In a judgment that is certain to breed controversy, the Supreme Court of Canada ruled yesterday that the Charter of Rights and Freedoms “does not mandate the presence of defence counsel throughout a custodial interrogation” (R. v. Sinclair, 2010 SCC 35, para. 2).
Already, the Court’s 5-4 judgment has attracted criticism from several corners of the Canadian political landscape. I suspect that we can expect more of the same.
But what is interesting from the perspective of comparative constitutional law is this: both the majority and dissenting opinions made extensive use of foreign legal materials to reach their respective decisions.
Writing for the majority, Chief Justice McLachlin and Justice Charron (joined by Justices Deschamps, Rothstein and Cromwell) spent roughly a half-dozen paragraphs discussing the relevance of American constitutional and criminal protections for accused persons. Responding to the accused’s argument that Canada should follow the American Miranda rule, the majority stated: “We are not persuaded that the Miranda rule should be transplanted in Canadian soil,” adding that “adopting procedural protections from other jurisdictions in a piecemeal fashion risks upsetting the balance that has been struck by Canadian courts and legislatures” (para. 38).
The majority also cautioned that “significant differences exist between the Canadian and American regimes” (para. 39) and furthermore expressed reservations about “departing from our own constitutional traditions” (para. 40).
For his part, dissenting Justice Binnie referred not only to the American Miranda case (para. 101) but also to Australian and New Zealand legislation (para. 103).
Justices Lebel and Fish (joined by Justice Abella) wrote a dissenting opinion of their own in which they, too, explored the promise and peril of importing the Miranda rule to Canada (paras. 198-201).
This is a rich opinion for comparativists to mine for insights about both how and why high courts engage foreign legal materials to resolve matters of domestic constitutional law.
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