The Canadian Supreme Court and American Judicial Review: United States Constitutional Jurisprudence and the Canadian Charter of Rights and Freedoms

Abstract

The constitutional entrenchment of the Canadian Charter of Rights and Freedoms in 1982 produced several commentaries comparing it to the United States Bill of Rights and speculating about the impact of American civil rights jurisprudence on Charter adjudication.' While some Canadian commentators enthusiastically welcomed the infusion of American constitutional jurisprudence into Canadian law,2 others feared that uncritical acceptance of American constitutional theory and practice might transform judicial review under the Charter into another branch-plant operation of an American head office.3 In particular, critics argued that the profoundly individualistic assumptions of U.S. judicial review are fundamentally inconsistent with Canada's more collectivist-oriented political culture, and they warned that the adoption of American-style judicial review could change this culture for the worse.