Constitutional, Remedial and International Dialogues About Rights: The Canadian Experience

Abstract

This paper examines the Canadian experience with constitutional, remedial and international dialogues about rights. The first part examines how the Canadian Charter of Rights and Freedoms promotes dialogue between courts and legislatures about rights through limitation and derogation clauses in part inspired from international rights protection instruments. The second part examines how Canadian courts have engaged governments in a dialogue about appropriate remedies and how the South African Constitution has borrowed from the Canadian experience. Analogies are also drawn between complex remedies at domestic and international levels. The Canadian experience with individual complaints under the First Optional Protocol of the International Covenant on Civil and Political Rights is examined in the third part of the paper with special attention to how it relates to interim measures by the UN Human Rights Committee. The fourth part of the paper examines how Canadian courts have made dialogic use of various international level authorities but also questions whether a dialogic approach is robust enough to protect rights in a post-September 11 state of emergency.