¹ Higgins, R., Problems and Process: International Law and How We Use It (New York: Oxford University Press, 1994) at 207.Google Scholar

² Ibid.

³ For a brief overview on the monist and dualist models of reception, see, for example, Currie, J. H., Public International Law (Toronto: Irwin Law, 2001) at 199–201.Google Scholar

⁴ But see Dyzenhaus, D., Hunt, M., and Taggart, M., “The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation” (2001) 1 Oxford U. Commonwealth L. J. 5 at 7 Google Scholar (arguing that the reliance upon international norms in statutory interpretation and judicial review is in fact supported by the common law tradition: “It is … precisely the common law tradition that provides the justiication for what the courts are doing: and therefore our argument says to the traditionalist that he has not understood his tradition”).

⁵ La Forest, G. V., “The Expanding Role of the Supreme Court of Canada in International Law Issues” (1996) 34 Can. Y.B. Int’l L. 89 at 100.Google Scholar

⁶ Chwialkowska, L., “Global Law Emerging, Judge Tells Conference — Canada Struggling to Accommodate International Treaties and Tribunals,” National Post (13 April 2002) at A6Google Scholar (citing Justice Louis LeBel of the Supreme Court of Canada). For a full version ofJustice LeBel’s comments, see Justice L. LeBel and G. Chao, “The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law” (Fifth Annual Analysis of the Constitutional Decisions of the Supreme Court of Canada, Osgoode Hall Law School, 12 April 2002) at 6 (unpublished, on ile with authors).

⁷ See, for example, Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4^th) 1 [hereinafter Suresh]; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [hereinafter Baker]; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 [hereinafter Pushpanathan]; Ahani v. Canada (A.G.) (2002), 58 O.R. (3d) 107 (C.A.) [hereinafter Ahani].

⁸ See, for example, Pollastro v. Pollastro (1999), 43 O.R. (3d) 497 (C.A.).

⁹ See, for example, 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241 [hereinafter Spraytech].

¹⁰ See, for example, Mexico v. Metalclad Corporation (2001), 95 B.C.L.R. (3d) 169 (S.C.). North American Free Trade Agreement, (1993) 32 I.L.M. 289.

¹¹ Baker, supra note 7; Spraytech, supra note 9.

¹² Baker, supra note 7 at para. 70.

¹³ Knop, K., “Here and There: International Law in Domestic Courts” (2000) 32 N.Y.U. J. Int’l L. & Pol. 501 Google Scholar. Knop’s argument concerning the importance of persuasive authority builds on the work of Glenn, H. P., “Persuasive Authority” (1987) 32 McGill L.J. 261.Google Scholar

¹⁴ See generally Ert, G. van, “Using Treaties in Canadian Courts” (2000) 38 Can. Y.B. Int’l L. 3 at 4–9.Google Scholar

¹⁵ See, for example, the dissent of Justices Frank Iacobucci and Peter Cory in Baker, supra note 7 at para. 80 (noting that the effect of the majority’s approach was “to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament”).

¹⁶ See, for example, Suresh, supra note 7 at para. 46. The Supreme Court implies that soft law, unimplemented treaties, custom, and even jus cogens all simply help “inform” the interpretation of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. For a detailed discussion of this aspect of the court’s decision in Suresh, see notes 192-201 in this article and the accompanying text. In addition, see generally the second part of this article, in which we analyze the recent trends in the domestic application of international law in Canada.

¹⁷ Quoted in Chwialkowska, supra note 6.

¹⁸ Ibid.

¹⁹ According to Article 38(1)(d) of the Statute of the International Court of Justice, 26 June 1945, Can. T.S. 1945 No. 7 (entered into force 24 October 1945) [hereinafter ICJ Statute], the decisions of domestic courts are a subsidiary means for the determination of international law.

²⁰ See van Ert, supra note 14. And see Brandon, E., “Does International Law Mean Anything in Canadian Courts?” (2002) 11 J. Env. L. & Practice 397 Google Scholar; Brunnée, J., “A Long and Winding Road: Bringing International Environmental Law into Canadian Courts” in Anderson, M. and Galizzi, P., eds., International Environmental Law in National Courts (London: British Institute of International and Comparative Law, 2002) 45 Google Scholar; Kindred, H. M., “The Use of Unimplemented Treaties in Canada: Practice and Prospects in the Supreme Court” in Carmody, C. et al., eds., Trilateral Perspectives on International Legal Issues: Conflict and Coherence (Washington: American Society of International Law, 2003) 3 Google Scholar; Knop, supra note 13; Schabas, W. A., “Twenty-Five Years of Public International Law at the Supreme Court of Canada” (2000) 79 Can. Bar. Rev. 174 Google Scholar; Toope, S. J., “The Uses of Metaphor: International Law and the Supreme Court of Canada” (2001) 80 Can. Bar Rev. 534 Google Scholar; and Toope, S. J., “Inside and Out: The Stories of International Law and Domestic Law” (2001) 50 U.N.B. L.J. 11 Google Scholar; Toope, S. J., “Canada and International Law” (1998) 27 Can. Council Int’l L. Proc. 33 Google Scholar; Ert, G. van, Using International Law in Canadian Courts (New York: Kluwer Law International, 2002)Google Scholar; Weiser, I., “Effect in Domestic Law of International Human Rights Treaties Ratified without Implementing Legislation” (1998) 27 Can. Council Int’l L. Proc. 132 Google Scholar; and I. Weiser, “Undressing the Window: A Proposal for Making International Human Rights Law Meaningful in the Canadian Commonwealth System,” September 2002 [on file with authors].

²¹ This section of the article is derived from presentations made by S. Toope to the 2001 Conference of the International Association of Women Judges and by J. Brunnée and S. Toope to the annual education seminars of the Ontario Court of Appeal (June 2002) of the Federal Court of Canada (January 2003), and of the Supreme Court of British Columbia and Court of Appeal (March 2003). We thank the many judges whose probing questions have helped us to clarify our analysis.

²² Others have suggested that the problem rests “in the difficulty of defining public international law.” LeBel and Chao, supra note 6. We disagree. There is a great deal of binding international law that is well defined, with obligations that are precisely stated. Notably, many recently concluded international treaties are as speciic in imposing obligations as are domestic statutes. Consider, for example, many international trade agreements, environmental treaties, and law of the sea conventions. We accept, however, that the delineation of obligations under customary international law can often — but not always — prove to be more dificult.

²³ For the purposes of this “primer,” we confine ourselves to outlining the standard account of international law, which is focused upon formal sources of international law and state consent. We do so because, in domestic adjudication involving the application of international law, judges are called upon to identify binding rules according to the criteria that hold sway in international (state) practice. We do want to stress, however, that there is a lively scholarly debate on whether the sources doctrine and state consent adequately explain the operation of international law in international relations. For example, we have argued elsewhere that formal consent alone or the simple fact that a rule is binding as treaty or customary law do not necessarily ensure that the rule will influence the conduct of international actors. In our view, a norm’s legitimacy and attendant persuasiveness are likely more important to its inluence than its formal pedigree. See Brunnée, J. and Toope, S. J., “International Law and Constructivism: Elements of an Interactional Theory of International Law” (2000) 39 Colum. J. Transnat’l L. 19 Google Scholar; Brunnée, J. and Toope, S. J., “Interactional International Law” (2001) 3 Int’l L. Forum 186 Google Scholar; and Brunnée, J. and Toope, S. J., “The Changing Nile Basin Regime: Does Law Matter?” (2002) 43 Harv. Int’l L. J. 105 Google Scholar. See also note 210 in this article and accompanying text.

²⁴ ICJ Statute, supra note 19, Article 38.

²⁵ Ibid., Article 38(1) [emphasis added].

²⁶ Ibid., Article 38(1)(a)-(c). There is no formal hierarchy of sources of public international law, but, in practice, the most commonly argued sources of obligation are treaty and custom. If a treaty is of relevance in a particular situation or dispute, it will usually be invoked irst, largely because the existence of a treaty rule is typically easier to prove than the existence of a customary rule. See Kindred, H. et al., eds., International Law: Chiefly as Interpreted and Applied in Canada, 6^th ed. (Toronto: Emond Montgomery, 2000) at 91, 93Google Scholar; Combacau, J. and Sur, S., Droit international public, 5th ed. (Paris: Montchrestien, 2001) at 44 Google Scholar; and Nguyen, Q. D. et al., Droit international public, 6 ^th ed. (Paris: Librarie Générale de Droit et de Jurisprudence, 1999) at 114–15.Google Scholar

²⁷ ICJ Statute, supra note 19, Article 38 ( 1 )(d).

²⁸ See Currie, supra note 3 at 189-91.

²⁹ Case Concerning Military and Paramilitary Activities in Nicargua (Nicaragua v. United States), [1986] I.C.J. Rep. 14 at 95 [hereinafter Military Activities in Nicaragua].

³⁰ See Combacau and Sur, supra note 26 at 105.

³¹ See Shaw, M., International Law, 4 ^th ed. (Cambridge: Cambridge University Press, 1997) at 77–79.Google Scholar

³² See Brownlie, I., Principles of Public International Law, 5 ^th ed. (Oxford: Oxford University Press, 1998) at 15 Google Scholar; Harris, D. J., Cases and Materials on International Law, 4 ^th ed. (London: Sweet and Maxwell, 1991) at 47.Google Scholar

³³ Shaw, supra note 31 at 79.

³⁴ Harris, supra note 32 at 47-48.

³⁵ But see R. v. Finta, [1994] 1 S.C.R. 701 at 716-17, where Justice Gerard La Forest considered general principles of law to be an important basis for crimes against humanity. La Forest J. was in dissent, but not on this issue.

³⁶ See Currie, supra note 3 at 173.

³⁷ See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226 at paras. 68-71. And see Brownlie, supra note 32 at 24-25.

³⁸ See Shaw, supra note 31 at 87.

³⁹ See, for example, the Human Rights Committee sitting under the first Optional Protocol to the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976) [hereinafter ICCPR].

⁴⁰ See Brownlie, supra note 32 at 78.

⁴¹ See, for example, Brunnée, J, “COPing with Consent: Lawmaking under Multilateral Environmental Agreements” (2002) 15 Leiden J. Int’l L. 1.Google Scholar

⁴² See Chinkin, C., “Human Rights and the Politics of Representation: Is There a Role for International Law?” in Byers, M., ed., The Role of Law in International Politics: Essays in International Relations and International Law (New York: Oxford University Press, 2000) 131.Google Scholar

⁴³ See Combacau and Sur, supra note 26 at 23.

⁴⁴ Vienna Convention on the Law of Treaties, 23 May 1969, Can T.S. 1980 No. 37 (entered into force 27January 1980) [hereinafter Vienna Convention], which defines “treaty” with some greater specificity in Article 2 (a):

⁴⁵ Ibid., Article 26.

⁴⁶ Ibid., Article 12.

⁴⁷ Ibid., Article 18.

⁴⁸ The power to conclude treaties is vested in the governor-in-council as delegated authority under the Royal prerogative. See Hogg, P. W., Constitutional Law of Canada, looseleaf (Scarborough, ON: Carswell, 1997) vol. 1 at para. 11.2.Google Scholar

⁴⁹ Vienna Convention, supra note 44, Article 26.

⁵⁰ Ibid., Article 24.

⁵¹ Ibid. , Article 15.

⁵² D’Amato, A. A., The Concept of Custom in International Law (Ithaca, NY: Cornell University Press, 1971 ) at 12 Google Scholar; Combacau and Sur, supra note 26 at 52.

⁵³ See notes 36-42 in this article and accompanying text.

⁵⁴ “International Law Commission” in Yearbook of the International Law Commission 1950 (New York: United Nations, 1950) at 368, Doc. UNDOC. A/CN ₄/SER. A/1950.Add. 1.

⁵⁵ Brownlie, supra note 32 at 5.

⁵⁶ For an overview, see Shaw, supra note 31 at 64-66, 70-72; Nguyen, supra note 26 at 321-23.

⁵⁷ The Asylum Case (Columbia v. Peru), [1950] I.C.J. Rep. 266 at 276-77.

⁵⁸ Brownlie, supra note 32 at 5.

⁵⁹ North Sea Continental Shelf Cases (Germany v. Denmark and Germany v. The Netherlands), [1969] I.C.J. Rep. 3 at paras. 73, 75-76 [hereinafter North Sea Continental Shelf].

⁶⁰ Ibid. at 228 (dissenting opinion of Judge Lachs).

⁶¹ See Shaw, supra note 31 at 64-66, 70-72.

⁶² North Sea Continental Shelf, supra note 59 at para. 74, and the dissenting opinion of Judge Ad Hoc Sorenson. See also Currie, supra note 3 at 168-70; Nguyen, supra note 26 at 324-25.

⁶³ North Sea Continental Shelf, supra note 59 at para. 77; Military Activities in Nicaragua, supra note 29 at 108-9.

⁶⁴ D’Amato, supra note 52 at 74-75.

⁶⁵ Shaw, supra note 31 at 382.

⁶⁶ See Dupuy, P., “Soft Law and the International Law of the Environment” (1991) 12 Mich.J. Int’l. L. 420 Google Scholar (beginning his article with the observation that “’[s]oft’ law is a paradoxical term for deining an ambiguous phenomenon. Paradoxical because, from a general and classical point of view, the rule of law is usually considered ‘hard’ … or it simply does not exist. Ambiguous because the reality thus designated, considering its legal effects as well as it manifestations, is often difficult to identify clearly”). See also P. Weil, “Vers une normativité relative en droit international?” (1982) R.G.D.I.P. 5 (denouncing the phenomenon of soft law as blurring the normativity threshold and insisting on the fact that the accumulation of non-law does not create law).

⁶⁷ See Chinkin, C., “Normative Development in the International Legal System” in Shelton, D., ed., Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (New York: Oxford University Press, 2000) 21 at 23–25 Google Scholar (with a brief survey on the enduring debate about the nature of soft law).

⁶⁸ See Chinkin, C., “The Challenge of Soft-Law: Development and Change in International Law” (1989) 38 I.C.L.Q. 850 at 850–51.CrossRefGoogle Scholar

⁶⁹ See, for example, Article 3.3 of the United Nations Framework Convention on Climate Change, 9 May 1992, 31 I.L.M. 849 (entered into force March 21, 1994) (providing that the parties “should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects”).

⁷⁰ See generally Chinkin, supra note 67 at 25-29.

⁷¹ See Brunnée, J. and Toope, S. J., “Environmental Security and Freshwater Resources: Ecosystem Regime Building” (1997) 91 A.J.I.L. 26 at 31–37, 58Google Scholar. See also Abbott, K. W. and Snidal, D., “Hard and Soft Law in International Governance” (2000) 54 Int’l Org. 401 at 422.Google Scholar

⁷² V. Lowe, “The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?” in Byers, supra note 42, 207 at 212-17.

⁷³ Chinkin, supra note 68 at 850-51. See also Ellis, J., Soft Law as Topos: The Role of Principles of Soft Law in the Development of International Environmental Law (D.C.L. thesis, McGill University, 2001) [unpublished].Google Scholar

⁷⁴ See generally Macdonald, R. St. J., “The Relationship between International Law and Domestic Law in Canada” in Macdonald, R. St. J., Morris, G., and Johnston, D. M., eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974) 88.Google Scholar

⁷⁵ See, for example, Kindred, supra note 20 at 5; Macdonald, supra note 74 at 109; Schabas, supra note 20 at 182; van Ert, supra note 14 at 4. Note that a recent decision of the Superior Court of Ontario states directly that customary international law forms part of the law of Canada. See Bouzari v. Iran (May 1, 2002), Toronto 00-CV-201372 (Ont. Sup. Ct.) at para. 39 [hereinafter Bouzari].

⁷⁶ Daniels v. R., [1968] S.C.R. 517 at 541. For a recent restatement of the vitality of this doctrine, see Schreiber v. Canada (Attorney General), 2002 SCC 62, para. 50 [hereinafter Schreiber]. See also Sullivan, R., Driedger on the Construction of Statutes, 3rd ed. (Markham, ON: Butterworths, 1994) at 330.Google Scholar

⁷⁷ See Baker, supra note 7 at para. 80 (per Iacobucci and Cory JJ.). And see Dyzenhaus, Hunt, and Taggart, supra note 4 (challenging the validity of concerns over the legitimacy of reference to international norms in the judicial review of the exercise of executive authority).

⁷⁸ Baker, supra note 7 at para. 70.

⁷⁹ See, for example, National Corn Growers Association v. Canada (Import Tribunal), [1992] 2 S.C.R. 1324 at 1369 [hereinafter National Corn Growers]. Note that National Corn Growers was concerned with the interpretation of a statute designed to implement an international treaty. However, a similar approach should apply to all statutes, whether implementing legislation or not. See note 135 in this article and accompanying text.

⁸⁰ Canadian Charter of Rights and Freedoms, supra note 16.

⁸¹ See Hogg, supra note 48.

⁸² Francis v. R., [1956] S.C.R. 618 [hereinafter Francis]. See also Capital Cities Inc. v. Canada (C.R.T.C.), [ 1978] S.C.R. 141 [hereinafter Capital Cities]. But see R. v. Martin (1994), 72 O.A.C. 316 at para. 4, where the court held that a “general implementing power” could give domestic effect to an international treaty, even in the absence of express transformation. The power was granted merely “to implement an intergovernmental arrangement or commitment.”

⁸³ Canada (A.G.) v. Ontario (A.G.), [1937] A.C. 326 (P.C.) at 347-48 (per Lord Atkin) [hereinafter Labour Conventions case]. See also Arrow River and Tributaries Slide & Boom Co. Ltd., [1932] S.C.R. 495 at 510 (per Lamont J.) [hereinafter Arrow River 1932].

⁸⁴ In this paragraph, we rely on Toope, “Inside and Out,” supra note 20 at 16. For discussions of what constitutes transformation, see also Brandon, supra note 20 at 407-22; Kindred, supra note 20 at 7-12; van Ert, supra note 14 at 20-25.

⁸⁵ See Sullivan, supra note 76 at 396. See, for example, the Comprehensive Nuclear Test Ban Treaty Implementation Act, S.C. 1988, c. 32. Even express incorporation in a statute may be read narrowly, with a court seeking the precise intention of Parliament to “transform” specific treaty provisions. In Pfizer v. Canada, [1999] 4 F.C. 441 (T.D.), the Federal Court held that referential incorporation of the Marrakech Agreement Establishing the World Trade Organization, 15 April 1994, 33 I.L.M. 15 (1994) (cast as approval of the treaty) did not constitute “transformation.” On the other hand, in R v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401, the Supreme Court relied on mere references to an international treaty to interpret the “purposes” of an act that did not expressly transform the treaty.

⁸⁶ See R. v. Hydro-Québec, [1997] 3 S.C.R. 213.

⁸⁷ See Sullivan, supra note 76.

⁸⁸ See the discussion of a so-called “passive incorporation” in Brandon, supra note 20 at 415-18.

⁸⁹ Weiser, “Effect in Domestic Law,” supra note 20 at 132. See also Canada, Senate Standing Committee on Human Rights, Promises to Keep: Implementing Canada’s Human Rights Obligations (Ottawa: Standing Committee on Human Rights, 2001 ) (Chair: Raynell Andreychuk) (acknowledging that the practice of ratiication on the basis of prior conformity has rendered the application in Canada of international human rights norms uncertain).

⁹⁰ ICCPR, supra note 39.

⁹¹ Human Rights Committee, Consideration of Reports Submitted by States under Article 40 of the Covenant: Fourth Periodic Report of States Parties Due in 1995: Canada, UN CCPROR, 1995, UN Doc. CCPR/C/ 103/Add.5, accessible at <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.135.En?Opendocument> (date accessed: July 4, 2002).

⁹² Pushpanathan, supra note 7 at para. 51 .

⁹³ Ibid. For a detailed discussion of the court’s interpretative approach in Pushpanathan, see Schabas, supra note 20 at 180.

⁹⁴ Vienna Convention, supra note 44.

⁹⁵ See, for example, Reference re Powers of Ottawa (City) & Rockcliffe Park (Village) to Levy Rates on Foreign Legations and High Commissioners Residences, [1943] S.C.R. 208 at 231 [hereinafter Re Foreign Legations]; Capital Cities, supra note 82 at 173.

⁹⁶ See all of the sources cited in note 76.

⁹⁷ Re Arrow River & Tributaries Slide & Boom Co., [1931] 2 D.L.R. 216 at 217 (Ont. S.C. (App. Div.)) [hereinafter Arrow River 1931]. The ruling was reversed on appeal to the Supreme Court, but the dictum quoted above was not contradicted. Justice John Henderson Lamont concluded that the legislation in question could not be brought into conformity with the international treaty without doing violence to the intention of the legislator, and Justice Robert Smith held that there was no inconsistency between the treaty and the legislation. See Arrow River 1932, supra note 83.

⁹⁸ National Corn Growers, supra note 79.

⁹⁹ The restrictive approach of Schavernoch v. Canada (Foreign Claims Commission), [1982] 1 S.C.R. 1092 at 1098 (per Estey J.) and Capital Cities, supra note 82 at 173 (per Laskin C.J.) (where only manifest statutory “ambiguity” would allow reference to an underlying treaty obligation for purposes of interpretation), has not recently been followed, with the Supreme Court moving to the position established in 1984 by the Ontario Court of Appeal. See R. v. Palacios ( 1984), 45 O.R. (2d) 269 (C.A.); NationalCorn Growers, supra note 79; Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689; and Pushpanathan, supra note 7.

¹⁰⁰ See all of the sources cited in note 76.

¹⁰¹ Arrow River 1931, supra note 97. See also Hunt, M., Using Human Rights Law in English Courts (Oxford: Hart Publishing, 1997) at 40 Google Scholar (“So instead of asking if there is ambiguity which can be resolved with the ‘assistance’ of international law, on this approach the court should ask, having automatically considered the international law alongside the national law, whether the domestic law is unambiguously (in the sense of irreconcilably) in conflict with the international norm”).

¹⁰² Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 at 349 [hereinafter Reference re Public Service] (per Dickson C.J.C. in dissent, though not on this point). R. v. Keegstra, [1990] 3 S.C.R. 697 at 837-38 [hereinafter Keegstra] (per McLaughlin J.). For further discussion, see notes 136-43 in this article and accompanying text.

¹⁰³ See, for example, Arrow River 1931, supra note 97; National Corn Growers, supra note 79 at 1369; R. v. Zingre, [1981] 2 S.C.R. 392 at 409-10 (per Dickson J.); Baker v. Canada (Minister of Citizenship and Immigration) (1996), 142 D.L.R. (4^th) 554 at para. 18 (F.C.A.); and, arguably, Baker, supra note 7. See also van Ert, supra note 14 at 35, 38; Schabas, supra note 20 at 183; and Weiser, “Effect in Domestic Law,” supra note 20 at 133-34.

¹⁰⁴ The presumption was phrased in wide terms by Justice MacKay of the Federal Court in José Pereira E. Hijos, S.A. v. Canada (A.G.), [1997] 2 F.C. 84 at para. 20 (T.D.):

In construing domestic law, whether statutory or common law, the courts will seek to avoid constriction or application that would conlict with the accepted principles of international law.

See Schabas, supra note 20 at 184 (citing R. v. Ewanchuk, [1999] 1 S.C.R. 330). But see Currie, supra note 3 at 222-23 (suggesting that Canadian case law and literature on this issue have been contradictory).

¹⁰⁵ See also Brandon, supra note 20 at 401-7; and Kindred, supra note 20 at 12.

¹⁰⁶ See, for example, Baker, supra note 7 at para. 70. And see the majority decision of the Ontario Court of Appeal in Ahani, supra note 7 at para. 31 (“Absent implementing legislation, neither [the ICCPR nor its irst Optional Protocol] has any legal effect in Canada.”).

¹⁰⁷ Francis, supra note 82. See also the equally restrictive ruling in Capital Cities, supra note 82 at 173.

¹⁰⁸ Francis, supra note 82 at 626 [emphasis added]. Justice Rand (Cartwright J. concurring) was in dissent in Francis, but not on this point.

¹⁰⁹ Labour Conventions, supra note 83 at 347 [emphasis added].

¹¹⁰ See, for example, Currie, supra note 3 at 209, n. 33; Kindred, supra note 20 at 9-12; and van Ert, supra note 14 at 16.

¹¹¹ See, for example, R.v. Sharpe, [2001] 1 S.C.R. 45 at para. 175 (stating that “this Court has recognized that, generally, international norms are not binding without legislative implementation”).

¹¹² Ahani, supra note 7 and accompanying text.

¹¹³ Suresh, supra note 7. Ahani v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4^th) 57 (S.C.C.) [hereinafter Ahani, SCC].

¹¹⁴ Immigration Act, R.S.C. 1985, c. I-2, s. 114(2), as revised by An Act Respecting Immigration to Canada and the Granting of Refugee Protection to Persons Who Are Displaced, Persecuted or in Danger, S.C. 2001, c. 27. Suresh, supra note 7 at para. 79.

¹¹⁵ Suresh, supra note 7 at para. 129.

¹¹⁶ Ibid. at para. 130.

¹¹⁷ Ahani, SCC, supra note 113 at para. 25-26.

¹¹⁸ Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, Can. T.S. 1976 No. 47 (entered into force 23 March 1976) [hereinafter Optional Protocol].

¹¹⁹ As it has done in previous instances of such requests. See Schabas, supra note 20 at 194.

¹²⁰ Ahani v. Canada (Minister of Citizenship and Immigration) (2002), 18 Imm. L.R. (3d) 193 (Ont. S.C.J.).

¹²¹ Ahani, supra note 7.

¹²² Ibid. at para. 31 .

¹²³ Ibid. at para. 32.

¹²⁴ Ibid. at para. 33.

¹²⁵ Note that, given the focus on the non-binding nature of the Optional Protocol’s committee process, it should not have mattered, from a strictly legal standpoint, whether or not the relevant provisions were implemented in Canadian law (unless, of course, Canadian law had provided a right to have deportation orders stayed pending the outcome of the Committee process).

¹²⁶ Ahani, supra note 7 at para. 31 [emphasis added]. The majority went on to say that a court may nonetheless rely upon international human rights commitments to interpret section 7 of the Charter in a way that is consistent with them. See also D. Dyzenhaus and E. Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v Canada” (2001) 51 U.T. L.J. 193 at 232-36. Dyzenhaus and Fox-Decent argue that the insistence on statutory transformation of international obligations would logically have to be matched by an insistence that common rules can only bind if they are transformed into statute law. The justification for the requirement of statutory implementation is typically rooted in supposed considerations of democratic legitimacy, which is in the requirement of majoritarian legislative action. Pointing to this logical connection reveals a fundamental flaw in the “transformation” requirement.

¹²⁷ See note 91 and accompanying text.

¹²⁸ See Ahani, supra note 7 at para. 91 (Rosenberg dissent).

¹²⁹ See also J. Harrington, “The Year in Review: Developments in International Law and Its Application in Canada” (presentation to the Canadian Bar Association Conference on Directions in International Law and Practice, Ottawa, March 30, 2002) at 8 [unpublished, on file with authors].

¹³⁰ Ahani, supra note 7 at para. 92. Justice Rosenberg specifically noted his dissatisfaction with the government’s insistence on the non-binding nature of the committee process when, on a government website, it asserted that

Ibid. at para. 103, citing Canada, Department of Foreign Affairs and International Trade, “Human Rights in Canadian Foreign Policy,” accessible at <http://wvww.dfait-maeci.gc.ca/foreign_policy/human-rights/forpol-en.asp> (last modified September 1998). For a similar view, see Harrington, supra note 129 at 8-9.

¹³¹ Justice Rosenberg would have remitted the case to the Superior Court for determination of whether the applicant would suffer irreparable harm if returned to Iran, and which of the parties would suffer greater harm from the granting of refusal of the remedy pending the outcome of the Committee process. Ahani, supra note 7 at paras. 107-11 .

¹³² Kyoto Protocol, December 1997, 37 I.L.M. 32 (1998), to the United Nations Framework Convention on Climate Change, supra note 69.

¹³³ We use the phrase “genuinely unimplemented treaty” to distinguish this category from the spectrum of situations in which, as we have argued, treaties are implemented, albeit not necessarily through speciic statutory transformation.

¹³⁴ See notes 76 and 100-4 and accompanying text. As we will suggest later in this article, a different approach should apply to international legal norms that do not bind Canada or to international soft law. See notes 158-60 in this article and the accompanying text. For a detailed discussion of the presumption in the context of the use of human rights law by English courts, see Hunt, supra note 101 at 13-25, 297-324.

¹³⁵ For a detailed discussion of why the presumption should be equally applicable to legislation enacted prior to a given international commitment, see van Ert, supra note 14 at 38-46.

¹³⁶ See notes 103-4 in this article and the accompanying text. See also van Ert, supra note 14 at 35-38; Schabas, supra note 20 at 183; and Weiser, “Effect in Domestic Law,” supra note 20 at 138, who argues that the presumption of conformity should apply to all statutes. However, in “Undressing the Window,” supra note 20 at 26, n. 116, Weiser concludes that, since the Supreme Court does not mention the presumption in the bulk of its decisions involving international law, the presumption does not currently exist with respect to statutes other than implementing legislation.

¹³⁷ In Keegstra, supra note 102 at 837-38 (per McLachlin J.), even the dissenters held that section 2 (b) of the Charter should be interpreted “as a matter of construction” in a manner consistent with international approaches. However, their concern was not to allow international law to restrict the full scope of Charter rights. On the latter point, see also R. v. Cook, [1998] 2 S.C.R. 597 at para. 148 (per Bastarache J.) [hereinafter Cook].

¹³⁸ Reference re Public Service, supra note 102 at 349 (per Dickson C.J.C. in dissent, though not on this point). See also the discussion in G.V. La Forest, “The Use of International and Foreign Materials in the Supreme Court of Canada” (1988) 17 Can. Council Int’l L. Proc. 230 at 232-33.

¹³⁹ See, for example, Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at 1056-57 [hereinafter Slaight Communications]; Keegstra, supra note 102 at 837; United States v. Burns, [2001 ] 1 S.C.R. 283 at paras. 79-81; Baker, supra note 7 at para. 70; and Suresh, supra note 7 at para. 60.

¹⁴⁰ Weiser, “Effect in Domestic Law,” supra note 20 at 138-39. In our view, requiring the invocation of section 33 of the Charter might well be appropriate where Parliament wishes to assert an interpretation of the Charter that restricts human rights provided by an international treaty to which Canada is a party.

¹⁴¹ Dyzenhaus, D., “Constituting the Rule of Law: Fundamental Values in Administrative Law” (2002) 27 Queen’s L. J. 445 at 501–2Google Scholar. See also Dyzenhaus and Fox-Decent, supra note 126.

¹⁴² See, for example, Slaight Communications, supra note 139 at 1056; and Cook, supra note 137 at para. 148 (per Bastarache J.) (emphasizing that “the presumption of statutory interpretation that Parliament intended to legislate in conformity with international law must be applied with great care in the Charter context. The Charter is the fundamental expression of the minimum obligations owed to individuals in our society; I would not be inclined to accept that Canada’s international law obligations could truncate rights deined by the Charter”).

¹⁴³ Although Dickson did not consider international law to bind courts in Charter interpretation, he did consider it relevant to the court’s interpretative task that, by ratifying a treaty, Canada “oblige[s] itself internationally to ensure within its borders the protection of certain fundamental rights and freedoms.” Reference re Public Service, supra note 102 at 349. Note that Justice Michel Bastarache, in a recent paper, endorsed Dickson’s approach. He suggested that “[t]he Supreme Court will consider inherently non-binding instruments … as well as instruments to which Canada is a party … The first group, like international case law, are a guide to interpretation, while the second are a “relevant and persuasive” factor in Charter interpretation.” Bastarache, Justice M., “The Honourable G.V. La Forest’s Use of Foreign Materials in the Supreme Court of Canada and His Influence on Foreign Courts” in Johnson, R. et al., eds., Gérard V. La Forest at the Supreme Court of Canada 1985-1997 (Winnipeg: Canadian Legal History Project, 2000) 433 at 434.Google Scholar

¹⁴⁴ Suresh, supra note 7 at para. 46. See also notes 192-201 in this article and the accompanying text.

¹⁴⁵ For the summary of the Baker case, we rely on Toope, “Inside and Out,” supra note 20 at 19-21.

¹⁴⁶ Immigration Act, supra note 114.

¹⁴⁷ Immigration Regulations, S.O.R./78-172, s. 2.1.

¹⁴⁸ Convention on the Rights of the Child, 20 November 1989, Can. T.S. 1992 No. 3 (entered into force September 2, 1990).

¹⁴⁹ Baker, supra note 7 at para. 70.

¹⁵⁰ Ibid. at para. 69, quoted from Sullivan, supra note 76 at 330 [emphasis in Supreme Court decision].

¹⁵¹ Ibid. at para. 69. See also note 106 and accompanying text.

¹⁵² Nonetheless, Iacobucci and Cory JJ. objected to the majority’s approach to the convention. See notes 162-65 in this article and the accompanying text.

¹⁵³ Sullivan, supra note 76 at 330. There is some irony in the fact that the Baker decision, in quoting Driedger, deviates from the very approach that the passage suggests courts take to the presumption.

¹⁵⁴ Immigration Act, supra note 114.

¹⁵⁵ One might object that the court had to tread especially carefully since it was not merely interpreting a domestic statute in light of an unimplemented treaty but was also reviewing the exercise of administrative discretion granted by the statute. In other words, the court had to avoid both trespassing Parliamentary supremacy and unduly constraining discretionary power. While, as a general matter, both considerations deserve deference, we do not believe that the exercise of administrative discretion warrants different treatment in the context of the presumption of conformity. After all, if Parliament is presumed to intend conformity with Canada’s international obligations, it makes little sense to assume that it granted administrative decision-makers discretion to ignore these obligations. Thus, in reviewing the exercise of discretion in light of applicable international law, a court would not be constraining discretion let alone usurping the role of the decision-maker. It would merely identify the statutory bounds of the discretion. See also the detailed discussion of this issue in Dyzenhaus et al., supra note 4 at 24-29. Dyzenhaus et al. point out that “[t]he fear of negating discretion assumes that the intention or the effect of applying the interpretative principle to discretionary power is to substitute the court’s view of the merits for that of the primary decision-maker. There is no such intention, and it will not have that effect” (at 27).

¹⁵⁶ See also Currie, supra note 3 at 225. But see Kindred, supra note 20 at 21, who argues that the approach of the Supreme Court in Baker actually went beyond the principle that, to the extent possible, statutes should be interpreted in conformity with international law. According to Kindred, the judgment “demands that courts make affirmative use of international law … in the interpretation of domestic statutes.”

¹⁵⁷ For a compelling discussion of the judicial obligation to interpret domestic law consistently with international law, at least as concerns human rights law, see Hunt, supra note 101 at 297-324.

¹⁵⁸ See Kindred, supra note 20 at 26.

¹⁵⁹ But it is possible to read the court’s subsequent decision in Spraytech, supra note 9, as drawing upon Baker to precisely this effect. We return to this issue in our discussion of customary law in the next section of this article. See notes 182-91 in this article and the accompanying text.

¹⁶⁰ Knop, supra note 13 at 525.

¹⁶¹ Ibid. at 535.

¹⁶² Baker, supra note 7 at para. 79, per Iacobucci J. (dissenting in part).

¹⁶³ Ibid. at para. 80.

¹⁶⁴ Ibid. Once again we see revealed a narrow and majoritarian conception of democratic governance. See note 126 in this article. See also note 141 and accompanying text.

¹⁶⁵ Justices Iacobucci and Cory seemed to assume that this presumption applied only to the interpretation of the Charter. See Baker, supra note 7 at para. 81 . We already explained that we believe that this assumption is wrong. See also Dyzenhaus and Fox-Decent, supra note 126 at 236.

¹⁶⁶ Indeed, it is worth noting that customary international law has seen something of a renaissance in Canadian courts. A search on legal databases by the authors in May 2002 revealed sixty-seven cases in Canadian courts citing customary law; two-thirds of these were decided during the last three years.

¹⁶⁷ Re Foreign Legations, supra note 95.

¹⁶⁸ Macdonald, supra note 74 at 109. See also van Ert, supra note 20 at chapter 3 (arguing that, for customary law, the monist thesis is clearly supported in Canada).

¹⁶⁹ See, for example, Saint John (City) v. Fraser-Brace Overseas Corp., [1958] S.C.R. 263 (seeming to favour direct incorporation); Schreiber, supra note 76, at paras. 48-50 (suggesting that customary law is relevant to the interpretation of domestic law and that jus cogens ousts ordinary customary norms and requires its direct application within domestic law); and Mack v. Canada (A.G.), [2002] O.J. No. 3488 at paras. 18-33 (C.A.) (QL) [hereinafter Mack] (treating customary law as directly applicable, unless ousted by contrary domestic legislation). One could also read Justice La Forest’s reasons in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 at 835 (per La Forest J.), as at least implicitly accepting that a customary law rule could directly shape Canadian law. He emphasizes the importance of universal practice and international consensus in shaping norms that would have an impact in Canada. Save for the terminology, the analysis is close to the traditional invocation of practice and opinio juris as the measure of existence for customary law. In Justice La Forest’s view, the norm against the death penalty was not at that time strong enough to guide domestic law — unlike norms against genocide, slavery, and torture.

¹⁷⁰ See Congo v. Venne, [1971] S.C.R. 997 (where changes to customary law did not operate automatically within Canadian law); Reference Re Mining and Other Natural Resources of the Continental Shelf (1983), 41 Nfld. & P.E.I.R. 271 (Nfld. C.A.) (implicitly requiring transformation of customary law).

¹⁷¹ Trendtex Trading Corp. v. Nigeria (Central Bank), [1977] 1 Q.B. 529 (C.A.).

¹⁷² The Paquette Habana, 175 U.S. 688 (1900) at 700. Despite this clear pronouncement, courts in the United States continue to struggle with the role of customary international law in concrete cases.

¹⁷³ See Schreiber, supra note 76; Mack, supra note 169. See also Currie, supra note 3 at 204.

¹⁷⁴ Schreiber, supra note 76; Mack, supra note 169; and Currie, supra note 3.

¹⁷⁵ A wonderfully clear example of such direct application of customary law is the recent decision of the Ontario Superior Court of Justice in Bouzari, supra note 75 at para. 39. At paras. 57-73, Swinton J. provides a nuanced discussion of the prohibition on torture as jus cogens and of its impact on the interpretation of Canada’s State Immunity Act, R.S.C. 1985, c. S-18. See also the Ontario Court of Appeal in Mack, supra note 169 at para. 32 (implying that customary law is directly applicable within the domestic legal system unless ousted by unambiguous legislation).

¹⁷⁶ Schreiber, supra note 76 at para. 50 (hinting that customary law is directly applicable within the domestic legal system unless ousted by unambiguous legislation).

¹⁷⁷ Reference re Secession of Quebec, [1998] 2 S.C.R. 217 [herein after Quebec Secession Reference]. See also Toope, S. J., Case Comment on Quebec Secession Reference (1999) 93 A.J.I.L. 519 at 523.Google Scholar

¹⁷⁸ Supreme Court Act, R.S.C. 1985, c. S-26, s. 3. See also Currie, supra note 3 at 204 (noting that the decision could be read “as an endorsement of the direct legal effect or relevance of customary international law”).

¹⁷⁹ See Toope, supra note 177 at 523-25.

¹⁸⁰ See also Schabas, supra note 20 at 182.

¹⁸¹ On this and the previous point, see LeBel and Chao, supra note 6 at 11 (offering the following cryptic statement: “[U]nless the impugned custom is formally ratiied and adopted into national legislation, it could be dificult to situate the custom in the domestic legal order”). At the risk of pedantry, it is important to emphasize that custom cannot ever be “formally ratified” as it emerges from practice when read with the requisite opinio juris. And the common law tradition, in both the United Kingdom and the United States, at least, is clear that no formal adoption into national legislation is necessary.

¹⁸² Spraytech, supra note 9 at para. 30.

¹⁸³ Ibid. For the text of the Driedger quote, see note 150 in this article and the accompanying text.

¹⁸⁴ Spaytech, supra note 9 at para. 31.

¹⁸⁵ The most recent and most comprehensive analysis of the precautionary principle can be found in Trouwborst, A., Evolution and Status of the Precautionary Principle in International Law (Boston: Kluwer Law International, 2002).Google Scholar

¹⁸⁶ Spraytech, supra note 9 at para. 32 [sources omitted].

¹⁸⁷ See Brunnée, supra note 20.

¹⁸⁸ See notes 19 and 54 and the accompanying text on the role of national courts in the development of international law.

¹⁸⁹ See Spraytech, supra note 9 at para. 31, quoting from the Bergen Ministerial Declaration on Sustainable Development in the ECE Region, which can be found in (1990) 1 Y.B Int’l. Env. L. 429. The most widely cited definition is found in Principle 15 of the Rio Declaration on Environment and Development (1992) 31 I.L.M. 876.

¹⁹⁰ See Canada, A Canadian Perspective on the Precautionary Approach/Principle—Proposed Guiding Principles (September 2001) at 5, accessible at <http://www.dfait-maeci.gc.ca/tna-nac/documents/prec-discussion-e.pdf> (date accessed: July 1, 2003).

¹⁹¹ See Factum of the Interveners, FCM et al, September 1, 2000, Supreme Court of Canada File no. 26937 at 8-10, paras. 20-25 [on file with authors].

¹⁹² Suresh, supra note 7.

¹⁹³ Ibid. at paras. 61-65.

¹⁹⁴ Ibid. at para. 61.

¹⁹⁵ Vienna Convention, supra note 44, Article 53.

¹⁹⁶ Suresh, supra note 7 at para. 65.

¹⁹⁷ Ibid. at paras. 62-64. It is worth noting that in Bouzari, supra note 75 at para. 61, Swinton J. concluded without much ado that the prohibition on torture is jus cogens. While she noted that the Supreme Court, in Suresh, did not have to finally decide the issue, she felt that her conclusion was well supported by the sources set out in that decision.

¹⁹⁸ Suresh, supra note 7 at paras. 76-79.

¹⁹⁹ Ibid. at para. 46.

²⁰⁰ We suggested in note 140 in this article that requiring resort to section 33 of the Charter may be appropriate where Parliament wishes to assert an interpretation of the Charter that restricts human rights provided by an international treaty to which Canada is a party. This argument applies with even greater force when norms of jus cogens are at issue.

²⁰¹ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, Can. T.S. 1987 No. 36 (entered into force June 26, 1987). The court also relied upon the Convention Relating to the Status of Refugees, 28 July 1951, Can. T.S. 1969 No. 6 (entered into force April 22, 1954), which Canada has implemented by statute.

²⁰² But see Bouzari, supra note 75 at para. 60. Swinton J. cites the Supreme Court’s decision in Suresh in support for the proposition that customary law is directly incorporated into Canadian domestic law.

²⁰³ Schreiber, supra note 76 at para. 50. See also Mack, supra note 169 at para. 32.

²⁰⁴ An example of a “particularly compelling” non-binding norm might be one that is widely supported, or even close to crystallizing into customary law. Of course, one might also argue that at least some non-binding norms should not be applied by courts at all. For example, where Canada has specifically chosen not to sign a treaty, it may be inappropriate for a Canadian court to rely upon it in the interpretation of domestic law. This consideration underscores the importance of careful evaluation of each norm, its international stature, and Canada’s position. It is in this very context, that an analytical focus on why the norm is relevant and why it should be persuasive can be of assistance. We are grateful to Karen Knop for the observation, offered in comments on an earlier draft, that “persuasion is not a synonym for non-binding [international law], only for the maximum status it can have [in domestic application]” [on ile with authors].

²⁰⁵ See note 17 and accompanying text.

²⁰⁶ LeBel and Chao, supra note 6 at 48.

²⁰⁷ See Koh, H. H., “Bringing International Law Home” (1998) 35 Houston L. Rev. 623.Google Scholar

²⁰⁸ See ibid. (Koh argues that the internalization of international law through domestic political and legal processes is an important avenue for implanting a genuine sense of obligation in a state, and for promoting its compliance with international law); and see Koh, H. H., “Why Do Nations Obey International Law?” (1997) 106 Yale L.J. 2599 CrossRefGoogle Scholar. In Justice LeBel’s own reasons in Schreiber, supra note 76 at para. 49, he stresses that customary law or jus cogens might “allow domestic courts to entertain claims.”

²⁰⁹ See also our discussion of soft law in the first section of this article.

²¹⁰ See Brunnée and Toope, sources cited in note 23 of this article.

²¹¹ It is, of course, perfectly possible — even desirable — for domestic legal processes to evade or escape from the paradigm of formally binding law. The so-called legal pluralists have explored this issue in great detail. See, for example, Santos, B., Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (London: Routledge, 1995)Google Scholar; Belley, J., “Law as terra incognita: Constructing Legal Pluralism” (1997) 12(2) Canadian J. of L. & Soc’y 17 CrossRefGoogle Scholar; and Macdonald, R. A., “Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism” (1998) 15 Arizona J. of Comp. & Int’l L. 69 Google Scholar. Lon Fuller argues that even in judging, the seeming epitome of formal decision-making rooted in binding law is actually a process of mutual deliberation in which the parties and the judge articulate shared purposes. See Fuller, L. L., “Human Purpose and Natural Law” (1958) 3 Nat. L. F. 68 at 73–74 Google Scholar; Brunnée, and Toope, , “Constructivism,” supra note 23 at 43–53.Google Scholar

²¹² Quebec Secession Preference, supra note 177. See also Toope, supra note 177 at 523. See also Reference Pe Amendment of Constitution of Canada, [1981] 1 S.C.R. 753.

²¹³ In discussing binding international human rights norms, the Senate Standing Committee on Human Rights, supra note 89, made the following forceful observation:

²¹⁴ The importance of domestic internalization, in the context of international environmental law, was recently reafirmed by leading judges from around the globe in the Johannesburg Principles on the Role of Law and Sustainable Development. United Nations Environment Programme, “Senior Judges Adopt Ground-breaking Action Plan to Strengthen World’s Environment-Related Laws,” News Release 2002/58 (August 27, 2002), accessible at <http://www.unep.org/Documents/Default.asp?DocumentID=259&ArticleID=3115> (date accessed: August 29, 2002).

²¹⁵ See our earlier discussion of the Supreme Court’s comments on the precautionary principle in Spraytech, supra note 9, and in notes 188-90 of this article and the accompanying text.

²¹⁶ In the Quebec Secession Reference, supra note 177, the Supreme Court’s failure to engage with customary law and, notably, with the evolving state practice and opinio juris in Europe, caused it to neglect potential shifts in the right to self-determination beyond what the court considered to be the content of that right. On this point, see Schabas, supra note 20 at 192-93; and Toope, supra note 177 at 524-25. The court’s opinion has since been widely referred to by other courts and academic writers from around the world. Thus, its partial analysis of the evolving right to self-determination may reinforce those voices that seek to limit the scope of the right. Our point is not that the right should be narrowly or widely construed. It is simply to illustrate that the decisions of domestic courts can have a significant impact on the development of international law. See, for example, Nanda, V. P., “Self-Determination and Secession under International Law” (2001) 29 Denv. J. Int’l L. & Pol’y 305 at 315–19Google Scholar (discussing the Quebec Secession Reference in detail).

²¹⁷ LeBel and Chao, supra note 6 at 20.

²¹⁸ Charter, supra note 16.