Has the Internet changed our practices on the proof of foreign law?
Canadian lawyers and judges are, almost by definition, comparativists. We take for granted from the start of our careers that we may have to look to English law, or American or Australian. Civilistes look at French doctrine, to Planiol, Tunc or the Encyclopedie Galloz.
One doesn't need to spend much time in Michel-Adrien Sheppard's wonderful collection at the Supreme Court of Canada to recognize the importance of comparative law to that court. Homage to Claire L'Heureux-Dube.
Our judges would regard as odd the debate between Justices Tony Kennedy and Nino Scalia about whether American jurisprudence could profit from a dialogue with foreign law.
For over two decades section 1 of the Canadian Charter of Rights and Freedoms has required litigants and judges to have regard to foreign law as a metric to assess what limits are demonstrably justifiable in a free and democratic society.
And yet we still have doctrines on proof of foreign law that state that assumptions about the content of foreign norms are impermissible. Foreign law must be proved through duly qualified expert evidence. Janet Walker and Jean-Gabriel Castel's treatise on conflicts of laws is clear on that point
I'm starting to think that proof of foreign law is a bit like judicial notice or res gestae — part of the law of evidence that is simply ignored until someone needs to stop an opponent's argument.
And with the rise of Legal Information Institutes access to foreign law is simply a click away. Many factums rely more on BaiLII and AustLII and an intelligent use of Advanced Google than they do on traditional sources for comparative law. If both counsel and Supreme Court law clerks are finding their foreign sources this way, is the rule on formal proof of foreign law now reserved for occasions when judges are formally applying foreign law?
In other words comparative references are just so much local colour, prettying up footnotes. We don't require formal proof. But this completely misrepresents how Justice Claire L'Heureux-Dubé worked and how Section 1 operates.
I'm left thinking that the rule on formal proof is yet another casualty of a networked world.