provincial and territorial governments.^88 The Government of Canada’s “Explanatory
Memorandum on the CRPD” states that upon ratification the CRPD would not form part
of Canadian domestic law but may have an interpretive influence in cases brought
before Canadian courts.^89 Rob Nicholson, Minister of Justice and Attorney General of
Canada, stated that upon ratification, the CRPD will complement domestic laws.^90 This
approach signals Canada’s significant position that the CRPD was ratified on the basis
that existing Canadian law and policy conforms to and complies with the treaty.
It is important to note that even when Conventions are not incorporated into domestic
legislation, they can be recognized as incorporated by implication into the Charter
and/or relevant federal or provincial legislation. This is based upon a common law
presumption that courts ought to comply with Canada’s international obligations at the
provincial and federal levels.^91 In R v Hape, the Supreme Court of Canada held that
the ratification of an international convention reflects an important limit on state
sovereignty and Conventions should be applied where ambiguity exists in Canadian
law.^92 Although the Court in Hape stopped short of giving full effect to Canada’s
international obligations, it is clear that the Court accepted the principle of incorporation
by implication.
The principle of incorporation by implication can be used when interpreting Canadian or
provincial law. Support for the principle can be found in the strong foundation that was
established by the Canadian delegation in the negotiation process leading up to the
enactment of the CRPD; the approach and support of the federal and provincial
governments to ratification; and, Canada’s position that existing Canadian law and
policy complies with our CRPD obligations. Greater acceptance by Canadian courts of
(^88) Canada, “Explanatory Memorandum on the United Nations Convention on the Rights of Persons with
Disabilities”, Tabled before the House of Commons, Parliament of Canada (December 2009), online:
Canadian Human Rights Commission <http://www.chrc 89 -ccdp.ca/pdf/memorandum_ratification_note.pdf>.
90 Ibid.^
Foreign Affairs and International Trade Canada, News Release, No. 99, “Canada Ratifies UN
Convention on the Rights of Persons with Disabilities” (11 March 2010) online: Foreign Affairs and
International Trade Canada <http://www.international.gc.ca/media/aff/news-
communiques/2010/99.aspx?lang=eng >. 91
92 Daniels v White, [1968] SCR 517 at 539-540, 2 DLR (3d) 1 [Daniels].
R v Hape, [2007] 2 SCR 292 [2007] 2 SCR 292 [Hape].