Atlantic Getting Wider

Since I’m in the East Neuk of Fife without access to the web, this posting will be brief – and without the usual bevy of hyperlinks that normally are scattered like vole droppings over my blog postings.

And the lack of web access also gives me some distance to think about Canadian law, as contrasted with English law as reflected in the four major Sunday papers.

It’s been interesting over the last thirty years to note how English law – once so central to Canadian law – has moved to the margins. And not to be replaced by American law either. The reasons for this can be found on both sides of the Atlantic:
+ the growing confidence of Canadian courts post-Pierre Trudeau’s Charter of Rights;
+ the proliferation of judicial appointments which has been accompanied by an explosion of law reports of dubious merit, a trend only exacerbated by the ability for every judicial decision – even one so fact-bound that even the litigants scarcely care – to be web-published to the world;
+ the growing influence of Brussels and EU law on both English and Scots law.

So what’s in the papers. What one forgets reading them online is just how much bulk there is. Four papers each with almost the heft of the New York Times Sunday edition.

The Telegraph continues its four day old campaign for the repeal of the Human Rights Act on the basis that public security must always trump human rights – and who are these judges to be interfering on behalf of terrorists anyway. They were opposed to the House of Lords decisions on Guantanamo and habeas corpus too. What’s surprising is that the Leader of the Opposition has come out supporting repeal as well. No Canadian party would ever be able to put a finger on the Charter.

Speaking of the Lords it was strange to see the broadcast of the Self Assisted Death of Terminally Ill Patients Bill and note a dozen bishops with the Archbishop of Canterbury taking full part in the debate. An anomalous voice in political debate certainly. But when one contrasts the Canadian reaction to the explicit insertion of religious views into the Republican Party and the recent book attempting to argue that the US Constitution (notwithstanding the separation doctrine) is a Christian text because of the beliefs of the Founding Fathers – then it becomes clear just how different the two legal cultures are.
The Bill by the way is explicitly modelled on the Oregon statute which was so controversial two years ago.

Back to the Human Rights Act. One of the papers refers to a secret letter from the Prime Minister proposing a governmental – not a Parliamentary – override of judicial decisions that are generally recognized to be outrageous or publicly unacceptable. (The idea seems to be an extreme variation of some of the ideas that Ted Morton and some of the extreme Calgary Charter sceptics were developing in the old Canadian Alliance party before Stephen Harper house-trained them for electoral acceptability.

The media has been rabid in attacking the judiciary for being soft and out-of-touch.

It all leaves one wondering why the Canadian legal system has become so comfortable with judicial review. Why the Canadian public has developed such institutional confidence in the Supreme Court? And what genius of Tasse and Strayer to come up with the explicit balancing test of Section 1 of the Charter and the Notwithstanding Clause.

And why Charter values rank among the public policy goods ranked highest in uniting a disparate land.


  1. Hi there,

    I’ve written my own blog article about this tabloid-fuelled controversy:

    Why I detest this anti-rights rhetoric

  2. What’s odd is that senior politicians of each party aren’t coming to the defence with a rational explanation of quasi-constititional rights.
    The underlying premise seems to be that if you’re a criminal – or even someone charged with an offence – then you’ve forfeited any claim to constititional protection.

  3. With the greatest respect, Simon, I’m not sure that Slaw should become a political blawg. I don’t recall anyone on the survey supporting a political slant to our posts (but maybe my point of view is the lone voice on the prairie?).

  4. I’m not sure that this is becoming a political post. I started this as a way of juxtaposing a Charter-value infused legal environment with one in which the notion of individual rights appears to be more negotiable and in which judicial review isn’t as well accepted.
    Indeed I would argue – as I did in a speech to the Scottish Society for Computers and the Law some years back, that there was a great deal to be learned comparatively from the Canadian Charter experience. And that still strikes me as being a matter for a legal blog.