From the Frying Pan into the Fire: Fraser and the Shift from International Law to International 'Thought' in Charter Cases
(2011-2012) 16:2 CLELJ 181
52 Pages Posted: 18 Feb 2012 Last revised: 22 Feb 2017
Date Written: February 17, 2012
In its 2007 decision in BC Health Services the Supreme Court of Canada invoked international law in support of its conclusion that the Charter’s guarantee of “freedom of association” included collective bargaining. In its 2011 decision in Fraser the Court returns to the issue of the role of international norms in Charter cases and was presented with the opportunity to clarify its position and respond to criticisms thereof. In this article we argue that the Court both missed an opportunity to correct and clarify its approach to the use of international law, and has, remarkably, sought to respond to its critics by shifting to the even more unstable ground of international legal “thought”. We also discuss the implications of the Court’s international turn on some other constitutional basics, including well established rules on the impact of treaties in domestic law, and the distribution of powers in the Canadian federation.
Keywords: Constitutional Law, International Law, Freedom of Association, Labour
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