One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.
One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.
Yet constitutional differences, some quite significant, continue to endure. While the major differences between the two countries’ systems of government, political histories and constitutional legacies, are relatively well known, the less spectacular differences remain underexplored.
In July 2008, for example, a week after the U.S. Supreme Court ruling in Heller (essentially expanding the right to bear arms to individual/private use), Canada’s Governor General appointed Dr. Henry Morgentaler (currently 86 years old) to the Order of Canada – the highest official recognition of one’s contribution to Canadian society. Morgentaler, for those of you who do not follow constitutional law and politics north of parallel 49, is one of the most daring and progressive activists in Canadian constitutional history, and has been the champion of abortion rights in Canada for over 30 years. He and his clinics have been the target of many assaults by pro-life activists over the years.
Another reminder of these differences came in this weekend’s criminal underworld news: a former model was viciously murdered in LA, allegedly by her ex-husband, a reality TV star and a Canadian. (How the victim’s body was identified by police is an altogether different story, suitable for a forensic medicine blog). The suspect, still on the loose, is thought to have fled the US to Canada by boat. In 2001, the Supreme Court of Canada ruled in United States v. Burns that Canadian citizens facing serious criminal charges in the United States that may lead to their execution are not to be extradited to face trial unless a guarantee not to seek the death penalty in provided by American prosecutors. The main constitutional ground for the ruling was breach of “fundamental justice” guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. Although the Court did not rule on whether the death penalty was unconstitutional (section 12 of the Charter prohibits cruel and unusual punishment), at the principled level the ruling in Burns may be seen as a progressive, anti capital punishment statement. At the same time, the potentially grave consequences for law enforcement are obvious.
Either way, although dated in some respects, parts of Seymour M. Lipset’s classic account of the US/Canada continental divide remain as relevant today as they have ever been.