Comments on: The Use of Foreign Jurisprudence by the Supreme Court http://www.thecourt.ca/2008/12/02/714/ The Court is the online resource for data and debate about the Supreme Court of Canada. Thu, 09 Feb 2012 12:36:43 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Kathryn http://www.thecourt.ca/2008/12/02/714/comment-page-1/#comment-109676 Kathryn Thu, 04 Dec 2008 00:23:55 +0000 http://www.thecourt.ca/2008/12/02/714/#comment-109676 Thanks to thecourt.ca for its usual interesting and informative insight. I wanted to point out, though, an important distinction between foreign jurisprudence or foreign law, on the one hand, and international law, on the other. I think it is one thing for the SCC to use foreign jurisprudence such as following the US precedent in <i>United Food and Commercial Workers</i>. As the post says, this might not reflect Canadian experience, or may be cherry-picking, or may be 'judicial activism'. I think it is different, however, when the SCC uses international law such as the ICCPR, the ICESCR or the ILO Convention No. 89 to inform its judgments when these are treaties to which Canada is a Party. As a Party to these agreements, Canada is legally bound by their provisions and must implement their obligations domestically. If the SCC is understood as one branch of our government then it too has a role to play in abiding by the country's international commitments. It would seem to me, then, to be misleading to characterize the SCC's reasoning in the <i>BC Health Services</i> case as akin to that in <i>United Food and Commercial Workers</i> when the international conventions are binding on the country while the jurisprudence of other jurisdictions is not. In a sense, international treaties to which Canada is a Party are not 'foreign' law at all but very much the familiar and the domestic. Thanks to thecourt.ca for its usual interesting and informative insight. I wanted to point out, though, an important distinction between foreign jurisprudence or foreign law, on the one hand, and international law, on the other. I think it is one thing for the SCC to use foreign jurisprudence such as following the US precedent in United Food and Commercial Workers. As the post says, this might not reflect Canadian experience, or may be cherry-picking, or may be ‘judicial activism’. I think it is different, however, when the SCC uses international law such as the ICCPR, the ICESCR or the ILO Convention No. 89 to inform its judgments when these are treaties to which Canada is a Party.

As a Party to these agreements, Canada is legally bound by their provisions and must implement their obligations domestically. If the SCC is understood as one branch of our government then it too has a role to play in abiding by the country’s international commitments.

It would seem to me, then, to be misleading to characterize the SCC’s reasoning in the BC Health Services case as akin to that in United Food and Commercial Workers when the international conventions are binding on the country while the jurisprudence of other jurisdictions is not.

In a sense, international treaties to which Canada is a Party are not ‘foreign’ law at all but very much the familiar and the domestic.

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