Taking Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern Approach to Statutory Interpretation

Taking Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern Approach to... 1. INTRODUCTION The past few years have seen a resurgence of comparative law scholarship with the publication of a number of major works in the field.1 Scholarly interest in comparative law has been bolstered by a renewed sense of cosmopolitism, fading state borders, and increasing linkages among different legal systems.2 Detailed studies have examined the use of foreign law by domestic courts, usually excluding cases where courts formally apply foreign law as part of local conflict of laws rules. In other words, scholars have focused on situations where domestic courts invoke foreign law as a persuasive, rather than a binding, source of law. Studies tend to look at constitutional or human rights cases, with a number of scholars suggesting the emergence of a global jurisprudential exchange on the interpretation and scope of fundamental rights protections. While there is increased sharing of information among legal systems on questions of human rights, it appears that universalism can only be achieved at a higher, more abstract level as opposed to the domestic plane where law is routinely applied to concrete, individual cases. Not only do national legal systems still matter, broadly worded rights guarantees are continually interpreted and adapted by domestic courts in individual cases to the local context and economic, political, and social realities. This study examines an important but largely neglected area of comparative legal research related to the use of foreign law in domestic courts. Unlike other studies, it does not focus on constitutional or human rights cases but rather on the use of foreign law by the Supreme Court of Canada (‘SCC’) when it is called upon to interpret domestic legislation. By focusing on the use of foreign law in statutory interpretation, the study captures a broad range of cases in both public and private law. It also evaluates the claim of whether the global jurisprudential exchange extends into the realm of purely domestic law or whether it is limited to broader human rights recognized on the international plane. At first glance, it may seem curious that courts like the SCC would cite foreign law at all in working out the meaning of a domestic statute. But it is easy to see that common law courts have drawn from approaches taken elsewhere in solving problems of statutory interpretation. For example, in the SCC judgment in Pacific Coast Coin Exchange v. Ontario Securities Commission,3 the outcome of a securities case hinged on the meaning to be given to the statutory term ‘investment contract’. Although divided in the result, both the majority and the dissent closely examined American law for guidance. Given similar legislative frameworks and policy objectives between the Canadian and American statutes, the majority wrote that it was ‘a wise course to look at decisions reached by the U.S. Courts’, while the dissenting judge observed that the ‘more extensive jurisprudence in the United States has been regarded as useful for Canadian courts called upon to wrestle with similar problems of interpretation and application’.4 Similarly, in the 2002 SCC judgment of Harvard College v. Canada (Commissioner of Patents),5 the dissenting judges wrote that ‘legislation varies of course, from state to state, but broadly speaking Canada has sought to harmonize its concepts of intellectual property with other like-minded jurisdictions. The mobility of capital and technology makes it desirable that comparable jurisdictions with comparable intellectual property legislation arrive (to the extent permitted by the specifics of their own laws) at similar results’.6 Even courts in the United States, where citations to foreign legal sources remain considerably controversial, have referred to foreign approaches to help give meaning to statutory provisions.7 A number of scholars have pointed to the longstanding use of foreign law in the formulation of domestic legislation. Jan Smits, for example, has demonstrated the important role played by foreign legislation throughout history, citing the Law of the Twelve Tables (c. 450 BCE) as having been influenced by Roman visits to Greek cities.8 Notably, the Greeks were also comparativists and the Roman tradition may have itself absorbed Greek approaches. In The Politics, for example, Aristotle states that ‘we must know the varieties, and the number of varieties, of each form of government, if only with a view to making laws’.9 According to Smits, the entire field of comparative law has been shaped by this desire to look elsewhere to create the best law.10 Notably, the use of foreign law is not limited to looking elsewhere during the legislative drafting process. As seen with the SCC, it can also be used to interpret statutes. Rodolfo Sacco has pointed out that the application of law to the facts of a case involves an interaction between a primary source of law, such as a statute, and the individual interpreter.11 According to Sacco, influences that act upon the convictions of the interpreter are themselves a source of law, which he labels ‘legal formants’.12 In interpreting legislation, judges borrow from what they have observed elsewhere, even informally.13 John Bell writes that foreign law can add force to a domestic legal argument about the construction of a statute by providing a useful illustration or example. Bell argues that a ‘good lawyer ought to find out about interpretations given of common legal documents or common principles’.14 And Aharon Barak has observed that judges can use comparative law to learn more about the purpose of a statute, even if it was not originally influenced by foreign legal developments.15 This paper examines the SCC’s use of foreign law in statutory interpretation cases over a period of five years to better understand when, how, and why foreign law is used. The study reveals that the SCC regularly cites foreign legal sources in deciding cases turning on questions relating to the interpretation of domestic legislation, confirming Bell’s view that foreign law can be used to add weight to otherwise plausible legal arguments.16 However, because of the inconsistent use of foreign law by the SCC in statutory interpretation cases, this paper argues that the legitimacy of citing foreign law would be enhanced by adopting a principled approach. Through a modest reform to the SCC’s ‘modern approach’ to statutory interpretation, Canadian courts could fully realize the value of the foreign experience on similar problems of interpretation. In doing so, Canadian courts would take comparative law seriously and enhance its legitimacy as part of the judicial reasoning process in appropriate cases. 2. FOREIGN LAW IN DOMESTIC COURTS (A) Introduction The use of foreign law by domestic courts has been the subject of considerable study and analysis by legal scholars. Most studies focus on cases outside of situations where courts formally apply foreign law as part of conflict of laws rules, or in other words, when courts use foreign law as a persuasive, non-binding source of law. Constitutional and human rights cases have attracted the most scholarly attention. Studies range from numerical assessments that simply count foreign law citations to qualitative studies that examine cases citing foreign law in detail. Others rely on judicial interviews to shed light on how judges think about foreign law, which illustrate how foreign law can be used informally, even when it is not cited in a judgment. In addition to these studies, which provide valuable information and analysis on the use of foreign law, others have considered questions of legitimacy related to domestic courts using foreign law. This Part surveys a range of scholarly perspectives on the use of foreign law in domestic courts to situate the SCC’s use of foreign law in statutory interpretation cases. It then reviews studies that have previously examined the use of foreign law by the SCC. (B) The Global Jurisprudential Exchange A number of legal scholars have highlighted the emergence of what can be described as a ‘global jurisprudential exchange’ in recent years, driven in part by increased communication among courts and judges and new formal and informal linkages. Anne-Marie Slaughter has convincingly argued that courts can be seen as part of a broader trend of globalization.17 Slaughter points to an emerging international judicial comity, in which judges give respectful attention to the work of other jurists, based on a view of courts engaged in the common judicial enterprise of resolving disputes by interpreting and applying law.18 Slaughter writes that domestic courts see foreign judges not as faces of foreign governments but rather as fellow judicial professionals.19 According to Slaughter, ‘courts in different nations are entitled to their fair share of disputes…as co-equals in the global task of judging’.20 Similarly, Mads Andenas and Duncan Fairgrieve write that legal systems have become increasingly open to the use of foreign law over the past decade. Andenas and Fairgrieve see courts as laboratories of law that try out different methods and approaches, the results of which can be drawn upon by others.21 Under this view, courts exchange legal solutions and generate a network of persuasive authority. Although legal systems might come up with different answers to similar questions, comparative law acts as an important reference point for judicial decision-making.22 Andenas and Fairgrieve, however, note unresolved problems related to the methodology of using foreign law in domestic courts, including questions of relevance, the weight to be given to foreign law, and problems of accessing the source material.23 Nevertheless, a global dialogue and international marketplace of case law is emerging, which ‘plays a role in developing the substantive law in different areas, including in finding normative solutions to questions of a more technical kind’.24 Jeremy Waldron has taken the idea of a global jurisprudential exchange a step further by advancing a compelling rationale for the use of foreign law. Waldron seeks to restore the historical meaning of the ius gentium, in the sense that the law of nations should be seen as extending beyond international law to include the law of mankind on a wide range of legal issues, including property and contract.25 Under Waldron’s conception, the ius gentium represents a consensus-based body of law of shared answers to common problems, which better accords with the approach taken by scientists who draw upon a body of existing knowledge before carrying out scientific research. As a store of legal insight, the ius gentium can allow a domestic court to think through a legal problem ‘in the company of those who have already dealt with it’.26 According to Waldron: By paying attention to what other jurists have done with this relation or similar relations, we treat it as a problem to be solved in part by attending to the established deliverances of legal science—the enterprise, which many legal systems share, of grappling with, untangling, and resolving the rival rights and claims that come together in issues of this kind.27 Waldron does not suggest that domestic courts should simply defer to legal solutions in the ius gentium. Instead, he sees the law of nations as persuasive, noting that the law can be adapted by courts ‘on a scientific basis’ to local circumstances.28 While Waldron acknowledges the difficulty of ascertaining the law forming part of the ius gentium, and the problem of cherry picking certain aspects of the ius gentium in order to reinforce predetermined conclusions, these problems are not fatal to the enterprise. By seeing the law as a reasoned and deliberative process instead of will imposed by authority, Waldron argues that the ius gentium can be used in a genuine way.29 (C) The Value of Foreign Law As the late H. Patrick Glenn observed, citing foreign law in a domestic legal system adds new sources of law to that system.30 Adding new sources means that domestic law becomes less certain and precise. What is the justification for adding these new sources of law? There are a number of views on why domestic courts use foreign law and what it can offer. Andenas and Fairgrieve have developed a typology of different judicial uses of foreign law that include (i) providing support for a rule or outcome; (ii) normative models where national law is undetermined; (iii) reviewing factual assumptions about the consequence of a legal rule; (iv) reviewing assumptions about the universal applicability of a rule; (v) providing additional support to overturn domestic authority; (vi) developing principles of domestic law; and (viii) resolving problems of applying European Union or international law.31 These uses of foreign law can be driven by one of two key approaches.32 The first strong convergent approach is that as a matter of justice or fairness, legal systems should strive for consistency with other legal systems to the extent possible under domestic law. The use of foreign law by domestic courts under this approach (even when foreign law is seen as persuasive) facilitates a process of gradual harmonization among different national legal systems. This perspective is often associated with natural law. The second utilitarian approach, often adopted by judges reflecting on their use of foreign law, is that foreign law acts as a source of inspiration for domestic legal developments. Under this approach, looking at foreign law is not motivated by a desire to harmonize laws across different jurisdictions but is part of a creative problem-solving process in which a judge seeks to craft the best solution to a legal problem (although this may have an incidental harmonizing effect). Differences among legal systems are likely to persist as law remains firmly rooted in the domestic order despite foreign influences. A handful of scholars take the strong convergent view that judges should look to foreign law to achieve similar legal outcomes across legal systems. For example, Konrad Zweigert has written that comparative law should be used as a universal method of interpretation, which is rooted in the goal of achieving similar legal outcomes across legal systems.33 Eric Posner and Cass Sunstein also adopt an approach in favour of harmonization on the basis that a majority of states in a large group is likely to come to the correct legal answer to a particular problem.34 Following this approach would lead to legal convergence, although Posner and Sunstein stress that foreign law is only persuasive as a source of information and not binding authority.35 Posner and Sunstein ground their perspective in the ‘Condorcet Jury Theorem’, which posits that the probability of arriving at the right answer by a majority in group increases as the size of the group increases, provided each member of the group is more likely than not to come to the right answer.36 Notably, not all scholars who endorse judicial coordination through the use of foreign law expect convergence across legal systems. For example, Eyal Benvenisti writes that judges from different jurisdictions have taken a coordinated approach to shield themselves from external pressures and to protect their institutional independence.37 In Benvenisti’s view, this judicial coordination, which takes place through foreign citation, allows judges to challenge executive unilateralism in the face of threats posed to democratic processes by globalization.38 Courts align their decisions with other domestic courts in certain areas as a response to the increasing delegation of government decision-making to international institutions. In Benvenisti’s view, a coordinated approach has the effect of expanding domestic legal discourse as it helps courts resist internationalist influences. The majority of scholars do not strongly advance the desirability of legal convergence but rather see some value in the foreign experience that can act as a source of inspiration for domestic developments. John Bell sees foreign law as capable of providing additional support to arguments that are otherwise acceptable in domestic law.39 In interpreting law, judges give meaning to words and resolve competing arguments about the correct interpretation. Lawyers draw arguments from the store of ‘currently arguable versions of the law’ within the national legal system.40 Foreign law can then be used to add weight to a statement of domestic law in certain circumstances,41 which is more about cross-fertilization than legal transplantation.42 In Bell’s view, foreign law can trigger a closer look at domestic law by providing perspective in light of different approaches and novel solutions. Although Bell acknowledges the desirability of achieving consistent legal outcomes in similar situations among socially and politically similar states, he reiterates that legal arguments must be firmly grounded in domestic law, writing that ‘[i]f the reasons are not convincing in domestic law, then no amount of foreign law is going to make them good enough’.43 In looking at the jurisprudence of the UK Supreme Court in the 2010–11 judicial year, Bell observed that foreign law was not a defining reason for a decision but rather provided a benchmark for the rightness of what the judges thought was the right answer in English law.44 According to Bell, the UK Supreme Court was ‘very open to look at a variety of sources when value can be added to the justifications for their decisions by doing so’.45 Similarly, Slaughter sees value in foreign law through a process of cross-fertilization and the dissemination of ideas from one place to another.46 While benefits flow from collective judicial deliberation, foreign law can enhance the persuasiveness of an argument or the authority or legitimacy of a decision by showing that others have gone down the same path before.47 Aharon Barak likewise writes that comparative law is an ‘experienced friend’ that helps judges find the right path by expanding the interpretive field of vision, so long as the countries share a common ideological basis.48 Smits emphasizes the voluntary nature of foreign law in domestic cases but writes that it would be counter-productive for courts not to benefit from foreign law on similar legal problems.49 He identifies a number of uses of foreign law, including providing a source of fresh ideas, adding normativity to justify a decision or for ‘ornamental’ purposes to convince others of the quality of the outcome.50 (D) The Legitimacy of Foreign Law The previous section identified why foreign law might be seen as valuable by domestic courts. While it could be argued from a utilitarian perspective that this value alone justifies its use, the broader question of the legitimacy of domestic courts using foreign law should also be addressed. By emphasizing the persuasive, as opposed to binding, nature of foreign law, judges and scholars seek to disarm the perceived threat that foreign law poses to national sovereignty.51 Nevertheless, it is clear that the use of foreign law by domestic courts must be viewed as legitimate in the political order for it to be accepted as a feature of the judicial decision-making process.52 In many countries, the use of foreign law is perceived as legitimate because of its historical usage—a kind of historical legitimacy. In such systems, citation to foreign law is simply accepted as a longstanding feature of adjudication. For example, Canadian courts have long cited American and English law and that of other Commonwealth countries with little serious questioning of its legitimacy. As a result, there is little resistance to the use of foreign law by Canadian courts.53 Elsewhere, most notably in the United States, the legitimacy of courts citing foreign law has been more seriously contested, even by judges.54 In response, US Supreme Court Justice Sandra Day O’Conner has sought to justify the use of foreign law in American courts by highlighting the important role played by the United States in an increasingly interconnected world, which requires US courts to be open to the foreign experience to allow them to play their part in the global exchange. According to Justice O’Conner, ‘with time we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues. Doing so may not only enrich our own country’s decisions; it will create that all-important good impression. When US courts are seen to be cognizant of other judicial systems, our ability to act as a rule-of-law model for other nations will be enhanced’.55 Rex Glensy, writing after the US Supreme Court decided Lawrence v. Texas,56 in which a majority of the Supreme Court referred to foreign law in holding a Texas statute criminalizing sodomy to be constitutionally invalid, makes a number of arguments in favour of the legitimacy of American judges citing foreign law. Glensy first argues for historical legitimacy, pointing to a centuries-old tradition of foreign law in American courts.57 He then seeks to alleviate concerns about foreign law overtaking American sovereignty on the basis that the judge retains control over the use of foreign law as it is merely persuasive.58 Glensy also addresses questions about the comparative method by setting out criteria for the selection of foreign law that includes a country’s ‘democratic quotient’, its social affinities with the United States, and the context of the case.59 3. PREVIOUS STUDIES ON THE SCC’S USE OF FOREIGN LAW The SCC is frequently held up as a model of openness in part because of its use of foreign law. For example, Barak writes that ‘[t]he Supreme Court of Canada is particularly noteworthy for its frequent and fruitful use of comparative law. As such, Canadian law serves as a source of inspiration for many countries around the world’.60 Detailed studies of the SCC, however, paint more of a mixed picture of its use of foreign law. Most of these studies have focused on constitutional or criminal cases, and often on the use of American law in particular, which presents an opportunity for a broader study of the SCC’s approach to foreign law in statutory interpretation cases. Studies from the 1980s and 1990s were largely positive about the use of foreign law by the SCC. In 1986, SI Bushnell conducted an empirical analysis of the use of American case law by Canadian appellate courts in different areas of law.61 The study found that Canadian courts have a long history of using American law, stretching back to the country’s founding in 1867. Notably, Bushnell raised questions about how US cases were valued and used by Canadian courts, although the study did not answer these questions. Three years later, Robert Harvie and Hamar Foster looked at the use of American law by the SCC in criminal cases, concluding that American case law ‘is not being systematically consulted and analyzed. It is, of course, not binding on Canadian courts and, in fact, need not be referred to at all. However, once the general value and relevance of United States law has been recognized, however cautiously, it ought not to be resorted to in a random fashion’.62 In 1994, Justice Gérard La Forest offered his views on the SCC’s use of American law.63 According to La Forest, Canadian courts have always welcomed foreign materials because of the country’s roots in English and French law and the Privy Council in London acting as a final court of appeal until 1949. Based on this longstanding practice, the SCC maintains a ‘sincere out-ward-looking interest in the views of other societies, especially those with traditions similar to ours’.64 Notably, La Forest endorses a utilitarian view in using foreign law, writing that the use of foreign materials affords another source, another tool for the construction of better judgments. Recourse to such materials is, of course, not needed in every case, but from time to time a look outward may reveal refreshing perspectives. The greater use of foreign materials by courts and counsel in all countries can, I think, only enhance their effectiveness and sophistication.65 La Forest notes the important role of legal counsel in encouraging the SCC’s use of foreign law by introducing it in argument.66 He points to the Charter of Rights and Freedoms with its constitutionally entrenched bill of rights, enacted in 1982, as marking an expansion in the use of American cases. La Forest, however, cautions that US materials must be modified to fit the Canadian context.67 While the use of American law may diminish over time in Charter cases as Canadian law develops, La Forest wrote that he was ‘confident that the use of American, international, and foreign materials will continue to grow in other areas’ as the SCC is genuinely interested in comparisons and legal cosmopolitanism.68 Four years later, Justice Claire L’Heureux-Dubé also commented on the SCC’s use of foreign law.69 According to L’Heureux-Dubé, judges from around the world look to each other for persuasive authority, although she warned that a legal outcome in one country might not be appropriate in another. L’Heureux-Dubé noted that foreign law is not only useful to generate new ideas to follow but also as a departure point, writing that ‘understanding and articulating the reasons a different solution is appropriate for a particular country helps make a better decision’.70 Like La Forest, L’Heureux-Dubé highlights the important role of counsel in drawing the court’s attention to relevant foreign law.71 The 2000s brought several new, detailed studies of the SCC’s use of foreign law. While the enthusiasm for foreign law continued, a number of scholars reiterated Harvie and Foster’s question of whether the SCC was fully engaged in comparative law and whether its use was consistent. In 2001, Rebecca Lefler compared the use of foreign law among the SCC, the US Supreme Court and the Australian High Court.72 Lefler found that the use of comparative law was helpful in developing arguments and counter-arguments as the wisdom of esteemed foreign jurists dealing with similar problems was too valuable to be ignored. Two years later, SI Smithey studied the use of foreign law in constitutional cases in both Canada and South Africa.73 Smithey’s results showed that judges used foreign law in relation to new and contentious questions to justify the outcome and persuade others of its rightness. In a 2003 article on comparative reasoning, Sarah Harding wrote that Canadian courts were engaged in an international dialogue and used foreign law frequently, even going so far as to argue that ‘comparative judicial reasoning is integral to the Court’s methodology’.74 She noted that foreign law appeared in the SCC’s statutory interpretation cases, citing the case of Thomson v. Canada,75 in which the Court looked to Australian law to interpret domestic legislation.76 In Harding’s view, by using foreign law as an interpretive tool, the SCC could devise its own solution to a legal problem through a dynamic and context-driven process.77 Like L’Heureux-Dubé, she observed that the SCC sometimes used American law as an example of what not to follow.78 Harding concludes that the SCC demonstrates an ‘eagerness . . . to engage in cross-border judicial dialogue while still paying close attention to local circumstances’.79 In 2004, Bijon Roy carried out a study on foreign law in Charter litigation from 1983 to 2003.80 Roy found that the SCC had developed an open approach that was receptive to foreign law but that its decisions were ultimately grounded in the cultural, historical, and political context of Canada.81 Roy’s study supports Bell’s analysis. Foreign law was rarely used to dispose of Charter cases and there was therefore little threat of the SCC cherry picking foreign cases to overturn domestic law. In areas where the law was underdeveloped, the SCC would draw on foreign law as one source to help generate new ideas, although it applied foreign law cautiously.82 A cautious note was also sounded five years later by Justice Michel Bastarache, who took up the question of the legitimacy of the SCC’s use of foreign law.83 Bastarache wrote that the SCC is animated by respect for Canadian sovereignty but develops the law cognizant of the views of other nations. In all cases, foreign law used by Canadian judges is adapted to suit local circumstances. Bastarache noted that harmonization or convergence is often seen as a goal of comparative law, referring to Harvard College v. Canada (Commissioner of Patents),84 in which the minority sought to align Canadian legislation with other ‘like-minded’ countries.85 Bastarache strongly rejects this approach as contrary to Canadian law, which clearly demarcates international from domestic law.86 Instead, according to Bastarache, foreign law can be properly used as a source of interpretive inspiration: [The SCC is] willing to open up the interpretive method to actively include international norms and foreign sources of logic in its deliberations. It has expanded the rules of interpretation to permit reference to international treaties and foreign judgments in all cases in which domestic legislation under review has been expressively or impliedly enacted or amended in order to implement an international obligation.…but setting aside the rules of interpretation to effect harmonization is not what was intended.87 According to Bastarache, while foreign law can offer guidance, it is not a precedent to be followed. It is subordinate to domestic jurisprudence and is often used to enhance the legitimacy of a decision by adding some independent value to the outcome, although the SCC remains firmly focused on national policy. In terms of the comparative methodology, Bastarache observed that it was difficult to determine which courts could offer a suitable comparison and how many jurisdictions should be cited to make the comparison meaningful. Notably, Bastarache also observed that the extent of the SCC’s borrowing from foreign sources had been overstated. The SCC was not concerned with influencing other countries with its judgments as its main concern was to chart its own path. Bastarache concludes that while foreign law had a minimal impact on the SCC, there is ‘some effort to be better informed of foreign decisions on matters of mutual interest’.88 The same year, two studies looked at the use of foreign law by the SCC. Adam Dodek’s qualitative study looked at constitutional cases decided by the SCC in 2008, finding that the use of foreign law was modest.89 Dodek saw the use of foreign law in the SCC’s interpretive approach as adding support to its reasoning. Given that courts face similar problems, looking to other courts can act as an accountability mechanism for judicial discretion, although Dodek opposes strong convergence across different legal systems. After reviewing the relevant cases, Dodek concluded that the SCC had a limited engagement with foreign law and missed opportunities to consider useful foreign decisions.90 Peter McCormick’s large quantitative study looked at the entire caseload of the SCC from 2000 to 2007 and compared citations to foreign law and domestic authority. From his analysis of the data, McCormick concludes that while the use of foreign law is an established practice of the SCC, there is little evidence to support a view of legal globalization.91 Moreover, given that new judicial appointees cited foreign law less, it looked like the use of foreign law by the SCC could decline in the future. In 2010, Chief Justice Beverley McLachlin weighed in on the idea of a global jurisprudential exchange in an address to an American audience.92 While acknowledging that the judicial use of foreign law in domestic cases could erode domestic values, McLachlin observed that using foreign law did not prevent judges from developing domestic law to suit local circumstances and history.93 Even though foreign law is a valuable source of legal enrichment, McLachlin predicted that the distinctiveness of domestic law would be preserved across legal systems as courts develop unique approaches and doctrines.94 Finally, in 2015, Gianluca Gentili carried out an empirical study of the use of foreign law in cases decided by the SCC between the years of 1982–2015, with a focus on Charter cases.95 Based on his analysis of the numerical data, Gentili concludes that the SCC consistently looks at foreign law, drawing inspiration from other legal systems while adapting law to the Canadian context. The SCC has a ‘general, favourable attitude towards cross-section citation of foreign case law’ that occurs in about 30 per cent of all cases decided by the Court.96 Gentili finds that the SCC tends to cite foreign law more in split judgments to overcome opposition from colleagues and to bolster justifications for the outcome.97 Foreign precedent is also used more frequently when government action is overturned. Nevertheless, Gentili echoes L’Heureux-Dubé and Harding by noting that the SCC can use foreign precedent as an illustration of what not to do and is therefore valuable for self-understanding and reflection. In fact, Gentili’s data show that the majority of American cases cited by the SCC were not followed. The SCC is receptive to adopting foreign law but only when it is compatible with Canadian values.98 Gentili points to the dicta of La Forest in R v. Rahey99 that foreign law is a tool but not a master.100 In Gentili’s view, the SCC has developed a principled approach to foreign law and cherry picking critiques must be re-evaluated ‘in light of the numerous aversive citations’.101 The SCC also sees itself as part of a global forum on human rights and takes a cosmopolitan and outward-looking interest in others. While there have been fewer foreign citations in more recent Charter cases, Gentili argues that this reduction is due to an increasingly developed body of Canadian jurisprudence and that the SCC remains open to foreign law on previously unaddressed issues.102 4. THE SCC’S USE OF FOREIGN LAW IN INTERPRETING LEGISLATION (A) Methodology In its 1998 judgment in Rizzo & Rizzo Shoes Ltd,103 the SCC set out the prevailing ‘modern approach’ to the judicial interpretation of legislation: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.104 The SCC has invoked the modern approach when confronting problems of statutory interpretation by looking to the statutory text, context, and purpose.105 In some cases, the SCC has cited foreign case law or legislation as part of its interpretive process, although it is not entirely clear where foreign law fits into the modern approach as it is often considered separately from the tripartite analysis of text, context, and purpose. In order to evaluate the use of foreign law by the SCC in interpreting legislation, this study examines five years of reasoned judgments of the SCC from 2011 to 2015. Within this period, cases were identified where the SCC engaged in a reasoned interpretation of a statutory provision that was a salient issue in the appeal. For the purpose of the study, legislation includes both primary and secondary legislation but excludes other instruments such as collective agreements and contracts, and policies and guidelines that do not have the force of law. Cases were selected where the SCC explicitly considered the meaning of a statutory provision as opposed to a passing reference to a statute or the more mechanical application of a statutory provision to the facts of the case in the absence of a genuine interpretive discussion and analysis. Cases were also excluded where the SCC simply referred to past case law to establish the meaning of a provision in the absence of a fresh interpretive engagement. The study includes judicial review cases where the SCC engaged in an interpretive exercise in review of a decision made by a statutory authority. It also includes international law cases where an interpretive problem was rooted in a domestic statute. To focus on the SCC’s use of foreign law in relation to the interpretation of ordinary legislation, the study excludes interpretations of constitutional rights guarantees, such as those in the Charter of Rights and Freedoms106 and Quebec’s Charter of Human Rights and Freedoms,107 except where an ordinary statute is interpreted as part of the case.108 In terms of counting cases where foreign law is cited, the study includes all references to case law and legislation of foreign jurisdictions. It excludes references to international courts and tribunals, UK legislation directly applicable to Canada before its power to legislate for Canada was terminated in 1982 and decisions of the Privy Council in Canadian cases before the SCC became the court of last resort on questions of Canadian law in 1949. Instances of foreign law are counted only where a foreign case or statute is referenced in relation to the interpretation of legislation. (B) Results The study shows that the SCC engages in statutory interpretation in a significant number of the total appeals that it decides (38 per cent of its total caseload). In these statutory interpretation cases, foreign law is cited by the SCC nearly one third of the time (32 per cent), with some variation appearing year upon year, ranging from a low of 22 per cent to a high of 42 per cent. Table 1 presents a numerical overview of the cases decided by the SCC from 2011 to 2015. Table 1: Numerical overview of cases decided by the Supreme Court of Canada 2011–15   2011  2012  2013  2014  2015  Total  Total number of appeals heard  66  75  73  78  68  360  Number of statutory interpretation cases  27  26  22  32  28  135  Percent of statutory interpretation cases  41%  35%  30%  41%  41%  38%  Statutory interpretation cases citing foreign law  6  11  9  9  8  43  Percent of statutory interpretation cases citing foreign law  22%  42%  41%  28%  29%  32%    2011  2012  2013  2014  2015  Total  Total number of appeals heard  66  75  73  78  68  360  Number of statutory interpretation cases  27  26  22  32  28  135  Percent of statutory interpretation cases  41%  35%  30%  41%  41%  38%  Statutory interpretation cases citing foreign law  6  11  9  9  8  43  Percent of statutory interpretation cases citing foreign law  22%  42%  41%  28%  29%  32%  View Large Table 1: Numerical overview of cases decided by the Supreme Court of Canada 2011–15   2011  2012  2013  2014  2015  Total  Total number of appeals heard  66  75  73  78  68  360  Number of statutory interpretation cases  27  26  22  32  28  135  Percent of statutory interpretation cases  41%  35%  30%  41%  41%  38%  Statutory interpretation cases citing foreign law  6  11  9  9  8  43  Percent of statutory interpretation cases citing foreign law  22%  42%  41%  28%  29%  32%    2011  2012  2013  2014  2015  Total  Total number of appeals heard  66  75  73  78  68  360  Number of statutory interpretation cases  27  26  22  32  28  135  Percent of statutory interpretation cases  41%  35%  30%  41%  41%  38%  Statutory interpretation cases citing foreign law  6  11  9  9  8  43  Percent of statutory interpretation cases citing foreign law  22%  42%  41%  28%  29%  32%  View Large In the 43 statutory interpretation cases citing foreign law decided from 2011 to 2015, there were 100 instances of foreign law citations.109 In terms of the most popular foreign jurisdictions, England and Wales was the most frequently cited (44 instances), while citations to the United States were also significant second (28 instances). Table 2 sets out the jurisdictions cited along with the number of citations for each country. Table 2: Instances of foreign jurisdictions cited by the Supreme Court of Canada in statutory interpretation cases 2011–15 Country  Instances  Percent of total instances  England and Wales  44  44%  United States  28  28%  Australia  8  8%  New Zealand  7  7%  France  3  3%  Germany  3  3%  Belgium  2  2%  Ireland  2  2%  Hong Kong  1  1%  Singapore  1  1%  South Africa  1  1%  Total  100    Country  Instances  Percent of total instances  England and Wales  44  44%  United States  28  28%  Australia  8  8%  New Zealand  7  7%  France  3  3%  Germany  3  3%  Belgium  2  2%  Ireland  2  2%  Hong Kong  1  1%  Singapore  1  1%  South Africa  1  1%  Total  100    View Large Table 2: Instances of foreign jurisdictions cited by the Supreme Court of Canada in statutory interpretation cases 2011–15 Country  Instances  Percent of total instances  England and Wales  44  44%  United States  28  28%  Australia  8  8%  New Zealand  7  7%  France  3  3%  Germany  3  3%  Belgium  2  2%  Ireland  2  2%  Hong Kong  1  1%  Singapore  1  1%  South Africa  1  1%  Total  100    Country  Instances  Percent of total instances  England and Wales  44  44%  United States  28  28%  Australia  8  8%  New Zealand  7  7%  France  3  3%  Germany  3  3%  Belgium  2  2%  Ireland  2  2%  Hong Kong  1  1%  Singapore  1  1%  South Africa  1  1%  Total  100    View Large The SCC made a number of different uses of foreign law in the 43 statutory interpretation cases in which it cited foreign law from 2011 to 2015. These uses were mapped onto six categories of possible uses.110 The most frequent use of foreign law by the SCC was to add support to a conclusion that had already been reached by the judges as a means of justification (27 per cent). The second most frequent use was to better understand the statutory purpose or its history (20 per cent). In a number of cases (19 per cent), foreign law was simply referred to for additional information or background to the problem. Only in a handful of cases did the SCC use foreign law directly to build an interpretive argument or approach (14 per cent), cite foreign law but distinguish it or see it as unhelpful (12 per cent) or use foreign law to illuminate a potential problem or show the consequences of a particular interpretation (9 per cent). Full details are set out in Table 3. Table 3: Uses of foreign law by the Supreme Court of Canada in statutory interpretation cases 2011–15 Use of foreign law  Instances  Percent of total instances  Supports conclusion already reached (justification)  33  27%  Better understanding of statutory purpose or history  25  20%  Information or background, example  23  19%  Build or improve interpretive argument or approach (construction)  17  14%  Noted but distinguished or seen as unhelpful  15  12%  Illuminate potential interpretive problem or show the consequence of a certain interpretation  11  9%  Total uses  124    Use of foreign law  Instances  Percent of total instances  Supports conclusion already reached (justification)  33  27%  Better understanding of statutory purpose or history  25  20%  Information or background, example  23  19%  Build or improve interpretive argument or approach (construction)  17  14%  Noted but distinguished or seen as unhelpful  15  12%  Illuminate potential interpretive problem or show the consequence of a certain interpretation  11  9%  Total uses  124    View Large Table 3: Uses of foreign law by the Supreme Court of Canada in statutory interpretation cases 2011–15 Use of foreign law  Instances  Percent of total instances  Supports conclusion already reached (justification)  33  27%  Better understanding of statutory purpose or history  25  20%  Information or background, example  23  19%  Build or improve interpretive argument or approach (construction)  17  14%  Noted but distinguished or seen as unhelpful  15  12%  Illuminate potential interpretive problem or show the consequence of a certain interpretation  11  9%  Total uses  124    Use of foreign law  Instances  Percent of total instances  Supports conclusion already reached (justification)  33  27%  Better understanding of statutory purpose or history  25  20%  Information or background, example  23  19%  Build or improve interpretive argument or approach (construction)  17  14%  Noted but distinguished or seen as unhelpful  15  12%  Illuminate potential interpretive problem or show the consequence of a certain interpretation  11  9%  Total uses  124    View Large The use of foreign law in statutory interpretation cases in different subject areas was also compared against the total number of statutory interpretation cases in these areas over the same period.111 The results show that in some areas, foreign law was referred to in every case before the SCC during 2011–15, such as securities law (100 per cent), language cases (100 per cent), maritime law (100 per cent), competition law (100 per cent), education (100 per cent), extradition (100 per cent), fiduciary law (100 per cent), and health law (100 per cent), although some of these subject areas had a very small number of appeals. Foreign law was also frequently cited in cases related to intellectual property (88 per cent), civil procedure (86 per cent), international law (67 per cent), and torts (67 per cent). Table 4 sets out the subject matter of statutory interpretation cases decided by the SCC from 2011 to 2015. Table 4: Subject matter of statutory interpretation cases decided by the Supreme Court of Canada 2011–15 Area of law  Total number of statutory interpretation cases  Number of statutory interpretation cases citing foreign law  Percent citing foreign law  Criminal  33  7  21%  Constitutional  32  7  22%  Administrative  19  7  37%  Labour and Employment  12  2  17%  Intellectual Property  8  7  88%  Civil procedure  7  6  86%  Immigration  7  2  29%  Taxation  6  2  33%  Aboriginal  4  1  25%  Courts  4  2  50%  Human rights  4  2  50%  Securities  4  4  100%  Access to Information  3  1  33%  Arbitration  3  0  0%  Communications  2  0  0%  Consumer protection  3  0  0%  Crown  3  0  0%  International  3  2  67%  Property  3  1  33%  Torts  3  2  67%  Bankruptcy and Insolvency  2  0  0%  Contract  2  0  0%  Family  2  0  0%  Language  2  2  100%  Maritime  2  2  100%  Provincial offences  2  0  0%  Public utilities  2  1  50%  Competition  1  1  100%  Damages  1  0  0%  Education  1  1  100%  Elections  1  0  0%  Environmental  1  0  0%  Extradition  1  1  100%  Fiduciary  1  1  100%  Food and drugs  1  0  0%  Health  1  1  100%  Insurance  1  0  0%  Military  1  0  0%  Pensions  1  0  0%  Police  1  0  0%  Privacy  1  0  0%  Transportation  1  0  0%  Area of law  Total number of statutory interpretation cases  Number of statutory interpretation cases citing foreign law  Percent citing foreign law  Criminal  33  7  21%  Constitutional  32  7  22%  Administrative  19  7  37%  Labour and Employment  12  2  17%  Intellectual Property  8  7  88%  Civil procedure  7  6  86%  Immigration  7  2  29%  Taxation  6  2  33%  Aboriginal  4  1  25%  Courts  4  2  50%  Human rights  4  2  50%  Securities  4  4  100%  Access to Information  3  1  33%  Arbitration  3  0  0%  Communications  2  0  0%  Consumer protection  3  0  0%  Crown  3  0  0%  International  3  2  67%  Property  3  1  33%  Torts  3  2  67%  Bankruptcy and Insolvency  2  0  0%  Contract  2  0  0%  Family  2  0  0%  Language  2  2  100%  Maritime  2  2  100%  Provincial offences  2  0  0%  Public utilities  2  1  50%  Competition  1  1  100%  Damages  1  0  0%  Education  1  1  100%  Elections  1  0  0%  Environmental  1  0  0%  Extradition  1  1  100%  Fiduciary  1  1  100%  Food and drugs  1  0  0%  Health  1  1  100%  Insurance  1  0  0%  Military  1  0  0%  Pensions  1  0  0%  Police  1  0  0%  Privacy  1  0  0%  Transportation  1  0  0%  View Large Table 4: Subject matter of statutory interpretation cases decided by the Supreme Court of Canada 2011–15 Area of law  Total number of statutory interpretation cases  Number of statutory interpretation cases citing foreign law  Percent citing foreign law  Criminal  33  7  21%  Constitutional  32  7  22%  Administrative  19  7  37%  Labour and Employment  12  2  17%  Intellectual Property  8  7  88%  Civil procedure  7  6  86%  Immigration  7  2  29%  Taxation  6  2  33%  Aboriginal  4  1  25%  Courts  4  2  50%  Human rights  4  2  50%  Securities  4  4  100%  Access to Information  3  1  33%  Arbitration  3  0  0%  Communications  2  0  0%  Consumer protection  3  0  0%  Crown  3  0  0%  International  3  2  67%  Property  3  1  33%  Torts  3  2  67%  Bankruptcy and Insolvency  2  0  0%  Contract  2  0  0%  Family  2  0  0%  Language  2  2  100%  Maritime  2  2  100%  Provincial offences  2  0  0%  Public utilities  2  1  50%  Competition  1  1  100%  Damages  1  0  0%  Education  1  1  100%  Elections  1  0  0%  Environmental  1  0  0%  Extradition  1  1  100%  Fiduciary  1  1  100%  Food and drugs  1  0  0%  Health  1  1  100%  Insurance  1  0  0%  Military  1  0  0%  Pensions  1  0  0%  Police  1  0  0%  Privacy  1  0  0%  Transportation  1  0  0%  Area of law  Total number of statutory interpretation cases  Number of statutory interpretation cases citing foreign law  Percent citing foreign law  Criminal  33  7  21%  Constitutional  32  7  22%  Administrative  19  7  37%  Labour and Employment  12  2  17%  Intellectual Property  8  7  88%  Civil procedure  7  6  86%  Immigration  7  2  29%  Taxation  6  2  33%  Aboriginal  4  1  25%  Courts  4  2  50%  Human rights  4  2  50%  Securities  4  4  100%  Access to Information  3  1  33%  Arbitration  3  0  0%  Communications  2  0  0%  Consumer protection  3  0  0%  Crown  3  0  0%  International  3  2  67%  Property  3  1  33%  Torts  3  2  67%  Bankruptcy and Insolvency  2  0  0%  Contract  2  0  0%  Family  2  0  0%  Language  2  2  100%  Maritime  2  2  100%  Provincial offences  2  0  0%  Public utilities  2  1  50%  Competition  1  1  100%  Damages  1  0  0%  Education  1  1  100%  Elections  1  0  0%  Environmental  1  0  0%  Extradition  1  1  100%  Fiduciary  1  1  100%  Food and drugs  1  0  0%  Health  1  1  100%  Insurance  1  0  0%  Military  1  0  0%  Pensions  1  0  0%  Police  1  0  0%  Privacy  1  0  0%  Transportation  1  0  0%  View Large The data show that the SCC is more likely to cite foreign law in statutory interpretation cases when the bench is divided as compared to unanimous judgments, lending support to the view that judges use foreign law to bolster their arguments in the face of opposition from colleagues on the bench. When the SCC is unanimous in a statutory interpretation case, foreign law is cited 25 per cent of the time. When there is a split decision in a statutory interpretation case, however, foreign law is cited 39 per cent of the time, a relative increase of 56 per cent. Split decisions account for an overall majority of the total number of statutory interpretation cases where foreign law is cited (26 out of 43 cases, or 60 per cent) as compared to the SCC splitting in a minority of all statutory interpretation cases (66 out of 135 cases, or 40 per cent). When there is a split decision that cites foreign law, it is almost always cited in the majority opinion (92 per cent) and often in dissenting opinions (76 per cent). Tables 5 and 6 set out the details. Table 5: Citations to foreign law and split versus unanimous decisions in statutory interpretation cases of the Supreme Court of Canada 2011–15   Statutory interpretation cases  Statutory interpretation cases citing foreign law  Percent citing foreign law  Split decisions (including concurring opinions)  66  26  39%  Unanimous decisions  69  17  25%  Total  135  43  32%    Statutory interpretation cases  Statutory interpretation cases citing foreign law  Percent citing foreign law  Split decisions (including concurring opinions)  66  26  39%  Unanimous decisions  69  17  25%  Total  135  43  32%  View Large Table 5: Citations to foreign law and split versus unanimous decisions in statutory interpretation cases of the Supreme Court of Canada 2011–15   Statutory interpretation cases  Statutory interpretation cases citing foreign law  Percent citing foreign law  Split decisions (including concurring opinions)  66  26  39%  Unanimous decisions  69  17  25%  Total  135  43  32%    Statutory interpretation cases  Statutory interpretation cases citing foreign law  Percent citing foreign law  Split decisions (including concurring opinions)  66  26  39%  Unanimous decisions  69  17  25%  Total  135  43  32%  View Large Table 6: Split decisions of statutory interpretation cases that cite foreign law decided by the Supreme Court of Canada 2011–15   Number of opinions  Number of opinions citing foreign law  Percent citing foreign law  Majority  26  24  92%  Dissent  21  16  76%  Concurring  5  2  40%    Number of opinions  Number of opinions citing foreign law  Percent citing foreign law  Majority  26  24  92%  Dissent  21  16  76%  Concurring  5  2  40%  View Large Table 6: Split decisions of statutory interpretation cases that cite foreign law decided by the Supreme Court of Canada 2011–15   Number of opinions  Number of opinions citing foreign law  Percent citing foreign law  Majority  26  24  92%  Dissent  21  16  76%  Concurring  5  2  40%    Number of opinions  Number of opinions citing foreign law  Percent citing foreign law  Majority  26  24  92%  Dissent  21  16  76%  Concurring  5  2  40%  View Large Out of all the statutory interpretation cases citing foreign law decided by the SCC from 2011 to 2015, nearly three-quarters of foreign law was introduced in factums by counsel for a party or an intervenor (74 per cent).112 The SCC appears to have introduced foreign law on its own initiative in the remaining cases (26 per cent). In cases where foreign law was introduced by the SCC, the judges tended to proceed cautiously by citing foreign law only when the bench was unified: more than half of the time where foreign law came from the bench itself, the SCC decision was unanimous (55 per cent). When the SCC cited foreign law that had been introduced by counsel, it was often in a case where the bench split (65 per cent), which is close to the overall background rate for the use of foreign law in split decisions (60 per cent). Table 7 includes details of the source of foreign law. Table 7: Source of foreign law in statutory interpretation cases decided by the Supreme Court of Canada 2011–15   Number of statutory interpretation cases citing foreign law  Percent of total  Split decisions  Percent of total  Unanimous decisions  Percent of total  Introduced by SCC  11  26%  5  45%  6  55%  Introduced by counsel  31  74%  20  65%  11  35%  Total  42  100%  25  100%  17  100%    Number of statutory interpretation cases citing foreign law  Percent of total  Split decisions  Percent of total  Unanimous decisions  Percent of total  Introduced by SCC  11  26%  5  45%  6  55%  Introduced by counsel  31  74%  20  65%  11  35%  Total  42  100%  25  100%  17  100%  View Large Table 7: Source of foreign law in statutory interpretation cases decided by the Supreme Court of Canada 2011–15   Number of statutory interpretation cases citing foreign law  Percent of total  Split decisions  Percent of total  Unanimous decisions  Percent of total  Introduced by SCC  11  26%  5  45%  6  55%  Introduced by counsel  31  74%  20  65%  11  35%  Total  42  100%  25  100%  17  100%    Number of statutory interpretation cases citing foreign law  Percent of total  Split decisions  Percent of total  Unanimous decisions  Percent of total  Introduced by SCC  11  26%  5  45%  6  55%  Introduced by counsel  31  74%  20  65%  11  35%  Total  42  100%  25  100%  17  100%  View Large To get a more detailed look at how the SCC uses foreign law in interpreting legislation, it is worth setting out several illustrative case studies that show considerable use of foreign law.113 In its 2011 judgment in Reference re Securities Act,114 the Canadian government referred questions to the SCC about the constitutionality of a national securities regulator, which required an interpretation of the constitutional division of powers and the proposed Securities Act. The unanimous bench held that the federal government lacked the constitutional competence to proceed alone, as the legislation would intrude into the powers and legitimate interests of the provinces. Before arriving at this conclusion, however, the SCC surveyed the securities laws of a number of other jurisdictions to illustrate that a more cooperative approach to securities regulation, in which different levels of government could participate, had been taken in other jurisdictions. The SCC observed that ‘Canada is not the only federation where the issue of the balance between local and national regulation’ had arisen.115 Looking at Germany, the SCC cited the division of powers in the Basic Law and the establishment of a three-tiered securities regulatory system, which included the participation of different levels of government.116 In Australia, the SCC referred to a negotiation between the Commonwealth and the Australian states that led to a cooperative approach ‘characterized by cross-vesting of jurisdiction’. When this arrangement faced legal challenges, the states agreed to refer the necessary powers to the Commonwealth to ensure its constitutionality. Next, the SCC looked at the United States and cited the commerce clause of the US Constitution that allows the federal government to ‘regulate virtually all aspects of interstate securities trading’.117 Despite these broad powers for the federal government to make securities laws, the American approach ‘did not exclude state participation’ and provided an important role for state governments in local enforcement and policy.118 In the 2012 SCC judgment in R. v. Mabior,119 the accused was charged with aggravated sexual assault because of his failure to disclose his HIV-positive status before having sex with several women. The question before the SCC was whether this lack of disclosure constituted fraud vitiating consent under section 265(3)(c) of the Criminal Code. In engaging with the interpretation of this provision, the unanimous bench made extensive use of foreign law to come to the view that the failure to disclose HIV status would only vitiate consent if there was a realistic possibility of HIV transmission. According to the SCC: A survey of comparative law shows that common law jurisdictions criminalize the actual sexual transmission of HIV, when the HIV-positive person is aware of his or her serologic status and when the partner does not give informed consent to the risk of infection. Several jurisdictions treat transmission of HIV following non-disclosure as offences involving bodily harm, rather than as sexual offences.120 The SCC went on to consider case law and legislation in England, where it found that the nondisclosure of HIV status would not vitiate consent.121 In Australia, the SCC looked to case law and legislation, observing that six out of nine jurisdictions criminalized only the actual transmission of HIV.122 In New Zealand, case law and legislation indicated that serious criminal liability attached only to the actual transmission of HIV, whereas a failure to disclosure HIV status in the absence of transmission might instead attract the lesser offence of criminal nuisance.123 Interestingly, the SCC also looked at United States case law on what factors had been seen by courts to vitiate sexual consent. It observed that American courts were more inclined to convict an accused for failure to disclose circumstances that gave meaning to the physical act. In rejecting this position in favour of a more restrictive interpretation of the Criminal Code, the SCC held that the American cases were ‘[m]inority voices’.124 In its 2012 judgment in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada,125 the SCC interpreted whether downloading a video game that included musical works constituted a ‘communication’ under section 3(1)(f) of the Copyright Act, which would require the payment of a tariff. In a split decision, the majority held that a download was not a communication under the Act, bolstering its position with references to English and US law.126 In dissent, Justice Rothstein distinguished the American law that had been cited by counsel on the basis that the US copyright regime was considerably different from the Canadian regime and that ‘[t]he two cannot be equated’.127 Justice Rothstein further cautioned against using US jurisprudence in intellectual property cases, writing: This Court has recognized in the past important differences both in wording and in policy between Canadian and American copyright legislation. It has cautioned that ‘United States court decisions, even where the factual situations are similar, must be scrutinized very carefully’…The difference in statutory wording between the provisions of the American legislation and of the Canadian Copyright Act is sufficient to render the U.S. decisions of no assistance in the interpretive exercise engaged here. Indeed, following the American jurisprudence in interpreting Canada’s copyright legislation would, in this case, amount to rewriting the Canadian Act.128 Finally, in Re:Sound v. Motion Picture Theatre Associations of Canada,129 a second intellectual property case decided the same year, the SCC interpreted a section of the Copyright Act in relation to the definition of a ‘sound recording’. The unanimous bench rejected foreign law that had been raised by the appellant. It noted that ‘the foreign jurisprudence makes it clear that significant differences exist between Canadian copyright legislation and the foreign legislation on which those decisions are based’ and that ‘[t]he distinction between the Canadian and foreign legislation is clear enough to discount any persuasive value that the cases in which this concept was applied might otherwise have had’.130 In looking at English law, the SCC observed that the definition of a sound recording under the relevant UK statute was ‘fundamentally different from the definition in the Canadian Act’.131 The SCC also distinguished Australian legislation and did not follow the outcome of a similar case decided by the High Court of Australia. Given differences in the Australian and Canadian statutes, the SCC held that the judgment of the High Court of Australia ‘is not a precedent that this Court is required to follow, nor is it compelling here’.132 (C) Taking Comparative Law Seriously The study demonstrates that the SCC cites foreign law regularly in resolving problems of statutory interpretation, and uses that foreign law for a variety of purposes. These results confirm Barak’s view that Canadian courts make frequent and fruitful use of foreign law. The frequency in which the SCC cites foreign law in statutory interpretation cases is similar to its use in Charter cases as shown by Gentili’s study. But the fact that statutory interpretation cases relate to a broader range of legal areas, including both public and private law, provides support to extend Gentili’s thesis that the SCC sees itself as part of an international human rights forum. More accurately, the SCC sees itself as part of a global jurisprudential exchange by drawing upon the foreign experience in a wide variety of cases. Notably, the use of foreign law by the SCC suggests that Waldron’s ius gentium already exists in a sense. Under Waldron’s view, the ius gentium acts as a storehouse of legal insight, capturing the law of mankind on various legal questions that includes consensus-based answers to common legal problems. The ius gentium on questions of statutory interpretation appears to operate as a sort of ‘words and phrases’ dictionary used by the SCC to locate foreign cases interpreting similar statutory provisions.133 The study, however, reveals limitations of the ius gentium. In particular, the study challenges the idea that the ius gentium is entirely analogous to the process of scientific development as the SCC does occasionally cite and reject foreign law in favour of a uniquely Canadian approach as observed by L’Heureux-Dubé, Bastarache, McLachlin, and Harding, and confirmed by Gentili. Therefore, while the ius gentium provides useful information to courts grappling with an interpretive question, even a global consensus view may be rejected in favour of a locally crafted solution.134 The inherent subjectivity of law, being the output of value choices and political compromise, and created in response to the domestic economic, social, and political environment, plays a strong role in legal development despite more sophisticated or elegant solutions developed elsewhere. It seems, therefore, that while the ius gentium can operate as a force of legal convergence, nudging domestic law in appropriate cases toward a consensus view, it cannot displace the need for law to remain relevant to local circumstances, which continues to preserve legal distinctiveness. This understanding also poses a challenge to Posner and Sunstein’s argument that there is a widely applicable ‘correct answer’ to a legal question that is likely to be the view of a large number of states.135 When it surveys the foreign legal landscape, the SCC appears to be motivated by a genuine desire to look elsewhere for wisdom and inspiration, fitting into Andenas and Fairgrieve’s category of utilitarianism. But the SCC’s use of foreign law in statutory interpretation cases for different purposes, and its selective use (in terms of what is cited, when it is cited and from where), raise a number of questions. As a preliminary matter, it is worth considering the impetus for citing foreign law in statutory interpretation cases. The practice may be best explained by considering the historical development of the common law in light of a shift from common law to legislation as a major source of Canadian law.136 In the past, common law courts from around the world worked collaboratively to build a ‘seamless web’ of law by borrowing innovations from each other.137 In recent decades, however, the explosive growth of statutory law and regulations has supplanted or completely ousted many areas traditionally occupied by common law. Even the few areas that remain principally common law, such as contracts and torts, have seen considerable legislative intervention.138 Despite this shift in emphasis from the common law to legislation, the common law ethos of judges drawing upon other reasoned judgments for assistance in resolving the instant case carries on. In particular, the practice of courts looking to foreign sources has found a new home in the interpretation of legislation, driven by a caseload that increasingly turns on questions related to statutory law. Interestingly, statutory interpretation cases citing foreign law tend to refer to foreign legislation less frequently than foreign cases. This focus on foreign judgments supports the view that courts have shifted the traditional practice of looking to foreign judicial reasoning in ordinary common law cases to statutory interpretation cases. Legislation, being the product of a foreign legislative process, carries a strong nationalist flavour that can offend notions of state sovereignty. Foreign judgments grappling with questions of statutory interpretation, however, seem more familiar as they look and feel more like common law judgments.139 It is also worth noting that judicial approaches to statutory interpretation, such as the SCC’s modern approach, are themselves part of the common law, providing a convenient entryway for sharing interpretive methods and even substantive reasoning with foreign courts.140 The principal question raised by the study, however, is whether the SCC’s use of foreign law in statutory interpretation cases can be seen as legitimate. The legitimacy of Canadian courts citing foreign law per se is well established because of its longstanding use as observed by Bushnell, Hirschl, and La Forest. The justification for the use of foreign law in individual statutory interpretation cases, however, remains underdeveloped. While it is clear that the SCC sees value in foreign law, it is not always entirely clear why it is cited in some cases and not others, why certain sources are cited over others, or why certain jurisdictions are considered and not others. As argued by Harvie and Foster, once the value of foreign law is recognized, it should not be resorted to in a random fashion. Moreover, statutory interpretation cases represent an increasing share of the caseload before Canadian courts. In statutory interpretation cases, the meaning ultimately given to a statutory word or phrase becomes the law that is not only applied to the case at hand but also to future cases as a precedent. As observed by Frank B. Cross, statutory interpretation is, in effect, a form of delegation of legal power from the legislature to the courts, which is why it is especially important for the exercise of this significant power to rest upon a principled foundation as opposed to the whims of judicial discretion.141 While there are those who argue that the SCC uses foreign law in a principled way, these arguments are not entirely convincing in light of the study. Gentili, for example, argues that the SCC is principled in its use of foreign law in Charter cases, writing that criticisms of cherry picking should be reconsidered in light of aversive foreign law citations.142 From the results of this study, however, it appears there are few criteria that can be devised to predict the SCC’s use of foreign law in statutory interpretation cases except to say that the sources may have been raised by counsel or are perceived by the judges as especially useful in resolving the interpretive problem at hand.143 Moreover, Gentili’s argument that a pattern of aversive citations assuages concerns about judicial cherry picking could neglect a more detailed analysis of the SCC’s use of foreign law. Foreign law might be cherry picked by judges to illustrate what the SCC intends not to do. Gentili himself notes that the SCC uses foreign law, particularly American law, to boldly reassert differences with other jurisdictions and to help define Canadian identity.144 This observation appears to support the view that judicial cherry picking can include citing foreign law that the SCC wishes to reject in order to be seen as developing a ‘made in Canada’ solution. It is argued that the use of foreign law as a legal formant in statutory interpretation cases demands a more principled approach than what exists at present to realize its full value and enhance the legitimacy of its use.145 One way forward is for the SCC to go further in signalling the importance of foreign law in statutory interpretation cases as the means to encourage counsel to locate useful and relevant sources. As demonstrated by the study, counsel play a very important role in introducing foreign law to the SCC.146 Even when foreign law raised by counsel is not ultimately cited by the court, its availability provides useful information in relation to the interpretive problem at hand and helps to situate it within a broader context. Perhaps the most effective way to achieve this goal would be for the SCC to modify the modern approach to statutory interpretation as set out in Rizzo & Rizzo Shoes Ltd. In its current form, the modern approach directs judges to strive for a harmonious balance among the statutory text, context, and purpose. By restating the modern approach to the effect that the context of a statute is broad enough to capture meaningful comparisons to similar legislation in similarly situated countries where courts have grappled with interpretive problems, counsel would be encouraged to locate and introduce relevant and useful sources of foreign law. As observed by Thomas Kadner Graziano, ‘[i]nsofar as judges agree to take inspiration from foreign law or international principles derived from comparison, the comparative method will also become an important tool for lawyers who wish to use it in court in the interest of their clients’.147 This approach would not be as drastic as setting aside the rules of interpretation in favour of legal harmonization, as cautioned against by Bastarache, but would reform the existing interpretive approach to add broader context to problems in a more principled way. In fact, the proposed restatement of the modern approach does not seek to promote legal harmonization. Instead, its goal is to provide the court with the best and most complete information related to the interpretive problem at hand, which can be drawn upon by the court as it sees appropriate. Through this approach, additional sources of law would be brought to the SCC’s attention, providing important information in cases that would otherwise not have benefited from the consideration of foreign law. This is a problem that has been recognized by SCC judges such as L’Heureux-Dubé who has written that counsel does not put forward foreign cases from similarly situated countries ‘as often as they should’.148 The proposed approach would not only allow the SCC to engage with comparative law more seriously by having access to a broader range of useful foreign law on similar problems of interpretation, it also carries other benefits. A systematic process of locating foreign law through counsel would strengthen the reliability of foreign law citations. In the context of an adversarial proceeding where foreign law is seen as relevant to an interpretive argument, counsel would scrutinize sources brought forward by opposing counsel and seek to locate other useful sources that may have been overlooked. Enhancing the accuracy of foreign law citations is especially important when it is used outside of conflict of laws cases, such as statutory interpretation cases. In conflicts cases, the reliability of foreign law is acute as it binds the domestic court and determines the legal outcome. Concerns about its reliability are addressed by having foreign law proved through an expert witness, who is subject to the rigors of the trial process including cross-examination. The proposed approach would bring improved safeguards to the use of foreign law in statutory interpretation cases as the parties would have the opportunity to locate, consider, and scrutinize foreign law. In addition, the proposed approach would help reduce the need for judges to locate foreign law on their own initiative. While courts retain a residual discretion to identify helpful interpretive materials, the sourcing of foreign law from the bench should be exceptional to promote confidence in an impartial judicial process. This is particularly significant as the study showed that judges often cite foreign law to add a pillar of support to their conclusions, especially in a split decision. Finally, the proposed approach would encourage judges to be more explicit in their reasoning to explain why foreign law introduced by counsel is helpful or unhelpful, providing a better understanding of the judicial reasoning process in statutory interpretation cases. Further explanation of the decision-making process and approaches to statutory interpretation would promote greater legal certainty on interpretive questions. In terms of potential downsides of the proposed approach, it could be argued that encouraging counsel to survey foreign law in statutory interpretation cases would require considerable resources and drive up the cost of litigation. While locating new sources of law would certainly involve additional work in preparing submissions, identifying useful foreign material is considerably easier now than in the past given modern legal research tools. A second concern is that the proposed approach could threaten to overwhelm courts with foreign sources of law. This concern could be addressed by focusing counsel on the most relevant and useful foreign approaches, and only in statutory interpretation cases that turn on a genuine question of ambiguity. 4. CONCLUSION This study examined a neglected area of the use of foreign law by domestic courts, namely in cases related to the interpretation of ordinary legislation. By focusing on statutory interpretation cases decided by the SCC over a five-year period, the study captured a broad range of cases in both public and private law. It showed that the SCC is indeed part of a global jurisprudential exchange not just in human rights but in many areas of law—providing support for a version of Waldron’s ius commune. It is suggested that the SCC regularly cites foreign law when facing an interpretive challenge in part because of a changing emphasis from the common law to legislation as the major source of Canadian law. The traditional practice of common law judges referring to other reasoned judgments in deciding their cases has transitioned from its origin in pure common law cases to statutory interpretation cases. In this sense, statutory interpretation cases have become part of what might be described as the new common law. By showing the extent to which the SCC uses foreign law, the study also raised questions about the legitimacy of using foreign law in domestic cases related to the interpretation of legislation. It is argued that while the use of foreign law per se carries historical legitimacy, the SCC should restate the modern approach to statutory interpretation to send a strong signal to counsel of the importance of meaningful comparisons to foreign law as part of situating the interpretive problem in a broader context from which the court can draw insight in appropriate cases. By doing so, the SCC would take comparative law seriously, maximize the value of foreign law and enhance the legitimacy of its use. The author would like to thank Or Regev for his research assistance. The standard disclaimer applies. Footnotes 1 See, e.g., R Hirschl Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press Oxford 2014) [Hirschl]; M Siems Comparative Law (Cambridge University Press Cambridge 2014); M Reimann, R Zimmermann (eds) The Oxford Handbook of Comparative Law (Oxford University Press Oxford 2006) [Reimann and Zimmermann], M Bussani, U Mattei (eds) The Cambridge Companion to Comparative Law (Cambridge University Press Cambridge 2012). 2 For example, the 2016 International Society of Public Law’s conference theme was ‘Borders, Otherness and Public Law’ (Humboldt University, Berlin). On legal cosmopolitanism, see H Patrick Glenn The Cosmopolitan State (Oxford University Press Oxford 2013). 3 [1978] 2 SCR 112. 4 Ibid at 116, 126. 5 2002 SCC 76. 6 Ibid, Para. 12. Also cited in M Bastarache ‘How Internationalization of Law has Materialized in Canada’ [2009] University of New Brunswick Law Journal 59, 190 at 194. 7 See, e.g., In the Matter of the Application of Euromepa, SA, 51 F3d 1095 (2d Cir., 1995) (interpreting a statute related to the rules of discovery where the court cited foreign law and observed that the act of statutory interpretation ‘contemplates international cooperation, and such cooperation presupposes an ongoing dialogue between the adjudicative bodies of the world community’, quoted in A-M Slaughter ‘Judicial Globalization’ [2000] Virginia Journal of International Law 40, 1103 at 1113). For the controversy of using foreign law in the United States, see, e.g., EA Posner, CR Sunstein ‘The Law of Other States’ [2006] Stanford Law Review 59, 131; on the controversy, in the United States as compared to the Canadian position, see B McLachlin ‘The Use of Foreign Law: A Comparative View of Canada and the United States’ [2010] American Society of International Law Proceedings 104, 491 where the Chief Justice of Canada argues that the different histories of Canada and the United States explain different attitudes to the judicial use of foreign law. 8 J Smits ‘Comparative Law and its Influence on National Legal Systems’ in Reimann and Zimmermann, above n 1, 477 at section II [Smits]. 9 Aristotle, The Politics, book 4, ch 1. 10 Smits, above n 8 at section II. 11 R Sacco ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II)’ [1991] The American Journal of Comparative Law 39, 343 at 345 [Sacco]. 12 Ibid. 13 Ibid at 395 where Sacco writes that a ‘particularly important instance [of judicial borrowing] is that in which the judge operates in a system with a code’. Sacco also observes that judicial borrowing often takes place through imitation. 14 J Bell ‘The Argumentative Status of Foreign Legal Arguments’ [2012] Utrecht Law Review 8, 8 at 12 [Bell]. 15 A Barak ‘A Judge on Judging: The Role of a Supreme Court in a Democracy’ [2002] Harvard Law Review 116, 19 at 111–112 [Barak]. Barak advocates a functional approach in the sense of locating a legal concept that fulfils a similar purpose in the two legal systems but cautious that both systems must share an ideological basis. 16 Bell analogizes the use of foreign law as a thread of a cord, twisted together to bear a load: above n 14 at 10–11. 17 A-M Slaughter ‘Judicial Globalization’ [2000] Virginia Journal of International Law 40, 1103. 18 Ibid at 1114. 19 Ibid at 1123–1124. 20 Ibid at 1113. 21 M Andenas, D Fairgrieve ‘Courts and Comparative Law: In Search of a Common Language for Open Legal Systems’ in Mads Andenas and Duncan Fairgrieve (eds) Courts and Comparative Law (Oxford University Press Oxford 2015) 3 at 4 [Andenas and Fairgrieve]. 22 Ibid at 8. 23 Ibid at 8–9. 24 Ibid at 11. See also Smits, above n 8 at section VI (predicting higher quality decisions and legislation due to globalization that encourages the use of foreign law). 25 J Waldron ‘Foreign Law and the Modern Ius Gentium’ in Andenas and Fairgrieve, above n 21, 536 at 539 (an earlier version of Waldron’s chapter was published at [2005] Harvard Law Review 119, 129) [Waldron]. 26 Ibid. 27 Ibid at 548. 28 Ibid. 29 Ibid at 548–550. Even if law in a particular state is an expression of will, there still may be benefit to the study of foreign law to arrive at better or more effective legal solutions to problems. 30 H Patrick Glenn ‘Persuasive Authority’ [1987] McGill Law Journal 32, 261. 31 Andenas and Fairgrieve, above n 21 at 12–20. See also TK Graziano ‘Is it Legitimate and Beneficial for Judges to Compare?’ in Andenas and Fairgrieve, above n 21, 25 [Graziano]. 32 See also generally Bell, above n 14 and Smits, above n 8. 33 K Zweigert ‘Rechtsvergleichung als universale Interpretationsmethode’ [1949] (Rabels) Zeitschrift für ausländisches und internationales Privatrecht 15, 5. See also G Frankenberg Comparative Law as Critique (Edward Elgar Cheltenham 2016) at 98–99. 34 EA Posner, CR Sunstein ‘The Law of Other States’ [2006] Stanford Law Review 59, 131. 35 Ibid at 140. 36 Ibid at 141. 37 E Benvenisti ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ [2008] The American Journal of International Law 102, 241. 38 Ibid at 255. 39 Bell, above n 14. 40 Ibid at 10. 41 Ibid at 11, 17 where Bell writes that lustre can be added by a foreign law where it fits the problem, it is consistent with internal legal principle and the reputation of the foreign country and the receptivity of the host country support the use of foreign law. 42 Ibid at 10–11. 43 Ibid at 19. See also T Bingham Widening Horizons (Cambridge University Press Cambridge 2010). 44 J Bell ‘Comparative Law in the Supreme Court 2010–11’ [2012] Cambridge Journal of International and Comparative Law 1, 20 at 23. 45 Ibid at 24. 46 A-M Slaughter ‘A Typology of Transnational Communication’ [1994] University of Richmond Law Review 29, 99 at 117–119. 47 Ibid at 119. 48 Barak, above n 15 at 111. 49 Smits, above n 8. 50 Ibid at section IV. 51 But see Smits, ibid at section IV who argues that the question of the legitimacy of foreign law only arises when it is used normatively to justify a decision as opposed to being used merely for inspiration; however, it is arguable that any influence on legal reasoning is a source of law and should be perceived as legitimate. See, e.g., Sacco, above n 11. 52 H Patrick Glenn ‘Persuasive Authority’ [1987] McGill Law Journal 32, 261. The risk is that if citing foreign law is not accepted as a feature of the judicial reasoning process, public confidence in the judiciary and judicial pronouncements on the law could diminish. 53 Hirschl, above n 1 at 30. 54 See, e.g., RJ Delahunty and J Yoo ‘Against Foreign Law’ [2005] Harvard Journal of Law & Public Policy 29, 291. 55 Quoted in Andenas and Fairgrieve, above n 21 at n 14. 56 539 US 558 (2003). 57 RD Glensy ‘Which Countries Count? Lawrence v. Texas and the Selection of Foreign Persuasive Authority’ [2005] Virginia Journal of International Law 45, 357 at 359, 361–372. 58 Ibid at 359. 59 Ibid at 411–440. For a detailed discussion of the comparative method in judging, see B Markesinis and J Fedtke ‘The Judge as a Comparativist’ [2006] Tulane Law Review 80, 11. See also B Markesinis and J Fedtke, Judicial Recourse to Foreign Law: A New Source of Inspiration? (Routledge New York 2006). 60 Barak, above n 15 at 114 (footnote omitted). 61 SI Bushnell ‘The Use of American Cases’ [1986] University of New Brunswick Law Journal 35, 157. 62 R Harvie, H Foster ‘Ties that Bind? The Supreme Court of Canada, American Jurisprudence, and the Revision of Canadian Criminal Law under the Charter’ [1990] Osgoode Hall Law Journal 28, 731 at 782. 63 GV La Forest ‘The Use of American Precedents in Canadian Courts’ [1994] Maine Law Review 46, 211 [La Forest]. 64 Ibid at 212. 65 Ibid at 220. 66 Ibid at 217. 67 Ibid at 214. 68 Ibid at 217. 69 C L’Heureux-Dubé ‘The Importance of Judicial Dialogue: Globalization and the International Impact of the Rehnquist Court’ [1998] Tulsa Law Review 34, 15 [L’Heureux-Dubé]. 70 Ibid at 26–27. 71 Ibid at 27 responding to a critique that the SCC is cited more by courts in Zimbabwe, South Africa and Israel than the SCC cites those courts, writing ‘[i]n part, this is because litigants do not put these cases before us as often as they should’. 72 R Lefler ‘A Comparison of Comparison: Use of Foreign Case Law as Persuasive Authority by the United States Supreme Court, the Supreme Court of Canada, and the High Court of Australia’ [2001] Southern California Interdisciplinary Law Journal 11, 165. 73 SI Smithey ‘A Tool, Not a Master: The Use of Foreign Case Law in Canada and South Africa’ [2001] Comparative Political Studies 34, 1188. 74 SK Harding ‘Comparative Reasoning and Judicial Review’ [2003] Yale Journal of International Law 28, 408 at 413 [Harding]. 75 [1992] 1 SCR 385. 76 Harding, above n 74 at 415. 77 Ibid at 432, see also the discussion at 454–458. 78 Ibid at 425–426. 79 Ibid at 425. 80 B Roy ‘An Empirical Survey of Foreign Jurisprudence and International Instruments in Charter Litigation’ [2004] University of Toronto Faculty of Law Review 62, 99. 81 Ibid at 138–139. 82 Ibid at 104. 83 M Bastarache ‘How Internationalization of the Law has Materialized in Canada’ [2009] University of New Brunswick Law Journal 59, 190 [Bastarache]. 84 2002 SCC 76. 85 Ibid, Paras 12–13. 86 Bastarache, above n 83 at 195. 87 Ibid. 88 Ibid at 204. 89 AM Dodek ‘Comparative Law at the Supreme Court of Canada in 2008: Limited Engagement and Missed Opportunities’ [2009] Supreme Court Law Review 47, 445 [Dodek]. 90 Ibid at 473. 91 P McCormick ‘American Citations and the McLachlin Court: An Empirical Study’ [2009] Osgoode Hall Law Journal 47, 83 at 126–129. 92 B McLachlin ‘The Use of Foreign Law: A Comparative View of Canada and the United States’ [2010] American Society of International Law Proceedings 104, 491. 93 Ibid at 491–493. 94 Ibid. 95 G Gentili ‘Enhancing Constitutional Self-Understanding through Comparative Law: An Empirical Study of the Use of Foreign Case Law by the Supreme Court of Canada (1982–2013)’ in Andenas and Fairgrieve, above n 21, 378 [Gentili]. 96 Ibid at 392. 97 See, e.g., Canadian National Railway Co v. Norsk Pacific Steamship Co, [1992] 1 SCR 1021, a tort case where both the majority and dissent refer to foreign law in their reasons but come to different results. 98 Gentili, above n 95 at 401–403. 99 [1987] 1 SCR 588 at Para. 108. 100 Gentili, above n 95 at 402. 101 Ibid at 404. As discussed later, Gentili does not address the point that aversive citations might themselves be instances of cherry picking. 102 Ibid at 405–406. 103 [1998] 1 SCR 27. 104 Ibid, Para. 21 quoting E Driedger Construction of Statutes (2nd edn Butterworths Toronto 1983) at 87. 105 See, e.g., Bell ExpressVu Limited Partnership v. R, [2002] 2 SCR 559. 106 Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 107 Charter of Human Rights and Freedoms, CQLR c C-12. 108 The study includes interpretations of other human rights legislation where such legislation is enacted by way of an ordinary statute and does not include a supremacy clause. 109 One instance is recorded per country if that country’s legislation or case law is cited once, or more than once, per opinion. For example, if five English cases are cited in the majority opinion and one English case is cited in a dissenting opinion, two instances would be recorded for England and Wales (one for the majority, one for the dissent). 110 Each use of foreign law per country in each opinion was recorded, for a total of 124 uses across the 43 statutory interpretation cases. The six different categories of uses were derived from an analysis of all the uses of foreign law by the SCC in the statutory interpretation cases from 2011 to 2015. 111 Each case was associated with up to three different areas of law in relation to the subject matter of the appeal (and not just in relation to the problem of statutory interpretation). 112 While there were 43 statutory interpretation cases decided by the SCC citing foreign law from 2011 to 2015, the factums from only 42 cases were available through the SCC’s case information docket. All factums were searched, including those of the parties and intervenors, for foreign case law or legislation used by the SCC in interpreting legislation. Counsel was deemed to be the source of the foreign law if at least one foreign case or statute used by the SCC appeared in a factum. 113 These case studies were selected as they can be seen as the ‘gold standard’ of the SCC’s engagement with foreign law in statutory interpretation cases. 114 2011 SCC 66. 115 Ibid, Para. 48. 116 Ibid, Para. 49. 117 Ibid, Para. 51. 118 Ibid, Para. 52. 119 2012 SCC 47. 120 Ibid, Para. 50. Emphasis in original. 121 Ibid, Paras 50–51. 122 Ibid, Para. 52. 123 Ibid, Paras 50, 53–54. 124 Ibid, Para. 41. 125 2012 SCC 34. 126 Ibid, Paras 40–42. 127 Ibid, Para. 103. 128 Ibid, Para. 104. 129 2012 SCC 38. 130 Ibid, Paras 41, 44. 131 Ibid, Para. 42. 132 Ibid, Para. 46. 133 Like a ‘words and phrases judicially considered’ dictionary, which points to how certain words and phrases has been interpreted and applied by common law courts. For example, see D Greenberg Stroud’s Judicial Dictionary of Words and Phrases (8th edn Sweet & Maxwell London 2013). 134 A limitation recognized by Waldron, above n 25 at 548 where he notes that the law can be adapted by courts to the local circumstances ‘on a scientific basis’ if the ius gentium is used in a genuine way. See also Andenas and Fairgrieve, above n 21 at 8 who write that comparative law can act as an important reference point for judicial decision-making, even when different answers are reached. 135 Posner and Sunstein’s innovative argument is premised on the view that there can be an answer to a legal question that is generally correct (and not just correct in a particular state). 136 Presumably, this has occurred in other countries as well, contributing to the development of a fast-growing body of jurisprudence relating to questions of statutory interpretation. 137 An idea commonly attributed to FW Maitland ‘A Prologue to a History of English Law’ [1898] Law Quarterly Review 14, 13. 138 For example, legislation relating to tort in British Columbia includes the Negligence Act, RSBC 1996, c 333; Occupiers Liability Act, RSBC 1996, c 337; Privacy Act, RSBC 1996, c 373, Business Practices and Consumer Protection Act, SBC 2004, c 2; Civil Rights Protection Act, RSBC 1996, c 49; Tobacco Damages and Health Care Costs Recovery Act, SBC 2000, c 30. 139 There is a practical reason as well: the detailed reasoning process of a foreign court in approaching a similar interpretive problem will often be of more comparative value to a domestic judge than the more sterile text of foreign legislation. 140 This is confirmed by legislation directing interpretive approaches in certain matters such as the federal Interpretation Act, RSC 1985, c I-21 and the provincial equivalents. For scholarly perspectives on interpretive legislation, see CDL Hunt, L Neudorf, and M Rankin (eds) Legislating Statutory Interpretation: Perspectives from the Common Law World (Carswell Toronto forthcoming 2017). 141 FB Cross The Theory and Practice of Interpretation (Stanford University Press Stanford 2008) at ch 1. 142 Gentili, above n 95 at 404. 143 Again, without adequate explanation for why these sources are more useful than others. 144 Gentili, above n 95 at 404. 145 Dodek, above n 89 at 448 observes the importance of the interpretive methodology to the judicial function, which supports the argument that foreign law should be used by the SCC in a consistent and principled manner. 146 As had been observed by Justice La Forest, above n 63 at 217, and Justice L’Heureux-Dubé, above n 69 at 25. In two of the cases reviewed above, it is also noteworthy that the SCC considered but rejected foreign law raised by counsel, demonstrating that counsel plays an important role in the consideration of foreign law, even when it is ultimately rejected by the bench: see above n 124 and n 128. 147 Graziano, above n 31 at 52. 148 L’Heureux-Dubé, above n 69 at 27. © The Author(s) 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

Taking Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern Approach to Statutory Interpretation

Statute Law Review , Volume Advance Article (2) – Feb 20, 2017

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Abstract

1. INTRODUCTION The past few years have seen a resurgence of comparative law scholarship with the publication of a number of major works in the field.1 Scholarly interest in comparative law has been bolstered by a renewed sense of cosmopolitism, fading state borders, and increasing linkages among different legal systems.2 Detailed studies have examined the use of foreign law by domestic courts, usually excluding cases where courts formally apply foreign law as part of local conflict of laws rules. In other words, scholars have focused on situations where domestic courts invoke foreign law as a persuasive, rather than a binding, source of law. Studies tend to look at constitutional or human rights cases, with a number of scholars suggesting the emergence of a global jurisprudential exchange on the interpretation and scope of fundamental rights protections. While there is increased sharing of information among legal systems on questions of human rights, it appears that universalism can only be achieved at a higher, more abstract level as opposed to the domestic plane where law is routinely applied to concrete, individual cases. Not only do national legal systems still matter, broadly worded rights guarantees are continually interpreted and adapted by domestic courts in individual cases to the local context and economic, political, and social realities. This study examines an important but largely neglected area of comparative legal research related to the use of foreign law in domestic courts. Unlike other studies, it does not focus on constitutional or human rights cases but rather on the use of foreign law by the Supreme Court of Canada (‘SCC’) when it is called upon to interpret domestic legislation. By focusing on the use of foreign law in statutory interpretation, the study captures a broad range of cases in both public and private law. It also evaluates the claim of whether the global jurisprudential exchange extends into the realm of purely domestic law or whether it is limited to broader human rights recognized on the international plane. At first glance, it may seem curious that courts like the SCC would cite foreign law at all in working out the meaning of a domestic statute. But it is easy to see that common law courts have drawn from approaches taken elsewhere in solving problems of statutory interpretation. For example, in the SCC judgment in Pacific Coast Coin Exchange v. Ontario Securities Commission,3 the outcome of a securities case hinged on the meaning to be given to the statutory term ‘investment contract’. Although divided in the result, both the majority and the dissent closely examined American law for guidance. Given similar legislative frameworks and policy objectives between the Canadian and American statutes, the majority wrote that it was ‘a wise course to look at decisions reached by the U.S. Courts’, while the dissenting judge observed that the ‘more extensive jurisprudence in the United States has been regarded as useful for Canadian courts called upon to wrestle with similar problems of interpretation and application’.4 Similarly, in the 2002 SCC judgment of Harvard College v. Canada (Commissioner of Patents),5 the dissenting judges wrote that ‘legislation varies of course, from state to state, but broadly speaking Canada has sought to harmonize its concepts of intellectual property with other like-minded jurisdictions. The mobility of capital and technology makes it desirable that comparable jurisdictions with comparable intellectual property legislation arrive (to the extent permitted by the specifics of their own laws) at similar results’.6 Even courts in the United States, where citations to foreign legal sources remain considerably controversial, have referred to foreign approaches to help give meaning to statutory provisions.7 A number of scholars have pointed to the longstanding use of foreign law in the formulation of domestic legislation. Jan Smits, for example, has demonstrated the important role played by foreign legislation throughout history, citing the Law of the Twelve Tables (c. 450 BCE) as having been influenced by Roman visits to Greek cities.8 Notably, the Greeks were also comparativists and the Roman tradition may have itself absorbed Greek approaches. In The Politics, for example, Aristotle states that ‘we must know the varieties, and the number of varieties, of each form of government, if only with a view to making laws’.9 According to Smits, the entire field of comparative law has been shaped by this desire to look elsewhere to create the best law.10 Notably, the use of foreign law is not limited to looking elsewhere during the legislative drafting process. As seen with the SCC, it can also be used to interpret statutes. Rodolfo Sacco has pointed out that the application of law to the facts of a case involves an interaction between a primary source of law, such as a statute, and the individual interpreter.11 According to Sacco, influences that act upon the convictions of the interpreter are themselves a source of law, which he labels ‘legal formants’.12 In interpreting legislation, judges borrow from what they have observed elsewhere, even informally.13 John Bell writes that foreign law can add force to a domestic legal argument about the construction of a statute by providing a useful illustration or example. Bell argues that a ‘good lawyer ought to find out about interpretations given of common legal documents or common principles’.14 And Aharon Barak has observed that judges can use comparative law to learn more about the purpose of a statute, even if it was not originally influenced by foreign legal developments.15 This paper examines the SCC’s use of foreign law in statutory interpretation cases over a period of five years to better understand when, how, and why foreign law is used. The study reveals that the SCC regularly cites foreign legal sources in deciding cases turning on questions relating to the interpretation of domestic legislation, confirming Bell’s view that foreign law can be used to add weight to otherwise plausible legal arguments.16 However, because of the inconsistent use of foreign law by the SCC in statutory interpretation cases, this paper argues that the legitimacy of citing foreign law would be enhanced by adopting a principled approach. Through a modest reform to the SCC’s ‘modern approach’ to statutory interpretation, Canadian courts could fully realize the value of the foreign experience on similar problems of interpretation. In doing so, Canadian courts would take comparative law seriously and enhance its legitimacy as part of the judicial reasoning process in appropriate cases. 2. FOREIGN LAW IN DOMESTIC COURTS (A) Introduction The use of foreign law by domestic courts has been the subject of considerable study and analysis by legal scholars. Most studies focus on cases outside of situations where courts formally apply foreign law as part of conflict of laws rules, or in other words, when courts use foreign law as a persuasive, non-binding source of law. Constitutional and human rights cases have attracted the most scholarly attention. Studies range from numerical assessments that simply count foreign law citations to qualitative studies that examine cases citing foreign law in detail. Others rely on judicial interviews to shed light on how judges think about foreign law, which illustrate how foreign law can be used informally, even when it is not cited in a judgment. In addition to these studies, which provide valuable information and analysis on the use of foreign law, others have considered questions of legitimacy related to domestic courts using foreign law. This Part surveys a range of scholarly perspectives on the use of foreign law in domestic courts to situate the SCC’s use of foreign law in statutory interpretation cases. It then reviews studies that have previously examined the use of foreign law by the SCC. (B) The Global Jurisprudential Exchange A number of legal scholars have highlighted the emergence of what can be described as a ‘global jurisprudential exchange’ in recent years, driven in part by increased communication among courts and judges and new formal and informal linkages. Anne-Marie Slaughter has convincingly argued that courts can be seen as part of a broader trend of globalization.17 Slaughter points to an emerging international judicial comity, in which judges give respectful attention to the work of other jurists, based on a view of courts engaged in the common judicial enterprise of resolving disputes by interpreting and applying law.18 Slaughter writes that domestic courts see foreign judges not as faces of foreign governments but rather as fellow judicial professionals.19 According to Slaughter, ‘courts in different nations are entitled to their fair share of disputes…as co-equals in the global task of judging’.20 Similarly, Mads Andenas and Duncan Fairgrieve write that legal systems have become increasingly open to the use of foreign law over the past decade. Andenas and Fairgrieve see courts as laboratories of law that try out different methods and approaches, the results of which can be drawn upon by others.21 Under this view, courts exchange legal solutions and generate a network of persuasive authority. Although legal systems might come up with different answers to similar questions, comparative law acts as an important reference point for judicial decision-making.22 Andenas and Fairgrieve, however, note unresolved problems related to the methodology of using foreign law in domestic courts, including questions of relevance, the weight to be given to foreign law, and problems of accessing the source material.23 Nevertheless, a global dialogue and international marketplace of case law is emerging, which ‘plays a role in developing the substantive law in different areas, including in finding normative solutions to questions of a more technical kind’.24 Jeremy Waldron has taken the idea of a global jurisprudential exchange a step further by advancing a compelling rationale for the use of foreign law. Waldron seeks to restore the historical meaning of the ius gentium, in the sense that the law of nations should be seen as extending beyond international law to include the law of mankind on a wide range of legal issues, including property and contract.25 Under Waldron’s conception, the ius gentium represents a consensus-based body of law of shared answers to common problems, which better accords with the approach taken by scientists who draw upon a body of existing knowledge before carrying out scientific research. As a store of legal insight, the ius gentium can allow a domestic court to think through a legal problem ‘in the company of those who have already dealt with it’.26 According to Waldron: By paying attention to what other jurists have done with this relation or similar relations, we treat it as a problem to be solved in part by attending to the established deliverances of legal science—the enterprise, which many legal systems share, of grappling with, untangling, and resolving the rival rights and claims that come together in issues of this kind.27 Waldron does not suggest that domestic courts should simply defer to legal solutions in the ius gentium. Instead, he sees the law of nations as persuasive, noting that the law can be adapted by courts ‘on a scientific basis’ to local circumstances.28 While Waldron acknowledges the difficulty of ascertaining the law forming part of the ius gentium, and the problem of cherry picking certain aspects of the ius gentium in order to reinforce predetermined conclusions, these problems are not fatal to the enterprise. By seeing the law as a reasoned and deliberative process instead of will imposed by authority, Waldron argues that the ius gentium can be used in a genuine way.29 (C) The Value of Foreign Law As the late H. Patrick Glenn observed, citing foreign law in a domestic legal system adds new sources of law to that system.30 Adding new sources means that domestic law becomes less certain and precise. What is the justification for adding these new sources of law? There are a number of views on why domestic courts use foreign law and what it can offer. Andenas and Fairgrieve have developed a typology of different judicial uses of foreign law that include (i) providing support for a rule or outcome; (ii) normative models where national law is undetermined; (iii) reviewing factual assumptions about the consequence of a legal rule; (iv) reviewing assumptions about the universal applicability of a rule; (v) providing additional support to overturn domestic authority; (vi) developing principles of domestic law; and (viii) resolving problems of applying European Union or international law.31 These uses of foreign law can be driven by one of two key approaches.32 The first strong convergent approach is that as a matter of justice or fairness, legal systems should strive for consistency with other legal systems to the extent possible under domestic law. The use of foreign law by domestic courts under this approach (even when foreign law is seen as persuasive) facilitates a process of gradual harmonization among different national legal systems. This perspective is often associated with natural law. The second utilitarian approach, often adopted by judges reflecting on their use of foreign law, is that foreign law acts as a source of inspiration for domestic legal developments. Under this approach, looking at foreign law is not motivated by a desire to harmonize laws across different jurisdictions but is part of a creative problem-solving process in which a judge seeks to craft the best solution to a legal problem (although this may have an incidental harmonizing effect). Differences among legal systems are likely to persist as law remains firmly rooted in the domestic order despite foreign influences. A handful of scholars take the strong convergent view that judges should look to foreign law to achieve similar legal outcomes across legal systems. For example, Konrad Zweigert has written that comparative law should be used as a universal method of interpretation, which is rooted in the goal of achieving similar legal outcomes across legal systems.33 Eric Posner and Cass Sunstein also adopt an approach in favour of harmonization on the basis that a majority of states in a large group is likely to come to the correct legal answer to a particular problem.34 Following this approach would lead to legal convergence, although Posner and Sunstein stress that foreign law is only persuasive as a source of information and not binding authority.35 Posner and Sunstein ground their perspective in the ‘Condorcet Jury Theorem’, which posits that the probability of arriving at the right answer by a majority in group increases as the size of the group increases, provided each member of the group is more likely than not to come to the right answer.36 Notably, not all scholars who endorse judicial coordination through the use of foreign law expect convergence across legal systems. For example, Eyal Benvenisti writes that judges from different jurisdictions have taken a coordinated approach to shield themselves from external pressures and to protect their institutional independence.37 In Benvenisti’s view, this judicial coordination, which takes place through foreign citation, allows judges to challenge executive unilateralism in the face of threats posed to democratic processes by globalization.38 Courts align their decisions with other domestic courts in certain areas as a response to the increasing delegation of government decision-making to international institutions. In Benvenisti’s view, a coordinated approach has the effect of expanding domestic legal discourse as it helps courts resist internationalist influences. The majority of scholars do not strongly advance the desirability of legal convergence but rather see some value in the foreign experience that can act as a source of inspiration for domestic developments. John Bell sees foreign law as capable of providing additional support to arguments that are otherwise acceptable in domestic law.39 In interpreting law, judges give meaning to words and resolve competing arguments about the correct interpretation. Lawyers draw arguments from the store of ‘currently arguable versions of the law’ within the national legal system.40 Foreign law can then be used to add weight to a statement of domestic law in certain circumstances,41 which is more about cross-fertilization than legal transplantation.42 In Bell’s view, foreign law can trigger a closer look at domestic law by providing perspective in light of different approaches and novel solutions. Although Bell acknowledges the desirability of achieving consistent legal outcomes in similar situations among socially and politically similar states, he reiterates that legal arguments must be firmly grounded in domestic law, writing that ‘[i]f the reasons are not convincing in domestic law, then no amount of foreign law is going to make them good enough’.43 In looking at the jurisprudence of the UK Supreme Court in the 2010–11 judicial year, Bell observed that foreign law was not a defining reason for a decision but rather provided a benchmark for the rightness of what the judges thought was the right answer in English law.44 According to Bell, the UK Supreme Court was ‘very open to look at a variety of sources when value can be added to the justifications for their decisions by doing so’.45 Similarly, Slaughter sees value in foreign law through a process of cross-fertilization and the dissemination of ideas from one place to another.46 While benefits flow from collective judicial deliberation, foreign law can enhance the persuasiveness of an argument or the authority or legitimacy of a decision by showing that others have gone down the same path before.47 Aharon Barak likewise writes that comparative law is an ‘experienced friend’ that helps judges find the right path by expanding the interpretive field of vision, so long as the countries share a common ideological basis.48 Smits emphasizes the voluntary nature of foreign law in domestic cases but writes that it would be counter-productive for courts not to benefit from foreign law on similar legal problems.49 He identifies a number of uses of foreign law, including providing a source of fresh ideas, adding normativity to justify a decision or for ‘ornamental’ purposes to convince others of the quality of the outcome.50 (D) The Legitimacy of Foreign Law The previous section identified why foreign law might be seen as valuable by domestic courts. While it could be argued from a utilitarian perspective that this value alone justifies its use, the broader question of the legitimacy of domestic courts using foreign law should also be addressed. By emphasizing the persuasive, as opposed to binding, nature of foreign law, judges and scholars seek to disarm the perceived threat that foreign law poses to national sovereignty.51 Nevertheless, it is clear that the use of foreign law by domestic courts must be viewed as legitimate in the political order for it to be accepted as a feature of the judicial decision-making process.52 In many countries, the use of foreign law is perceived as legitimate because of its historical usage—a kind of historical legitimacy. In such systems, citation to foreign law is simply accepted as a longstanding feature of adjudication. For example, Canadian courts have long cited American and English law and that of other Commonwealth countries with little serious questioning of its legitimacy. As a result, there is little resistance to the use of foreign law by Canadian courts.53 Elsewhere, most notably in the United States, the legitimacy of courts citing foreign law has been more seriously contested, even by judges.54 In response, US Supreme Court Justice Sandra Day O’Conner has sought to justify the use of foreign law in American courts by highlighting the important role played by the United States in an increasingly interconnected world, which requires US courts to be open to the foreign experience to allow them to play their part in the global exchange. According to Justice O’Conner, ‘with time we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues. Doing so may not only enrich our own country’s decisions; it will create that all-important good impression. When US courts are seen to be cognizant of other judicial systems, our ability to act as a rule-of-law model for other nations will be enhanced’.55 Rex Glensy, writing after the US Supreme Court decided Lawrence v. Texas,56 in which a majority of the Supreme Court referred to foreign law in holding a Texas statute criminalizing sodomy to be constitutionally invalid, makes a number of arguments in favour of the legitimacy of American judges citing foreign law. Glensy first argues for historical legitimacy, pointing to a centuries-old tradition of foreign law in American courts.57 He then seeks to alleviate concerns about foreign law overtaking American sovereignty on the basis that the judge retains control over the use of foreign law as it is merely persuasive.58 Glensy also addresses questions about the comparative method by setting out criteria for the selection of foreign law that includes a country’s ‘democratic quotient’, its social affinities with the United States, and the context of the case.59 3. PREVIOUS STUDIES ON THE SCC’S USE OF FOREIGN LAW The SCC is frequently held up as a model of openness in part because of its use of foreign law. For example, Barak writes that ‘[t]he Supreme Court of Canada is particularly noteworthy for its frequent and fruitful use of comparative law. As such, Canadian law serves as a source of inspiration for many countries around the world’.60 Detailed studies of the SCC, however, paint more of a mixed picture of its use of foreign law. Most of these studies have focused on constitutional or criminal cases, and often on the use of American law in particular, which presents an opportunity for a broader study of the SCC’s approach to foreign law in statutory interpretation cases. Studies from the 1980s and 1990s were largely positive about the use of foreign law by the SCC. In 1986, SI Bushnell conducted an empirical analysis of the use of American case law by Canadian appellate courts in different areas of law.61 The study found that Canadian courts have a long history of using American law, stretching back to the country’s founding in 1867. Notably, Bushnell raised questions about how US cases were valued and used by Canadian courts, although the study did not answer these questions. Three years later, Robert Harvie and Hamar Foster looked at the use of American law by the SCC in criminal cases, concluding that American case law ‘is not being systematically consulted and analyzed. It is, of course, not binding on Canadian courts and, in fact, need not be referred to at all. However, once the general value and relevance of United States law has been recognized, however cautiously, it ought not to be resorted to in a random fashion’.62 In 1994, Justice Gérard La Forest offered his views on the SCC’s use of American law.63 According to La Forest, Canadian courts have always welcomed foreign materials because of the country’s roots in English and French law and the Privy Council in London acting as a final court of appeal until 1949. Based on this longstanding practice, the SCC maintains a ‘sincere out-ward-looking interest in the views of other societies, especially those with traditions similar to ours’.64 Notably, La Forest endorses a utilitarian view in using foreign law, writing that the use of foreign materials affords another source, another tool for the construction of better judgments. Recourse to such materials is, of course, not needed in every case, but from time to time a look outward may reveal refreshing perspectives. The greater use of foreign materials by courts and counsel in all countries can, I think, only enhance their effectiveness and sophistication.65 La Forest notes the important role of legal counsel in encouraging the SCC’s use of foreign law by introducing it in argument.66 He points to the Charter of Rights and Freedoms with its constitutionally entrenched bill of rights, enacted in 1982, as marking an expansion in the use of American cases. La Forest, however, cautions that US materials must be modified to fit the Canadian context.67 While the use of American law may diminish over time in Charter cases as Canadian law develops, La Forest wrote that he was ‘confident that the use of American, international, and foreign materials will continue to grow in other areas’ as the SCC is genuinely interested in comparisons and legal cosmopolitanism.68 Four years later, Justice Claire L’Heureux-Dubé also commented on the SCC’s use of foreign law.69 According to L’Heureux-Dubé, judges from around the world look to each other for persuasive authority, although she warned that a legal outcome in one country might not be appropriate in another. L’Heureux-Dubé noted that foreign law is not only useful to generate new ideas to follow but also as a departure point, writing that ‘understanding and articulating the reasons a different solution is appropriate for a particular country helps make a better decision’.70 Like La Forest, L’Heureux-Dubé highlights the important role of counsel in drawing the court’s attention to relevant foreign law.71 The 2000s brought several new, detailed studies of the SCC’s use of foreign law. While the enthusiasm for foreign law continued, a number of scholars reiterated Harvie and Foster’s question of whether the SCC was fully engaged in comparative law and whether its use was consistent. In 2001, Rebecca Lefler compared the use of foreign law among the SCC, the US Supreme Court and the Australian High Court.72 Lefler found that the use of comparative law was helpful in developing arguments and counter-arguments as the wisdom of esteemed foreign jurists dealing with similar problems was too valuable to be ignored. Two years later, SI Smithey studied the use of foreign law in constitutional cases in both Canada and South Africa.73 Smithey’s results showed that judges used foreign law in relation to new and contentious questions to justify the outcome and persuade others of its rightness. In a 2003 article on comparative reasoning, Sarah Harding wrote that Canadian courts were engaged in an international dialogue and used foreign law frequently, even going so far as to argue that ‘comparative judicial reasoning is integral to the Court’s methodology’.74 She noted that foreign law appeared in the SCC’s statutory interpretation cases, citing the case of Thomson v. Canada,75 in which the Court looked to Australian law to interpret domestic legislation.76 In Harding’s view, by using foreign law as an interpretive tool, the SCC could devise its own solution to a legal problem through a dynamic and context-driven process.77 Like L’Heureux-Dubé, she observed that the SCC sometimes used American law as an example of what not to follow.78 Harding concludes that the SCC demonstrates an ‘eagerness . . . to engage in cross-border judicial dialogue while still paying close attention to local circumstances’.79 In 2004, Bijon Roy carried out a study on foreign law in Charter litigation from 1983 to 2003.80 Roy found that the SCC had developed an open approach that was receptive to foreign law but that its decisions were ultimately grounded in the cultural, historical, and political context of Canada.81 Roy’s study supports Bell’s analysis. Foreign law was rarely used to dispose of Charter cases and there was therefore little threat of the SCC cherry picking foreign cases to overturn domestic law. In areas where the law was underdeveloped, the SCC would draw on foreign law as one source to help generate new ideas, although it applied foreign law cautiously.82 A cautious note was also sounded five years later by Justice Michel Bastarache, who took up the question of the legitimacy of the SCC’s use of foreign law.83 Bastarache wrote that the SCC is animated by respect for Canadian sovereignty but develops the law cognizant of the views of other nations. In all cases, foreign law used by Canadian judges is adapted to suit local circumstances. Bastarache noted that harmonization or convergence is often seen as a goal of comparative law, referring to Harvard College v. Canada (Commissioner of Patents),84 in which the minority sought to align Canadian legislation with other ‘like-minded’ countries.85 Bastarache strongly rejects this approach as contrary to Canadian law, which clearly demarcates international from domestic law.86 Instead, according to Bastarache, foreign law can be properly used as a source of interpretive inspiration: [The SCC is] willing to open up the interpretive method to actively include international norms and foreign sources of logic in its deliberations. It has expanded the rules of interpretation to permit reference to international treaties and foreign judgments in all cases in which domestic legislation under review has been expressively or impliedly enacted or amended in order to implement an international obligation.…but setting aside the rules of interpretation to effect harmonization is not what was intended.87 According to Bastarache, while foreign law can offer guidance, it is not a precedent to be followed. It is subordinate to domestic jurisprudence and is often used to enhance the legitimacy of a decision by adding some independent value to the outcome, although the SCC remains firmly focused on national policy. In terms of the comparative methodology, Bastarache observed that it was difficult to determine which courts could offer a suitable comparison and how many jurisdictions should be cited to make the comparison meaningful. Notably, Bastarache also observed that the extent of the SCC’s borrowing from foreign sources had been overstated. The SCC was not concerned with influencing other countries with its judgments as its main concern was to chart its own path. Bastarache concludes that while foreign law had a minimal impact on the SCC, there is ‘some effort to be better informed of foreign decisions on matters of mutual interest’.88 The same year, two studies looked at the use of foreign law by the SCC. Adam Dodek’s qualitative study looked at constitutional cases decided by the SCC in 2008, finding that the use of foreign law was modest.89 Dodek saw the use of foreign law in the SCC’s interpretive approach as adding support to its reasoning. Given that courts face similar problems, looking to other courts can act as an accountability mechanism for judicial discretion, although Dodek opposes strong convergence across different legal systems. After reviewing the relevant cases, Dodek concluded that the SCC had a limited engagement with foreign law and missed opportunities to consider useful foreign decisions.90 Peter McCormick’s large quantitative study looked at the entire caseload of the SCC from 2000 to 2007 and compared citations to foreign law and domestic authority. From his analysis of the data, McCormick concludes that while the use of foreign law is an established practice of the SCC, there is little evidence to support a view of legal globalization.91 Moreover, given that new judicial appointees cited foreign law less, it looked like the use of foreign law by the SCC could decline in the future. In 2010, Chief Justice Beverley McLachlin weighed in on the idea of a global jurisprudential exchange in an address to an American audience.92 While acknowledging that the judicial use of foreign law in domestic cases could erode domestic values, McLachlin observed that using foreign law did not prevent judges from developing domestic law to suit local circumstances and history.93 Even though foreign law is a valuable source of legal enrichment, McLachlin predicted that the distinctiveness of domestic law would be preserved across legal systems as courts develop unique approaches and doctrines.94 Finally, in 2015, Gianluca Gentili carried out an empirical study of the use of foreign law in cases decided by the SCC between the years of 1982–2015, with a focus on Charter cases.95 Based on his analysis of the numerical data, Gentili concludes that the SCC consistently looks at foreign law, drawing inspiration from other legal systems while adapting law to the Canadian context. The SCC has a ‘general, favourable attitude towards cross-section citation of foreign case law’ that occurs in about 30 per cent of all cases decided by the Court.96 Gentili finds that the SCC tends to cite foreign law more in split judgments to overcome opposition from colleagues and to bolster justifications for the outcome.97 Foreign precedent is also used more frequently when government action is overturned. Nevertheless, Gentili echoes L’Heureux-Dubé and Harding by noting that the SCC can use foreign precedent as an illustration of what not to do and is therefore valuable for self-understanding and reflection. In fact, Gentili’s data show that the majority of American cases cited by the SCC were not followed. The SCC is receptive to adopting foreign law but only when it is compatible with Canadian values.98 Gentili points to the dicta of La Forest in R v. Rahey99 that foreign law is a tool but not a master.100 In Gentili’s view, the SCC has developed a principled approach to foreign law and cherry picking critiques must be re-evaluated ‘in light of the numerous aversive citations’.101 The SCC also sees itself as part of a global forum on human rights and takes a cosmopolitan and outward-looking interest in others. While there have been fewer foreign citations in more recent Charter cases, Gentili argues that this reduction is due to an increasingly developed body of Canadian jurisprudence and that the SCC remains open to foreign law on previously unaddressed issues.102 4. THE SCC’S USE OF FOREIGN LAW IN INTERPRETING LEGISLATION (A) Methodology In its 1998 judgment in Rizzo & Rizzo Shoes Ltd,103 the SCC set out the prevailing ‘modern approach’ to the judicial interpretation of legislation: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.104 The SCC has invoked the modern approach when confronting problems of statutory interpretation by looking to the statutory text, context, and purpose.105 In some cases, the SCC has cited foreign case law or legislation as part of its interpretive process, although it is not entirely clear where foreign law fits into the modern approach as it is often considered separately from the tripartite analysis of text, context, and purpose. In order to evaluate the use of foreign law by the SCC in interpreting legislation, this study examines five years of reasoned judgments of the SCC from 2011 to 2015. Within this period, cases were identified where the SCC engaged in a reasoned interpretation of a statutory provision that was a salient issue in the appeal. For the purpose of the study, legislation includes both primary and secondary legislation but excludes other instruments such as collective agreements and contracts, and policies and guidelines that do not have the force of law. Cases were selected where the SCC explicitly considered the meaning of a statutory provision as opposed to a passing reference to a statute or the more mechanical application of a statutory provision to the facts of the case in the absence of a genuine interpretive discussion and analysis. Cases were also excluded where the SCC simply referred to past case law to establish the meaning of a provision in the absence of a fresh interpretive engagement. The study includes judicial review cases where the SCC engaged in an interpretive exercise in review of a decision made by a statutory authority. It also includes international law cases where an interpretive problem was rooted in a domestic statute. To focus on the SCC’s use of foreign law in relation to the interpretation of ordinary legislation, the study excludes interpretations of constitutional rights guarantees, such as those in the Charter of Rights and Freedoms106 and Quebec’s Charter of Human Rights and Freedoms,107 except where an ordinary statute is interpreted as part of the case.108 In terms of counting cases where foreign law is cited, the study includes all references to case law and legislation of foreign jurisdictions. It excludes references to international courts and tribunals, UK legislation directly applicable to Canada before its power to legislate for Canada was terminated in 1982 and decisions of the Privy Council in Canadian cases before the SCC became the court of last resort on questions of Canadian law in 1949. Instances of foreign law are counted only where a foreign case or statute is referenced in relation to the interpretation of legislation. (B) Results The study shows that the SCC engages in statutory interpretation in a significant number of the total appeals that it decides (38 per cent of its total caseload). In these statutory interpretation cases, foreign law is cited by the SCC nearly one third of the time (32 per cent), with some variation appearing year upon year, ranging from a low of 22 per cent to a high of 42 per cent. Table 1 presents a numerical overview of the cases decided by the SCC from 2011 to 2015. Table 1: Numerical overview of cases decided by the Supreme Court of Canada 2011–15   2011  2012  2013  2014  2015  Total  Total number of appeals heard  66  75  73  78  68  360  Number of statutory interpretation cases  27  26  22  32  28  135  Percent of statutory interpretation cases  41%  35%  30%  41%  41%  38%  Statutory interpretation cases citing foreign law  6  11  9  9  8  43  Percent of statutory interpretation cases citing foreign law  22%  42%  41%  28%  29%  32%    2011  2012  2013  2014  2015  Total  Total number of appeals heard  66  75  73  78  68  360  Number of statutory interpretation cases  27  26  22  32  28  135  Percent of statutory interpretation cases  41%  35%  30%  41%  41%  38%  Statutory interpretation cases citing foreign law  6  11  9  9  8  43  Percent of statutory interpretation cases citing foreign law  22%  42%  41%  28%  29%  32%  View Large Table 1: Numerical overview of cases decided by the Supreme Court of Canada 2011–15   2011  2012  2013  2014  2015  Total  Total number of appeals heard  66  75  73  78  68  360  Number of statutory interpretation cases  27  26  22  32  28  135  Percent of statutory interpretation cases  41%  35%  30%  41%  41%  38%  Statutory interpretation cases citing foreign law  6  11  9  9  8  43  Percent of statutory interpretation cases citing foreign law  22%  42%  41%  28%  29%  32%    2011  2012  2013  2014  2015  Total  Total number of appeals heard  66  75  73  78  68  360  Number of statutory interpretation cases  27  26  22  32  28  135  Percent of statutory interpretation cases  41%  35%  30%  41%  41%  38%  Statutory interpretation cases citing foreign law  6  11  9  9  8  43  Percent of statutory interpretation cases citing foreign law  22%  42%  41%  28%  29%  32%  View Large In the 43 statutory interpretation cases citing foreign law decided from 2011 to 2015, there were 100 instances of foreign law citations.109 In terms of the most popular foreign jurisdictions, England and Wales was the most frequently cited (44 instances), while citations to the United States were also significant second (28 instances). Table 2 sets out the jurisdictions cited along with the number of citations for each country. Table 2: Instances of foreign jurisdictions cited by the Supreme Court of Canada in statutory interpretation cases 2011–15 Country  Instances  Percent of total instances  England and Wales  44  44%  United States  28  28%  Australia  8  8%  New Zealand  7  7%  France  3  3%  Germany  3  3%  Belgium  2  2%  Ireland  2  2%  Hong Kong  1  1%  Singapore  1  1%  South Africa  1  1%  Total  100    Country  Instances  Percent of total instances  England and Wales  44  44%  United States  28  28%  Australia  8  8%  New Zealand  7  7%  France  3  3%  Germany  3  3%  Belgium  2  2%  Ireland  2  2%  Hong Kong  1  1%  Singapore  1  1%  South Africa  1  1%  Total  100    View Large Table 2: Instances of foreign jurisdictions cited by the Supreme Court of Canada in statutory interpretation cases 2011–15 Country  Instances  Percent of total instances  England and Wales  44  44%  United States  28  28%  Australia  8  8%  New Zealand  7  7%  France  3  3%  Germany  3  3%  Belgium  2  2%  Ireland  2  2%  Hong Kong  1  1%  Singapore  1  1%  South Africa  1  1%  Total  100    Country  Instances  Percent of total instances  England and Wales  44  44%  United States  28  28%  Australia  8  8%  New Zealand  7  7%  France  3  3%  Germany  3  3%  Belgium  2  2%  Ireland  2  2%  Hong Kong  1  1%  Singapore  1  1%  South Africa  1  1%  Total  100    View Large The SCC made a number of different uses of foreign law in the 43 statutory interpretation cases in which it cited foreign law from 2011 to 2015. These uses were mapped onto six categories of possible uses.110 The most frequent use of foreign law by the SCC was to add support to a conclusion that had already been reached by the judges as a means of justification (27 per cent). The second most frequent use was to better understand the statutory purpose or its history (20 per cent). In a number of cases (19 per cent), foreign law was simply referred to for additional information or background to the problem. Only in a handful of cases did the SCC use foreign law directly to build an interpretive argument or approach (14 per cent), cite foreign law but distinguish it or see it as unhelpful (12 per cent) or use foreign law to illuminate a potential problem or show the consequences of a particular interpretation (9 per cent). Full details are set out in Table 3. Table 3: Uses of foreign law by the Supreme Court of Canada in statutory interpretation cases 2011–15 Use of foreign law  Instances  Percent of total instances  Supports conclusion already reached (justification)  33  27%  Better understanding of statutory purpose or history  25  20%  Information or background, example  23  19%  Build or improve interpretive argument or approach (construction)  17  14%  Noted but distinguished or seen as unhelpful  15  12%  Illuminate potential interpretive problem or show the consequence of a certain interpretation  11  9%  Total uses  124    Use of foreign law  Instances  Percent of total instances  Supports conclusion already reached (justification)  33  27%  Better understanding of statutory purpose or history  25  20%  Information or background, example  23  19%  Build or improve interpretive argument or approach (construction)  17  14%  Noted but distinguished or seen as unhelpful  15  12%  Illuminate potential interpretive problem or show the consequence of a certain interpretation  11  9%  Total uses  124    View Large Table 3: Uses of foreign law by the Supreme Court of Canada in statutory interpretation cases 2011–15 Use of foreign law  Instances  Percent of total instances  Supports conclusion already reached (justification)  33  27%  Better understanding of statutory purpose or history  25  20%  Information or background, example  23  19%  Build or improve interpretive argument or approach (construction)  17  14%  Noted but distinguished or seen as unhelpful  15  12%  Illuminate potential interpretive problem or show the consequence of a certain interpretation  11  9%  Total uses  124    Use of foreign law  Instances  Percent of total instances  Supports conclusion already reached (justification)  33  27%  Better understanding of statutory purpose or history  25  20%  Information or background, example  23  19%  Build or improve interpretive argument or approach (construction)  17  14%  Noted but distinguished or seen as unhelpful  15  12%  Illuminate potential interpretive problem or show the consequence of a certain interpretation  11  9%  Total uses  124    View Large The use of foreign law in statutory interpretation cases in different subject areas was also compared against the total number of statutory interpretation cases in these areas over the same period.111 The results show that in some areas, foreign law was referred to in every case before the SCC during 2011–15, such as securities law (100 per cent), language cases (100 per cent), maritime law (100 per cent), competition law (100 per cent), education (100 per cent), extradition (100 per cent), fiduciary law (100 per cent), and health law (100 per cent), although some of these subject areas had a very small number of appeals. Foreign law was also frequently cited in cases related to intellectual property (88 per cent), civil procedure (86 per cent), international law (67 per cent), and torts (67 per cent). Table 4 sets out the subject matter of statutory interpretation cases decided by the SCC from 2011 to 2015. Table 4: Subject matter of statutory interpretation cases decided by the Supreme Court of Canada 2011–15 Area of law  Total number of statutory interpretation cases  Number of statutory interpretation cases citing foreign law  Percent citing foreign law  Criminal  33  7  21%  Constitutional  32  7  22%  Administrative  19  7  37%  Labour and Employment  12  2  17%  Intellectual Property  8  7  88%  Civil procedure  7  6  86%  Immigration  7  2  29%  Taxation  6  2  33%  Aboriginal  4  1  25%  Courts  4  2  50%  Human rights  4  2  50%  Securities  4  4  100%  Access to Information  3  1  33%  Arbitration  3  0  0%  Communications  2  0  0%  Consumer protection  3  0  0%  Crown  3  0  0%  International  3  2  67%  Property  3  1  33%  Torts  3  2  67%  Bankruptcy and Insolvency  2  0  0%  Contract  2  0  0%  Family  2  0  0%  Language  2  2  100%  Maritime  2  2  100%  Provincial offences  2  0  0%  Public utilities  2  1  50%  Competition  1  1  100%  Damages  1  0  0%  Education  1  1  100%  Elections  1  0  0%  Environmental  1  0  0%  Extradition  1  1  100%  Fiduciary  1  1  100%  Food and drugs  1  0  0%  Health  1  1  100%  Insurance  1  0  0%  Military  1  0  0%  Pensions  1  0  0%  Police  1  0  0%  Privacy  1  0  0%  Transportation  1  0  0%  Area of law  Total number of statutory interpretation cases  Number of statutory interpretation cases citing foreign law  Percent citing foreign law  Criminal  33  7  21%  Constitutional  32  7  22%  Administrative  19  7  37%  Labour and Employment  12  2  17%  Intellectual Property  8  7  88%  Civil procedure  7  6  86%  Immigration  7  2  29%  Taxation  6  2  33%  Aboriginal  4  1  25%  Courts  4  2  50%  Human rights  4  2  50%  Securities  4  4  100%  Access to Information  3  1  33%  Arbitration  3  0  0%  Communications  2  0  0%  Consumer protection  3  0  0%  Crown  3  0  0%  International  3  2  67%  Property  3  1  33%  Torts  3  2  67%  Bankruptcy and Insolvency  2  0  0%  Contract  2  0  0%  Family  2  0  0%  Language  2  2  100%  Maritime  2  2  100%  Provincial offences  2  0  0%  Public utilities  2  1  50%  Competition  1  1  100%  Damages  1  0  0%  Education  1  1  100%  Elections  1  0  0%  Environmental  1  0  0%  Extradition  1  1  100%  Fiduciary  1  1  100%  Food and drugs  1  0  0%  Health  1  1  100%  Insurance  1  0  0%  Military  1  0  0%  Pensions  1  0  0%  Police  1  0  0%  Privacy  1  0  0%  Transportation  1  0  0%  View Large Table 4: Subject matter of statutory interpretation cases decided by the Supreme Court of Canada 2011–15 Area of law  Total number of statutory interpretation cases  Number of statutory interpretation cases citing foreign law  Percent citing foreign law  Criminal  33  7  21%  Constitutional  32  7  22%  Administrative  19  7  37%  Labour and Employment  12  2  17%  Intellectual Property  8  7  88%  Civil procedure  7  6  86%  Immigration  7  2  29%  Taxation  6  2  33%  Aboriginal  4  1  25%  Courts  4  2  50%  Human rights  4  2  50%  Securities  4  4  100%  Access to Information  3  1  33%  Arbitration  3  0  0%  Communications  2  0  0%  Consumer protection  3  0  0%  Crown  3  0  0%  International  3  2  67%  Property  3  1  33%  Torts  3  2  67%  Bankruptcy and Insolvency  2  0  0%  Contract  2  0  0%  Family  2  0  0%  Language  2  2  100%  Maritime  2  2  100%  Provincial offences  2  0  0%  Public utilities  2  1  50%  Competition  1  1  100%  Damages  1  0  0%  Education  1  1  100%  Elections  1  0  0%  Environmental  1  0  0%  Extradition  1  1  100%  Fiduciary  1  1  100%  Food and drugs  1  0  0%  Health  1  1  100%  Insurance  1  0  0%  Military  1  0  0%  Pensions  1  0  0%  Police  1  0  0%  Privacy  1  0  0%  Transportation  1  0  0%  Area of law  Total number of statutory interpretation cases  Number of statutory interpretation cases citing foreign law  Percent citing foreign law  Criminal  33  7  21%  Constitutional  32  7  22%  Administrative  19  7  37%  Labour and Employment  12  2  17%  Intellectual Property  8  7  88%  Civil procedure  7  6  86%  Immigration  7  2  29%  Taxation  6  2  33%  Aboriginal  4  1  25%  Courts  4  2  50%  Human rights  4  2  50%  Securities  4  4  100%  Access to Information  3  1  33%  Arbitration  3  0  0%  Communications  2  0  0%  Consumer protection  3  0  0%  Crown  3  0  0%  International  3  2  67%  Property  3  1  33%  Torts  3  2  67%  Bankruptcy and Insolvency  2  0  0%  Contract  2  0  0%  Family  2  0  0%  Language  2  2  100%  Maritime  2  2  100%  Provincial offences  2  0  0%  Public utilities  2  1  50%  Competition  1  1  100%  Damages  1  0  0%  Education  1  1  100%  Elections  1  0  0%  Environmental  1  0  0%  Extradition  1  1  100%  Fiduciary  1  1  100%  Food and drugs  1  0  0%  Health  1  1  100%  Insurance  1  0  0%  Military  1  0  0%  Pensions  1  0  0%  Police  1  0  0%  Privacy  1  0  0%  Transportation  1  0  0%  View Large The data show that the SCC is more likely to cite foreign law in statutory interpretation cases when the bench is divided as compared to unanimous judgments, lending support to the view that judges use foreign law to bolster their arguments in the face of opposition from colleagues on the bench. When the SCC is unanimous in a statutory interpretation case, foreign law is cited 25 per cent of the time. When there is a split decision in a statutory interpretation case, however, foreign law is cited 39 per cent of the time, a relative increase of 56 per cent. Split decisions account for an overall majority of the total number of statutory interpretation cases where foreign law is cited (26 out of 43 cases, or 60 per cent) as compared to the SCC splitting in a minority of all statutory interpretation cases (66 out of 135 cases, or 40 per cent). When there is a split decision that cites foreign law, it is almost always cited in the majority opinion (92 per cent) and often in dissenting opinions (76 per cent). Tables 5 and 6 set out the details. Table 5: Citations to foreign law and split versus unanimous decisions in statutory interpretation cases of the Supreme Court of Canada 2011–15   Statutory interpretation cases  Statutory interpretation cases citing foreign law  Percent citing foreign law  Split decisions (including concurring opinions)  66  26  39%  Unanimous decisions  69  17  25%  Total  135  43  32%    Statutory interpretation cases  Statutory interpretation cases citing foreign law  Percent citing foreign law  Split decisions (including concurring opinions)  66  26  39%  Unanimous decisions  69  17  25%  Total  135  43  32%  View Large Table 5: Citations to foreign law and split versus unanimous decisions in statutory interpretation cases of the Supreme Court of Canada 2011–15   Statutory interpretation cases  Statutory interpretation cases citing foreign law  Percent citing foreign law  Split decisions (including concurring opinions)  66  26  39%  Unanimous decisions  69  17  25%  Total  135  43  32%    Statutory interpretation cases  Statutory interpretation cases citing foreign law  Percent citing foreign law  Split decisions (including concurring opinions)  66  26  39%  Unanimous decisions  69  17  25%  Total  135  43  32%  View Large Table 6: Split decisions of statutory interpretation cases that cite foreign law decided by the Supreme Court of Canada 2011–15   Number of opinions  Number of opinions citing foreign law  Percent citing foreign law  Majority  26  24  92%  Dissent  21  16  76%  Concurring  5  2  40%    Number of opinions  Number of opinions citing foreign law  Percent citing foreign law  Majority  26  24  92%  Dissent  21  16  76%  Concurring  5  2  40%  View Large Table 6: Split decisions of statutory interpretation cases that cite foreign law decided by the Supreme Court of Canada 2011–15   Number of opinions  Number of opinions citing foreign law  Percent citing foreign law  Majority  26  24  92%  Dissent  21  16  76%  Concurring  5  2  40%    Number of opinions  Number of opinions citing foreign law  Percent citing foreign law  Majority  26  24  92%  Dissent  21  16  76%  Concurring  5  2  40%  View Large Out of all the statutory interpretation cases citing foreign law decided by the SCC from 2011 to 2015, nearly three-quarters of foreign law was introduced in factums by counsel for a party or an intervenor (74 per cent).112 The SCC appears to have introduced foreign law on its own initiative in the remaining cases (26 per cent). In cases where foreign law was introduced by the SCC, the judges tended to proceed cautiously by citing foreign law only when the bench was unified: more than half of the time where foreign law came from the bench itself, the SCC decision was unanimous (55 per cent). When the SCC cited foreign law that had been introduced by counsel, it was often in a case where the bench split (65 per cent), which is close to the overall background rate for the use of foreign law in split decisions (60 per cent). Table 7 includes details of the source of foreign law. Table 7: Source of foreign law in statutory interpretation cases decided by the Supreme Court of Canada 2011–15   Number of statutory interpretation cases citing foreign law  Percent of total  Split decisions  Percent of total  Unanimous decisions  Percent of total  Introduced by SCC  11  26%  5  45%  6  55%  Introduced by counsel  31  74%  20  65%  11  35%  Total  42  100%  25  100%  17  100%    Number of statutory interpretation cases citing foreign law  Percent of total  Split decisions  Percent of total  Unanimous decisions  Percent of total  Introduced by SCC  11  26%  5  45%  6  55%  Introduced by counsel  31  74%  20  65%  11  35%  Total  42  100%  25  100%  17  100%  View Large Table 7: Source of foreign law in statutory interpretation cases decided by the Supreme Court of Canada 2011–15   Number of statutory interpretation cases citing foreign law  Percent of total  Split decisions  Percent of total  Unanimous decisions  Percent of total  Introduced by SCC  11  26%  5  45%  6  55%  Introduced by counsel  31  74%  20  65%  11  35%  Total  42  100%  25  100%  17  100%    Number of statutory interpretation cases citing foreign law  Percent of total  Split decisions  Percent of total  Unanimous decisions  Percent of total  Introduced by SCC  11  26%  5  45%  6  55%  Introduced by counsel  31  74%  20  65%  11  35%  Total  42  100%  25  100%  17  100%  View Large To get a more detailed look at how the SCC uses foreign law in interpreting legislation, it is worth setting out several illustrative case studies that show considerable use of foreign law.113 In its 2011 judgment in Reference re Securities Act,114 the Canadian government referred questions to the SCC about the constitutionality of a national securities regulator, which required an interpretation of the constitutional division of powers and the proposed Securities Act. The unanimous bench held that the federal government lacked the constitutional competence to proceed alone, as the legislation would intrude into the powers and legitimate interests of the provinces. Before arriving at this conclusion, however, the SCC surveyed the securities laws of a number of other jurisdictions to illustrate that a more cooperative approach to securities regulation, in which different levels of government could participate, had been taken in other jurisdictions. The SCC observed that ‘Canada is not the only federation where the issue of the balance between local and national regulation’ had arisen.115 Looking at Germany, the SCC cited the division of powers in the Basic Law and the establishment of a three-tiered securities regulatory system, which included the participation of different levels of government.116 In Australia, the SCC referred to a negotiation between the Commonwealth and the Australian states that led to a cooperative approach ‘characterized by cross-vesting of jurisdiction’. When this arrangement faced legal challenges, the states agreed to refer the necessary powers to the Commonwealth to ensure its constitutionality. Next, the SCC looked at the United States and cited the commerce clause of the US Constitution that allows the federal government to ‘regulate virtually all aspects of interstate securities trading’.117 Despite these broad powers for the federal government to make securities laws, the American approach ‘did not exclude state participation’ and provided an important role for state governments in local enforcement and policy.118 In the 2012 SCC judgment in R. v. Mabior,119 the accused was charged with aggravated sexual assault because of his failure to disclose his HIV-positive status before having sex with several women. The question before the SCC was whether this lack of disclosure constituted fraud vitiating consent under section 265(3)(c) of the Criminal Code. In engaging with the interpretation of this provision, the unanimous bench made extensive use of foreign law to come to the view that the failure to disclose HIV status would only vitiate consent if there was a realistic possibility of HIV transmission. According to the SCC: A survey of comparative law shows that common law jurisdictions criminalize the actual sexual transmission of HIV, when the HIV-positive person is aware of his or her serologic status and when the partner does not give informed consent to the risk of infection. Several jurisdictions treat transmission of HIV following non-disclosure as offences involving bodily harm, rather than as sexual offences.120 The SCC went on to consider case law and legislation in England, where it found that the nondisclosure of HIV status would not vitiate consent.121 In Australia, the SCC looked to case law and legislation, observing that six out of nine jurisdictions criminalized only the actual transmission of HIV.122 In New Zealand, case law and legislation indicated that serious criminal liability attached only to the actual transmission of HIV, whereas a failure to disclosure HIV status in the absence of transmission might instead attract the lesser offence of criminal nuisance.123 Interestingly, the SCC also looked at United States case law on what factors had been seen by courts to vitiate sexual consent. It observed that American courts were more inclined to convict an accused for failure to disclose circumstances that gave meaning to the physical act. In rejecting this position in favour of a more restrictive interpretation of the Criminal Code, the SCC held that the American cases were ‘[m]inority voices’.124 In its 2012 judgment in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada,125 the SCC interpreted whether downloading a video game that included musical works constituted a ‘communication’ under section 3(1)(f) of the Copyright Act, which would require the payment of a tariff. In a split decision, the majority held that a download was not a communication under the Act, bolstering its position with references to English and US law.126 In dissent, Justice Rothstein distinguished the American law that had been cited by counsel on the basis that the US copyright regime was considerably different from the Canadian regime and that ‘[t]he two cannot be equated’.127 Justice Rothstein further cautioned against using US jurisprudence in intellectual property cases, writing: This Court has recognized in the past important differences both in wording and in policy between Canadian and American copyright legislation. It has cautioned that ‘United States court decisions, even where the factual situations are similar, must be scrutinized very carefully’…The difference in statutory wording between the provisions of the American legislation and of the Canadian Copyright Act is sufficient to render the U.S. decisions of no assistance in the interpretive exercise engaged here. Indeed, following the American jurisprudence in interpreting Canada’s copyright legislation would, in this case, amount to rewriting the Canadian Act.128 Finally, in Re:Sound v. Motion Picture Theatre Associations of Canada,129 a second intellectual property case decided the same year, the SCC interpreted a section of the Copyright Act in relation to the definition of a ‘sound recording’. The unanimous bench rejected foreign law that had been raised by the appellant. It noted that ‘the foreign jurisprudence makes it clear that significant differences exist between Canadian copyright legislation and the foreign legislation on which those decisions are based’ and that ‘[t]he distinction between the Canadian and foreign legislation is clear enough to discount any persuasive value that the cases in which this concept was applied might otherwise have had’.130 In looking at English law, the SCC observed that the definition of a sound recording under the relevant UK statute was ‘fundamentally different from the definition in the Canadian Act’.131 The SCC also distinguished Australian legislation and did not follow the outcome of a similar case decided by the High Court of Australia. Given differences in the Australian and Canadian statutes, the SCC held that the judgment of the High Court of Australia ‘is not a precedent that this Court is required to follow, nor is it compelling here’.132 (C) Taking Comparative Law Seriously The study demonstrates that the SCC cites foreign law regularly in resolving problems of statutory interpretation, and uses that foreign law for a variety of purposes. These results confirm Barak’s view that Canadian courts make frequent and fruitful use of foreign law. The frequency in which the SCC cites foreign law in statutory interpretation cases is similar to its use in Charter cases as shown by Gentili’s study. But the fact that statutory interpretation cases relate to a broader range of legal areas, including both public and private law, provides support to extend Gentili’s thesis that the SCC sees itself as part of an international human rights forum. More accurately, the SCC sees itself as part of a global jurisprudential exchange by drawing upon the foreign experience in a wide variety of cases. Notably, the use of foreign law by the SCC suggests that Waldron’s ius gentium already exists in a sense. Under Waldron’s view, the ius gentium acts as a storehouse of legal insight, capturing the law of mankind on various legal questions that includes consensus-based answers to common legal problems. The ius gentium on questions of statutory interpretation appears to operate as a sort of ‘words and phrases’ dictionary used by the SCC to locate foreign cases interpreting similar statutory provisions.133 The study, however, reveals limitations of the ius gentium. In particular, the study challenges the idea that the ius gentium is entirely analogous to the process of scientific development as the SCC does occasionally cite and reject foreign law in favour of a uniquely Canadian approach as observed by L’Heureux-Dubé, Bastarache, McLachlin, and Harding, and confirmed by Gentili. Therefore, while the ius gentium provides useful information to courts grappling with an interpretive question, even a global consensus view may be rejected in favour of a locally crafted solution.134 The inherent subjectivity of law, being the output of value choices and political compromise, and created in response to the domestic economic, social, and political environment, plays a strong role in legal development despite more sophisticated or elegant solutions developed elsewhere. It seems, therefore, that while the ius gentium can operate as a force of legal convergence, nudging domestic law in appropriate cases toward a consensus view, it cannot displace the need for law to remain relevant to local circumstances, which continues to preserve legal distinctiveness. This understanding also poses a challenge to Posner and Sunstein’s argument that there is a widely applicable ‘correct answer’ to a legal question that is likely to be the view of a large number of states.135 When it surveys the foreign legal landscape, the SCC appears to be motivated by a genuine desire to look elsewhere for wisdom and inspiration, fitting into Andenas and Fairgrieve’s category of utilitarianism. But the SCC’s use of foreign law in statutory interpretation cases for different purposes, and its selective use (in terms of what is cited, when it is cited and from where), raise a number of questions. As a preliminary matter, it is worth considering the impetus for citing foreign law in statutory interpretation cases. The practice may be best explained by considering the historical development of the common law in light of a shift from common law to legislation as a major source of Canadian law.136 In the past, common law courts from around the world worked collaboratively to build a ‘seamless web’ of law by borrowing innovations from each other.137 In recent decades, however, the explosive growth of statutory law and regulations has supplanted or completely ousted many areas traditionally occupied by common law. Even the few areas that remain principally common law, such as contracts and torts, have seen considerable legislative intervention.138 Despite this shift in emphasis from the common law to legislation, the common law ethos of judges drawing upon other reasoned judgments for assistance in resolving the instant case carries on. In particular, the practice of courts looking to foreign sources has found a new home in the interpretation of legislation, driven by a caseload that increasingly turns on questions related to statutory law. Interestingly, statutory interpretation cases citing foreign law tend to refer to foreign legislation less frequently than foreign cases. This focus on foreign judgments supports the view that courts have shifted the traditional practice of looking to foreign judicial reasoning in ordinary common law cases to statutory interpretation cases. Legislation, being the product of a foreign legislative process, carries a strong nationalist flavour that can offend notions of state sovereignty. Foreign judgments grappling with questions of statutory interpretation, however, seem more familiar as they look and feel more like common law judgments.139 It is also worth noting that judicial approaches to statutory interpretation, such as the SCC’s modern approach, are themselves part of the common law, providing a convenient entryway for sharing interpretive methods and even substantive reasoning with foreign courts.140 The principal question raised by the study, however, is whether the SCC’s use of foreign law in statutory interpretation cases can be seen as legitimate. The legitimacy of Canadian courts citing foreign law per se is well established because of its longstanding use as observed by Bushnell, Hirschl, and La Forest. The justification for the use of foreign law in individual statutory interpretation cases, however, remains underdeveloped. While it is clear that the SCC sees value in foreign law, it is not always entirely clear why it is cited in some cases and not others, why certain sources are cited over others, or why certain jurisdictions are considered and not others. As argued by Harvie and Foster, once the value of foreign law is recognized, it should not be resorted to in a random fashion. Moreover, statutory interpretation cases represent an increasing share of the caseload before Canadian courts. In statutory interpretation cases, the meaning ultimately given to a statutory word or phrase becomes the law that is not only applied to the case at hand but also to future cases as a precedent. As observed by Frank B. Cross, statutory interpretation is, in effect, a form of delegation of legal power from the legislature to the courts, which is why it is especially important for the exercise of this significant power to rest upon a principled foundation as opposed to the whims of judicial discretion.141 While there are those who argue that the SCC uses foreign law in a principled way, these arguments are not entirely convincing in light of the study. Gentili, for example, argues that the SCC is principled in its use of foreign law in Charter cases, writing that criticisms of cherry picking should be reconsidered in light of aversive foreign law citations.142 From the results of this study, however, it appears there are few criteria that can be devised to predict the SCC’s use of foreign law in statutory interpretation cases except to say that the sources may have been raised by counsel or are perceived by the judges as especially useful in resolving the interpretive problem at hand.143 Moreover, Gentili’s argument that a pattern of aversive citations assuages concerns about judicial cherry picking could neglect a more detailed analysis of the SCC’s use of foreign law. Foreign law might be cherry picked by judges to illustrate what the SCC intends not to do. Gentili himself notes that the SCC uses foreign law, particularly American law, to boldly reassert differences with other jurisdictions and to help define Canadian identity.144 This observation appears to support the view that judicial cherry picking can include citing foreign law that the SCC wishes to reject in order to be seen as developing a ‘made in Canada’ solution. It is argued that the use of foreign law as a legal formant in statutory interpretation cases demands a more principled approach than what exists at present to realize its full value and enhance the legitimacy of its use.145 One way forward is for the SCC to go further in signalling the importance of foreign law in statutory interpretation cases as the means to encourage counsel to locate useful and relevant sources. As demonstrated by the study, counsel play a very important role in introducing foreign law to the SCC.146 Even when foreign law raised by counsel is not ultimately cited by the court, its availability provides useful information in relation to the interpretive problem at hand and helps to situate it within a broader context. Perhaps the most effective way to achieve this goal would be for the SCC to modify the modern approach to statutory interpretation as set out in Rizzo & Rizzo Shoes Ltd. In its current form, the modern approach directs judges to strive for a harmonious balance among the statutory text, context, and purpose. By restating the modern approach to the effect that the context of a statute is broad enough to capture meaningful comparisons to similar legislation in similarly situated countries where courts have grappled with interpretive problems, counsel would be encouraged to locate and introduce relevant and useful sources of foreign law. As observed by Thomas Kadner Graziano, ‘[i]nsofar as judges agree to take inspiration from foreign law or international principles derived from comparison, the comparative method will also become an important tool for lawyers who wish to use it in court in the interest of their clients’.147 This approach would not be as drastic as setting aside the rules of interpretation in favour of legal harmonization, as cautioned against by Bastarache, but would reform the existing interpretive approach to add broader context to problems in a more principled way. In fact, the proposed restatement of the modern approach does not seek to promote legal harmonization. Instead, its goal is to provide the court with the best and most complete information related to the interpretive problem at hand, which can be drawn upon by the court as it sees appropriate. Through this approach, additional sources of law would be brought to the SCC’s attention, providing important information in cases that would otherwise not have benefited from the consideration of foreign law. This is a problem that has been recognized by SCC judges such as L’Heureux-Dubé who has written that counsel does not put forward foreign cases from similarly situated countries ‘as often as they should’.148 The proposed approach would not only allow the SCC to engage with comparative law more seriously by having access to a broader range of useful foreign law on similar problems of interpretation, it also carries other benefits. A systematic process of locating foreign law through counsel would strengthen the reliability of foreign law citations. In the context of an adversarial proceeding where foreign law is seen as relevant to an interpretive argument, counsel would scrutinize sources brought forward by opposing counsel and seek to locate other useful sources that may have been overlooked. Enhancing the accuracy of foreign law citations is especially important when it is used outside of conflict of laws cases, such as statutory interpretation cases. In conflicts cases, the reliability of foreign law is acute as it binds the domestic court and determines the legal outcome. Concerns about its reliability are addressed by having foreign law proved through an expert witness, who is subject to the rigors of the trial process including cross-examination. The proposed approach would bring improved safeguards to the use of foreign law in statutory interpretation cases as the parties would have the opportunity to locate, consider, and scrutinize foreign law. In addition, the proposed approach would help reduce the need for judges to locate foreign law on their own initiative. While courts retain a residual discretion to identify helpful interpretive materials, the sourcing of foreign law from the bench should be exceptional to promote confidence in an impartial judicial process. This is particularly significant as the study showed that judges often cite foreign law to add a pillar of support to their conclusions, especially in a split decision. Finally, the proposed approach would encourage judges to be more explicit in their reasoning to explain why foreign law introduced by counsel is helpful or unhelpful, providing a better understanding of the judicial reasoning process in statutory interpretation cases. Further explanation of the decision-making process and approaches to statutory interpretation would promote greater legal certainty on interpretive questions. In terms of potential downsides of the proposed approach, it could be argued that encouraging counsel to survey foreign law in statutory interpretation cases would require considerable resources and drive up the cost of litigation. While locating new sources of law would certainly involve additional work in preparing submissions, identifying useful foreign material is considerably easier now than in the past given modern legal research tools. A second concern is that the proposed approach could threaten to overwhelm courts with foreign sources of law. This concern could be addressed by focusing counsel on the most relevant and useful foreign approaches, and only in statutory interpretation cases that turn on a genuine question of ambiguity. 4. CONCLUSION This study examined a neglected area of the use of foreign law by domestic courts, namely in cases related to the interpretation of ordinary legislation. By focusing on statutory interpretation cases decided by the SCC over a five-year period, the study captured a broad range of cases in both public and private law. It showed that the SCC is indeed part of a global jurisprudential exchange not just in human rights but in many areas of law—providing support for a version of Waldron’s ius commune. It is suggested that the SCC regularly cites foreign law when facing an interpretive challenge in part because of a changing emphasis from the common law to legislation as the major source of Canadian law. The traditional practice of common law judges referring to other reasoned judgments in deciding their cases has transitioned from its origin in pure common law cases to statutory interpretation cases. In this sense, statutory interpretation cases have become part of what might be described as the new common law. By showing the extent to which the SCC uses foreign law, the study also raised questions about the legitimacy of using foreign law in domestic cases related to the interpretation of legislation. It is argued that while the use of foreign law per se carries historical legitimacy, the SCC should restate the modern approach to statutory interpretation to send a strong signal to counsel of the importance of meaningful comparisons to foreign law as part of situating the interpretive problem in a broader context from which the court can draw insight in appropriate cases. By doing so, the SCC would take comparative law seriously, maximize the value of foreign law and enhance the legitimacy of its use. The author would like to thank Or Regev for his research assistance. The standard disclaimer applies. Footnotes 1 See, e.g., R Hirschl Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press Oxford 2014) [Hirschl]; M Siems Comparative Law (Cambridge University Press Cambridge 2014); M Reimann, R Zimmermann (eds) The Oxford Handbook of Comparative Law (Oxford University Press Oxford 2006) [Reimann and Zimmermann], M Bussani, U Mattei (eds) The Cambridge Companion to Comparative Law (Cambridge University Press Cambridge 2012). 2 For example, the 2016 International Society of Public Law’s conference theme was ‘Borders, Otherness and Public Law’ (Humboldt University, Berlin). On legal cosmopolitanism, see H Patrick Glenn The Cosmopolitan State (Oxford University Press Oxford 2013). 3 [1978] 2 SCR 112. 4 Ibid at 116, 126. 5 2002 SCC 76. 6 Ibid, Para. 12. Also cited in M Bastarache ‘How Internationalization of Law has Materialized in Canada’ [2009] University of New Brunswick Law Journal 59, 190 at 194. 7 See, e.g., In the Matter of the Application of Euromepa, SA, 51 F3d 1095 (2d Cir., 1995) (interpreting a statute related to the rules of discovery where the court cited foreign law and observed that the act of statutory interpretation ‘contemplates international cooperation, and such cooperation presupposes an ongoing dialogue between the adjudicative bodies of the world community’, quoted in A-M Slaughter ‘Judicial Globalization’ [2000] Virginia Journal of International Law 40, 1103 at 1113). For the controversy of using foreign law in the United States, see, e.g., EA Posner, CR Sunstein ‘The Law of Other States’ [2006] Stanford Law Review 59, 131; on the controversy, in the United States as compared to the Canadian position, see B McLachlin ‘The Use of Foreign Law: A Comparative View of Canada and the United States’ [2010] American Society of International Law Proceedings 104, 491 where the Chief Justice of Canada argues that the different histories of Canada and the United States explain different attitudes to the judicial use of foreign law. 8 J Smits ‘Comparative Law and its Influence on National Legal Systems’ in Reimann and Zimmermann, above n 1, 477 at section II [Smits]. 9 Aristotle, The Politics, book 4, ch 1. 10 Smits, above n 8 at section II. 11 R Sacco ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II)’ [1991] The American Journal of Comparative Law 39, 343 at 345 [Sacco]. 12 Ibid. 13 Ibid at 395 where Sacco writes that a ‘particularly important instance [of judicial borrowing] is that in which the judge operates in a system with a code’. Sacco also observes that judicial borrowing often takes place through imitation. 14 J Bell ‘The Argumentative Status of Foreign Legal Arguments’ [2012] Utrecht Law Review 8, 8 at 12 [Bell]. 15 A Barak ‘A Judge on Judging: The Role of a Supreme Court in a Democracy’ [2002] Harvard Law Review 116, 19 at 111–112 [Barak]. Barak advocates a functional approach in the sense of locating a legal concept that fulfils a similar purpose in the two legal systems but cautious that both systems must share an ideological basis. 16 Bell analogizes the use of foreign law as a thread of a cord, twisted together to bear a load: above n 14 at 10–11. 17 A-M Slaughter ‘Judicial Globalization’ [2000] Virginia Journal of International Law 40, 1103. 18 Ibid at 1114. 19 Ibid at 1123–1124. 20 Ibid at 1113. 21 M Andenas, D Fairgrieve ‘Courts and Comparative Law: In Search of a Common Language for Open Legal Systems’ in Mads Andenas and Duncan Fairgrieve (eds) Courts and Comparative Law (Oxford University Press Oxford 2015) 3 at 4 [Andenas and Fairgrieve]. 22 Ibid at 8. 23 Ibid at 8–9. 24 Ibid at 11. See also Smits, above n 8 at section VI (predicting higher quality decisions and legislation due to globalization that encourages the use of foreign law). 25 J Waldron ‘Foreign Law and the Modern Ius Gentium’ in Andenas and Fairgrieve, above n 21, 536 at 539 (an earlier version of Waldron’s chapter was published at [2005] Harvard Law Review 119, 129) [Waldron]. 26 Ibid. 27 Ibid at 548. 28 Ibid. 29 Ibid at 548–550. Even if law in a particular state is an expression of will, there still may be benefit to the study of foreign law to arrive at better or more effective legal solutions to problems. 30 H Patrick Glenn ‘Persuasive Authority’ [1987] McGill Law Journal 32, 261. 31 Andenas and Fairgrieve, above n 21 at 12–20. See also TK Graziano ‘Is it Legitimate and Beneficial for Judges to Compare?’ in Andenas and Fairgrieve, above n 21, 25 [Graziano]. 32 See also generally Bell, above n 14 and Smits, above n 8. 33 K Zweigert ‘Rechtsvergleichung als universale Interpretationsmethode’ [1949] (Rabels) Zeitschrift für ausländisches und internationales Privatrecht 15, 5. See also G Frankenberg Comparative Law as Critique (Edward Elgar Cheltenham 2016) at 98–99. 34 EA Posner, CR Sunstein ‘The Law of Other States’ [2006] Stanford Law Review 59, 131. 35 Ibid at 140. 36 Ibid at 141. 37 E Benvenisti ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ [2008] The American Journal of International Law 102, 241. 38 Ibid at 255. 39 Bell, above n 14. 40 Ibid at 10. 41 Ibid at 11, 17 where Bell writes that lustre can be added by a foreign law where it fits the problem, it is consistent with internal legal principle and the reputation of the foreign country and the receptivity of the host country support the use of foreign law. 42 Ibid at 10–11. 43 Ibid at 19. See also T Bingham Widening Horizons (Cambridge University Press Cambridge 2010). 44 J Bell ‘Comparative Law in the Supreme Court 2010–11’ [2012] Cambridge Journal of International and Comparative Law 1, 20 at 23. 45 Ibid at 24. 46 A-M Slaughter ‘A Typology of Transnational Communication’ [1994] University of Richmond Law Review 29, 99 at 117–119. 47 Ibid at 119. 48 Barak, above n 15 at 111. 49 Smits, above n 8. 50 Ibid at section IV. 51 But see Smits, ibid at section IV who argues that the question of the legitimacy of foreign law only arises when it is used normatively to justify a decision as opposed to being used merely for inspiration; however, it is arguable that any influence on legal reasoning is a source of law and should be perceived as legitimate. See, e.g., Sacco, above n 11. 52 H Patrick Glenn ‘Persuasive Authority’ [1987] McGill Law Journal 32, 261. The risk is that if citing foreign law is not accepted as a feature of the judicial reasoning process, public confidence in the judiciary and judicial pronouncements on the law could diminish. 53 Hirschl, above n 1 at 30. 54 See, e.g., RJ Delahunty and J Yoo ‘Against Foreign Law’ [2005] Harvard Journal of Law & Public Policy 29, 291. 55 Quoted in Andenas and Fairgrieve, above n 21 at n 14. 56 539 US 558 (2003). 57 RD Glensy ‘Which Countries Count? Lawrence v. Texas and the Selection of Foreign Persuasive Authority’ [2005] Virginia Journal of International Law 45, 357 at 359, 361–372. 58 Ibid at 359. 59 Ibid at 411–440. For a detailed discussion of the comparative method in judging, see B Markesinis and J Fedtke ‘The Judge as a Comparativist’ [2006] Tulane Law Review 80, 11. See also B Markesinis and J Fedtke, Judicial Recourse to Foreign Law: A New Source of Inspiration? (Routledge New York 2006). 60 Barak, above n 15 at 114 (footnote omitted). 61 SI Bushnell ‘The Use of American Cases’ [1986] University of New Brunswick Law Journal 35, 157. 62 R Harvie, H Foster ‘Ties that Bind? The Supreme Court of Canada, American Jurisprudence, and the Revision of Canadian Criminal Law under the Charter’ [1990] Osgoode Hall Law Journal 28, 731 at 782. 63 GV La Forest ‘The Use of American Precedents in Canadian Courts’ [1994] Maine Law Review 46, 211 [La Forest]. 64 Ibid at 212. 65 Ibid at 220. 66 Ibid at 217. 67 Ibid at 214. 68 Ibid at 217. 69 C L’Heureux-Dubé ‘The Importance of Judicial Dialogue: Globalization and the International Impact of the Rehnquist Court’ [1998] Tulsa Law Review 34, 15 [L’Heureux-Dubé]. 70 Ibid at 26–27. 71 Ibid at 27 responding to a critique that the SCC is cited more by courts in Zimbabwe, South Africa and Israel than the SCC cites those courts, writing ‘[i]n part, this is because litigants do not put these cases before us as often as they should’. 72 R Lefler ‘A Comparison of Comparison: Use of Foreign Case Law as Persuasive Authority by the United States Supreme Court, the Supreme Court of Canada, and the High Court of Australia’ [2001] Southern California Interdisciplinary Law Journal 11, 165. 73 SI Smithey ‘A Tool, Not a Master: The Use of Foreign Case Law in Canada and South Africa’ [2001] Comparative Political Studies 34, 1188. 74 SK Harding ‘Comparative Reasoning and Judicial Review’ [2003] Yale Journal of International Law 28, 408 at 413 [Harding]. 75 [1992] 1 SCR 385. 76 Harding, above n 74 at 415. 77 Ibid at 432, see also the discussion at 454–458. 78 Ibid at 425–426. 79 Ibid at 425. 80 B Roy ‘An Empirical Survey of Foreign Jurisprudence and International Instruments in Charter Litigation’ [2004] University of Toronto Faculty of Law Review 62, 99. 81 Ibid at 138–139. 82 Ibid at 104. 83 M Bastarache ‘How Internationalization of the Law has Materialized in Canada’ [2009] University of New Brunswick Law Journal 59, 190 [Bastarache]. 84 2002 SCC 76. 85 Ibid, Paras 12–13. 86 Bastarache, above n 83 at 195. 87 Ibid. 88 Ibid at 204. 89 AM Dodek ‘Comparative Law at the Supreme Court of Canada in 2008: Limited Engagement and Missed Opportunities’ [2009] Supreme Court Law Review 47, 445 [Dodek]. 90 Ibid at 473. 91 P McCormick ‘American Citations and the McLachlin Court: An Empirical Study’ [2009] Osgoode Hall Law Journal 47, 83 at 126–129. 92 B McLachlin ‘The Use of Foreign Law: A Comparative View of Canada and the United States’ [2010] American Society of International Law Proceedings 104, 491. 93 Ibid at 491–493. 94 Ibid. 95 G Gentili ‘Enhancing Constitutional Self-Understanding through Comparative Law: An Empirical Study of the Use of Foreign Case Law by the Supreme Court of Canada (1982–2013)’ in Andenas and Fairgrieve, above n 21, 378 [Gentili]. 96 Ibid at 392. 97 See, e.g., Canadian National Railway Co v. Norsk Pacific Steamship Co, [1992] 1 SCR 1021, a tort case where both the majority and dissent refer to foreign law in their reasons but come to different results. 98 Gentili, above n 95 at 401–403. 99 [1987] 1 SCR 588 at Para. 108. 100 Gentili, above n 95 at 402. 101 Ibid at 404. As discussed later, Gentili does not address the point that aversive citations might themselves be instances of cherry picking. 102 Ibid at 405–406. 103 [1998] 1 SCR 27. 104 Ibid, Para. 21 quoting E Driedger Construction of Statutes (2nd edn Butterworths Toronto 1983) at 87. 105 See, e.g., Bell ExpressVu Limited Partnership v. R, [2002] 2 SCR 559. 106 Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 107 Charter of Human Rights and Freedoms, CQLR c C-12. 108 The study includes interpretations of other human rights legislation where such legislation is enacted by way of an ordinary statute and does not include a supremacy clause. 109 One instance is recorded per country if that country’s legislation or case law is cited once, or more than once, per opinion. For example, if five English cases are cited in the majority opinion and one English case is cited in a dissenting opinion, two instances would be recorded for England and Wales (one for the majority, one for the dissent). 110 Each use of foreign law per country in each opinion was recorded, for a total of 124 uses across the 43 statutory interpretation cases. The six different categories of uses were derived from an analysis of all the uses of foreign law by the SCC in the statutory interpretation cases from 2011 to 2015. 111 Each case was associated with up to three different areas of law in relation to the subject matter of the appeal (and not just in relation to the problem of statutory interpretation). 112 While there were 43 statutory interpretation cases decided by the SCC citing foreign law from 2011 to 2015, the factums from only 42 cases were available through the SCC’s case information docket. All factums were searched, including those of the parties and intervenors, for foreign case law or legislation used by the SCC in interpreting legislation. Counsel was deemed to be the source of the foreign law if at least one foreign case or statute used by the SCC appeared in a factum. 113 These case studies were selected as they can be seen as the ‘gold standard’ of the SCC’s engagement with foreign law in statutory interpretation cases. 114 2011 SCC 66. 115 Ibid, Para. 48. 116 Ibid, Para. 49. 117 Ibid, Para. 51. 118 Ibid, Para. 52. 119 2012 SCC 47. 120 Ibid, Para. 50. Emphasis in original. 121 Ibid, Paras 50–51. 122 Ibid, Para. 52. 123 Ibid, Paras 50, 53–54. 124 Ibid, Para. 41. 125 2012 SCC 34. 126 Ibid, Paras 40–42. 127 Ibid, Para. 103. 128 Ibid, Para. 104. 129 2012 SCC 38. 130 Ibid, Paras 41, 44. 131 Ibid, Para. 42. 132 Ibid, Para. 46. 133 Like a ‘words and phrases judicially considered’ dictionary, which points to how certain words and phrases has been interpreted and applied by common law courts. For example, see D Greenberg Stroud’s Judicial Dictionary of Words and Phrases (8th edn Sweet & Maxwell London 2013). 134 A limitation recognized by Waldron, above n 25 at 548 where he notes that the law can be adapted by courts to the local circumstances ‘on a scientific basis’ if the ius gentium is used in a genuine way. See also Andenas and Fairgrieve, above n 21 at 8 who write that comparative law can act as an important reference point for judicial decision-making, even when different answers are reached. 135 Posner and Sunstein’s innovative argument is premised on the view that there can be an answer to a legal question that is generally correct (and not just correct in a particular state). 136 Presumably, this has occurred in other countries as well, contributing to the development of a fast-growing body of jurisprudence relating to questions of statutory interpretation. 137 An idea commonly attributed to FW Maitland ‘A Prologue to a History of English Law’ [1898] Law Quarterly Review 14, 13. 138 For example, legislation relating to tort in British Columbia includes the Negligence Act, RSBC 1996, c 333; Occupiers Liability Act, RSBC 1996, c 337; Privacy Act, RSBC 1996, c 373, Business Practices and Consumer Protection Act, SBC 2004, c 2; Civil Rights Protection Act, RSBC 1996, c 49; Tobacco Damages and Health Care Costs Recovery Act, SBC 2000, c 30. 139 There is a practical reason as well: the detailed reasoning process of a foreign court in approaching a similar interpretive problem will often be of more comparative value to a domestic judge than the more sterile text of foreign legislation. 140 This is confirmed by legislation directing interpretive approaches in certain matters such as the federal Interpretation Act, RSC 1985, c I-21 and the provincial equivalents. For scholarly perspectives on interpretive legislation, see CDL Hunt, L Neudorf, and M Rankin (eds) Legislating Statutory Interpretation: Perspectives from the Common Law World (Carswell Toronto forthcoming 2017). 141 FB Cross The Theory and Practice of Interpretation (Stanford University Press Stanford 2008) at ch 1. 142 Gentili, above n 95 at 404. 143 Again, without adequate explanation for why these sources are more useful than others. 144 Gentili, above n 95 at 404. 145 Dodek, above n 89 at 448 observes the importance of the interpretive methodology to the judicial function, which supports the argument that foreign law should be used by the SCC in a consistent and principled manner. 146 As had been observed by Justice La Forest, above n 63 at 217, and Justice L’Heureux-Dubé, above n 69 at 25. In two of the cases reviewed above, it is also noteworthy that the SCC considered but rejected foreign law raised by counsel, demonstrating that counsel plays an important role in the consideration of foreign law, even when it is ultimately rejected by the bench: see above n 124 and n 128. 147 Graziano, above n 31 at 52. 148 L’Heureux-Dubé, above n 69 at 27. © The Author(s) 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Statute Law ReviewOxford University Press

Published: Feb 20, 2017

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