Saskatchewan Centre for Law in the Contemporary Workplace Queens Faculty of Law April 25 2015 Application of International Law in the Supreme Court of Canada Peter J Barnacle The W Law Group ID: 929961
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Slide1
Implications of Saskatchewan Federation of labour v. SaskatchewanCentre for Law in the Contemporary Workplace, Queen’s Faculty of LawApril 25, 2015
Application of International Law in the Supreme Court of Canada
Peter J. BarnacleThe W Law GroupSaskatoon
Slide2Considerations1. constitutional objections to utilizing international law in the interpretation
of freedom of association;
2. the role of international law in interpretation of freedom of association under the Charter;
3. substance
of international law relevant to the interpretation of freedom
of association
under the
Charter;
and
4. recognition
of the development throughout the world of a common
understanding of
the meaning of freedom of association in domestic law
influenced or based on international
law.
Slide3Constitutional Objections Offends Principles of Federalism
Charter
itself reflects the application of the governing principles of federalism in our system.
R
atified
by the requisite number of provinces, including Saskatchewan, after an
extensive period
of dialogue between the federal and provincial governments.
Canada
Act,
1982,
to
which the
Constitution Act, 1982, and hence the Charter,
is a Schedule
,
passed
by
the
Parliament
of the United Kingdom pursuant to a joint resolution request of both
the Canadian
House of Commons and Senate.
Terms
of that joint resolution had
been agreed
to at a First Ministers’ Conference in November of 1981 by the First Ministers
of nine
of ten provinces (
excluding Québec).
Slide4Constitutional Objections Contd.Health Services (2007) at para. 69
“
Under Canada’s federal system of government, the incorporation of international agreements into domestic law is properly the role of the
federal Parliament
or the provincial legislatures. However, Canada’s
international obligations
can assist courts charged with interpreting the
Charter’s guarantees (
see Suresh
v. Canada (Minister of Citizenship and Immigration
), 2002
SCC 1 (CanLII
),
[
2002] 1 S.C.R. 3, 2002 SCC 1, at para. 46). Applying this interpretive tool
here supports
recognizing a process of collective bargaining as part of the
Charter’s
guarantee
of freedom of association
.”
Slide5Constitutional ObjectionsOffends the principle of dualismCharter
is the implementation of international human rights obligations to which Canada is bound
.Charter
reflects
linkage with international human rights obligations
Slide6International Labour Law: the “Why”Dickson, C.J. Alberta Reference
(1987) at para. 57-60
(a) there is a body of treaties, conventions and customary norms that comprise international human rights law and reflect the commitment of the nations of
the world
to ensure “freedom, dignity and social justice” for their citizens;
(b) the
Charter
conforms to the spirit of the international human rights
movement and incorporates
many of “polices and prescriptions of the various
international documents
pertaining to human rights”;
(c) various sources of international human rights law – declarations, covenants
, conventions
, judicial and quasi-judicial decisions of international tribunals
, customary
norms – must be… “relevant and persuasive sources for
interpretation of the
Charter
's provisions
”;
Slide7The “Why”(d) given the similarity in “policies and provisions” of the Charter
and international human rights Conventions, “considerable relevance” is attached to decisions of adjudicative bodies in supplying content to imprecise Charter
rights such as freedom of association;(e) Canada is party to a number of international human rights treaties that contain similar or identical provisions to those in the
Charter
;
(f) Canada has “obliged itself internationally to ensure within its borders the protection of certain fundamental rights and freedoms which are also contained in the
Charter
”.
Slide8The “Why” – Principles from Statutory InterpretationR. v. Hape
(2007) per LeBel J., para. 53
[Presumption of conformity in statutory interpretation
]
“It is a well-established principle of statutory interpretation that legislation will be
presumed to conform to international law. The presumption of conformity
is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.”
[emphasis added]
Slide9Principles of Statutory InterpretationR. v. Hape, para.
53
[Avoid Construction Causing Breach] [Presumption apply with values and principles] “First, the legislature is presumed to
act in compliance with
Canada's obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will
avoid a construction that would place Canada in breach
of those obligations.
The second aspect is that the legislature is
presumed to comply with the values and principles
of customary and conventional international law
.”
[emphasis added]
Slide10Principles of Statutory InterpretationR. v. Hape, para. 54
[Presumption of conformity]
“
The
presumption of conformity
has been accepted and applied by this Court on numerous occasions...
The presumption applies equally to customary international law and treaty obligations
.”
[emphasis added]
Slide11International Labour Law and Charter Interpretation: the “How”Dickson, C.J.
Alberta Reference (1987)
Para. 59
[
Presumption to provide protection at least as great]
“...
I believe that
the Charter
should generally
be presumed to provide protection
at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified
.”
[emphasis added]
Para. 60 [Relevant and Persuasive Source for Interpretation]
“In
short, though I do not believe the judiciary is bound by the norms of international law in interpreting
the Charter,
these norms provide a
relevant and persuasive source
for interpretation of the provisions of
the Charter,
especially when they arise out of Canada's international obligations under human rights conventions
.”
[emphasis added]
Slide12The “How”Dickson, C.J. Alberta Reference, at para. 79
[Recognizing same level of Protection] “In
summary, international conventions to which Canada is a party recognize the right of the members of unions to engage in collective bargaining, as part of the protection for freedom of association. It is reasonable to infer that s. 2(
d
) of the
Charter
should be interpreted as recognizing at least the same level of protection
.”
[emphasis added]
Slide13The “How” - Section 1Slaight Communications
(1989), Dickson, C. J. at para. 23:
[Inform interpretation of Charter rights]“Given
the dual function of s. 1 identified in
Oakes
, Canada's international
human rights
obligations
should inform not only the interpretation of the content of
the rights
guaranteed by the
Charter
but also the interpretation of what can
constitute pressing
and substantial s. 1 objectives which may justify restrictions upon
those rights
. Furthermore, for purposes of this stage of the proportionality inquiry,
the fact
that a value has the status of an international human right, either in
customary international
law or under a treaty to which Canada is a State Party,
should generally
be indicative of
a high degree of importance attached to that objective
. This
is consistent with the importance that this Court has placed on the
protection of
employees as a vulnerable group in society
.”
[emphasis added]
Slide14The “How”R. v. Hape, para. 55
[Ensure consistency]
“This Court has also looked to international law to assist it in interpreting the
Charter.
Whenever possible, it has sought to
ensure consistency
between its interpretation of the Charter, on the one hand, and Canada's international
obligations and the relevant principles of international law, on the other
...”
[emphasis added]
Slide15The “How”Health Services (2007), at para. 78
[
Persuasive Source for interpreting scope] “
...
Canada's
current international law commitments and the current state of international thought
on human rights provide a persuasive source for interpreting the scope of the
Charter
.”
[emphasis added]
Slide16The “How”SFL (2015
)
[Ensure Consistency] [Presumption at least as great a level]
[64]
LeBel
J. confirmed in
R. v. Hape
, 2007 SCC 26 (CanLii),
[2007] 2 S.C.R. 292, that in interpreting the
Charter,
the Court “has sought to ensure consistency between its interpretation of
the Charter,
on the one hand, and Canada’s international obligations and the relevant principles of international law, on the other”: para. 55. And this Court reaffirmed in
Divito v. Canada (Public Safety and Emergency Preparedness
)
, 2013 SCC 47 (CanLii), [
2013] 3 S.C.R. 157, at para. 23, “
the Charter
should be presumed to provide at least as great a level of protection
as is found in the international human rights documents that Canada has ratified”.
[emphasis added]
Slide17The “How”SFL, cont’d
, at para. 65
[Presumption at least as great a level]
“
Given
this presumption, Canada’s international obligations clearly argue for the recognition of a right to strike within s. 2(
d
).”
Slide18How the Role in Charter Interpretation is Framed
Presumed provide at least as great level of protection
Relevant and persuasive sourceRecognizing same level of protectionInform interpretation of
Charter
rights
Ensure consistency with international obligations
Persuasive source for determining
scope
Presumption of conformity
Presumed to comply
Slide19Role in Charter Interpretation
Do all these mean the same thing?
If not, is
SFL
the last word?
Slide20Substance of International Law: The “What”
Statute of the International Court of Justice (1945
)International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
International custom
, as evidence of a general practice accepted as law;
The
general principles of law
recognized by civilised nations;
Judicial decisions and teachings of the most highly qualified publicists of the various nations
, as subsidiary means for the determination of rules of law.
Slide21Treaties and Conventions: The “What”Vienna Convention on the Law of Treaties (1969)
Article 26 Pacta sunt servanda
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Slide22Treaties: The “What”The UN FrameworkRegional Treaties
ILO Constitution and Ratified ConventionsInterpretations by specialized agencies - custom and
practice?[Unratified treaties]
Slide23Customary International LawTwo elements to establish international customary law:
General Practice
interpreted to mean “state practice” based on how states behave.
“opinio juris”
based on state behaviour, the
practice
is accepted
as
law
Slide24Application SFL, para. 69
“
The relevant and persuasive nature of the Committee on Freedom of Association jurisprudence has developed over time through custom and practice and, within the ILO, it has been the leading interpreter of the contours of the right to
strike
.”
Slide25The Dispute at the ILO
Tripartite Meeting on the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the right to strike and the modalities and practices of strike action at national level
Geneva
23–25 February 2015
Slide26OutcomeAppendix I
The ILO Standards Initiative – Joint Statement of Workers’ & Employers’ Groups (23.02.2015)
[EXCERPTS]
“The
right to take industrial action by workers and employers in support of their legitimate industrial interests is recognised by the constituents of the International Labour Organisation
.”
Slide27OutcomeAppendix II Government Group Statement (23/2/2015)
[EXCERPTS]
4. The Government Group recognizes that the right to strike is linked to freedom of association which is a fundamental principle and right at work of the ILO. The Government Group specifically recognizes that without protecting a right to strike, Freedom of Association, in particular the right to organize activities for the purpose of promoting and protecting workers’ interests, cannot be fully realized.
Slide28Develop of a Common Understanding: “What is Everyone Else Doing”Health Services, at para. 78
“... Canada's current international law commitments and
the current state of international thought
on human rights provide a persuasive source for interpreting the scope of the
Charter
.” [emphasis added]
Slide29SFL, para. 71
“Additionally
, there is an emerging international consensus that, if it is to be meaningful, collective bargaining requires a right to strike
.” [emphasis added]
Slide30Conclusion
However, one wishes to frame its application, the use of international labour law in Charter litigation is now a feature of our constitutional law.
We will all have to pay more attention.