My remarks on originalism in Canada at the Courts and Politics workshop
Yesterday, I spoke about the place of originalism in Canadian constitutional jurisprudence at the Courts and Politics workshop that Kate Puddister and Emmett Macfarlane had convened at the University of Guelph. The whole things was a lot of fun and very educational, not least for me as one of the rare lawyers in a group of (mostly) political scientists, and I am very grateful to the organizers for inviting me.
My talk was, of course, based on the articles on the topic of originalism in Canada that Benjamin Oliphant and I have co-authored. Here is the draft of my remarks.
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Few legal concepts have been so little understood yet so much vilified as originalism has been in Canada. Adam Dodek has said that “originalism” is a “dirty word” on this side of the Canada-U.S. border. Following the death of Justice Antonin Scalia, Canadian jurists, including former Supreme Court judges, took to the media to remind us that originalism has no place in our law. It is my respectful contention today that they were repeating a myth that is at odds with the facts. Misunderstood, vilified, and unacknowledged, originalism is nevertheless a staple of Canadian constitutional jurisprudence.
Now, it is important to clarify what I mean by “originalism” ― and what those scholars who take originalism seriously mean by this term. In Canada, we are used to associating it with a number of rather unflattering metaphors. We think of “frozen rights,” of the “dead” constitution. We also think that originalism requires the interpreter of the constitution to defer to the subjective intentions of the individual framers, and we have much less reverence for, and ― perhaps partly as a consequence ― know less about the thoughts of, the framers of our constitution, both those who created it in the run-up to 1867 and those who added to it in 1982, than Americans know about their framers. Last but not least, we tend to do draw a simple equation between originalism on the one hand, and conservatism on the other.
Yet this view of originalism is a distorted one; it reflects, at most, the state of originalist thought in the early 1980s. Originalism itself is not frozen in time, and it is our loss when we pretend that it is and refuse to learn about what it is like today. In the interests of time, I will only briefly mention three salient characteristics of contemporary originalism ― keeping in mind that it is no longer, if it ever was, a single, unified theory, and that not all originalists necessarily subscribe to the beliefs of most of their fellows. First, originalism largely accepts that the meaning of a constitutional text does not settle each and every conceivable constitutional question. Insofar as a text is vague, or specifically refers to evaluative concepts (such as reasonableness or cruelty), giving it legal effect requires not only “interpretation,” but also “construction,” which is not bound by the views and expectations of constitutional framers, and can thus allow constitutional doctrine ― although not the meaning of the text itself ― to evolve. Second, as I just mentioned, the views of the framers, their expectations, their intentions are not dispositive in constitutional interpretation. While knowing them can help us understand the text, it is ultimately the text itself that is authoritative, and its public meaning, rather than the framers’ private is are generally regarded as the object of constitutional investigation. And third, while in its beginnings originalism was indeed an intellectual project of the American right, it has been embraced by both libertarian and progressive scholars, who have for example made an originalist case for same-sex marriage and abortion rights. In Canada, Kerri Froc has urged the reinvigoration of s. 28 of the Charter from a feminist ― and an originalist ― perspective.
With that in mind, I will discuss the ways in which originalism features ― albeit that it is never quite acknowledged ― in a number of the Supreme Court’s prominent decisions. In the papers, we discuss many other cases, and go back further in time, to the jurisprudence of the Judicial Committee of the Privy Council (despite the fact that F.R. Scott chided it for failure “to apply the BNA Act as originally drafted”). In the interests of time, here I will focus on just a few recent decisions.
One type of cases that is shot through with originalist reasoning consists of those that involve “constitutional bargains,” compromises that led to the enactment or amendment of constitutional provisions. This notion goes back to Blaikie v. Québec, and indeed to much earlier Privy Council decisions, but it has been used to spectacular effect in the references regarding Senate reform and the appointment of Justice Nadon, a couple of years ago. The Court insisted that its role was to give effect to the agreements reached in 1867 and in 1875, respectively ― not to any modern conception of political morality or the public good. When it spoke of constitutional architecture in the Senate Reform Reference, the Court referred to the assumptions about how the constitution would operate that were held by the Fathers of Confederation ― not to the way in which the constitution actually operated, and still less to the way in which we might think it ought to operate, as a court truly committed to living constitutionalism might do. More recently, in the Caron case that dealt with legislative bilingualism in Alberta, both the majority and the dissent saw their task as consisting in giving effect to the bargain struck between the federal government and the inhabitants of the North-West, but disagreed about whether the public meaning of the words into which that bargain was put, or the intentions of the parties to the bargain, ought to determine its import.
Charter cases might seem an especially barren ground for originalists ― indeed, the Supreme Court’s embrace of the “living tree” metaphor as the guide to constitutional interpretation followed the enactment of the Charter, even though the Persons case, from which it is taken, was obviously not a Charter case. But here too, originalist reasoning is widespread. For one thing, the Court’s embrace of purposivism in Charter interpretation raises the question of whose purposes it seeks to uphold in applying the Charter. While it sometimes speaks as if the Charter had purposes of its own, independent of those of its framers and interpreters alike, this seems rather contrived. In any case, purposive interpretation is often similar to one or another sort of the originalist kind, sometimes the one following on intentions, and in other cases on public meaning.
A related point is that the Court frequently refers to the framers’ choices of wording ― which can be ascertained by referring to the Parliamentary record and the early drafts of what became the Charter ― to guide its interpretation. For instance, in R. v. Prosper, the Court invoked the fact that the framers of the Charter considered and rejected a broader version of the right to counsel than the one that ultimately made it into the constitutional text in order to justify not reading that text in a more expansive fashion. But the best-known instance of such reasoning is, no doubt, the exclusion of economic and property rights from Charter protection, which is based on the decisions made during the drafting of the Charter. (Indeed, when the Court recently chose to make an exception from this general principle for trade unions, it invoked a sort of hypothetical originalist argument, according to which other human rights documents protecting the unions’ rights were supposedly in the “contemplation” of the framers of the Charter.)
Finally, originalist reasoning features prominently in cases dealing with aboriginal law. To give just one example, the very recent decision in Daniels that the Métis fall within the scope of Parliament’s jurisdiction over “Indians” in s. 91(24) invokes the understanding of the term “Indian” in the years before and after Confederation, as well as the purposes for which that jurisdiction was assigned to Parliament. While I hesitate to call it entirely originalist, it at the very least comes close ― and it is perhaps worth pointing out that the decision was unanimous, and written by Justice Abella. No fire-breathing conservative, she.
All of this is not to say that the Supreme Court has been consistently originalist. It hasn’t. But then again, it hasn’t been consistently anything in particular. One of the hopes that we have for this work is that it will encourage Canadian scholars ― and judges, if possible ― to reflect much more seriously on constitutional interpretation than they have been in the habit of doing. It is not enough to recite pieties about the “living tree,” because even in its capacious shade, the hardy weed ― or is it the hopeful offshoots? ― of originalism break through.