Laws and legal systems vary by country, sometimes substantially. Being geographical and cultural neighbors that also share a basis in British common law, it might seem that courts in the United States and Canada would be among the most similar in the world. In fact, however, there are many significant distinctions. In this article we summarize some noteworthy differences.
United States vs Canada: Legal System Differences
The death penalty remains a possible criminal punishment in U.S. federal courts, as well as in a majority of the fifty states. By contrast, capital punishment was abolished by a 1976 statute in Canada, where no executions have occurred since 1962. Moreover, the Supreme Court of Canada ruled in 2001 that suspects cannot be extradited to countries, including the U.S., without assurance that the death penalty will not be sought against them.
The United States Constitution provides for right to a jury trial even in civil cases. In Canada, there is no such right and therefore no jury trials in civil disputes. This substantially alters the nature and outcome of product liability and patent infringement and invalidity litigation between the two countries. In the criminal context, juries in Canada are prohibited from discussing their deliberations after the trial is over unlike their American counterparts who sometimes speak to the media.
In the U.S. there are competing sets of federal and state criminal laws so that the set of crimes a person may commit vary by jurisdiction. American criminal defense lawyers are, therefore, by necessity specialists in the criminal laws of the state(s) in which they practice. Au contraire, Canada's Constitution Act gives sole control of their criminal statutes to the national Parliament. That country's "Criminal Code" is thus entirely defined in a single 1985 publication, as amended.
In the United States, no person "shall be compelled in any criminal case to be a witness against himself" (see Fifth Amendment to the U.S. Constitution). Conceived as a protection against torture and other forms of duress, a witness in a court may use this right refuse to answer one or more questions if the answers might incriminate him in that or a later proceeding. Section 13 of the Canadian Charter of Rights and Freedoms also provides protection against self-incrimination however this right only limits how to government may use such evidence; witnesses must still answer all questions asked of them under a threat of perjury.
Generally speaking, the American system of rights and laws is closed to its own legal structure and unique common law history. In Canada, however, the courts are much more open to studying international law and the national laws of other common law countries to answer unresolved legal questions. Foreign law is not considered binding, of course, but judges in Canada may consider it in making their determinations.
Gavel to gavel
Thanks to Hollywood, a small wooden mallet called a gavel is one of the most emblematic symbols of justice. However, in modern times the gavel is nearly exclusively associated with American justice. Canadian judges don't even have them in their courtrooms.
Pardon my French
Though many courts in the United States do employ or hire translators to assist individual witnesses who speak other languages, there is no right to a trial in any language other than English. The situation in Canadian court is similar to American court if you prefer Spanish or Vietnamese, however the whole Canadian court system operates in two official languages: English and French. Cases and pleadings can be filed in either of those languages and testimony can be taken in either. As well, those present have the right to understand the entirety of the proceedings in their preferred language, typically at the expense of the court.
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