A. The Importance of International and Foreign Law

AuthorTed Tjaden
ProfessionNational Director of Knowledge Management McMillan LLP
Pages155-158

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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 experience 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.1Material in this chapter is divided into the following sections:

  1. The importance of international and foreign law

  2. Tips for conducting international and foreign legal research

  3. Researching conflict of laws

  4. Print and online secondary sources of international law

  5. Print and online primary sources of international law

  6. Researching the domestic laws of foreign countries

  7. Sample problems and suggested approaches

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Canadian courts 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 reflected in international human rights law may help inform the contextual approach to statutory interpretation 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),4the 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:

International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.5More recently, in R. v. Hape,6the 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 principles of non-intervention and territorial sovereignty may be adopted into the common law of Canada in the absence of conflict-

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ing legislation."7He also confirmed the...

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