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

See all articles by Brian A. Langille

Brian A. Langille

University of Toronto - Faculty of Law

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP

Date Written: February 17, 2012

Abstract

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

Suggested Citation

Langille, Brian A. and Oliphant, Benjamin J., From the Frying Pan into the Fire: Fraser and the Shift from International Law to International 'Thought' in Charter Cases (February 17, 2012). (2011-2012) 16:2 CLELJ 181 , Available at SSRN: https://ssrn.com/abstract=2007018 or http://dx.doi.org/10.2139/ssrn.2007018

Brian A. Langille (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP ( email )

Vancouver, British Columbia
Canada

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
227
Abstract Views
1,447
rank
161,388
PlumX Metrics