The Domestic Application of International Law in Canada

Abstract

Abstract This chapter describes how public international legal norms are received into Canadian domestic law. The rules governing international law’s reception in Canada originate in British constitutionalism and English common law. But the Supreme Court of Canada has developed this tradition by insisting that international law is part of the context in which Canada’s domestic laws are enacted. This has led to a notable openness to internationally informed legal arguments and a strong commitment to the interpretive presumption that domestic law conforms with the state’s international obligations. While treaties still require legislative implementation to take direct effect in domestic law, they can have indirect interpretive effects even without legislation. Customary international law does not require legislation; it is automatically incorporated by the common law. Even Canada’s leading constitutional instrument, the Charter of Rights and Freedoms, seems now to be interpreted according to a presumption that it at least meets the minimum requirements of international human rights law. Traditional judicial avoidance techniques such as the act of state and political question doctrines are notably absent in Canadian reception jurisprudence. Courts still find ways to disregard international law in particular cases, but the trajectory is toward using it.