The Supreme Court of Canada’s Transnational Judicial Communication on Human Rights (1982–2014)

Abstract

__Introduction__ Since the adoption of the 1982 Canadian Charter of Rights and Freedoms (Charter), the Supreme Court of Canada (SCC or Court) has come to be regarded as one of the most progressive constitutional judiciaries worldwide. The Court today appears to be at the forefront of judicial globalisation when it comes to its transnational connections with other courts. In a system that originally mirrored the British tradition of legislative supremacy, the Charter, enacted in 1982 as a constitutional declaration of rights, has markedly changed the Court’s role and approach to judicial interpretation. It has vested the Court with powers of constitutional review with a view to protect constitutionally entrenched rights. A significant outcome of the Charter’s enactment, in part also due to the influence of the US Bill of Rights and several international human rights documents, was to increase the openness to foreign legal sources of the Court called to interpret it. As will be shown in this chapter, this openness is discernible in the SCC’s case law, which regularly contains citations of judgments handed down by courts in foreign jurisdictions. However, it remains unclear to what extent this trend of judicial globalisation has actually affected court practices in Canada. Normative frameworks for judicial decision-making, including the Canadian one, generally allow judges considerable discretion regarding the legal sources which they are allowed to consider. Therefore, foreign legal materials may play a role in both the heuristic phase of judicial deliberations and in legitimising a decision through the Canadian courts’ reasoning. The question thus arises: In which circumstances and with what effect do judges use foreign legal sources, particularly the case law of foreign courts? Answering this question may prove important in light of the limitations and risks allegedly associated with the transnational exchange of ideas and experiences between courts, such as criticism of the choice of the cited jurisdictions (a contentious practice usually referred to as cherry-picking), the supposed increase in judicial activism or the alleged harm to the principle of sovereignty. This chapter investigates the engagement of the SCC in transnational judicial communication practices while exercising its adjudicatory functions in cases dealing with human rights. It systematically analyses the extent, method, purpose and effects of this engagement.