The reception of public international legal norms in Canadian domestic law has received a great deal of academic consideration in the last 20 years, prompted no doubt by increasing judicial interest in the question. Assisted by notable early contributions, these more recent commentators have painted a clear picture of the Canadian reception scheme as set out in the case law. Despite its common law nature and lack of codification in the written Constitution, Canadian reception law is not only fairly clear but remarkably stable. The rules by which international law comes into, or stays out of, Canadian domestic law are mostly the same today as they were when Lord Atkin decided the all-important Labour Conventions Case in 1937. Lack of development in the common law is not necessarily a good thing. Adaptability is generally regarded as the common law’s hallmark and strength. But change should not be for change’s sake, and the long-settled doctrines that make up today’s reception scheme reveal an internally coherent system that well balances two competing judicial impulses: a proper respect for international law and due regard for Canadian self-government.
This paper considers three ways this admirably steady and balanced reception system might go wrong. Each of the potential deviations described are real risks, given certain tendencies in the case law.