Coming to law school in the United States, as a born and raised Canadian, left for a huge gap in practical knowledge of the law. Growing up in Canada, you have the Charter of Rights and Freedoms[i] you learn about, and you automatically assume and know that everything that happens in one part of the country, is a reflection of what would happen on the opposite coast.
Firstly, learning the United States Constitution was a whirlwind, the most difficult part being that reading it for the first time when you are twenty-three years old, you cannot possibly see how some of the articles or amendments to the Constitution that can consist of twenty words, founded thousands of interpretations that make no sense, on first glance – if you do not know the ways different judges interpret the constitution (originalists, the living constitution, etc.).
But these things you can overcome and actually translate very well between Canada and America. It is in between the lines, the little nitpicky things that really take you by surprise. After learning the foundations of law in 1L, going back to Canada to practice with a firm in Toronto was easy enough – but it was the little things that you can get stuck behind on. Calling an appellate brief in Canada a “Factum,” aside, here are three things that are different between the United States Legal System and the Canadian Legal System.
- Political System (Federalism)
While both the United States and Canada have successful federal government involvement, the parliamentary confederacy of Canada has structured the court system very differently – which we will discuss shortly.
The most important distinction between the political influences is that Canada as one singular federal criminal code.[ii] Canada uses their federalism to have a universal criminal code that keeps a consistent blanket of laws to govern Canada. This probably helps the Canadian legal system function because its realistically easier in a country that’s population is about 35 million[iii], compared to America’s 326 million[iv]. It also was in the heart of the creation of the United States of America that States would retain some-sort of independence, something that was compromised in the creation of Canada.
The universal criminal code in Canada doesn’t apply necessarily to the civil code, as the provinces and territories have their own rules when it comes to that, but semantics.
- Structure of the Court System
Naturally, from having such different ways of binding the country by governing laws, the way the courts are set up are bound to differ. While the structure in the United States can be confusing because of basic jurisdictional questions between the States and Federal courts – who could essentially hear every type of cause – in Canada there is a more unified structure the mimics a pyramid structure. In Canada, each provincial trial court will hear every minor claim – there is rare venue shopping – to ensure that the application of the laws in that province adhere to a standard of uniformity.[v] There are Courts of Justices that will hear the minor civil and criminal issues, while the Superior courts of each province will deal with the most serious offenses. Each province has their trial courts, a Court of Appeal (not Appeals) that is designed “to correct simple errors” that happen at the lower levels.[vi] And while Canada has created a “‘federal’ court system, these federal courts of limited jurisdiction remain far less important than the courts in the basic [provincial] structure outlined above.”[vii] This simplistic structure of the Canadian courts leaves for the Supreme Court of Canada to be far more influential in the provinces, giving them the ability to promote federalism amongst the provinces; further promoting uniformity amongst the governing laws.[viii]
Whereas, in the United States of America, there are two separate and functioning federal and state court systems, that often intertwine with the cases they hear. Each State has the ability to enact their own type of state legal systems, and there will always be clashes between federalism and state powers, the United States has figured out how to successfully function within both systems and with their overlapping jurisdictions.
- Foreign Jurisprudence
Finally, it should be noted that the United States rarely relies on the trends and case precedent on matters more developed in other countries to make decisions, and their opinion on the matter is often outspoken by various influential persons in the judiciary (i.e. Scalia). While the Honourable Justice Antonin Scalia once said that he “fear[s] the courts’ use of foreign law in interpreting the Constitution will continue at an accelerated pace,”[ix] it is the opposite view in countries like Canada. Canada is quick to look to England or the United States when it comes to filling gaps in precedence.[x] While Justice Scalia has used his platform as Supreme Court Judge in numerous cases – most famously in, Romper v. Simmons and Lawrence v. Texas – to air his grievances against reliance on foreign jurisprudence, the Supreme Court of Canada has actually relied on the Supreme Court of the United States to decide a case where no precedent existed in Canada.[xi]
This list remains far from complete. While this is three of many differences between the Canadian and American legal systems, there are many facial and deeply seeding differences between the countries. However, this does not to mean there are not similarities between the systems, it just means that both systems – difference and similar – are both highly function systems of two very prestigious judiciaries.
While it may seem hard, conceptually, to translate what is learned in one country’s law school into another country’s legal industry, the bottom line it is not. Yes, you learn from different sets of systematic governing laws, or different terminology what it comes down to is that the law is the law. Where there are lawyers, judges, and other legal professionals there will always be the ability to learn and adapt to any legal system in any country.
About the Author: Pooja Toor is a 2L at Penn State Law.
[i] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[ii] PETER MCCORMICK, CANADA’S COURTS 24 (1994).
[iii] Government of Canada Statistics Canada, Canada at a Glance 2017 Population Canada at a Glance 2017 Population Government of Canada, Statistics Canada (2017), https://www.statcan.gc.ca/pub/12-581-x/2017000/pop-eng.htm (last visited Dec 22, 2017).
[iv] U.S. and World Population Clock, Population Clock, https://www.census.gov/popclock/ (last visited Dec 23, 2017).
[v] McCormick, supra note ii, at 23.
[vii] Mark C. Miller, A Comparison of the Judicial Role in the United States and in Canada, 22 Suffolk Transnat’l L. Rev. 1, 3 (1998)
[viii] Id. at 4.
[ix] MARY FLOOD, Copyright 2008 Houston Chronicle, Scalia criticizes courts citing foreign trends Houston Chronicle (2008), http://www.chron.com/news/houston-texas/article/Scalia-criticizes-courts-citing-foreign-trends-1766787.php (last visited Dec 23, 2017).
[x] The Use of Foreign Jurisprudence by the Supreme Court, TheCourt.ca (2008), http://www.thecourt.ca/714/ (last visited Dec 23, 2017).