Hape Tangles Rules Governing the Domestic Reception of International Law
Editorial Note: This post is the first of a series on the Supreme Court of Canada and the Federal Court of Appeal’s jurisprudence on the application of the Charter of Rights and Freedoms to conduct outside Canada. The series will emphasize these courts’ broader understandings (or misunderstandings) of the reception of international law by Canadian law. We begin with a post by Professor John Currie of the University of Ottawa Faculty of Law that was commissioned by TheCourt.ca. Professor Currie’s post consists of a précis of a more fully developed analysis of the reception law issues raised by R. v. Hape, 2007 SCC 26, in J.H. Currie, “Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law” (2007) 45 Can. Y.B. Int’l L. 55.
A second post by Professor Currie will follow in November on the series of Khadr cases, again as a commissioned précis of an article in the 2008 Canadian Yearbook of International Law. A third and final post, by Professor Craig Scott (Acting Editor-in-Chief of TheCourt.ca), will be on the Federal Court of Appeal ruling in Amnesty International v. Canada, 2008 FCA 401 (and the denial of leave to appeal by the Supreme Court), and is scheduled to appear in December.
In R. v. Hape, 2007 SCC 26 [Hape], a majority in the Supreme Court of Canada considers the relationship between customary international law and domestic law. It also considers the role of international law in construing the Canadian Charter of Rights and Freedoms [Charter] and, apparently, the Canadian Constitution more broadly. The results are confusing at best, and ill-considered at worst.
Customary International Law as Domestic Law
The Hape majority, after reviewing the presumptive adoptionist stance taken by the Canadian courts to date, writes (at para. 39):
[F]ollowing the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary… Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law. [Emphasis added]
While at first blush the sentence emphasized in this passage seems to confirm unequivocally the automatic status of customary international law as Canadian law, the remainder of the passage and other elements of the majority judgment seem to suggest quite different rules. These range from a more or less robust (“should” vs. “may”) onus on the courts to effect incorporation of customary international law—necessarily implying that incorporation is not automatic—to an eschewal its incorporation, relegating customary international law to the status of mere inspiration for the “interpretation” and “development” of Canadian law. In other words, Hape asserts several mutually inconsistent versions of the doctrine of adoption, both monist and dualist in nature, without clearly articulating which one prevails. The uncertainty thus introduced is only exacerbated by the fact that discussion of this issue by the majority was likely obiter in a judgment turning solely on interpretation of the Charter.
Charter Interpretation and International Law
Hape generates further uncertainty on the use of international law in interpreting the Charter by introducing an unprecedented rule (at para. 56):
In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a conclusion.
This extension of the presumption of statutory conformity with international law to the Charter context is a radical departure from the Court’s prior Charter jurisprudence. Neither Slaight Communications v. Davidson,  1 S.C.R. 1038, nor any of its successors asserted a presumption of Charter compliance with Canada’s international legal obligations. At their strongest, the Court’s prior judgments only ever suggested that international law established a floor of human rights protection below which Charter interpretation should not, “generally” and absent “exceptional circumstances”, drop—a floor, moreover, established only with reference to Canada’s international human rights obligations. By contrast, Hape’s compliance requirement implies that Charter protections are also subject to any ‘ceiling’ or ‘walls’ derived from any of Canada’s international legal obligations, whether of a human rights character or not.
Some of the Court’s prior judgments rejected any controlling role for international law in interpreting the Charter, treating international law simply as context that optionally “may inform” such interpretation, but “not as controlling in itself” (see, for example, Suresh v. Canada, 2002 SCC 1, at paras. 46 and 60). In contrast, Hape appears to narrow drastically any judicial discretion to adopt a Charter interpretation that does not conform to any of Canada’s international legal obligations, to situations where the Charter’s express wording inescapably compels that result.
The majority in Hape does not advert to or justify these fundamental departures from its prior jurisprudence. The conceptual uncertainty thus created is also exacerbated by the Court’s failure to apply Hape’s presumption of Charter compliance in subsequent cases. In particular, in Health Services v. British Columbia, 2007 SCC 27—released the day after Hape—the majority simultaneously reasserts Slaight Communications’ minimum content presumption (albeit without its qualifications), as well as the far more equivocal Suresh approach, all the while failing to advert at all to Hape’s novel presumption of compliance. Similarly, while the Court quotes the Hape presumption of compliance in its subsequent May 2008 judgment in Khadr, 2008 SCC 28 (a case that I will discuss in a future post), it does not endorse clearly the presumption. In any case, the Court also cites the much more discretionary “may inform” approach propounded in Suresh, without attempting to reconcile the two.
Hape therefore does not resolve the Court’s ongoing struggle to define, with clarity, the appropriate role for Canada’s international legal obligations in interpreting the Charter. Rather, it worsens the situation by adding yet another to the variety of approaches from which the Court picks and chooses from case to case.
International Law as a Source of the Unwritten Constitution?
Finally, another unprecedented innovation emerges from Hape: the apparent transformation of rules of international law into unwritten principles of the Canadian Constitution. It will be remembered that the Hape majority holds that “extraterritorial application of the Charter is impossible” (para. 85). The primary basis for this conclusion is a purported territorial limitation on Canada’s enforcement jurisdiction at international law, coupled with the presumption of Charter compliance reviewed above. However, the majority also relies upon an alternative argument: it reasons, in light of international law’s constraints on the exercise of extraterritorial enforcement jurisdiction, that Parliament “has no jurisdiction to authorize enforcement abroad” (para. 94). As a result, enforcement abroad falls outside the “authority of Parliament” and, hence, section 32(1) of the Charter.
This argument’s critical premise—that Parliament has no jurisdiction to authorize enforcement abroad—is entirely sourced by the majority in international law rather than any previously recognized rule of domestic constitutional law. Indeed, Canadian constitutional law is clearly to the contrary effect: the authority of Parliament is plenary within the classes of subjects enumerated in section 91 of the Constitution Act, 1867, extends to the authorization of extraterritorial enforcement action (see e.g. Croft v. Dunphy,  A.C. 156 (J.C.P.C.)), and even includes the power to override international law itself (see Hape at paras. 39, 53, 68).
So how does a rule of international law come to be applied, by a Canadian court, as a rule of domestic constitutional law that purportedly curtails the authority of Parliament? Did the majority implicitly adapt or extend the “doctrine of adoption” from a rule providing for incorporation of customary international law as part of the common law into one also providing for its incorporation as part of the unwritten Constitution? If so, fundamentally important questions are raised, including whether the Court may properly import, into the unwritten Constitution, international legal principles that contradict the Constitution’s most fundamental principles (such as the supremacy of Parliament); and, if so, what this means for domestic democratic control over the content of the Canadian Constitution. Unfortunately, the Court does not advert to, much less address, these concerns, leading to uncertainty as to the relationship between international law and the unwritten Constitution – as well as the soundness of the majority’s conclusion on the extraterritorial applicability of the Charter.