This thesis explains the constitutional foundations for the conflict of laws in Canada. It locates these constitutional foundations in the text of key constitutional documents and in the history and the traditions of the courts in Canada. It compares the features of the Canadian Constitution that provide the foundation for the conflict of laws with comparable features in the constitutions of other federal and regional systems, particularly of the Constitutions of the United States and of Australia. This comparison highlights the distinctive Canadian approach to judicial authority - one that is the product of an asymmetrical system of government in which the source of political authority is the Constitution Act and in which the source of judicial authority is the continuing local tradition of private law adjudication. The distinctive Canadian approach to judicial authority provides the foundation for federal arrangements that have obviated the need for explicit mechanisms for coordinating legal systems. It has fostered a distinctive view of court jurisdiction and of the means for determining both whether a particular court has jurisdiction to decide a matter and whether the court should exercise that jurisdiction. It has provided the foundation for a unified court system within the Canadian federation - one in which there is a strong commitment to the shared responsibility of Canadian courts to promote access to justice, to prevent forum shopping, and to resolve multiplicities of proceedings so as to secure the same respect for the administration of justice between jurisdictions as exists within jurisdictions. This approach to judicial authority has also encouraged Canadian courts to draw on their inherent jurisdiction to permit the vindication of the rights of members of the Canadian public through civil litigation, notwithstanding the lack of direct application of the Charter of Rights and Freedoms and in spite of the apparent jurisdictional impediments.

This article is presented in five parts. The first part consists of this introduction, which is followed by a discussion of the Canadian legal position in part two. The cases of R v Collins1 and R v Stillman,2 as well as the impact of these cases on the Canadian admissibility framework, will be explored. In addition, the adapted fair trial requirement developed and applied by the Ontario Court of Appeal in R v Grant,3 and the revised admissibility framework recently introduced by the Supreme Court of Canada in the appeal of R v Grant,4 will be analysed. Part three discusses the jurisprudence of s 35(5) of South Africa’s Constitution. An alternative admissibility framework is suggested in part four, followed by a short conclusion in part five. The Constitution of the Republic of South Africa, 1996,5 provides that South African courts may, when interpreting the Bill of Rights, seek guidance from comparable foreign law jurisdictions in order to give meaning to its provisions.6 The South African Supreme Court of Appeal and the High Courts,7 as well as scholarly writers,8 have indicated that the provisions contained in s 24(2) of the Canadian Charter of Rights and Freedoms9 and s 35(5) of the Bill of Rights are strikingly similar.10 This could be one of the reasons why the South African courts have opted to be guided by their Canadian counterparts.11 The Canadian admissibility frameworks, established to determine whether unconstitutionally obtained evidence should be received or excluded, have for decades been the subject of rigorous scholarly criticism. As a result thereof, and the subsequent reaction by the Ontario Court of Appeal, the admissibility framework has recently been revised by the Supreme Court of Canada. Given that s 35(5) of the South African Constitution is modelled on s 24(2) of the Canadian Charter, the manner in which the courts of that country have grappled with the interpretation of s 24(2) is of particular importance to South Africa.12