International and Foreign Legal Research

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 155-185

155

CHAP TER 7

INTERNATIONAL AND

FOREIGN LEGAL

RESEARCH

With increasing globalization, most Canadian lawyers will regularly

be exposed to some aspect of international or foreign law. Despite its

growing importance, however, many Canadian lawyers lack experi-

ence in researching in this area. Therefore, the goal of this chapter

is to introduce international and foreign legal research and provide

a good overview of relevant print and online resources for effectively

conducting this type of research.1 Material in this chapter is divided

into the following sections:

A. The importance of international and foreign law

B. Tips for conducting international and foreign legal research

C. Researching conf‌lict of laws

D. Print and online secondar y sources of international law

E. Print and online primary sources of international law

F. Researching the domestic laws of foreign countries

G. Sample problems and suggested approaches

1 This chapter in corporates, with per mission, material f rom Ted Tjaden, “The

Best Onli ne Sources for Internationa l and Foreign Law” in Bonnie Fish, e d.,

You’ve Got the Whole World in Your Hands: Using the Inte rnet to Expand the Bound -

aries of Legal Research (Toronto: Ontario Bar A ssociation, 2004).

LEGAL R ESEARCH A ND WRITING156

A. THE IMPORTANCE OF INTERNATIONAL

AND FOREIGN LAW

Canadian court s are increasingly looking to international treaties and

conventions as an indication of standards and norms that should be

used in interpreting and applying Charter standards in the Canadian

context. In Baker v. Canada (Minister of Citizenship and Immigration),2

for example, Madam Justice l’Heureux-Dubé wrote that “the values re-

f‌lected in international human rights law may help inform the con-

textual approach to statutory inter pretation and judicial review,”3

even where, as in that decision, the Canadian Parliament had not yet

implemented the Convention being considered. Likewise, in Suresh v.

Canada (Minister of Citizenship and Immigration),4 the Supreme Court of

Canada looked to international treaties dealing with the prohibition of

deporting persons to countries that allow torture in assessing whether

the government was justif‌ied in deporting a Sri Lankan refugee to his

home country where he might be tortured:

Internationa l treaty norm s are not, strictly speaking, bind ing in

Canada unless they have been incorporated into Canadian law by

enactment. However, in seeking the meaning of the Canadian Con-

stitution, the courts may be i nformed by international l aw. Our con-

cern is not with Canada’s international obligations qua obligation s;

rather, our concern is with t he principles of fundamental just ice. We

look to internation al law as evidence of these principles and not as

controlling in itself.5

More recently, in R. v. Hape,6 the Supreme Court of Canada had

to determine whether the Charter applied to searches and seizures

conducted in the Turks and Caicos in an investigation of a Canadian

on charges of suspected money laundering. To answer this, the Court

looked to principles of state jurisdiction under international law and

the principle of the comity of nations. In dismissing the appeal of the

accused and ruling that the Charter did not apply, Mr. Justice LeBel

held “the pri nciples of non-intervention a nd territoria l sovereignty may

be adopted into the common law of Canada in the absence of conf‌lict-

2 [1999] 2 S.C.R. 817.

3Ibid. at para. 70. See al so Oonagh E. Fitzgerald, The Globalized Rule of La w: Rela-

tionships between Inte rnational and Domestic L aw (Toronto: Irwi n Law, 2006).

4 [2002] 1 S.C.R. 3.

5Ibid. at para. 60.

6 2007 SCC 26.