Sunday, February 24, 2008

SCC on International Law: Is there anything new here?

Two posts down, I highlight the Supreme Court of Canada's statement that "the Charter should be presumed to provide at least as great a level of protection [of a right] as is found in the international human rights documents Canada has ratified."

One possible response is that there is nothing new here. Canadian courts have never had a problem with citing those of other countries (or international tribunals) as persuasive authority. In fact, it wasn't that long ago when a lawyer would be a bit apologetic about using a Canadian case at law, possibly explaining that the "English courts do not seem to have considered this question, my lord." Even American cases are allowed, if possibly seen as a sign of desperation.

Still, I am not aware of any other example of holding that international or comparative law is presumptively binding. And yet I don't know how else to interpret what they said in the Bill 29 case. Indeed, the ILO seems more authoritative than past decisions of the Supreme Court itself.

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