Fall 2002, Vol. 33 No. 1 & 2
Joint Study Institute, 2002
"Canadian Focus: Global View"
Law Librarian, State Law Library, Austin, Texas
Set amidst the beauty of British Columbia, the colorful plumes of peacocks, and sweet smelling blooms of the gardens, the third biennial Joint Study Institute was held at Royal Roads University, Victoria, May 22-25, 2002. The Institute continued a tradition first envisioned in the mid 1990’s by a group of presidents from three library associations: American Association of Law Libraries (AALL), the British and Irish Association of Law Libraries (BIALL) and the Canadian Association of Law Libraries (CALL).
The intent of the founders was to gather law librarians from the common law countries to learn more about each country’s laws and legal systems. The first Institute was held in September, 1998, at Cambridge University, England; the second was held in July, 2000, at Yale University in New Haven, Connecticut. I have attended all three Institutes, each one offering a unique professional experience.
This year’s Institute was hosted by CALL, with support from the Carswell Institute in Toronto, and it very successfully fulfilled the goals of the founders. There were 21 Canadians in attendance, and 24 "foreigners" from five legal systems: the United States, New Zealand, Australia, England and Scotland.
The Institute provided twelve hours of lectures from an impressive team of nine speakers focusing on aspects of the Canadian Constitution, history, politics, and legal system. The conference highlighted the challenges facing Canada in the areas of international trade, peacekeeping, and globalism of the 21st Century.
The presentations were scholarly, informative, and stimulating. They provided this U.S. attendee (and others, based on the comments I heard) with an increased understanding of our neighbor to the North as well as a better perspective about its relationship with the U.S. Sharing the same hemisphere, as well as a common Anglo heritage and history, culture and religion, law and language, the United States and Canada are well suited for co-existence and cooperation in the "new globalism" of our modern world. Both will benefit by joining together in matters concerning economy, trade, health, environment, and peace.
History of Canada
The program began with a review by law librarian and historian John N. Davis of York University in Toronto. He presented us with a list of only 456 "Significant (and Insignificant) Dates in Canadian History," but quelled our outcry against these details with an entertaining review of the five areas most significant in his opinion:
1) the 500 year change in population
-- Canada’s population is about 30 million; Texas, alone, has nearly 20 million;
2) the ongoing conflict between two competing national languages
-- also known as the "French-English thing";
3) the issue of federalism
-- that has resulted in tension with the central government;
4) the relations with the United Kingdom; and
5) the relations with the United States.
Based upon this list, Davis pointed out that Canada’s population of 30 million people is not large enough to support a successful economy. Canada must rely on foreign markets for distributing its goods. Additionally, the Quebec issue is too many years in discussion and still has no satisfactory resolution. Now Canada’s relationship with the United Kingdom has shifted as the United States has become more powerful and dominant in world affairs.
The Canadian Constitution
Following John Davis was University of Manitoba law professor Bryan Schwartz, who gave an equally entertaining presentation on the Canadian Constitution. Canada gave birth to its Constitution in 1867 creating a Confederation in what became known as the British North America Act. Because of Canada’s status as a colony, the act was an ordinary statute of the United Kingdom parliament, and there were no provisions included for its amendment by any other body. In 1982 the statute was renamed The Constitution Act, 1867.
In 1982, after more than half a century of federal-provincial conferences and negotiations on how to amend the constitution, Canada "patriated" its Constitution by creating provisions that allows Canadians to amend it without reference to the U.K. Parliament. When the U.K. passed The Canada Act in 1982, it terminated the British Parliament’s power over Canada. The Constitution Act, 1982 established four legal formulas, or processes, for amending the Constitution. The act included the Canadian Charter of Rights and Freedoms, a document comparable to America’s Bill of Rights. The Charter allows both federal and provincial laws to be challenged, and thrown out by the courts, on the grounds that they violate the Charter.
Legislative and Judicial Branches of Canadian Government
Both Professor Schwartz and John Eaton, Law Librarian and Associate Professor at the University of Manitoba, discussed the legislative and judicial branches of the Canadian government. Canada has no legislative chamber selected with proportional representation. Professor Schwartz believes that in the next five years Canadians could expect some reform in this area.
The Canadian judicial system is unified, but has two tracks: federal and provincial. The first level is the provincial courts, established, funded, and staffed by the provinces. At the appellate level, the federal government appoints and pays the judges in the provincial/territorial superior courts. Cases in each track can be appealed to the Supreme Court of Canada, which has been the final court of appeals only since 1949. Prior to that, the Judicial Council of the Privy Council (under the control of the Crown) had the power for a final ruling of an appellate case.
The Supreme Court of Canada
Professor Eaton and Diane Teeple of the Supreme Court of Canada Library, described in detail the composition and workings of the Supreme Court. She explained the history of the Supreme Court from its beginnings in 1875 to the present. Using exceptional visual aids, she talked extensively about the Court, its building, the justices, and court operations. It was especially interesting to learn about the geographic distribution of the judges. There are nine judges. By law three must be from Quebec while the remainder can come from any other area of Canada. However, convention provides that three judges are from Ontario, one is from British Columbia, another is from the Prairie provinces (Alberta, Saskatchewan and Manitoba), and the final judge is from the Atlantic provinces.
Law Librarian Denis LeMay of Laval University in Quebec City discussed some of the issues of bilingualism and noted the complexity of the Canadian legal system in its combination of both the Anglo common law and French civil law.
The 1866 Civil Code of Quebec was a pre-federation statute and was not to be corrupted by the common law. Quebec’s distinctive civil law was guaranteed by the 1867 Constitution. However, the tension between the Roman Catholics of Quebec and the Protestants of Ontario was felt early in Canada’s history. The 1867 Constitution guaranteed separate schools for the religious minorities in the two provinces. The Constitution Act, 1982 continued the guarantees for the English and French languages in New Brunswick, Quebec and Manitoba, and continued to provide for separate schools funded by public monies, where the number of children "so warrants."
Bilingualism and the combined legal systems of Canada have presented a challenge for the law schools that must educate students about two legal systems and two languages.
The Politics of Canada
Historian Jack L. Granatstein of York University, Toronto, gave a lively and insightful presentation on the politics of Canada. He focused on "keys" that he believes are determinants of politics: race, religion, language, region, class and leadership. At the time of Confederation, the French Canadian people were 40% of the population; that figure has declined today to only about 20%. Primarily, it is Quebec that has maintained its "Frenchness."
The religious tension between the Protestants and Roman Catholics has influenced the education of children and thus affected politics. A successful politician must manage relations with religious leaders. Likewise, language in Canada has had a huge influence on politics. In 1968, Prime Minister Trudeau successfully endorsed bilingualism. Multi-culturalism is now government policy.
Where class is concerned, the centrist usually succeeds in politics. Overtly class politics have failed. In leadership, the electorate wants a caring and honest prime minister. These qualities ranked highest in a recent poll of the electorate. No one really worries much about policies and ideology, a phenomenon that may open the way for other parties and new leaders.
With the national attention on Quebec’s threat to secede, other issues are not debated. And, there are many other areas of concern for all Canadians, particularly trade relations. Among the young Canadians there seems to be a growing opinion against the Quebec government. Professor Granatstein phrased it this way, "If you want to go, go; if you want to stay, stay, but let’s quit talking about it!"
Jeffrey S. Thomas, a trade law attorney for the Canadian firm of Borden, Ladner, Gervais, LLP in Vancouver, talked about the importance of Canada’s trade relations with other countries. With 43% of its GDP exported, Canada is sixth in the list of leading exporters. Canadian trade is centered on the United States with 80% of its exports going to the U.S. Thus trade relations with the U.S. are fundamentally important to Canada’s prosperity.
Thomas discussed each of four themes that he sees as dominating any discussion of Canada’s trade policies: 1) the need to develop foreign markets, 2) the fact that Canada is too small to be a leader in trade policy, 3) the mercantilist trade policies at the heart of Canadian culture, and 4) the impact of commerce on domestic and constitutional issues.
Canada’s domestic market -- remember, only 30 million people -- is not large enough to support the lifestyle Canadians have gained over the years. Thus, after the U.K. opened itself to Europe, Canada sought and received preferential access to U.S. markets, ensuring that Canada’s economic future is intimately tied to the U. S. It has no similar broad based access to other countries.
Thomas reiterated what Professor Schwartz had noted earlier. Canada supports a "rule of law" in trade relations as a means of competing with larger countries. Canada needs the protection of a formal rule governing trade relations rather than relying on informal agreements or "gentleman’s agreements." Rules can be invoked to curb the power of larger nations.
Protected industries, such as agriculture and textile industries, continue to have a disproportional influence in Ottawa. Few dairy products are exported, and there is a high tariff on dairy imports. Canada wants to be a part of global trade, and has benefited from market access obtained by other countries through international trade agreements and organizations.
In the past, border issues have dominated trade relations. But, since 1947, the emphasis has been on technical standards and on issues such as intellectual property. Commerce has complicated the federal-provincial relationships. Only the federal government has treaty-making power, yet provinces have jurisdiction in certain areas such as property and civil rights. The Prime Minister can adopt a trade policy even if there is no consensus to support him, but wisely does not use that power to walk over the provinces.
Canada and Peacekeeping
David Malone, President of the International Peace Academy, an independent organization headquartered in New York City, told us that Canada has traditionally been supportive of peacekeeping throughout the world. Since 1954, when the United Nations engaged in its first effort at the Suez Canal, 150,000 Canadians have participated in peacekeeping operations and over 100 of them lost their lives in doing so.
The changes in peacekeeping since the end of the Cold War have resulted in new factors driving decisions of the UN Security Council. Today, the following considerations are important in the peacekeeping process:
Our Global Circumstances
Concluding the program was Ivan L. Head, Professor Emeritus of Law and Senior Fellow of the Liu Centre for the Study of Global Issues at the University of British Columbia. As a Special Assistant to Prime Minister Pierre Trudeau, he has had first-hand experience with foreign policy and international relations and willingly shared his stories and views with us. Professor Head identified the major areas of concern for the planet: demographics, migration, communicable disease, the absence of healthcare, and trade.
The tripling of the world’s population since 1930 has almost overpowered the ability of governments and civilizations to deal with the resulting consequences. According to Professor Head the population growth tests the "caring capacity" of the planet.
The sheer numbers in migration due to the disparity in economic status of different areas is nothing new, but nevertheless, overwhelming.
The population has, from age to age, been devastated by disease. In 1918-19, influenza killed 21 million people. In the 21st Century we still have tuberculosis, malaria and now HIV to conquer. The absence of health will reduce economic growth, productivity, civility and human dignity.
Finally, trade is essential. Professor Head referred to the talk of Jeffrey Thomas and reiterated the importance of exports to support many new developing economies. He stated that the world must fight commerce in contraband (drugs, narcotics, human beings), promote health among all nations, and effectively manage population growth.
Professor Head believes that Canada is a "joiner," in its international affairs----always looking for others that are like-minded.
In a world of dependency, the old notion of a "sovereign nation" seems, as Professor Head said, outdated and unrealistic for 2002 and beyond. It will be in the intensification of international cooperation that lies, in part, the solution to problems and conflicts between nations and neighbors. Together, much more than separately, the U.S. and Canada can set examples for cooperation and harmony that may lead other nations to greater peace and unity, not to mention prosperity.
Closing Session . . . Thanks and On to Australia
Roger Jacobs, Law Library Director at Notre Dame University, Indiana, ably summed up the programs for us on the last day. His humor and insight made us all realize that we had, indeed, experienced a unique conference and were privileged to have been a part of this Joint Study Institute. We even came to understand, and appreciate, the "French-English thing!"
Thanks are due to CALL and their President, John Eaton, to the Institute Convenor Suzan Hebditch, and especially to Bonnie Preece of Carswell Institute for a truly memorable Institute. Together they satisfied the mind, body and soul. Outstanding food, stimulating lectures, and fun socials made for a great time! I wish that more SWALL members could have attended. The 2004 Institute is expected to be in Australia. The Aussies are ready for us!