The use of foreign law - a comparative view of Canada and the United States.

Author:McLachlin, Beverley
Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law

This address was delivered by Beverley McLachlin, P.C., Chief Justice of Canada, at 5:30 p.m. on Friday, March 26, 2010.

Today, we have in our vocabulary a new word, loved by some, embraced by others. That word is "globalization." The great debate over this phenomenon usually focuses on economic and social effects. But globalization has also had an impact on the law. As Justice Bertha Wilson, a former colleague at the Supreme Court of Canada, explained, "more and more courts, particularly within the common law world, are looking to the judgments of other jurisdictions." (1) Of course, the exchange of legal knowledge across state boundaries is nothing new. (2) What is new is the speed and the amount of jurisprudential exchange. Some welcome this exchange as enriching. Others fear that the bombardment, if left unchecked, may erode the fundamental values upon which their nation's legal systems rest. Focusing on the Canadian and American approaches, it is this controversy that I wish to address.

Allow me to begin with Canada. In their early history, Canadian courts were on the receiving end of foreign law. In fact, their job was largely to apply foreign law, albeit in the Canadian context. But even when Canada achieved full independence and British law was no longer binding, it remained a strong influence on the development of Canadian law, with courts making frequent references to British jurisprudence. (3)

Nevertheless, quietly and case by case, Canadian courts were developing their own law. Increasingly, reliance was placed on Canadian cases. Still, the old appetite for foreign law, while abated, remained robust, with approximately one out of every three citations being to a foreign source. (4) Interest in foreign jurisprudence was renewed once again after the enactment of the Canadian Charter of Rights and Freedoms in 1982. In the first ten years of Charter appeals, the use of American authorities doubled, from three percent to almost seven percent. (5) In its very first Charter case, the Supreme Court noted the importance of the American experience interpreting the Bill of Rights: "The courts in the United States have had almost two hundred years experience at this task and it is of more than passing interest to those concerned with these new developments in Canada to study the experience of the United States courts." (6)

And with good reason. American courts had been wrestling with issues like freedom of speech, liberty, and equality for...

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