VANCOUVER—With the confirmation of Brett Kavanaugh to the United States Supreme Court amidst many allegations of sexual assault, Canadian legal experts are expressing their dismay at what some are describing as a failure of the U.S. legal system to uphold fair legal processes.
While the confirmation does but directly impact our political or legal system, there can be significant cultural impacts on Canada.
“I think it’s hugely disappointing,” said Margot Young, a law professor at the University of British Columbia. “I am shocked, but not surprised, as we see the American system of government and its theoretical checks and balances failing all over the place right now — it’s extremely concerning for the legitimacy of the U.S. Supreme Court.”
Young said that while the decision won’t have direct legal impact on Canada, there are strong cultural connections that leave people emotionally tied to American politics.
“It’s of huge cultural and political relevance …we are so inundated by American news, that the cultural moments that happen there are also our cultural moments,” she said.
Young said that the lack of accountability for men accused of sexual assault has had similar impacts in both the U.S. and Canada.
“We see increasingly a groundswell of women speaking out, but we don’t see increasing accountability. The lessons to take for Canadian women, and American women, is a complicated one.”
Carol Baird Ellan, the the first female chief of the B.C. Provincial Court and now a family law mediator, expressed her disappointment in the process of confirmation as a while, and the way complainants faced public scrutiny.
“Personally, I’m appalled at the amount of politicization in the process in the U.S. at this point — I’m dismayed by it, the fact that it’s all public and televised,” she said.
Baird Ellan added that the Canadian system of judicial appointments is far more private, and thorough ,in their vetting of nominations.
“By the time the nominee is presented for appointment, they have been vetted in a private way which allows these people to come forward without televised cross-examination.”
She also added that Canadian appointments are “much less political” in nature.
But while the Canadian legal system operates very differently than the American one, there can still be some impacts on discourses in Canadian law.
Adam Goldenberg , a lawyer at McCarthy Tétrault LLP, said that sometimes, US Supreme Court judges can have what he calls “persuasive authority” in Canadian law.
“That means, while they aren’t binding on our courts, Canadian judges can draw insights from American jurisprudence in deciding Canadian disputes,” he said in an email.
But while he said that this could “sometimes happen” is more likely Canadian judges to refer to decisions from Commonwealth countries.
“When American courts sneeze, Canadians don’t catch cold — and for good reason,” he said.
However, other experts have identified similarities in the way that Canadian courts can have inherent biases, which have been brought into sharp relief in the wake of the Kavanaugh hearings.
Alan Dutton, a member of the Canadian Anti-racism Education and Research Society, said that these biases, especially against women and people of colour, have been brought into sharp relief in the wake of the Kavanaugh hearings.
“We haveparticularly in the case of rape and misogyny, in terms of racism and in terms of sexism.”
But Dutton said that he actually believes that the controversy around Kavanaugh could bring to light increased social progress by bringing these privileges to light.
“I’m hoping for the opposite effect — I am hoping that the #metoo movement and Black Lives Matter will force people in Canada and in the U.S. to be much more aware of the systemic biases within the system, and there will be a much stronger demand from ordinary people for our rights to democracy.
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