International Treaty Norms and Driedger's Modern Principle of Statutory Interpretation
Legitimacy and Accountability in International Law, Vol. 33, 2005
23 Pages Posted: 15 Nov 2005 Last revised: 8 May 2017
Date Written: 2005
Since the 1999 decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), the issue of the national application of international law has taken centre stage. The argument here is that international treaty norms, although not binding, ought to play an important role in the contextual interpretation of domestic statutes.
The matrix in which international law operates is based on the Westphalian model of international relations and postulates the existence of an international realm that is distinct and separate from the internal realm. There is no direct connection between international law and national law because they regulate different systems, which explains the need to have rules of reception in Canada to bridge the two realities. As far as treaties are concerned, the Labour Conventions case holds that implementing legislation must be enacted to give effect domestically to such international norms. Recent case law seems to suggest that international law may bind domestic courts if implemented. These obiter dicta must not be followed - domestic courts apply domestic law, and it is to the extent that reception rules allow international law to be part of domestic law that treaty norms may have an impact on the interpretation of domestic law by domestic courts. In that sense, international law can never bind a sovereign state like Canada. What international law can do, and indeed should do, is to influence domestic law.
Given the recent developments in statutory construction, with the modern principle of interpretation suggested by Elmer Driedger being unanimously endorsed by Canadian courts, the way to resort to international law should be re-considered. The presumption of conformity to international law, which suggests that in case of ambiguity in the law a construction that is in line with international law ought to be favoured, must be abandoned because it is rooted in the, now obsolete, literal rule of statutory interpretation and its preliminary condition pertaining to legislative ambiguity. Instead, the use of international law to assist in the interpretation of Canadian statutes should fall within Driedger's method, also referred to as the words-in-total-context approach because it proposes an analysis that takes into account the full context of the statutory provision at issue. Under such a scheme, international treaty norms should be viewed as a contextual element in legislative interpretation, which persuasive force will vary depending on the circumstances.
Keywords: International Law, Statutory Interpretation, Constitutional Law, Legal Theory
JEL Classification: K30, K33
Suggested Citation: Suggested Citation