Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law
John H. Currie, “Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law”, (2007) 45 Canadian Yearbook of International Law 55-96.
42 Pages Posted: 12 Jun 2014
Date Written: 2007
The majority Supreme Court of Canada judgment in Hape - a case concerning extraterritorial applicability of the Canadian Charter of Rights and Freedoms - is premisedon three aspects of the relationship between international and Canadian law: (i) 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.
Keywords: supreme court of canada, Hape, charter of rights and freedoms, canada, international law, common law, customary, unwritten principles, constitution, rule of law
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