THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS AND PUBLIC INTERNATIONAL LAW

Authors

  • MAXWELL COHEN
  • ANNE F BAYEFSKY

Keywords:

Constitutional Law

Abstract

Perhaps no event in the modern legal political history of Canada is likely to have so significant an impact on the interaction of Canadian public law with the international legal system as will the Canadian Charter of Rights and Freedoms in the years to come. Traditionally, Canadian courts have been cautious in using the language and modalities of customary international and conventional law to assist in interpreting domestic legislation or public policy. This is often the case where statutes or regulations do not clearly state that the enactment was intended to implement a specific international obligation. Judicial views are likely to be altered materially by the links of language and concept now in effect between the family of international human rights principles and conventions and the specific duties, internationally, undertaken by Canada and reflected directly or indirectly by the Charter or by related federal and provincial statutes. Indeed, this process, joined with the older issues of the "adoption" or "incorporation" of international law, will doubtless reach new levels of professional concern and judicial involvement. Canadian courts and Canadian lawyers will henceforth have a markedly broader range of policy options and technical resources (concepts and documents) with which to approach the interpretation of important constitutional or statutory provisions or policy rules, that have their origins or their parallels in general international law or under some conventional instrument. In any case the art and scope of "interpretation" will never again be the same for public law in Canada.

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Published

1983-03-01

Issue

Section

Legal Commentary