Canada's First Female Head of the High Court ; Canada and the United States Share an Inherited Common Law from England

Article excerpt

Canadian Supreme Court Chief Justice Beverly McLachlin recently visited the Boston area to give the commencement speech at Bridgewater State College. Bridgewater has one of the most extensive Canadian Studies programs in the US. Judge McLachlin, the first woman chief justice and one of three women on the nine- member Canadian Supreme Court, took time to talk to the Monitor about the difference between the Canadian and United States judicial systems.

Can you explain the fundamental difference between the US and the Canadian judicial systems?

Maybe I can start by saying what we have in common. We share the common law which we inherited from England, although we have a civil code in Canada, as well. That's a major difference, which applies in Quebec for what we call the civil law, torts, and contracts....

Canada is a bijural country, as we call it. We have a common law and a civil code. You are a unijural country, for the most part, although you too have a civil code in Louisiana.

On a constitutional level there are a number of similarities and differences. Both countries have a bill of rights. You got yours very early on. We did not adopt a bill of rights until 1982, with the Charter of Rights and Freedoms.

In deciding these issues [of rights and freedoms] we look at other countries and how they have gone about it. We look at what the American approaches have been, how Americans have defined these rights. We have perhaps a slightly more eclectic approach toward human rights than you might in the US. US justices do not often cite foreign precedents. We would do that frequently.

Another difference is in the structure of our bill of rights. Ours is much more like the European bills of rights and charters, although not identical, than the American. And that is reflected in the fact that we have an idea of proportionality. We don't define our rights absolutely.

There isn't a hierarchy of rights like there is in the US?

That's right. In Canada, we set out the rights to which people are entitled. But we also say, right in the Constitution under Section 1, that the state can limit those rights. …