The Use of Comparative Law in the Practice of the Supreme Court of Canada: A Quest for Methodology

Constitutional courts worldwide increasingly rely on comparative constitutional jurisprudence to both frame and articulate their position on a given constitutional question. Beside the legitimacy question, critics mostly focus on the methodology problems: cherry-picking or even misuse of comparative law may endanger the whole function of comparative constitutional reasoning.
This paper gives an analytical overview of the case law of the Supreme Court of Canada, a ‘comparative constitutional powerhouse’ (Hirschl), from the very beginning until our days. By the textual and contextual analysis of all foreign law citations, it aims to identify patterns in the case law to understand the background, motivations, and forms of the use of comparative law. Finally, the paper makes steps to provide the judges with applicable methodological standpoints to enhance transparency in the comparative constitutional reasoning.