The Reception of International Law in Canada: Three Ways We Might Go Wrong

Canada in International Law at 150 and Beyond Paper No. 2

January 11, 2018

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.

Part of Series

Canada in International Law at 150 and Beyond/Canada et droit international : 150 ans d’histoire et perspectives d’avenir

Marking 150 years since Confederation provides an opportunity for Canadian international law practitioners and scholars to reflect on Canada’s past, present and future in international law and governance. This series of essays, written in the official language chosen by the authors, that provides a critical perspective on Canada’s past and present in international law, surveys the challenges that lie before us and offers renewed focus for Canada’s pursuit of global justice and the rule of law. The project leaders were Oonagh E. Fitzgerald, director of the International Law Research Program at the Centre for International Governance Innovation (CIGI); Valerie Hughes, CIGI senior fellow, adjunct assistant professor of law at Queen’s University and former director at the World Trade Organization; and Mark Jewett, CIGI senior fellow, counsel to the law firm Bennett Jones, and former general counsel and corporate secretary of the Bank of Canada. The series was published as a book titled Reflections on Canada’s Past, Present and Future in International Law/Réflexions sur le passé, le présent et l’avenir du Canada en matière de droit international in spring 2018.

About the Author

Gib van Ert is the executive legal officer to the Chief Justice of Canada. The executive legal officer is the Chief Justice’s principal adviser in matters concerning the administration of the Supreme Court of Canada, the Canadian Judicial Council and the National Judicial Institute.