September 24, 2008
The New York Times recently published an article on the waning international influence of the U.S. Supreme Court, especially with regard to constitutional law. As countries like New Zealand (whose Bill of Rights was enacted in 1990) and South Africa continue to develop jurisprudence around their young constitutional documents, they are looking increasingly less at the precedents set by the U.S. Supreme Court. Of interest to Canadians is that many of these foreign top courts are turning more and more to the Supreme Court of Canada for guidance on constitutional issues. The Times writes:
Frederick Schauer, a law professor at the University of Virginia, wrote in a 2000 essay that the Canadian Supreme Court had been particularly influential [to foreign courts] because "Canada, unlike the United States, is seen as reflecting an emerging international consensus rather than existing as an outlier."
In New Zealand, for instance, Canadian decisions were cited far more often than those of any other nation from 1990 to 2006 in civil rights cases, according to a recent study in The Otago Law Review in Dunedin, New Zealand. [...] American precedents were cited about half as often as Canadian ones.
The Times surmises that the U.S. Supreme Court's diminished international standing is due to the unpopularity of the Bush administration and also to the fact that the Court itself is reluctant to consider foreign law; after all, if the U.S. Supreme Court refuses to consider the case law developed by foreign courts, it's understandable that those courts respond in kind. However, the article provides no satisfactory reason as to why foreign nations are looking to Canada in particular for legal direction. Surely, there are other countries who might also be relied upon as representing a global consensus on human rights.
My guess is that that the Supreme Court of Canada's experience with interpreting limitation clauses, namely section 1 of the Charter, has helped the Court emerge as an authority in human rights jurisprudence. The Charter was one of the first constitutional documents in the world to explicitly recognize, with a general clause, that rights are limited. Since the Charter's enactment, the Supreme Court of Canada has famously grappled with Section 1 and has developed a large body of case law surrounding its use. This jurisprudence has no doubt been influential to nations like South Africa that have incorporated a general limitations clause into their constitutional instruments. By contrast, the American Bill of Rights lacks any provision qualifying its enumerated rights, and the U.S. Supreme Court has had to employ a complex assortment of interpretive tools in order to read in such limitations. As such, nations with newer constitutional documents may be drawn to the decisions of the Supreme Court of Canada because of its expertise in interpreting limitations on rights. For example, Israel's Limitations Clause (article 8 of their Basic Law on Human Dignity and Liberty, enacted in 1992), draws inspiration from section 1 of Canada's Charter, which may explain why that country's Supreme Court has adopted a similar approach as ours in reviewing parliamentary legislation on human rights.
With all the criticism leveled at the limitation clause when the Charter was enacted in 1982, early proponents of the Charter may now feel vindicated by the respect and admiration other nations accord our constitutional jurisprudence.
2 Comments
The SCC is not just interesting for its interpretation of rights limiting provisions. No one could ignore its development of the principled exception to the hearsay rule. That development is reflected in recent reforms, eg NZ's Evidence Act 2006, ss 16-22.
Another critical area on which the SCC is strong is the relationship between an impropriety and the obtaining of evidence, recognising temporal and contextual matters, and not limiting the requirement to a causal connection (principles summarised in R v Wittwer [2008] SCC 33).
Richard Posner, in "How Judges Think" (2008) describes judicial borrowing from foreign law as "bricolage" (p 341) [acknowledging that he is borrowing Derrida's term], and suggests (p 352) that Justices who cite foreign judgments are "arrogant, even usurpative, in trying to impose their cosmopolitan values on Americans [he means United States of Americans] in the name of our eighteenth-century Constitution". Posner doesn't like Barak's approach to extending the power of the courts, but Barak in "The Judge in a Democracy" (2006) admires (p 203) the SCC's use of comparative law. Both Posner and Barak recognise, as any sensible person would, the value of looking at the legal experience of comparable foreign jurisdictions.
I am a huge proponent of the great legal traditions embodied in the Supreme Court of Canada and its reputation overseas. I think we have some of the greatest legal thinkers and jurisprudence in the common law world, without a doubt.
One could surmise that even when the compensation of our SCC Judges are compared to our other common law counterparts, it is quite evident that the Canadian Legislature is of the opinion that this Court has some of the best legal minds in the world.
Consistent with those sentiments, it would be good for the readers to look at file 32746 and 32605, at the Reconsideration stage.
I would like to hear what others think about any court system that doesn't give reasons for leave to appeal, and what effect does such have on their democracy.
Kudos to the site