Thursday Thinkpiece: Oliphant on Creeping Monism in Charter Interpretation

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Benjamin Oliphant
APPEAL: Review of Current Law & Reform Vol. 19, no.1 (2014): 105-129

Excerpt: Part II

(Footnotes omitted. They are available in the online version via the link above.)


A number of critics have suggested that the Court’s use of international human rights law is often confined to those provisions and interpretations that appear to support a conclusion at which the Court has already arrived. The Court’s framework for the use of international law has been called “imperfect at best, and improvised at worst,” “inconsistent and even unintelligible,”90 “troublesome and confused,” and “unpredictable.” In fairness, it should be noted that the Court’s reasoning might have reflected the various emphases on the importance of international human rights law and norms by counsel, the different approaches of different judges, or principled distinctions lurking in the background that have not been systematically revealed in the written reasons. Whatever its source, the apparent inconsistency identified in the case law cannot help but sow confusion; it is not clear from the outset whether the Court will consider such laws and norms to be irrelevant, conclusive, or somewhere in between. It seems clear that this inconsistency is sustained by the confusion surrounding the theoretical basis for the use of international law in the context of Charter interpretation. The remainder of this paper will attempt to identify the potential fault lines in the debate over the use of international law in the context of Charter interpretation, and propose some principles and guidelines that may lead to the more consistent use of such materials in the future.

A. Abandoning Presumptions of Compliance

From the outset, it should be emphasized that there is a potentially large conceptual gap between suggesting that the courts must apply a ‘presumption’ that relevant international human rights norms are effectively incorporated into the Charter, and considering international laws and interpretations relevant and persuasive as the context warrants. In the former case, it would be incumbent on courts to identify any germane international human rights documents, apply that meaning to the relevant Charter provision, and then either accept that definition or seek to rebut it by meeting an unknown standard. By contrast, where international human rights norms are considered ‘relevant and persuasive,’ they may simply be among the matrix of factors that the court might consider helpful in the course of resolving issues involving the content of specific Charter rights and freedoms. The survey above suggests that the Court has tended towards the latter in practice, but has at least rhetorically adopted the former.

Stephen Toope has argued that this tendency is unfortunate, and suggests that the distinction between the two standards—a presumption on the one hand and persuasive sources on the other—was quite deliberately made. According to Professor Toope:

In the 1987 Labour trilogy, Dickson attempted to introduce a distinction between general international human rights law which served as the context for the Charter’s adoption and was therefore “relevant and persuasive” in Charter interpretation, and human rights treaties to which Canada is a party, which would serve as the benchmark for all Charter rights. The Charter should be presumed to guarantee protection “at least as great” as that afforded under Canada’s treaty obligations. The Court subsequently ignored this distinction. This is a loss, not only in Charter cases, but also in all cases where international law is invoked. That part of international law that is “inside” Canada is not only persuasive, it is obligatory. When we fail to uphold our obligations, we tell a story that undermines respect for law internationally.

In line with this observation, various commenters have endorsed some sort of presumption of compliance in the context of Charter interpretation. For instance, Professors A.F. Bayefsky and M. Cohen have suggested that some of Canada’s international commitments should be seen as effectively implemented through the Charter, while other laws or norms should be seen as presumptively incorporated. Chief Justice Lamer has stated extra-judicially that “[t]he Charter can be understood to give effect to Canada’s international legal obligations, and should therefore be interpreted in a way that conforms to those obligations.” Consistent with these positions, Patrick Macklem has recently identified what is effectively a form of ‘creeping monism,’ whereby various international obligations have been imported into the domestic legal order through judicial interpretation of the Charter.

While the notion that international human rights norms have been implemented or otherwise incorporated into Canadian law through the Charter was “enthusiastically advanced” by scholars in the early years of the Charter, such an approach has been largely resisted by the courts. At first blush, any doctrine of incorporation or compliance would appear to run headlong into the reality that the Charter could only with great difficulty be read to include every international human rights document assented to by the Canadian government. It would indeed be a remarkable single page document that would, by necessary implication, incorporate the commitments found in the nearly forty international human rights treaties and declarations to which Canada is a party, much less the full spectrum of international law, norms, protocols, and decisions available. However, even if we were to accept that a presumption of compliance is plausible, there are good reasons to not adopt it. In particular, the meaningful application of such a presumption would undermine two important pillars of the Canadian constitutional order: federalism and the separation of powers.

From the outset, it should be noted that such a presumption runs contrary to the rules that treaties are not self-enforcing in Canada,103 and that customary international law can be displaced by legislation. It also undermines the clear direction from the Court that Canada’s international law obligations are not incorporated into the Charter. Although some countries have adopted a monist system, or have explicitly incorporated international law into the domestic law through a constitution or quasi-constitutional legislation, Canada has not done so. It therefore remains for all intents and purposes a dualist jurisdiction in which those international treaties requiring domestic implementation must be adopted by the relevant legislature before becoming binding in Canada.

This dualist approach to international treaties is required by the logic of the Canadian constitutional structure with regards to both the division of powers and separation of powers. In brief, the Governor General, acting on the advice of the Prime Minister and Cabinet, possesses the constitutional authority to enter treaties binding Canada internationally. However, in order for such treaties to have the force of law in Canada, they must be adopted by the relevant legislature. As it is the federal executive that is endowed with treaty making power, a monist structure would allow the executive to unilaterally make domestic law without parliamentary oversight, and to give effect to treaties encroaching upon provincial jurisdiction without provincial consent or participation. This logic applies a fortiori to the argument that international obligations assented to by the federal executive are incorporated into constitutional law, which limits the content of legislation passed by either level of government. Allowing past, present or future federal executives to effectively modify the meaning of the Charter is untenable given the onerous steps required to change the language of the constitution explicitly. That the Crown has affixed Canada’s name to a given treaty affects the recourse that may be had at the international level; it does not for that reason have the force of law within Canadian courts. To put the matter bluntly: “[i]f treaties are made by the executive, and the executive cannot make law, treaties must not be law.”

This observation brings us back to the important distinction between applying international law as a statutory presumption or as a matter of common law development on the one hand, and presumptively applying it in construing the Charter on the other. The relevance of this distinction is left unaddressed by many commenters, and some courts, who seem to operate under the belief that the presumption should naturally apply in the context of constitutional interpretation, just as it applies in the course of statutory interpretation. In my view, this approach does not adequately reflect the substantial difference in interpreting legislative acts in light of textual ambiguity and permanently rendering those acts of no force and effect. In the former event, where the court ‘gets it wrong’ in imputing to the democratic branches an intention that is not present, or by developing the common law in a way contrary to the will of elected bodies, the legislatures can correct such an interpretation through the passage of legislation. No such recourse is available where the Court is interpreting the meaning of a constitutional document.

This leads to difficulties for the ‘presumption of compliance’ school of thought with respect to Charter interpretation. For instance, Professor Bayefsky relies on the “timeworn presumption and resulting admonition to bring Canadian law into conformity with international legal obligations where possible.” However, she also notes that when the courts apply this time worn presumption in the normal course, there is “no doubt” that unambiguous domestic legislation will prevail where it conflicts with international law. Put differently, the corollary of the presumption of compliance is that “courts will apply the law laid down by statute or common law, even if it is inconsistent with a treaty which is binding upon Canada.” I would suggest that the reason that the presumption is relatively uncontroversial with respect to statutory interpretation and common law development is because it can be ousted by clear legislative action that derogates from the international law or agreement. In stark contrast, the Charter is applied to abridge legislative authority, however clearly it is expressed. In the context of the Charter, the logic of the presumption is turned on its head: it does not operate in this context to ensure the relevant legislative body remains vested with its constitutional authority, but rather to divest it of authority.

Other difficulties arise if the presumption is applied to constitutional interpretation. For instance, it might be noted that the Supreme Court has consistently stated that all decisions of the executive—including those stemming from the royal prerogative—are subject to Charter scrutiny. Thus, the effects of treaties must be consistent with the Charter, and executive efforts to generate legal results through treaties “are as much subject to the required conformity with the Charter as are legislative efforts.” If this is true, how can it also be that the proper interpretation of the Charter can be discerned with reference to an exercise of that same executive power? The analytical approach is entirely circular: the executive must act in accordance with the Charter, which must in turn be interpreted in accordance with a product of that executive action, that is, international treaties.

None of which is intended to suggest that it is illegitimate for the courts to abridge legislative authority, which is the very purpose of the Charter. Rather, it is simply to note the inaptness of applying statutory presumptions to constitutional interpretation without considering the important distinctions between the two exercises. As Chief Justice Dickson once observed, “[t]he task of expounding a constitution is crucially different from that of construing a statute.” I think that distinction requires careful attention in this context.

As a result, I prefer the position adopted by Chief Justice McLachlin, dissenting in R v Keegstra. The Chief Justice argued that while international human rights law may be helpful when interpreting the Charter, it would be wrong “to consider these obligations as determinative of or limiting the scope of those guarantees”; the Charter is a uniquely Canadian legal instrument, whose protections may depart from international covenants. The Court’s role here is, in a sense, to ‘translate’ relevant international norms “in a way that forwards a unique Canadian vision of law.” In my view, a meaningful presumption resulting in a form of ‘creeping monism’ is only slightly less troubling than a de jure monist system in the Canadian context, and for the same reasons: it would effectively permit the federal executive, in executing its power to adhere Canada to international legal obligations, to unilaterally modify, expand or contract the meaning of Charter guarantees. Along with the other difficulties raised above, I think any notion of a presumption of compliance should be avoided. Fortunately, there is an alternative approach that would avert these problems without losing the benefit of international human rights norms entirely.

B. The Relevant and Persuasive Approach

On the analysis above, the more rigorously any constitutional presumption of compliance or doctrine of incorporation is applied, the more constitutionally objectionable it becomes. However, there seems to be no compelling justification for excluding international sources from the matrix of factors that elucidate the purpose, meaning and scope of Charter rights and freedoms. In my opinion, the justification for the use of international legal sources in the context of Charter interpretation is rather straightforward, and indeed is well accepted in our legal culture. It is simply that “the search for wisdom is not to be circumscribed by national boundaries.” To the extent that international human rights laws and norms are helpful in construing the meaning of Charter provisions, it should only be to the extent that they are considered relevant and persuasive on a given point of interpretation. As others have observed, this ‘relevant and persuasive’ approach was indeed the principal thrust of the Chief Justice’s reasons in the Alberta Reference, his invocation of a ‘presumption’ notwithstanding. The approach envisioned here would, generally speaking, resemble the Court’s use of comparative law sources: for elucidation where considered persuasive, as opposed to commanding statements of constitutional meaning.

Amongst others, Gib van Ert has criticized the relevant and persuasive approach as evincing an “ultimately weak approach to international law,” and one that departs from the common law system of reception, discussed above. He suggests that the relevant and persuasive approach upsets the balance between self-governance and respect for international law “by empowering Canadian courts to ignore or depart from international conceptions of human rights with relative ease.” However, as noted above, courts are already permitted, and indeed required, to do so, if by “with relative ease” we mean upon clear direction from the relevant legislature. Respectfully, the argument that this approach is “too much self-government and too little respect for international law” appears to be based on the idea that the Charter operates like any other domestic legal document. To the contrary, unlike a common law or statutory presumption “reserving to our laws the power to depart from international norms by explicit action,”such an approach may serve to prohibit explicit legislative action, and invalidate laws that are not in conformity with international obligations.

I do not mean to suggest that advocates of a presumption of compliance are without strong reasons for their position. Undoubtedly, ensuring adherence to international commitments is an objective to be lauded, and our elected representatives should take such obligations seriously. The more a considered opinion of the Court dovetails with Canada’s international obligations, the better. In my view, however, the difficulties with the presumption raised above weigh heavier in the balance, and the fact that the relevant and persuasive approach is “unobjectionable” seems to recommend it. The courts’ responsibility in this context is to interpret the constitution, not to bend it to ensure compliance with international agreements entered into by the Crown. The hard task will be in constructing a framework for a principled approach to the use of relevant and persuasive international legal materials, a point to which I now turn.

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