SFL and the Persuasive Power of International Law in Charter Claims

The Supreme Court’s recent decision in Saskatchewan Federation of Labour v Saskatchewan (“SFL”) will be remembered primarily for its historic conclusion that freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms includes a protection for workers’ right to strike.

But the comprehensive reasons of the majority also offer strong confirmation of the persuasive role that international law and Canada’s international commitments play when interpreting Charter rights.

International Law and the Charter

In determining that the freedom of association protects the right to strike, the Supreme Court gave significant, substantive consideration to the development of the right to strike within international law.

The Court concluded that there is an emerging international consensus that meaningful collective bargaining requires a right to strike and that this consensus, when combined with similar historical and legal developments, required recognition of the right to strike within the Charter.

That international law plays some role in interpreting Charter rights comes as no surprise. The Supreme Court has long recognized that Charter rights should be interpreted consistently with Canada’s international human rights obligations. As the often-cited passage by former Chief Justice Dickson recognized:

…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.

Without more specific guidance from the Supreme Court, however, the use of international instruments as interpretive tools has often been stalled by practical questions as to how they may be used and by significant resistance from the provincial and federal governments to their use in the first place.

In fact, before the courts in SFL, many of the government interveners argued that little weight should be given to the status of the right to strike internationally. They argued that the Charter does not incorporate Canada’s international commitments and that there is no obligation to constitutionally protect rights recognized in international law. They also suggested that courts should not rely on international instruments to which Canada is not a party.

Impact of the Supreme Court’s Decision

In its reasons, the Court soundly rejected all arguments to limit the persuasiveness or relevance of international law. Instead, the Court confirmed that international law plays a crucial role in interpreting rights under the Charter.

The Court’s reasons also offer a number of broader lessons about the use of international law going forward.

• First, international law, particularly in areas of growing international consensus, can and should play a central role in informing the evolving content of rights under the Charter. Developments in international law over time are, consequently, relevant when assessing whether to recognize rights in Canada. The Saskatchewan Court of Appeal had previously rejected this position.
• Second, courts should give consideration to a wide range of international instruments, even those which do not formally bind Canada. The Supreme Court looked beyond the well-established sources of Canadian legal obligations, such as international treaties which Canada has ratified, and relied on other authorities whose potential interpretive power had previously been unclear, including decisions of the International Labour Organization’s Committee on Freedom of Association, decisions made under the European Convention on Human Rights, and labour legislation and decisions from other countries.
• Finally, the Court recognized that the expertise of certain specialized international bodies will provide their decisions with “considerable persuasive weight.” The Court made this statement particularly with regards to the ILO’s Committee on Freedom of Association, suggesting that its decisions will continue to guide future labour cases under section 2(d).

Conclusion

While some questions may remain in terms of how to practically apply international instruments as interpretive aids, the above principles – and the Supreme Court’s unequivocal support for their application – provide clear and decisive confirmation that international law considerations will form an essential part of Charter claims going forward.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]