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

Abstract

This paper examines the Supreme Court of Canada'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 Supreme Court of Canada regularly cites foreign legal sources in deciding cases turning on questions relating to the interpretation of domestic legislation. However, because of the inconsistent use of foreign law by the Supreme Court of Canada 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 Supreme Court of Canada'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.

Keywords: supreme court of canada; statutory interpertation; comparative law; courts; judges