)s:
Phillip Saunders
Q.C., Schulich School of Law, Dalhousie University
Gib Van Ert
Hunter Litigation Chambers
John Currie
University of Ottawa
Rapporteur:
Meaghan Patrick
2017 JD Candidate
At the outset of the panel, a framework for the examination of the Supreme Court of Canada’s interpretation was provided by way of three overarching themes. First, that international law is important to domestic litigation; whereas historically the role of this area of law was the regulation of the relations of states, it now encompasses all human interaction. Second, that a general methodology around how to utilize international law in the domestic Canadian context does exist. Finally, that the Supreme Court has been particularly busy in recent years with interpretation of international law.
All three panelists, in going through series of cases as well as looking at in depth exemplars as demonstrative, showed the inconsistencies in the interpretation of international law in Supreme Court rulings. The importance of consistency in interpretation was highlighted specifically in the context of the rule of law; clarity in substance and sources of law as needing to be equally transparent for international as for domestic law. It was explained further that the role of the Supreme Court is particularly important in this regard, as there is no clear guidance in the Constitution and, as such, is a process of interpretation.
The timeline of relevant cases served to illustrate the ebbs and flows of Supreme Court interpretation. From Slaight Communications in 1989 where the assumption was the international law sets a baseline for protections (which the Charter of Rights and Freedoms can expand upon), to the 2007 Hape ruling where international legal obligations were seen as ‘quasi-hard’, where there was a mandate of ‘should’ in seeking to ensure compliance with binding obligations, it was made clear that pinning down norms is not an easy task.
The general consensus of the panel was that there should be a consistent standard for the utilization and interpretation of international law in Canada and that the Supreme Court can improve upon this consistency and predictability in interpretation over time.