¹ Baker, infra note 133.

² Some writers describe the application of international law in monist jurisdictions as proceeding by “adoption,” meaning that the international norm is adopted automatically by domestic law. I dislike this term, for to adopt something suggests a positive act of acceptance by someone, whereas the whole point of the monist/adoptionist model is that no such act is needed. I prefer the term “incorporation,” which is more common in modern English writing on the subject. Confusingly, incorporation is sometimes used to mean its opposite, namely, the implementation of treaty law by statute. See, for instance, Hunt, Murray, Using Human Rights Law in English Courts (Oxford: Hart, 1998), 12 n. 43 Google Scholar, where the author lucidly explains the difference between the “incorporation” of customary international law and the “transformation” of international treaty law, only to proceed immediately (at 15) to speak of “unincorporated conventions”!

³ For a lengthy treatment of the incorporation of customary international law in Canada, see Ert, Gibran van, International Law in Canada: Principles, Customs, Treaties and Rights (LL.M. thesis: University of Toronto, 2000) at chapter 3.Google Scholar

⁴ On international custom generally, see SirJennings, Robert and SirWatts, Arthur, eds., Oppenheims International Law, 9th ed., vol. 1 (Harlow: Longman, 1992)Google Scholar, section 10, and Emanuelli, Claude, Droit international public: contribution à l’étude du droit international selon une perspective canadienne (Montreal: Wilson and Lafleur, 1998) at 41–61.Google Scholar

⁵ At common law, the definition of an international convention (or treaty) is apparently the same as that recognized in international law, thus eliminating the unattractive argument that states: “While this agreement may be a treaty at international law, it is not one for the purposes of our law.” By contrast, American constitutional law distinguishes between treaties, which are part of “the supreme Law of the Land” under Article 6 of the constitution, and executive agreements, which are not necessarily self-executing. See Jennings and Watts, supra note 4 at 74–7. If, as is doubtful, there was a distinct common law definition of “treaty,” it has been swept aside by the 1969 Convention on the Law of Treaties, Can. T.S. 1980 No. 37 [hereinafter Vienna Convention], to which Canada is a party and which, in any event, is at least partly declaratory of customary international law: Shaw, Malcolm N., International Law, 4th ed. (Cambridge: Cambridge University Press, 1997) at 633 Google Scholar, citing Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, [1971] I.C.J. Rep. 16, 47, and the Fisheries Jurisdiction Case (United Kingdom v. Iceland) (Jurisdiction), [1973] I.C.J. Rep., 3, 18.

⁶ Vienna Convention, supra note 5 at art. 3.

⁷ See generally van Ert, supra note 3, especially at chapter 1.

⁸ SirBlackstone, William, Commentaries on the Laws of England, vol. 4 (Chicago: University of Chicago Press, 1979) at 66–7.Google Scholar

⁹ Ibid.

¹⁰ Canadian Charter of Rights and Freedoms, s. 11 (g), Part I of the Constitution Act 1982, being Schedule Β to the Canada Act 1982 (U.K.), 1982, c. 11.

¹¹ For more on treaty-making, see Hogg, Peter, Constitutional Law of Canada, loose-leaf ed. (Scarborough: Carswell, 1997) at chapter 11Google Scholar; Copithorne, Maurice, “Canadian Treaty Law and Practice” (1996) 54 The Advocate 35 Google Scholar. A dated, but still useful, work is Gotlieb, A. E., Canadian Treaty-Making (Toronto: Butterworths, 1968)Google Scholar. For a description of Canadian treaty-making practice by the Legal Bureau of the Department of External Affairs, see (1986) 24 C.Y.I.L. 397.

¹² Vienna Convention, supra note 5 at art. 6.

¹³ See ibid. at art. 11.

¹⁴ In Thomson v. Thomson,, [1994] 3 S.C.R. 551 at 610, L’Heureux-Dubé J., in a concurring opinion, held that the federal treaty-making power is found in Section 132 of the Constitution Act 1867. That finding is, with respect, wrong. Section 132 grants the “Parliament and Government of Canada … all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.” This section only grants power to perform treaty obligations; it grants no power to incur such obligations. Canada lacked such power for much of its early history. Furthermore, Section 132 only grants power respecting Empire treaties. Such treaties no longer exist, and Section 132 is now spent. In a letter of February 1, 1985 to the Council of Europe explaining Canadian treaty practice (reprinted in (1986) 24 C.Y.I.L. 397), the Legal Bureau of the Department of External Affairs stated: “The Canadian Constitution contains no provisions regarding treaty-making apart from Section 132 of the Constitution Act, 1867 which has fallen into disuse … Treaty-making in Canada is part of the Royal Prerogative, the residue of authority left in the Crown, and in practice exercised by the Governor General in Council, i.e. the Governor General of Canada acting on the advice of Privy Councillors who are Ministers of the Government.”

¹⁵ Dicey, A. V., Introduction to the Study of the Law ofthe Constitution, 10th ed. (London: Macmillan, 1964) at 424.Google Scholar

¹⁶ Whether this power is vested wholly in the federal executive or divided between the federal and provincial executives is not entirely clear as a matter of domestic law. However, in practice, it is the government of Canada and not the provincial governments that binds Canada internationally. See van Ert, Gibran, “The Legal Character of Provincial Agreements with Foreign Governments” (2001) 42 Les Cahiers de droit (forthcoming), and Emanuelli, supra note 4 at 72–3.Google Scholar

¹⁷ The Canadian Abridgment gets this simple point of Canadian constitutional law wrong, confusing the meanings of “ratify” and “implement.” The Abridgment’s case digests on international law describe cases as concerning “Treaties — Effect of failure of Parliament to ratify.” This description is mistaken, for the Crown ratifies treaties without the participation of Parliament. Where the Abridgment says “failure to ratify” it means “failure to implement.” See the Canadian Abridgment, 2 nd ed. (Scarborough: Carswell, 1998) at 716. Our courts occasionally make the same mistake. In Re Canada Labour Code, [1992] 2 S.C.R. 50 at 90, La Forest J. said, “I would note that SOFA [the North Atlantic Treaty Status of Forces Agreement, [1953] Can. T.S. No. 13] has no legal effect in Canada, as it has not been ratified by domestic legislation.” In R. v. Rumbaut (1998), 127 C.C.C. (3d) 138 (N.B.Q.B.) at 140, Deschênes J. said: “Neither the Geneva Convention on the High Seas, 1958 … nor the United Nations Convention on Law of the Sea, 1982 … have been ratified by the Canadian Parliament and are not, as such, part of Canadian domestic law.”

¹⁸ Implicit recognition comes in the form of statements affirming that the legislative competence of the federal and provincial legislatures is, subject to the federalism provisions of the Constitution Act 1867 (and now the entrenching Section 52 of the Constitution Act 1982), as great as that possessed by the imperial Parliament. Thus, English authorities to the effect that the Parliament at Westminster may legislate contrary to international law apply also to Canadian legislatures. See Hodgev. The Queen (1883), 9 A.C. 117 (P.C.); Arrow River & Tributaries Slide & Boom Co. Ltd. v. Pigeon Timber Co. Ltd., [1932] S.C.R. 495 at 509–10 [hereinafter Arrow River], per Lamont J.; Croft v. Dunphy, [1933] A.C. 156 (P.C.) at 164; and British Columbia Electric Railway Co. Ltd. v. The King,, [1946] A.C. 527 at 541 (quoting Rand J.) [hereinafter British Columbia Electric Railway].

¹⁹ The leading cases are Capital Cities Communications v. C.R.T.C. [1978] 2 S.C.R. 141 at 173, per Laskin C.J. [hereinafter Capital Cities]; Daniels v. White and the Queen, [1968] S.C.R. 517 at 539, per Hall J. (dissenting, but not on this point, and with the concurrence of Ritchie and Spence JJ.); and Gordon v. The Queen in Right of Canada, [1980] 5 W.W.R. 668 at 670–1 (B.C.S.C.), per Meredith J. See also Re Foreign Legations, [1943] S.C.R. 208 at 231; Arrow River, supra note 18 at 510; Swait v. Board of Trustees of Maritime Transportation Unions, [1967] B.R. 315 (Que. Q.B.) at 319; British Columbia Electric Railway, supra note 18 at 542; and R. v. Meikleham (1906), 11 O.L.R. 366 (Ont. Div. Ct.) at 373. For a discussion of the residual sovereignty of Canadian legislatures to violate international law, see van Ert, supra note 3 at chapter 2.

²⁰ Article 55 of the French constitution of October 4, 1958 provides that “Les traités ou accords régulièrement ratifiés ou approuvés ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité, de son application par l’autre partie.” Article 25 of the German Basic Law of May 23, 1949, provides that “the general rules of public international law constitute an integral part of federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory.” Article VI of the US constitution provides that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” However, subsequent US constitutional law has narrowed this provision by drawing a distinction between treaties and executive agreements (both of which constitute treaties for the purposes of international law).

²¹ A treaty may be declaratory of, or come to represent, customary international law. In that case, a Canadian court may look to the treaty, though unimple-mented or even unratified, to discern customary international law. When a court does so, it is not applying the treaty but rather the customary law that the treaty represents. An example is the use of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas and the 1982 United Nations Convention on the Law of the Sea by Deschênes J. in R. v. Rumbaut (1998), 127 C.C.C. (3d) 138 (N.B.Q.B.).

²² It is unwritten in the sense that it is not entrenched in the constitution of Canada as described in Section 52 (2) of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Constitution Act 1982]. Yet the rule that the Crown cannot unilaterally make law finds written expression in case law and in the Bill of Rights 1689, an act of the UK Parliament that passed into Canadian law by reception. This act continues in force in all Canadian jurisdictions. As Henri Brun and Guy Tremblay observe, “on peut toujours plaider l’application au Canada de certains anciens statuts anglais qui consituent l’armature de base du droit constitutionnel britannique, tels la Magna Carta de 1215, la Petition of Right de 1627, le Bill of Rights de 1689 ou l’Act of Settlement de 1700.” Brun, Henri and Tremblay, Guy, Droit constitutionnel, 2nd ed. (Cowansville, PQ: Les éditions Yvon Blais, 1990), 19.Google Scholar

²³ Constitution Act 1867 (U.K.), 30 & 31 Vict., c. 3, preamble, reprinted in R.S.C. 1985, App. II, No. 5. On the role of the preamble in importing unwritten constitutional rules, see Reference Re Remuneration of Judges of the Provincial Court of Prince Edwardisland; Reference relndependence and Impartiality of Judges ofthe Provin-cialCourt of Prince Edward Island, [1997] 3 S.C.R. 3 at 68-–74, per Lamer C.J. The rule that the executive lacks legislative power is also implied by the definitions of the federal and provincial legislatures in the Constitution Act 1867.

²⁴ Proclamations case, (1611) 12 Co. Rep. 75 at 76; 77 E.R. 1352 at 1354.

²⁵ Archbishop of York and Sedgwick, (1612) Godbolt 201 at 201; 78 E.R. 122 at 122.

²⁶ Bill of Rights, 1689 (U.K.), 1 William & Mary, sess. 1, c. 6.

²⁷ Of course, the executive may exercise law-making power where that power is delegated to it by the legislature. Secondary legislation is not a violation of the rule that the Crown is not a source of law because the ultimate source of secondary legislative power is not the Crown but the legislature.

²⁸ The Canadian executive has not always enjoyed a foreign affairs prerogative. Until the Statute of Westminster, the prerogative continued to be formally vested in the Imperial Crown (though Canada began to represent itself internationally to a limited extent soon after the close of the First World War).

²⁹ As examples of such treaties, Hogg gives those “relating to defence, foreign aid, the high seas, the air, research, weather stations, diplomatic relations and many other matters.” Hogg, supra note 11 at section 11 .4.

³⁰ The Parlement Belge, [1878–9] 4 P.D. 129 at 154.

³¹ Attorney General for Canada v. Attorney General for Ontario (Labour Conventions), [1937] A.C. 326 (P.C.) at 347, per Lord Atkin [hereinafter Labour Conventions]. In Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 at para. 89 [hereinafter Operation Dismantle], Wilson J. quoted this passage and described it as having “definitively established” the “law in relation to treaty-making power … for Canada and the rest of the Commonwealth.” Her Ladyship went on to observe (at para. 90) that it is not every treaty which requires implementation: “Legislation is only required if some alteration in the domestic law is needed for its implementation.”

³² Baker, infra note 133 at 861.

³³ Francis, infra note 76 at 621, per Kerwin C.J.

³⁴ Capital Cities, supra note 19 at 173. This statement is too sweeping. See the discussion in the section entitled “Unimplemented Treaties and the Treaty Pre-sumption” later in this article.

³⁵ For instance, “les dispositions de l’ALENA ne font pas partie du droit interne applicable au Canada et, plus particulièrement, au Québec, par les tribunaux nationaux et … les dispositions mêmes de l’ALENA ne donnent pas ouverture au recours direct devant les tribunaux nationaux en cas, par hypothèse, de con-travention de certaines dispositions de l’ALENA”: Les Entreprises de rebuts Sanipan v. Procureur général du Québec, [1995] R.J.Q. 821 at 844. “According to well-established case law the rights created or conferred by an international treaty belong exclusively to the sovereign countries which are the contracting parties to it … it results from this principle that the provisions of an international treaty confer no right on an individual unless the treaty is implemented by legislation”: R v. Vincent (1993), 12 O.R. (3d) 427 (Ont. C.A.) at 437–8. “A treaty … may be in full force and effect internationally without any legislative implementation and, absent such legislative implementation, it does not form part of the domestic law of Canada”: Operation Dismantle, supra note 31 at 484. “Treaties … only become part of municipal law if they are expressly implemented by statute”: Re R. and Palacios (1984), 45 O.R. (2d) 269 at 276 (Ont. C.A.). “[N]o Canadian legislation has been passed which expressly implements the Covenant. Such enabling legislation is required in order to make the Covenant part of the domestic law of Canada”: Re Mitchell and The Queen (1983), 42 O.R. (2d) 481 (Ont. H.C.) at 492, per Linden J. “In the absence of some … legislative act the making of a treaty does not change the domestic law of Canada”: Mastini v. Bell Telephone of Canada (1971), 18 D.L.R. (3d) 215 (Ex. Ct.) at 217 [hereinafter Mastini]. “It has been settled law that a treaty binding the Government does not ipso facto, become part of our law and enforceable in the Courts”: R. v. Canada Labour Relations Board ex p. Federal Electric Corporation (1964), 44 D.L.R. (2d) 440 (Man. Q.B.) at 454. “[I]t has never, so far as I have been able to ascertain, been decided or admitted that the Crown could by its own act in agreeing to the terms of a treaty alter the law of the land or affect the private rights of individuals”: Bitterv. Secretary of State of Canada, [1944] Ex. C.R. 61 at 76–7, per Thorson, J. “[T]he Crown cannot alter the existing law by entering into a contract with a foreign power”: Arrow River, supra note 18 at 510 Google Scholar, per Lamont J. See also the knowledgeable discussion, too long to quote here, of Roberts J. in R. v. Rebmann (1995), 122 Nfld. & P.E.I.R. 111 (Newf. S.C.T.D.) at 121–6.

³⁶ Hunt, Murray, Using Human Rights Law in English Courts (Oxford: Hart, 1998) at 34 Google Scholar, citing an unpublished lecture by Lauterpacht, E., “International Law and Her Majesty’s Judges,” F.A. Mann Memorial Lecture, 1993 Google Scholar; see also Hunt at 258–9.

³⁷ J.H. Rayner Ltd v. Department of Trade and Industry, [1990] 2 A.C. 418 (H.L.) at 500, per Lord Oliver.

³⁸ Lauterpacht, H., “Is International Law a Part of the Law of England?” (1939) Transactions of the Grotius Society 51 at 75Google Scholar. Lauterpacht cites three authorities: Civilian War Claimants’ Association v. The King, [1932] A.C. 14; Rustomjee v. The Queen (1876), 1 Q.B.D. 487; 2 Q.B.D. 69; and Baron de Bode v. The Queen (1848), 1 Q.B. 383, “where,” says Lauterpacht, “the question seems, in a sense, to have been left open.”

³⁹ J.H. Rayner v. Department of Trade, [1989], Ch. 72.

⁴⁰ Ibid. at 163–4.

⁴¹ Aerlinte Eireann Teoranta v. Canada (1987), 9 F.T.R. 29 at 43.

⁴² R. v. Bonadie (1996), 109 C.C.C. (3d) 356.

⁴³ Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25.

⁴⁴ Foreign Missions and International Organizations Act, S.C. 1991, c. 41.

⁴⁵ In the term legislation, I include subordinate legislation, such as regulations promulgated by statutory authority. Where the legislature confers its law-making power upon a delegate, that power may be exercised to implement treaties (provided that such an exercise of the power is not ultra vires the grant). An example is Pan American World Airways v. The Queen, [1981] 2 S.C.R. 565, in which the appellants argued, inter alia, that the relevant treaty had been implemented in Canada by Section 6 of the Aeronautics Act, R.S.C. 1970, c. A-3 and the Air Regulations promulgated thereunder. See also Schavernoch, infra note 99, and the English case Benin v. Whimster, [1976] 1 Q.B. 297 at 308–9.

⁴⁶ R. v. Canadian Labour Relations Board (1964), 44 D.L.R. (2d) 440 (Man. Q.B.) at 455, per Smith J.

⁴⁷ Mastini, supra note 35 at 217.

⁴⁸ This is subject to the rule, in the federal Parliament, that money bills can only be introduced upon recommendation by the governor general, that is, by ministers. Constitution Act 1867, supra note 22 at s. 54.

⁴⁹ Baker, infra note 133.

⁵⁰ Convention on the Rights of the Child, Can. T.S. 1992 No. 3.

⁵¹ House of Commons Debates (April 25, 1995) at 11794–800. The bill was C-254.

⁵² In Re Nakane and Okazake (1908), 13 B.C.R. 370 (Full Ct.).

⁵³ British Columbia (Attorney General) v. Canada (Attorney General) (Re Vancouver Island Railway), [1994] 2 S.C.R. 41 [hereinafter Re Vancouver Island Railway].

⁵⁴ Ottawa Electric Railway Co. v. Corporation of the City of Ottawa, [1945] S.C.R. 105.

⁵⁵ Re Vancouver Island Railway, supra note 53 at 109.

⁵⁶ Ibid. at 110. For a consideration of Iacobucci J.’s argument, see Pfizer Inc. v. Canada (T.D.), [1999] 4 F.C. 441.

⁵⁷ I am relying in part on examples provided in Emanuelli, supra note 4 at 88–9.

⁵⁸ Foreign Missions and International Organizations Act, supra note 44.

⁵⁹ Extradition Act, R.S.C. 1985, c. E-23, now repealed and replaced by the Extradition Act, S.C. 1999, c. 18.

⁶⁰ Loi sur les aspects civils de l’enlèvement international et interprovincial d’enfants, R.S.Q., c. A-23.01.

⁶¹ Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35.

⁶² W. (V.) v. S. (D.), [1996] 2 S.C.R. 108 at 133.

⁶³ Schabas suggests that reference to a treaty in the preamble of a statute may be sufficient to implement the treaty. I disagree. The established rules of statutory construction accord preambles too little weight to accomplish the task of implementing a treaty in domestic law. See Schabas, William A., International Human Rights Law and the Canadian Charter, 2nd ed. (Scarborough, ON: Carswell, 1996), 22–3 (but see also 25–6).Google Scholar

⁶⁴ The Legal Bureau of the Department of External Affairs affirmed, in a 1985 letter to the Council of Europe, that implementation may occur “by enacting the required legislation without express reference to the treaty”; reprinted in (1986) 24 C.Y.I.L. 397 at 401. Yet see the discussion of MacDonald, infra note 229, later in this article.

⁶⁵ Ocean Dumping Control Act, S.C. 1974-75-76, c. 55.

⁶⁶ Crown Zellerbach, infra note 235.

⁶⁷ Thomson v. Thomson, [1994] 3 S.C.R. 551 [hereinafter Thomson].

⁶⁸ Ibid. at 601–2.

⁶⁹ Ibid. at 617–18.

⁷⁰ See Jennings and Watts, supra note 4 at section 19 n. 23, and Brownlie, Ian, Principles of Public International Law, 5th ed. (Oxford: Clarendon Press, 1998) at 47.Google Scholar

⁷¹ See Bayefsky, Anne F., International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths, 1992) at 25 Google Scholar; Macdonald, R. St. J., “International Treaty Law and the Domestic Law of Canada” (1975) 2 Dalhousie L.J. 307 at 308–10, 313–14Google Scholar; Read, J. E., “International Agreements” (1948) 26 Can. Bar. Rev. 520 at 528.Google Scholar

⁷² Walker v. Baird, [1892] A.C. 491 (P.C.).

⁷³ Secretary of State of Canada v. Alien Property Custodian for the United States, [1931] S.C.R. 169 at 198.

⁷⁴ Ritcher v. The King, [1943] Ex. C.R. 64 at 69.

⁷⁵ Bitter v. Secretary of State for Canada, [ 1944] Ex. C.R. 61 at 76–7.

⁷⁶ Francis v. The Queen, [1956] S.C.R. 618 at 621 [hereinafter Francis]. The remaining justices reached the same conclusion on other grounds.

⁷⁷ Ibid. at 626. See also Rand J.’s similar observation in Attorney General for Ontario v. Scott, [1956] S.C.R. 137 at 142: “A treaty is an agreement between states, political in nature, even though it may contain provisions of a legislative character which may, by themselves or their subsequent enactment pass into law.” “By themselves” apparently refers to peace treaties.

⁷⁸ “To the enactment of fiscal provisions, certainly in the case of a treaty not a peace treaty, the prerogative does not extend.” Francis, supra note 76 at 626, per Rand J.

⁷⁹ Mastini, supra note 35.

⁸⁰ Treaty of Peace with Italy, Can. T.S. 1947 No. 4.

⁸¹ Read, supra note 71 at 528.

⁸² Fawcett, J. E. S., The British Commonwealth in International Law (London: Stevens and Sons, 1963) at 58 Google Scholar. See also the report ofJuly 13, 1870 by the British Crown Law Officers to the Colonial Office in McNair, A. D., The Law of Treaties: British Practice and Opinions (New York: Columbia University Press, 1938) at 27–8Google Scholar, who advised the colonial secretary that territory could not be ceded in peacetime by prerogative alone.

⁸³ Macdonald, R. St J., “The Relationship between Domestic Law and International Law in Canada,” in Macdonald, R. St J. et al., eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974), 88 at 120.Google Scholar

⁸⁴ In R. v. Rebmann (1995), 122 Nfld. & P.E.I.R. 111 (Newf. S.C.T.D.) at 121–2, Roberts J. rejected the accused’s argument that a fishing treaty between Canada and France constituted a “prerogative treaty” analogous to a treaty of peace and therefore not requiring implementation. The learned judge did not deny the existence of such a category of treaty (though he quoted Read, supra note 71 at 528, that such a category is “doubtful”); rather, he held that the treaty purported to affect the rights and duties of Canadians and therefore required implementation.

⁸⁵ Kerwin C.J. noted Indian and New Zealand authorities requiring implementation of treaties of cession in Francis, supra note 76 at 621.

⁸⁶ Fawcett, supra note 82 at 59. This proposition is strengthened in Canadian law, I suggest, by the decision of the Supreme Court of Canada in the Re Secession of Quebec, [1998] 2 S.C.R. 217 [hereinafter Re Secession of Quebec].

⁸⁷ Salus populi est suprema lex.

⁸⁸ Ahmad v. ILEA, [1978] 1 Q.B. 36 (Eng. C.A.) at 48D-E.

⁸⁹ Aerlinte Eireann Teoranta v. Canada (1987), 9 F.T.R. 29 (F.C.T.R.) [hereinafter Aerlinte Eireann Teoranta].

⁹⁰ Aeronautics Act, R.S.C 1970, c. A–3.

⁹¹ Chicago Convention on International Civil Aviation, Can. T.S. 1944 No. 36.

⁹² Aerlinte Eireann Teoranta, supra note 89 at 43. It is interesting to observe, in the light of the dissent in Baker, infra note 133, that no objection was raised by Mul-doon J. to the plaintiffs’ attempt to use an unimplemented treaty to structure a statutory discretion. Counsel for the Crown included Ian Binnie Q.C., who later, as Binnie J., sided with the majority in Baker. The Crown’s solicitor of record, Frank Iacobucci Q.C. (as he then was), dissented in Baker on this point alone.

⁹³ Bloxam v. Favre (1883), 8 P.D. 101 at 107 (Eng. C.A.) [hereinafter Bloxam].

⁹⁴ I am using the term “statutory” for simplicity’s sake. The presumption of international legality applies equally to secondary legislation (Schavernoch, infra note 99) and instruments made under the royal prerogative (Post Office v. Estuary Radio, [1968] 2 Q.B. 740 (Eng. C.A.) at 757).

⁹⁵ Bennion, F. A. R., Statutory Interpretation: A Code, 3rd ed. (London: Butterworths, 1997) at section 150; see also section 2.Google Scholar

⁹⁶ Salomon v. Customs and Excise Commissioners, [1967] 2 Q.B. 116 (Eng. C.A.).

⁹⁷ Garland v. British Rail Engineering, [1983] 2 A.C. 751 (H.L.). This case was in European law, but the same principles arguably apply to international law. See Hunt, supra note 36 at 17–21.

⁹⁸ R. v. Secretary of State for the Home Department, ex p. Brind,, [1991] 1 A.C. 696 (H.L.) [hereinafter Brind]. Nevertheless, Brownlie considers English courts to have accepted the need to refer to relevant treaties even in the absence of ambiguity: Brownlie, supra note 70 at 48.

⁹⁹ Schavernoch v. Foreign Claims Commission, [1982] 1 S.C.R. 1092 at 1098 [hereinafter Schavernoch].

¹⁰⁰ National Corn Growers v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324 [hereinafter National Corn Growers].

¹⁰¹ Ibid. at 1372–3 [original emphasis].

¹⁰² See Sullivan, Ruth, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworth, 1994) at 462–3.Google Scholar

¹⁰³ An example of this approach is Minister of National Revenue v. Seaboard Lumber (1994), 74 F.T.R. 231 (F.C.T.D.), in which Dubé J. held (at 239) that Section 2 (3) of the Softwood Lumber Products Export Charge Act, R.S.C. 1985, c. 12 (3 rd Supp.), which explicitly permitted judicial recourse to a 1986 memorandum between Canada and the United States for the purpose of “interpreting the schedule” of the act, did not preclude the application of the treaty presumption to the rest of the act.

¹⁰⁴ Daniels v. White and the Queen, [1968] S.C.R. 517 [hereinafter Daniels].

¹⁰⁵ Ibid. at 539.

¹⁰⁶ Collco Dealings v. Inland Revenue Commissioner, [1962] A.C. 1 (P.C.) at 19.

¹⁰⁷ Ibid.

¹⁰⁸ See Bennion, supra note 95 at sections 157–8.

¹⁰⁹ Hunt, supra note 36 at 23, citing A.V. Dicey, supra note 15 at 62–3.

¹¹⁰ Bloxam, supra note 93.

¹¹¹ Bloxam is cited approvingly in Sullivan, supra note 102 at 330 [emphasis added].

¹¹² ReCanada Labour Code, [1992] 2 S.C.R. 50, is cited in Sullivan, supra note 102 at 464, as an authority that holds that courts may rely on international instruments to interpret non-implementing legislation. While the case suggests a liberal approach, it does so in a roundabout way only. Sullivan’s short discussion of this matter is the only one I am able to find by a Canadian author. No mention of the scope of the treaty presumption is made in the discussion of treaties in Kindred, Hugh M. et at., International Law Chiefly as Interpreted and Applied in Canada, 5th ed. (Toronto: Emond Montgomery, 1993) at 168–95Google Scholar. Hogg’s chapter on treaties considers the treaty presumption only briefly, without discussing its scope. See Hogg, supra note 11 at 294, n. 21 (section 11.4 (a)). Emanuelli’s discussion implies, but does not say expressly, that the treaty presumption applies only to incorporating legislation. See Emanuelli, supra note 4 at 95–6. An earlier article by Emanuelli treats the treaty presumption in passing but does not consider its scope. Emanuelli, Claude1 and Slosar, Stanislas, “L’application et l’interpretation des traités internationaux par le juge canadien” (1978) 13 R.J.T. 69.Google Scholar

¹¹³ Capital Cities, supra note 19 at 173; Inter-American Radio Communications Convention, Can. T.S. 1938 No. 18; Broadcasting Act, R.S.C. 1970, c. B-11.

¹¹⁴ National Corn Growers, supra note 100 at 1371.

¹¹⁵ Re Canada Labour Code, [1992] 2 S.C.R. 50 at 90.

¹¹⁶ Re Mitchell and the Queen (1983), 42 O.R. (2d) 481 (Ont. H.C.) at 493.

¹¹⁷ Arrow River & Tributaries Slide & Boom Company v. Pigeon Timber Company, (19301) 66 O.L.R. 577 at 579.

¹¹⁸ Arrow River, supra note 18 at 509.

¹¹⁹ I find a similarity between the rhetoric of honour in this case and the language of the New Zealand Court of Appeal in Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257. Cooke P., as he then was, expressed his dissatisfaction with an argument that the minister was entitled to ignore New Zealand’s treaty commitments, saying (at 266): “That is an unattractive argument, apparently implying that New Zealand’s adherence to the international instruments has been at least party window-dressing.”

¹²⁰ Sullivan, supra note 102 at 298–9.

¹²¹ Bennion, supra note 95 at section 270.

¹²² In Re Californian Fig Syrup Company’s Trade-Mark (1888), 40 Ch. D. 620.

¹²³ Ibid. at 624.

¹²⁴ Ibid. at 627–8.

¹²⁵ Ahmad v. ILEA, [1978] Q.B. 36 (Eng. C.A.) at 48D.

¹²⁶ R. v. Brown, [1994] 1 A.C. 212 (H.L.) at 256.

¹²⁷ Baker, infra note 133.

¹²⁸ Immigration Act, R.S.C. 1985, c. I-2. Section 1 gives the short title of the act as “Immigration Act, 1976–7.”

¹²⁹ Declaration of the Rights of the Child, 20 November 1959, G.A. Res. 1386 (XIV). The status of the declaration as a non-binding, but morally forceful, resolution — as contrasted with the legally binding 1989 convention — is discussed in Van Bueren, Geraldine, The International Law on the Rights of the Child (Dordrecht: Martinus Nijhoff, 1995) at 12.Google Scholar

¹³⁰ Bloxam, supra note 93 at 107 [emphasis added].

¹³¹ Corocraft v. Pan American Airways, [1968] 3 W.L.R. 1273 (Eng. C.A.) at 1281.

¹³² On the concentration of executive power in the Canadian system, see Savoie, Donald J., Governing from the Centre: The Concentration of Power in Canadian Politics (Toronto: University of Toronto Press, 1999).Google Scholar

¹³³ Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [hereinafter Baker].

¹³⁴ Immigration Act, supra note 128.

¹³⁵ Convention on the Rights of the Child, supra note 50.

¹³⁶ Baker, supra note 133 at 820.

¹³⁷ Ibid. at 859.

¹³⁸ Baker v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 127 (F.C.A.) at 141 [hereinafter Baker F.C.].

¹³⁹ Baker, supra note 133 at 860.

¹⁴⁰ Why she did not do so is an interesting question. One reason may be that the applicability of the treaty presumption to statutory grants of discretion has been a matter of controversy in other Commonwealth jurisdictions. By not invoking the presumption explicitly, L’Heureux-Dubé J. may have hoped (in vain) to sidestep the debate. Another possible reason is the chronology problem: the act in question preceded the Convention on the Rights of the Child by over a decade.

¹⁴¹ R. v. Sharpe, [2001] S.C.C. 2 at para. 175, per L’Heureux-Dubé, Gonthier, and Bastarache JJ., citing Sullivan, supra note 102 at 330.

¹⁴² 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town) [2001] S.C.C. 40 [hereinafter Spraytech] at para. 30 per L’Heureux-Dubé, Gonthier, Bastarache, and Arbour JJ., again citing Sullivan, supra note 102 at 330.

¹⁴³ Baker, supra note 133 at 861.

¹⁴⁴ Taggart, Michael, “Legitimate Expectation and Treaties in the High Court of Australia” (1996) 112 L.Q.R. 50 at 53.Google Scholar

¹⁴⁵ Baker, supra note 133 at 865–6.

¹⁴⁶ This is not to say that a judge, considering Ms. Baker’s claim that the decision-maker must treat the best interests of her children as a primary considera-tion, must refuse that argument merely because it has been the subject matter of an unimplemented treaty. The claim is simply that a judge must not arrive at this conclusion by giving such a degree of legal effect to the unimplemented treaty. She might arrive at this conclusion in other ways. She could, for instance, determine that the common law requires decision-makers to treat the best interests of the child as a primary consideration. In Minister for Immigration and Ethnic Affairs v. Teoh, (1995), 69 A.L.J.R. 423, three of five justices of the High Court of Australia (Mason C.J., Deane and Gaudron JJ.) advanced this proposition in obiter dicta. (A judge arriving at this conclusion must go on to conclude that this common law principle has not been displaced by the statute in question.)

¹⁴⁷ Ashby v. Minister of Immigration, [1981] 1 N.Z.L.R. 222 (N.Z.C.A) [hereinafter Ashby].

¹⁴⁸ Ibid. at 229.

¹⁴⁹ Brind, supra note 98.

¹⁵⁰ Ibid. at 748.

¹⁵¹ I offer this reasoning as a generalization only. It is clear that a human rights instrument may contain specific provisions requiring explicit legislative implementation. Likewise, other international instruments may contain broadly phrased commitments, such as the national treatment obligations found in many investment treaties.

¹⁵² Re Secession of Quebec, supra note 86 at 251.

¹⁵³ However, Strayer J.A. in the Federal Court of Appeal raised federalism concerns. See Baker F.C., supra note 138 at 141.

¹⁵⁴ Subject to the observations made in note 16 in this article.

¹⁵⁵ See Jennings and Watts, supra note 4 at 84–5.

¹⁵⁶ See generally “Numéro spécial: les politiques extérieures des états non souverains: convergences et divergences” (1994) 25(3) Études internationales; Jacomy-Millette, A., Coulombe, Françoise, and Lee, James, “Canadian Provinces and Foreign Relations,” background paper BP-97E of the Library of Parliament Research Branch, revised December 1990 Google Scholar; Keating, Tom and Munton, Don, eds., The Provinces and Canadian Foreign Policy: Proceedings of a Conference, University of Alberta, Edmonton, Alberta, March 28–30, 1985 (Toronto: Canadian Institute of International Affairs, 1985)Google Scholar; Jacomy-Millette, A., “Le rôle des provinces dans les relations internationales” (1979) 10(2) Études internationales 285 CrossRefGoogle Scholar; Johannson, P. R., “Provincial International Activities” (1978) International Journal 357.CrossRefGoogle Scholar

¹⁵⁷ International Covenant on Civil and Political Rights, infra note 244.

¹⁵⁸ The exception is for invalid agreements, that is, those agreements tbat violate norms of jus cogens.

¹⁵⁹ Blackburn v. Attorney-General, [1971] 1 W.L.R. 1037 (C.A.); Rustomjee v. The Queen (1876) 2 Q.B.D. 69. For the most recent Canadian discussion, see Black v. Chrétien, [2001] O.J. No. 1853.

¹⁶⁰ See the text accompanying notes 141–2 in this article.

¹⁶¹ Baker, supra note 133 at 860.

¹⁶² Any suggestion that the rule in Baker applies only in respect of human rights treaties like the 1989 Convention on the Rights of the Child, and not in the case of international law more generally, has seemingly now been laid to rest by the Supreme Court of Canada’s ruling in Spraytech, supra note 142. There, L’Heureux-Dubé J. for the majority invoked the precautionary principle (which she controversially identified as a rule of customary international law) as an example of a principle of international law to which the Court may resort in construing statutes in the internationally consistent manner advocated in Baker.

¹⁶³ See the text accompanying note 30 in this article.

¹⁶⁴ Capital Cities, supra note 19.

¹⁶⁵ Broadcasting Act, S.C. 1967–68, c. 25.

¹⁶⁶ Capital Cities, supra note 19 at 148.

¹⁶⁷ Inter-American Radiocommunications Convention, Can. T.S. 1938 No. 18.

¹⁶⁸ Radio Act, R.S.C. 1970, c. R–1.

¹⁶⁹ General Radio Regulations, SOR/63/297, s. 11.

¹⁷⁰ Capital Cities, supra note 19 at 173.

¹⁷¹ Ibid. at 172–3.

¹⁷² Ibid. at 188.

¹⁷³ Minister for Immigration and Ethnic Affairs v. Teoh (1994–5), 183 C.L.R. 273 (H.C.A.).

¹⁷⁴ Convention on the Rights of the Child, supra note 50.

¹⁷⁵ R. v. Secretary of State for the Home Department, Ex parte Ahmed, [1999] Imm. L.R. 22 (Eng. C.A.) at 36.

¹⁷⁶ R. v. Uxbridge Magistrates’Court, Ex parte Adimi, [2000] W.L.R. 434 (Q.B.) at 456.

¹⁷⁷ Thomas v. Baptiste, [1999] 3 W.L.R. 249 (P.C.).

¹⁷⁸ Baker, supra note 133 at 839–40.

¹⁷⁹ Ibid. at 841.

¹⁸⁰ Ibid.

¹⁸¹ Baker F.C., supra note 138 at 147–51.

¹⁸² Ibid. at 146.

¹⁸³ Labour Conventions, supra note 31.

¹⁸⁴ Bennett’s statement was only true for the original dominions, of course. Quoted in Ewart, John S., The Independence Papers, vol. 2 (Ottawa: n.p., 1932), 601.Google Scholar

¹⁸⁵ In Re the Regulation and Control of Aeronautics in Canada, [1932] A.C. 54 (P.C.) [hereinafter Re Aeronautics]. The attorney-general for Canada was represented by two King’s Counsel and a junior by the name of A.T. Denning.

¹⁸⁶ Convention Relating to the Regulation of Aerial Navigation, U.K.T.S. 1922 No. 2 , Cmd. 1609.

¹⁸⁷ In Re the Regulation and Control of Radio Communication in Canada, [1932] A.C. 304 (P.C.) [hereinafter Re Radio].

¹⁸⁸ International Radiotelegraph Convention, 1928–9, 84 L.N.T.S. No. 1905.

¹⁸⁹ Re Radio, supra note 187 at 311–2.

¹⁹⁰ Treaty of Versailles, Can. T.S. 1919 No. 4.

¹⁹¹ Attorney-General for Canada v. Attorney-General for Ontario, [1936] S.C.R. 461.

¹⁹² Labour Conventions, supra note 31 at 347–8.

¹⁹³ Ibid. at 351.

¹⁹⁴ Ibid. at 348.

¹⁹⁵ Ibid. at 351.

¹⁹⁶ Ibid. at 351–2.

¹⁹⁷ In Chung Chi Cheung v. The King,, [1939] A.C. 160 (P.C.) at 167–8, Lord Atkin famously declared: “It must always be remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure.” For an explanation of this somewhat deceptive statement, see van Ert, supra note 3 at ch. 3.

¹⁹⁸ Labour Conventions, supra note 31 at 351.

¹⁹⁹ Ibid. at 354.

²⁰⁰ Kennedy, W. P. M., “The British North America Act: Past and Future” (1937) 15 Can. B.R. 393 at 399.Google Scholar

²⁰¹ An entire issue of the Canadian Bar Review was dedicated to the topic, with contributions from F.R. Scott, Vincent MacDonald, Ivor Jennings, and others. See (1937) 15 Can. B.R. 393–508.

²⁰² Matas, R. J., “Treaty Making in Canada” (1947) 25 Can. B.R. 458 at 462, 470.Google Scholar

²⁰³ Szablowski, G. J., “Creation and Implementation of Treaties in Canada” (1956) 34 Can. B.R. 28.Google Scholar

²⁰⁴ McWhinney, Edward, “Canadian Federalism and the Foreign Affairs and Treaty Power. The Impact of Quebec’s ‘Quiet Revolution’” (1969) 7 C.Y.I.L. 3 at 4.Google Scholar

²⁰⁵ La Forest, Gerard V., “The Labour Conventions Case Revisited” (1974) 12 C.Y.I.L. 137 at 147.Google Scholar

²⁰⁶ Strom, Torsten H. and Finkle, Peter, “Treaty Implementation: The Canadian Game Needs Australian Rules” (1993) 25 Ottawa L.R. 39 at 47.Google Scholar

²⁰⁷ F.R. Scott, quoted in Strom and Finkle, supra note 206 at 57.

²⁰⁸ Rand J., quoted in Strom and Finkle, supra note 206 at 57.

²⁰⁹ Hogg, supra note 11 at section 11.5 (c).

²¹⁰ MacDonald, Vincent, ‘The Canadian Constitution Seventy Years After’ (1937) 15 Can. B.R. 401 at 419.Google Scholar

²¹¹ Gotlieb, A. E., Canadian Treaty-Making (Toronto: Butterworths, 1968), 76–7Google Scholar; see also 83.

²¹² McWhinney, supra note 204 at 5.

²¹³ Bernier, Ivan, International Legal Aspects of Federalism (London: Longman, 1973), 152–8.Google Scholar

²¹⁴ La Forest, supra note 205 at 148.

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²¹⁸ Hogg, supra note 11 at s. 11.5(c).

²¹⁹ Edward McWhinney defended the decision in several articles published in the 1960s. In particular, he drew Canadian attention to the fact that the Federal Constitutional Court of West Germany, faced with a problem identical to that in the Canadian case, explicitly preferred Lord Atkin’s judgment to the approach taken in American law. See Edward McWhinney, “Federal Constitutional Law and the Treaty-making Power — German-Vatican Concordat of 1933 — Decision of West German Federal Constitutional Court” (1957) 35 Can. B.R. 842; Edward McWhinney, “The Constitutional Competence within Federal Systems as to International Agreements” (1966) 3 Can. Legal Stud. 145 at 146; Edward McWhinney, supra note 204 at 5. The German decision is the Reichskonkordat case, Decision of the Federal Constitutional Court (Second Senate), March 26, 1957, (1957) 6 B. Verf. G.E. 309

W.R. Lederman, while not uncritical of the rule in Labour Conventions, sympathized with the federalism concerns that supported it and proposed a com-promise whereby Parliament would enjoy concurrent but paramount power to implement treaties of national importance. See Lederman, W. R., “Legislative Power to Implement Treaty Obligations in Canada,” in Aitchison, J. H., ed., The Political Process in Canada: Essays in Honour of R. MacGregor Dawson (Toronto: University of Toronto Press, 1963) at 171.Google Scholar

Robert Howse’s contributions to the Labour Conventions debate are notable for their general acceptance of the decision, subject to judicial recognition of federal jurisdiction under the peace, order, and good government and trade and commerce powers of the Constitution Act 1867. This argument is similar to the argument that I advance later in this article. In his 1990 article, Howse criticizes the “watertight compartments” approach to federalism espoused by Lord Atkin, yet demonstrates that critics of the judgment have failed to address his Lordship’s concern to maintain “the federal balance.” See Howse, supra note 216, especially at 163–71. In a later article, Howse argues that the 1992 North American Free Trade Agreement can be fully implemented by the federal Parliament. This article does not challenge Labour Conventions at all, though its subtitle suggests otherwise. See Howse, Robert, “NAFTA and the Constitution: Does Labour Conventions Really Matter Any More?” (1994) 5 Const. Forum 54.Google Scholar

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²²⁰ La Forest, supra note 205 at 137. La Forest, cited Morin, Jacques-Yvan “La conclusion d’accords internationaux par les provinces canadiennes à la lumière du droit comparé” (1965) 3 C.Y.I.L. 127 at 137Google Scholar; Jacomy-Millette, A. M., L’Introduction et l’Application des Traités Internationaux au Canada (Paris: LGDJ, 1971) 75 et seq.Google Scholar; Dufour, André, “Fédéralisme canadien et droit international,” in Macdonald, R. St. J. et al., eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974) at 72.Google Scholar

²²¹ Ziegel, supra note 215.

²²² Final Text of the Consensus Report on the Constitution (Charlottetown, 26 August 1992), quoted in Struthers, Wallace W., “’Treaty Implementation … Australian Rules’: a Rejoinder” (1994) 26 Ottawa L.R. 305 at 308.Google Scholar

²²³ Attorney-General for Ontario v. Canada Temperance Foundation, [1946] A.C. 193 (P.C.) at 205 [hereinafter Canada Temperance].

²²⁴ Wright, Lord of Durley, , “Rt. Hon. Sir Lyman Poore Duff, G.C.M.G.” (1955) 33 Can. B.R. 1123 at 1125–8.Google Scholar

²²⁵ B.J. MacKinnon, letter to the editor, (1956) 34 Can. B.R. 115 at 117.

²²⁶ Francis, supra note 76 at 621.

²²⁷ Reference Re Ownership of Offshore Mineral Rights, [1967] S.C.R. 792.

²²⁸ Geneva Convention on the Continental Shelf, Can T.S. 1970 No. 4.

²²⁹ MacDonald v. Vapor Canada, [1977] 2 S.C.R. 134 at 168–9 [hereinafter MacDonald].

²³⁰ Rand, Ivan, “Some Aspects of Canadian Constitutionalism” (1960) 38 Can. B.R. 135 at 142.Google Scholar

²³¹ MacDonald, supra note 229 at 171.

²³² This “signal requirement” bears a striking resemblance to the dissenting opinion of Beetz J. concerning the emergency doctrine of the peace, order, and good government power in Re Anti-Inflation, [1976] 2 S.C.R. 373.

²³³ This approach to our constitution, namely that legislatures should be allowed to breach it so long as they are willing to pay the political price, is quite out of step with our post-Charter constitutional settlement, in which certain constitutional values are recognized as politically off-limits (subject, in certain cases, to the override provided in Section 33 of the Constitution Act 1982).

²³⁴ Schneiderv. The Queen, [1982] 2 S.C.R. 112 at 134–5. For trenchant criticism of this case, see A.L.C. de Mestral’s case note in (1983) 61 Can. B.R. 856.

²³⁵ R. v. Crown Zellerbach, [1988] 1 S.C.R. 401 [hereinafter Crown Zellerbach].

²³⁶ Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Can. T.S. 1979 No. 36.

²³⁷ See Crown Zellerbach, supra note 235 at 416.

²³⁸ Section 91 of the Constitution Act 1867 reads in part: “It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and Good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

²³⁹ Crown Zellerbach, supra note 235 at 436, per Le Dain J.

²⁴⁰ Bayefsky, supra note 71 at 30.

²⁴¹ MacDonald, supra note 229 at 443, per La Forest J.

²⁴² L’Heureux-Dubé J. in Thomson, supra note 67 at 611.

²⁴³ As this article went to press, a decision of McKeown J. of the Federal Court (Trial Division) again cast doubt on Labour Conventions. In Chua v. Minister of National Revenue, [2001] 1 F.C. 608 (F.C.T.D.), the applicant sought judicial review of the minister’s decision to collect tax debts owing by the applicant to the United States government. The applicant argued, inter alia, that the law implementing the Third Protocol of the Canada-US Tax Convention 1980 was ultra vires Parliament as a matter of property and civil rights per section 92 (13) of the Constitution Act 1867. In considering this argument, McKeown J. quoted both from Lord Atkin in Labour Conventions and Laskin C.J. in MacDonald. This discussion was clearly obiter, however, for McKeown J. decided the matter by holding that the legislation in question “deals with taxation and therefore falls within the competence of the federal Parliament under section 91, class 3 as legislation in respect of taxation” (at para. 36).

²⁴⁴ Common preamble to the 1966 International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 and the 1966 International Covenant on Economic, Social and Cultural Rights, Can. T.S. 1976 No. 46.

²⁴⁵ The US 1776 Declaration of Independence described it as “self-evident” that “all men are created equal” and endowed with “certain unalienable rights.”

²⁴⁶ See, for instance, the 1789 French Déclaration des Droits de l’homme et du citoyen, which described the rights of man as “naturels, inaliénables et sacrés,” and the 1948 Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, which declares in Article 1 that “[a]ll human beings are born free and equal in dignity and rights” and in Article 2 that “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.”

²⁴⁷ 1948 Universal Declaration of Human Rights, ibid.

²⁴⁸ For a longer discussion of the interaction of international human rights instruments and domestic human rights provisions (particularly the Charter), see van Ert, supra note 3 at chapter 5.

²⁴⁹ Blackstone, supra note 8 at 67.

²⁵⁰ That Canadian courts are free to consult unratified human rights instruments in construing the Charter is suggested by Dickson, C. J.’s observation in Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 [hereinafter Re PSERA] at 349–50Google Scholar, that international human rights laws “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.” By “especially,” the chief justice appears to mean especially but not exclusively. In the same judgment, however, Dickson C.J. explains that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights which Canada has ratified” (at 349) [emphasis added]. The Supreme Court appears to have followed the former dictum, as Schabas demonstrates in his helpful collection of Supreme Court references to such unratified treaties as the 1969 American Convention on Human Rights, 1979, 1144 U.N.T.S 123, the 1950 European Convention on Human Rights, 1955, 213 U.N.T.S. 2889, the 1981 African Charter on Human and Peoples’ Rights, O.A.U. Document CAB/LEG/67/3, rev. 5, and certain International Law Organization conventions. See Schabas, William A., International Human Rights Law and the Canadian Charter, 2nd ed. (Scarborough: Carswell, 1996) at 284–7.Google Scholar

²⁵¹ The leading federal human rights statutes are the Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III, and the Canada Human Rights Act, R.S.C. 1985, c. H-6. The major provincial rights-protecting instruments (excluding amendments) are as follows: Human Rights, Citizenship and Multi-culturalism Act, R.S.A. 1980, c. H-11.7 (Alberta); Individual’s Rights Protection Act, R.S.A. 1980, c. I-2 (Alberta); Civil Rights Protection Act, R.S.B.C. 1996, c. 49 (British Columbia); Human Rights Code, R.S.B.C. 1996, c. 210 (British Columbia); Human Rights Code, S.M. 1987–8, c. 45 (Manitoba); Human Rights Code, R.S.N.B. 1973, c. H-11 (New Brunswick); Human Rights Code, R.S.N. 1990, c. H-14 (Newfoundland); Human Rights Act, R.S.N.S. 1989, c. 214 (Nova Scotia); Human Rights Code, R.S.O. 1990, c. H.19 (Ontario); Human Rights Act, R.S.P.E.I. 1988, c. H-12 (Prince Edward Island); Charter of Human Rights and Freedoms, R.S.Q. c. C-12 (Québec); Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (Saskatchewan). Also of note is the Human Rights Act, R.S.Y. 1986 (Supp.), c. 11 (Yukon Territory).

²⁵² Weiser, Irit, “Effect in Domestic Law of International Human Rights Treaties Ratified without Implementing Legislation,” in Canadian Council on International Law, The Impact of International Law on the Practice of Law in Canada: Proceedings ofthe 27th Annual Conference ofthe Canadian Council on International Law, Ottawa October 15–17, 1998 (The Hague: Kluwer Law International, 1999), 132 at 132.Google Scholar

²⁵³ Re PSERA, supra note 250.

²⁵⁴ Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 at 1056–7.

²⁵⁵ The Bangalore judicial colloquium of 1988 was the first of a series of annual meetings of leading Commonwealth and American judges. There are human rights statements similar to the Bangalore Principles arising from each annual meeting. See Lester, Lord, “The Challenge of Bangalore: Making Human Rights a Practical Reality” (1999) Eur. H.R.L.R. 273.Google Scholar

²⁵⁶ 1988 Bangalore Principles, reproduced in Hunt, supra note 36 at 385–6.

²⁵⁷ Reproduced in Lord Lester, supra note 255 at 287–91.

²⁵⁸ See the discussion in this article under the heading “The Relevance of Chronology.”

²⁵⁹ Re Drummond Wren, [1945] O.R. 778 [hereinafter Re Drummond Wren].

²⁶⁰ Charter of the United Nations, Can. T.S. 1945 No. 7.

²⁶¹ Re Drummond Wren, supra note 259 at 783.

²⁶² Re Noble and Wolf, [1948] O.R. 579.

²⁶³ Ibid. at 594.

²⁶⁴ Noble and Wolfv. Alley, [1951] S.C.R. 64.

²⁶⁵ Bhadauriav. Seneca College (1980), 27 O.R. (2d) 142.

²⁶⁶ Ibid. at 147–9.

²⁶⁷ Seneca College v. Bhadauria, [1981] 2 S.C.R. 181 at 192.