U NIVERSITY OF T ORONTO

Faculty of Law
P UBLI C L AW AND L EGAL T HEORY
R ESEARCH P APER N O . 04-13

C ONSTITUTIONAL, R EMEDIAL AND I NTERNATIONAL D IALOGUES

A BOUT R IGHTS: T HE C ANADIAN E XPERIENCE
K ENT R OACH

This paper can be downloaded without charge at:

The Social Science Research Network Electronic Paper Collection:

http://ssrn.com/abstract=621245
Constitutional, Remedial and International Dialogues About Rights: The Canadian
Experience

Kent Roach*

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 increasing
attention in other parts of the world. 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 Review4 and the concept has been discussed in

* Professor of Law, University of Toronto. B.A. Toronto, 1984; LL.B. , Toronto 1987, LL.M, Yale 1988,
F.R.S.C. 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 Brunee 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 Vriend v. Alberta [1998] 1 S.C.R. 493; M. v. H. [1999] 2 S.C.R. 3; Corbiere v. Canada [1999] 2
S.C.R. 203; R. v. Mills [1999] 3 S.C.R. 668; Little Sisters v. Canada [2000] 2 S.C.R. 1120; Bell Express Vu v.
Canada [2002] 2 S.C.R. 559; R. v. Hall [2002] 3 S.C.R. 309; Sauve v. Canada [2002] 3 S.C.R. 519; Figueroa
v. Canada [2003] 1 S.C.R. 912; Doucet-Boudreau v. Nova Scotia [2003] 3 S.C.R. 3. See generally Christopher
Manfredi “The Life of a Metaphor: Dialogue in the Supreme Court, 1998-2003” (2004) 23 S.C.L.R.(2d) 105.
2
Peter Hogg and Allison Bushell “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the
Charter of Rights Isn’t Such a Bad Thing After All” (1997) 35 Osgoode Hall L.J.; Kent Roach “Constitutional
and Common Law Dialogues Between the Supreme Court and Canadian Legislatures” (2001) 80 Can. Bar Rev.
481; Kent Roach The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2001). For
criticisms of dialogue theory in Canada see Christopher Manfredi and James Kelly “Six Degrees of Dialogue”
(1999) 37 Osgoode Hall L.J. 529; Andrew Petter “Twenty Years of Charter Justification: From Liberal
Legalism to Dubious Dialogue” (2003) 52 U.N.B.L.J. 187.
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 American constitutional scholar Alexander Bickel. See Alexander
Bickel The Least Dangerous Branch 2nd ed (1986) at 240; Alexander Bickel The Supreme Court and the Idea
of Progress (1970) at 91; Alexander Bickel The Morality of Consent (1974) at 111.
4
Aharon Barak “Foreword: A Judge on Judging: The Role of the Supreme Court in a Democracy” (2002) 116
Harv.L.Rev. 16 at 133. He elaborated: “The dialogue does not taken place at meetings between the judiciary
and the legislature; it takes place when each branch carries out its constitutional role. “

1
recent writings about judicial review in both the United Kingdom 5 and Australia6.
Discussion of dialogue is also found in scholarship about international law and institutions. 7
The idea of judicial dialogue is gaining increasing attention in many parts of the world. 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-Dube, 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. The idea of judgments as part of
an ongoing dialogue about the treatment of rights fits into a globalized world where

5
Richard Clayton “Judicial Deference and ‘Democratic Dialogue’: The Legitimacy of Judicial Intervention
under the Human Rights Act, 1998” [2004] Public Law 33. For criticisms of dialogue theory see Keith Ewing
“Human Rights” in Cane and Tushnet eds. The Oxford Handbook of Legal Studies (2003).
6
Australian Capital Territory Bill of Rights Consultative Committee Towards an ACT Human Rights Act (no.
03/ 0068) at www./jcs.act.gov.au..prd/rights/index.html; Leighton McDonald “New Directions in the Australian
Bill of Rights Debate” (2004) Public Law 22; Leighton McDonald “Rights, ‘Dialogue’ and Democratic
Objections to Judicial Review” (2004) 32 Federal L.R. 1.
7
Abram Chayes and Antonia Handler Chayes The New Sovereignty: Compliance and International Regulatory
Agreements (1995); Francis Jacobs “Judicial Dialogue and the Cross-Fertilization of Legal Systems: The
European Court of Justice” (2003) 38 TILJ 547; Sir Christopher Bellamy “Focussing on the European
Perspective of Judicial Dialogue: Issues in the Area of Competition Law” (2004) 39 TILJ 461.
8
Hon. Claire L’Heureux-Dube “The Importance of Dialogue: Globalization and the International Impact of the
Rehnquist Court” (1998) 34 Tulsa L.J. 15.
9
Jutta Brunnee and Stephen Toope “A Hesitant Embrace: The Application of International Law by Canadian
Courts” (2002) Can. Y.B. of International law 3 at 55. See generally Jutta Brunnee and Stephen Toope
“International Law and Constructivism: Elements of an Interactional Theory of International Law” (2000) 39
Columbia J. of Transitional Law 19; Jutta Brunnee and Stephen Toope “Persuasion and Enforcement:
Explaining Compliance with International Law” (2002) 13 Finnish Y.B. of Int.Law. 1.

2
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, 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
issues 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 non-enforceable decisions of
international bodies such as the Human Rights Committee of the United Nations on
domestic jurisdictions such as Canada. The final form of dialogue concerns the use that
domestic courts make in dualist systems of non-binding comparative and international law
in their decisions. Although these different forms of dialogue can be analytically separated, I
will also suggest that they are related in their attitude towards 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

10
Anne-Marie Slaughter A New World Order (2004) at 266.
11
See Basil Markesinis “The Judge as Comparatist” in this volume for discussion of other uses of the metaphor
of dialogue.
12
For a related contrasted 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 Harding “Comparative Reasoning and Judicial Review” (2003) 28 Yale J. Int’l Law 409 at 424. See
also Sujit Choudhry “Globalization in Search of Justification: Towards a Theory of Comparative Constitutional
Interpretation” (1999) 74 Ind.L.J. 819 at 825 identifying a dialogical approach to the use of comparative law.
13
Being Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982, c.11.

3
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 which 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 tried to rights and
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 Human Rights
Committee of the United Nations under the Optional Protocol to the International Covenant
on Civil and Political Rights. 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 decisions by Canadian legislatures to limit or override rights. Complaints under
the Optional Protocol operate in an asymmetrical fashion; they guard against under-
enforcement as opposed to over-enforcement of rights at the domestic level and thus serve

14
Marbury v. Madison 5 U.S. 1 (1 Cranch) 137 at 163 (1803); William Blackstone Commentaries Book 3 Ch.
7.; Albert V. Dicey An Introduction to the Study of the Law of the Constitution 10th ed (London: MacMillan,
1959) at 199.
15
(1976) 999 U.N.T.S. 302, [1976] C.T.S..47. It is also possible for individuals who have exhausted domestic
remedies in Canada to petition the Inter-American Commission on Human Rights and the United Nations

4
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 has refused to
stay a person’s deportation from Canada until the Human Rights Commission had
considered whether the person would be tortured if deported.16 Although it is accepted that
the Human Rights Commission cannot enforce its final views, the impatience of the
Canadian courts with its 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 also be both 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
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. I will also raise the question of whether a dialogic approach to rights is too
tentative and too accommodating of departures from norms, including international law

Committee Against Torture. See William Schabas “Twenty-Five Years of Public International Law at the
Supreme Court of Canada” (2000) 79 Can. Bar Rev. 174 at 193-194 (special edition)
16
Ahani v. Canada (2002) 58 O.R.(3d) 107 (Ont.C.A.)
17
United States of America v. Burns and Rafay [2001] 1 S.C.R. 283; Suresh v. Canada [2002] 1 S.C.R. 3.

5
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 a death penalty or even 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 s.1. It 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….the
Charter has given rise to a more dynamic interaction among the branches of government.
This interaction has aptly been 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….most 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
Some of the inspiration for s.1 of the Charter is found in post World War II
international and regional rights protection instruments which contemplated legitimate
legislative limits on at least some of the guaranteed rights. For example, Article 9 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
guarantees freedom of religion:

18
R. v. Oakes [1986]1 S.C.R. 103
19
Vriend v. Alberta [1998] 1 S.C.R. 493 at para 137-138.

6
 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 s.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 s.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 under the European
Convention or the International Covenant on Civil and Political Rights, 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 and the possibility
that the government can justify limits on the rights. Second, section 1 does not attempt to
pre-judge 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

20
A similar limitation provision is contained in Article 18(3) of the International Covenant on Civil and
Political Rights. It 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 Between the Supreme Court and Canadian
Legislatures” supra
22
It should be noted, however, that the Supreme Court of Canada has been very reluctant to contemplate that
s.1 of the Charter can be used to limit rights under s.7 of the Charter which provides that: “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 for example Suresh v. Canada supra to be discussed in part 4 of this
paper.

7
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 which 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 s.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.”24 Section 36 of the South African Constitution has also been
influenced by s.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.” 25Courts 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 s.1 of the Charter. All of these limitation clauses 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 clause contemplates 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.26 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 “the
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.”27

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 s.1 of the Charter. See for example R. v. Big M
Drug Mart [1985] 1 S.C.R.295 holding that the enforcement of the Christian sabbath was not a legitimate
legislative objective for Sunday closing law.
24
New Zealand Bill of Rights s.5.
25
South African Constitution s.36.
26
See Kent Roach “Constitutional and Common Dialogues Between the Supreme Court and Canadian
Legislatures” supra
27
West Virginia State Board of Education v. Barnette 319 U.S. 624 at 638 (1943).

8
 Perhaps the most famous or infamous provision in the Canadian Charter that
contemplates dialogue between courts and legislatures over the treatment of rights is s.33 of
the Charter 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 a provision included
in section 2 or sections 7 to 15 of the Charter.
This provision gives legislatures an 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 s.33 of the Charter 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.28 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 favourable attention from some American commentators
who view it as a possible response to judicial supremacy and a way to promote dialogue
between courts and legislatures.29 The override remains controversial in Canada with some
viewing it as an appropriate compromise between legislative and judicial supremacy30 and
others expressing unease about the power it gives legislatures to depart from rights or
expressing concern that it requires the legislature to confess that it is departing from rights
whereas the legislature may only have a different understanding of rights.31 Even if it only
looms in the background, the override is an important part of dialogue between courts and
legislatures in Canada. The most famous use of the override in Canada- Quebec’s use of the

28
On the use of the override see Tsvi Kahana “Understanding the Notwithstanding Mechanism” (2002) 52
U.T.J.J. 221; Tsvi Kahana “The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored
Practice of Section 33” (2001) 43 Can.Public Admin. 255.
29
Guido Calabresi “Foreword: Anti-Discrimination and Constitutional Accountability” (1991) 105
Harv.L.Rev. 80; Michael Perry The Constitution and the Courts (1994) c.10; Stephen Gardbaum “The New
Commonwealth Model of Constitutionalism” (2001) 49 Am.J. of Comp. Law 707. See also Jeffrey
Goldsworthy “Judicial Review, Legislative Override and Democracy” (2003) 38 Wake Forest L. Rev. 451.
30
Paul Weiler “Rights and Judges in a Democracy: A New Canadian Version” (1984) U.Mich.J.of Law
Reform 51; Lorraine Weinrib “Learning to Live with the Override” (1990) 35 McGill L.J. 514; Peter Russell
“Standing up for Notwithstanding” (1991) 29 Alta. L.Rev. 293
31
Jeremy. Waldron “Some Models of Dialogue Between Judges and Legislators” (2004) 23 S.C.L.R.(2d) 7 at
34-39; Jamie Cameron “The Charter’s Legislative Override: Feat or Figment of the Constitutional

9
override with respect to its legislation to promote the French language- will be examined in
the third part of this paper, including complaints by anglophone merchants to the United
Nation’s Human Rights Commission. 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. 32 In addition, the fact that the use of the override may be the subject of a
complaint to the United Nations Human Rights Commission under the First Optional
Protocol to the International Covenant on Civil and Political Rights 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.
33
Article 4 of the International Covenant on Civil and Political Rights contemplates
derogations from some rights in emergency situations but only “to the extent strictly
required by the exigencies of the situation.”34 No derogations are allowed even in
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 “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 does s.33
of the Charter. The override under s.33 of the Charter can apply to fundamental freedoms,
the right against cruel and unusual punishment, the right against retroactive offences and

Imagination?” (2004) 23 S.C.L.R.(2d) 135; John Whyte “On Not Standing for Notwithstanding” (1990) 28
Atla.L.Rev. 347.
32
“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 Sharpe, Katherine Swinton
and Kent Roach The Canadian Charter of Rights and Freedoms 2nd ed (2002) at 81.
33
See also, however, s.2 of the statutory Canadian Bill of Rights S.C. 1960 c.44 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 Parliament that it shall operate notwithstanding the Canadian Bill
of Rights”.
34
Article 15 of the European Convention contains a similar provision. Note that the American Bill of Rights
does not contain a clause allowing derogation from rights but that Article 1 section 9 cl 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.” .

10
equality rights.35 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. As will be discussed in the third part of this paper, the 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 Quebec’s decision to employ an omnibus override and
indicated that it will not review the reasons why the override has been used. At the same
time, it held that the override cannot be used in a retroactive manner.36 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 anti-discrimination 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. Justice Iacobucci commented that s.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 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 American constitutionalism that a

35
Note that Canada’s statutory Emergencies Act R.S.C. 1985 c. 22 s.4(b) prohibits the detention of Canadian
citizens or permanent residents on the basis of race, religion, ethnicity or national origin. This provision was
designed to respond to the injustice of the internment of Japanese Canadians during World War II but it could
in theory be repealed and new emergency legislation could be enacted with an explicit override of equality
rights under s.15 of the Charter. For favorable commentary on Canada’s emergency statute see Lorraine
Weinrib “Terrrorism’s Challenge to the Constitutional Order:” in Ronald Daniels, Patrick Macklem and Kent
Roach eds. The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto
Press, 2001) and Bruce Ackerman “The Emergency Constitution” (2004) 113 Yale L.J. 1029 at 1061-1062.
36
Ford v. Quebec (Attorney General) [1988] 2 S.C.R. 712.
37
Vriend v. Alberta supra at paras 137, 139.

11
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 have
found that the traditional restrictions on marriage infringe the equality rights of gays and
lesbians and cannot be justified under s.1. 39 Parliament has 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 has subsequently referred draft legislation to the Supreme
Court that would allow same sex marriages but protect religions from having to recognize
them.41 After the Court has made its ruling, Parliament will likely re-visit the matter and
same-sex marriage could 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 in order 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.42 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

38
Marriage Amendment Act, 2000 S.A. 2000 c.3. On the background see Roach The Supreme Court on Trial
(2001) at 195-200.
39
Halpern v. Canada (2003) 65 O.R.(3d) 161 (C.A.); Egale v. Canada (2003) 225 D.L.R.(4th) 472 (B.C.C.A.);
Hendricks v. Quebec [2002] R.J.Q. 2506 (Que.S.C.).
40
Hansard 16 September 2003 at 1812 .The motion would have committed Parliament to take “all necessary
steps” to preserve the traditional definition of marriage.
41
“Minister of Justice announces reference to the Supreme Court of Canada’ 17 July 2003 at www.
justice.gc.ca/en/news/fs/2004/doc-31110.html The ability of Canadian governments to refer abstract
constitutional questions to courts is a dialogic option not available in the United States.
42
5 U.S. (1 Cranch) 137 (1803).

12
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 law even though that was what was required under the supremacy clause.
Instead, the Court held that it could give unconstitutional laws temporary effect in order to
preserve the rule of law.43 The Court exercised supervisory jurisdiction over the case until
Manitoba’s laws had been translated. 44
In subsequent years, the Supreme Court made greater use of the innovative remedy
of a suspended or delayed declaration of invalidity.45 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 where the Court
suspended a declaration of invalidity for 18 months after finding that existing federal
legislation violated the right of Aboriginal people living off reserve. Justice L’Heureux-
Dube 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 Quebec, [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 should, in appropriate cases, encourage and
facilitate the inclusion in that dialogue of groups particularly affected by
legislation.46

43
Manitoba Language Reference [1985] 1 S.C.R. 721.
44
Manitoba Language Reference [1985] 2 S.C.R. 347; Manitoba Language Reference [1990] 3 S.C.R. 1417n;
Manitoba Language Reference [1992] 1 S.C.R. 212.
45
See Sujit Choudhry and Kent Roach “Putting the Past Behind Us? Prospective Judicial and Legislative
Constitutional Remedies” (2003) 21 S.C.L.R.(2d) 205 at 253-256.
46
Corbiere v. Canada [1999] 2 S.C.R. 203 at para 116

13
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; one 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.”47 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. Nevertheless, the legislature is not
forced to act and the declaration of incompatibility has persuasive force only. The New
Zealand courts have also asserted their power to make a declaration that legislation is
incompatible with the Bill of Rights despite the absence of a formal provision in that bill of
rights.48 Further work is required to evaluate 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

47
Constitution of South Africa s.172 (2)(b) (ii).
48
Moonen v. Film and Literature Review Board of Review [2000] 2 NZLR 9 at 7 (C.A.).

14
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 which see remedies as self-executing and closely
tied to rights.
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 case, 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’”.49 Instead the Court has
indicated that a delayed declaration of invalidity will be a helpful way to remand complex
remedial issues to the legislature while preserving the unconstitutional benefit scheme for a
temporary period of time. 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.50 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 delayed a declaration that existing benefits were inadequate for an 18 month period in
order to give the legislature an opportunity to respond to the complexities of reforming a
social assistance program.51 Judicial bodies who 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. 52

49
Schachter v. Canada [1992] 2 S.C.R. 679.
50
Ibid at 701 See also Nitya Duclos and Kent Roach “Constitutional Rights as ‘Constitutional Hints’: A
Comment on R. v. Schachter” (1991) 36 McGill L.J. 1
51
Gosselin v. Quebec [2002] 4 S.C.R. 429 at para 296-297 per Bastarache J. in dissent
52
Craig Scott and Patrick Macklem “Constitutional Ropes of Sand or Justicable Government?: Social Rights
in a New South African Constitution” (1992) 141 U Penn. L.Rev. 1;l Jennifer Nedelsky and Craig Scott

15
 Judges who appreciate the role of other institutions in responding to and
implementing their judgments may be more inclined to rely on general and non-coercive
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.53 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 s.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. 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….the 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 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” 54 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. 55 involving the rights of people who are deaf
or hearing impaired to sign language interpretation services in hospitals. Justice La Forest
stated for an 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

“Constitutional Dialogue” in Joel Bakan and David Schneiderman eds Social Justice and the Constitution
(1992).
53
Kent Roach “Remedial Consensus and Dialogue under the Charter: General Declarations and Delayed
Declarations of Invalidity” (2002) 39 U.B.C.L.Rev, 211.
54
Mahe v. Alberta (1990) 68 D.L.R.(4th) 69 at 106 (S.C.C.).
55
(1997) 151 DLR(4th) 577 at para 96 (S.C.C.)

16
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.” In addition, the Court extended the
practice of suspending its remedies by providing that the declaration did not take effect for
6 months.
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.” 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”.56 The Supreme Court in a recent 5:4 decision in Doucet-
Boudreau v. Nova Scotia 57 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. The
affected parties would also have an opportunity to participate in the reporting sessions. The
remedy in the case was stronger than a general declaration but it was fashioned in light of
almost 20 years of delay in Nova Scotia in complying with the minority language education
rights. 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.
Doucet-Boudreau may represent some disenchantment in Canada with the
metaphor of dialogue from all sides of the spectrum. For the majority in this58 and other
cases59, the metaphor of dialogue appeared awkward because the government claimed that it

56
Little Sisters v, Canada [2000] 2 S.C.R. 1120 at paras 258-261 (in dissent)
57
Doucet-Boudreau v. Nova Scotia [2003] 3 S.C.R. 3.
58
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.” Ibid at para 53 Section 24
of the Charter contemplates that courts can grant appropriate and just remedies for Charter violations.
59
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 legislature and the
courts should not be debased to a rule of ‘if at first you don't succeed, try, try again’”. Sauve v. Canada [2002]
3 S.C.R. 519 at para 17.

17
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 and even how the interaction between the judiciary and others
may affect judicial reasoning. 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.60 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 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. 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 or not.
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
of the Court 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.61 They operated on the assumption that

60
Sarah Harding “Comparative Reasoning and Judicial Review” supra at 463-464 (rejecting claim that
dialogue will produce moral relativism); Patrick Glenn Legal Traditions of the World: Sustainable Diversity in
Law (2000) at 329 (suggesting that engagements with different sources “in conversation, dialogue or argument”
leaves “no place for the indecision of relativism”).
61
The minority noted that those supporting the trial judge’s remedy “argued that the trial judge retained
jurisdiction only to hear reports, and that these hearings had purely ‘suasive’ value. They also argued that the
hearings were designed to hold "the Province's feet to the fire" (SCC hearing transcripts). They further
suggested that the threat of having to report to the trial judge functioned as an incentive for the government to

18
judges act in an illegitimate and “political” fashion if they engage in anything but the
articulation and execution of legally enforceable commands. Taken to their logical
conclusions, such arguments could reject the use of delayed declarations of invalidity and
constitutional hints as impermissible attempts by the judiciary to place political pressure on
the government to act.
The Supreme Court’s recent decision in Doucet-Boudreau v. Nova Scotia 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, but even the majority 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. The four judges in the minority emphatically rejected the
role that judges could play in supervising the remedy and that 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. For the minority, dialogical prodding or
supervision by the judge was a political act that exceeded the limits of the judicial role.
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 United Nations Human
Rights Commission, 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

comply with the best efforts order…..” ibid at para 127The minority rejected the legitimacy of such an
approach in the strongest of terms, 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.” Ibid at para 128.

19
 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
victims the victims of any violation with a remedy.62
To be sure, the effectiveness of the UN Human Rights Commission’s follow up remedial
procedure is in doubt63.Elizabeth Evatt64 and Dinah Shelton65 have both questioned the
Commission’s reliance on soft remedial approaches that rely on good faith responses from
member states and she looks longingly to the European Court of Human Rights in part
because its decisions are legally binding and it can award damages to rectify the harm
caused to individuals. Nevertheless, I want to suggest here that something can be gained by
softer and dialogic remedial approaches that call upon the state to do more than rectify
discrete harms caused in the past but rather to engage in good faith in more complex reforms
that will prevent violations in the future.

62
Elizabeth Evatt “The Impact of International Human Rights on Domestic Law” in Grant Huscroft and Paul
Rishworth eds Litigating Rights Perspectives from Domestic and International Law (2002) at 301. 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 (1991) at 3.3 (p.64) proceed in a
dialogic manner. I am indebted to my colleague Frederic Megret for bringing the dialogical nature of the
periodic reporting system to my attention.
63
Scott Davidson “Intention and Effect: The Legal Status of the Final Views of the Human Rights Committee”
in Grant Huscroft and Paul Rishworth eds Litigating Rights Perspectives from Domestic and International Law
(2002) at 313-314 (indicating that only about 30% of replies have been deemed satisfactory as of 1998); M.
Schmidt “Follow-up Procedures to Individual Complaints and Periodic State Reporting Mechanisms in G.
Alfredson et al eds. International Human Rights Monitoring Mechanisms (2001) at 203 (estimating only 25%
effectiveness of remedies)
64
Evatt concludes that “[r]egrettably, the United Nations’ human rights systems…has 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.” Ibid at 302.
65
Although she recognizes that they are “the remedy most often sought and granted in international litigation”,
Dinah Shelton concludes that “generally, 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 (1999) at 199, 213. She looks more to damages as the ultimate remedy to undo the wrong. Ibid chs
2 and 8. Damages are, however, tied to an aspiration for corrective justice which views harms as discrete 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 2nd ed (1941) at xiv. 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.” Ibid at pp-8-9. On the limits of corrective
justice as a remedial ambition see Owen Fiss “Foreword: The Forms of Justice” (1979) 93 Harv.L.Rev. 3;
Owen Fiss “Coda” (1988) 38 U.T.L.J. 229; Kent Roach “The Limits of Corrective Justice and the Potential of
Equity in Constitutional Remedies” supra

20
 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 American desegregation and prison cases. Although such
remedies are often associated with unrestrained judicial activism, Professor Chayes had a
much more nuanced and, by many accounts 66, more empirically accurate explanation of the
controversial phenomenon. He argued that in complex cases, “the remedy is not imposed
but negotiated”. 67 In subsequent influential work on international law with Antonia Handler
Chayes, Chayes argued in favor of a co-operative and managerial approach to compliance
with international law norms and contrasted that with an enforcement model that relied upon
sanctions. He argued that in international law “sanctioning authority is rarely granted by
treaty, rarely used when granted, and likely to be ineffective when used.”68 Rather the
Chayes’ presented a dialogical model of international law that depended on “the discursive
process of explanation, justification and persuasion.”69
There are some interesting similarities between dialogic remedies in domestic
constitutional law and those developed by international bodies that adjudicate whether
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

66
Philip Cooper Hard Judicial Choices (1988); Larry Yackle Reform and Regret (1989); Malcolm Feeley and
Edward Rubin Judicial Policy-Making and the Modern State: How the Courts Reformed America’s Prisons
(1998).
67
Abram Chayes “The Role of the Judge in Public Law Litigation” (1976) 89 Harv.L.Rev. 1281 at 1302. He
elaborated that remedial decree was a complex ongoing process and that “the interest in a decree that will be
voluntarily obeyed can be promoted by enforcing a regime of good faith bargaining among the parties.” Ibid 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..
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.” Abram Chayes “Foreword: Public Law Litigation and
the Burger Court” (1982) 96 Harv.L.Rev. 4 at 46.
68
Chayes and Chayes The New Sovereignty: Compliance with International Regulatory Agreements (1995) at
32-33.
69
Ibid at 127 For various criticisms of this approach see George Downs el al “The Transformational Model of
International Regime Design: Triumph of Hope or Experience” (2000) 38 Colum. J. of Transnational Law 465
(scepticism about its ultimate enforceability); Brunee and Toope “Persuasion and Enforcement: Explaining
Compliance with International Law” supra at 12 (agreement with emphasis on dialogue but expressing
concerns about focus on the self interest of states).

21
order to recognize the relevant norm. They both generally anticipate that there are a range
of legitimate responses open to government and much can be gained by allowing
governments to select the most appropriate response. Dialogic remedies in both domestic
and international law contemplate a re-iterative process in which governments report on
steps to achieve compliance70; dialogic remedies cannot be fashioned in an instant so as to
achieve rectification that traces and corrects past wrongs.71 Dialogic remedies often aim to
promote healthy partnerships between courts and governments72 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 which 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 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 delayed, the declaration of invalidity
comes into effect. In contrast, declaratory remedies in international law, at least those issued
by the United Nations Human Rights Commission, 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.

70
The Chayes argue that “the dynamics of dialogue and accountability are central” to the managerial approach
of international law to achieving compliance. “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.” Chayes and Chayes The New Sovereignty (1995) at 230.
71
Kent Roach “The Limits of Corrective Justice and the Potential of Equity in Constitutional Remedies” (1991)
33 Ariz.L.Rev. 859.
72
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.” Beverley McLachlin “The Charter: A New Role for the Judiciary?” 29 (1991)
Alberta Law Review 540 at 553.

22
IV. International Dialogues
Canada has signed the Optional Protocol to the International Covenant on Civil and
Political Rights 73. This allows individuals in Canada to make complaints to the Human
Rights Committee of the United Nations 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 before and after the Committee has
communicated its views on the matter. The Optional Protocol does not provide explicit
remedial powers for the 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 Human Rights 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 then are 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 Human Rights Committee often relies on the good will and 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 signature
means that litigants who believe that they have not received justice from the Supreme Court
of Canada or whose rights have been subject to legislative override under s.33 of the

73
G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302,
entered into force March 23, 1976.

23
Canadian Charter can effectively challenge these judicial and legislative decisions in at least
one international forum.74 As Robert Cover has noted, jurisdictional redundancy can
mitigate some of the damage done by final authoritative decisions of courts that deny
rights.75 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,”
76
with both other domestic courts and with international law and its enforcement bodies. The
effects of recourse to the Human Rights Commission 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 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 77as opposed to the minority of
decisions that find unjustified violations. In this way, recourse to the Committee has the
potential to serve as an antidote to the danger first recognized by Thayer that democracies
that rely on judicial enforcement bills of rights may become complacent about rights.78 In
other words, a decision by the United Human Rights Committee that rights under the
ICCPR have been violated may shake complacency caused by a Supreme Court decision
that rights have not been violated in the same or related cases. The UN decision may
feedback into possible legislative reforms.79 It may also feed into civil society and trans-
national 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. Nevertheless, the option of going to the Committee has the potential to continue

74
New Zealand has also signed the protocol and the leading text on the New Zealand Bill of Rights observes:
“The Optional Protocol procedure effectively enables individuals to re-litigate Bill of Rights arguments before
the Human Rights Committee, this time putting the complaint in terms of the analogous right in the ICCPR.”
Paul Rishworth et al The New Zealand Bill of Rights (2003) at 13-14.
75
Robert Cover “The Uses of Jurisdictional Redundancy: Interest, Ideology and Innovation” (1981) 21 Wm &
Mary L.Rev. 639. See also Robert Cover “Foreword: Nomos and Narrative” (1983) 97 Harv.L.Rev. 4.
76
Karen Knop “Here and There: International Law in Domestic Courts” supra at 533
77
James Kelly “The Charter of Rights and Freedoms and the Rebalancing of Liberal Constitutionalism in
Canada” (1999) 37 Osgoode Hall L.J 625; Sujit Choudhry and Claire Hunter “Measuring Judicial Activism on
the Supreme Court of Canada: A Coment on Newfoundland (Treasury Board) v. NAPE” (2003) 48 McGill L.J.
525.
78
See Alexander Bickel The Least Dangerous Branch 2nd ed (1986) 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
supra.

24
dialogues about rights that might otherwise be ended by a decision by the Canadian
Supreme Court that rights have not been violated or a decision of a Canadian legislature to
override rights.
During the 22 years of the Charter’s existence, there have been some interesting
examples of dialogues about rights going international.80 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)81. Affected parents have complained to the Human Rights Committee 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.”82 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 90 days “about the measures taken
to give effect to the Committee's Views. The State party is also requested to publish the

79
I am indebted to my colleague David Schneiderman for this point.
80
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 (No 208/1986) U.N. Doc A/45/50 hearing issue considered in Bhinder
v, Canada National [1985] 2 S.C.R. 561 and Lovelace v. Canada (No 24./ 1977) U.N. Doc CCPR/3/Add.1
hearing issue considered in A.G. Canada v. Lavell [1974] S.C.R. 1349. Schabas “Twenty Five Years of Public
International Law” supra at 194
81
Reference re Bill 30 [1987] 1 S.C.R. 1148; Adler v. Ontario [1996] 3 S.C.R. 609
82
Waldman v. Canada Communication Nº 694/1996 : Canada. 05/11/99.
CCPR/C/67/D/694/1996. (Jurisprudence) at para 10.6

25
Committee’s Views.”83 Such a decision falls into the pattern identified in the second 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 and attempts are made to persuade a state to comply rather to coerce its
compliance.
As discussed in the second part of the paper, however, the Commission’s soft and
dialogic approach to remedies often does not produce full compliance or full rectification.
The Human Rights Committee’s decision has neither ended public funding to Catholic
schools in Ontario or resulted in full public funding of other religious schools. It has,
however, helped to keep the issue alive and in the public eye and one Ontario government
has acted to provide tax credits for parents who send their children to a variety of private
schools including religious schools. 84 Although there has not been full compliance with the
decision, this episode illustrates how about rights in Canada can be enriched and expanded
by the ability to bring complaints to the Human Rights Committee.
Another important case study of the international dimensions of dialogic judicial
review in Canada is the controversy over Quebec 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 of 1988. 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. Nevertheless, it
concluded that this objective could be pursued in a more proportionate and reasonable
manner, for example by requiring that French be the predominant but not the exclusive
language on commercial signs.85 As discussed above, s.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 Quebec
legislature quickly responded to the ruling by re-enacting 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

83
Ibid at para 13.
84
The Right Choices for Equity in Education Act (Budget Measures) 2003 S.O. c.5.

26
of some Anglophones from the Quebec 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.86 The
Anglophone merchants who won in the Supreme Court only to lose in the Quebec
legislature were, however, not willing to wait five years for the legislature to reconsider
their claims and they complained to the United Nations Human Rights Committee. Both the
Canadian and Quebec governments argued that they 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”87. 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. In contrast the Supreme Court of Canada has
taken a relatively 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 the merits or
necessity of the override.88 Even in a declared emergency in which Canadian legislatures
derogated from rights, the United Nations Human Rights Committee could still under
Article 4 review whether the derogation resulted in discrimination or a violation of Canada’s
international commitments whereas courts in Canada would not so closely scrutinize the use
of the override.
On the merits of the controversy over Quebec language legislation, the Human
Rights Committee in a communication issued in May of 1993 decided that the prohibition of
languages other than French on public signs in the province of Quebec was not justified as a
legitimate limit on freedom of expression under Article 19 of the ICCPR. It concluded “the
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

85
Ford v. Quebec (Attorney General) [1988] 2 S.C.R. 712
86
Kent Roach The Supreme Court on Trial (2001) at 189-193.
87
John Ballantyne and Elizabeth Davidson, and Gordon McIntyre v. Canada
Communication No. 385/1989 : Canada. 05/05/93. CCPR/C/47/D/385/1989. (Jurisprudence) At 10.3

27
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.” 89 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”90
In 1994, the Human Rights Committee decided another complaint brought by an
Anglophone merchant in Quebec. In 1993, Quebec had amended its language legislation
generally to allow the use of languages other than French on public signs, so long as French
remained dominant. 91 The 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. 92 Although this was not a formal ruling on the compatibility of the new legislation
with the ICCPR, it did take note of Quebec’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 Quebec’s change of position on the language law.

88
Ford v. Quebec (Attorney General) [1988] 2 S.C.R. 712.
89
John Ballantyne and Elizabeth Davidson, and Gordon McIntyre v. Canada
Communication No. 385/1989 : Canada. 05/05/93. CCPR/C/47/D/385/1989. (Jurisprudence) at 11.4
90
Ibid at 13, 14.
91
Loi modifiant la Charte de la langue française) (L.Q. 1993, c.40; projet de loi 86)
92
Singer v . Canada Communication No. 455/1991 : Canada. 15/08/94.
CCPR/C/51/D/455/1991. (Jurisprudence) at para 14.

28
 In the end, Quebec 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 United Human Rights
Commission played only one part in the decision. Nevertheless, these communications
demonstrate how decisions made about rights in either Canadian courts and legislatures can
be subject to further challenges, disputes and dialogue in international arenas.93 The
decisions of supra national 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 United Nations Human Rights Commissions to evaluate any use of the
override by Canadian legislatures adds an important dimension to the use of the override.94
A more recent and troubling episode in Canada involving the United Nations 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. The Supreme Court of Canada
upheld the Minister’s decision that Mr. Ahani did not face a significant risk of torture if
deported.95. Ahani, however, claimed he would be tortured and sought to restrain his
deportation until his claim was considered by the Human Rights Committee. On January
11, 2002, the Human Rights Committee under its interim procedures 96requested Canada “to
refrain from deportation until the Committee has 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.”97 The Committee’s request was renewed by a note in May,
2002.98

93
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” (2004) 23 S.C.L.R.(2d) 269 at 297-301.
94
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. Tsvi Kahana “The Notwithstanding Mechanism and Public
Discussion: Lessons from the Ignored Practice of Section 33 of the Charter”(2001) 44 Can. Public Admin. 255.
95
Ahani v. Canada [2002] 1 S.C.R. 76
96
Rule 86 of the 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.” RULES OF PROCEDURE OF THE
HUMAN RIGHTS COMMITTEE : . 24/04/2001. CCPR/C/3/Rev.6. (Basic Reference Document)
97
as quoted in Ahani v. Canada Communication 1051. 2002: Canada 15/06/2004. CCPR/C?80/D/1051/ 2002
at 1.2
98
ibid at 1.2

29
 Mr. Ahani did not rely solely on the United Nations Human Rights Committee own
procedures, but also started litigation in the Canadian courts to secure an injunction to stop
the deportation pending the Committee’s decision. The request for an injunction was
dismissed by a trial judge on 15 January 2002.99 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 28 January 2002 and in a divided 2:1 judgment released on 8 February, 2002
dismissed Ahani’s appeal, indicating that the Canadian courts would not issue a stay of the
deportation until the Human Rights Commission had considered the matter. 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.100
He concluded for the majority that if “Canada has not acted in good faith, and 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.”101 The dialogic and non-binding nature of the
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 Human Rights Committee’s views.

99
Ahani v. Canada [2002] O.J. no 81 (Sup.Ct.Justice).
100
Ahani v. Canada (2002) 58 O.R.(3d) 107 at para 32 (C.A.) 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.” Ibid at para 43.
101
at para 47

30
 Rosenberg J.A. in dissent would have allowed a domestic court to consider if the
balance of convenience favored granting an injunction restraining the deportation until the
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”.102 He stressed the importance of good faith in
implementing treaties. 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. He suggested that the government had to advance a good reason for
not waiting for the 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 Human Rights
Committee had considered his case.
Why exactly did the majority of the Court of Appeal not stay the deportation until
the 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.” 103 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 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 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

102
Ibid at para 92.

31
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
which place much 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.104
One problem with this approach is that it does not encourage transparence and debate about
the security measures that the state has taken. 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….the courts in their commendable effort to support the government’s defence
of this and other countries from terrorism must bear in mind [that]…’the history of
liberty has largely been the history of observance of procedural safeguards’”105
As Justice Rosenberg stressed what was stake was not a substantive enforcement of Ahani’s
rights either in domestic or international law but Ahani’s ability to make effective use of a
procedure that the executive had already voluntary committed itself to and extended to
people in Canada who believed that their rights under the ICCPR were being violated.

103
Audrey Macklin “The State of Law’s Borders and the Law of States’ Borders” in David Dyzenhaus The
Unity of Public Law (2004) at 196.
104
Ibid at para 48
105
ibid at paras 101, 113

32
 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 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 Canada106 was of any
relevance to the decision of whether the 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 United Nations Committee Against Torture which found Canada in breach because it
had defied interim measures and deported a person before the Committee had an
opportunity to consider this matter.107 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”108 and that “the evidence before this
court suggests that Canada has always abided by the Committee’s views”.109 In retrospect at
least, these views seen 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. 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 fashion110: either international law was binding or it was not. The fact that
international law and the views of the UN 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 has an absolute right to a stay but rather that the government must justify its

106
Ahani v. Canada supra at paras 64-66.
107
T.P.S. v. Canada Communication No. 99/1997 UN GAOR SS Sess Sup No. 44 UN Doc A/55/44 2000
108
Ahani v. Canada supra at para 46
109
Ibid at para 43

33
decision to proceed without the benefit of the Committee’s views on the matter.111 My
colleague Mayo Moran has identified a dialogic style in Justice Rosenberg’s reasoning and
she relates it an understanding of “influential authority” that “holds open the possibility that
non-binding norms and processes may also generate demands of respect that impose
constraints and burdens, including justificatory ones, on political authorities.” 112
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 Human Right Committee’s communication might have in
Canadian society. It seems to proceed on the assumption that while the Human Rights
Committee would not undo the Supreme Court’s previous decision on the matter, the
Committee’s communication could be relevant to how the Minister exercises discretion. It
might also be relevant to normative debate and discourse within civil society. To be sure,
Laskin J.A. for the majority also addressed some of the possible effects of the Human Rights
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.” 113 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
or not 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

110
Karen Knop “Here and There” supra
111
As my colleague 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 David Dyzenhaus ed. The Unity of Public Law (2004) at 407
112
Ibid at 411. On the concept of persuasive authority see Patrick Glenn “Persuasive Authority” (1987) 32
McGill L.J. 262.
113
Ahani v. Canada at para 42.

34
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 non-
binding 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 fourth 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 of 2002,
albeit subject to f a dissent by Justice L’Heureux-Dube being formally noted in the
record.114 It is significant that Justice L’Heureux-Dube the judge who has been at the
forefront of engaging in international law norms in Canadian law would have taken the
extremely rare step in Canada of having her dissent from a decision to grant leave to appeal
noted.115 A month after the Supreme Court refused to hear the appeal, Ahani was deported
to Iran. In August of 2002, the United Nations Human Rights Committee “expressed great
regret” 116at Ahani’s deportation to Canada’s representative to the United Nations in Geneva
and asked for a written explanation. This quasi-diplomatic move by the Committee followed
a dialogic method identified by the Chayes of demanding explanations rather than relying on
sanctions. Canada replied in part that neither the ICCPR or the Optional Protocol “provide
for interim measures requests and argues that such requests are recommendatory, rather than
binding.”117 Canada also stressed that the case had already been litigated under the Charter
all the way to the Supreme Court. The approach taken by Canada in responding to the
Human Rights Committee’s questions mirrors the approach taken by Laskin J.A. in stressing

114
Ahani v. Canada 2002 SCCA no. 62 (Q.L.)
115
See for example Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 and
L’Heureux-Dube “The Importance of Dialogue” supra
116
As quoted in Ahani v. Canada Communication No.1051/2002: Canada 15/06/2004 CCPR/C/80/D/1051/
2002 at 5.1
117
ibid at 5.3

35
the postivistic 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 Human
Rights 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
the Committee 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 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.”118
Canada’s attitudes towards 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 sights 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.
On the merits, the parties made conflicting submissions to the 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 the 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,

118
Ibid at 8.2. On the evolution of interim measures and criticisms of Canada’s record in not giving them
domestic effect see Joanna Harrington “Punting Terrorists, Assassins and Other Undesirables: Canada, the

36
in the future, subjected to torture….The State 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.”119 The
Committee also requested that its views be published by Canada and that Canada provide
information in 90 days “about the measures taken to give effect to the Committee’s
views.”120 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’s party on that State party’s territory”.121 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 similar 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 by the Ontario Court of Appeal in an
unrelated case that Iran was immune from a civil action arising out of alleged torture.122
The Ahani case suggests that Canadian courts are reluctant to recognize the
important role that the 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 non-binding nature of the international law in
question.123 Moreover, it narrowed the possibility for further meaningful dialogue between
the Human Rights Committee and Canadian courts, governments and society about the
treatment of rights. The eventual conclusions of the Human Rights Commission in the
Ahani case are inconsistent both with the Supreme Court of Canada’s decision that Ahani
had been treated fairly when the Minister determined he was not at a substantial risk of

Human Right Committee and Requests for Interim Means of Protection” (2003) 48 McGill L.J. 55.
119
Ibid at 12.
120
Ibid at 13
121
Ibid at 5.4
122
Bouzarri v. Iran June 30, 2004 (Ont.C.A.)
123
For decisions recognizing obligations in domestic law to wait under international or regional bodies hear
human rights complaints see Thomas v. Baptiste [2000] 2 A.C. 1 (P.C.); Lewis v. Jamaica [2000] 2 A.C. 288
(P.C.) discussed in Harrington “Punting Terrorists, Assasins and other Undesirables” supra.

37
torture and the Ontario Court of Appeal’s decision that Canada did not have an obligation to
wait until the 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 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 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 law124 and those who caution that it is important to distinguish
between international law that is formally binding on Canada and other forms of
international law that only have persuasive authority.125 I will not directly enter in this
debate, but rather suggest that the former more eclectic approach may accord 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.
Such a dialogic approach may have the advantage of expanding the judicial mind, but it
may also have a disadvantage of not enforcing the most basic rights as absolutes that should
never be the subject of limitation. The non-absolutist 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 re-thought 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.126 In a 1987 case,

124
Karen Knop “Here and There: International Law in Domestic Courts” (2000) 32 N.Y.U.J. Int. L. and Pol
501; David Dyzenhaus, Murray Hunt and Michael Taggart “The Principle of Legality in Administrative Law:
Internationalisation as Constitutionalization” (2001) 1 Oxford U. Commonwealth L.J. 5.. See also Reem Bahdi
“Globalization of Judgment: Transjudicialism and the Five Faces of International Law in Domestic Courts”
(2002) 34 Geo. Wash Int.L.Rev. 555.
125
Hon. Louis Lebel and Gloria Chao :The Rise of International Law in Canadian Constitutional Litigation:
Fugue or Fusion” (2002) 16 S.C.L.R.(2d) 23; Jutta Brunnee and Stephen Toope “A Hesitant Embrace: The
Application of International Law by Canadian Courts” (2002) Can Y.B. of Int. Law 3.
126
For an early example of a Canadian court referring to the United Nations Charter, as well as other
international sources as a justification for not enforcing a racially restrictive covenant see Re Drummond Wren

38
Chief Justice Brian Dickson commented that “the 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.”127 An interesting feature of the
Supreme Court’s use of international law is that it has informed the reasons for limiting
rights under s.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 Discrimination128 as a reason for
accepting that a criminal prohibition against the willful promotion of racial hatred was a
reasonable limit on freedom of expression. He also noted that the United Nations Human
Rights Committee has dismissed a complaint against Canada with respect to a prohibition of
hate speech.129 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.130 He concluded: “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.”131 A
recent study has shown that between 1998 and 2003, the Supreme Court made 27 references
to international instruments and institutions in its Charter decisions.132 In what follows, I
only examine two of those cases, albeit two cases that raise issues issues that are pressing in
a post 9/11 world: namely extradition to face the death penalty and deportation to face
torture.

[1945] 4 D.L.R. 674. This approach was subsequently rejected in Re Noble and Wolf [1948] 4 D.L.R. 123 affd
[1949] 4 D.L.R. 375 (Ont. C.A.). For a defence 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” (1985) 35 U.T.L.J. 219 at 240-244.
127
Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at 348. (in dissent but not on this point)
128
, Can. T.S. 1970 No. 28
129
R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 750 and 790-91.
130
Ibid at 753
131
ibid at 754-5.
132
Bijon Roy “An Empirical Analysis of Foreign Jurisprudence and International Instruments in Charter
Litigation” (2004) 62 U.T.Fac.L.Rev. 99 at 136ff.

39
 In 2001, the Supreme Court of Canada in a landmark case called United States of
America v. Burns and Rafay 133 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 penalty134. 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 Human Rights Committee.
135
Despite all this, the Supreme Court changed directions in Burns and Rafay. 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.”136 With respect to the latter, the Court relied on various forms of so-
called soft law such as resolutions of the United Nations Human Rights Commissions,
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. 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.
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.”137 The Court did not conclude that there was “an international law norm against the
death penalty, or against extradition to face the death penalty” but rather “significant

133
[2001] 1 S.C.R. 283
134
Kindler v. Canada (Minister of Justice) [1991] 2 S.C.R. 211; Reference re Ng [1991] 2 S.C.R. 858
135
Kindler v. Canada Communication No. 470/1991 Canada 18/11.93 CCPR/C/48/D/470/ 1991; Ng v. Canada
Communication No. 469/ 1991: Canada 07/01/94 CCPR/C/49/D/469/ 1991.
136
United States of America v. Burns supra at para 85.
137
Quoted at para 85

40
movement towards acceptance internationally of a principle of fundamental justice that
Canada has already adopted internally, namely the abolition of capital punishment.”138
The Court also followed a trend applauded by some139 and criticized by others140 of
blurring its diverse international law sources with those taken from comparative law,
broadly conceived to include 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.141
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 and Rafay 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,

138
Ibid at para 95
139
Knop “Here and There: International Law in Domestic Courts” ; Karen Knop “Reflections on Thomas
Franck, Race and Nationalism (1960): ‘General Principles of Law; and Situated Generality” (2003) 35 N.Y.U.
Journal of Int Law and Politics 437 at 464ff.
140
Brunee and Toope “A Hesitant Embrace”; Stephen Toope “The Uses of Metaphor: International Law and
the Supreme Court of Canada” (2001) 80 Can Bar Rev. 534 at 539.

41
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 Defence 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.”142 A globalized human rights culture will need a support
structure as much if not more than a domestic human rights culture.143 Groups with
international connections will 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 and Rafay 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. 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.144 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. 145 There may have been a connection between the Court’s institutional dialogic

141
United States of America v. Burns at para 92
142
Hon. Louis LeBel and Gloria Chao “The Rise of International law in Canadian Constitutional Litigation:
Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law” (2002) 16
S.C.L.R.(2d) 23 at 61.
143
On domestic support structures see Charles Epp The Rights Revolution: Lawyers, Activists and the Supreme
Court in Comparative Perspective (1998).
144
Note that the 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 Communication No. 829/1998**
145
For the classic articulation of a passive virtues approach that leaves questions undecided see Alexander
Bickel The Least Dangerous Branch 2nd ed (1985). For a recent defence of constitutional minimalism see Cass

42
stance, its willingness to use non-binding 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 and Rafay was decided before the terrorist attacks of 11 September 2001.
Those terrorist attacks, however, have increased calls for exceptions to be made from
general rules and an important task of law today is to decide how to deal with claims that
emergencies or other exceptional circumstances exist that 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.146 Another is to maintain that principles of legality require that
judges resist calls for exceptions.147 In what follows, I will briefly explore how dialogic
approaches to judicial review may respond to calls for exceptions from basic legal standards
in emergencies.
A few months after the September 11, the Supreme Court of Canada decided the
important case of Suresh v. Canada. The case involved a person associated with the Tamil
Tigers who had been determined by the Minister 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 and Rafay,
the Supreme Court issued an important and unanimous “by the Court” judgment. The
Court’s judgment in Suresh has many parallels with its judgement in Burns and Rafay. In
both cases, the Court drew on a broad range of international 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 and
Rafay.

Sunstein One Case at a Time (1999). See also Kent Roach “American Constitutional Theory for Canadians
(and the rest of the world” (2002) 52 U.T.L.J. 503.
146
Oren Gross “Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?” 112 Yale
L.J. 1011 (2003)
147
David Dyzenhaus “Intimidations of legality amid the Clash of Arms” 2 I Con 244 (2003)

43
 As in Burns and Rafay, 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":148
The Court emphasized that “a complete understanding of the Act and the Charter requires
consideration of the international perspective” 149 The Court was assisted because many of
the intervening amicus curaie, including the United Nations High Commissioner for
Refugees, as well as Amnesty International, pleaded international law principles. Such an
approach well demonstrates how domestic law is becoming more global and the 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 had “dominant status”150 over Article 33(2) of the Convention Relating to
the Status of Refugee and suggested that the international norm against deportation to torture
applied even to those found to be a danger to the state. This decision demonstrates how
domestic courts, especially those such as the Supreme Court of Canada which has a high
international profile and has 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 passage as Canada’s obligations under the Convention Against Torture. 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

148
Suresh v. Canada at para 42
149
ibid at para 59
150
ibid at para 73

44
refugee to face a risk of torture reflects the prevailing international norm.”151 This was
significantly stronger language than in Burns and Rafay 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 Constitution. At the end of the day, the Court articulated a general rule
that was remarkably similar to Burns and Rafay: 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": see Re B.C. Motor Vehicle Act, supra, at
p. 518; and New Brunswick (Minister of Health and Community Services) v. G.
(J.), [1999] 3 S.C.R. 46, at para. 99.) 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.152
This is an extraordinary paragraph and one that might not be expected from the Supreme
Court of a country which prides itself on respect for international law norms.153 As Jutta
Brunee and Stephen Toope have observed “the central problem with its analysis is that if

151
Ibid at para 72. It 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.” Ibid at para 72.
152
Ibid at para 78
153
The “By the Court” judgment was signed by Louise Arbour who resigned from the Court in June 2004 to
assume the position of UN High Commissioner for Human Rights

45
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.”154 The Court’s balancing
approach in Suresh v. Canada 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. One 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 the
passive virtues and constitutional minimalism to avoid constitutional judgment until
absolutely necessary.155 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 the person’s life or freedom would be threatened for reasons of race, religion,
nationality, membership in a particular social group or political opinion”.156 The relevant
exception is for those who there are reasonable grounds to believe are members of an
organization that there are reasonable grounds to believe will engage in terrorism or persons
who there are reasonable grounds to believe are or were members of such organizations or
have themselves engaged in terrorism.157 There is an additional requirement that the
Minister must also be “of the opinion that the person constitutes a danger to the security of
Canada”.158 The Court in Suresh seems to have concluded that the exception with respect to

154
Brunee and Toope “A Hesitant Embrace” supra. Drawing on the analysis of Professors Brunee 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 unreported judgment of Ontario Court of Appeal 30 June 2004 at para 65
155
Bickel The Least Dangerous Branch 2nd ed (1985); Sunstein One Case at a Time (1999)
156
Immigration and Refugee Protection Act S.C. 2001 c. 27, s.53(1)
157
ibid s.19(1)(e)(f).
158
ibid s.53(1)(b).

46
a “person’s life or freedom” was a sufficiently clear statement to provide legislative
authorization for deportation to torture. 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.159 The
Court could have justified a super clear statement rule that Canada was willing to violate
international law on 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”160 Such a remand to
Parliament on a subconstitutional clear statement basis would run the danger that Parliament
would follow the American Congress by attempting to narrow the definition of torture.161
Nevertheless, it would promote public debate about the issue, something that may not occur
should some lower Canadian court conclude sometimes 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 and Professors Brunee and Toope tend to subscribe this weakness in the
Court’s approach in a tendency in its jurisprudence to blur the hierarchies of international
law, the binding and the non-binding, 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 United Nations 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 “the Supreme Court’s holding in Suresh that
deportation of an individual where a substantial risk of torture had been found to exist was

159
On the role of clear statement rules see William Eskridge Dynamic Statutory Interpretation (1994) ch. 9.
160
IRPA s.3(3)(h)

47
not necessarily precluded in all circumstances.” The Committee then added that while
neither it or 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.”162
In my view, it would have been better had the Supreme Court interpreted s.7 of the
Charter in accordance with international law and announced an absolute ban on deportation
to face torture.163 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.164 Moreover, even an absolutist approach under
Canadian constitutional law 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 s.7 of the Charter and can never be justified under s.1 as a
reasonable limit on Charter rights, it would still be possible for Canada to enact a law
notwithstanding the legal and equality rights of the Charter that would authorize deportation
to torture. Professors Brunee and Toope have suggested that the s.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.”165 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.”166 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

161
Sanford Levinson “Torture in Iraq and the Rule of Law” Daedalus Summer 2003 5-9.
162
Ahani v. Canada supra at 10.10.
163
I have written elsewhere that “Torture 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
openthe disturbing possibility that deportation of a terrorist to face torture may in some cases be constitutional
and judicially approved.” K. Roach September 11: Consequences for Canada (2003) at 102.
164
Sanford Levinson “Torture in Iraq and the Rule of Law” Daedalus Summer 2003 5-9.
165
Jutta Brunee and Stephen Toope “A Hesitant Embrace: Baker and the Application of International Law by
Canadian Courts” in D. Dyzenhaus The Unity of Public Law (2004) at 369 n.56 380 n 109
166
David Dyzenhaus “Intimations of Legality Amid the Clash of Arms” (2003) 2 I.Con 244 at 268.

48
constitutes a standing invitation for courts to find that exceptions can be made from the most
basic of rights.
Would the requirement of the use of the override provide adequate protections 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 has never been used at the federal level. Although some provincial uses of the override
have escaped media and press scrutiny, it is unlikely that the federal use of the override to
authorize deportation to torture would not 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. 167 It is also possible that the 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.168 The use of the
override in Canada does not require the declaration of an emergency169. Unlike the
derogation power in the ICCPR, there is no obligation on Canada not to discriminate or
infringe international law when the override is used. The dangers of the use of the override
underlines the potential importance of international review of the use of the override by the
United Nations Human Rights Committee or the United Nations Committee Against
Torture.170 Both of these committees could decide that Canada had acted in a discriminatory
fashion and in breach of its international law obligation when it used the override.
The override in Canadian law can be a dangerous and it should not lightly be used.
There is no requirement that the override be subject to a supra-majority or that the
legislature re-visit its decision to use the override before it expired in five years time, as
recently suggested by Bruce Ackerman in his writings about states of emergency in

167
Ford v. Quebec supra
168
In Application re s.83.28 2004 SCC , 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.
169
In Canada, a declaration of an emergency would then trigger the statutory Emergencies Act supra which
involves Parliament in reviewing the declaration of emergency and contains restraints with respect to
discrimination.
170
Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1987)
1465 U.N.T.S. 85 art 22.

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constitutional law.171 Nevertheless, the override does has some virtues. It requires the
legislature to expressly state its desire to depart from rights and can be contrasted favorably
with an extra-legal model where people are tortured in violation of the law. It has the virtue
of requiring an ex ante legislative authorization, whereas the extra-legal approach, even if
practiced with 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.172 The use of the override also forces the
legislature to admit it is violating rights and thus avoids the danger of the Court’s opinion in
Suresh in suggesting that deportation to torture would not violate rights.173 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. 174
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 committees
of the United Nations have even had the opportunity to decide whether the deportation
would be in violation of Canada’s international obligations. Indeed, the 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

171
See Bruce Ackerman “The Emergency Constitution” supra for a proposal for escalating supra majority
requirements to authorize derogations from rights in times of emergency. 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 David Cole “The Priority of Morality: The Emergency
Constitution’s Blind Spot” (2004) 113 Yale L.J. 1753. See also Kim Lane Scheppele “Law in Time of
Emergency: States of Exception and the Temptations of 9/11” (2004) 6 Univ. Penn. J of Con Law 1001.
172
Oren Gross “Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?” (2003) 112
Yale L.J. 1011 at 1115.
173
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 post
facto ratification. See Oren Gross “Are Torture Warrants Warranted? Pragmatic Absolutism and Official
Disobedience” (2004) 88 Minn.L.Rev. 1481.
174
Paul Weiler “Rights and Judges in a Democracy: A New Canadian Version” (1984) 18 U.Mich.J of Law
Reform 51 at 82-86.

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Commission and other international bodies. 175 Respecting interim remedies staying
deportations or executions create 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.”176 In Bouzari 177which 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. To be sure, these decisions and the prospect that the domestic judiciary
may 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

175
For a prior finding that Canada had not given effect to interim measures ordered by the Committee against
Torture see T.P.S. v. Canada Communication No. 99/1997 UN GAOR SS Sess Sup No. 44 UN Doc A/55/44
2000. 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.”
Ibid at 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” 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. Ibid at 15.6, 16.1. For the leading International Court of Justice
decision stressing the importance of abiding by interim measures to stay executions see LeGrand Case 2001 40
ILM 1069.
176
Bouzara v, Iran at para 66
177
The Court of Appeal held that the State Immunity Act R.S.C. 1985 c.S-18 s.3 precluded a civil suit against
Iran alleging that the plaintiff had been tortured in that country.

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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 it has been justified in an exceptional case. Dialogue can then continue after the
exhaustion of domestic remedies at the international level because of Canada’s
commitments to CAT and the ICCPR including the ability to bring individual complaints to
the relevant UN committees. The two paths of dialogue, however, seem almost to be
hermetically sealed and international law dialogue is marginalized both by cases like Ahani
which suggest that Canada will not even wait for the international dialogue to be played out
before it deports a person to torture. 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 The 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.”178
Even after September 11, the United Kingdom government has accepted that it could never
deport a security threat to torture but has instead derogated from fair trial rights to authorize
the indefinite detention of such a security threat.179 The United Kingdom’s approach at least
has the virtue of respecting the international norm against torture and signaling that an
explicit and temporary derogation from rights has been made to allow the indefinite
detention of those who cannot be deported because of concerns about torture. 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.
VI. Conclusion
The Supreme Court of Canada’s decisions in Burns and Rafay and Suresh
demonstrate a willingness of Canadian judges to enter into a dialogue with a broad range of

178
“Ends, means and barbarity” The Economist 9 Jan. 2003.
179
Anti-terrorism act, 2001 Part IV.

52
international and comparative sources. The willingness of the Court in Burns and Rafay 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 non-binding 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
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 tortures. 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 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 hold
extradition to the death penalty or deportation to torture might 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 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 times. 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.

53
 In addition, the use of the override to authorize deportation to torture could also
usefully be reviewed by United Nations 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 emergencies and they 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. The United
Nations Human Rights Committee and the 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 respond to 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 United Nations Human Rights Committees and the regrettable
decision of the majority of the Ontario Court of Appeal in Ahani v. Canada to dismiss the
case for staying a deportation until the United Nations 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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