The Supreme Court of Canada has said that the Charter should be interpreted according to international human rights treaties to which we are a party. Does this presumption narrow the scope of s 33, the #notwithstandingclause? Thread. [1/14]
Art 4(1) of the International Covenant on Civil and Political Rights 1966 permits states to derogate from rights protected by it, but only “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed”. [2/14] 
The derogation can only be “to the extent strictly required by the exigencies of the situation”, not inconsistent with the state’s other international legal obligations and with no discrimination based on race, colour, sex, language, religion or social origin. [3/14]
Also, some civil and political rights are non-derogable at all times, including the right to life, the right to be free from torture, and the right to freedom of thought, conscience and religion (art. 4(2)). Freedom of expression is derogable. [4/14]
When a state derogates from an ICCPR right, it must immediately inform the other states parties, through the UN Secretary-General, that it has done so and why (art 4(3)). [5/14]
So under the ICCPR, states can only derogate from certain rights, at certain urgent times, and with notice to other ICCPR states (of whom there are 168). [6/14]
The SCC has said that “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified”, e.g., Divito (pictured), Health Services, Ktunaxa, Badesha. [7/14]
Section 33 is part of the Charter. So would courts interpret the #notwithstandingclause to apply only where permitted by the derogation rules of the ICCPR? [8/14]
No court has ever said that. The argument against reading s 33 to conform to ICCPR art 4 is that the presumption of conformity is rebuttable, and s 33 does not say its use is limited to times of public emergency etc. [9/14]
Interestingly, however, the Government of Canada has told the UN Human Rights Committee that s 33 must be exercised in conformity with international law. [10/14]
In Ballantyne, Davidson and McIntyre v Canada (1993), Canada told the Committee that s 33 is not necessarily contrary to the ICCPR because the SCC says international law should govern the Charter’s interpretation. [11/14]
See also Singer v Canada (1994). [12/14]
In fact as early as 1984, when the Charter was new, Canada told the Human Rights Committee “any resort to section 33 would have to be compatible with Canada’s international obligations” (UN doc. CCPR/C/SR.559 at [28]). [13/14]
So the argument is there to be made. Whether a court would accept it, who knows? But if s 33 isn't limited in this way, it is probably contrary to international law. [14/14]
