December 2nd, 2008
In the age of globalization, national courts are increasingly referring to foreign jurisprudence and international law in their decision making. However, the use of foreign jurisprudence by domestic judges is not without controversy. Proponents argue that foreign jurisprudence can help with the development and interpretation of domestic law. Opponents purport that reliance on foreign jurisprudence undermines local law and customs. The decisions of the Supreme Court of Canada provide a fascinating forum to explore this debate. Given the Court’s ability to strike down legislation with the Charter, the use of foreign jurisprudence by the Court may have direct effects on the lifespan of domestic laws.
In theory, courts use foreign law for a number of reasons. Often, a court will turn to foreign law in order to fill gaps in domestic law, especially if domestic law does not provide satisfactory answers to a particular legal question. Moreover, in some cases, judges may encounter a novel legal question for which domestic jurisprudence is entirely unfit to answer. Lastly, principles and opinions found in foreign judgments can be used to enhance and sharpen a judge’s legal reasoning. However, the use of foreign law is not free from controversy. One of the most basic criticisms is that foreign law does not accurately reflect the national experience and the national legal culture. Other opponents state that the use of foreign law is simply an act of “cherry picking” whereby judges choose the laws that help support their own positions. Furthermore, the use of foreign law has also been viewed as one of the tactics of judicial activism.
In 2004, an empirical study was conducted by Bijon Roy to explore the Supreme Court of Canada’s use of foreign jurisprudence in Charter cases from 1998-2003. 402 cases were studied. It was discovered that 34 of these cases made reference to foreign jurisprudence or international instruments. Within these cases themselves, there were a total of 87 individual references, including 60 references to foreign jurisprudence and 27 references to international instruments and institutions. The study found that of the 87 individual references, 29 references were made to highlight a foreign principle, 16 references were made in order to distinguish a domestic law or principle from its foreign counterpart, and 41 (almost half of all references) were made as a means to support the judge’s position. More surprisingly, in one case, the Supreme Court of Canada actually followed foreign jurisprudence. In this case, United Food and Commercial Workers, Local 1518 (UFCW) v. KMart Canada Ltd,  2 S.C.R. 1083, the Supreme Court had before it a labour dispute between a union and a corporate employer. The point of contention was whether the Canadian Labour Relations Code’s definition of picketing – which included the act of leafleting – was a violation of the right of freedom of expression as guaranteed by the Charter. Here the Supreme Court of Canada adopted the position of the United States Supreme Court that conventional picketing can and should be distinguished from leafleting. In doing so, it “referred to foreign jurisprudence as the basis for its own position, rather than as corroboration or support for reasoning flowing naturally from existing domestic jurisprudence,” according to Roy.
Additionally, the Court can summon foreign law to invalidate government legislation even if doing so means reversing a line of jurisprudence that it itself had developed. A recent case in point is Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,  2 S.C.R. 391, where the Supreme Court declared unconstitutional the Health and Social Services Delivery Improvement Act, citing that it was a violation of freedom of association under the Charter. The Supreme Court cast the right to collectively bargain (which is traditionally understood as an economic right and not a fundamental human right) as one of the rights guaranteed under freedom of association. In doing so, it went against twenty years of legal precedent that excluded collective bargaining from Charter protection.
The Court utilized international law as one of its pillars of support. In making its decision the Supreme Court made references to the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the International Labour Organization’s (ILO’s) Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize. By using the above documents, the Supreme Court characterized the right to collectively bargain as a fundamental right, noting, for example, that international treaties such as the International Covenant on Civil and Political Rights state “[e]veryone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.” (s.22(1)) The use of international treaties in this way helped the Supreme Court expand the scope of freedom of association in a way that invalidated government legislation.
Against the backdrop of the above examples, the implications of the Supreme Court’s use of foreign law appear to be twofold. Within a legal-political system that is widely seen as displaying the characteristics of judicial supremacy, the use of foreign law can, in some cases, aid the activist agenda of Canadian judges. It would be rare to find a better example of judicial activism than a case where a court invalidates a government law while simultaneously overturning a line of jurisprudence that it itself had developed. This is exactly what had occurred in the BC Health Services case, and as evidenced by the Court’s reasoning, foreign law played an important role its decision. Although it is impossible to read the minds of judges, such instances suggest that Canadian judges may be engaged in the “cherry picking” of foreign law as a way to counter and overturn domestic precedents. As a result, critics may be right in their proposition that the Supreme Court is increasingly adopting the role of policymaker.
The second implication carries a more positive connotation. Leaving aside value judgments on the merits of judicial activism, the Canadian courts have displayed a great openness in adopting new principles from foreign sources. Canadian society has always championed itself as being tolerant and open to foreign ideas, and it would follow that its legal institution would want to embrace this spirit as well. In an increasingly globalized world where local law often comes in contact with foreign and international law, courts have two options. One option is to close ranks and concentrate only on the national experience. The second option is to readily accept the transfer of legal ideas and the opportunities of transnational legal discourse. The Supreme Court of Canada appears to have adopted the latter option. This may, in turn, produce better or fairer legal solutions for the Canadian public. Whether the Court can achieve this without blatantly playing the role of policymaker remains to be seen.[filed: Health Services (2007) Labour and Employment]