Canadian Justice: Celebrating Differences and Sharing Problems Claire L’Heureux-Dube Editor’s Note: This is adaptedfrom a speech given before the American College of Trial Lawyers at Amelia Island, Florida, on April 8, 1995. As I flew in from Ottawa, I thought about how similar our two countries are. In fact, upon first glance, our two countries may even appear virtually indistinguishable. We share the North American continent, with its vast expanses and magnificent and diverse landscapes that stretch from the Atlantic to the Pacific. We are both democracies. We both have responsible government. We both have a federal judiciary, and a state or provincial one. We both inherited the English common law and the French civil law. We both have Bills ofRights (the Charter in Canada). And we were both embroiled in a bitter baseball labor dispute. Yet, as many a Canadian will remind you, and as the president of the Canadian Bar Association told you yesterday, beneath our similarities lie many differences. For example, while we are both democracies, we function differently; while we both have Bills of Rights, we apply them differently; while we both inherited the English common law, we developed it differently; and while we both have a federal judiciary and a state or provincial one, we choose judges differently. In fact, upon a close examination, it becomes clearthat our differences are at least as significant as our similarities. One such difference, which I cannot help but think of today, as I stand before you in the company ofMadame Justice Ginsburg, is the fact that while Justice Ginsburg and I are both Supreme Courtjudges in ourrespective countries, we both were nominated through extremely different processes. In the United States, nominees for the Supreme Court undergo extensive public confirmation hearings and are chosen in the course of a fairly partisan political process. Nominations to Canada’s Supreme Court, on the other hand, are made through a totally different procedure. Supreme Courtjudges are nominated by the Prime Minister of Canada after informal consultations with the Canadian Bar, individual lawyers, and judges, as well as with cabinet members. The process is not entirely secretive, but is also not fully public. I must add that after witnessing the rigors of your nomination procedure, I am very happy that I was spared such an ordeal. Perhaps I would not have been “apotheosized by the ermine,”1 to use the words of Professor Bernard Schwartz, if I had had to go through the same agonizing procedure your Supreme Court nominees must endure. In my comments this morning, however, I do not intend to discuss the differences between our two Supreme Courts at length. Rather, I want to focus on our two Constitutions, and particularly our two Bills of Rights. These documents are at the heart of our two legal and 6 1995 JOURNAL political systems. It is with these documents that any discussion ofthe similarities and differences between our two countries must begin. I hope you will forgive me ifmy topic seems somewhat sober and serious. The truth of the matter is that one should stick with one’s strong points — and I am much better at speaking about serious issues than I am at doing comedy or lighter fare. In fact, my critics would say that my serious works are considerably funnier than my attempts at comedy. As I mentioned a moment ago, I wish to compare our two Constitutions, and particularly our two Bills of Rights. My first observation about these two documents is that they grew out of two very different historical contexts. Your nation, your Constitution, and your vision of individual rights and liberties were forged by your War of Independence and further refined in the crucible of yet another war, your Civil War, almost a century later. Next to the dramatic backdrop against which the building blocks of your nation were forged, the development of the Canadian Constitution and the Canadian vision of nationhood and civil liberties was a placid affair. In fact, when compared to the United States, I dare say that the constitutional ideals that bind my country grew through evolution rather than through revolution. Canada’s independence and constitutional documents gradually evolved...