Canada: Protecting Rights in a ‘Worldwide Rights Culture’. An Empirical Study of the Use of Foreign Precedents by the Supreme Court of Canada (1982–2010)

Abstract

Since the adoption of the 1982 Charter of Rights and Freedoms (Charter), the Supreme Court of Canada (SCC or Court) has established itself as one of the most progressive constitutional judges worldwide. Expressly endowing the Court with powers of judicial review for the protection of constitutionally-entrenched rights, this constitutional Bill of Rights changed the Court’s role and hermeneutic approach, in a system rooted in the British tradition of parliamentary supremacy. The Charter - inspired by the United States Bill of Rights and several other international human rights documents - fostered the openness to foreign legal sources already typical of a common law high court and prompted the Court to refer to an even broader range of foreign jurisdictions. This Chapter presents an empirical analysis of the Court’s decisions issued between 1982 and 2010. My research shows that the SCC, in deciding constitutional cases and interpreting the newly enacted Charter has consistently considered other jurisdictions. My goal is to achieve a better understanding of the decision-making process informing the Court’s activity in today’s globalised legal context and of the role played by the Charter in this process. Referring to cases decided by - among others - American, Australian, British and various European courts, the SCC has, over the years, established its Charter jurisprudence by drawing critical inspiration from foreign judicial decisions and adapting their legal principles to the unique features of Canada’s legal system and society. Section II of the Chapter provides an overview of Canada’s constitutional and institutional history since the country’s foundation as a member of the British Commonwealth. Section III focuses on the empirical study, its methodology, qualitative and quantitative results, detailing - with tables and graphs - the Court’s use of foreign precedents in constitutional cases, both in general and with specific regard to United States precedents. It also addresses the role played by section 1 of the Charter in promoting such citations. Finally, in Section IV conclusions are drawn in order to assess the extent, quality and future of the SCC’s attitude toward citations of foreign precedents.