The Internet and Proof of Foreign Law
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.
It’s one thing to read and cite foreign law as part of the process of developing the law of Canada or Ontario. There are different considerations when it’s a question of applying foreign law locally, I think.
There are two quite separate issues involved when a Canadian court looks at foreign law. When the question is the application of a foreign law to deal with a dispute that has come before a Canadian court, i.e., when foreign law is implicated under a choice of law rule, foreign law has, as Simon says, to be proved as a fact and that usually means proving it by expert evidence. (Some provinces have very expanded rules which permit a court to take judicial notice of foreign law; Ontario does not have these.) I cannot see much change occurring from the advent of the Internet except that the witnesses, counsel and the judge may now look at a computer screen rather than a stack of volumes of statutes and cases (or photocopies of those). (Whether the “foreign-law-is-a-fact” concept makes a lot of sense is another question.)
When, on the other hand, the question is the use of foreign law as a guide to understanding either Canadian law or the dimensions of an issue, foreign law (or international law) is not being established as a fact but as part of Canadian law. Provided that the judge or court gets the foreign law correct, it does not matter how he or she gets it and getting it through the Internet may be at least as accurate as getting it from books and a library. In this latter instance, what is very important is that counsel know that the judge is looking at foreign law and the particular foreign law he or she is considering and that counsel has an opportunity to offer other examples and make a reasoned argument about the use of foreign law.
As both John Davis and Angela Swan suggest, there is not much to be gained from visiting the distinction between private international law (conflicts) and public international/foreign law.
The Continuing Legal Education Society of British Columbia had a one day course in May of this year on Using International Law in Canada, with a focus on using it in domestic legal practice. Although the focus was on public international law, there was a lot of good material, including a keynote paper by Justice LeBel of the SCC entitled “The Importance and Relevance of International Law in Practice”.
Orally, LeBel J. also made an interesting observation which supports Simon’s view of the use of foreign and international law in Canadian courts. The observation was essentially that Canadian law has historically borrowed from both the English commonwealth legal systems and French civil systems, so it is natural for us to look outside of domestic legal sources.
The interesting point about English law that arises from this is whether and how much it is still relevant as precedent when it is increasingly become impressed with European Law.