International Human Rights Law in the Supreme Court's Charter Jurisprudence: Commitment, Retrenchment and Retreat – In No Particular Order

Following a review of the Supreme Court of Canada’s early, explicitly receptive, approach to using international human rights law (IHRL) in interpreting the Canadian Charter of Rights and Freedoms (Charter), the Court’s more recent disarray on the issue is demonstrated by the author in two principal ways. First, a review of the Court’s doctrinal approaches to the use of international law, including IHRL, in Charter interpretation between 2000 and 2010 reveals profound incoherencies and contradictions in those approaches. It is argued that what emerges is no mere evolution of the relevant rules; rather, the cases reveal no discernible evolutionary trend at all but rather a confounding on-again, off-again infatuation/disaffection with IHRL that seemingly speaks more to simple confusion than to conscious evolution of a principled approach. Second, it is shown that in some Charter cases, the Court has entirely ignored plainly relevant IHRL considerations in favour of more general principles of international law, an approach that has had the effect of dramatically limiting the scope of Charter protections. Indeed, it is demonstrated that the overwhelming majority of the Court’s Charter jurisprudence of the period 2000-2010 makes no reference to IHRL at all, much less places any reliance on it. This reality stands in stark contrast to the broad perception that reliance on IHRL in the Court’s Charter jurisprudence is the norm rather than the exception. All of this reflects, it is argued, a Court that is neither clearly convinced of the value of IHRL in Charter interpretation nor committed to its internalization in Canadian law. Yet neither is the Court clearly and unambiguously antipathetic to IHRL, as illustrated by sporadic, including more recent, instances of its fulsome embrace by the Court. Rather, the record of the period 2000-2010 suggests a Court that is simply unresolved as to the appropriate place of IHRL in the work of Canadian courts, which in turn suggests that the Court is either unwilling or unable to articulate a clear and coherent set of principles governing this critically important issue. In this light, the paper concludes with a call for a return by the Court to a coherent set of principles that clearly embrace resort to IHRL as an ameliorative influence in Charter interpretation - coupled with consistent application of those principles in its Charter jurisprudence.

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