The law may be principled, but it is ultimately pragmatic. Laws seek to address societal problems (the mischief rule), but also make sense (the golden rule). In fact, I’d argue that it has always been this way.
The presence of the principles of equity in the common law, infused with the coming of the Judicature Acts of the 19th c., sought to reconcile the literalism of rule-based decisions and the goal of fairness that previously existed in two independent court systems.
We can go back even further to find hints of this in the common law. The search for pragmatism has often led to legal systems borrowing ideas and inspiration from other legal systems.
The inception of the common law, often dated to the Norman Conquest of 1066, itself relied a fusion of many different legal principles. In addition to the Danelaw of the Viking and Danish settlers, the common law also incorporated components of Roman law princeps found in Frankish law, and the Anglo-Saxon legal code of Alfred the Great, itself based on Anglo-Saxon traditions, Germanic law and Biblical values.
According to John Makdisi’s 1999 article in the North Carolina Law Review, these Normans may have even incorporated elements of North African law via Sicily, which the Normans conquered between 1061–1091. Given the Norman affinity for pseudo-Kufic and heavy reliance on North African ex-pat jurists in Sicily, this theory is highly likely, if not understated.
The common law is therefore thoroughly international in its character, even if presented today as being the inheritance of centuries of English adjudicators. In the context of perceived tensions between legal systems in the world today, this recognition is perhaps never more desperately needed.
We do find clear examples of this occurring, even in the development of our common law today, especially in new and emerging contexts. The importation of privacy torts into Ontario was expressly based on American concepts. But this cross-pollination is not without scrutiny by our legal system. I’d point to what I consider our Court’s misguided decision in R. v. Fearon as an example of explicitly rejecting American principles. In that instance, the American jurisprudence better encapsulate the privacy concerns in technology.
What is important is that these discussions occur, and not just in written decisions. Tonda MacCharles of The Star illustrates this weekend that Supreme Court Justices do in fact travel and converse with top jurists from other jurisdictions as well. I’ve previously cited this as the reason for Canada being the world’s constitutional superpower.
These travels included the Chief Justice going to Hong Kong for a judicial colloquium, and to Israel, in 2015. The high regard that Israeli jurists hold Canadian law would likely surprise many Canadian lawyers. Last year, members of our Supreme Court actually sat in on proceedings at the Supreme Court of the United States during the middle of the election season. The legal arguments would certainly be more intelligible than the political ones.
International judges have also traveled to meet with our top jurists, including a delegation from the U.K. in 2016, the European Court of Human Rights in 2015, U.S. Supreme Court members and France’s Constitutional Council in 2014, and the Federal Constitutional Court of Germany and the Supreme Court of India in 2012.
MacCharles notes that the proportionality principle in our Oakes test was actually borrowed from case law in Germany, and jurisdictions which adopted it like Israel. When the German jurists visited Canada years later, the exchange about how this concept had been interpreted in Canadian law was of significant interest to the visiting judges.
The Star interview with McLachlin emphasized the importance of judicial dialogue, even with countries that have different values and beliefs than we do. The Chief Justice stated,
There’s never a downside in looking at other people’s ideas. I mean, each court in the end decides the cases based on the laws in their country and the jurisprudence in their country, and the submissions of the counsel and the intervenors and so on.
Listening to other people, I feel, is always a good thing. And you don’t accept holus bolus everything you hear, of course. But it causes you to reflect on your own approach and what you’re being told by litigants, and by lawyers and academics and I come back to the idea that it enriches your thinking about a particular jurisprudential problem.
MacCharles also interviews Prof. David Schneiderman, of the University of Toronto Faculty of Law, who suggests that the Court’s shift on extradition that may involve the death penalty between the 1991 decision in Kindler v. Canada and United States v. Burns was likely influenced by the 1995 judgement of the Constitutional Court of South Africa S. v. Makwanyane.
The Court in Burns cited at para 67 the following passage from para 88 of Makwanyane,
Public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive, there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised…
The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected.
Understanding how and when the Court should go against the express wishes of elected representatives in a democracy is bolstered perhaps by those instances when courts in similar nations also draw this type of line in the sand. That’s not to say that there are always lessons to be learned from every similar nation. Schneiderman also told MacCharles,
I mean the U.S court is a highly dysfunctional court in many ways. It’s riven by a political divide that we don’t have here.
We don’t want to copy what they’re doing.
Insight into these conversations are largely elusive, as the Supremes are eminently supremely quiet on the internal decision-making processes by the Court. Several justices refused MacCharles’ interview, and the Chief Justice refused to comment on Burns.
That’s not to say that this insight cannot be gained at all. Last week, 3 justices of the Supreme Court of Canada joined us at the Ontario Bar Association’s Institute, where they spoke to young lawyers, and perhaps some future jurists.
Let’s hope these healthy conversations continue.