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Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law

Published online by Cambridge University Press:  09 March 2016

John H. Currie
John H. Currie*
Affiliation:
Faculty of Law, University of Ottawa
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Summary

The majority Supreme Court of Canada judgment in Hape — a case concerning extraterritorial applicability of the Canadian Charter of Rights and Freedoms — is premised on three aspects of the relationship between international and Canadian law: (1) the interaction of customary international law and Canadian common law; (2) the role of Canada’s international legal obligations in Charter interpretation; and (3) the potential role of customary international law as a source of unwritten principles of the Canadian Constitution. This article reviews pre-existing law in all three of these areas and analyzes a number of innovations apparently introduced thereto, with little or no explanation, by the majority in Hape. It concludes that Hape seriously exacerbates an already uncertain relationship between international and Canadian law, with fundamental consequences for the rule of law in Canada.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 45 , 2008 , pp. 55 - 96
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2008

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References

1 R. v. Hape, [2007] 2 S.C.R. 292, 280 D.L.R. (4th) 385, 363 N.R. 1, 2007 SCC 26 (released 7 June 2007) [Hape].

2 See Factum of the Appellant, Lawrence Richard Hape, Court File no. 31125, 11 May 2006 [Appellant’s Factum]; Factum of the Respondent, Her Majesty the Queen, Court File no. 31125, 7 July 2006 [Respondent’s Factum] and Factum of the Intervener, Attorney General of Ontario, Court File no. 31125, 25 September 2006 [Intervenor’s Factum].

3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982, c. 11 [Charter].

4 R. v. Cook, [1998] 2 S.C.R. 597 [Cook].

5 While the majority in Hape, supra note 1, did not expressly overrule Cook, supra note 4, and the official report of the former indicates that Cook was “distinguished,” it is difficult to see how the majority’s conclusion concerning the impossibility of the extraterritorial application of the Charter can be reconciled with Cook’s earlier finding that such application, while rarely justified, is nevertheless permissible in limited circumstances.

6 Hape, supra note 1 at para. 85.

7 See, for example, Roach, K., “Editorial: R. v. Hape Creates Charter-Free Zones for Canadian Officials Abroad” (2007) 53 Crim. L.Q. 1.Google Scholar

8 Hape, supra note 1 at paras. 1–2.

9 Ibid. at paras. 3–14.

10 Cook, supra note 4 at paras. 25 and 43.

11 See R. v. Hape, [2002] O.J. No. 3714 (Sup. Ct.) (QL).

12 See R. v. Hape, [2002] O.J. No. 5044 (Sup. Ct.) (QL).

13 R. v. Hape (2005), 201 O.A.C. 126 (C.A.). See also Hape, supra note 1 at paras. 15–19 and 21–23.

14 Hape, supra note 1 at para. 24.

15 Ibid. at para. 181.

16 Ibid. at paras. 123–80.

17 Ibid. at paras. 34–39 and 53–56.

18 Ibid. at paras. 40–52, 57–65, and 96–101.

19 Ibid. at para. 85.

20 Ibid. at paras. 83–94.

21 Ibid. at paras. 69, 94, and 103–6. Section 32(1) provides that the Charter, supra note 3, applies to “the Parliament and government of Canada in respect of all mattters within the authority of Parliament” [emphasis added].

22 The term “incorporationist” is more common in British practice whereas “adoptionist” tends to be used in Canadian practice. On the vagaries of the terminology used in this area of the law, see van Ert, G., Using International Law in Canadian Courts (The Hague: Kluwer Law International, 2002) at 49–51.Google Scholar

23 See, for example, Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] Q.B. 529 (Eng. C.A.) [Trendtex]. In this judgment, Lord Denning traces the origins of this rule to the early eighteenth century and provides a succinct overview of the relevant precedents. Ibid. at 553. See also Buvot v. Barbuit (1737), 25 E.R. 777; Heathfield v. Chilton ( 1767), 4 Burrow 2015 (per Lord Mansfield); Fatima, S., Using International Law in Domestic Courts (Oxford: Hart Publishing, 2005) at 403–36Google Scholar; and Brownlie, I., Principles of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003) at 41.Google Scholar A similar position is taken in the United States. See, for example, The Paquette Habana, 175 U.S. 688 at 700 (1900) (S. Ct).

24 It will be recalled that the preamble to the Constitution Act, 1867, provides in part that Canada shall have “a Constitution similar in principle to that of the United Kingdom.” Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.

25 Macdonald, R.St.J., “The Relationship between International Law and Domestic Law in Canada,” in Macdonald, R.St.J., Morris, G.L., and Johnston, D.M., eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974), 88 at 111.Google Scholar See also Brunnée, J. and Toope, S.J., “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002) 40 Can. Y.B. Int’l L. 3 at 42–51,Google Scholar reviewing the ambiguous and sometimes conflicting Canadian case law and tentatively concluding that “the best view appears to be that customary law can operate directly within the Canadian legal system” (at 44).

26 See, for example, van Ert, supra note 22 at 150.

27 Reference re Powers of Ottawa (City) and Rockcliffe Park, [1943] S.C.R. 208 [Foreign Legations case]. In this case, the Supreme Court of Canada was asked to give an advisory opinion on whether the Ontario Assessment Act, R.S.O. 1937, c. 272 [now R.S.O. 1990, c. A-31], applied to diplomatic property owned by foreign states in the national capital region, notwithstanding immunities from local taxation granted to foreign states by customary international law.

28 Re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86. In this case, one of the principal issues was whether customary international law relating to the status of the continental shelf had progressed sufficiently by 1949, the date of Newfoundland’s entry into confederation, to have vested Newfoundland with sovereign rights over the continental shelf off its coasts. While the Court did not expressly address the nature of the relationship between customary international law on this issue and the domestic legal and constitutional questions before it, the careful review of customary international law carried out by the Court would appear to have been an implicit acknowledgment of its direct legal relevance in Canadian law.

29 Reference re Secession of Québec, [1998] 2 S.C.R. 217 [Québec Secession Reference]. Here the Supreme Court of Canada addressed objections to its consideration of the customary international law of self-determination, in determining the legality of a potential unilateral declaration of independence by Québec, by stating that “[international law has been invoked as a consideration and it must therefore be addressed” (at 276). This could be read as an endorsement of the direct legal effect or relevance of customary international law in domestic Canadian law. Yet see Toope, S.J., “Case Comment on the Québec Secession Reference ” (1999) 93 A.J.I.L. 519 at 523–25,Google Scholar referring to the Court’s “complete disregard for customary law”; and Brunnée and Toope, supra note 25 at 45, arguing that the Court “failed completely to engage with the customary law on self-determination,” suggesting that “a dualist position may implicitly have been adopted.” With respect, this seems an overly pessimistic reading. While the Court did fail to advert to customary international law as such, it did indicate that “the principle [of self-determination] has acquired a status beyond ’convention’ and is considered a general principle of international law” (at para. 114). Moreover, the Court did in fact refer to several elements of non-conventional state practice and opinio juris (admittedly, without labelling them as such), suggesting that, at least in substance, it was applying customary international law. Certainly, the Court failed to take account of some recent, mainly European, state practice in this area, but that speaks to the quality of the Court’s analysis of customary international law rather than to rejection of its applicability in principle.

30 See, for example, Saint John v. Fraser-Brace Overseas Corp., [1958] S.C.R. 263 at 268–69 (per Rand, J.)Google Scholar (again dealing with the effect of the customary international law of state immunities from municipal taxation); and Pushpanathan v. Canada, [1998] 1 S.C.R. 982 at 1029–35 (referring to the customary international legal meaning attributed to the words “contrary to the principles of the United Nations” in interpreting legislation implementing treaty obligations relating to refugee status). See also The Ship “North” v. The King (1906), 37 S.C.R. 385 at 394 (per Davies, J.)Google Scholar; Reference as to Whether Members of the Military or Naval Forces of the United States of America Are Exempt from Criminal Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483 at 502 (per Kerwin, J.)Google Scholar; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Ville), [2001] 2 S.C.R. 241 at paras. 30–32 [Spraytech]; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paras. 61–65 [Suresh]; and Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269 at paras. 48–50 (per LeBel, J.)Google Scholar [Schreiber]. Yet see Gouvernement de la République démocratique du Congo v. Venne, [ 1971 ] S.C.R. 997.

31 Jose Pereira E Hijos S.A. v. Canada (Attorney General), [1997] 2 F.C. 84 at para. 20 (T.D.).

32 Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675 at para. 65 (C.A.), leave to appeal ref’d, [2005] 1 S.C.R. vi. See also Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 at para. 32 (C.A.), leave to appeal ref’d, [2003] 1 S.C.R. xiii.

33 See the text accompanying notes 131–32 in this article, suggesting that the majority’s review of the relationship between customary international and Canadian common law was obiter in a judgment turning solely on interpretation of the Charter.

34 Hape, supra note 1 at para. 39 [emphasis added].

35 Ibid. [emphasis added].

36 The French version of the judgment does not assist, as it uses “devraient être incorporées” rather than “doivent être incorporées” or “sont incorporées.”

37 The possibility that the majority may view incorporation or adoption in dualist rather than monist terms is also suggested in the French version of the majority’s description of the British “doctrine of adoption”: “Ce principe veut que les tribunaux puissent adopter les règles du droit international coutumier et les intégrer aux règles de common law.” See Hape, supra note 1 at para. 36 [emphasis added].

38 Such an implication naturally raises a number of questions, not the least of which is the nature of the grounds upon which a court would be justified in failing to carry out the act of incorporation. Would these be confined to conflict with legislation or prior binding precedent? Or might other considerations, for example of a public policy nature, justify a refusal by a court to “incorporate” a customary rule into domestic common law?

39 For a succinct overview of the “monist” and “dualist” theoretical models used by international lawyers to describe the interaction of international and domestic law, see Currie, J.H., Public International Law, 2nd ed. (Toronto: Irwin Law, 2008) at 220–24Google Scholar; Fitzmaurice, G., “The General Principles of International Law: Considered from the Standpoint of the Rule of Law” (1957–II) 92 Rec. des Cours 5 at 68–85Google Scholar; and Starke, J.G., “Monism and Dualism in the Theory of International Law” (1936) 17 Brit. Y.B. Int’l L. 66.Google Scholar

40 See Trendtex, supra note 23 at 554: “[T]he rules of international law, as existing from time to time, do form part of our English law” [emphasis added]. See also Fatima, supra note 23 at 408–10. LeBel J. himself interprets Trendtex as an endorsement of automatic incorporation, summarizing Denning, M.R.’s judgment thus: “Rules of international law are incorporated automatically, as they evolve, unless they conflict with legislation.” Hape, supra note 1 at para. 36Google Scholar [emphasis added].

41 Hape, supra note 1.

42 Ibid. at para. 39.

43 Ibid.

44 Ibid. at para. 46 [emphasis added]. See also para. 36 where, in summarizing the English position, LeBel J. again articulates a seemingly purely discretionary version of the rule: “Prohibitive rules of international law may be incorporated directly into domestic law through the common law … According to the doctrine of adoption, the courts may adopt rules of customary international law as common law rules” [emphasis added]. It is noteworthy that the only authority cited for this characterization of English law is Brownlie, supra note 23 at 41, who in fact sets out a quite different proposition: “The dominant principle, normally characterized as the doctrine of incorporation, is that customary international rules are to be considered part of the law of the land and enforced as such” [emphasis added].

45 Hape, supra note 1 at para. 39.

46 Ibid. [emphasis added].

47 For similar concerns arising from Spraytech, supra note 30 at paras. 30–32, see Brunnée and Toope, supra note 25 at 47–48.

48 See A.-G. Canada v. A.-G. Ontario, [ 1937] A.C. 326 [Labour Conventions case]; Capital Cities Communications v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141 at 173 [Capital Cities Communications]; and Francis v. The Queen, [1956] S.C.R. 618 at 621 [Francis]. For the similar position taken in the United Kingdom, see Maclaine Watson v. Department of Trade and Industry, [1989] 3 All E.R. 523 at 531 (H.L.) (per Oliver, Lord)Google Scholar; R. v. Secretary of State for the Home Department, ex parte Ahmed and Patel, [1999] Imm. A.R. 22 at 36 (C.A.); and Fatima, supra note 23 at 269–382.

49 Hape, supra note 1 at paras. 53–54.

50 See, for example, Daniels v. White, [1968] S.C.R. 517 at 541 (per Pigeon, J.)Google Scholar; Zingrev. The Queen, [1981] 2 S.C.R. 392 at 409–10 (per Dickson, J.)Google Scholar; Ordon Estate v. Grail, [1998] 3 S.C.R. 437 at para. 137 (per Iacobucci, and Major, JJ.) [Ordon Estate]Google Scholar; Schreiber, supra note 30 at para. 50; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 at para. 31 (per McLachlin, C.J.) [Canadian Foundation for Children].Google Scholar See also Sullivan, R., Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, ON: Butterworths, 2002) at 421–22Google Scholar; Côté, P.-A., The Interpretation of Legislation in Canada, 3rd ed. (Scarborough, ON: Carswell, 2000) at 367–68Google Scholar; Brunnée and Toope, supra note 25 at 25–26 and 32; van Ert, supra note 22 at 99–136; and van Ert, G., “What Is Reception Law?” in Fitzgerald, O.E., ed., The Globalized Rule of Law: Relationships between International and Domestic Law (Toronto: Irwin Law, 2006), 85 Google Scholar at 89 (characterizing this presumption as a “basic doctrine of reception law”).

51 See Sullivan, supra note 50 at 422. See also van Ert, , “What Is Reception Law?”, supra note 50 at 89,Google Scholar suggesting that application of the presumption “tends more to resemble a rule of judicial policy to the effect that the court will not, by its decisions, bring the state into violation of international law.”

52 See Ordon Estate, supra note 50 at para. 137 (per Iacobucci and Major JJ.): “[A] court must presume that legislation is intended to comply with Canada’s obligations under international instruments” [emphasis added]; and Canadian Foundation for Children, supra note 50 at para. 31 (per McLachlin C.J.): “Statutes should be construed to comply with Canada’s international obligations” [emphasis added].

53 Hape, supra note 1 at para. 39.

54 Ibid.

55 Ibid.

56 Ibid. at paras. 53–54 (per LeBel J.), referring to the “well-established principle of statutory interpretation that legislation will be presumed to conform to international law,” a “presumption [that] applies equally to customary international law and treaty obligations” [emphasis added].

57 This is also suggested by the heading under which this aspect of the majority’s analysis appears — that is, “Relationship between Customary International Law and the Common Law.”

58 See text accompanying note 51 in this article.

59 See Hape, supra note 1 at paras. 53–54.

60 Contrast the cases cited in note 50 with, for example, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 861 (per L’Heureux-Dubé, J. writing for the majority)Google Scholar; and Spraytech, supra note 30 at paras. 30–32. Beaulac, Stéphane, in “National Application of International Law: The Statutory Interpretation Perspective” (2003) 41 Can. Y.B. Int’l L. 225,Google Scholar argues that Baker and Spraytech effectively displace the presumption of legislative conformity in favour of a rule that merely considers international law an optional contextual interpretive element to be given more or less weight by courts depending on its source and degree of legislative implementation in domestic law. See also Brunnée and Toope, supra note 25 at 38–39, 41–42, and 45–46, fearing that this may have been the effect of Baker and Spraytech even if not intended.

61 Hape, supra note 1 at para. 39.

62 See also ibid. at para. 56, where the majority refers to the principle of “the direct application of international custom.”

63 See also ibid. at para. 70, where the majority refers to the “context and interpretive assistance set out in the foregoing discussion.”

64 See ibid. at paras. 36 and 39. In French, the majority judgment repeatedly uses “les règles prohibitives du droit international coutumier” [emphasis added].

65 See ibid. at para. 36 (in describing the “English tradition”): “Prohibitive rules of international custom may be incorporated”; and para. 39 (in describing the Canadian position): “ [P]rohibitive rules of customary international law should be incorporated … The automatic incorporation of such rules is justified … [T]he courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law” [emphasis added].

66 It is possible that LeBel, J. had in mind certain passages in The Case of the SS “Lotus” (Francev. Turkey) (1927), P.C.I.J. (Ser. A) No. 10 at 18–19 [Lotus],Google Scholar which refer to permissive and prohibitive rules ofjurisdiction and on which the majority placed considerable emphasis in its subsequent discussion ofjurisdictional principles. See Hape, supra note 1 at paras. 60 and 65–66. However, this seems far-fetched as the Lotus decision in no way concerned itself with rules of reception and therefore did not suggest any distinction between the domestic reception of prohibitive versus permissive rules of customary international law or, indeed, any such categorization of customary rules in general.

67 International lawyers do not tend to categorize rules of customary international law according to whether they are “prohibitive” or “permissive,” perhaps because such a categorization would be readily subject to manipulation. Almost any “prohibitive” rule of customary international law can readily be restated as a “permissive” one. For example, the “prohibitive” customary rule that states may not extend their territorial sea beyond twelve nautical miles from their coastal baselines can also be restated as the “permissive” rule that coastal states are free to establish a territorial sea extending up to twelve nautical miles from their coastal baselines.

68 See, for example, Ahani v. Canada (Attorney General) (2002) 58 O.R. (3d) 107 at para. 31 (C.A.); Schabas, W.A. and Beaulac, S., International Human Rights and Canadian Law: Legal Commitment, Implementation and the Charter, 3rd ed. (Toronto: Thomson Carswell, 2007) at 59–67 Google Scholar; Hogg, P.W., Constitutional Law of Canada, 5th ed. Supp. (looseleaf) (Scarborough, ON: Thomson Carswell, 2007)Google Scholar at para. 36.9(c). For criticism of the Ahani decision, see Harrington, J., “Punting Terrorists, Assassins and Other Undesirables” (2003) 48 McGill, L.J. 55.Google Scholar

69 Schabas and Beaulac, supra note 68.

70 Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 [Slaight Communications].

71 Ibid. at 1056–57 (per Dickson C.J.), quoting his earlier comment in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 at 349 (dissenting on another point).

72 See Tarnopolsky, W.S., “A Comparison between the Canadian Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights ” (1982–83) 8 Queen’s L.J. 211 Google Scholar; Hogg, supra note 68 at paras. 33.8(c) and 36.9(c); Schabas and Beaulac, supra note 68 at 61 . See also Claydon, J., “International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms ” (1982) 4 S.C. L. Rev. 287.Google Scholar But see the cautionary note sounded with respect to such a “minimum content” presumption by Weiser, I., “Effect in Domestic Law of International Human Rights Treaties Ratified without Implementing Legislation” (1998) 27 Can. Council Int’l L. Proc. 132 at 138–39.Google Scholar

73 In particular, the indication that the presumption was only to operate “generally” and the equivocal use of the word “inform” to describe the interpretive relationship between Canada’s human rights obligations and the meaning of the Charter.

74 See, for example, R. v. Keegstra , [1990] 3 S.C.R. 697 at 750 (per Dickson, C.J.)Google Scholar (“international human rights law and Canada’s commitments in that area are of particular significance in assessing the importance of Parliament’s objective under s. 1”); United States v. Burns, [2001] 1 S.C.R. 283 at paras. 79–81 [Burns] (endorsing the views that international law is “of use” in interpreting the Charter and that international human rights law “should inform” and “must be relevant and persuasive” to such interpretation); Suresh, supra note 30 at paras. 46 (Charter interpretation “is informed … by international law, including jus cogens” [emphasis added]); and at para. 60 (“in seeking the meaning of the Canadian Constitution, the courts may be informed by international law” [emphasis added]). See also Canadian Foundation for Children, supra note 50 at paras. 9–10; and Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 350 at para. 90. See also discussion of this evolution in the case law in Brunnée and Toope, supra note 25 at 33–35; and Beaulac, S., “Le droit international et l’interprétation législative: oui au contexte, non S. à la présomption,” in Fitzgerald, O.E., ed., Règle de droit et mondialisation: Rapports entre le droit international et le droit interne (Toronto: Irwin Law, 2007), 413.Google Scholar

75 International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976; Article 41 entered into force 28 March 1979 ) [Civil Rights Covenant].

76 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85 (entered into force 26 June 1987).

77 Suresh, supra note 30 at paras. 66–75.

78 Ibid. at para. 78.

79 Slaight Communications, supra note 70 at 1056–57.

80 Burns, supra note 74 at para. 80, adopting the enumeration of sources by Dickson, C.J. (dissenting) in Public Service Employee Relations Act Reference, supra note 71 at 348 Google Scholar: “The various sources of international human rights law — declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms — must, in my opinion, be relevant and persuasive sources for interpretation of the Charter’s provisions.” See also, more recently, Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391, 2007 SCC 27 at para. 78 [Health Services], which accorded the same weight to Canada’s international human rights commitments and “the current state of international thought on human rights.”

81 See Brunnée and Toope, supra note 25 at 35 and 51–55; and Beaulac, supra note 60 at 264–67, arguing for a differential approach by Canadian courts to (unimplemented) binding and non-binding sources of international law.

82 See Suresh, supra note 30 at para. 46, where the Court accords the same interpretive weight to international law generally, “sources” of international human rights law in particular, and even jus cogens norms. See also para. 60. For comment, see Brunnée and Toope, supra note 25 at 49–50.

83 See Burns, supra note 74 at paras. 79–81 (international law is “of use” in interpreting the Charter, but international human rights law “should inform” and “must be relevant and persuasive’ to such interpretation [emphasis added]). It is arguable that the Court’s recentjudgment in Health Services, supra note 80, has re-established this differential approach: contrast para. 70 (“the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified”) with para. 20 (“international law … may inform the interpretation of Charter guarantees”) [emphasis added].

84 Hape, supra note 1 at para. 55: “Whenever possible, [the Court] has sought to ensure consistency between its interpretation of the Charter, on the one hand, and Canada’s international obligations and the relevant principles of international law, on the other.” It should be noted that in recalling the Slaight Communications ruling, the majority in Hape slightly mischaracterizes it as holding that “Canada’s international obligations should also inform the interpretation of … the Charter.“ Ibid. [emphasis added].

85 Hape, supra note 1 at para. 56.

86 See, for example, ibid. at para. 35 (“rules [of customary international law] are important interpretive aids for determining the jurisdictional scope of s. 32(1) of the Charter”); para. 46 (“[t]hese principles [of customary international law] must also be drawn upon in determining the scope of extraterritorial application of the Charter”); para. 57 (in interpreting the Charter, “international law principles must be examined”); para. 93 (“[t]he words of s. 32(1) — interpreted with reference to binding principles of customary international law — must ultimately guide the inquiry”).

87 See Slaight Communications, supra note 70 at 1056–57.

88 See Suresh, supra note 30 at paras. 46 and 60.

89 It is perhaps conceivable that the majority was not in fact purporting to state a general rule of Charter interpretation but, rather, one applicable only to s. 32(1) (see Hape, supra note 1 at para. 56: “In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with…”) [emphasis added]. This seems highly unlikely, however, given the majority’s indication that the courts must interpret the Charter’s jurisdictional reach “as with the substantive provisions of the Charter” (ibid. at para. 33); its references to prior decisions governing Charter interpretation generally (ibid. at paras. 54–55); its subsequent unqualified reference to the “presumption of conformity” (ibid. at para. 56); as well as its overall failure to indicate or justify a need for a customized rule of interpretation applicable only to s. 32(1).

90 On the dangers of allowing international law to act as a limit on the protections afforded by the Charter, see Cook, supra note 4 at para. 148 (per Bastarache J.).

91 Suresh, supra note 30 at para. 60 [emphasis added].

92 Slaight Communications, supra note 70 at 1056 [emphasis added].

93 Hape, supra note 1 at para. 85 [emphasis added].

94 Suresh, supra note 30 at para. 60.

95 Burns, supra note 74 at para. 89.

96 It should however be noted that on 25 November 2005, Canada acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, 11 July 1991 , 1642 U.N.T.S. 414.

97 This is not such a far-fetched possibility given the current government’s newly adopted policy of not intervening on behalf of Canadians sentenced to death by courts in “a democratic country that supports the rule of law.” See Statement by the Hon. Stockwell Day, Minister of Public Safety, House of Common Debates, Hansard, 39th Parliament, 2nd Session, No. 013, 1 November 2007, <http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=39&Ses=2&DocId=3093030#OOB-2186711>.

98 It might be argued that the government’s capacity to enter into such a treaty would itself be controlled by the Charter. See Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441; and Hogg, supra note 68 at para. 37.2(e). In most instances, however, Charter challenges to the conclusion of such a treaty would likely only be brought once the treaty was in force, at which point its effect on interpretation of the Charter would already be operative, thus providing constitutional cover for the very governmental actions being challenged. Moreover, a judicial declaration that the conclusion of such a treaty was inconsistent with the Charter would (assuming compliance by the government) place Canada in violation of the pacta sunt servanda principle, one of the most fundamental rules of international law. See Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 [Vienna Convention], Article 26. If the Charter should be interpreted so as to “ensure compliance with Canada’s binding international obligations,” it therefore seems the chances for success of such a challenge would be very slim.

99 It will be recalled that the federal executive branch has constitutional authority to commit Canada to international treaties without the need for any legislative concurrence. See Gotlieb, A.E., Canadian Treaty Making (Toronto: Butterworths, 1968) at 4–6 and 14Google Scholar; Hogg, supra note 68 at paras. 11.2 and 11.3(c); Martin, Hon. P., Secretary of State for External Affairs, Federalism and International Relations (Ottawa: Queen’s Printer, 1968) at 11–33 Google Scholar; and Morris, G.L., “The Treaty-Making Power: A Canadian Dilemma” (1967) 45 Can. Bar Rev. 478 at 484.Google Scholar One is also reminded of the admonition of LaForest, J. in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570 at 585Google Scholar: “To permit government to pursue policies violating Charter rights by means of contracts or agreements with other persons or bodies cannot be tolerated.”

100 Vienna Convention, supra note 98, Article 53.

101 R v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344.

102 Hape, supra note 1 at paras. 53–54. See also text accompanying notes 50–52.

103 Hape supra note 1 at paras. 55–56.

104 Ibid. at para. 56 [emphasis added].

105 Through enactment of the Canada Act 1982 (U.K.), supra note 3.

106 See text accompanying note 51 , and Hape, supra note 1 at para. 53.

107 Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982.

108 See Weiser, I., “Undressing the Window: A Proposal for Making International Human Rights Law Meaningful in the Canadian Commonwealth System” (2004) 37 U.B.C. L. Rev. 113 at 147–48.Google Scholar

109 Charter, supra note 3 at s. 33.

110 Constitution Act, 1982, supra note 107 at s. 52(1): “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” The consistency requirement is somewhat less direct in the case of common law rules, which are to be brought into line with the values of the Charter. See Hill v. Church of Scientology of Toronto, [ 1995] 2 S.C.R. 1130 at 1169. See also R. v. Rahey, [1987] 1 S.C.R. 588; British Columbia Government Employees’ Union v. British Columbia, [1988] 2 S.C.R. 214; Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835; Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156; Hogg, supra note 68 at para. 37.2 (f)-(g); Sharpe, R.J. and Roach, K., The Charter of Rights and Freedoms, 3rd ed. (Toronto: Irwin Law, 2005) at 99–102.Google Scholar

111 Proclamations (1611), 12 Co. Rep. 74, 77 E.R. 1352; Hogg, supra note 68 at para. 1 . 9. This constitutional disability is in fact at the root of the requirement of treaty transformation elsewhere propounded by the Court. See Labour Conventions case, supra note 48; Capital Cities Communications, supra note 48; and Francis, supra note 48.

112 See Sullivan, R., Statutory Interpretation (Concord, ON: Irwin Law, 1997) at cc. 3–4 and 7 Google Scholar; Sullivan, supra note 50 at 1–3, 9–11 , 20, 105–106, and 108–18.

113 Edwards v. A.G. Canada, [1930] A.C. 124 at 136 (J.C.P.C.). See also Hunter v. Southam, [ 1984] 2 S.C.R. 145 at 156; Big M Drug Mart, supra note 101 at 344; Reference re British Columbia Motor Vehicle Act, [1985] 2 S.C.R. 486 at 499; Eldridge v. British Columbia, [1997] 3 S.C.R. 624 at para. 53; Hogg, supra note 68 at paras. 15.9(f), 18.2, 24.2(a), 26.3, 28.6(d), 36.8(a), 36.8(c), and 60.1 (f)-(g); Sharpe and Roach, supra note 110 at c. 3; and Sullivan, supra note 50 at 105–6.

114 Even setting aside Canada’s customary international legal obligations, Canada had either signed or was party to 3,922 treaties by 1 October 2007; and between 1 October 2006 and 30 September 2007 alone, Canada signed, ratified, acceded to, amended, terminated, or signified the entry into force of thirty bilateral and eight multilateral treaties. See Legal Affairs Branch, Department of Foreign Affairs and International Trade, Examples of Current Issues of International Law of Particular Importance to Canada (October 2007) at 49.

115 In particular, the principles of sovereign equality, non-intervention, and prescriptive and enforcement jurisdiction.

116 Indeed, international human rights law receives only four brief and general mentions by the majority in the course of its 122-paragraph judgment. See Hape, supra note 1 at paras. 43, 52, 90, and 101, essentially holding that, while the non-binding principle of comity suggests the need to respect another state’s sovereignty when participating in investigations abroad, this is not so if the result would be a violation of international human rights. In a subsequent judgment released after this article was written, the Supreme Court of Canada has also extended the operation of this international human rights limitation on the non-binding principle of comity to the binding principles of international law. See Canada v. Khadr, 2008 SCC 28 (released 23 May 2008) at paras. 18–19 and 26. Khadr does not, however, discuss the basis for this apparent extension or revision of the majority judgment in Hape. Nor does it consider whether Canada’s international human rights obligations require a broader interpretation of section 32(1) of the Charter than that propounded by the majority in Hape or otherwise elucidate the many reception law issues raised by Hape.

117 Civil Rights Covenant, supra note 75.

118 The United Kingdom ratified the Civil Rights Covenant on 20 May 1976, at which time it notified the secretary-general of the United Nations of the extension of the effect of its ratification of the Covenant to the Turks and Caicos Islands. See United Nations Treaty Collection, “Status of Multilateral Treaties Deposited with the Secretary-General,” c. IV(4), <http://untreaty.un.org/>. One must assume that the majority’s reference to the “sovereignty” of Turks and Caicos (see Hape, supra note 1 at para. 86) is in fact intended to refer to the sovereignty of the United Kingdom and that the majority was only speaking loosely in describing the Turks and Caicos Islands as a “country” (see Hape, supra note 1 at paras. 86 and 116).

119 See the authorities cited in notes 68 and 72 in this article.

120 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), [ 2004] I.C.J. Rep. 136 at paras. 108–11 , concluding at para. 111 : “[T]he Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”

121 See UN Human Rights Committee, General Comment 31, UN GAOR, 59th Sess., Supp. no. 40, vol. 1, UN Doc. A/59/40 (2004) at para. 12. See also UN Human Rights Committee, Lopez v. Uruguay, Communication no. 52/1979, UN Doc. CCPR/C/13//D//52/1979 (1981). For discussion, see Forcese, C., National Security Law: Canadian Practice in International Perspective (Toronto: Irwin Law, 2007) at 29–30.Google Scholar

122 But see Dennis, M.J., “ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory: Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation” (2005) 99 A.J.I.L. 119.Google Scholar

123 At the time of writing, the Civil Rights Covenant, supra note 75, had been ratified or acceded to by 160 states.

124 Hape, supra note 1 at para. 85.

125 It will be recalled that none of the parties before the Court made written submissions with respect to international law. See Appellant’s Factum, Respondent’s Factum, and Intervener’s Factum, supra note 2.

126 See text accompanying notes 73–83 in this article.

127 Health Services, supra note 80.

128 Including three of the five justices participating in the majority judgment in Hape. Note also that, while Deschamps J. (also a member of the majority in Hape) dissented in Health Services, she nevertheless endorsed the majority’s general approach to interpreting the scope of section 2(d) of the Charter. See Health Services, supra note 80 at para. 170.

129 Health Services, ibid. at para. 70: “[T]he Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.” See also ibid. at para. 79: “[S]. 2 (d) of the Charter should be interpreted as recognizing at least the same level of protection [as international conventions to which Canada is a party].” Note the absence of the qualification “generally,” which accompanied the articulation of the minimum content presumption in Slaight Communications, supra note 70 at 1056–57.

130 Health Services, supra note 80 at para. 20 (“international law … may inform the interpretation of Charter guarantees”); and para. 69 (“Canada’s international obligations can assist courts charged with interpreting the Charter’s guarantees”) [emphasis added].

131 Hape, supra note 1 at paras. 1 , 24, and 32.

132 See, for example, ibid. at para. 34 (“In order to understand how international law assists in the interpretation of s. 32(1), it is necessary to consider the relationship between Canadian domestic law and international law”); para. 35 (“[t]he use of customary international law to assist in the interpretation of the Charter requires an examination of the Canadian approach to the domestic reception of international law”); para. 56 (“[i]n light of … the direct application of international custom … I will now turn to the point that is directly in issue in this appeal: the interpretation of s. 32 of the Charter”) [emphasis added throughout].

133 See text accompanying notes 35–63 in this article.

134 This leaves aside the possibility, however, that the extraterritorial obligations imposed by the Civil Rights Covenant, supra note 75, may exist in customary international and thus, at least on the theory of automatic adoption, Canadian common law.

135 See Constitution Act, 1982, supra note 107, s. 52(1); Hogg, supra note 68 at paras. 12.2(a)-(b) and 37.2(f)-(g); Sullivan, supra note 112 at 179–81; Canadian Foundation for Children, supra note 50; Montréal (City) v. 2952–1366 Québec Inc., [2005] 3 S.C.R. 141 . See also authorities cited in note 110.

136 That this is the ratio decidendi of the majority judgment in Hape, supra note 1, is suggested at para. 93: “The words of s. 32(1) — interpreted with reference to binding principles of customary international law — must ultimately guide the inquiry.”

137 Ibid. at para. 69.

138 Ibid. Note, as an aside, the logical leap between the premise that Canada has no enforcement jurisdiction over a matter situated outside Canada’s territory, and the conclusion that the matter itself “therefore falls outside the authority of Parliament. This is a conflation of prescriptive and enforcementjurisdiction, of which the majority is repeatedly guilty throughout its judgment: see, for example, para. 65 (“[w]hile extraterritorial jurisdiction-prescriptive, enforcement or adjudicative-exists under international law, it is subject to strict limits under international law that are based on … the territoriality principle” [emphasis added]); and para. 85 (reasoning that the Charter cannot apply to extraterritorial conduct — a question of its prescriptive reach — if it cannot be enforced extraterritorially, thus collapsing the distinction between prescriptive and enforcement jurisdiction).

139 “Now the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State.” Lotus, supra note 66 at 18–19.

140 Hape, supra note 1 at para. 66.

141 Ibid. at para. 68.

142 Ibid. at paras. 39, 53, and 68.

143 Ibid. at paras. 68–69.

144 Hogg, supra note 68 at para. 12.2; and Sullivan, supra note 112 at 34.

145 In fact, the texts point in the opposite direction. See, for example, the Statute of Westminster 1931 (U.K.), 22 Geo. 5, c.4, s.3, which confers on Parliament “full power to make laws having extra-territorial operation” [emphasis added]. See also Interpretation Act, R.S.C. 1985, c. I–21, s. 8(3); Hogg, supra note 68 at para. 13.2. Croft v. Dunphy, [1933] A.C. 156 (J.C.P.C.) [Croft], in particular, affirmed the vires of anti-smuggling legislation that authorized the seizure of vessels outside Canadian territory, holding that the British North America Act, 1867 “imposed no territorial restriction in terms and their Lordships see no justification for inferring it” (at 167). LeBel J. himself has held that Croft v. Dunphy stands for the proposition that the Constitution Act, 1867 “imposed no restriction on the scope of Parliament’s plenary legislative power.” See Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427 at para. 141.

146 See Hape, supra note 1 at paras. 34 and 68.

147 See note 175 in this article.

148 Sullivan, supra note 112 at 34; Sullivan, supra note 50 at 357–58; and Hogg, supra note 68 at para. 12.2.

149 Hogg, supra note 68 at para. 12.2. See also R. v. Salituro, [1991] 3 S.C.R. 654 at 670 and 678; Watkins v. Olafson, [1989] 2 S.C. R. 750, 61 D.L.R. 4th 577 at 584; and Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842 at para. 42.

150 See generally Hogg, supra note 68 at paras. 1 .8 and 15.9(g).

151 Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 at paras. 93 and 104 [Judges Reference].

152 Québec Secession Reference, supra note 29 at para. 49.

153 And, in particular, by the preambular reference, in the Constitution Act, 1867, to Canada having “a constitution similar in principle to that of the United Kingdom.” See Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455 at 462–63.

154 Judges Reference, supra note 151 at para. 104.

155 See also British Columbia v. Imperial Tobacco, [2005] 2 S.C.R. 473 at para. 65; Babcock v. Canada, [2002] 3 S.C.R. 3 at para. 55; Ocean Port Hotel v. British Columbia, [2001] 2 S.C.R. 781; and Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 752.

156 See text accompanying notes 108–11 in this article.

157 Hape, supra note 1 at para. 69.

158 A result all the more remarkable for the majority’s failure to make any attempt to reconcile the constitutional principle of parliamentary supremacy with the competing, apparently constitutional, principle that Parliament may not authorize extraterritorial enforcement action.

159 Hape, supra note 1 at para. 94.

160 National Defence Act, R.S.C. 1985, c. N-5, s. 31 [emphasis added].

161 Ibid. at s. 68.

162 Ibid. at s.196.17(2).

163 Ibid. at s. 273.65(2)(a).

164 Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, s. 4 [emphasis added].

165 Ibid. at s. 39 [emphasis added].

166 Arctic Waters Pollution Prevention Act, R.S.C. 1985, c. A-12, s. 15(4).

167 Oceans Act, S.C. 1996, c. 31, s. 12(1).

168 Ibid. at s. 14.

169 Ibid. at s. 20.

170 Coastal Fisheries Protection Act, R.S.C. 1985, c. C-33, ss.7–9.

171 Hape, supra note 1 at para. 94.

172 See Croft, supra note 145.

173 For example, in the absence of consent, valid grounds for acting in self-defence, or authorization by the Security Council under Chapter VII of the Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7 (in force 24 October 1945).

174 Hape, supra note 1 at paras. 39, 53, and 68.

175 See Macdonald, supra note 25 at 119.

176 Hape, supra note 1 at para. 94.

177 Ibid.

178 Brunnée and Toope, supra note 25 at 4.

179 It is also striking, and perhaps not insignificant or inconsequential, that the majority fails to advert to any of the voluminous Canadian legal literature on the relationship between international and domestic law (outside of the well-settled statutory interpretation context).

180 See, for example, Trendtex, supra note 23 at 553; van Ert, supra note 22 at 150 et seq.; and Fatima, supra note 23 at 408 et seq. Indeed, the majority in Hape adverts, at least in passing, to some such considerations. For example, the majority seems implicitly to approve the reasoning of Denning M.R. in Trendtex, ibid., although it offers no further justification for embracing the “doctrine of adoption” (whatever its correct interpretation) other than a desire to follow the “common law tradition” and the prevailing, implicit tendency in prior Canadian jurisprudence. See Hape, supra note 1 at paras. 36–39.