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)

Since the enactment of the 1982 Charter of Rights and Freedoms, the Supreme Court of Canada has established itself as one of the most progressive and genuinely global constitutional judges in the world. The Charter - inspired by the United States Bill of Rights and several international human rights documents - prompted the Court to refer to an extensive range of foreign jurisdictions, including Australia, Israel, New Zealand, South Africa, the United Kingdom and the United States. The purpose of this work is to achieve a better understanding of the decision-making process informing the Court’s activity in today’s globalized legal context and of the role played by the Charter in this process. To this purpose, the contribution presents an empirical quantitative and qualitative analysis of the Court’s judgments issued between 1982 and 2013 and shows that the Court, in deciding constitutional cases and interpreting the newly enacted Charter has consistently considered other jurisdictions. Indeed, in referring to cases decided by - among others - American, Australian, British and various European courts, the Court has, over the years, established its Charter jurisprudence by drawing critical inspiration from foreign judicial decisions and by adapting their legal principles to the unique features of Canada’s legal system and society, ultimately enhancing the Court's constitutional understanding of the Canadian legal systems through the use of comparative law and foreign legal sources