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Interpreting the Charter with International Law: Pitfalls and Principles

(2014) 19 APPEAL 105

25 Pages Posted: 21 Jan 2014 Last revised: 19 Apr 2015

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP

Date Written: 2014

Abstract

This paper seeks to critically assess the Supreme Court of Canada's jurisprudence on the use of international law, and international human rights law in particular, in the context of interpreting the Canadian Charter of Rights and Freedoms. To that end, a brief survey of the case law is undertaken, and various inconsistencies in the jurisprudence are highlighted. The author argues that in light of the selective use of international law, there should be no automatic 'presumption' that the Charter reflects all of the various international documents and treaties to which the executive might adhere. It is argued that such an approach would undermine important aspects of the Canadian constitutional order, including both the separation of powers and the federal division of powers. However, international human rights norms, like comparative law generally, can still be useful, as long as they are both relevant and persuasive to the case at hand. The author proposes a number of guidelines that may assist courts in determining the relevance and persuasiveness of various international human rights norms.

Suggested Citation

Oliphant, Benjamin J., Interpreting the Charter with International Law: Pitfalls and Principles (2014). (2014) 19 APPEAL 105. Available at SSRN: https://ssrn.com/abstract=2380161

Benjamin J. Oliphant (Contact Author)

Gall Legge Grant & Munroe LLP ( email )

Vancouver, British Columbia
Canada

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