Crossing the Continental Divide: Hypotheses on the influence of American jurisprudence on Canadian Charter litigation
Manna, Sharon A
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2002 marked the 20 th anniversary of the adoption of the Canadian Charter of Rights and Freedoms. The anniversary was celebrated by some---witness the dedicated website at justice Canada, with its many links and display of the official poster commemorating the anniversary---and lamented by others. Several academic and professional conferences met in Ottawa that year to hash out the history and consequences of the Charter (the Association of Canadian Studies and the Canadian Bar Association come to mind). Why did the passage of twenty years warrant such attention? Because the addition of the Charter in 1982 significantly changed the relationship of judges and Parliament in Canada, by entrenching individual rights and allowing judicial review of legislation potentially in violation of the Charter. As a result of such change, scholars, jurists and other critics have debated the role American jurisprudence might play in the interpretation of the new Charter, given the American Supreme Court's history of judicial review, its periods of judicial activism, and most instrumentally, the resultant two hundred-plus years of case law. This dissertation attempts to discern the degree of American influence and the means by which Charter cases (1984-1995) came to be influenced by American Supreme Court decisions. While existing research has focused on the counting of American citations in Charter decisions in order to demonstrate influence, this dissertation explains how the Supreme Court of Canada uses American jurisprudence, and how American influence infiltrates the Charter adjudication process via avenues of influence---the justices, the parties before the Supreme Court of Canada, and the interest groups that are awarded "intervenor" status before the Court. Regardless of opinion on the utility of the Charter, what we now have is 20 years of jurisprudence by an extremely different Supreme Court of Canada than that which was in existence prior to the Charter. This dissertation is an additional review of the Charter, looking at one perspective---the reception of US law in Charter litigation over its first decade.