The use of non-domestic legal sources in Supreme Court of Canada judgments: Is this the judicial slowbalization of the court?

Abstract

Observed from the perspective of citation of foreign judgments, the Supreme Court of Canada (SCC) is often considered one of the world’s most cosmopolitan and proactive actors in transnational judicial conversation. However, there are also other forms of non-domestic legal sources that Courts engage with, such as: foreign law, international case law, and international treaties. Hence, the ‘globalist’ or ‘localist’ approach of a court cannot be assessed without looking from this broader perspective. By examining all the 1223 judgments issued by the SCC over 17 years (2000–2016), this study offers a comprehensive picture of citations of all forms of non-domestic legal sources. Remarkably, the empirical data show that the Court has extensively engaged with all forms of non-domestic legal sources, and cites such foreign authorities in approximately 50 different fields of law. This article is distinct in that it combines two different perspectives when analyzing the data: the SCC as an institution and its individual judges. From an institutional perspective, such all-inclusive records demonstrate that foreign citation is decreasing, a trend which may jeopardize the high prestige of the SCC in the global arena. Similar trend is noticeable when the data is analyzed also from an individual-judge perspective. In providing an empirical picture of individual judges’ engagement with non-domestic legal sources, this Article attempts to categorize the 21 justices that have served in the SCC during the 17-year timeframe into three groups: ‘high globalist judges’, ‘moderate globalist judges’, and ‘localist judges’. The article ends with few remarks regarding whether this is a judicial slowbalization of the Court.