Keynote Address: The Use of Foreign Law—A Comparative View of Canada and the United States

Abstract

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. 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, 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, 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, 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 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 more than two centuries. Why would Canadian judges, confronted with these issues, not look to the United States? (7) Yet for all their willingness to consult foreign sources, Canadian courts have made clear that they cannot be implemented blindly. Chief Justice Dickson wrote that while it [is] helpful to summarize the American position and determine the extent to which should influence the ... analysis ... in this appeal, (8) we must examine American constitutional law with a critical eye. Canada and the United States are not alike in every way, nor have the documents entrenching human rights in our two countries arisen in the same context. It is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada's constitutional vision depart from that endorsed in the United States. (9) This, then, is the Canadian experience--one that has, from the beginning, accepted foreign law as capable of providing useful insights and perspectives, while increasingly forging its own unique jurisprudential brand* United States' experience has been very different* United States, like Canada, built its legal system on the foundation of the English common law. But over the centuries, the distinct U.S. jurisprudential experience has morphed into the inference, albeit with some exceptions, (10) that foreign cases should not be cited in U. …