Canadian Journal of Human Rights
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1.2.2. The Baker case undermines the presumption of conformity rule
Although it has been more than ten years ago, the decision of the Supreme Court of Canada issued in the
case Baker v. Canada remains one of the most commented decisions by Canadian scholars. Baker was
one of best occasions for the Supreme Court of Canada to discuss in an explicit manner the real
significance of unincorporated treaties in Canadian law. In this case, the Supreme Court had to examine
an appeal seeking to turn down an early immigration officer’s decision related to a deportation order.
Given the condition of the appellant who had Canadian-born dependent children, she grounded her
argument on the best interests of the children, a principle enshrined in the Convention on the Rights of
the Child.1 However, because of the fact that the Convention at stake had not been directly incorporated
through Canadian domestic legislation, though ratified by Canada and mostly implemented in federal
and provincial law, the federal court of appeal refused to give effect to the appellants demand, arguing
that this would interfere with the separation of powers between the Executive branch and the Legislative
branch of government. At the beginning, the Supreme Court acknowledged the long existing principle
that unincorporated treaties have no direct application in Canadian law. However, it added that:
[The] values reflected in international human rights law may help inform the contextual
approach to statutory interpretation and judicial review. […] The legislature is presumed to
respect the values and principles enshrined in international law, both customary and
conventional. These constitute a part of the legal context in which legislation is enacted and
read. In so far as possible, therefore, interpretations that reflect these values and principles
are preferred. […] The values and principles of the Convention recognize the importance of
being attentive to the rights and best interests of children when decisions are made that relate
to and affect their future.2
Rather then mentioning the conformity of domestic law with international law, the majority of judges in
Baker referred to the respect of “the values and principles” enshrined in international law during the
interpretation process of domestic law. Although some scholars interpreted this approach as the
equivalent to the application of the presumption of conformity,3 others consider the reasoning as a
regrettable underestimation of the doctrine of the presumption of conformity. In reality, the Court has
unnecessarily distinguished between provision and values instead of having had recourse to both. By
drawing that distinction, the Supreme Court “implied that Canada’s international obligations, as
expressed in the provisions of the unincorporated Convention, are not covered by the presumption of
statutory conformity”.4 Furthermore, rather than holding that to the extent possible, statutes should be
construed in conformity with international legal obligations of Canada, the Court merely ruled that
international law “may help inform”, something less then what is required by the Doctrine of the
Presumption of Conformity. In short, the Supreme Court treated the Convention on the Rights of the
Child like a non binding international norm.5
Convention on the Rights of the Child, Can TS 1992 No 3, art 3 (1): “[i]n all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration”.
2
Baker, supra note 19 at paras 70-71.
3
De Mestral & Fox-Decent, supra note 7 at 598.
4
Brunnee & Toope, supra note Error! Bookmark not defined. at 371.
5
Ibid at 371-373.
1
2
Introduction
As a sovereign State endowed with international legal personality, Canada is free to enter into treaties
with one or more states or international organizations. Like many other Commonwealth states, the
treaty-making decision remains with the Executive branch of the government in its capacity as
the unique holder of authority to
represent the State in the international
sphere.1 According to a long-standing constitutional tradition in Canada, there is no legal obligation on
the Executive branch of government to secure the consent or approval of Parliament prior to treaty
ratification. It must be noted that on a domestic level, the Parliament is the ultimate law-making
authority in a Westminster-style democracy.2
Canada’s dualist legal system refuses to recognize international instruments being a direct source of
domestic law unless they are incorporated by an act of Parliament. 3 Accordingly, international treaties
which necessitate changes in Canadian law must be followed by the enactment of a statute in order to
produce effects in domestic legal order.4
While the Crown has the power to make treaties with foreign states, in the absence of Parliamentary
consent, these treaties remain without effect in domestic law as the legislative prerogative of the Crown
was abolished a long time ago.5
The incorporation of international treaties provides the Parliament with domestic authority, ensuring that
all actions and decisions of domestic institutions and officials are to be in compliance with those
international treaties.6 Effectively, once a treaty becomes incorporated, it is then granted domestic
binding force. The incorporation of treaties within domestic law is carried out according to two methods:
1
However, some exceptions exist. For example, in the United States, the executive branch of government shares the treatymaking power with the Senate.
2
See Joanna Harrington, “Redressing the Democratic Deficit in Treaty Law Making: (Re-) Establishing a Role for
Parliament” (2005) 50 McGill L.J. 465 at 468. Nevertheless, since 2008, the government has adopted a Policy of tabling
signed treaties in Parliament. The purpose of that policy is “to ensure that all instruments governed by public international
law, between Canada and other States or international organizations, are tabled in the House of Commons following their
signature or adoption by other procedure and prior to Canada formally notifying that it is bound by the Instrument”. See
Canada, Foreign Affairs and International Trade, Policy on Tabling treaties in Parliament, January 2008, Government of
Canada <http://www.treaty-accord.gc.ca/Tabling.asp>. This policy of treaty tabling is by no means an innovation in Canada:
it existed from 1926 to 1966 when, on the initiative of former Prime Minister William Mackenzie King, it was the practice in
Canada for all important treaties to be submitted to Parliament for approval prior to ratification. See Joanna Harrington,
“Redressing the Democratic Deficit in Treaty Law Making: (Re-) Establishing a Role for Parliament” (2005) 50 McGill L.J.
465 at 476; Peter W. Hogg, Constitutional Law of Canada, 5th ed. supplemented (Scarborough, Ont.: Thomson/Carswell,
2007) at 11-5.
3
Capital Cities Communications v. CRTC, [1978] 2 S.C.R. 141. See also Peter W. Hogg, Constitutional Law of Canada, 5th
ed. supplemented, (Scarborough, Ont.: Thomson/Carswell, 2007) at 11-5; Gib van Ert, Using International Law in Canadian
Courts, 2d ed. (Toronto: Irwin Law, 2008) at 229.
4
Peter W. Hogg, Constitutional Law of Canada, 5th ed. supplemented, (Scarborough, Ont.: Thomson/Carswell, 2007) at 115.
5
Gib van Ert, Using International Law in Canadian Courts, 2nd ed. (Toronto: Irwin Law, 2008) at 231.
6
Denis Galligan & Deborah Sandler, “Implementing Human Rights” in Simon Halliday & Patrick Schmidt, eds., Human
Rights Brought Home : Socio-Legal Studies of Human Rights in the National Context (Oxford/Portland: Hart Pub., 2004) 23
at 29.
3
“[T]he most direct way is a simple clause in the body of the implementing act stating that a
certain treaty, or parts of it, shall have the force of law in Canada. […] Sometimes the terms
of the relevant treaty are incorporated simply by reference. This objective may be achieved
either by using the exact provisions of the relevant articles of the treaty in question or by
using similar language which has the same intent as the treaty”.7
Despite the fact that Canada is supposed to ratify international treaties after taking necessary measures
to ensure the enforcement of their obligations in domestic law, this is not always the case 8. As Kindred
mentioned, “a whole class of treaties concerning inter-state relations can simply be executed by the
government of Canada pursuant to its powers under the Constitution to conduct foreign affairs. These
kinds of treaties […] are of no concern to internal Canadian law”9.
Given the structure of the Canadian federal system, the treaties incorporation process is somewhat
complicated. As it was held in the Labour Conventions case10, where the subject-matter of a treaty is out
of the federal government’s jurisdiction, legislative assent of provincial legislatures is required.
In addition to the above, it may well be the case that the federal government may consider that Canadian
legislation is already in compliance with a treaty11, and that further enactment of a new statute would be
unnecessary.
Although local incorporation of international treaties is a requirement, the Supreme Court of Canada has
referred to some locally unincorporated international human rights treaties from time to time. This has
been done by virtue of the Doctrine of Legitimate Expectation,12 or by considering the values enshrined
in them during the process of statutory interpretation.13 Without an incorporating statute intended to give
legal effects to treaties in domestic law, there is no evidence that Canadian courts are compelled to
taking decisions in line with Canada’s international commitments.14 Notwithstanding some criticisms,15
Hugh Kindred, “The Use of Unimplemented Treaties in Canada: Practice and Prospects in the Supreme Court” in Chi
Carmody et al., eds., Trilateral Perspectives on International Legal Issues: Conflicts and Coherence (Washington, D.C.:
ASIL, 2003) 3 at 8-9. For more details about treaty incorporating means, see Armand De Mestral & Evan Fox-Decent,
“Rethinking the Relationship between International and Domestic Law” (2008) 53 McGill L.J. 573 at 617-622. See also
France Houle, “La légitimité constitutionnelle de la reception directe du droit international en droit canadien” (2004) 45 C. de
D. 295 at 297-298.
8
For example, the Kyoto Protocol to the United Nations Framework Convention on Climate Change (11 December 1997,
UN Doc. FCU/CP/1997/L.7/Add.1, 37 I.L.M. 22) was ratified without necessary measures to ensure its full enforcement in
domestic law.
9
Hugh Kindred, “The Use of Unimplemented Treaties in Canada: Practice and Prospects in the Supreme Court” in Chi
Carmody et al., eds., Trilateral Perspectives on International Legal Issues: Conflicts and Coherence (Washington, D.C.,
ASIL, 2003) 3 at 7.
10
A.G. Can. V. A.G. Ont. et al. (Labour Conventions Case), [1937] 1 D.L.R. 673.
11
See Gib van Ert, Using International Law in Canadian Courts, 2nd ed. (Toronto: Irwin Law, 2008) at 247-248.
12
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 119.
13
Baker v. Canada, [1999] 2 SCR 817. In this case, the Supreme Court highlighted the fact that the ratification of the
Convention on the Rights of the Child by Canada testified to its commitment towards children’s protection values enshrined
in that Convention. See also R. v. Sharpe, [2001] 1 S.C.R.45.
14
See Ahani v. Canada (2002), 58 O. R. (3d) 107 (Ont. C.A.); Ahani v. Canada, [2002] 1 S.C.R. 72; Bouzari v. Iran 243
D.L.R. (4th) 406. See also Stéphane Beaulac, “National Application of International Law: The Statutory Interpretation
Perspective” (2003) 41 Can. Y.B. Int’l L. 225 at 259.
15 Joanna Harrington, “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and
Requests for Interim Measures of Protection” (2003) 48 McGill L.J. 55; Hugh M. Kindred & Phillip M. Saunders,
7
4
a considerable trend in Canadian legal practice is of the view that although some provisions of an
international treaty may be encompassed by domestic legislation, that treaty remains unincorporated in
the absence of an explicit incorporating statute.
While at international level, human rights treaties and conventions generally create institutional
mechanisms to oversee compliance by states parties16, there is no such mechanism at domestic level,
particularly in Canada. In addition, the cost associated with such an international litigation system may
discourage many individuals from resorting to those mechanisms. Finally, any decisions taken by any
international human rights treaty-monitoring bodies may not be further enforced on a domestic level.17
Given the growing number of unincorporated human rights treaties or those due to be so in Canada, it is
clear that the Parliament cannot handle with all aspects of the matter on its own. We argue that only such
a monitoring mechanism would contribute to foster effective implementation of international human
rights treaties, as well as to ensure that Canadians are aware of the possibility of enforcing their rights
incurred by public authorities following the ratification of human rights treaties by the executive.
I. Consequences of unincorporated human rights treaties on
Canadian citizens
Essentially, international law was a subject matter of states or international organizations created by
states. The basic postulate of public international law was that only states and then international
organizations, as subjects of international law, had international personality. It was contended that, since
private actors do not have the attributes necessary to participate in creation of international legal
instruments, they should not be directly affected by the rights and obligations created by these
instruments. Private persons were regarded as mere objects of international law.18 The rational was that,
insofar as international responsibility is mainly owed by states, the individual was not interested by
international law, except by indirect way through the state.19
However, this approach has considerably evolved. Since the end of the 19th century, states have realized
that maintaining international peace and security requires that, in certain circumstances, private actors be
directly subject to international law. By way of example, in order to combat international piracy, states
decided to impose international legal duties directly upon individual pirates. Therefore, pirates were no
longer considered as ‘objects’ of international law, and states were then authorized to capture and hold
them legally responsible.20
International Law, Chiefly as Interpreted and Applied in Canada, 7th ed. (Toronto : Emond Montgomery, 2006) at 206 and
234-236; Armand De Mestral & Evan Fox-Decent, “Rethinking the Relationship Between International and Domestic Law”
(2008) 53 McGill L.J. 573 at 623-625.
16
See Andreas Zimmermann, “Dispute Resolution, Compliance Control and Enforcement in Human Rights Law” in Geir
Ulfstein, ed., Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge: Cambridge University
Press, 2007) 15 at 22-37.
17
See Ahani v. Canada (2002), 58 O. R. (3d) 107 (Ont. C.A.) at paras. 31-41.
18
Paul Sieghart. The International Law of Human Rights (Oxford/Toronto: Clarendon Press, 1983) at 16-17; Krzysztof
Drzewicki, “The Status of International Human Rights Instruments in Domestic Law” in Allan Rosas, ed., International
Human Rights Norms in Domestic Law (Helsinki: Finnish Lawyers’ Publishing Company, 1990) 1 at 4.
19
Julie Cassidy, “Emergence of the Individual as an International Juristic Entity: Enforcement of International Human
Rights” (2004) 9 Deakin L. Rev. 533 at 539.
20
Julie Cassidy, “Emergence of the Individual as an International Juristic Entity: Enforcement of International Human
Rights” (2004) 9 Deakin L. Rev. 533 at 551.
5
The trend to impose international legal duties upon private actors has been more visual in the aftermath
of the Second World War, when the Allies established international military tribunals designed to
prosecute individuals involved in the conflict. The charters of these tribunals provided, among other
things, that they had jurisdiction over individuals responsible of “crimes against humanity: namely,
murder, extermination, enslavement, deportation, and other inhumane acts committed against any
civilian population, before or during the war; or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country where perpetrated”.21 Furthermore, the charters considered
that “[The] fact that the Defendant acted pursuant to order of his government or of a superior shall not
free him from responsibility […]”.22 Accordingly, when it was argued at the Nuremberg International
Tribunal that private individuals were beyond its jurisdiction, it held that:
international law imposes duties and liabilities upon individuals as upon States […]. Crimes
against international law are committed by men, not by abstract entities, and only by
punishing individuals who commit such crimes can the provisions of international law be
enforced. He who violates the laws of war cannot obtain immunity while acting in pursuance
of the authority of the State, if the State in authorising action moves outside its competence
under international law.23
The imposition of such duties upon private persons has been further provided by the 1948 Genocide
Convention, which among other things, is intended to apply to persons, “whether they are
constitutionally responsible rulers, public officials or private individuals”.24 Individuals’ direct duties
according international law became more significant at the end of the 20th century, as the world
experienced new atrocities in Yugoslavia and Rwanda. In order to ensure an appropriate response to
serious crimes around the world, the international community has engaged in the negotiation and the
adoption of the 1998 Rome Statute, an international treaty designed to create the first permanent
International Criminal Court. Having its seat in The Hague (Netherlands), the International Criminal
Court became operational since July 1st, 2002, the date of the Rome Statute’s entry into force. Its
jurisdiction does not only come into effect only when the accused is a national of a state party, but also
when the alleged crime occurred on the territory of one of states parties. Furthermore, the ICC
jurisdiction may come into effect when the case is referred to the court’s prosecutor by the United
Nations Security Council acting under Chapter VII of the Charter of the United Nations. 25 In addition,
according to the Principle of Complementarity enshrined in the Rome Statute, the ICC exercises its
jurisdiction only when domestic courts are unwilling or unable to carry out an investigation or
prosecution.26
21
Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution and Punishment of the Major
War Criminals of the European Axis, London, 8 August 1945, art. 6.
22
Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution and Punishment of the Major
War Criminals of the European Axis, London, 8 August 1945, art. 8.
23
“Judicial Decisions Involving Questions of International Law-International Military Tribunal (Nuremburg), Judgment and
Sentences” (1947) 41 Am. J. Int'l L. 172 at 220-221.
24
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 U.N.T.S. 277, art. 4.
25
The Rome Statute on the International Criminal Court, 2187 UNTS 90 at ss. 12-13.
26
The Rome Statute on the International Criminal Court, 2187 UNTS 90 at para. 17 a).
6