How Internationalization of the Law Has Materialized in Canada
Bastarache, Michel, University of New Brunswick Law Journal
The current financial crisis is evidence that no country, not even a superpower like the United States, can resolve on its own the modern challenges posed by a deregulated banking system, the ecological imbalance, terrorism, international crime or world trade impacts. Internationalization is a reality that has, of course, applied to the law for a long time. We need a reasonably efficacious system to accommodate trading among nations; laws on shipping and bills of exchange, for instance, are meant to ensure respect for the principles of unity and continuity in the law. These principles extend far beyond the need to secure international trade. Indeed, section I of the Canadian Charter of Rights anal Freedoms speaks of restrictions on fundamental rights that are justifiable in a free and democratic society; a reference to shared values and principles. At the first level, we can identify the universal values of human dignity, equality, democracy, and at the second level the requirements of a common methodology based on the application of the rules of proportionality by an independent judiciary.
We have obviously moved from a rather closed society to one of openness; this phenomenon being described as one of globalization. Justice Albie Sachs of South Africa questions this choice of words because globalization suggests that there is a centre imposing on others its technology, language, values. Universalization is a better choice, in his view, because it suggests that in a global struggle for freedom and fairness we recognize the equality of participants. I agree that what we now mean by globalization of the law is essentially access to all sources of law, national and international, and the circulation of norms and models. It is not, in my opinion, the search for supranational law as in the European Community.
The Supreme Court of Canada is still very much animated by respect for Canadian sovereignty and what I might call internal judicial security. It wants to develop the law cognizant of other nations' views, but does not believe fairness requires that the treatment of citizens of one country must mirror the treatment of citizens in any other particular nation. The confrontation of ideas is an enrichment but competition between legal systems is not. Diversity is also an important value and we therefore want to borrow or share what will help us make better decisions. Most often, we will be inspired by legal methodology and choice of criteria, but we will be careful in borrowing whole solutions that are often developed in an entirely different environment. Professor Jeremy Waldron of New York University provides an interesting example, that of the offence of desecrating the flag. The US precedents should always be considered because freedom of speech is a universal value that is well respected in the United States. But the examination of US precedents must take into account the fact that the US is a very old and stable democracy, that freedom of expression's content has been greatly extended there, and that veneration for the flag in the US is not comparable to that in other nations. In Canada the situation is different. Our flag is not very old; we do not define freedom of expression in such absolute terms, and we have s. 1 of the Charter to satisfy restrictions. But consider the case of a country like Kosovo which is a new and unstable democracy that is still very divided along ethnic lines. One part of the population still believes that separation from Serbia was illegal or illegitimate. Does flag burning take the same colour there even if the same criteria are applied to justify a restriction to freedom of expression?
Contextual analysis is important in the domain of human rights. Even within the community of nations who share the same fundamental values, harmony does not mean uniformity. Judicial borrowing must be limited to situations where it is truly appropriate. Nevertheless, it will appear more and more frequently because some judges in any given country will be afraid of marginalization; they will want to be seen as open to new ideas and new methodologies. …