International human rights norms constitute persuasive sources for constitutional and statutory interpretation in Canada.

The Constitution Act, 1982^[1] including the Canadian Charter of Rights and Freedoms,^[2] [the Charter], domestic laws and regulations must, wherever possible, be interpreted by courts, governments and decision-makers, in a manner consistent with international human rights law.

Justice L’Heureux-Dubé noted for the majority of the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.”^[3]  Justice L’Heureux-Dubé cited Ruth Sullivan’s Driedger on the Construction of Statutes in support of this interpretive principle:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional.  These constitute a part of the legal context in which legislation is enacted and read.  In so far as possible, therefore, interpretations that reflect these values and principles are preferred.^[4]

The Charter is the preeminent guarantee of human rights in Canada and, thus, the primary vehicle for the implementation of Canada’s international human rights obligations.^[5]

Chief Justice Dickson affirmed for the majority of the Court in Slaight Communications v Davidson^[6] that: “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”^[7]   

Social and economic rights are also part of the unified international human rights landscape within which Charter interpretation must be situated.  In Slaight Communications,^[8] the Court pointed to Canada’s ratification of the ICESCR as evidence that the right to work must be considered a fundamental human right, to be balanced in that case against the right to freedom of expression explicitly guaranteed under the Charter.^[9]  In relying on the ICESCR, the majority endorsed Chief Justice Dickson’s statement in the Alberta Reference 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.^[10]

Justice L’Heureux-Dubé, writing for the majority of the Court in Baker, stated that international law is “a critical influence on the interpretation of the scope of the rights included in the Charter.”^[11]  In R v Ewanchuk, Justice L’Heureux-Dubé further declared that “[o]ur Charter is the primary vehicle through which international human rights achieve a domestic effect.  In particular, s. 15…and s. 7…embody the notion of respect of human dignity and integrity.”^[12]

The Constitution Act, 1982 and the Charter provide an important framework for the development and implementation of rights-based anti-poverty and housing strategies in Ontario, through which international human rights to adequate housing and an adequate standard of living may be subject to effective legal remedies under domestic law.

The following are the most important areas of domestic jurisprudence for social rights practice in Ontario.

1.     Right to Public Services of Reasonable Quality – S. 36
2.     Right to substantive equality (non-discrimination)
3.     Right to life, liberty and security of the person
4.     Reasonableness