Nevsun and Quebec (AG): Duelling Visions of Canadian Courts' Role in the World

<p>In recent years, methodological debates around Canadian courts’ engagement with international and comparative legal sources have played out at the Supreme Court of Canada. I contend that the Court finds itself riven by two clashing visions of Canadian courts’ engagement with international and comparative law. These competing visions are laid out in Nevsun Resources Ltd v Araya and Quebec (Attorney General) v 9147-0732 Québec inc., two cases from 2020. I term the first vision, associated with the majority judgment in Nevsun and Justice Abella’s concurrence in Quebec (AG), “engaged cosmopolitanism.” I term the second vision, associated with the Nevsun dissents and the Quebec (AG) majority, the “rule of law thought.” The two visions, despite fundamental differences, share some similarities as well as a common gap: neither vision fully addresses the conditions under which courts should look to international and foreign legal sources in the first place. I conclude that though multiple judges have, since 2020, embraced the Quebec (AG) framework, it is doubtful that courts across the country will exclusively apply the rule of law thought and discard engaged cosmopolitanism when approaching international and comparative law sources.</p>