A "COMPARATIVE CONSTITUTIONAL POWERHOUSE" IN ACTION: AN EMPIRICAL STUDY OF THE SUPREME COURT OF CANADA'S USE OF COMPARATIVE LAW BASED ON INTERVIEWS AND CASE CITATIONS.

AuthorBodnar, Eszter

Courts addressing constitutional issues are operating in an international space: they are influenced by fellow courts around the world, and they attentively follow the state of the law in different jurisdictions. This process has increased dramatically in recent decades. This due, on the one hand, to globalization and developments in international travel, communications, and technology, and on the other, due to the proliferation of new constitutions, constitutional systems that support judicial review, and new constitutional issues in general. (1) The level of openness to the practice of comparative argument is significantly different among the apex and constitutional courts of the world. As a leader in the importation and exportation of constitutional ideas, the Supreme Court of Canada (SCC) has a high level of openness and is regarded as a "comparative constitutional powerhouse." (2)

This paper intends to take a closer look at these "powerhouse" features, moving beyond the anecdotal to provide a comprehensive overview--especially of the last 20 years of the Court's practices and analyses--by using quantitative and qualitative data. While there is an understanding among scholars that courts use comparative law in their reasoning in unpredictable ways (often "cherry-picking"), this paper's thesis is that, by using empirical research methods, it is possible to identify trends that explain the factors influencing judges when they make comparative arguments.

To identify patterns in the case law of the Court, the paper transitions from abstract theories to concrete data and then draws conclusions from them. Part 1 seeks to place the SCC within the network of courts addressing constitutional issues and offers a general overview of the Court's participation in international constitutional dialogue. Turning to a more specific approach, Part 2 describes the dual methodology of this project: analysis of the Court's case law and interviews with former judges and law clerks. Part 2 also discusses the justifications and advantages of these research methods, along with their challenges and limitations. Using data from the case law analysis and research interviews, parts 3 and 4 provide a complex overview of the use of comparative law at the SCC. While Part 3 primarily presents quantitative data, Part 4, based also on previous theoretical and empirical works, looks further and enumerates the factors that can influence when, how, and by whom comparative arguments are used. The paper's conclusion reflects on the broader question of whether the judicial practice of referencing foreign law can be improved.

  1. THE SCC IN THE GLOBAL CONSTITUTIONAL DIALOGUE

    In their volume, The Use of Foreign Precedents by Constitutional Judges, Tania Groppi and Marie-Claire Ponthoreau divide the world's courts that exercise constitutional review into two groups. Some regularly cite foreign court decisions and compare foreign constitutional and statutory texts in their judgments--for example, the Supreme Court of Israel, the Australian High Court, and the Supreme Court of Ireland. Others only include foreign citations in their judgments sporadically--for example, the Supreme Court of Japan and the German Federal Constitutional Court. (3) The SCC not only belongs to the first group, among apex courts internationally, it is one of the most prolific users of comparative law. (4)

    The extensive use of comparative law by the SCC, (5) notwithstanding the several institutional and personal factors that are analyzed in part 4, is based on two important precepts: first, the legitimacy of the practice is undisputed, and second, the Court is open to making such comparisons, viewing the practice positively.

    The constitutional and political debates about the use of foreign law in the reasoning of the Supreme Court of the United States (SCOTUS) are well known and well researched. (6) However, the same debates and the concept of exceptionalism have never garnered a similar amount of attention in Canada. As Hirschl stated, "judicial reference to foreign materials has never been a contested practice", and it has been "met with considerably less resistance and has seldom been seriously contested within Canada's legal academia, let alone in the popular media or the broader political sphere." (7) Indeed, the use of foreign law has been carefully justified by emphasizing its persuasive nature and the continued respect of domestic judicial traditions. As Chief Justice McLachlin wrote,

    [T]he use of foreign law does not prevent national courts from expressing their own unique national character--a character based on the particular country's history, values, and needs. Independent courts working within the rule of law will develop distinctive legal approaches and doctrines that respond to the traditions and needs of their countries. (8) Justice La Forest warned against the slavish following of American precedents in the R v Rahey decision:

    Why we should follow American precedents, when these have led judges to avoid redressing unreasonable delay and scholars to scurry to find ways of limiting the application of the only remedy there, I fail to understand, particularly when the [Canadian] Charter expressly provides a flexible remedy to avoid these consequences.... Canadian legal thought has at many points in the past deferred to that of the British; the Charter will be no sign of our national maturity if it simply becomes an excuse for adopting another intellectual mentor. American jurisprudence, like the British, must be viewed as a tool, not as a master. (9) Justices of the SCC not only accept the legitimacy of the use of foreign law, they also actively practice comparative analysis. As stated earlier, the Court is receptive to the practice and approaches it favorably. (10) Indeed, several justices have emphasized the importance of comparative analysis. Justice L'Heureux-Dube wrote that "more and more courts, particularly within the common law world, are looking to the judgments of other jurisdictions". (11) According to Justice L'Heureux-Dube, developments in technology, the explosion of information, and the upturn in social issues have resulted in courts looking to the judgments of other jurisdictions, particularly when making decisions on human rights matters. The process of international influence has changed from reception to dialogue, as mutual respect and dialogue are now fostered among appellate courts, and appellate judges no longer just simply receive appeals. (12) Chief Justice McLachlin wrote that "the thinking and experience of other nations on constitutional issues may provide a perspective which enriches our thinking about our domestic constitutional guarantees." (13)

    It is outside the analyzed time period of the article, but I should point out that in a 2020 case, the first signs of a debate on the relevance of comparative arguments appeared in the reasoning of the SCC. While the main disagreement is on the use of textual versus contextual interpretation of the Charter, (14) the Quebec (AG) v 9147-0732 Quebec Inc contains arguments for and against the use of international and comparative law. (15) Abella J argues for the need of a contextual analysis that included the taking into account of international and comparative sources. (16) She emphasizes the persuasive nature of these arguments and warns that "narrowing our approach by putting unnecessary barriers in the way of access to international and comparative sources gratuitously threatens to undermine Canada's leading voice internationally in constitutional adjudication, a role based on its willingness to go wide and deep in the global search for the best intellectual resources it can find". (17) On the opposite side, writing for the majority, Justices Brown and Rowe "find it necessary to write separately in order to assert the proper place in constitutional interpretation of foreign and international sources". (18) In their view, Justice Abella failed to explain in what way the foreign and international sources "are instructive, how they are being used, or why the particular sources are being relied on. Indeed, she considers various sources of international and comparative law, and gives them unstated, but seemingly equal, interpretive weight." (19) They do not refuse the use of comparative materials, just demand to treat them as persuasive rather than obligatory arguments. (20) They also emphasize that "if these sources are to be accorded a persuasive character, it must be done by way of a coherent and consistent methodology. Coherence and consistency in a court's reasons are important, because they are critical means by which it may account to the public for the manner in which it exercises its powers." (21) We shall see in the next year whether this decision was an isolated case or the opening scene of a longer debate on the use of comparative law.

    Finally, while this paper focuses on the "import" of constitutional ideas (Canada is a world leader in this regard), it is noteworthy that Canada is also an "exporter". The Canadian constitutional system is admired abroad for its success, and it serves as a model for other countries. (22) Being an importer and exporter are closely connected. Anne-Marie Slaughter has suggested that Canada has become an influential exporter of constitutional jurisprudence, at least in part because it has also been an importer of the same. Other constitutional tribunals, aware that the Canadian Court is attentive and informed about the insights and wisdom of other courts, look to it as a court that is knowledgeable about current constitutional jurisprudence and often find its decisions helpful when they address the same issues. (23) Therefore, the questions analyzed in this paper are relevant beyond the borders of Canada, as they reflect the roots of the Court's influence on the development of global constitutionalism.

  2. METHODOLOGY

    Understanding the use of...

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