Judicial Review

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United States initial Influence

The constitutional case law of Canada, like other national high courts (clear examples are Australia, India and South Africa), was full of references to American judicial precedents, especially in the areas of association, speech, press, and criminal procedure. For example, the 1964 U.S, case New York Times Co. v. Sullivan (about the free speech rights) received notable attention in nearly all high courts of the commonwealth. Even when the U.S. constitutional justice decisions were not cited, the Canada (and other countries) courts often employed terminology clearly borrowed from the U.S. case law. The Canadian courts have also borrowed heavily from the rhetoric of liberty found in the judicial dissents of justices like Louis Brandeis, Oliver Wendell Holmes, Earl Warren, and William Brennan. The fierce independence associated with the exercise of judicial review by these and other justices served as a model of constitutional civil rights in Canada and other nations.

Canada’s constitutional own vision

The impact of the U.S. Supreme Court on the development of Canadian constitutional law has been limited. The Canadian high courts have produced important precedents, especially in the area of liberties and rights, which rival or upstage the American Supreme Court. The Canadian courts continue to cite U.S. constitutional decisions while developing bodies of law, sharing the U.S. language of rights, but with its own concepts of liberty, democracy, and human rights.

Claire L’Heureuz‐Dube, a former justice of Canada’s Supreme Court, affirmed “the failure of the [Rehnquist] Court to take part in the international dialogue among the courts of the world.”

His view is interesting taking account the Canadian Supreme Court’s traditional reliance on the U. S. in its interpretation of the 1982 Charter of Rights and Freedoms. There is of course far more convergence than divergence in the constitutional jurisprudence of Canada and the United States. But the Canada’s high court, examining comparable U.S. cases, refused to accept the U.S. doctrinal solutions in areas such as legislative apportionment, defamatory speech, obscenity, affirmative action, and church‐state relations.

The sentences produced by the Canadian high court lack the individualistic tendency of the U.S First Amendment and equal protection jurisprudence. As the 1990 Canadian case Regina v. Keegstra (relating an Act which punished forms of hate speech) “[i]t is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada’s constitutional vision depart from that endorsed in the United States.”

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This entry was last updated: January 19, 2014