Not This Way

The trouble with a proposal for “a Canadian originalism”

In a recent C2C Journal article, Benjamin L. Woodfinden offers thoughts on “How to Take Back the Charter” ― that is, on how to make its interpretation and application palatable to those who do not share the fashionable view of “the Supreme Court as a guardian council of philosopher-kings (and queens) guiding Canadians toward a more just society”. I am mostly sympathetic to the impulse that animates the argument, but find Mr. Woodfinden’s proposals puzzling, even troubling.

Addressing himself to (presumably small-c) “conservatives”, Mr. Woodfinden suggests that they “need a judicial philosophy, a coherent, organized, alternative vision with the philosophical and jurisprudential rigor [sic] and institutional capacity to challenge the vision” of the Supreme Court as arbiter of Canada’s values. (Mr. Woodfinden singles out Justice Abella for particular criticism in this regard, and I have no quarrel with that.) And, to implement this vision, Mr. Woodfinden says, it is necessary to “nurture some alternative voices and promote their ascent through the legal community and onto our courts”, undertaking in Canada the work that the Federalist Society has been carrying out for decades in the United States.

Substantively, Mr. Woodfinden’s proposed alternative ― which he calls “a Canadian originalism” ― is a blend of nostalgia for the good old pre-Charter days, the “glorious tradition of parliamentary government” on which “[t]he Charter was in some ways an artificial imposition”, and an almost equally antiquated form of “old” originalism. Mr. Woodfinden attaches great weight to the intentions of the framers of the Charter, as well as well as their expectations of what the Charter would, or at least would not, be taken to mean. Even as he ruefully says that preaching judicial restraint is no longer enough, he admonishes us that “the Charter’s framers did not intend to give free rein to activist judges”, and denounces those judges who “read new rights into the Charter”. Judges ought to “understand that when the law is silent, courts should be silent”, and not endeavour to make the world a better place through their decisions.

Again, I have sympathy for some of these claims. I once criticized the late and unlamented Conservative government for failing to articulate a constitutional vision that would have gone beyond rote appeals to judicial deference to legislatures. I share Mr. Woodfinden distaste for the Supreme Court’s ignoring or re-writing the constitution in such cases as R v Comeau, 2018 SCC 15 and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245. I too think that Canada needs strong voices able to articulate an alternative to the dominant view of the relationship between courts, the other branches of government, and the constitution. Indeed, although Mr. Woodfinden says nary a word of this, I think that organizations such as the Runnymede Society and Advocates for the Rule of Law, to say nothing of this blog, are already hard at work to make this aspiration a reality. If Mr. Woodfinden wants to join our work, I am sure he would be welcome. If he thinks it is somehow deficient, he should let us know.

That said, there is a great deal that I do not agree with in Mr. Woodfinden’s argument. Perhaps that’s just because it’s not really addressed to me. After all, as I have noted here, I am not a conservative. Indeed, I take it that in Mr. Woodfinden’s eyes I am an “ally” of the “Court Party”, at least insofar as I share its refusal to regard the ability of legislatures to sidestep court rulings by relying on the Charter’s “notwithstanding clause” “as the (democratically elected) legislature’s last line of defence against judicial usurpation”, and rather see it as a standing danger to individual rights. But, because I have no less of an interest in advancing the cause of intellectual diversity within the Canadian bar and bench than conservatives do, I will venture a critique of the way in which Mr. Woodfinden tries to go about it.

First, I think it’s worth pointing out that stories of a lost paradise of Canadian parliamentary sovereignty, away from which we were seduced by Pierre Trudeau and his alien ideas about protecting what Mr. Woodfinden calls “abstract rights”, are myths, not histories. A.V. Dicey, for instance, to whom our thinking about Parliamentary sovereignty still owes so much, argued that, whatever its preamble might say, the then-British North America Act, 1867 really created a constitution similar in principle to that of the United States, not the United Kingdom ― one that limited the powers of legislatures, and would “inevitably” fall to be interpreted by the judiciary. The Canadian Bill of Rights, enacted in 1960 thanks to a Conservative civil libertarian, John Diefenbaker, took a further step out of the orthodox world of Parliamentary sovereignty, by allowing courts to declare inoperative federal statutes that trenched on individual rights. The Charter was a further, and very significant, step in the limitation of legislative power, and the expansion of the judicial one. But it was not a wild leap into the dark.

Second, I do not find Mr. Woodfinden’s original intent originalism-as-the-next-best-thing-to-not-having-a-Charter at all attractive. Original intent originalism has been subject to powerful criticism not only from outside but also from within the originalist camp itself. It gives undue weight to unenacted intentions (insofar as a disparate group of people such as “the framers of the Charter” can even have joint intentions) and expectations, and cannot provide a solid justification for judicial review. At the same time, as Mr. Woodfinden himself acknowledges, it is true that the Charter, like other constitutional provisions, comes with its lot of vagueness (though we can question whether it is “amorphous”, as Mr. Woodfinden claims).

“New” originalism, which seeks to implement the original public meaning of constitutional provisions insofar as it can be determined, but also recognizes the necessity of “construction” ― that is, of a reasoned development of legal doctrines for implementing the constitution’s original meaning ― is a much more plausible approach than one that seeks to deny the legitimacy of any creative role for the judiciary. For this reason, I am actually not nearly troubled by some of the decisions that Mr. Woodfinden criticizes as he is ― notably Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331, which invalidated the across-the-board criminalization of assisted suicide (though I have my reservations about it too). I think it is also worth emphasizing that adherence to the original meaning of the Charter may well result in more, not less, robust enforcement of some of its provisions ― notably section 15, which is not limited to being the anti-discrimination provision of the Supreme Court’s imagining.

To be sure, these are matters of debate. Not all originalists have embraced the “new” originalism that personally find most compelling. But this brings me to a third difficulty I have with Mr. Woodfinden’s proposal. He seems to expect that “conservatives” can and ought to settle on one fairly specific constitutional vision, that will do battle against the approach now dominant in the Canadian legal community. Perhaps this is concern-trolling on my part, since, to repeat, I am not a conservative, but I doubt that this is either possible or desirable. It’s worth recalling that the Federalist Society doesn’t actually take positions on legal issues. Its members largely agree about some things, and vigorously disagree about others. If Mr. Woodfinden really wants an intellectually vibrant and rigorous Canadian legal counterpart, he should not be too quick to declare what it ought to believe. The approach taken by the Runnymede Society ― to serve as a platform for a variety of heterodox voices, conservative and otherwise, strikes me as much more promising.

All that to say, Mr. Woodfinden is right that the Canadian legal discourse could do with an alternative voice ― better yet, alternative voices. The Supreme Court and its enablers in academia and elsewhere in the legal profession too often disregard the constitution, seeing as no more than an imperfect realization of their vision of justice. But Mr. Woodfinden’s way of making that argument leaves me cold. The (exaggerated) reverence for Parliamentary supremacy is not a feeling I share; the (obsolete) deference to the intentions of constitutional framers strikes me as indefensible; and I would rather see lively intellectual debate among a spectrum of positions than a clash of two monolithic constitutional visions. Of course, the way in which a better state of the constitutional discourse can be brought about about should itself be the subject of discussion, and Mr. Woodfinden makes a contribution to this necessary conversation. But it is one from which I must, on some key points, dissent.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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