Constitutional, Remedial, and International … Remedial, and International Dialogues About Rights: ... legislaturel in his path-breaking Foreword in the Harvard Law Review,4 and the

537

Constitutional, Remedial, and International Dialogues About Rights: The Canadian

Experience

KENT ROACH�†

SUMMARY

I. INTRODUCTION.......................................................................................................... 537

II. CONSTITUTIONAL DIALOGUES .................................................................................. 541

III. REMEDIAL DIALOGUES ............................................................................................. 546

IV. INTERNATIONAL DIALOGUES .................................................................................... 553

V. DIALOGUE, DEROGATION, AND DUALISM IN TIMES OF EMERGENCY ........................ 564

VI. CONCLUSION............................................................................................................. 575

I. INTRODUCTION

It is striking that this symposium on globalization and the judiciary should select the concept of judicial dialogue as one of its central themes. The idea of dialogue is in some respects an implausible way to describe the authoritative act of judging. Judges, at the end of the day, do not enter into dialogue or a conversation with anyone. In a jurisprudential sense, they decide cases according to their view of the law. Institutionally, they expect their decisions will settle disputes and be obeyed, not start conversations. Nevertheless, the idea of judicial review as a form of dialogue between courts and legislatures has caught on in recent years among both judges1 and commentators2 in Canada. It is now gaining

�† Professor of Law, University of Toronto. B.A., Toronto, 1984; LL.B., Toronto 1987; LL.M, Yale 1988; Fellow Royal Society of Canada. I thank the organizers and participants of the Journal�’s Third Symposium on Globalization and the Judiciary. I also thank my colleagues at the University of Toronto�’s Faculty of Law where an earlier version of this paper was presented at a faculty workshop. Special thanks to my colleagues Jutta Brunnée and Karen Knop for very helpful discussions about international law.

1. The Supreme Court of Canada has referred to the concept of judicial review as dialogue in a number of cases. See, e.g., Figueroa v. Canada (Att�’y Gen.), [2003] 1 S.C.R. 912, para. 186; Doucet-Boudreau v. Novia Scotia (Minister of Educ.), [2003] 3 S.C.R. 3, 36�–37; Bell Express Vu Ltd. P�’ship v. Rex, [2002] 2 S.C.R. 559, paras. 65�–66; R. v. Hall, [2002] 3 S.C.R. 309, para. 43; Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, paras. 8, 17, 105; Little Sisters Book & Art Emporium v. Canada (Minister of J.), [2000] 2 S.C.R. 1120, para. 268; M. v. H., [1999] 2 S.C.R. 3, paras. 286�–87; Corbiere v. Canada (Minister of Indian & N. Affairs), [1999] 2 S.C.R. 203, para. 116; R. v. Mills, [1999] 3 S.C.R. 668, 670; Vriend v. Alberta., [1998] 1 S.C.R. 493, 565�–66. See generally Christopher P. Manfredi, The Life of a Metaphor: Dialogue in the Supreme Court, 1998�–2003, 23 SUP. CT. L. REV. (2d) 105 (2004).

2. See, e.g., KENT ROACH, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE (2001) [hereinafter ROACH, THE SUPREME COURT ON TRIAL]; Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn�’t Such A Bad Thing After All), 35 OSGOODE HALL L.J. 75 (1997); Kent Roach, Constitutional and Common Law Dialogues Between the Supreme

538 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 40:537

increasing attention in other parts of the world as well.3 President Barak of the Supreme Court of Israel discussed the idea of a �“constant dialogue between the judiciary and the legislature�” in his path-breaking Foreword in the Harvard Law Review,4 and the concept has been discussed in recent writings about judicial review in both the United Kingdom5 and Australia.6 Discussion of dialogue is also found in scholarship about international law and institutions.7 The idea of judicial dialogue is gaining increasing attention and this attention only makes it more important to be precise about the many different meanings of judicial dialogue and to examine the consequence of conceiving of judging as part of a dialogue.

The idea of dialogue is in many ways a more plausible way to understand globalization and some forms of international law than judicial review under domestic law. A globalized world is one where people, including judges, engage in multiple and ongoing conversations that cross borders. It is hopefully a world characterized by a sense of openness, modesty, and willingness to learn from others. Justice L�’Heureux-Dubé, recently retired from the Supreme Court of Canada, has spoken about the importance of a two-way dialogue between courts of different countries and has contrasted the idea of dialogue with a more authoritarian, monological, and colonial idea of the reception of laws.8 The metaphor of dialogue may also be particularly appropriate to understanding some forms of international law. As two leading Canadian international lawyers have stated, �“international law most commonly works horizontally, through processes such as normative discourse and negotiation,�” as opposed to the �“hierarchical processes of adjudication or enforcement,�”9 most commonly associated with traditional domestic law. Court and Canadian Legislatures, 80 CAN. BAR REV. 481 (2001) [hereinafter Roach, Constitutional and Common Law Dialogues]. For criticisms of the dialogue theory in Canada, see Christopher P. Manfredi & James B. Kelly, Six Degrees of Dialogue: A Response to Hogg and Bushell, 37 OSGOODE HALL L.J. 513, (1999); Andrew Petter, Twenty Years of Charter Justification: From Liberal Legalism to Dubious Dialogue, 52 U.N.B. L.J. 187 (2003).

3. The foundations of understanding judicial review as a form of dialogue between courts, legislatures, and society are found in the work of the great U.S. constitutional scholar Alexander Bickel. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 239�–41 (2d ed. 1986) [hereinafter BICKEL, THE LEAST DANGEROUS BRANCH]; ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 111 (1974); ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 90�–91 (1970).

4. Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16, 133�–36 (2002). Barak elaborated, stating: �“This dialogue does not take place at meetings between judges and legislators; it takes place when each branch carries out its constitutional role.�” Id. at 133.

5. See, e.g., Richard Clayton, Judicial Deference and �“Democratic Dialogue�”: The Legitimacy of Judicial Intervention Under the Human Rights Act, 1998, 2004 PUB. L. 33. For criticisms of dialogue theory in the United Kingdom, see Keith Ewing, Human Rights, in THE OXFORD HANDBOOK OF LEGAL STUDIES 298, 309�–12 (Peter Cane & Mark Tushnet eds., 2003).

6. See, e.g., AUSTRALIAN CAPITAL TERRITORY BILL OF RIGHTS CONSULTATIVE COMMITTEE, TOWARDS AN A.C.T. HUMAN RIGHTS ACT 61�–62 (2003), http://www.jcs.act.gov.au/prd/rights/documents/report/BORreport.pdf (last visited Feb. 22, 2005); Leighton McDonald, New Directions in the Australian Bill of Rights Debate, 2004 PUB. L. 22; Leighton McDonald, Rights, �‘Dialogue�’ and Democratic Objections to Judicial Review, 32 FED. L. REV. 1, 6�–19 (2004).

7. See, e.g., ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1995); Christopher Bellamy, Focusing on the European Perspective of Judicial Dialogue: Issues in the Area of Competition Law, 39 TEX. INT�’L L.J. 461 (2004); Francis G. Jacobs, Judicial Dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice, 38 TEX. INT�’L L.J. 547 (2003).

8. See Claire L�’Heureux-Dubé, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, 34 TULSA L.J. 15, 16�–21 (1998).

9. Jutta Brunnée & Stephen Toope, Hesitant Embrace: The Application of International Law by Canadian Courts, 40 CANADIAN Y.B. INT�’L L. 55 (2002) [hereinafter Brunnée & Toope, Application]. See generally Jutta Brunnée & Stephen Toope, Persuasion and Enforcement: Explaining Compliance with International Law, 13 FINNISH Y.B. INT�’L L. 273 (2002) [hereinafter Brunnée & Toope, Persuasion and Enforcement]; Jutta Brunnée & Stephen Toope, International Law and Constructivism: Elements of an Interactional Theory of International Law, 39 COLUM. J. TRANSNAT�’L L. 19 (2000) [hereinafter Brunnée & Toope, International Law & Constructivism].

2005] DIALOGUES ABOUT RIGHTS: THE CANADIAN EXPERIENCE 539

The idea of judgments as part of an ongoing dialogue about the treatment of rights fits into a globalized world where authority is �“disaggregated�”10 and judgments are the start of a continued process of critical self-reflection and dialogue as opposed to being final commands that must be obeyed with no questions asked.

In this paper, I will examine five different but related forms of dialogue that do not in themselves exhaust all the possible meanings of dialogue in law.11 The first form of conversation and interchange will be the dialogue that occurs between different constitution makers in the making of constitutions. The second will be the dialogue that occurs between courts and legislatures in the context of judicial review and, in particular, the ability of legislatures under many modern bills of rights to enact laws limiting and even overriding rights as interpreted by the courts. The third will be the dialogue that occurs when courts issue remedies that have implications for the executive and legislative branches of government, but allow the elected branches of government a range of possible responses. The fourth form of dialogue concerns the impact of nonenforceable decisions of international bodies, such as the U.N. Human Rights Committee, on domestic jurisdictions such as Canada. The final form of dialogue concerns the use that domestic courts make in dualist systems of nonbinding comparative and international law in their decisions.

Although the above forms of dialogue can be analytically separated, I will suggest that they are related in their attitude toward authority. Dialogue in all five forms discussed in this paper is united by an openness to outside influence and a focus on the persuasive force of law rather than its pedigree or its binding nature. Dialogue is also characterized by an interaction of multiple sources of authority. It can usefully be contrasted with a more monological and positivistic conception of authority and with judicial supremacy in enforcing constitutional rights and remedies.12

I will first briefly examine how the Canadian Charter of Rights and Freedoms,13 enacted in 1982, was influenced by post�–World War II rights instruments such as the European Convention on Human Rights and the International Convention on the Protection of Civil and Political Rights. I will focus on how the Canadian Charter has borrowed from these instruments to produce its own distinctive provisions for legislative limitations and derogations on rights that in turn promote a vibrant dialogue between Canadian courts and legislatures over the treatment of rights.

I will next examine dialogue between courts and governments over remedies in public law. I will suggest that dialogic judicial review in domestic constitutional law may produce more tentative and contingent forms of remedial decision making than traditional understandings of law based on the idea that where there is a right, there must be a remedy that the court can impose on the parties.14 Remedies that are not closely tied to rights and

10. ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 266 (2004). 11. For a discussion of other uses of the metaphor of dialogue, see Basil Markesinis, French System Builders

and English Problem Solvers: Missed and Emerging Opportunities for Convergence of French and English, 40 TEX. INT�’L L.J. (forthcoming May 2005).

12. For a related contrast between a dialogic model that is �“open to foreign law and international judicial dialogue, as well as dialogue with domestic legal institutions�” as opposed to an �“enforcement model�” that is �“centered on local, independent, and final decision-making�” and �“privileges finality and certainty over dialogue,�” see Sarah K. Harding, Comparative Reasoning and Judicial Review, 28 YALE J. INT�’L L. 409, 424 (2003); see also Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 IND. L.J. 819, 855�–65 (1999) (identifying a dialogical approach to the use of comparative law).

13. CAN. CONST. (Constitution Act, 1982) pt. I. All future references to the Canadian Constitution will be to this version.

14. See, e.g., Marbury v. Madison, 5 U.S. 1 (1 Cranch) 137, 163 (1803) (noting that �“where there is a legal right, there is also a legal remedy by suit or action at law�”) (internal citation omitted); see also 3 BLACKSTONE�’S


that go beyond the limits of correction and nullification of past wrongs create space for dialogue between courts and governments. The use of suspended or delayed declarations of constitutional invalidity in both Canada and South Africa invite the legislature to complete a conversation about remedies by selecting from a range of constitutional options. Such a remedial approach may be particularly appropriate when enforcing rights that require positive action from government and require comprehensive reform. The dialogic turn in public law remedies may bring domestic law closer to some forms of international law that rely more on persuasion, good faith, and moral suasion than command.

I will next examine how dialogues between courts and legislatures in Canada can have an international dimension when a person in Canada complains to the U.N. Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) (also known as the Optional Protocol).15 I will suggest that the ability of individuals within Canada to complain at the international level about Canada�’s actions builds in some valuable counterpoints to decisions by Canadian courts to limit the meaning of rights under the Charter and to decisions by Canadian legislatures to limit or override rights, as they have been interpreted by the courts. Complaints under the Optional Protocol operate in an asymmetrical fashion; they guard against underenforcement as opposed to overenforcement of rights at the domestic level and thus serve as a potential buffer against the sense of complacency that can occur when domestic courts find that no rights have been violated. They also are based on an understanding of authority that invites inconsistent verdicts and continued debate at different levels of society about the treatment of rights. At the same time, a recent decision by a Canadian court refused to stay a person�’s deportation from Canada until the U.N. Human Rights Committee had considered whether the person would be tortured if deported.16 Although it is accepted that the Committee cannot enforce its final views within Canada, the impatience of the Canadian courts with the Committee�’s interim measures is unfortunate in part because it diminishes the potential for meaningful dialogue within Canada about the treatment of rights.

Finally, I will examine how the Supreme Court of Canada in two recent decisions under the Charter has been receptive to experimenting with an eclectic mixture of international and comparative law sources.17 Although the result may not please purists who view this somewhat haphazard international/comparative common law as running roughshod over hierarchies of authority in international law, I will suggest that this approach may also reflect habits of the mind that are encouraged by dialogic judicial review. Under a dialogic system in which their own judgments are not necessarily the final word, judges may be less concerned with the pedigree or authoritativeness of the sources that influence them and more with their persuasive force. In such a world, international and comparative law becomes part of the mix that influences the decisions of judges and the reactions that legislatures and society have to those decisions. Judges who work in a dialogic model may be concerned about the reactions of the international community to their judgments, but also understand that legislatures can depart from international norms in a manner somewhat similar to how they can limit or derogate from norms under a modern bill of rights such as the Charter. At the same time, I will raise the question of whether COMMENTARIES ON THE LAWS OF ENGLAND 86�–90 (Wayne Morrison ed., 2001); A.V. DICEY, AN INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 199 (10th ed. 1960).

15. Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 302 [hereinafter Optional Protocol]. It is also possible for individuals who have exhausted domestic remedies in Canada to petition the Inter-American Commission on Human Rights and the U.N. Committee Against Torture. William A. Schabas, Twenty-Five Years of Public International Law at the Supreme Court of Canada, 79 CAN. BAR REV. 174, 193�–94 (2000).

16. Ahani v. Canada (Att�’y Gen.), [2002] 58 O.R.3d 107. 17. United States v. Burns, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship & Immigration),

[2002] 1 S.C.R. 3.


Canadian courts have been too quick to conclude that Canadian law might allow results such as deportation to torture that are inconsistent with Canada�’s international law obligations.

In this last section I will also explore the status of dialogue and dualism in times of real or perceived emergencies by examining whether a dialogic approach to rights is too tentative and too accommodating of departures from norms, including international law norms, that should be binding on the domestic jurisdiction. This is an important question in a post-9/11 world and one that is underlined by the deliberate decision of the Supreme Court of Canada in the two cases examined in this part of the paper to leave the door open to exceptions to the general rule that it would be unconstitutional for Canada to extradite a person to face the death penalty or to deport a person to face torture.

II. CONSTITUTIONAL DIALOGUES

One of the main structural features that encourages dialogue between courts and legislatures under the Canadian Charter is Section 1, which provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The reference to reasonable limits as prescribed by law contemplates that ordinary legislation can impose legitimate limits on constitutional rights as interpreted by the courts. This is an invitation to dialogue between courts and legislatures with the elected branches of government bearing the onus of explaining why they limited rights and establishing that legislative limits on rights are necessary and proportionate.18 The Supreme Court of Canada has explained that:

Section 1 and the jurisprudence under it are . . . important to ensure respect for legislative action and the collective or societal interests represented by legislation . . . . [T]he Charter has given rise to a more dynamic interaction among the branches of governance. This interaction has been aptly described as a �“dialogue�” by some. In reviewing legislative enactments and executive decisions to ensure constitutional validity, the courts speak to the legislative and executive branches . . . . [M]ost of the legislation held not to pass constitutional muster has been followed by new legislation designed to accomplish similar objectives. By doing this, the legislature responds to the courts; hence the dialogue among the branches.19

In other words, the Supreme Court of Canada has recognized that the limitation clause in Section 1 of the Canadian Charter contemplates a continuing dialogue between courts and legislatures about the treatment of rights. The courts make sure that legislatures pay attention to guaranteed rights, but the legislature has an opportunity to explain to courts the reasons and justifications for limiting rights.

Some of the inspiration for Section 1 of the Charter is found in post�–World War II international and regional rights protection instruments that contemplate legitimate legislative limits on at least some of the guaranteed rights. For example, Article 9 of the

18. See R. v. Oakes, [1986]1 S.C.R. 103, 135�–142. 19. Vriend v. Alberta, [1998] 1 S.C.R. 493, 565 (internal citations omitted).


European Convention for the Protection of Human Rights and Fundamental Freedoms guarantees freedom of religion, subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety; for the protection of public order, health, or morals; or for the protection of the rights and freedoms of others.20 This clause contemplates that the legislature can enact legitimate limits on even fundamental rights. Like Section 1 of the Charter, there is a common requirement that any limit on rights be prescribed by law. This limits executive discretion and can serve as an invitation to legislative debate and dialogue about the treatment of rights. The prescribed-by-law requirement found in some articles of the European Convention and Section 1 of the Canadian Charter mimics common law rules that require the legislature to make clear statements when they wish to place limits on rights.21 The difference is that modern bills of rights articulate the rights to be protected and also require that the legislative limits on rights be necessary or proportionate.

Section 1 of the Charter builds and expands on limitation clauses found in international and regional rights protection instruments in several ways. First Section 1 of the Charter applies to all the rights articulated in the Charter. Unlike the European Convention or the ICCPR, there are no rights that are sheltered in the text of the Canadian Charter from the possibility of legislative limitation.22 In other words, limits on all rights are open for discussion, as is the possibility that the government can justify limits on the rights. Second, Section 1 does not attempt to prejudge the range of legitimate legislative objectives for limiting rights. The legislature does not have to fit its reasons for limiting rights into pre-set categories such as public order, health, morals, or the protection of rights and freedoms of others. The text of the Canadian Charter contemplates a more open-ended dialogue about legitimate justifications for limiting rights.23

Section 1 of the Canadian Charter has been influential in the design of several more recent bills of rights that similarly contemplate an ongoing dialogue between courts and legislatures over the treatment of rights. Section 5 of the 1990 New Zealand Bill of Rights follows Section 1 by providing that the rights and freedoms �“may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.�” Section 36 of the South African Constitution has also been influenced by Section 1 of the Canadian Charter and provides that the rights in the Bill of Rights �“may be limited only in terms of law of general application to the extent that the limitation is reasonable in an open and democratic society based on human dignity, equality and freedom.�” Courts are then instructed to take into account a number of factors such as whether there are less restrictive means to achieve the purpose that are taken in part from the Canadian jurisprudence under Section 1 of the Charter. All of these limitation clauses

20. European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 9, 213 U.N.T.S. 221, E.T.S. 5 [hereinafter European Convention]. A similar limitation provision is contained in Article 18(3) of the ICCPR, Dec. 16, 1966, art. 18(3), 999 U.N.T.S. 171, which provides: �“Freedom to manifest one�’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.�”

21. See Roach, Constitutional and Common Law Dialogues, supra note 2, at 483. 22. It should be noted, however, that the Supreme Court of Canada has been very reluctant to contemplate

that Section 1 of the Charter can be used to limit rights under Section 7 of the Charter, which provides: �“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.�” See, e.g., Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 46 (noting that a violation of the right to not be deported to face torture, protected under Section 7, can be justified under Section 1 �“�‘only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like�’�”) (quoting Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, 518)).

23. It should be noted that on occasion, courts in Canada have held that some legislative objectives are not important enough to constitute possible justifications under Section 1 of the Charter. See, e.g., The Queen v. Big M Drug Mart, [1985] 1 S.C.R. 295, 352�–56 (holding that the enforcement of the Christian Sabbath was not a legitimate legislative objective for a Sunday closing law).


contemplate an interchange or dialogue between judges and legislators in which the former focus on rights and the latter are allowed to explain why they believe it is necessary to limit rights in the circumstances. The question of whether limits on rights are reasonable is not answered in the abstract; it depends very much on the evidence and argument that the governments present to discharge their burden. Limitation clauses contemplate a dialogue between judges and legislators and they would not work if either the judicial or governmental interlocutors do not play their distinct and complementary roles.24 Limitation clauses assume that the reasons for limiting rights change over time and that the legislature has a legitimate role in conveying those reasons to the court. Limitation clauses are at odds with the sense that �“[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials.�”25

Perhaps the most famous (or infamous) provision in the Canadian Charter that contemplates dialogue between courts and legislatures over the treatment of rights is Section 33, which allows the federal Parliament or a provincial legislature to expressly declare in an act of Parliament or of the legislature, as the case may be, that the act or a provision thereof shall operate notwithstanding rights protected in Section 2, or Section 7 to Section 15 of the Charter.

Section 33 gives legislatures the ability to override some rights in the Charter, namely fundamental freedoms, legal rights, and equality rights. Ordinary legislation that overrides the Charter right by the terms of Section 33 expires in five years but can be renewed for another five years if the legislature is prepared to make an express declaration. The override is not used frequently in Canada and has never been used by the federal Parliament.26 Nevertheless, it is the ultimate form of dialogue between courts and legislatures and can be used to resolve intractable differences between the two institutions in a manner that signals to society what is being done.

The override has attracted favorable attention from some U.S. commentators who view it as a possible response to judicial supremacy and a way to promote dialogue between courts and legislatures.27 The override remains controversial in Canada, with some viewing it as an appropriate compromise between legislative and judicial supremacy28 while others express unease about the power it gives legislatures to depart from rights or express concern that it requires the legislature to confess that it is departing from rights

24. See Roach, Constitutional and Common Law Dialogues, supra note 2, at 496�–501. 25. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). 26. On the use of the override, see Tsvi Kahana, The Notwithstanding Mechanism and Public Discussion:

Lessons from the Ignored Practice of Section 33, 43 CAN. PUB. ADMIN. 255 (2001) [hereinafter Kahana, The Notwithstanding Mechanism]; Tsvi Kahana, Understanding the Notwithstanding Mechanism, 52 U. TORONTO L.J. 221 (2002).

27. See, e.g., MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 192�–204 (1994); Guido Calabresi, Anti-Discrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 124�–25 (1991); Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707, 724 (2001); Jeffrey Goldsworthy, Judicial Review, Legislative Override, and Democracy, 38 WAKE FOREST L. REV. 451, 452�–53 (2003).

28. See, e.g., Peter H. Russell, Standing Up for Notwithstanding, 29 ALTA. L. REV. 293, 299�–301 (1991) (acknowledging that while both courts and legislatures have their vices and virtues, the override strikes a reasonable balance between the two systems); Paul C. Weiler, Rights and Judges in a Democracy: A New Canadian Version, 18 U. MICH. J.L. REFORM 51, 79�–86 (1984) (arguing the override �“was an intrinsically sound solution to the dilemma of rights and courts�”); Lorraine Eisenstat Weinrib, Learning to Live with the Override, 35 MCGILL L.J. 541, 563�–65 (1990) (stressing the positive, if unintentional, effects of the override on the judicial-legislative relationship).


whereas the legislature may only have a different understanding of rights.29 Even if it only looms in the background, the override is an important part of the dialogue between courts and legislatures in Canada. The most famous use of the override in Canada�—Québec�’s use with respect to its legislation to promote the French language�—will be examined in Part IV of this paper, including complaints by anglophone merchants to the U.N. Human Rights Committee. At this juncture, it should be noted that viewed through the lens of dialogue, the override is not necessarily a final act of the legislature trumping the court. The fact that any override expires or sunsets five years after it has been enacted contemplates continued domestic dialogue and debate about the subject of the override.30 In addition, the fact that the use of the override may be the subject of a complaint to the U.N. Human Rights Committee under the First Optional Protocol to the ICCPR also contemplates continued international dialogue and debate about the use of the override.

Some of the inspiration for the Canadian override may have come from derogation provisions in post�–World War II international and regional rights protection instruments.31 Article 4 of the ICCPR contemplates derogations from some rights in emergency situations but only �“to the extent strictly required by the exigencies of the situation.�”32 No derogations are allowed even in an emergency from a variety of rights including the right to life; the right not to be subject to torture, cruel, inhuman, or degrading treatment or punishment; the right against slavery; the right not to be convicted of retroactive offences; and freedom of thought and religion. The permissible derogations cannot be inconsistent with other international obligations and can �“not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.�” The ICCPR places many more restrictions on derogations from rights than Section 33 of the Charter does. The override under Section 33 can apply to fundamental freedoms, the right against cruel and unusual punishment, the right against retroactive offenses, and equality rights.33 The override under the Charter also does not require a declaration of an emergency, and it does not require proportionality or consistency with Canada�’s international obligations. The

29. See, e.g., Jamie Cameron, The Charter�’s Legislative Override: Feat or Figment of the Constitutional Imagination?, 23 SUP. CT. L. REV. (2d) 135, 152, 155�–56 (2004) (warning that �“the power to override constitutionally protected rights has no meaningful boundaries�”); Jeremy Waldron, Some Models of Dialogue Between Judges and Legislators, 23 SUP. CT. L. REV. (2d) 7, 34�–39 (2004) (lamenting that the terms of the override often force the legislature �“to pretend to be brushing rights aside, whereas it might want to say that it is brushing aside mistaken interpretations of rights�”); John D. Whyte, On Not Standing for Notwithstanding, 28 ATLA. L. REV. 347, 354�–57 (1990) (characterizing the judiciary as the strongest source of relief for minority groups who are sure to become overly oppressed by the legislature�’s use of the override to unduly restrict their rights).

30. �“Taken as a whole, section 33 ensures that no one has the last word.�” �“The net effect of the section is to achieve a subtle and effective check on both legislative and judicial power.�” ROBERT J. SHARPE ET AL., THE CHARTER OF RIGHTS AND FREEDOMS 81 (2d ed. 2002).

31. See also, however, the Canadian Bill of Rights, ch. 44 § 2, 1960 S.C. 519, 520 (Can.), which provides that federal laws of Canada shall be �“construed and applied as not to abrogate, abridge or infringe�” enumerated rights �“unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights.�”

32. Article 15 of the European Convention contains a similar provision. Note that the U.S. Bill of Rights does not contain a clause allowing derogation from rights but that Article 1, Section 9, Clause 2 of the Constitution contemplates that �“the writ of habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.�”

33. Note that Canada�’s statutory Emergencies Act prohibits the detention of Canadian citizens or permanent residents on the basis of race, religion, ethnicity, or national origin. Emergencies Act, ch. 29, § 4(b), 1988 S.C. 777 (Can.). This provision was designed to respond to the injustice of the internment of Japanese Canadians during World War II, Lorraine E. Weinrib, Terrorism�’s Challenge to the Constitutional Order, in THE SECURITY OF FREEDOM: ESSAYS ON CANADA�’S ANTI-TERRORISM BILL 93, 99�–101 (Ronald J. Daniels et al. eds., 2001), but could in theory be repealed and new emergency legislation could be enacted with an explicit override of equality rights under Section 15 of the Charter. For favorable commentary on Canada�’s emergency statute, see id. at 101�–04 and Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029, 1061�–62 (2004).


more severe restrictions on derogations under the ICCPR underline the importance of recourse to international bodies in those rare cases in Canada when the override is used.

The Supreme Court of Canada has at times discussed the role that the override plays in the Charter. The Court upheld Québec�’s decision to employ an omnibus override and indicated that it will not review the reasons why the override has been used.34 At the same time, it held that the override cannot be used in a retroactive manner.35 In another case, in which the Court found that Alberta had unreasonably violated the equality rights of gays and lesbians by not including protection against discrimination on the grounds of sexual orientation in antidiscrimination legislation, the Court seemed to invoke the possibility that Alberta could reply to its decision with an override of the equality right as a partial justification of its decision.36 Justice Iacobucci commented that Section 33:

Establishes that the final word in our constitutional structure is in fact left to the legislature and not the courts . . . . To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s.33 of the Charter). This dialogue between and accountability of each of the branches has the effect of enhancing the democratic process, not denying it.37

This discussion was something of a dare to the legislature of Alberta, Canada�’s most socially conservative province, to invoke the override to reverse the decision. It was the opposite of the idea sometimes associated with judicial supremacy in U.S. constitutionalism that a bill of rights removes some issues from political play. The override option was discussed in Alberta but not followed in large part because the government did not want to be seen as overriding rights to protection from discrimination. A year later, however, the province did use the override in an attempt to prevent same-sex marriage.38 Even this decision, however, did not end debate about same-sex marriage in Canada. Courts in other provinces found that the traditional restrictions on marriage infringe the equality rights of gays and lesbians and cannot be justified under Section 1.39 Parliament debated a response to this ruling and voted 137�–132 against a motion that would have required it to take �“all necessary steps,�” including presumably the use of the override, to preserve the traditional definition of marriage.40 The government subsequently referred draft legislation to the Supreme Court that would allow same-sex marriages but protect religions from having to recognize them.41 The Supreme Court ruled that the draft legislation was consistent with

34. Ford v. Québec (Att�’y Gen.), [1988] 2 S.C.R. 712. 35. Id. at 742�–45. 36. Vriend v. Alberta, [1998] 1 S.C.R. 493. 37. Id. at 565�–66. 38. See Marriage Amendment Act, 2000, ch. 3, 2000 S.A. 115, 115�–116 (Can.). See generally ROACH, THE

SUPREME COURT ON TRIAL, supra note 2, at 195�–200. 39. See, e.g., Halpern v. Canada (Att�’y Gen.), [2003] 65 O.R.3d 161 (Ont.); EGALE Canada, Inc. v. Canada

(Att�’y Gen.), [2003] B.C.L.R.4th 1 (B.C.); Hendricks v. Québec (Att�’y Gen.), [2002] R.J.Q. 2506 (Que.). 40. See 138 HANSARD No. 120, at 7379, 7438�–39 (Sept. 16, 2003). The motion would have committed

Parliament to take �“all necessary steps�” to preserve the traditional definition of marriage. Id. 41. See Can. Dep�’t of Justice, Reference to the Supreme Court of Canada, at

http://canada.justice.gc.ca/en/news/nr/2003/doc_30946.html (last updated July 17, 2003) (stating that in July 2003, �“the Prime Minister announced that the Government of Canada would draft legislation to legally recognize the union of same-sex couples, while recognizing the freedom of churches and religious organizations not to perform marriages against their beliefs�”). The ability of Canadian governments to refer abstract constitutional questions to courts is a dialogic option not available in the United States.


the Charter, but refused to rule on whether the traditional definition of marriage violated the Charter.42 A bill is presently before Parliament that would recognize same-sex marriage,43 but it could be defeated and/or become an election issue. In other words, the dialogue continues, though it is fair to say that courts have placed the same-sex marriage issue on the legislative agenda in Canada and may have forced legislatures to decide whether they wish to override equality rights to preserve traditional restrictions on marriage.

III. REMEDIAL DIALOGUES

Since 1982, the Canadian Constitution has contained a supremacy clause that seems on its face to contemplate judicial enforcement of rights in the tradition of Marbury v. Madison.44 Section 52(1) of Canada�’s Constitution Act, 1982 provides: �“The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.�” This supremacy clause is best suited to the enforcement of negative freedom because it posits the striking down of laws as the ultimate judicial remedy against injustice. Shortly after the enactment of this provision, however, Canadian courts had to grapple with the limitation of such negative remedies. The province of Manitoba had for many years ignored its constitutional obligations to enact and publish its laws in both English and French. The Supreme Court of Canada decided that it could not simply strike down most of the province�’s laws, even though that was what was required under the Supremacy Clause. Instead, the court held that it could give unconstitutional laws temporary effect to preserve the rule of law.45 The court exercised supervisory jurisdiction over the case until Manitoba�’s laws had been translated.46

In subsequent years, the Supreme Court made greater use of the innovative remedy of a suspended or delayed declaration of invalidity.47 In some cases, the new remedy was used as a dialogic device to remand issues to the legislature to allow it to select among the range of options that would satisfy the Constitution. In one of these cases, the Court suspended a declaration of invalidity for eighteen months after finding that existing federal legislation violated the rights of Aboriginal people living off reserve.48 Justice L�’Heureux-Dubé explained that:

the best remedy is one that will encourage and allow Parliament to consult with and listen to the opinions of Aboriginal people affected by it. The link between public discussion and consultation and the principles of democracy was recently reiterated by this Court in Reference re Secession of Québec, [1998] 2 S.C.R. 217, at para. 68: �“a functioning democracy requires a continuous process of discussion.�” The principle of democracy underlies the Constitution and the Charter, and is one of the important factors guiding the exercise of a court�’s remedial discretion. It encourages remedies that allow the democratic process of consultation and dialogue to occur . . . . The remedies granted under the Charter

42. Reference re Same Sex Marriage, [2004] 3 S.C.R. 698. 43. An Act Respecting Certain Aspects of Legal Marriage for Civil Purposes, Bill C-38, 1st Sess., 38th Parl.

(2005). 44. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 45. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, 724. 46. See Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212; Reference re Manitoba Language

Rights, [1990] 3 S.C.R. 1417; Reference re Manitoba Language Rights, [1985] 2 S.C.R. 347. 47. See Sujit Choudhry & Kent Roach, Putting the Past Behind Us? Prospective Judicial and Legislative

Constitutional Remedies, 21 SUP. CT. L. REV. (2d) 205, 253�–56 (2003) (charting the use and time period of suspended declarations of invalidity allowed in a broad group of cases).

48. Corbiere v. Canada (Minister of Indian & N. Affairs), [1999] 2 S.C.R. 203.


should, in appropriate cases, encourage and facilitate the inclusion in that dialogue of groups particularly affected by legislation.49

This case demonstrates how a concern about promoting dialogue both between courts and legislatures and within civil society itself could lead to a new and more tentative approach to remedies�—an approach in which the court did not immediately order final remedies but encouraged other parties to reflect upon its judgment and then act in good faith to select an appropriate means to comply with the judgment.

The Canadian innovation of a delayed declaration of invalidity has caught on in some other parts of the world. Section 172 of the South African Constitution contains not only a traditional statement of constitutional supremacy but also explicit authorization of a suspended declaration of invalidity. It contemplates a discretionary order �“suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.�”50 A suspended or delayed declaration of invalidity in either Canada or South Africa may also involve the court retaining jurisdiction over a matter, if only to consider requests that the period of suspension be extended or curtailed. Suspended declarations of invalidity fit into a dialogic understanding of authority. The Court�’s judgment is not the final word but invites further responses and participation.

Other countries have also departed from the traditional remedy of striking down legislation that is inconsistent with the Constitution. After considerable debate, both New Zealand and the United Kingdom decided not to give courts the power to strike down primary legislation that is inconsistent with their new bill of rights. Section 4 of the Human Rights Act 1998, however, contains a dialogic device that allows the court to issue a declaration that legislation is incompatible with the act. The incompatible legislation remains in force, but there is a fast-track procedure available for legislative reform that even contemplates the possibility of retroactive legislation.51 Nevertheless, the legislature is not forced to act and the declaration of incompatibility only has persuasive force. The New Zealand courts have also asserted their power to make a declaration that legislation is incompatible with the New Zealand Bill of Rights despite the absence of a formal provision in its bill of rights.52 Further work is required to compare these dialogic remedies with the suspended declarations of invalidity that can be used in Canada and South Africa. They raise difficult questions about the treatment of successful litigants and whether the government or the rights claimant should enjoy the burden of legislative inertia. Nevertheless, these dialogic remedial devices, like limitation and derogation clauses, demonstrate how many modern bills of rights invite and encourage dialogue between courts and legislatures. They can be contrasted with a monological approach that sees remedies as self-executing and solely the preserve of the judiciary.

Delayed or suspended declarations of invalidity may play an important role with respect to enforcing social, cultural, and economic rights or other rights that require positive action and legislation. In one of its leading remedies cases, the Supreme Court of Canada has warned that striking down benefit schemes that are unconstitutionally underinclusive could result in an unhealthy form of �“equality with a vengeance.�”53 Instead, the Court has indicated that a delayed declaration of invalidity will be a helpful way to

49. Id. para. 116. 50. S. AFR. CONST. § 172(1)(b)(ii). 51. Human Rights Act, 1998, c.42, § 10 (Eng.). 52. See, e.g., Moonen v. Film & Literature Bd. of Rev., [2000] 2 N.Z.L.R. 9, 19 (holding the Films, Videos,

and Publications Classification Act of 1993 invalid because it conflicted with the Bill of Rights guarantee of freedom of expression).

53. Schachter v. Canada, [1992] 2 S.C.R. 679, 702.


remand complex remedial issues to the legislature while preserving the unconstitutional benefit scheme for a temporary period of time.54 The legislature could then play its role in the dialogue by selecting among the array of constitutional obligations. It would be possible that the legislature itself could opt for �“�‘equality with a vengeance,�’�” but the Court�’s judgment itself, along with other factors, may help persuade the legislature to retain the benefits, albeit perhaps in a different form. The Court also recognized that it could provide �“constitutional hints�” that could encourage the legislature to extend rather than nullify underinclusive benefits even while not deciding as a final matter that there was an enforceable right to the benefit.55 Those on the Supreme Court of Canada who found that social assistance rates violated the Charter in another case would not have crafted their own remedy with revised rates but rather would have suspended a declaration that existing benefits were inadequate for an eighteen-month period in order to give the legislature an opportunity to respond to the complexities of reforming a social assistance program.56 Judicial bodies that attempt to enforce positive rights may find themselves in a position somewhat closer to many international bodies than traditional domestic courts that are able to achieve corrective justice between the two parties to the dispute with a self-executing remedy.57

Judges who appreciate the role of other institutions in responding to and implementing their judgments may be more inclined to rely on general and noncoercive remedies than those who see their judgments as the final act of justice. In Canada, general declarations as opposed to detailed injunctions have emerged as the preferred remedy for enforcing the Charter.58 Declarations of constitutional entitlement are a softer remedy than injunctions that can be enforced through the contempt power and more contingent than compensation that is calculated by the Court. Declarations proceed on the assumption that governments will take prompt and good-faith steps to comply with the Court�’s declaration of constitutional entitlement in a manner not entirely different from the international law principle of good-faith implementation of treaties. General declarations contemplate a need for other institutions to discuss and internalize constitutional norms.

The Supreme Court of Canada in its first minority-language education rights case under Section 23 of the Charter stressed the advantages of general declarations as opposed to injunctive relief and expressed a faith that Canadian governments would comply in good faith with general declarations of constitutional entitlement.59 Chief Justice Dickson explained that a general declaration:

will ensure that the appellants�’ rights are realized while, at the same time, leaving the government with the flexibility necessary to fashion a response which is suited to the circumstances . . . . [T]he government should have the widest possible discretion in selecting the institutional means by which its s.23 obligations are to be met; the courts should be loathe to interfere and impose

54. Id. at 715�–16. 55. Id. at 701. See also Nitya Duclos & Kent Roach, Constitutional Remedies as �“Constitutional Hints�”: A

Comment on R. v. Schachter, 36 MCGILL L.J. 1, 26�–29 (1991). 56. Gosselin v. Québec (Att�’y Gen.), [2002] 4 S.C.R. 429, 589�–91 (Bastarache, J., dissenting). 57. See generally Jennifer Nedelsky & Craig Scott, Constitutional Dialogue, in SOCIAL JUSTICE AND THE

CONSTITUTION 59 (Joel Bakan & David Schneiderman eds., 1992); Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justicable Government?: Social Rights in a New South African Constitution, 141 U. PA. L. REV. 1 (1992) (discussing the various benefits and limitations to the process of bringing positive rights into the sphere of constitutional adjudication).

58. Kent Roach, Remedial Consensus and Dialogue under the Charter: General Declarations and Delayed Declarations of Invalidity, 39 U. BRIT. COLUM. L. REV. 211, 215�–28 (2002).

59. Mahe v. Alberta, [1990] 68 D.L.R. (4th) 69, 106.


what will be necessarily procrustean standards, unless that discretion is not exercised at all, or is exercised in such a way as to deny a constitutional right.60

The Supreme Court of Canada�’s fullest statement of its preference for declaratory as opposed to injunctive relief came in the 1997 equality rights case of Eldridge v. British Columbia (Attorney General), which involved the rights of people who are deaf or hearing impaired to sign language interpretation services in hospitals.61 Justice La Forest stated for a unanimous court that a �“declaration, as opposed to some kind of injunctive relief, is the appropriate remedy in this case because there are myriad options available to the government that may rectify the unconstitutionality of the current system. It is not this court�’s role to dictate how this is to be accomplished.�”62 In addition, the Court extended the practice of suspending its remedies by providing that the declaration did not take effect for six months.63

Declarations assume that governments will make prompt and good faith efforts to comply with the Court�’s judgment. Justice Iacobucci has recognized that while �“declarations are often preferable to injunctive relief because they are more flexible, require less supervision, and are more deferential to the other branches of government,�” �“declarations can suffer from vagueness, insufficient remedial specificity, an inability to monitor compliance, and an ensuing need for subsequent litigation to ensure compliance.�”64 He stressed that declarations will be inadequate and place an unfair burden on successful litigants in cases of grave systemic problems and when administrators �“have proven themselves unworthy of trust.�”65

The Supreme Court in a recent 5�–4 decision in Doucet-Boudreau v. Nova Scotia (Minister of Education) upheld the discretion of a trial judge to order that the government make best efforts to build minority language schools by certain times and to retain jurisdiction and require the government to report back to the court on its progress.66 The affected parties would also have an opportunity to participate in the reporting sessions.67 The remedy in the case was stronger than a general declaration, but it was fashioned in light of almost twenty years of delay in Nova Scotia in complying with minority language education rights.68 The minority argued that the judge could only retain jurisdiction in the context of a contempt hearing and that any attempt to persuade the government to act was political and a violation of the separation of powers.69

Doucet-Boudreau may represent some disenchantment in Canada with the metaphor of dialogue from all sides of the spectrum. For the majority in this70 and other cases,71 the

60. Id. 61. Eldridge v. British Columbia (Att�’y Gen.), [1997] 3 S.C.R. 624. 62. Id. at 631�–32. 63. Id. 64. Little Sisters Book & Art Emporium v. Canada (Minister of J.), [2000] 2 S.C.R. 1120, 1252�–53

(Iacobucci, J., dissenting). 65. Id. at 1252. 66. Doucet-Boudreau v. Nova Scotia (Minister of Educ.), [2003] 3 S.C.R. 3. 67. Id. at 49�–50. 68. Id. at 29. 69. Id. at 60�–61 (Lebel & Deschamps, J., dissenting). 70. The majority cautioned that �“judicial restraint and metaphors such as �‘dialogue�’ must not be elevated to

the level of strict constitutional rules to which the words of s. 24 can be subordinated.�” Id. at 36�–37. Section 24 of the Charter contemplates that courts can grant appropriate and just remedies for Charter violations.

71. In a case in which the Supreme Court decided 5�–4 to strike down a legislative restriction on certain prisoners voting that had been enacted after the Court has struck down a ban on all prisoners voting as disproportionate, the majority stated that: �“The healthy and important promotion of a dialogue between the


metaphor of dialogue appeared awkward because the government claimed that it demanded deference from the judiciary. In my view, this is a misunderstanding of dialogue as a constitutional theory about how the legislature and the judiciary interact and play their distinct roles in a democracy. Dialogical engagement with competing sources of authority does not have to imply judicial deference, moral relativism, or even moral ambiguity. What it does require is engagement with outside arguments including those made by the elected branches of governments and reasoned justifications about why the authority is or is not persuasive.72 I will return to the important issue of whether dialogic judicial review will result in moral relativism or moral ambiguity in the last part of this paper, where dialogue will be examined in the context of emergencies.

In any event, the procedure used by the trial judge and upheld as a reasonable exercise of remedial discretion by the majority of the Supreme Court in Doucet-Boudreau contained important elements of dialogue. Following the experience with complex public law structural injunctions in the United States, the trial judge in this case retained jurisdiction in part to provide a forum for the parties to negotiate out the complexities of the remedy and to respond to unanticipated circumstances.73 The procedure allowed for the possibility of the exercise of some moral suasion by the judge and modification of the order, something not contemplated by the minority who insisted that the only legitimate response open to the judge was to make the binary decision of whether the government should be held in contempt.74

The minority�’s strongly worded arguments for overturning the trial judge�’s remedy constitute a fundamental challenge to the concept of dialogic judicial review and remedies that allow courts to invite responses from the elected branches of government. The minority rejected in the strongest terms the idea that the judge could exercise a �“suasive�” function or �“hold the [government�’s] feet to the fire�” by requiring progress reports on the steps taken to comply with the court�’s judgment.75 They operated on the assumption that judges act in an illegitimate and �“political�” fashion if they engage in anything but the articulation and execution of legally enforceable commands.76 Taken to their logical conclusions, such arguments could reject the use of suspended declarations of invalidity and constitutional hints as impermissible attempts by the judiciary to place political pressure on the government to act.

legislature and the courts should not be debased to a rule of �‘if at first you don't succeed, try, try again.�’�” Sauvé v. Canada (Chief Electoral Officers), [2002] 3 S.C.R. 519, 538.

72. H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD: SUSTAINABLE DIVERSITY IN LAW 329 (2000) (suggesting that engagements with different sources �“in conversation, dialogue or argument�” leaves �“no place for the indecision of relativism�”); Harding, supra note 12, at 463�–64 (rejecting the claim that dialogue will produce moral relativism).

73. Doucet-Boudreau v. Nova Scotia (Minister of Educ.), [2003] 3 S.C.R. 3, 15�–16. 74. See id. at 67. (Lebel & Deschamps, J., dissenting) 75. Id. (quoting the SCC hearing transcript). �“They further suggested that the threat of having to report to the

trial judge functioned as an incentive for the government to comply with the best efforts order.�” Id. The minority rejected the legitimacy of such an approach, stating that:

if this characterization of the trial judge's activity is accurate, then the order for reporting sessions did not result in the exercise of adjudicative, or any other, functions that traditionally define the ambit of a court's proper sphere. Moreover, it resulted in activity that can be characterized as political. According to the appellants' characterization, a primary purpose of the hearings was to put public pressure on the government to act. This kind of pressure is paradigmatically associated with political actors. Indeed, the practice of publicly questioning a government on its performance, without having any legal power to compel it to alter its behaviour, is precisely that undertaken by an opposition party in the legislature during question period.

Id. at 67�–68. 76. Id.


The Canadian Supreme Court�’s recent decision in Doucet-Boudreau has important implications for a dialogic understanding of law. The majority of the Court upheld a procedure that provided a judicial framework for continued dialogue about the implementation of complex rights; even the majority, however, did not seem to appreciate the dialogic nature of the remedy and seemed to suggest that dialogue might better support a more modest and deferential role.77 The four judges in the minority emphatically rejected the role that judges could play in supervising the remedy. They conceived of legal authority in binary and monological terms of whether the government was either in contempt of the Court�’s order or not in contempt.78 For the minority, dialogical prodding or supervision by the judge was a political act that exceeded the limits of the judicial role.79

Dialogic remedies, such as general declarations and delayed declarations of invalidity in Canadian constitutional law, bear some resemblance to softer remedies available from some international bodies. Elizabeth Evatt, a former member of the U.N. Human Rights Committee, has described the remedial process of that body in dialogic terms. She writes:

When the Committee finds that a State has violated Covenant rights, it reinforces its views by calling on the State to respond within ninety days with information about the measures taken to give effect to the Committee�’s views. A follow-up procedure has been established to ensure that States do respond. States which do not respond, or whose responses are not satisfactory, are invited to participate in discussions with representatives of the Committee. When the State later presents a report to the Committee, it will be asked further questions about the action it has taken to provide the victims of any violation with a remedy.80

To be sure, the effectiveness of the U.N. Human Rights Committee�’s follow-up remedial procedure is in doubt.81 Elizabeth Evatt82 and Dinah Shelton83 have both questioned the

77. Doucet-Boudreau, [2003] 3 S.C.R. at 50�–51. 78. Id. at 64�–65. 79. Id. at 67�–68. 80. Elizabeth Evatt, The Impact of International Human Rights on Domestic Law, in LITIGATING RIGHTS:

PERSPECTIVES FROM DOMESTIC AND INTERNATIONAL LAW 281, 301 (Grant Huscroft & Paul Rishworth eds., 2002) [hereinafter LITIGATING RIGHTS] (footnotes omitted). Evatt may also be referring to the possibility that a country that does not respond to the Committee�’s remedial request may also have to address the matter during the process of preparing country reports under Article 40 of the ICCPR, which themselves are understood as part of an ongoing �“�‘constructive dialogue with each State Party in regard to the implementation of the Covenant.�’�” DOMINIC MCGOLDRICK, THE HUMAN RIGHTS COMMITTEE: ITS ROLE IN THE DEVELOPMENT OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 64 (Ian Brownlie ed., 1991). I am indebted to my colleague Frédéric Mégret for bringing the dialogical nature of the periodic reporting system to my attention.

81. Scott Davidson, Intention and Effect: The Legal Status of the Final Views of the Human Rights Committee, in LITIGATING RIGHTS, supra note 80, 305, 313�–14 (indicating that only about thirty percent of replies have been deemed satisfactory as of 1998); Markus G. Schmidt, Follow-up Procedures to Individual Complaints and Periodic State Reporting Mechanisms, in INTERNATIONAL HUMAN RIGHTS MONITORING MECHANISMS 201, 203 (Gudmundur Alfredsson et al. eds., 2001) (estimating that only twenty-five percent of remedies are effective).

82. Evatt concludes that �“[r]egrettably, the United Nations�’ human rights systems . . . [have] fallen short in regard to implementation and enforcement mechanisms. The Human Rights Committee has made the most of its mandate, by calling on States parties to take part in a dialogue with members of the Committee . . . . But its views are not expressly binding, and the resources to fulfill the Committee�’s mandate are pitiful in comparison with those of the European Court.�” Evatt, supra note 80, at 302.

83. Although she recognizes that they are �“the remedy most often sought and granted in international litigation,�” Dinah Shelton concludes that �“[g]enerally, however, a declaratory judgment will not in and of itself be an adequate remedy�” because of its prospective orientation. DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW 199, 213 (1999). She looks more to damages as the ultimate remedy to undo the wrong. Id. at 38�–56, 214�–279. Damages are, however, tied to an aspiration for corrective justice that views harms as discrete


Commission�’s reliance on soft remedial approaches that rely on good faith responses from Member States and Professor Shelton seems to take the European Court of Human Rights as the better model in part because its decisions are legally binding and it can award damages to rectify the harm caused to individuals.84 Nevertheless, I want to suggest here that something can be gained by softer and dialogic remedial approaches that call upon the state to engage in good faith in more complex reforms that will prevent violations in the future. In the long term, such a process may be more meaningful and more productive than the correction of past wrongs by damage awards.

An interesting bridge from the world of remedies in domestic constitutional law to remedies in international law is provided by the extremely important work done by the late Abram Chayes in both fields. Professor Chayes was the author of the seminal article on complex public law litigation in U.S. desegregation and prison cases.85 Although such remedies are often associated with unrestrained judicial activism, Professor Chayes had a much more nuanced and, by many accounts,86 more empirically accurate explanation of the controversial phenomenon. He argued that in complex cases, �“[t]he remedy is not imposed but negotiated.�”87 In subsequent influential work on international law with Antonia Handler Chayes, Professor Chayes argued in favor of a cooperative and managerial approach to compliance with international law norms and contrasted that with an enforcement model that relied upon sanctions.88 He recognized that in international law �“sanctioning authority is rarely granted by treaty, rarely used when granted, and likely to be ineffective when used.�”89 Rather, remedies at international law depended on �“the discursive process of explanation, justification and persuasion.�”90 In other words, remedies at international law were based on a model of dialogue between the international body and the domestic state.

There are some interesting similarities between dialogic remedies in domestic constitutional law and those developed by international bodies that adjudicate whether harms suffered by individuals and not as systemic violations suffered by groups and others. In contrast, Edwin Borchard argued that declaratory judgments could be an effective �“instrument not merely of curative but also preventive judgment.�” EDWIN BORCHARD, DECLARATORY JUDGMENTS xiv (2d ed. 1941). He argued that when issuing a declaratory judgment, �“the court does not compel or coerce, but decides, determines, adjudicates, establishes and fixes legal relations between contesting parties.�” Id. at 8�–9. On the limits of corrective justice as a remedial ambition, see Owen M. Fiss, Coda, 38 U. TORONTO L.J. 229 (1988); Owen M Fiss, The Forms of Justice, 93 HARV. L. REV. 1 (1979); Kent Roach, The Limits of Corrective Justice and the Potential of Equity in Constitutional Remedies, 33 ARIZ. L. REV. 859 (1991) [hereinafter Roach, The Limits of Corrective Justice].

84. SHELTON, supra note 83. 85. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976)

[hereinafter Chayes, The Role]. 86. See, e.g., PHILIP J. COOPER, HARD JUDICIAL CHOICES 331 (1988); MALCOLM M. FEELEY & EDWARD L.

RUBIN, JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA�’S PRISONS 319�–20 (1998); LARRY W. YACKLE, REFORM AND REGRET: THE STORY OF FEDERAL JUDICIAL INVOLVEMENT IN THE ALABAMA PRISON SYSTEM (1989).

87. Chayes, The Role, supra note 85, at 1302. He elaborated that remedial decree was a complex ongoing process and that �“[t]he interest in a decree that will be voluntarily obeyed can be promoted by enforcing a regime of good faith bargaining among the parties.�” Id. at 1300. Professor Chayes subsequently wrote: �“In public law litigation, the dominant form of relief is prospective and affirmative rather than compensatory. As a result, the tight linkage between right and remedy is attenuated.�” Abram Chayes, Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 46 (1982). He added that it is �“impossible to identify a unique remedial regime that follows ineluctably from and is measured by the determination of substantive liability.�” Id.

88. CHAYES & CHAYES, supra note 7. 89. Id. at 32�–33. 90. Id. at 127. For various criticisms of this approach, see George W. Downs et al., The Transformational

Model of International Regime Design: Triumph of Hope or Experience?, 38 COLUM. J. TRANSNAT�’L L. 465 (2000) (expressing skepticism about its ultimate enforceability); Brunnée & Toope, Persuasion and Enforcement, supra note 9, at 12 (discussing agreements with emphasis on dialogue but expressing concerns about focus on the self-interest of states).


human rights have been violated and make recommendations to governments to undertake certain activities either to avoid or repair a violation of rights. Dialogic remedies in both domestic and international law attempt to persuade governments to internalize the norms they articulate and to make good faith efforts to select from a variety of legitimate options in order to recognize the relevant norm. They both generally anticipate that there are a range of legitimate responses open to government and that much can be gained by allowing governments to select the most appropriate response. Dialogic remedies in both domestic and international law contemplate a reiterative process in which governments report on steps to achieve compliance;91 dialogic remedies cannot be fashioned in an instant so as to achieve rectification that traces and corrects past wrongs.92 Dialogic remedies often aim to promote healthy partnerships between courts and governments,93 and they are often concerned with producing systemic reforms to prevent violations in the future.

The important similarities between dialogic remedies in public international law and constitutional law can, of course, be overstated. The threat of sanctions or ultimate judicial enforcement is often more meaningful or immediate in the domestic than the international context. Although declarations cannot be enforced through the contempt power, they are court orders that are meant to be obeyed and that can be rejected by the judiciary in favor of more precise and coercive mandatory relief: the option of stronger injunctive relief is rarely available in international human rights laws. Delayed or suspended declarations of invalidity available in Canadian and South African constitutional law are also distinct from international law remedies. Should the government not respond with new and constitutional legislation within the period of judicially approved delay, the declaration of invalidity comes into effect. In contrast, declaratory remedies in international law, at least those issued by the U.N. Human Rights Committee, do not have such binding effect. The differences should not be ignored, but neither should the similarities of common remedial processes that seek to engage governments in good faith acts of implementation and internalization of human rights norms.

IV. INTERNATIONAL DIALOGUES

Canada has ratified the Optional Protocol to the ICCPR.94 This allows individuals in Canada to make complaints to the U.N. Human Rights Committee after they have exhausted domestic remedies. Article 4(2) of this Optional Protocol contemplates that within six months of the Committee having received a complaint, �“the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.�” This seems to contemplate a dialogic process in which the state responds to the complaint and may provide some remedy for the matter before official consideration and adjudication of the complaint. At the same time, the provision of the remedy by the receiving state is discretionary both

91. The Chayeses argue that �“the dynamics of dialogue and accountability are central�” to the managerial approach of international law to achieving compliance. CHAYES & CHAYES, supra note 7. �“States are given ample opportunity to explain and justify their conduct. The reasons advanced to excuse noncompliant conduct point to avenues for improvement and correction. The state concerned can hardly avoid undertaking to act along the indicated lines. As the review is reintegrated over time, these promises of improvement contain increasingly concrete, detailed and measurable undertakings.�” Id. at 230.

92. Kent Roach, The Limits of Corrective Justice, supra note 83, at 890. 93. Chief Justice McLachlin has also observed that the Canadian approach to remedies may have started a

�“tradition of cooperation instead of conflict, which, if we can follow it, promises a more harmonious relationship between the judiciary and other branches of government than that which has historically prevailed in the United States.�” B.M. McLachlin, The Charter: A New Role for the Judiciary?, 29 ALTA. L. REV. 540, 553 (1991).

94. Optional Protocol, supra note 15.


before and after the Committee has communicated its views on the matter. The Optional Protocol does not provide explicit remedial powers for the U.N. Human Rights Committee in the case that it finds that the complaint is substantiated. Article 5(4) of the Optional Protocol simply states that �“the Committee shall forward its views to the state party concerned and to the individual.�” Final communications by the Committee often have a dialogic form as they generally recite the facts as submitted by the author of the complaint, submissions by the state�’s party, and responses to the submissions by the two parties. The Committee�’s own reasons for its conclusions are then articulated. The Committee itself often asks that its decisions be published by the state party and that the state party report back on the steps taken to respond to the decision. Like domestic courts that issue general declarations, delayed declarations of invalidity, or engage in complex relief involving public institutions, the U.N. Human Rights Committee often relies on the good will and good faith of governments to respond to their decisions.

Canada�’s commitment to the Optional Protocol adds an interesting dimension to dialogues about rights and freedoms that are not present in states such as the United States and the United Kingdom, which have not signed the Optional Protocol. Canada�’s ratification means that litigants who believe that they have not received justice from the Supreme Court of Canada or whose rights have been subject to the legislative override under Section 33 of the Canadian Charter can challenge these judicial and legislative decisions in at least one international forum.95 As Robert Cover has noted, jurisdictional redundancy can mitigate some of the damage done by final authoritative decisions of courts that deny rights.96 My colleague Karen Knop has written that a decision of a domestic court, especially on matters involving international law, �“begins a dialogue, real or imagined�”97 with both other domestic courts and with international law and its enforcement bodies. The effects of recourse to the U.N. Human Rights Committee on domestic human rights in countries that have signed the Optional Protocol to the ICCPR is an important topic that deserves more comparative study.

The dialogue between the Canadian courts and the U.N. Human Rights Committee has an interesting asymmetrical quality. It serves as an ultimate review function for the majority of Supreme Court decisions that find no Charter violations as opposed to the minority of decisions that find unjustified violations.98 In this way, recourse to the Committee has the potential to serve as an antidote to the danger first recognized by James Bradley Thayer that democracies that rely on judicial-enforcement bills of rights may become complacent about rights.99 In other words, a decision by the U.N. Human Rights Committee that rights under the ICCPR have been violated may shake complacency caused by a domestic supreme court decision that rights have not been violated in the same or

95. New Zealand has also signed the Optional Protocol, and the leading text on the New Zealand Bill of Rights observes: �“The Optional Protocol procedure effectively enables individuals to relitigate Bill of Rights arguments before the Human Rights Committee, this time putting their complaint in terms of the analogous right in the ICCPR.�” PAUL RISHWORTH ET AL., THE NEW ZEALAND BILL OF RIGHTS 13�–14 (2003).

96. See Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 WM. & MARY L. REV. 639, 657 (1981); see also Robert M. Cover, Nomos and Narrative, 97 HARV. L. REV. 4 (1983).

97. Karen Knop, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. INT�’L L. & POL. 501, 533 (2000).

98. Sujit Choudhry & Claire E. Hunter, Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) v. NAPE, 48 MCGILL L.J. 525, 545 (2003); James B. Kelly, The Charter of Rights and Freedoms and the Rebalancing of Liberal Constitutionalism in Canada, 1982�–1997, 37 OSGOODE HALL L.J 625, 636 (1999).

99. See BICKEL, THE LEAST DANGEROUS BRANCH, supra note 3, at 21�–22. For my own views about public complacency when dubious legislation is found to be consistent with the Charter or �“Charter-proof,�” see Kent Roach, The Dangers of a Charter-Proof and Crime-Based Response to Terrorism, in THE SECURITY OF FREEDOM: ESSAYS ON CANADA�’S ANTI-TERRORISM BILL 131 (Ronald J. Daniels et al. eds., 2001).


related cases. The U.N. decision may feed back into possible legislative reforms that could go beyond the minimal standards of rights protection found in the Charter.100 It may also feed into civil society and transnational attempts to reform the state practice. To be sure, many complaints by Canadians to the Committee are found inadmissible and some seem on paper at least to be somewhat trivial. Also, the Committee may be slow in making its decisions and some of its decisions may leave something to be desired in the clarity of their reasoning. Nevertheless, the option of going to the Committee has the potential to continue dialogues about rights that might otherwise be ended by a decision by the Canadian Supreme Court that no rights have been violated.

During the twenty-three years of the Charter�’s existence, there have been some interesting examples of dialogues about rights going international.101 One such issue involves challenges to public funding of Catholic denominational schools in some provinces. As part of the Confederation bargain, the Catholic minority in Ontario secured constitutional commitments to public funding of their schools in 1867, but such funding has been challenged under the Charter as a discriminatory preference of one religion over another religion. In two cases, the Supreme Court of Canada has found that public funding of Roman Catholic schools does not constitute unconstitutional discrimination because one part of the Constitution (the Charter) cannot be used to negate another part of the Constitution (the 1867 commitments).102 Affected parents have gone to the U.N. Human Rights Committee and complained of discrimination. The Committee has found a violation of Article 26 of the ICCPR, holding that:

if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination. This means that providing funding for the schools of one religious group and not for another must be based on reasonable and objective criteria. In the instant case, the Committee concludes that the material before it does not show that the differential treatment between the Roman Catholic faith and the author�’s religious denomination is based on such criteria. Consequently, there has been a violation of the author�’s rights under article 26 of the Covenant to equal and effective protection against discrimination.103

The Committee added its standard phrases affirming the country�’s recognition of the competence of the Committee, its obligations to provide an effective remedy, and requesting Canada to report back in ninety days �“about the measures taken to give effect to the Committee�’s [v]iews. The state party was also requested to publish the Committee�’s [v]iews.�”104 Such a decision falls into the pattern identified in the last part of this paper of international law relying not on enforcement but rather a dialogic process in which the state is reminded of its international obligations and its sense of international citizenship. In

100. I am indebted to my colleague David Schneiderman for this point. 101. This process went on before the Charter and saw an �“an international �‘appeal�’�” from restrictive

decisions of the Supreme Court of Canada about equality under both the statutory Canadian Bill of Rights and statutory human rights codes. Bhinder v. Canada, U.N. Human Rights Comm., 37th Sess., U.N. Doc. CCPR/C/37/D/208/1986 (1989), hearing issue considered in Bhinder v. Canada National Railway Co., [1985] 2 S.C.R. 561, and Lovelace v. Canada, U.N. Human Rights Comm., 13th Sess., U.N. Doc. CCPR/C/13/D/24/1977, hearing issue considered in Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; see also Schabas, supra note 15.

102. See Reference Re Bill 30 (Ont.), [1987] 1 S.C.R. 1148, 1153; Adler v. Ont., [1996] 3 S.C.R. 609, 615. 103. Waldman v. Can., U.N. Human Rights Comm., 67th Sess., para. 10.6, U.N. Doc

CCPR/C/67/D/694/1996 (1999). 104. Id. para. 13.


other words, attempts are made to persuade a state to comply rather than to coerce its compliance.

As discussed in the last part of the paper, however, the Commission�’s soft and dialogic approach to remedies often does not produce full compliance or full rectification. The U.N. Human Rights Committee�’s decision has neither ended public funding to Catholic schools in Ontario nor resulted in full public funding of other religious schools. It has, however, helped to keep the issue alive and in the public eye; one Ontario government has acted to provide tax credits for parents who send their children to a variety of private schools including religious schools.105 Although there has not been full compliance with the decision, this episode illustrates how debates about rights in Canada can be enriched and expanded by the ability to bring complaints to the U.N. Human Rights Committee.

Another important case study of the international dimensions of dialogic judicial review in Canada is the controversy over Québec language legislation that generally prohibited the use of languages other than French on public signs. Some anglophone merchants challenged the law as an unreasonable restriction on freedom of expression and eventually gained a favorable judgment from the Supreme Court in December 1988.106 The Court did not take an absolutist approach to freedom of expression and recognized that protecting the French language was a legitimate objective for legislation.107 Nevertheless, it concluded that this objective could be pursued in a more proportionate and reasonable manner by, for example, requiring that French be the predominant but not the exclusive language on commercial signs.108 As discussed above, Section 1 is an important dialogic device that gives governments the ability to justify reasonable limits on rights.

Section 1 is not the only dialogic device under the Charter, and the Québec legislature quickly responded to the ruling by reenacting the rule that public signs shall be French, this time providing that the new law shall operate notwithstanding the Canadian Charter of Rights and Freedoms. This was controversial legislation and led to the resignation of some anglophones from the Québec government. The use of the override is something similar to shouting to win an argument, albeit shouting with a mandatory cooling-off period and a chance for sober second thoughts when the override expires in five years.109 The anglophone merchants who won in the Canadian Supreme Court only to lose in the Québec legislature were, however, not willing to wait five years for the legislature to reconsider their claims and they complained to the U.N. Human Rights Committee. Both the Canadian and Québec governments argued that the merchants had not exhausted domestic remedies on the basis that litigation was still technically possible in the domestic courts. The Committee rejected this argument in large part because a domestic judgment �“would not pronounce on the compatibility, with international obligations assumed by Canada, of the �‘notwithstanding�’ clauses.�”110 This decision is important because it reveals that at least one international body is prepared to review the use of the controversial override. As such, it may provide some response to fears that the override can be a vehicle for an inflamed majority to trample on the rights of unpopular minorities. The availability of international review of the use of the override is especially important given that the the Supreme Court of Canada has taken a deferential stance to the use of the override. Although it will not allow the legislature to use the override in a retroactive fashion, it also will not scrutinize

105. The Right Choices for Equity in Education Act (Budget Measures) 2003, ch. 5, 2003 S.O. (Can.). 106. Ford v. Québec (Att�’y Gen.), [1988] 2 S.C.R. 712. 107. Id. at 717. 108. Id. 109. ROACH, THE SUPREME COURT ON TRIAL, supra note 2, at 189�–93. 110. Ballantyne v. Canada, U.N. Human Rights Comm., 47th Sess., para. 10.3, U.N. Doc

CCPR/C/47/D/359/1989 (1993) [hereinafter Ballantyne].


the merits or necessity of the override.111 In contrast, Article 4 of the ICCPR places many more restrictions on the derogation process. There must be a declared emergency and the derogation must be proportionate to the emergency and not result in discrimination or a violation of international commitments. 112

On the merits of the controversy over Québec language legislation, the U.N. Human Rights Committee in a communication issued in May 1993 decided that the prohibition of languages other than French on public signs in the province of Québec was not justified as a legitimate limit on freedom of expression under Article 19 of the ICCPR. The Committee concluded that:

[t]he Committee believes that it is not necessary, in order to protect the vulnerable position in Canada of the francophone group, to prohibit commercial advertising in English. This protection may be achieved in other ways that do not preclude the freedom of expression, in a language of their choice, of those engaged in such fields as trade. For example, the law could have required that advertising be in both French and English. A State may choose one or more official languages, but it may not exclude, outside the spheres of public life, the freedom to express oneself in a language of one�’s choice.113

The Committee called on Canada to remedy �“the violation of article 19 of the Covenant by an appropriate amendment to the law�” and requested information within six months on �“any relevant measures taken by the State party in connection with the Committee�’s views.�”114

In 1994, the U.N. Human Rights Committee decided another complaint brought by an anglophone merchant in Québec. In 1993, Québec had amended its language legislation generally to allow the use of languages other than French on public signs, so long as French remained dominant.115 The U.N. Human Rights Committee refused to hold that the complaint was moot because of the 1993 legislation. The Committee found that at the time that the complaint was brought, the prohibition on the use of languages other than French violated Article 19(2) of the ICCPR, noting that its previous observations applied to this case. At the same time:

The Committee notes that the contested provisions of the Quebec Charter of the French Language were amended by Bill No. 86 in June 1993, and that under the current legislation Mr. Singer has the right, albeit under specified conditions and with two exceptions, to display commercial advertisements outside his store in English. The Committee observes that it has not been called upon to consider whether the Charter of the French Language in its current version is compatible with the provisions of the Covenant. In the circumstances, it concludes that the State party has provided Mr. Singer with an effective remedy.116

111. Ford, [1988] 2 S.C.R. at 744�–45. (override reviewed only as a matter of form without attention to the

merits, necessity, or proportionality of the use of the override). 112. For an example of a domestic court holding that an explicit legislative derogation from rights was

disproportionate to the emergency and discriminatory see A v. Secretary of State for the Home Department, [2004] U.K.H.L. 56 (H.L. 2004).

113. Ballantyne, supra note 110, para. 10.3. 114. Id. paras. 13�–14. 115. An Act to Amend the Charter of the French Language, R.S.Q., ch. 40 (1993) (Que.). 116. Singer v. Canada, U.N. Human Rights Comm., 51st Sess., para. 14, U.N. Doc CCPR/C/51/D/455/1991

(1994).


Although this was not a formal ruling on the compatibility of the new legislation with the ICCPR, it did take note of Québec�’s subsequent revision of a law. It is not surprising that a body that relies on dialogue to implement its determinations would be sensitive to Québec�’s change of position on the language law.

In the end, Québec did have sober second thoughts about its use of the override to impose a blanket prohibition on the use of languages other than French on public signs. The reasons for this response are complex and the decisions of the U.N. Human Rights Committee played only one part in the decision. Nevertheless, these communications demonstrate how decisions made about rights in either Canadian courts or legislatures can be subject to further challenges, disputes, and dialogue in international arenas.117 The decisions of supranational bodies may not always be enforced, but they are part of an ongoing dialogue about justice that crosses borders. In the Canadian context in particular, the ability of the U.N. Human Rights Committee to evaluate any use of the override by Canadian legislatures adds an important dimension to the use of the override.118

A more recent and troubling episode in Canada involving the U.N. Human Rights Committee involves the case of Ahani v. Canada in which a person found to be a security threat to Canada challenged his deportation to Iran.119 The Supreme Court of Canada upheld the minister�’s decision that Mr. Ahani did not face a significant risk of torture if deported.120 Ahani, however, claimed he would be tortured, a claim that was not incredible given Iran�’s human rights record. He sought to restrain his deportation until his claim was considered by the U.N. Human Rights Committee. On January 11, 2002, the Committee under its interim procedures121 requested Canada �“�‘to refrain from deportation until the Committee has had an opportunity to consider the allegations, in particular those that relate to torture, other inhuman treatment or even death as a consequence of the deportation.�’�”122 The Committee�’s request was renewed by a vote in May 2002.123

Mr. Ahani did not rely solely on the U.N. Human Rights Committee�’s own procedures, but also started litigation in the Canadian courts to secure an injunction to stop his deportation pending the Committee�’s decision. The request for an injunction was

117. For a contrast between the weak form of international dialogue about rights available in Canada and

New Zealand with stronger forms of international dialogues between �“the British courts, Parliament and the European Court of Human Rights,�” see Joanna Harrington, The British Approach to Interpretation and Deference in Rights Adjudication, 23 SUP. CT. L. REV. (2d) 269, 297�–301 (2004).

118. Note that one of the concerns about the override is that contrary to expectations, some uses of the override do not attract widespread legislative or public debate. Kahana, The Notwithstanding Mechanism, supra note 26. In addition, the use of the override in Canada will not be subject to searching domestic judicial review.

119. Joanna Harrington, Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection, 48 MCGILL L.J. 55, 57�–60 (2003) [hereinafter Harrington, Punting Terrorists].

120. Ahani v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 72, 82�–83. 121. Rule 86 of the U.N. Human Rights Committee�’s rules provides that:

The Committee may, prior to forwarding its views on the communication to the State party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication.

U.N. Human Rights Comm., Rules of Procedure of the Human Rights Committee, Rule 86, U.N. Doc CCPR/C/3/Rev.6 (2001).

122. Ahani v. Canada, U.N. Human Rights Comm., 80th Sess., para. 1.2, U.N. Doc. CCPR/C/80/D/1051/2002 (2004) [hereinafter Ahani, U.N. Human Rights Comm.], available at http://www.worldlii.org/int/cases/UNHRC/2004/20.html (last visited Feb. 28, 2005).

123. Id.


dismissed by a trial judge on January 15, 2002.124 He then appealed to the Ontario Court of Appeal, which did stay the deportation until it heard the appeal. The court of appeal heard argument on January 28, 2002, and in a divided 2�–1 judgment released on February 8, 2002, dismissed Ahani�’s appeal, indicating that the Canadian courts would not issue a stay of the deportation until the U.N. Human Rights Committee had considered the matter.125 In the majority judgment, Laskin J.A. stressed that in signing the protocol:

Canada did not agree to be bound by the final views of the Committee, nor did it even agree that it would stay its own domestic proceedings until the Committee gave its views. In other words, neither the Committee�’s views nor its interim measures requests are binding on Canada as a matter of international law, much less as a matter of domestic law. The party states that ratified the Covenant and the Optional Protocol turned their minds to the question of whether they should agree to be bound by the Committee�’s views, or whether they should at least agree to refrain from taking any action against an individual who had sought the Committee�’s views until they were known. They decided as a matter of policy that they should not, leaving each party state, on a case by case basis, free to accept or reject the Committee�’s final views, and equally free to accede to or not accede to an interim measures request.126

He concluded for the majority that if �“Canada has not acted in good faith . . . then it may justifiably be open to public criticism�” but that this was a matter �“for the court of public or international opinion, not for a court of law.�”127 The nonbinding nature of the U.N. Human Rights Committee�’s judgments was used as a reason to deny Mr. Ahani�’s claim that he had a right under Canadian constitutional law to a stay of his deportation until the government and the public could be informed of the Committee�’s views.

In dissent, Rosenberg J.A. would have allowed a domestic court to consider if the balance of convenience favored granting an injunction restraining the deportation until the U.N. Human Rights Committee had ruled. He stressed Canada�’s decision to sign the Optional Protocol and the importance of full procedural protections even when security and the threat of terrorism were at stake. Justice Rosenberg pointed out the contrast between Canada�’s proud commitment to the Optional Protocol in general but its selective actions �“to shield the executive from the consequences of its voluntary decision to enter into and therefore be bound by the Covenant and the Protocol.�”128 He stressed the importance of good faith in implementing treaties.129 At the same time, he did not state that Mr. Ahani had an absolute right to have his deportation stayed or to have Canada follow the Human Rights Committee�’s judgment.130 He suggested that the government had to advance a good reason for not waiting for the U.N. Human Rights Committee�’s decision and that it had not done so given that Ahani had already been subject to a long period of detention in Canada and this period would only have been extended should his deportation be stayed until the Committee had considered his case.131

124. Ahani v. Canada, [2002] O.J. no 81 (Super. Ct. Justice). 125. Ahani v. Canada (Att�’y Gen.), [2002] 58 O.R.3d 107, 108. 126. Id. at 117�–18. He added: �“The Committee�’s views have moral suasion and Canada should have the

benefit of them. I accept that the Committee�’s views have persuasive value, though they are not binding. The evidence before this court suggests that Canada has always abided by the Committee�’s views.�” Id. at 120.

127. Id. at 121�–22. 128. Id. at 134. 129. Id. at 138. 130. Ahani, [2002] 58 O.R.3d at 140. 131. Id. at 140�–41


Why exactly did the majority of the court of appeal not stay the deportation until the U.N. Human Rights Committee had considered the case? One possible reason suggested by my colleague Audrey Macklin is that the court of appeal may have been unwilling to �“acknowledge the competence of another norm-generating body outside the domestic legal order capable of speaking to the validity of a state�’s decision to expel a non-citizen to face possible torture.�”132 The risk of inconsistent verdicts is indeed an important concern for those who view law as a matter of authoritative command. As will been seen, however, the court of appeal�’s refusal to consider the stay did not stop the U.N. Human Rights Committee from eventually considering the matter and reaching conclusions that were inconsistent with both the Supreme Court�’s decision that Mr. Ahani had been treated fairly and was not at risk of being tortured if deported to Iran, and the Ontario Court of Appeal�’s own decision that the deportation could occur before the U.N. Human Rights Committee considered the case. The desire to avoid inconsistent verdicts on difficult if not intractable matters of human rights may be futile. Not only are appellate courts often divided on these matters, but Canada�’s agreement to the Optional Protocol stands as an open invitation to inconsistent verdicts. As justice becomes increasingly globalized, the opportunities for inconsistent verdicts will multiply. Dialogic understandings of law are much more capable of accommodating inconsistent verdicts because of their recognition of the multiple sites and sources for interpretation than more positivistic theories that focus on law as command and that place great weight on the values of finality, certainty, and avoiding the risk of inconsistent verdicts.

Another reason that may explain the majority�’s decision was a judicial desire to defer to the executive on matters of national security. Laskin J.A. stated:

At bottom, this case demonstrates the difference between the proper role of the executive and the proper role of the judiciary. Judges are not competent to assess whether Canada is acting in bad faith by rejecting the Committee�’s interim measures request and instead deporting Ahani immediately. Canada has many international obligations to balance, not the least of which, in the wake of what occurred last September 11, is to ensure that it does not become a safe haven for terrorists.133

Justice Laskin�’s reference to 9/11 begs the question of whether the judiciary would have decided the issue any differently had that horrible act of mass terrorism not occurred. The issue in Ahani was not whether Canada is or is not a �“safe haven for terrorists,�” but whether deportation from Canada to Iran should be stayed pending a decision from the U.N. Human Rights Committee on whether the deportation was consistent with Canada�’s international obligations.

In his eloquent dissent, Rosenberg J.A. effectively rebutted the majority�’s national security argument by noting:

Canada is not harbouring terrorists or setting itself up as a haven for terrorists. The Appellant [Ahani] has been in jail for over eight years . . . . I have accorded the appellant a procedural right that the executive arm of government held out to him . . . . [T]he courts in their commendable effort to support the government�’s defence of this and other countries from terrorism must bear in mind

132. Audrey Macklin, The State of Law�’s Borders and the Law of States�’ Borders, in THE UNITY OF PUBLIC

LAW 173, 196 (David Dyzenhaus ed., 2004). 133. Ahani, [2002] 58 O.R.3d at 122.


[that] . . . �“the history of liberty has largely been the history of observance of procedural safeguards.�”134

As Justice Rosenberg stressed, what was at stake was Ahani�’s ability to make effective use of a procedure that the executive had already voluntarily committed itself to and extended to people in Canada who believed that their rights under the ICCPR were being violated.

Another reason that may explain the decision of the majority of the court of appeal in Ahani is its sense that international law was not important enough or authoritative enough to justify any disruption of the domestic legal process. The majority did not think that its own precedent of staying the deportation until it itself had heard the appeal or of staying its decision to allow leave to be sought to the Supreme Court of Canada135 was of any relevance to the decision of whether the U.N. Human Rights Committee should be afforded the same courtesy.

The majority also did not take note of a prior and strongly worded decision by the U.N. Committee Against Torture, which found Canada in breach because it had defied interim measures and deported a person before that Committee had an opportunity to consider this matter.136 Instead, it ventured an opinion that �“the Government of Canada would have every reason to hold a good faith belief that deporting Ahani now would not breach its obligations under the Covenant�”137 and that �“[t]he evidence before this court suggests that Canada has always abided by the Committee�’s views.�”138 In retrospect at least, these views seem overly optimistic. As will be seen, the Committee subsequently concluded that Canada has indeed breached its obligations. The majority of the court of appeal did advert to the possibility but marginalized its significance by quickly concluding that it was a matter for the public and other states and not for the domestic courts.139 Although this approach recognizes that international law can provide a forum in which to criticize domestic law, the result was fast and easy dualism that did not seem particularly troubled by the fact that domestic law in Canada may be at odds with Canada�’s international commitments. In other words, the majority placed international law firmly on the politics side of a divide between law and politics. It also defined the relevant issue in a narrow and dichotomous fashion: either international law was binding or it was not.140 The fact that international law and the views of the U.N. Human Rights Committee were not binding in domestic law was decisive. What really mattered was not dialogue and debate but authority and enforcement.

In contrast, the dissent of Justice Rosenberg is much more nuanced. He did not say that Ahani had an absolute right to a stay, but rather that the government must justify its decision to proceed without the benefit of the Committee�’s views on the matter.141 My colleague Mayo Moran has identified a dialogic style in Justice Rosenberg�’s reasoning and she relates it to an understanding of �“influential authority�” that �“holds open the possibility

134. Id. at 137�–38, 141 (internal citation omitted) (Rosenberg, J., dissenting). 135. Id. at 126�–27. 136. U.N. GAOR Comm. Against Torture, 55th Sess., Supp. No. 44, para. 16.1, U.N. Doc. A/55/44 (2000)

[hereinafter Comm. Against Torture, 55th]. 137. Ahani, [2002] 58 O.R.3d at 121. 138. Id. at 120. 139. Id. at 122. 140. Knop, supra note 97, at 515. 141. Mayo Moran has observed, Justice Rosenberg�’s approach imposes �“a demand for a reason why the

government that ratified the treaty now wants to ignore its terms. So something more than raising the conventional argument that ratification does not give rise to domestic rights will be required to justify government inattentiveness in these cases.�” Mayo Moran, Authority, Influence, and Persuasion: Baker, Charter Values and the Puzzle of Method, in THE UNITY OF PUBLIC LAW 389, 407 (David Dyzenhaus ed., 2004).


that non-binding norms and processes may also generate demands of respect that impose constraints and burdens, including justificatory ones, on political authorities.�”142

Justice Rosenberg�’s approach is more dialogic than the majority�’s approach in two different senses. Externally, his approach is more sensitive to the dialogic effects that both the Court�’s decision and the U.N. Human Rights Committee�’s communication might have in Canadian society. It seems to proceed on the assumption that while the Committee would not undo the Supreme Court�’s previous decision on the matter, the Committee�’s communication could be relevant to how the Canadian minister exercises discretion. It might also be relevant to normative debate and discourse within civil society. To be sure, Justice Laskin for the majority also addressed some of the possible effects of the Committee�’s decision on Canada when he states that �“the Committee�’s views have moral suasion and Canada should have the benefit of them. I accept that the Committee�’s views have persuasive value, though they are not binding. The evidence before this court suggests that Canada has always abided by the Committee�’s views.�”143 Nevertheless, such statements ring hollow when read in conjunction with the irrevocable nature of the deportation and the Committee�’s subsequent conclusions that the deportation breached several of Canada�’s international law obligations.

Justice Rosenberg�’s approach was also more dialogic than Justice Laskin�’s as a matter of internal reasoning. He did not approach Ahani�’s claim through the lens of whether there is an enforceable or absolute right to the stay either in international or domestic law. Rather, as Professor Moran has pointed out, Justice Rosenberg approached the issue through the more tentative and dialogic lens of whether the government could justify deportation without waiting on the Committee. The contrasting styles of the two judgments raises the intriguing possibility of connections between how a judge decides a case as an internal matter of jurisprudence and whether a judge sees his or her decision as part of an external and ongoing dialogue with other institutions. In particular, it raises the issue of whether judges who see their judgments as part of an external and inter-institutional dialogue about rights may also be inclined to approach questions of authority and rights in a less dichotomous manner that focus not so much on whether there is binding or nonbinding authority or an absolute right, but more on whether the state has good reasons to justify actions that may have a severe effect on individuals. The relation between external dialogue and internal reasoning will be explored at greater length in the next part of this paper.

Following the court of appeal�’s decision, Mr. Ahani sought leave to appeal to the Supreme Court of Canada. The Court denied the leave without reasons in May 2002, albeit subject to a dissent by Justice L�’Heureux-Dubé being formally noted in the record.144 It is significant that Justice L�’Heureux-Dubé�—the judge who has been at the forefront of engaging in international law norms in Canadian law145�—would have taken the extremely rare step in Canada of having her dissent from a decision whether to grant leave to appeal noted.

A month after the Supreme Court refused to hear the appeal, Ahani was deported to Iran. In August 2002, the U.N. Human Rights Committee �“expressed great regret�”146 at Ahani�’s deportation to Canada�’s representative to the United Nations in Geneva and asked

142. Id. at 411. On the concept of persuasive authority, see generally H. Patrick Glenn, Persuasive Authority, 32 MCGILL L.J. 261 (1987) (discussing the history and influence of persuasive authority on Western legal thought and concluding that persuasive authority is essential to the law).

143. Ahani, [2002] 58 O.R.3d at 120. 144. Ahani v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 72, 76. 145. See, e.g., Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817; L�’Heureux-

Dubé, supra note 8. 146. Ahani, U.N. Human Rights Comm., supra note 122, para 5.1.


for a written explanation. This quasi-diplomatic move by the Committee followed a dialogic method identified by the Chayeses of demanding explanations rather than relying on sanctions.147 Canada replied in part that neither the ICCPR nor the Optional Protocol �“provide for interim measures requests and argues that such requests are recommendatory, rather than binding.�”148 Canada also stressed that the case had already been litigated under the Charter all the way to the Supreme Court.149 The approach taken by Canada in responding to the U.N. Human Rights Committee�’s questions mirrors the approach taken by Laskin J.A. in stressing the positivistic issue of whether the authority was binding or not and not engaging the more wide-ranging issue of whether Canada�’s actions in deporting Ahani before the Committee had ruled were justified. In June 2004, the Committee found that Canada had breached its obligations under the Optional Protocol by deporting Ahani before it could address his allegations of irreparable harm to his rights. In strong terms the Committee concluded:

Interim measures pursuant to rule 86 of the Committee�’s rules adopted in conformity with Article 39 of the Covenant, are essential to the Committee�’s role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from a State party to face torture or death in another country, undermines the protection of Covenant rights through the Optional Protocol.150

Canada�’s attitude toward the interim remedy process is most disappointing. Interim remedies have a potential to bridge the gap between the individual and society that can be created by dialogic remedies that focus on systemic measures. Interim remedies can help ensure that we do not lose sight of the individuals who may suffer irreparable harm while more systemic remedies are being developed. In addition, as Rosenberg J.A. pointed out in his dissent in Ahani, interim remedies can be justified on the basis that they protect the procedural integrity of the adjudicative process and honor a commitment that the state has made to the process, even if the results of that process are not binding on the state.151

On the merits, the parties made conflicting submissions to the U.N. Human Rights Committee about Ahani�’s treatment and health since his return to Iran, and the Committee did not resolve this factual dispute. It did find, however, that Ahani�’s rights had been violated under Articles 9(4) and 13 of the ICCPR in conjunction with the right against torture in Article 7. It indicated that the procedures used in this case were deficient to determine whether Ahani was at a substantial risk of torture. The Committee concluded that Canada:

having failed to determine appropriately whether a substantial risk of torture existed such as to foreclose the author�’s deportation, is under an obligation (a) to make reparation to the author if it comes to light that torture was in fact suffered subsequent to deportation, and (b) to take such steps as may be appropriate to ensure that the author is not, in the future, subjected to torture . . . . The State

147. George W. Downs et al., The Transformational Model of International Regime Design: Triumph of

Hope or Experience?, 38 COLUM. J. TRANSNAT�’L L. 465, 486�–87 (2000). 148. Ahani, U.N. Human Rights Comm., supra note 122, para. 5.3. 149. Id. 150. Id. para. 8.2. On the evolution of interim measures and criticisms of Canada�’s record in not giving them

domestic effect, see generally Harrington, Punting Terrorists, supra note 119, at 55 (discussing the evolution of the use of interim measures, especially by the U.N. Human Rights Committee, and criticizing Canada�’s record in refusing to give domestic effect to those interim measures).

151. Ahani v. Canada (Att�’y Gen.), [2002] 58 O.R.3d 107, 134�–35.


party is also under an obligation to avoid similar violations in the future, including by taking appropriate steps to ensure that the Committee�’s requests for interim measures of protection will be respected.152

The Committee also requested that its views be published by Canada and that Canada provides information in ninety days �“about the measures taken to give effect to the Committee�’s [v]iews.�”153 The Committee�’s remedy is interesting because of its rejection of Canada�’s argument that it had �“no jurisdiction . . . to monitor the situation of a national of another State party on that State party�’s territory.�”154 Canada�’s approach on this issue followed a traditional focus on sovereignty and the limits of jurisdiction while the Committee�’s views seem to contemplate more porous borders and the important role of international attention and criticism in helping to ensure fair treatment of people in Iran. Similarly, the reference to Canada�’s obligations to compensate Ahani has the comparable effect of extending the reach of law beyond the jurisdictional limits of Canadian law. The more expansive international law approach can be contrasted with a subsequent approach taken by the Ontario Court of Appeal in an unrelated case that held that Iran was immune from a civil action arising out of alleged torture.155

The Ahani case suggests that Canadian courts are reluctant to recognize the important role that the U.N. Human Rights Committee can play in dialogues about rights in Canada and may be unduly influenced by the fact that the communications of the Committee do not have the same self-executing and binding authority as traditional court judgments. The decision of the majority of the Ontario Court of Appeal in Ahani conflated his claim under the Charter with the nonbinding nature of the international law in question.156 Moreover, it narrowed the possibility for further meaningful dialogue between the Committee and Canadian courts, governments, and society about the treatment of rights. The eventual conclusions of the U.N. Human Rights Committtee in the Ahani case are inconsistent both with the Supreme Court of Canada�’s decision that Ahani had been treated fairly when the Canadian minister determined he was not at a substantial risk of torture and the Ontario Court of Appeal�’s decision that Canada did not have an obligation to wait until the U.N. Human Rights Committee had considered the case before deporting Ahani to Iran. It is hoped that a greater appreciation of the legitimate contribution that international law can make to the dialogue about rights and freedoms will eventually lead the courts and the Canadian government alike to accord greater deference to the conclusions and especially the processes of the U.N. Human Rights Committee.

V. DIALOGUE, DEROGATION, AND DUALISM IN TIMES OF EMERGENCY

The Supreme Court of Canada in a number of recent cases has made reference to an eclectic mixture of comparative and international law. There is an interesting debate in Canada between those who are enthusiastic about the Court�’s receptivity to such a mix of international common law157 and those who caution that it is important to distinguish

152. Ahani, U.N. Human Rights Comm., supra note 122, para 12. 153. Id. para. 13. 154. Id. para. 5.4. 155. Bouzari v. Iran, No. CA C38295, 2004 WL 1434543 (Ont. Ct. App. June 30, 2004). 156. For decisions recognizing obligations in domestic law to wait until international or regional bodies hear

human rights complaints, see Harrington, supra note 150, at 79�–81. 157. See, e.g., Reem Bahdi, Globalization of Judgment: Transjudicialism and the Five Faces of International

Law in Domestic Courts, 34 GEO. WASH. INT�’L L. REV. 555, 569, 577�–78, 583�–84 (2002); David Dyzenhaus et al., The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation, 1 OXFORD U. COMMONWEALTH L.J. 5, 7, 23 (2001) (arguing that �“the recent phenomenon of the internationalization of


between international law that is formally binding on Canada and other forms of international law that only has persuasive authority.158 I will not directly enter into this debate, but rather suggest that the former more eclectic approach may fit better with a more dialogic approach to judicial review that places less emphasis on final authority. If a court judgment itself is not a final word in an ongoing dialogue about rights, it may be less important to focus on whether the sources that inform that judgment are formally binding.

In this section, I will also explore whether a dialogic approach to rights adjudication may have the disadvantage of not enforcing the most basic rights as absolutes that should never be the subject of limitation. This risk is underlined by the refusal of the Supreme Court of Canada in the two cases examined in this section to proclaim an absolute constitutional rule that Canada would never extradite a person to face the death penalty or even deport a person to face torture.159 The nonabsolutist tendency of a dialogic approach to judicial review and the use of authority may be a possible shortcoming in a post�–9/11 world where fundamental restraints on the state are being rethought and at times abandoned in a world threatened by lethal mass terrorism.

From the start, the Supreme Court of Canada has recognized that various forms of international law could be relevant and helpful in interpreting the Charter.160 In a 1987 case, Chief Justice Brian Dickson commented that �“[t]he various sources of international human rights law�—declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms�—must, in my opinion, be relevant and persuasive sources for interpretation of the Charter�’s provisions.�”161 An interesting feature of the Supreme Court�’s use of international law is that it has informed the reasons for limiting rights under Section 1 of the Charter, as well as the interpretation to be given to the rights. For example, Chief Justice Dickson stressed Canada�’s commitment to the International Convention on the Elimination of All Forms of Racial Discrimination162 as a reason for accepting that a criminal prohibition against the willful promotion of racial hatred was a reasonable limit on freedom of expression.163 He also noted that the U.N. Human Rights Committee has dismissed a complaint against Canada with respect to a prohibition of hate speech.164 He did not limit himself to international law that was binding on Canada, but also noted that the European Court of Human Rights has held that prohibitions on hate propaganda constituted reasonable limits on freedom of expression.165 He concluded:

administration law is best understood as the judicial updating of the set of common law values to which the administrative state has long been subjected by courts via statutory interpretation�”); Knop, supra note 97.

158. See, e.g., Brunneé & Toope, supra note 9, at 3; Louis LeBel & Gloria Chao, The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law, 16 SUP. CT. L. REV. (2d) 23, 35�–37 (2002).

159. United States v. Burns, [2001] 1 S.C.R. 779; Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3.

160. For an early example of a Canadian court referring to the U.N. Charter and other international sources as a justification for not enforcing a racially restrictive covenant, see Re Drummond Wren, [1945] 4 D.L.R. 674 (Ont. High Ct.). This approach was subsequently rejected in Re Noble & Wolf, [1948] 4 D.L.R. 123 (Ont. High Ct.), aff�’d, [1949] 4 D.L.R. 375 (Ont. Ct. App.). For a defense of incorporating principles such as the right against discrimination in domestic law, see Alan Brudner, The Domestic Enforcement of International Covenants on Human Rights: A Theoretical Framework, 35 U. TORONTO L.J. 219, 240�–44 (1985).

161. Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, 348 (Dickson, J., dissenting).

162. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Dec. 21, 1965, 660 U.N.T.S. 195.

163. R. v. Keegstra, [1990] 3 S.C.R. 697, 753�–55. 164. Id. at 750, 790�–91. 165. Id. at 753


That the international community has collectively acted to condemn hate propaganda, and to oblige State Parties to CERD and ICCPR to prohibit such expression, thus emphasizes the importance of the objective behind s. 319(2) and the principles of equality and the inherent dignity of all persons that infuse both international human rights and the Charter.166

A recent study has shown that between 1998 and 2003, the Canadian Supreme Court made twenty-seven references to international instruments and institutions in its Charter decisions.167 In what follows, I only examine two of those cases, albeit two cases that raise issues that are pressing in a post�–9/11 world: namely, extradition to face the death penalty and deportation to face torture.

In 2001, the Supreme Court of Canada in a landmark case called United States v. Burns168 held that the Charter generally required that Canada obtain assurances that the death penalty will not be applied before extraditing a fugitive. The decision was all the more striking because the Supreme Court had previously ruled in the Kindler and Ng cases only a decade earlier that it was constitutional to extradite two fugitives to the United States to face the death penalty.169 With the exception of a finding that use of the gas chamber in California would violate the ICCPR, both Mr. Kindler and Mr. Ng were also unsuccessful in subsequent complaints to the U.N. Human Rights Committee.170 Despite all this, the Supreme Court changed directions in Burns. It explained its change on the basis of a growing awareness of the risk of wrongful convictions in Canada, the United States, and the United Kingdom and �“important initiatives within the international community denouncing the death penalty, with the government of Canada often in the forefront.�”171 With respect to the latter, the Court relied on various forms of so-called soft law such as resolutions of the U.N. Human Rights Commission, reports by special rapporteurs, the exclusion of the death penalty from international criminal courts, and the fact that Canada was giving �“careful consideration�” to signing the Second Optional Protocol to the ICCPR to abolish the death penalty.172 The Court also cited regional authorities that were not binding on Canada, including resolutions of the European Parliament and decisions of the European Court of Human Rights.173

The Court stressed Canada�’s advocacy and support of anti-death penalty initiatives and quoted one of Canada�’s spokespeople arguing that �“[s]uggestions that national legal systems needed merely to take into account international laws was inconsistent with international legal principles. National legal systems should make sure they were in compliance with international laws and rights, in particular when it came to the right to life.�”174 The Court did not conclude that there was �“an international law norm against the

166. Id. at 754�–55. 167. Bijon Roy, An Empirical Analysis of Foreign Jurisprudence and International Instruments in Charter

Litigation, 62 U. TORONTO FAC. L. REV. 99, 100�–01 (2004). 168. United States v. Burns, [2001] 1 S.C.R. 283. 169. See Kindler v. Can. (Minister of J.), [1991] 2 S.C.R. 779, 780�–84; Reference Re Ng Extradition (Can.),

[1991] 2 S.C.R. 858, 859�–60. 170. Kindler v. Canada, U.N. Human Rights Comm., 48th Sess., para. 18, U.N. Doc CCPR/C/48/D/470/1991

(1993) (concluding that the facts of Kindler�’s case �“do not reveal a violation by Canada of any provision of the�” ICCPR), available at http://www.worldlii.org/int/cases/UNHRC/1993/40.html (last visited Feb. 28, 2005); Ng v. Canada, U.N. Human Rights Comm., 49th Sess., paras. 15.7, 17, U.N. Doc CCPR/C/49/D/469/1991 (1994) (concluding that while Canada did not violate Ng�’s rights per se by extraditing him to be executed, his rights were violated under Article 7 of the ICCPR because of the proposed method of execution).

171. Burns, [2001] 1 S.C.R. at 332. 172. Id. at 333. 173. Id. 174. Burns, [2001] 1 S.C.R. at 332.


death penalty, or against extradition to face the death penalty�” but rather �“significant movement towards acceptance internationally of a principle of fundamental justice that Canada has already adopted internally, namely the abolition of capital punishment.�”175

The Court also followed a trend applauded by some176 and questioned by others177 of blurring both binding and nonbinding international law sources with those taken from comparative law. The Court also took a broad approach to comparative law that included not only law but practice and, in particular, the history of miscarriages of justices and debates in the United States and elsewhere about the risks of executing the innocent. The interaction of the international, the comparative, and the domestic is well captured in the following passage:

The existence of an international trend against the death penalty is useful in testing our values against those of comparable jurisdictions. This trend against the death penalty supports some relevant conclusions. First, criminal justice, according to international standards, is moving in the direction of abolition of the death penalty. Second, the trend is more pronounced among democratic states with systems of criminal justice comparable to our own. The United States (or those parts of it that have retained the death penalty) is the exception, although of course it is an important exception. Third, the trend to abolition in the democracies, particularly the Western democracies, mirrors and perhaps corroborates the principles of fundamental justice that led to the rejection of the death penalty in Canada.178

The Court�’s open-minded mélange of sources demonstrates how an appreciation of a variety of international and comparative sources can encourage critical self-reflection within a domestic court about the justness of its decisions and the implicit overruling of its prior precedents.

In many ways, Burns shows dialogic judicial review at its very best. The Court was sensitive to emerging trends and not overly concerned with whether they constituted official norms of international law or were binding in domestic law. It was willing to use all of this information to engage in critical self-reflection and effectively reverse decisions it had made only a decade earlier. This process of dialogue was also assisted by the Court�’s decision to hear from a wide range of international interveners, including Amnesty International, the Senate of Italy, the International Centre for Criminal Law and Human Rights, the Association in Defence of the Wrongfully Convicted, and the Association of the Criminal Defense Lawyers from the State of Washington. A judge of the Supreme Court of Canada has written that his court �“has acknowledged the increasingly important role that non-traditional international law actors play in influencing the development of international law.�”179 A globalized human rights culture will need a support structure as much if not more than a domestic human rights culture.180 Groups with international connections will

175. Id. at 334. 176. See, e.g., Knop, supra note 97, at 525�–34; Karen Knop, Reflections on Thomas Franck, Race and

Nationalism (1960): �“General Principles of Law�” and Situated Generality, 35 N.Y.U. J. INT�’L L. & POL. 437, 464�–69 (2003).

177. See, e.g., Brunnée & Toope, Application, supra note 9; Stephen J. Toope, The Uses of Metaphor: International Law and the Supreme Court of Canada, 80 CAN. BAR REV. 534, 537�–39 (2001) (criticizing the Canadian Supreme Court for blurring distinctions between binding and non-binding international law).

178. Burns, [2001] 1 S.C.R. at 335. 179. LeBel & Chao, supra note 158, at 61. 180. On domestic support structures, see CHARLES R. EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS

AND THE SUPREME COURT IN COMPARATIVE PERSPECTIVE 198�–205 (1998).


have to educate judges about international law and make arguments in courts, legislatures, and in civil society about the importance of respecting international human rights law.

The Canadian Supreme Court�’s willingness in Burns to give effect to international trends rather than rules or norms of international law may have come with a price: the Court would not commit itself to an absolute constitutional rule of no extradition to face the death penalty. The Court instead said that the Constitution would generally require assurances that the death penalty would not be applied and left open the possibility of undefined exceptional circumstances to this general rule. In terms of the state of international law on the death penalty, this may be an acceptable result, but it does illustrate how the dialogic approach may not be conducive to the enforcement of absolute rules.181 Institutionally, the Court was unwilling to commit itself to an absolute rule and wanted to keep the door open to the possibility that the government could in exceptional circumstances justify to a court extradition to face the death penalty. Many proponents of dialogic judicial review at the domestic level counsel judges to avoid issues when possible and decide constitutional issues narrowly to allow room for the elected branches of government to respond and for the issues to ripen.182 There may have been a connection between the Court�’s institutional dialogic stance, its willingness to use nonbinding international and comparative law as an important source for its internal reasoning on the merits, and its unwillingness to commit itself to an absolute constitutional rule against extradition to face the death penalty.

Burns was decided before the terrorist attacks of 9/11. Those terrorist attacks, however, increased calls for exceptions to be made from general rules, and as a result, an important task of law today is to decide how to deal with claims that emergencies or other exceptional circumstances justify limitations on or departures from rights that would normally be respected in domestic or international law. One approach is to argue that exceptions should be made outside of the legal order subject to ratification after the event.183 Another is to maintain that principles of legality require that judges resist calls for exceptions.184 In what follows, I will explore how dialogic approaches to judicial review may respond to calls for exceptions from basic legal standards in emergencies and require governments to make formal and before-the-fact derogations from domestic and international rights should they decide that basic legal standards must be abandoned in emergencies.

A few months after the September 11th attacks, the Supreme Court of Canada decided the important case of Suresh. The case involved a person associated with the Tamil Tigers who had been determined by the solicitor general and the immigration ministers of Canada to be a threat to the security of Canada. For our purposes, the most important issue was whether the Charter prohibited the deportation of a person to a country where there was a substantial risk of torture. As in Burns, the Supreme Court issued an important and unanimous �“by the Court�” judgment. The Court�’s judgment in Suresh has many parallels with its judgment in Burns. In both cases, the Court drew on a broad range of international

181. Note that the U.N. Human Rights Committee in a case where a fugitive was extradited from Canada to the United States without assurances that the death penalty would not be applied has indicated that Canada has breached the ICCPR by not securing such assurances. Judge v. Canada, U.N. Human Rights Comm., 78th Sess., para. 10.6, U.N. Doc CCPR/C/78/D/829/1998 (2003), available at http://www.worldlii.org/int/cases/UNHRC/2003/51.html (last visited Feb. 28, 2005).

182. For the classic articulation of a passive virtues approach that leaves questions undecided, see BICKEL, THE LEAST DANGEROUS BRANCH, supra note 3. For a recent defense of constitutional minimalism, see CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999). See also Kent Roach, American Constitutional Theory for Canadians (and the Rest of the World), 52 U. TORONTO L.J. 503 (2002).

183. Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?, 112 YALE L.J. 1011, 1023�–24 (2003).

184. David Dyzenhaus, Intimidations of Legality Amid the Clash of Arms, 2 INT�’L J. CONST. L. 244 (2003).


and comparative law sources to inform its judgment. In both cases, the Court struck a dialogic stance by articulating a general rule but leaving it open to limitation in the case of undefined exceptional circumstances. Suresh, however, is a more disturbing judgment in part because the international law against deportation to torture is more settled and firm than the emerging international law trend against the death penalty that the court identified in Burns.

As in Burns, the Supreme Court expressed its willingness to interpret the Charter in light of a broad range of international laws. It stated:

The inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law, including jus cogens. This takes into account Canada�’s international obligations and values as expressed in �“[t]he various sources of international human rights law�—declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, [and] customary norms.�”185

The Court emphasized that �“[a] complete understanding of the Act and the Charter requires consideration of the international perspective.�”186 The Court was assisted by many of the intervening amicus curaie, including the U.N. High Commissioner for Refugees as well as Amnesty International, who each pleaded international law principles. Such an approach well demonstrates how domestic law is becoming more global and a need for all lawyers to be educated about international law.

On the substance, the court expressed a view that Article 3 of the Convention Against Torture (CAT) had �“dominant status�” over Article 33(2) of the Convention Relating to the Status of Refugees and suggested that the international norm against deportation to torture applied even to those found to be a danger to the state.187 This decision demonstrates how domestic courts, especially those such as the Supreme Court of Canada that has a high international profile and accessible judgments, can contribute to the development and reconciliation of international law sources.

The Court incorporated a variety of soft law and comparative sources in reaching its conclusion about the constitutionality of deportation to torture. It again blurred the status of international and comparative law by referring to decisions of the Supreme Court of Israel in the same discussion as Canada�’s obligations under the CAT.188 In the end, however, the Court reached a stronger conclusion about the state of international law with respect to deportation to torture as opposed to extradition to face the death penalty. It concluded that �“in our view, the prohibition in the ICCPR and the CAT on returning a refugee to face a risk of torture reflects the prevailing international norm.�”189 This was significantly stronger language than in Burns and one might expect that the Court would have proceeded to create an absolute rule against deportation to face torture.

Alas, one would be mistaken. The Court emphasized that it was not itself enforcing international law or Canada�’s international obligations, but only using them to inform its interpretation of the Canadian Constitution. At the end of the day, the Court articulated a

185. Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 31 (quoting United States v. Burns, [2001] 1 S.C.R. 283, paras. 79�–81) (alterations in original).

186. Id. para. 59. 187. Id. para. 73. 188. See id. paras. 73�–74. 189. Id. para. 72. The Court elaborated: �“We conclude that the better view is that international law rejects

deportation to torture, even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Charter.�” Id. para. 75.


general rule that was remarkably similar to Burns: the Constitution would generally prohibit deportation to face torture but might not in undefined exceptional circumstances. The Court stated:

We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like.) Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favor of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.190

This is an extraordinary paragraph and one that might not be expected from the Supreme Court of a country that prides itself on respect for international law norms.191 As Jutta Brunnée and Stephen Toope have observed,

the central problem with its analysis is that if the Court is right that the prohibition on torture is jus cogens (and deportation to torture would have to be an included prohibition), no �‘balancing�’ would be appropriate. Jus cogens are a particularly compelling form of customary law, and should have been directly controlling within Canadian law to preclude deportation.192

The Court�’s balancing approach in Suresh affirms that dualism is alive and well in Canada as the Court drew a sharp distinction between a deportation to torture that might be constitutional under Canadian domestic law but that would violate a fundamental international law norm.

The Court�’s decision to leave the door open to deportation to torture in Suresh is disturbing on a number of levels. On a technical level, the Court can be criticized for deciding a constitutional issue�—the constitutionality of deportation to torture�—that was not necessary to decide in the case at hand. The Court did not find that Suresh constituted an exceptional case, and they sent the case back for further proceedings. If judges have concerns about interfering with national security, the path of prudence may be one of using passive virtues and constitutional minimalism to avoid constitutional judgment until absolutely necessary.193

190. Suresh, [2002] 1 S.C.R. para. 78 (internal citations and quotations omitted). 191. The �“By the Court�” judgment was signed by Louise Arbour who resigned from the Court in June 2004

to assume the position of U.N. High Commissioner for Human Rights. 192. Jutta Brunnée & Stephen J. Toope, A Hesitant Embrace: Baker and the Application of International

Law by Canadian Courts, in THE UNITY OF PUBLIC LAW 357, 380 (David Dyzenhaus ed., 2004) [hereinafter Brunnée & Toope, A Hesitant Embrace]. Drawing on the analysis of Professors Brunnée and Toope, the Ontario Court of Appeal has subsequently indicated that �“so far as possible, domestic legislation should be interpreted consistently�” with Canada�’s international law and that this approach applies in an even stronger fashion �“where the obligation is a peremptory norm of customary international law, or jus cogens.�” Bouzari v. Iran, No. CA C38295, 2004 WL 1434543, at *13 (Ont. Ct. App. June 30, 2004).

193. See BICKEL, THE LEAST DANGEROUS BRANCH, supra note 3, at 169 (discussing the Supreme Court�’s hesitancy to issue rulings on constitutional grounds in security-related cases); SUNSTEIN, supra note 182.


At the subconstitutional level, it is debatable whether Canadian immigration law even authorizes deportation to face torture. The operative provision is an exception from a general requirement that no refugee �“shall . . . be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.�”194 The relevant exception applies to those for whom there are reasonable grounds to believe are members of an organization for which there are reasonable grounds to believe will engage in terrorism or persons for whom there are reasonable grounds to believe are or were members of such organizations or have themselves engaged in terrorism.195 There is an additional requirement that the Canadian minister must also be �“of the opinion that the person constitutes a danger to the security of Canada.�”196 The court in Suresh seems to have concluded that the exception with respect to a �“person�’s life or freedom�” was a sufficiently clear statement to provide legislative authorization for deportation to torture.197 It can indeed be argued that a willingness to risk a person�’s life encompasses torture. Nevertheless, a dialogical case can be made that the court should have applied a super-clear-statement rule of statutory interpretation that would effectively require Parliament to use the �“t�” word or something very close to it.198 The Court could have justified a super-clear-statement rule that would require an explicit legislative authorization of deportation to torture with reference to another part of the immigration law that states that the statute shall be �“construed and applied in a manner that . . . complies with international rights instruments to which Canada is a signatory.�”199 Such a remand to Parliament on a subconstitutional clear-statement basis would run the danger that Parliament would follow the U.S. Congress by attempting to narrow the definition of torture.200 Nevertheless, it would promote public debate about the issue, something that may not occur should some lower Canadian court conclude sometime in the future that it has been confronted with an exceptional case that makes it constitutional to deport a person to torture. One of the dangers of both Suresh and Ahani is that the judiciary may defer to the executive without explicit legislative involvement.

Once the Court in Suresh moved on to the constitutional issue that it did not have to decide, namely whether it could be constitutional to deport a person to torture, it decided in the affirmative despite claims that the Charter itself implements basic international law rights norms.201 Professors Brunnée and Toope ascribe this weakness in the Court�’s approach to a tendency in the Court�’s jurisprudence to blur the hierarchies of international law (i.e., the binding and the nonbinding) and a tendency to equate international law with the persuasive authority of comparative law. To be sure, by refusing to close the door to deportation to torture, the Supreme Court opened the door to international criticism of Canada. In its June 2004 communication in the Ahani case, the U.N. Human Rights Committee went out of its way to express disagreement with the Supreme Court of Canada�’s suggestion that in some exceptional cases it might be constitutional to deport to torture. The Committee took note of �“the Supreme Court�’s holding in Suresh that deportation of an individual where a substantial risk of torture had been found to exist was

194. Immigration and Refugee Protection Act, ch. 27, § 115(1), 2001 [II] S.C. 195. Id. § 19(1)(e)(f). 196. Id. § 53(1)(b). 197. See Suresh, [2002] 1 S.C.R. at 30. 198. On the role of clear-statement rules, see WILLIAM N. ESKRIDGE, DYNAMIC STATUTORY

INTERPRETATION 275�–306 (1994). 199. Immigration and Refugee Protection Act, R.S.C., ch. 27, §§ 3(3), 3(3)(f) (2001) (Can.). 200. Sanford Levinson, Comment, Torture in Iraq and the Rule of Law in America, DAEDALUS, Summer

2004, at 5. 201. Suresh, [2002] 1 S.C.R. at 46�–47.


not necessarily precluded in all circumstances.�”202 The Committee then added that while neither it nor Canadian courts had determined that there was a substantial risk that Ahani would be tortured, it would express the view �“that the prohibition on torture, including as expressed in Article 7 of the Covenant, is an absolute one that is not subject to countervailing considerations.�”203

In my view, it would have been better had the Supreme Court interpreted Section 7 of the Charter in accordance with international law and announced an absolute ban on deportation to face torture.204 It is possible, however, than an absolutist position against torture might generate definitional debates about what constitutes torture and attempts to limit the definition of what constitutes torture.205 Moreover, even an absolutist approach would not be truly an absolutist approach under Canada�’s dialogic Charter. In other words, even if the Supreme Court had concluded that deportation to torture always violates Section 7 of the Charter and can never be justified under Section 1 as a reasonable limit on Charter rights, it would still be possible for Canada to enact a law that would authorize deportation to torture and provide under Section 33 of the Charter that such a law would operate notwithstanding the legal and equality rights of the Charter. Professors Brunnée and Toope have suggested that the Section 33 override should be required to authorize restrictions on rights �“provided by an international treaty to which Canada is a party�” and that �“this argument applies with even greater force when norms of jus cogens are at issue.�”206 Requiring the override also fits into David Dyzenhaus�’s vision of judges being obliged to act on rule of law values in the national security context �“until they are explicitly told by the legislature that it wants government to govern outside of the rule of law.�”207 The Supreme Court�’s approach in Suresh, in contrast, lets the legislature, and by implication the Canadian public, off easy by holding out the possibility of deportation to torture without the extraordinary use of the override. Suresh does not force the elected branches of government to assume legislative responsibility for derogating from rights and it constitutes a standing invitation for courts to find that exceptions can be made to the most basic of rights.

Would the requirement of the use of the override provide adequate protection or is the dialogic model of rights protection ultimately too weak and too accommodating to protect rights in times of emergencies? At the domestic level, the override is controversial, and it has never been used at the federal level. Although some provincial uses of the override have escaped media and press scrutiny, it is likely that the federal use of the override to authorize deportation to torture would cause a major public debate. If this debate was conducted in the aftermath of a terrible act of terrorism, however, it is possible that the use of the override would be supported by a majority of citizens. Although they would strike down retroactive or retrospective uses of the override, the Canadian courts would not review the merits of the use of the override and would not decide whether the override was used in a discriminatory manner to violate the rights of noncitizens or whether it was used in a manner that was not proportionate to the emergency.208 It is also possible that the

202. Ahani, U.N. Human Rights Comm., supra note 122, para. 10.10 . 203. Id. 204. I have written elsewhere that �“[t]orture is always legally, morally, and constitutionally wrong. At most,

it can be excused after the fact. Unfortunately, the Supreme Court did not recognize this truth in Suresh. It left open the disturbing possibility that deportation of a terrorist to face torture may in some cases be constitutional and judicially approved.�” KENT ROACH, SEPTEMBER 11: CONSEQUENCES FOR CANADA 102 (2003).

205. Levinson, supra note 200. 206. Brunnée & Toope, A Hesitant Embrace, supra note 192, at 369 n.56, 380 n.109. 207. Dyzenhaus, supra note 184, at 268. 208. Ford v. Québec (Att�’y Gen.), [1988] 2 S.C.R. 712, 715. In contrast, the House of Lords recently

declared that a derogation from fair trial rights to allow the indefinite detention of noncitizen terrorist suspects who could not be deported because they would be tortured was disproportionate to the emergency and that it


courts would hold that a specific authorization of deportation to torture could be applied to people who were at the time of the override being invoked already detained on security grounds.209 The use of the override in Canada also does not require the declaration of an emergency.210 Unlike the derogation power in the ICCPR, there is no obligation on Canada to not discriminate or infringe international law when the override is used or that it only derogate from rights to the extent strictly required by the exigencies of the emergency. The dangers of the use of the override underline the potential importance of international review of the use of the override by the U.N. Human Rights Committee or the U.N. Committee Against Torture.211 Both of these committees could decide that Canada had acted in a discriminatory and/or disproportionate fashion and in breach of its international law obligation when it used the override.

The override in Canadian law can be dangerous, and it should not be lightly used. There is no requirement that the override be subject to a supermajority or that the legislature revisit its decision to use the override before its expiration in five years time, as recently suggested by Bruce Ackerman in his writings about states of emergency in constitutional law.212 Nevertheless, the override does have some virtues. It requires the legislature to expressly state its desire to depart from rights and can be contrasted favorably with an extralegal model where people are tortured in violation of the law. It has the virtue of requiring an ex ante legislative authorization of departures from rights, whereas the extralegal approach, even if practiced with the restraints advocated by Oren Gross, allows for ex post ratification, not only in the form of legislation but through the exercise of less candid and rational acts of prosecutorial discretion and jury nullification.213 The use of the override also forces the legislature to admit that it is violating rights and thus avoids the danger of the court�’s Suresh opinion by suggesting that deportation to torture would not violate rights.214 Although a case can be made for judicial supremacy and absolutism in enforcing basic rights such as the right not to be tortured, there is also a real possibility that judges may be more robust in enforcing rights if they know that the legislature retains the ultimate right to override rights as interpreted by the Court. 215 discriminated against noncitizens by not imposing such harsh measures on citizens. A v. Sec�’y of State for the Home Dep�’t, [2004] U.K.H.L. 56 (H.L. 2004).

209. In Application under § 83.28 of the Criminal Code, [2004] 2 S.C.R. 248, para. 66, the Supreme Court held that a new procedural investigative power enacted in 2001 could be applied to an ongoing trial stemming from the terrorist bombing of an Air India flight in 1985.

210. In Canada, a declaration of an emergency would then trigger the statutory Emergencies Act, supra note 33, which involves Parliament in reviewing the declaration of emergency and contains restraints with respect to discrimination.

211. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Dec. 10, 1984, art. 22, 1465 U.N.T.S. 85, 120.

212. For a proposal for escalating supramajority requirements to authorize derogations from rights in times of emergency, see Ackerman, supra note 33. It should be noted that Professor Ackerman�’s proposal has been strongly opposed for its authorization of invasion of rights and the minimal role that courts would play under a state of emergency. See, e.g., David Cole, The Priority of Morality: The Emergency Constitution�’s Blind Spot, 113 YALE L.J. 1753 (2004); see also Kim Lane Scheppele, Law in Time of Emergency: States of Exception and the Temptations of 9/11, 6 U. PA. J. CONST. L. 1001 (2004) (exploring the United States; use of emergency powers after the attacks on September 11, 2001).

213. Gross, supra note 183, at 1115. 214. This is also a concern with Alan Dershowitz�’s controversial idea for torture warrants. See ALAN

DERSHOWITIZ, WHY TERRORISM WORKS (2002). Gross argues in contrast that torture should always be illegal but subject to ex post facto ratification. See Oren Gross, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 MINN. L. REV. 1481, 1486�–87 (2004).

215. Weiler, supra note 28, at 82�–86. The fact that Parliament had the option of not following its judgment in A v. Secretary of State, [2004] U.K.H.L. 56, may well have been an implicit factor in the House of Lord�’s 8�–1 decision in that case to declare that the main British response to 9/11 was disproportionate and discriminatory toward noncitizens. Although Parliament could have ignored the declaration by the House of Lords that the law


The combination of Suresh with the majority judgment in Ahani is particularly disturbing as it opens the prospect that a court might find exceptional circumstances for deportation to torture and that the deportation might be made before the relevant U.N. committees have even had the opportunity to decide whether the deportation would be in violation of Canada�’s international obligations. Indeed, the U.N. Human Rights Committee�’s recent decision in Ahani demonstrates that the decision may well come too late for a victim of torture. Although the Committee cannot enforce its final decision against Canada, there is much to be said for having countries slow down and respect interim remedies issued by the Committee and other international bodies.216 Respecting interim remedies staying deportations or executions creates a potential for public debate about the justness of such an action and might possibly persuade the responsible minister to stop the deportation for humanitarian reasons. Interim remedies can preserve the literal flesh and blood that might otherwise be lost in high-level dialogues involving international bodies and domestic authorities. Interim remedies should be recognized as a way to stop an apprehended injustice while allowing societies to continue to debate about the ultimate response to the issue.

What would be the effects of international decisions that Canada had violated international law and its international obligations by allowing someone to be deported to torture? Canada is a dualistic jurisdiction in which international treaties and norms are not necessarily part of Canadian law. The Ontario Court of Appeal in Bouzari v. Iran has both recognized that there should be a strong presumption in favor of compliance with jus cogens norms in Canada, but also that �“it is open to Canada to legislate contrary to them. Such legislation would determine Canada�’s domestic law although it would put Canada in breach of its international obligations.�”217 In Bouzari, which concluded that Canada had clearly made foreign states immune from civil suits for torture, as well as in Suresh and Ahani, Canadian courts have been candid that Canadian domestic law may be in breach of international law.218 The willingness of the domestic judiciary to state that a result required under domestic law is nevertheless in violation of international law opens up possibilities for criticisms of the domestic law both in Canada and abroad. Dualism can create space for dialogue and criticism. It diffuses power. At the same time, however, the dualist edge seen in these cases conceives dialogue about the treatment of rights proceeding in two separate tracks with no necessary overlap or cross fertilization. At the domestic level, dialogue about deportation to torture requires justification to the domestic courts, but it ends should the courts under the Suresh exception find that deportation has been justified in an exceptional case. After the exhaustion of domestic remedies, dialogue at the international level continues because of Canada�’s commitments to CAT and the ICCPR including the ability to bring individual complaints to the relevant U.N. committees. But the Ahani case

was incompatible with rights, it decided to follow the House of Lords�’ judgment and allowed the inconsistent legislation to lapse. At the same time, however, Parliament enacted controversial new legislation providing for control orders over terrorist suspects. Prevention of Terrorism Act, 2005, c. 2 (Eng).

216. For a prior finding that Canada had not given effect to interim measures ordered by the Committee against Torture, see Comm. Against Torture, 55th, supra note 136. In that decision the Committee against Torture stressed that it �“is not convinced that an extension of . . . [the complainant�’s] stay in Canada for a few more months would have been contrary to the public interest.�” Id. para. 15.3. It went on to conclude that even though the complainant was not tortured upon his return to India, �“[t]he Committee is deeply concerned by the fact that the State party did not accede to its request for interim measures,�” id. para. 16.1, and that �“this particular case is basically a matter of lack of respect, if not for the letter, then at any rate for the spirit of article 22�” of the CAT. Id. para. 1 (individual opinion of Committee member Guibril Camara). For the leading International Court of Justice decision stressing the importance of abiding by interim measures to stay executions, see LaGrand (Ger. v. U.S.), 2001 I.C.J. 466 (June 27).

217. Bouzari v. Iran, No. CA C38295, 2004 WL 1434543, at *13 (Ont. Ct. App. June 30, 2004). 218. Id. The court of appeal held that the State Immunity Act precluded a civil suit against Iran alleging that

the plaintiff had been tortured in that country. Id. at *13.


suggests that domestic courts will not require Canada to stay deportations until the international dialogue has been played out. The two paths of domestic and international dialogue, are hermetically sealed and separate and the international path is marginalized. This is unfortunate because much of the potential of dialogue at an international level is its ability to engage with dialogue at the domestic level.

The Canadian approach of contemplating constitutional deportation to torture in exceptional cases can be contrasted to the approach in the United Kingdom. In the United Kingdom, in large part because of rulings of the European Court of Human Rights, it is accepted that the United Kingdom could never deport someone to torture. Indeed, an article in the British Economist concluded, in apparent ignorance of the disturbing Suresh decision, that �“no court in any democratic country, including the United States, would agree to send a defendant to another country if it were known that he would be tortured there.�”219 After September 11, the United Kingdom government accepted that it could never deport a security threat to torture but instead derogated from fair trial rights to authorize the indefinite detention of such a security threat.220 The House of Lords subsequently held that the derogation was disproportionate to the emergency presented by terrorism and discriminatory because it only applied to terrorist suspects who were noncitizens.221 As discussed above, this robust form of judicial review would not be available should Canadian legislatures make comparable decisions to invoke the Section 33 override. The United Kingdom�’s approach has the virtue of respecting the international norm against torture and allowing continued judicial review and dialogue between the courts and legislatures about the legality of the derogation.222 The Canadian approach avoids the requirement for an explicit derogation from rights and opens up the possibility that the courts may someday find that it is constitutional to deport a really bad terrorist to face torture even though the legislature has never clearly authorized such a derogation from basic human rights.

VI. CONCLUSION

The Supreme Court of Canada�’s decisions in Burns and Suresh demonstrate a willingness of Canadian judges to enter into a dialogue with a broad range of international and comparative law sources. The willingness of the Court in Burns to act on an international trend against the death penalty that is informed by comparative law, including the practice of wrongful convictions, demonstrates how a dialogic approach to authority can produce critical self-reflection and advance the cause of justice. At the same time, the Court�’s engagement with clear international law authority condemning deportation to torture in Suresh is much more problematic and demonstrates the dangers of domestic courts treating all international law as nonbinding soft law.

The two decisions also raise the question of whether the dialogue that the Canadian Charter and other modern bills of rights contemplate between courts and legislatures is robust enough to protect rights in a post�–9/11 environment of crisis. In both cases, the Canadian Court refused to commit itself to an absolute rule that would prohibit Canadian

219. Ends, Means and Barbarity, ECONOMIST, Jan. 9, 2003, available at http://www.economist.com/displaystory.cfm?story_id=1522792 (last visited Feb. 24, 2005).

220. Anti-terrorism, Crime & Security Act, 2001, c. 24, §§ 22(1)(b), 23(1)(b) (Eng.), http://www.hmso.gov.uk/acts/acts2001/20010024.htm.

221. A v. Sec�’y of State, [2004] U.K.H.L. 56. 222. The British Parliament responded to A by allowing the derogation to lapse but by enacting controversial

new legislation that allows control orders to be placed on terrorist suspects regardless of citizenship. Prevention of Terrorism Act, 2005.


participation in the death penalty and torture. Dialogic judicial review may encourage judges not to close the door to possible justifications, even for practices such as torture. The Court�’s awareness that its decisions are subject to revision or rejection by political actors, may produce a situation where judges hedge their bets and do not commit themselves to absolute rules. At the same time, the willingness of the court to leave itself open to exceptions in both cases can also be criticized on dialogic grounds. The Court could have avoided the issue altogether and simply not have speculated about whether it would ever hold extradition to the death penalty or deportation to torture to be constitutional in some future and hypothetical case. If the Court nevertheless felt compelled to address the issue, it could have made clear that Charter rights would always be violated by deportation to torture and that it was not possible in this context to find reasonable limits on such a basic right. Such an approach would have forced the legislature to consider using the override to derogate from such a right. This would have required the clearest possible legislative statement that Canada was derogating from the right against torture, a most basic right in both domestic and international law. The use of the override might have a temporary trumping effect in domestic law, but it would have recognized that rights were being violated and required sober second thoughts at the very least when the override expired in five years time. The override is the heavy hand in the dialogue between courts and legislatures under the Charter, but it is also a commitment to continued domestic dialogue about derogation from rights. Explicit derogation is the proper dialogic means to deal with emergencies under both the Canadian Charter and international law.

In addition, the use of the override to authorize deportation to torture could also usefully be reviewed by U.N. committees. These committees would hold Canada to stricter standards for derogation under international law than under the override provision in the Canadian Charter. No derogation is allowed under CAT, and derogations under the ICCPR are tied to what is strictly required by the exigencies of emergencies and cannot result in discrimination or violation of international obligations, whereas the Canadian override does not require an emergency and it may include derogations from legal rights not be to tortured or executed and from equality rights. The U.N. Human Rights Committee and the U.N. Committee Against Torture would not have the power to enforce their decisions in Canada in a traditional sense, but they would issue dialogic remedies in the form of requests that Canada both publicize their communications and respect their interim measures and final communications. The fact that many remedies issued under the Charter by domestic courts have similar dialogic qualities that call on governments to respond in good faith can address fears that international dialogues about rights are simply political assertions of rights without remedies. At the same time, there is a danger that the affected individuals�—the person who may be tortured or executed�—may be lost in all this high-level dialogue. This underlines the importance of the interim-measures process developed by the U.N. Human Rights Committee and the regrettable decision of the majority of the Ontario Court of Appeal in Ahani to dismiss the case for staying a deportation until the U.N. Human Rights Committee had considered the matter. Canadian courts are paying attention to international law, but in a way that contemplates domestic and international dialogues proceeding on separate and sealed tracks. Dialogues about rights at the domestic and international levels will work best if they are allowed to influence each other and if both grapple with complex issues about rights and remedies.

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