I. The Popular Image
The literature on the comparative impacts of foreign law on domestic judgments is replete with highly complimentary portrayals of Canadian courts’ purported openness to cross-cultural influences. In their study on Judicial Recourse to Foreign Law: A New Source for Inspiration, Sir Basil Markesinis and Dr. Jörg Fedtke state that Canada is “of particular interest” because its mixed cultural background “prepared Canadians for an open and multi-cultural approach to law,” and that Canada’s courts are “more prone to a ‘dialogic’ model” rather than being “enforcers” of the internal constitutional order that was allegedly “especially strong … during the Rehnquist era” in the United States. The authors also note that there has been “an important shift” in the focus of Canadian courts’ attention towards United States jurisprudence since the 1980s, but that this has not been at the cost of losing touch with English, Commonwealth, and civilian systems “above and beyond the obvious interest in French law.”
The analysts’ conclusion is that “Canadian universalism may thus demonstrate the confident state of an eclectic mind which does not see in transnational judicial dialogues a threat to national individuality or an impoverishment of the local legal culture but, on the contrary, a source of constant inspiration and reinforced judicial legitimacy.” Markesinis and Fedtke note that they italicized the word “ ‘dialogue’ because in the reception of American law in Canada … “we see no slavish adoption of its solutions nor, indeed, the opposite, that is, a closing of the eyes towards the large (and sometimes menacing) Southern neighbour, but an opportunity for a genuine dialogue in search for inspiration.”
Although Markesinis and Fedtke have produced perhaps the most glowing portrayal of Canada standing at the crossroads of international judicial thinking, many of their sentiments have been expressed in other forums as well. In 2008, a Canadian court observer stated as follows:
Canadian courts have displayed a great openness in adopting new principles from foreign sources. Canadian society has always championed itself as being tolerant and open to foreign ideas, and it would follow that its legal institutions would want to embrace this spirit as well. In an increasingly globalized world where local law often comes in contact with foreign and international law, courts have two options. One option is to close ranks and concentrate only on the national experience. The second option is to readily accept the transfer of legal ideas and the opportunities of transnational legal discourse. The Supreme Court of Canada appears to have adopted the latter option.[]
One case that this author cited in support of his perception of Canadian courts’ openness to foreign jurisprudence concerned a provision in Canada’s major federal statute governing labor relations, which defined picketing to include leafleting. In fact, he stated that after reviewing foreign cases that distinguished between picketing and leafleting, the Supreme Court of Canada actually followed them in ruling that the extant Canadian restrictions on leafleting were a violation of the right of free expression guaranteed by the Canadian Charter of Rights and Freedoms. While it is true that the Supreme Court did consider the position in the United States in this case and characterized it, as well as American literature, as “helpful,” the Supreme Court does not appear to have looked to the law in any third countries and it was careful to note that freedom of expression is defined quite differently in Canada than it is in the United States. Therefore, to characterize the Supreme Court’s decision as “following” foreign jurisprudence appears to overstate the influence of American cases and writings even in that one instance.
Academics appear to not be the only ones who believe Canada’s courts “have learned from the rest of the world.” It has been reported that the justices of Canada’s Supreme Court challenged Chief Justice Rehnquist in 1999 by stating to him that they cited United States Supreme Court decisions, and asked why the United States Supreme Court did not reciprocate. The Chief Justice reportedly agreed that the United States Supreme Court’s more insular approach was becoming “less defensible.” Since then, other judges in the United States have recognized Canada’s contributions in the field of comparative jurisprudence. For example, in a 2009 speech at Ohio State University, Justice Ginsburg reportedly praised the Supreme Court of Canada for its willingness to consider foreign decisions in rendering its opinions in constitutional cases.
The subject of the extent to which the United States Supreme Court looks to foreign judgments in drafting its opinions is beyond the scope of this paper. However, the question of whether the Supreme Court of Canada is really as open to foreign influences as has been portrayed is one that was exhaustively studied in an article published in the prestigious Osgoode Hall Law Journal in 2009. That study concludes that the portrayals of Canada’s Supreme Court as being at the forefront of the practice of comparative jurisprudence may be somewhat exaggerated and it therefore deserves substantial consideration. However, before undertaking this task, a brief outline of the development of the Canadian legal system and the historical trends in Canadian jurisprudence is provided, in order to provide a context for the study’s findings.
II. Early Development of the Canadian Legal System
Nine of Canada’s ten provinces are common law jurisdictions. The one exception is the civil law jurisdiction of Quebec. The question sometimes arises as to what authorizes the courts in the nine provinces to invoke the common law in rendering their decisions. Few reported Canadian cases in which the common law has been interpreted or applied have cited the legal basis for doing so. For the most part, awareness of the fact that the nine provinces outside Quebec are common law jurisdictions is simply assumed by lawyers presenting arguments and judges deciding cases. In other words, lawyers and judges seldom explain why they are resorting to the common law. However, legal authority for the bases of the common law legal system are to be found in the English common law itself, and the English statutes that were received or adopted at various dates. Determining exactly when the common law was introduced and which statutes were received in which provinces at what times is difficult, and has been the subject of extensive research and some debate. In the cases of Ontario, Manitoba, Saskatchewan, Alberta, British Columbia, and the territories, these questions are no longer of great significance because, regardless of exactly when reception first occurred, legislation was subsequently enacted that established dates upon which it is deemed to have occurred. The enactment of these laws clarifies matters to a significant extent.
Today, statutes that were in force in England when English law was received by the common law provinces and territories are still in force in those jurisdictions if they have not been repealed or superseded by later legislation. These statutes still occasionally apply in individual cases, but not nearly as often as the common law. One reason why common law is of greater significance is that it was not frozen at the date of reception, whereas most early English statutes have been superseded by subsequent legislation. As the common law developed in England and Wales, Canadian courts continued to follow the pronouncements of the highest English courts. The position in England and Wales, Canada, and other Commonwealth jurisdictions has always been that there is one body of common law that is generally the same throughout the Commonwealth, but that body of law allows for regional differences when recognition of those differences is necessary or dictated by circumstances. This is in contrast to the position in the United States where it has been accepted that the common law can differ from state to state regardless of the circumstances.
One reason for this difference is that in the United States, the Supreme Court generally does not have jurisdiction to reconcile different interpretations of the common law from different states. In Canada, however, adherence to uniform English common law rules was virtually dictated for many years by the Judicial Committee of the Privy Council. This court, which has always met in London, was established for a variety of purposes, one of the most important being to hear final appeals in cases arising from all participating colonies. The Privy Council was not limited to hearing appeals in federal cases arising in such confederations as Canada or Australia. The Privy Council could review decisions as to the state of the common law within provinces or states, as well as constitutional matters. When former British colonies attained independence, the constitutions approved for them by the Parliament of the United Kingdom generally retained the Privy Council as their final court of appeal. Thus, for many years the Privy Council was effectively the high court for Commonwealth countries outside of the United Kingdom. The Privy Council has traditionally heard cases in panels composed of British law lords joined by a judge of a high court in a participating jurisdiction, and it has adhered closely to the decisions of what was the Judicial Committee House of Lords until it was restructured and renamed the Supreme Court of the United Kingdom in October of 2009.
By adhering to English precedents, the Privy Council long served to unify the common law throughout the Commonwealth. However, all of the Dominions and most of the former colonies have now abolished final appeals to the Privy Council. Canada abolished Privy Council appeals in 1949 and the last Canadian appeal was disposed of in 1959. Today, the Supreme Court of Canada is the country’s final court of appeal. However, while they are not binding, British precedents, particularly decisions of the House of Lords, continue to be highly respected. In fact, in discussions about the state of the common law, English precedents are usually cited without attention being drawn to their origin in a foreign court. Discussions of American cases and most non-English Commonwealth cases, by contrast, are almost always prefaced with a special note of their origin.
Finding the legal basis of the legal system in Quebec is not as difficult as it is in the case of the common law provinces. Quebec does not have unwritten common or customary law underlying its statutes. Instead, the basis of the legal system in Quebec is the Civil Code of Quebec. The current Code was adopted by the National Assembly on December 18, 1991, and went into force on January 1, 1994.
The history leading up to the adoption of the current Civil Code dates back to the sixteenth century. Although the territory that now comprises Quebec was explored and claimed by Jacques Cartier for France as early as 1534, colonization proceeded very slowly. The first settlements were commercial enterprises operated by companies in France, but by 1660, New France still had less than 2000 inhabitants. Three years later, Louis XIV annexed the colony from the company that had been given a commercial monopoly to exploit the fur trade in the area and recreated it as a royal domain. From that time until the conquest in 1759, the population of New France grew to be slightly over 75,000.
The earliest law introduced in New France was based upon feudal principles. New France was divided into seigneuries. Colonists had to pay taxes and rental fees to the seigneurs. This legal system was eventually replaced by the Coutume of Paris by the Company of 100 Associates. The Coutume was confirmed by the Royal Council that later governed New France. In France itself, the Code Napoleon was adopted in 1804. However, by then, Quebec was completely separated from France and the Code Napoleon was not immediately adopted for use in Quebec by the English government. In fact, the Coutume of Paris remained the basis of civil law in Quebec until it was finally replaced in 1866 by the first Civil Code of Lower Canada. Even then, while the Civil Code brought the principles and provisions of the Code Napoleon to Quebec, many of these were modified through the inclusion of aspects of English law.
In interpreting Quebec’s Civil Code, the courts of that province have never followed French jurisprudence to the extent that the courts in the common law provinces followed English jurisprudence. The Codes of Quebec and France were always different, there were no final appeals to Paris, and French judgments were not widely available. Thus, Quebec’s courts developed their own jurisprudence from an early date to a far greater extent than the common law provinces did. The current Civil Code is more of a domestic creation than a version of its French counterpart.
III. Constitutional Developments
Canada does not have a single constitutional document. In 1867, the United Kingdom united the four provinces of Ontario, Quebec, Nova Scotia, and New Brunswick as the Dominion of Canada through the enactment of the British North America Act. This statute divided legislative powers between Parliament and the provincial legislatures. The original British North America Act has since been renamed the “Constitution Act, 1867,” but it remains in force and its division of powers, though modified, has remained largely intact. On its face, this division would appear to give Parliament very broad authority to enact legislation covering virtually any matter it wishes to address due to the fact that it gives Parliament jurisdiction over interprovincial trade and commerce and residual powers over matters not assigned to the provinces. However, the courts have interpreted the provinces’ enumerated powers, particularly those over what is termed “property and civil rights,” broadly and have, consequently, ensured that Canada is, in practice, a more decentralized federation than the United States. Many fields that are governed by federal legislation in the United States are governed by provincial legislation in Canada. A few examples are labor law, securities regulation, and intraprovincial transportation. However, there is one major exception to this rule. The Constitution Act, 1867, gives Parliament exclusive jurisdiction to enact criminal laws for Canada. In exercising this power, Parliament has enacted a Criminal Code that applies throughout the country. The provinces do not have their own separate criminal codes for intraprovincial or minor crimes, but they can enforce laws otherwise within their jurisdiction through what are termed “quasi-criminal laws.” Highway traffic laws are an example of quasi-criminal laws. Anti-terrorism legislation, on the other hand, is criminal law in the strict sense that falls almost entirely within the exclusive powers of Parliament. At the same time, the provinces do have prime responsibility for enforcing the criminal laws written by Parliament because charges brought under the Criminal Code are tried in provincial courts.
The original Constitution of 1867 did not give Canada the power to amend its Constitution or give Canadians constitutional guarantees similar to those found in the United States in the Bill of Rights. In 1982, these two matters were addressed through the enactment of the Constitution Act, 1982. This document replaced the anachronistic procedure of formally asking the government of the United Kingdom to enact an amendment to change the Constitution with complex formulas for the Parliament of Canada to amend the Constitution with the consent of all or some of the provinces, depending on the nature of the proposed changes, and it simultaneously created the Canadian Charter of Rights and Freedoms (the Charter). The adoption of the Charter has dramatically altered constitutional law in Canada over the past twenty-four years. Whereas the study of this field was once focused almost entirely on the respective legislative powers of Parliament and the provincial legislatures, the subject of civil rights or what limits the Charter places on the powers of both Parliament and the provincial legislatures moved to the forefront.
The Charter differs from the U.S. Bill of Rights in a number of respects. For example, the Charter is far more detailed. For this reason, as well as on account of a judicial trend that embodies more European influences than are encountered in American jurisprudence, the Charter has been interpreted to give Canadians guarantees that have not been found to exist in the United States. A clear example in this regard is protection from the death penalty. Canadian courts have interpreted the Charter to not only prohibit the imposition of the death penalty, but to also prohibit the extradition of persons to face the death penalty except in “extraordinary circumstances.” However, while the Charter is more detailed than the Bill of Rights, it is also qualified in two significant respects. First, Charter rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This limitation gives the courts authority to uphold laws that they consider “reasonable” in a democratic society even if they would otherwise contravene the Charter. Secondly, the Charter contains a “notwithstanding” clause that generally gives Parliament and the provincial legislatures authority to declare that legislation they have enacted is to go into force “notwithstanding” the fact that it contravenes the Charter. While some legislators were afraid that the inclusion of this clause would give Canadian governments a convenient way to simply ignore Charter guarantees, Canadian governments have actually been so concerned that invoking the notwithstanding clause would create a public backlash that they have avoided using it almost entirely. In fact, the notwithstanding clause has not been invoked by Parliament on a single occasion and it has only been resorted to on the provincial level in a couple of instances.
From the above it can be seen that Canada has had a legal history quite different from that of the United States. Until sixty years ago, its highest court was an essentially English court and the chief focus of its courts in constitutional cases involved the respective powers of Parliament and the provincial legislatures and much of its other work was in interpreting the common law in cases that would generally fall outside of the jurisdiction of the Supreme Court of the United States. Furthermore, it is not surprising that constitutional cases from the United States did not have much of an early impact in Canada because instead of involving questions of federal versus state powers, the main constitutional issues in the U.S. have involved the Bill of Rights for at least the past 100 years. Canada, on the other hand, did not adopt its equivalent—the Canadian Charter of Rights and Freedoms—until 1982. The question then becomes one of whether this and other developments have increased the overlap of issues faced by Canadian and non-Commonwealth courts in recent years.
IV. The McCormick Study
The Osgoode Hall Law Journal article previously referred to is entitled “American Citations and the McLachlin Court: An Empirical Study.” It was written by Peter McCormick, a professor of political science at the University of Lethbridge in Alberta, and its thesis is perhaps best summarized by his finding that “American authority is not a major feature of the case law of the McLachlin Court, and is somewhat less prominent than was the case for the preceding Chief Justiceships.” Professor McCormick notes that, by contrast, citation rates for American cases in Australia have been rising steadily for over forty years and are about six times higher than they are in Canada.
While Professor McCormick’s focus is on the citation of American cases in Canada, he begins by reporting some statistics on the sources of all citations by the Supreme Court of Canada. His data shows that almost 60% of the citations in a period after the abolition of appeals to the Privy Council in 1949 were to English cases and that less than 1% were to American cases. Citations to all other jurisdictions, both within and outside the Commonwealth, were approximately 1%. Under the current Chief Justice, citations to English cases have fallen all the way to around 6% and citations to U.S. cases stand at around 3.5%. Citations to cases from all other jurisdictions are about 1.5%. The highest rate of citations to U.S. cases was 7.2% under former Chief Justice Dickson. During that same period, citations to cases from all other jurisdictions also reached their high point of 2%. This is largely attributed to the adoption of the Canadian Charter of Rights and Freedoms in 1982. In the first few years, the absence of relevant case law from Canada naturally encouraged the courts to look at some foreign precedents respecting such rights as freedom of speech and freedom of association. However, foreign precedents came to be cited less as Canadian jurisprudence under the Charter grew at a far more rapid rate than was widely foreseen in 1982. Professor McCormick describes this development as the process of “constitutional routinization [setting] in.”
Professor McCormick has broken American citations down and reported that about half of the citations during the current period of interest were to Supreme Court decisions. Perhaps somewhat surprisingly, nearly 30% were to U.S. state courts. This number reflects the fact that matters that fall outside of the jurisdiction of the United States Supreme Court can be considered by the Supreme Court of Canada. One example previously mentioned in this regard is common law that does not involve a federal question.
One interesting statistic is that the median year for decision of United States Supreme Court cases that were cited by the Supreme Court of Canada between 2000 and 2008 was 1973. The average state case cited was about twenty years old. This suggests that the Supreme Court of Canada has been more interested in reviewing established American cases than in tracking recent rulings.
As has been mentioned, Professor McCormick’s thesis is that foreign authorities are not a major feature of the current case law of the United States. This thesis is supported by such a comprehensive analysis of the data that it is easy to overlook one portion of his paper, in which he does acknowledge that the Supreme Court of Canada’s use of foreign law may still be fairly impressive in a comparative context. An analysis of the reserved decisions issued by the Supreme Court of Canada since 2000 shows that “[o]ne in every five … uses American citations, and two-thirds of those (or one in seven) involve the use of one or more citations to the [United States Supreme Court].” Professor McCormick goes on to state:
The use of federal court citations is somewhat more focused, occurring in only fifty-one cases (or one in eleven), and state court citations are found in only thirty-three cases (or one in seventeen). [Nevertheless], “one case in five” is a solid increase over the “one case in ten” identified by [Ian] Bushnell for the pre-Charter period, and it contrasts dramatically with the [United States Supreme Court’s] citation of foreign authority in about one case in every two hundred.[]
The pointing out of this dramatic difference serves to balance Professor McCormick’s analysis most effectively.
In his article, Professor McCormick looks at a number of assumptions about the citation of foreign judgments in Canadian judgments. One of these is that American cases are most likely to be cited by judges with legal training in the United States and least likely to be cited by judges with legal training in England. Today there are no judges on the Supreme Court of Canada who received law degrees in the United States. However, under Chief Justice Lamer, current Chief Justice McLachlin’s predecessor, only one of the six justices who cited American cases most frequently had received an American law degree. Furthermore, since 2000, the two justices who have cited American cases most frequently both received law degrees from Cambridge. Thus, there does not appear to exist a strong correlation between a judge’s foreign legal training, or lack thereof, and his or her openness to foreign law of any one or any number of countries.
Another assumption that Professor McCormick has addressed at some length is of a more political character. Some writings suggest that foreign law is most likely to be used by judges who might be described as “activists” and that the foreign judges they cite are most likely to fall into this same category. The statistics show that of the U.S. Supreme Court cases cited by the Supreme Court of Canada since 2000, about two-thirds were issued by the Burger, Rehnquist, and Warren courts, which ranked in that order in the number of citations. Fourth on the list was the Fuller court, which lasted from 1888-1910. This led Professor McCormick to consider whether, rather than courts of a particular era, Canadian judges were most likely to cite individual judges more on the basis of their reputation. He approached this by noting which U.S. Supreme Court Justices had been most often cited by the Supreme Court of Canada and found that Justices Rehnquist, White, Brennan, Stewart, and Stevens were all tied at fourteen citations each. Behind this group in descending order with a high of thirteen and a low of six were Justices Burger, Blackmun, O’Connor, Scalia, Gray, Warren, Kennedy, and Black. Professor McCormick compared this list with a 1993 survey of judicial reputations conducted by Mersky and Blaustein and found that only three of these justices—Brennan, Warren, and Black—were ranked in the top ten by sixty-five law school deans in the United States. By contrast, former Chief Justice Burger, who only ranked ninety-first in the United States survey, was just one citation short of being tied for the most frequently cited American justice by the Supreme Court of Canada.
The statistics given above do not show a clear pattern with respect to either ideology or reputation.
Canadian courts enjoy the reputation of being comparatively open to foreign law in rendering their decisions. However, aside from the judgments of the highest courts in England and Wales, which were routinely followed until the 1970s and are still cited more than twice as often as judgments from any other country, foreign law does not appear to have ever played a major role in the development of Canadian jurisprudence. The adoption of the Charter of Rights and Freedoms in 1982 did increase interest in American cases under the Bill of Rights for several years, but Canadian jurisprudence has grown rapidly since that time. The Canadian Charter and the American Bill of Rights have many similarities, but major differences between the two ensure that the jurisprudence of the two countries will continue to develop quite independently. Nevertheless, when all cases are considered, statistics show that the Supreme Court of Canada has cited American case law almost forty times as often as the Supreme Court of the United States has cited Canadian case law. Statistics alone may not tell the whole story of the influence of foreign law on Canadian judgments, but they do offer substantiation that Canadian judges have consistently shown an interest in American law even if English law continues to be more influential.
Prepared by Stephen F. Clarke
Senior Foreign Law Specialist
 Sir Basil Markesinis & Jörg Fedtke, Judicial Recourse to Foreign Law: A New Source of Inspiration? 83 (UCL Press 2006).
 Id. at 84.
 Id. at 84-85 (footnote omitted).
 Id. (citing United Food and Commercial Workers, Local 1518 (UFCW) v. Kmart Canada Ltd,  2 S.C.R. 1083, available at http://scc.lexum.umontreal.ca/en/1999/1999scr2-1083/1999scr2-1083.html).
 United Food and Commercial Workers, 2 S.C.R. at 1118-21.
 Ai, supra note 5.
 Vicki Jackson, Yes Please, I’d Love to Talk With You, Legal Affairs, July/Aug. 2004, http://www.legalaffairs.org/issues/July-August-2004/feature_jackson_julaug04.msp.
 Adam Liptak, Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa, N.Y. Times, Apr. 11, 2009, available at http://www.nytimes.com/2009/04/12/us/12ginsburg.html.
 Peter Hogg, Constitutional Law of Canada 2-1 to 2-11 (5th ed. 2006); Kenneth Roberts-Wray, Commonwealth and Colonial Law 828-37 (1966).
 Id. at 2-5.
 Erwin Chemerinsky, Federal Jurisdiction 337-38 (5th ed. 2007).
 Id. at 655-62.
 1949 S.C., ch. 37, § 3.
 1991 L.Q., ch. 64.
 For an overview of the Code in French, see Michel Filion, Guide du Code Civil du Quebec (1998).
 Adrian Popvici & Micheline Parizeau-Popovici, Vous et la Loi 34 (1977).
 30 & 31 Vic. c. 3 (U.K.).
 Constitution Act, 1867, R.S.C. No. 5, §§ 91-92 (App. 1985).
 Id. § 92(13).
 Id. § 91(27).
 R.S.C. No. 44 (App. 1985).
 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c. 11 (U.K.).
 United States v. Burns,  1 S.C.R. 283.
 Part I of the Constitution Act, being Schedule B to the Act, 1982, c. 11, § 1 (U.K.).
 Id. § 33.
 Peter McCormick, American Citations and the McLachlin Court: An Empirical Study, 47 Osgoode Hall L.J. 83 (2009), available at http://ohlj.ca/english/documents/0347_1_McCormick_PSS_090607.pdf.
 Id. at 94.
 Id. at 92.
 Id. at 93.
 Id. at 93-94 (quoting Ian Bushnell, The Use of American Cases, 35 U. New Brunswick L.J. 157, 164-65 (1986)). For the U.S. statistics, Professor McCormick cites David Zaring, The Use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 Empirical Legal Stud. 297 (2006).
 McCormick, supra note 29, at 97-98.
 Id. at 103 (quoting William G. Ross, The Ratings Game: Factors that Influence Judicial Reputation, 79 Marq. L. Rev. 401, 445-52 (1996)).
Last Updated: 02/28/2014