How internationalization of the law has materialized in Canada.

• Author: Bastarache, Michel

The current financial crisis is evidence that no country, not even a superpower like the United States, can resolve on its own the modern challenges posed by a deregulated banking system, the ecological imbalance, terrorism, international crime or world trade impacts. Internationalization is a reality that has, of course, applied to the law for a long time. We need a reasonably efficacious system to accommodate trading among nations; laws on shipping and bills of exchange, for instance, are meant to ensure respect for the principles of unity and continuity in the law. These principles extend far beyond the need to secure international trade. Indeed, section I of the Canadian Charter of Rights anal Freedoms speaks of restrictions on fundamental rights that are justifiable in a free and democratic society; a reference to shared values and principles. At the first level, we can identify the universal values of human dignity, equality, democracy, and at the second level the requirements of a common methodology based on the application of the rules of proportionality by an independent judiciary.

We have obviously moved from a rather closed society to one of openness; this phenomenon being described as one of globalization. Justice Albie Sachs of South Africa questions this choice of words because globalization suggests that there is a centre imposing on others its technology, language, values. Universalization is a better choice, in his view, because it suggests that in a global struggle for freedom and fairness we recognize the equality of participants. I agree that what we now mean by globalization of the law is essentially access to all sources of law, national and international, and the circulation of norms and models. It is not, in my opinion, the search for supranational law as in the European Community.

The Supreme Court of Canada is still very much animated by respect for Canadian sovereignty and what I might call internal judicial security. It wants to develop the law cognizant of other nations' views, but does not believe fairness requires that the treatment of citizens of one country must mirror the treatment of citizens in any other particular nation. The confrontation of ideas is an enrichment but competition between legal systems is not. Diversity is also an important value and we therefore want to borrow or share what will help us make better decisions. Most often, we will be inspired by legal methodology and choice of criteria, but we will be careful in borrowing whole solutions that are often developed in an entirely different environment. Professor Jeremy Waldron of New York University provides an interesting example, that of the offence of desecrating the flag. The US precedents should always be considered because freedom of speech is a universal value that is well respected in the United States. But the examination of US precedents must take into account the fact that the US is a very old and stable democracy, that freedom of expression's content has been greatly extended there, and that veneration for the flag in the US is not comparable to that in other nations. In Canada the situation is different. Our flag is not very old; we do not define freedom of expression in such absolute terms, and we have s. 1 of the Charter to satisfy restrictions. But consider the case of a country like Kosovo which is a new and unstable democracy that is still very divided along ethnic lines. One part of the population still believes that separation from Serbia was illegal or illegitimate. Does flag burning take the same colour there even if the same criteria are applied to justify a restriction to freedom of expression?

Contextual analysis is important in the domain of human rights. Even within the community of nations who share the same fundamental values, harmony does not mean uniformity. Judicial borrowing must be limited to situations where it is truly appropriate. Nevertheless, it will appear more and more frequently because some judges in any given country will be afraid of marginalization; they will want to be seen as open to new ideas and new methodologies. They will look for new phrases and concepts. One good example of this judicial borrowing is our Oakes proportionality test which is largely based on one designed by the courts of Germany. Judicial borrowing will also add to the duty to give comprehensive reasons to explain how judgments are being used and why they are useful or not.

Internationalization of the law is not, in the Canadian context, a top down phenomenon. There is no outside agency or court defining rules with supranational force. It is a bottom up exercise. Universal values reflecting a commonality of objectives facilitates a certain form of harmonization. I will come back to this concept to argue that it must be dealt with in light of differences in legal cultures and legal domains. Harmonization of approaches and methods are what matters most, in my view. Cultural differences, legal cultures particularly, are important, but here again should not mask the need to modernize the law; public support for tradition in one or many nations at the same time should not be an excuse for institutionalizing past injustices and practices that do not meet our standards. New developments and interpretations in other countries do not mean national courts are free to develop the law as they wish. Legitimacy requires respect for national institutions that empower judges. External influences must in a sense be moderated to preserve legitimacy and the democratic order. Fair treatment does not require that claimants achieve the same result in similar circumstances throughout the world.

Perhaps the greatest challenge facing the political and legal order of the 21st century is to navigate our way through these seemingly competing ideals of sovereignty and internationalism. In my opinion, the Canadian domestic legal system has negotiated this delicate balance by being open to international ideas but remaining committed to its fundamental principles and the coherence of its jurisprudence.

There are two distinct processes by which national courts are influenced by law beyond their borders. The first is the process of incorporating into domestic law values from international treaties and customary law to which the court's country has subscribed, whether or not the treaties and conventions have been incorporated into domestic statutes. The second is the process of transjudicial communication. This expression describes a much more diverse and messy process of judicial interaction, mainly through judicial borrowing, the citation of foreign judgments, and through informal networks.

I will be dealing here with two issues, this from the perspective of a recently retired judge of the Supreme Court of Canada. These issues are, first, whether the availability of non-domestic legal resources has changed the way in which judges decide cases, and, if so, whether this has contributed to the uniformisation of the law. Secondly, whether the formal and informal contacts between judges of different countries has brought about a change in judicial consciousness and attitudes, and whether this has affected the way judges decide cases.

THE USE OF NON-DOMESTIC LEGAL RESOURCES IN CANADA

I turn now to the use of non-domestic legal resources in Canada, first looking at international instruments and decisions, followed by a review of judicial borrowing.

International Instruments and Decisions

In the last twenty years, the Supreme Court of Canada has been much more proactive in bringing international law into domestic decision-making. The number of cases making use of international public law instruments in Canada has increased dramatically. Writing on this development in the jurisprudence of the Court, former Justice Gerard La Forest reported that between 1984-1996 the Court made use of key international human rights instruments in fifty cases in interpreting the Canadian Charter of Rights and Freedoms. (1) Since then, the number has doubled. (2) Economic globalization has brought on the privatization of policies and weakening of the regulatory capacity of States, even for the protection of human rights and this has obviously influenced the Supreme Court.

Despite what is undoubtedly a positive trend, the role of international instruments has not been as significant as suggested by some. In a 2004 study dealing with Charter litigation at the Supreme Court, Bijon Roy found that while present references to non-domestic legal sources (including both international instruments and foreign judgments) remains limited (thirty-four cases out of 403 surveyed is roughly 8 percent), this type of result is hardly suggestive of large-scale transformative change in the judicial decision-making process. Furthermore, such instruments are treated only as sources of support, to be considered together with binding precedent, established domestic precedent, and other factors including social science evidence, legislative intent, and so on. (3)

In my opinion, the main reasons for this are that there have been a relatively small number of cases which would involve the discussion of international instruments, and the traditional rule that the incorporation of international norms in Canada is still dependant on the adoption of legislation to that effect or the creation of a new international custom. Canada's system of receiving international law into the domestic legal order is neither monist nor dualist; it is a hybrid of the two, demanding the implementation of conventional international law but allowing for the incorporation of customary international law. (4) In Canada, the rule for the use of international instruments is affirmed in Slaight Communications v. Davidson; which helps determine the content of a right or the validity of a legislative objective. (5)

The other factor to be considered is that very few counsel have recourse to...