This article traces the evolution of the Canadian approach to private
international law from Morguard Investments Ltd. v. De
Savoye to Castillo v. Castillo and identifies
four major flaws that have significant implications for both private
international law and Canadian federalism: (1) ambiguous and inconsistent
terminology that undermines the conceptual foundation of this approach while
obscuring its potential impact; (2) the Court’s use of American conflict of
laws jurisprudence to reinforce a deferential orientation in Canadian
private international law; (3) the Court’s vision of the international order
and understanding of public international law, which has begun to affect the
Canadian federal system; and (4) the model of the Canadian Constitution
employed in these cases, which may have broad negative consequences for
provincial interests. The article argues that these flaws are remediable,
that both constitutional text and recent opinions contain resources useful
to this end, and that, however the Court decides to address these problems,
subsequent iterations of the Canadian approach to private international law
should emphasize clarity, consistency, and comprehensiveness.