Quote:
Originally Posted by shreddog
No, No. NO. Again International laws DO NOT trump domestic laws in of themselves. The SCC has show this time and time again:
In R versus Hape, the Supreme Court of Canada confirmed that prohibitive rules of customary international law are part of domestic law, so long as they do not conflict with existing Canadian legislation.
In Baker v Canada, Justice L’Heureux-Dube wrote for the majority: “International treaties and conventions are not part of Canadian law unless they have been implemented by Canadian statute."
In Suresh v Canada, the SCC found that departure from international law to which Canada is a signatory is permissible regarding border control and deportation.
Now I am not a lawyer, however a quick review of SCC decisions clearly shows that while ratified International law needs to be considered, where it contravenes existing Canadian law, Canadian law rules.
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I think that
Suresh, which supports your narrow claim regarding supremacy of national law over international law
that has not been both ratified by Parliament, and incorporated into Canadian law, actually tears your whole argument apart.
Now, I am not a lawyer either, so I am not entirely confident in my reading over yours, but my understanding is that Canadian law does not allow for the deportation of someone who is at risk of torture unless it can be shown that they represent a serious risk to Canadian national security. As I understand it,
Suresh resulted in the Court forcing the government to give a refugee hearing to someone that had been denied one due to claimed links to terrorism. So Canada could not deport a refugee claimant without proving a security risk until their claim was reviweed and rejected. As I understand it, this decision was reached because the Refugees Convention has been both ratified and incorporated into Canadian law.
Given the result in
Suresh, I cannot imagine that Canadian law would allow for the deportation of any refugee claimant because of illegal entry. If anything, I could easily see the First Safe Country Agreement being disqualified on the grounds that the US is no longer a safe country upholding it's obligations under international law to protect legitimate refugees. That agreement is, after all, trumped by Canadian Law.