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16 results

  • 4 - Canada

    • By Gib van Ert, Associate, Hunter Litigation Chambers, Vancouver
  • Edited by David Sloss
  • Book:
    The Role of Domestic Courts in Treaty Enforcement
    Published online:
    06 January 2010
    Print publication:
    12 October 2009, pp 166-208

  • Summary

    If asked whether Canadian courts enforce treaties binding on the state at international law, most Canadian judges and lawyers would say no. Some might hesitate a little or qualify their answers. Many would not. They would explain that treaties are not part of Canadian law unless given domestic effect by legislation, and even then a court interpreting or applying such legislation is not, in fact, enforcing the treaty but simply giving effect to domestic law. There is much truth in this depiction of the Canadian approach. But there is also some generalization, even some simplification. While the orthodox account of the place of treaties in Canadian law retains much of its force today, it was elaborated at a time when Canada's engagement with international law and international law's engagement with the domestic laws of Canada and other states were more narrowly circumscribed. An accurate account of treaty enforcement in Canadian courts today must pay due regard to received doctrines while also considering the contemporary practices of Canada's judicial, legislative, and executive branches of government. Seen in this light, Canadian courts play an increasingly important role in enforcing the state's treaty obligations, though largely through such indirect means as interpretive presumptions and implementing legislation.

    THE STATUS OF TREATIES IN CANADIAN LAW

    The status of international treaties in Canadian law is complicated by Canada's constitutional structure, which blends written constitutional provisions with unwritten doctrines and interpretive practices.