A Pile of Problems

A critique of Steven Penney’s take on the Supreme Court’s distinction between criminal and administrative penalties

Steven Penney has recently posted to SSRN an interesting article, published last year in the Supreme Court Law Review, criticizing the Supreme Court of Canada’s jurisprudence distinguishing the imposition of “administrative” and “criminal” penalties. People (and corporations) who risk the latter kind of penalties ― “true penal consequences” as the Court calls them ― benefit from a variety of procedural protections which section 11 of the Canadian Charter of Rights and Freedoms grants to “[a]ny person charged with an offence”. Those facing only “administrative” penalties ― which can include suspensions of licenses (to drive or to practice a profession) and fines, even fines ranging in the hundreds of thousands if not millions of dollars ― are not protected by the Charter.

Prof. Penney traces the intellectual roots of this distinction to the Canadian rejection of the “Lochner era” in American constitutional jurisprudence, which is generally thought to have involved judicial subversion of valuable economic regulation intended to protect society’s less powerful members.  Prof. Penney shares the concern that motivated this rejection, but argues that it has been taken too far. The “shadow of Lochner“, as his article’s title has it, has dimmed the guiding lights of the Charter, even as

[l]egislatures have increasingly relied on administrative and civil enforcement regimes to address forms of wrongdoing previously left to the criminal law. In many instances, the sanctions accompanying these regimes are harsh, the targets are ordinary people, and the rules protecting adjudicative fairness are weak. (309)

Prof. Penney argues that section 11 of the Charter should be interpreted more broadly, to provide procedural protections to persons involved in administrative as well as criminal proceedings. The government’s ability to justify restrictions to or departures from these protections under section 1 should be enough to prevent them from standing in the way of truly important economic regulation ― but the necessity of these restrictions or departures would have to be justified.

This is an intriguing argument. I have written here about Thibault c. Da Costa, 2014 QCCA 2347, a case in which the distinction between administrative and criminal penalties was used to uphold the imposition, on a financial advisor who had swindled some of his clients, of fines that were higher than those authorized by the applicable legislation as it stood at the time of the acts. In the criminal context, paragraph 11(i) of the Charter, which entitles persons charged with an offence “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”, prohibits this. But the Québec Court of Appeal took the view that the proceedings here were not really criminal, because the fines imposed were not “true penal consequences”, and so their retrospective increase was upheld. I wrote that the decision, although legally correct, was disturbing. Prof. Penney discusses two decisions of the Supreme Court that also apply this distinction to disturbing effect (as he, persuasively in my view, argues):  Guindon v Canada, 2015 SCC 41, [2015] 3 SCR 3 and Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250.

At the same time, however, Prof. Penney’s article suffers from a some flaws that are, sadly, characteristic of Canadian constitutional thought. One issue I have with Prof. Penney’s argument is that it mostly does not question the conventional wisdom on the “Lochner era” in which it finds the roots of the problem it tries to push back against. According to this conventional wisdom, the U.S. Supreme Court’s decision in Lochner v New York, 198 US 45 (1905), held up, in prof. Penney’s words, “a rigid and formalist interpretation of the Bill of Rights to limit state efforts to enact and enforce progressive economic legislation”. (308) This is questionable; indeed, recent scholarship argues that it is simply wrong. David Bernstein, whose book prof. Penney cites but does not engage with, has shown that, far from being intended to protect the vulnerable and the disadvantaged, the legislation invalidated in Lochner served to protect (relatively) big ― and unionized ― established businesses against smaller, family-owned competitors. Many other laws invalidated in the “Lochner era” ― which were never as numerous as subsequent criticism made them out to be ― were similarly objectionable. Meanwhile, this reviled jurisprudential era has served as the foundation for the subsequent expansion in the enforcement of constitutional rights in the non-economic realm.

This history matters. Rectifying the record is useful for its own sake of course. Prof. Penney says that “[t]he story of Lochner is well known” (310) ― and, in the next sentence, misstates the year in which it was decided; an accident, no doubt, but an ironic one. Prof. Penney quotes a passage from Justice Cory’s reasons in R v Wholesale Travel Group Inc, [1991] 3 SCR 154 describing the “so-called ‘Lochner era'” as the period of time when “courts struck down important components of the program of regulatory legislation known as ‘the New Deal'”. But of course the “Lochner era” began well before Franklin D Roosevelt’s New Deal, and most of the laws struck down during this period had nothing to do with it. In short, “the story of Lochner” is rather less well known than one might be tempted to suppose; what people think they know about it may be ideological myth more than reality. More importantly, however, recovering Lochner‘s philosophy ― an opposition not to any and all economic regulation, but to the sort of regulation that privileges some groups in society above others ― might also make us rightly more suspicious than we tend to be of the  regulatory schemes that the courts end up protecting by invoking the administrative-criminal distinction. In my post on Thibault I suggested that courts should be wary of “the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role” when they ask themselves whether the penalties at issue are administrative or penal in nature. Remembering Lochner‘s lesson ― that economic regulation is not always as benign and protective as it seems ― might help here.

My other, and more important, objection to prof. Penney’s argument concerns his approach to constitutional interpretation. He “claim[s] … that the Supreme Court’s construal of ‘charged with an offence'” in section 11 of the Charter as excluding administrative proceedings  “is too restrictive”. (323) It is too restrictive, prof. Penney argues, because of the bad consequences it produces ― in the sense that individual rights to “adjudicative fairness in contesting substantial state-imposed penalties” (324) are under-protected. As I suggest above, I think that prof. Penney is right to decry the under-protection of these rights. But it is not enough to say that, because interpreting a constitutional provision in a certain way produces unpleasant consequences, a different interpretation can and ought to be adopted.

The jurisprudence that prof. Penney criticizes arguably illustrates the perils of this approach. In prof. Penney’s telling, the Supreme Court is concerned about the costs of enforcing the Charter‘s procedural protections for the state’s ability to impose economic regulations, more than it is about the consequences of not enforcing these protections when “true penal consequences” such as imprisonment are not at stake. A consequentialist approach to constitutional interpretation can go either way; there is no guarantee that it will always be right-protecting. Consequentialism, in turn, is one possible way of implementing the “living tree” interpretive methodology that the Supreme Court and Canadian academia loudly insist is the only appropriate one. It’s not the only way ― one might be a living-treeist without being a consequentialist. But saying “living tree” is not enough to decide cases. Once one accepts that constitutional meaning can change, one has to figure out what it should change to, and this is where consequentialism comes in. If one wants to foreclose, or at least to limit, its influence in constitutional interpretation, one should, I suspect, abandon living-treeism, at least in the radically unspecified form in which it is practised in Canada.

Now, it is not clear that doing so will lead to results that prof. Penney or I would find pleasant in this particular case. The main alternatives to living-tree constitutional interpretation are the different versions of originalism. (For a primer, see Benjamin Oliphant’s and my paper recently published in the Queen’s Law Journal.) An originalist approach to section 11 of the Charter would consist in asking whether (depending on the version of originalism one subscribes to)  “charged with an offence” would have been understood in 1982 as applying to administrative proceedings or was intended to apply to them by the Charter‘s authors. And I don’t know the answer to these questions. What I do know is that, insofar as these questions do have an ascertainable answer (they might not; perhaps the phrase “charged with an offence” is irreducibly vague, forcing an originalist interpreter into the “construction zone” that is, on some views, not very different from living tree interpretation), this answer does not turn on competing, and potentially variable, cost-benefit analyses, which will inevitably be influenced by personal preferences, of judges or scholars. Originalism is not necessarily more rights-protective than living-treeism ― though as prof. Penney shows, living-treeism isn’t always very rights-protective either. But originalism does hold out a promise of a constitutional law that is actually law-like, in that it is independent of the individuals who apply it. In the long run, this is not only valuable in itself, but arguably also more likely to protect individual rights in situations where doing so is likely to be seen as undermining important social objectives ― which after all is the whole point of constitutional rights protection.

Prof. Penney’s article is valuable because it attracts our attention to a number of serious problems affecting our constitutional law. On the one hand, there is problem of insufficient constraints on the imposition of “administrative” penalties, which the article decries. On the other, there are the twin problems of reliance on a blinkered version of history and on open-ended “living tree” constitutional interpretation that opens the door to consequentialist reasoning unconstrained by anything other than personal preferences, which the article exemplifies. Proponents of prof. Penney’s interpretive approach might say that my argument is contradictory, since it suggests that the constitution might not give us the resources to address the problem prof. Penney identifies. But if that is so, the solution is not to surreptitiously re-write the constitution under the guise of an interpretation that will only be adhered to by those who share the interpreter’s beliefs, but to amend it in a way that will be binding on all future interpreters, whatever their personal views.

Was Scalia Spooky?

Antonin Scalia’s views on snooping, in the 1970s and later

The Globe and Mail‘s Sean Fine is as good a reporter as he is a bad analyst. Both of his qualities ― an impressive ability to find and tell a great story, and an unthinking belief in simplistic ideological classification of judges ― are on full display in his latest article, a fascinating story of how Antonin Scalia, then a professor at the University of Chicago, was commissioned to produce a report on “United States Intelligence Law” for the McDonald Commission, which investigated the RCMP’s espionage activities and whose eventual recommendations led to the creation of CSIS. Mr. Fine contrasts “[t]he report’s scrupulously impartial (for the most part) author” with the judge that he would become; the former, sensitive to privacy rights if also keen to ensure that intelligence agencies can operate effectively; the latter, in Mr. Fine’s telling, brazenly unconcerned with them, and condoning “torture in some circumstances”. But things are more complicated than Mr. Fine lets on.

Before I get to that, I’ll note little anecdote that Mr. Fine passes over, perhaps because this is a bit too inside-baseball for the Globe‘s readers. Mr. Fine explains that it was Peter Russel, who was the director of research for the McDonald Commission, who recommended then-professor Scalia’s hiring ― on the advice of Edward Levi (Scalia’s boss as Attorney-General in Gerald Ford’s administration) and Herbert Wechsler (a distinguished scholar, notably of the “neutral principles” fame). What Mr. Fine does not mention is that prof. Russel’s recommendation (a scan of which is included in the article) noted that Levi and Wechsler ranked Scalia ahead of none other than Robert Bork. (Prof. Russell, by the way, seems to have had a bit of an issue with names in that memo, referring to “Anthony” Scalia and “Richard” Bork.) Ironically, the Reagan administration would later rank Scalia and Bork in the same order when it came to making their appointments to the Supreme Court. Scalia was nominated in 1986, and confirmed by the Senate on a 98-0 vote; Bork was nominated in 1987 and rejected by the Senate after hearings so bitter that his name became a verb, in which his views and record were arguably distorted out of all recognition by Ted Kennedy and the latest recipient of the Medal of Freedom.

And, to get back to my point, this is a bit what Mr. Fine tries to do with the late Justice Scalia, albeit on a much smaller scale. He makes a point of noting that prof. Russell

would … later be appalled by the justice’s support of originalism – a judicial philosophy in which constitutional rights do not evolve over time, but stay rooted in the vision of the Founding Fathers of the United States. “Originalism is absolute nonsense”,

he quotes prof. Russell as saying. And he refers repeatedly to a “2007 speech” Scalia gave in Ottawa, in which “he was more the suspicious-of-too-many-legal-protections conservative”.  But Justice Scalia’s originalism was neither “nonsense” nor all bad for the protection of privacy rights against over-curious governments.

Prof. Russell, Mr. Fine, and those who think like them ― admittedly, a large contingent in Canada ― might just learn a thing or two from the expanding scholarship documenting the presence of originalism in Canada, and in some cases advocating the expansion of this presence. This scholarship includes (but is not limited to) recent articles by Sébastien Grammond and J. Gareth Morley focusing on the Supreme Court’s opinions on the appointment of Justice Nadon and Senate reform; an as-yet-unpublished paper by Asher Honickman, on federalism; Kerri Froc’s work on women’s rights; and the pair of articles that Benjamin Oliphant and I wrote last year. The first of these, which should come out any day now in the Queen’s Law Journal, shows that contrary to popular belief, the Supreme Court has not squarely rejected originalism, least of all what is arguably the dominant form of originalism now, one focused on the original meaning of constitutional texts (rather than their framers’ intentions or expectations). The second, due to come out in the UBC Law Review later this year, shows that, in fact, the Supreme Court resorts to originalist reasoning in a surprising variety of cases. If Prof. Russell is right that “originalism is absolute nonsense”, then not only has the Supreme Court never renounced it, but in fact large swathes of its jurisprudence (and of that of the Judicial Committee of the Privy Council), are nonsensical too.

But more directly relevant to my present topic is our discussion, in the first paper, of the contrast between Justice Scalia’s reasons, for a 5-4 majority of the Supreme Court of the United States, in Kyllo v United States, 533 U.S. 27 (2001), and Justice Binnie’s reasons for the unanimous Supreme Court of Canada in R v Tessling, 2004 SCC 67, [2004] 3 SCR 432. As we explain (actually, the credit here goes to Mr. Oliphant):

The issue, in both cases, was whether the use of a thermal imaging device by the police amounted to a “search” within the meaning, respectively, of the Fourth Amendment to the U.S. Constitution and section 8 of the Charter. In Kyllo, Justice Scalia … found that because information about what went on within the home ― however collected ― would have been secure from search and seizure at the time the Fourth Amendment was passed, the state cannot now invade that sphere of privacy through the use of new technology.

Justice Binnie, writing for a unanimous Supreme Court, disagreed… Justice Binnie rejected the relevance of Kyllo on the basis that it was “predicated on the ‘originalism’ philosophy of Scalia J.,” [61] and because it is not “helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when s. 8 of the Charter was adopted.” [62]

Tessling is an odd hill upon which to make a stand against originalism. Kyllo, which the Court in Tessling refused to follow, did not restrict constitutional meaning to those realities foreseen by the framers, as originalism does according to the “frozen rights” or “dead” constitution caricature frequently encountered in the Canadian literature. It did precisely the opposite. … Indeed, it is not clear to us just what Justice Binnie is actually rejecting in refusing to follow the “originalist” philosophy underlying Kyllo, or in stating that it is unhelpful “to compare the state of technology” in 2004 with what which existed in 1982. The logic of Kyllo was to deny that changes in technology can diminish the scope of constitutional protection over time; there was no “comparison” of technologies, because changes in technology were irrelevant to the interpretive question of what was protected. (25-26; a paragraph break and a reference removed)

We conclude that

In the ultimate result, and despite frequent and nebulous assertions that the Charter must be read in a “large,” “liberal,” and “generous,” manner, Justice Scalia’s originalist philosophy unquestionably resulted in a more general and robust protection for personal privacy than Justice Binnie’s “purposive” approach to interpreting section 8 of the Charter. (27)

Of course, this is not to say that Justice Scalia was always right, on privacy issues or on anything else. Indeed, this does not even prove that originalism is the better approach to constitutional interpretation than whatever it is that the Supreme Court of Canada is doing. But both originalism and Justice Scalia’s legacy are more complex than many Canadians, including Mr. Fine, tend to assume. We owe Mr. Fine for telling us a story that shed more light on the late Justice’s oeuvre. It’s too bad he tried to shoehorn that story into a simplistic ideological framework that is as misleading as it is useless.

A Frozen Concept

Here is a stray thought inspired by the discussion of interjurisdictional immunities in the Supreme Court’s decision in Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, about which I wrote yesterday. One way in which the Supreme Court has, or so it is often claimed, dismissed originalist constitutional interpretation is by comparing it to a theory of “frozen concepts” which cannot evolve as the times require. In Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, the Court proclaimed that

[t]he “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. [22]

Speaking extra-judicially, then-Justice Binnie went one step further and referred to “a theory of frozen rights with no realistic prospect of a thaw.”

However, as Benjamin Oliphant and I explain in a recent paper, equating originalism with a simple belief that the concepts used in a constitutional text are “frozen” reflects a misunderstanding if not a misrepresentation of contemporary originalism, at least, or especially, of contemporary originalism which accepts a distinction between constitutional interpretation and construction. Indeed, as we further argue, the Court itself occasionally resorts to originalist reasoning, some of which could arguably be described as reflecting a “frozen concepts” view of constitutional law.

Be that as it may, the doctrine of interjurisdictional immunities is probably the single best example of a “frozen concept” in Canadian constitutional law. In Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, the majority opinion stated that

interjurisdictional immunity is of limited application and should in general be reserved for situations already covered by precedent. This means, in practice, that it will be largely reserved for those heads of power that deal with federal things, persons or undertakings, or where in the past its application has been considered absolutely indispensable. [77]

The majority in Rogers Communications quoted this passage with approval, and approach the issue of interjurisdictional immunity accordingly, asking whether there was precedent for treating the location of radiocommunications equipment as belonging to the “core” of the federal power over radiocommunications.

This is not, strictly speaking, originalism. Along with the whole machinery of “pith and substance,” “double aspect,”  and “paramountcy,” it is a creature of constitutional construction ― the judicial development of doctrines necessary to give effect to a constitutional text, which is often insufficient to resolve a dispute on its own. (Canadian Western Bank sets out this development in great detail.) Constitutional construction, as Randy Barnett for example has argued, is not itself originalist ― only interpretation can be.

Yet the idea that interjurisdictional immunity is alive and well ― but only in those areas where there is precedent for its application is nothing if not the “freezing” of a constitutional concept ― albeit one developed by judges rather than provided by the constitutional text. For close to a century, the doctrine developed in fits and starts ― and then, in 2007, Justice Lebel and, of all people, Justice Binnie concluded that that was it, and that the time had come to freeze it in its then-current state. This decision is rather puzzling. For one thing, it seems to sit uneasily with the Supreme Court’s oft-repeated commitment to “living-treeism” ― reiterated in Canadian Western Bank, where the majority opinion insists that “the interpretation of [legislative] powers and of how they interrelate must evolve and must be tailored to the changing political and cultural realities of Canadian society.” [23] And for another, it is not clear that the normative arguments for treating a statutory or constitutional text as “frozen” until amended by the body that enacted it apply to a judicially-developed doctrine ― or at least that they can support a “freezing” of such a doctrine deeper than that effect by the usual principles of stare decisis.

Whether or not treating it in this way makes sense, the doctrine of interjurisdictional immunity is a “frozen concept” in Canadian constitutional law. It is one more reason to treat judicial protestations to the effect that such things are unknown this side of the border as too much. Slogans do not help us understand constitutional law, or anything else.

Originalism ― The Talk

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.

* * *

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.

All That History

A historicist, if not quite an originalist, decision from the Supreme Court of Canada

Last week, the Supreme Court issued its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, holding that Métis and non-status Indians fall within the scope of Parliament’s legislative power over “Indians” provided for in section 91(24) of the Constitution Act, 1867. While this outcome may have significant consequences, what interests me most is the approach that Justice Abella’s opinion for a unanimous court took to constitutional interpretation. While I would hesitate to call this approach originalist, it is clearly historical, and is (almost) entirely free from the Court’s habitual paeans to “living tree” constitutionalism.

The only real question for the Court was whether the Métis were “Indians” within the meaning of section 91(24). The government conceded that non-status Indians were. “The prevailing view,” Justice Abella noted, “is that Métis are ‘Indians’ under s. 91(24).” [22] This view is consistent with the way that the term “Indians” has been used throughout Canadian history, beginning before Confederation:

Before and after Confederation, the government frequently classified Aboriginal peoples with mixed European and Aboriginal heritage as Indians. Métis were considered “Indians” for pre-Confederation treaties such as the Robinson Treaties of 1850. Many post-Confederation statutes considered Métis to be “Indians.” [24]

Moreover, “the purpose of s. 91(24) in relation to the broader goals of Confederation” ― which was to ensure the federal government’s ability to maintain a good relationship with and control over the Aboriginal peoples, in particular those who might otherwise get in the way of its railway-building ― “also indicates that since 1867, ‘Indians’ meant all Aboriginal peoples, including Métis.” [25]

References to the use of the term “Indian” in pre-Confederation treaties and statutes enacted in the years immediately following Confederation, as well to the purposes that the head of power at issue served at Confederation, might be characteristic of originalist interpretation. However, Justice Abella then proceeds to examine the numerous instances in which governments both federal and provincial, as well as commissions of inquiry created by them, treated the Métis as included within the term “Indian,” over a period of time from 1894 to 1996 and beyond. This is no longer originalism, since the way in which the constitutional language was understood 30, or a fortiori 130 years after its enactment does not tell us much about either its original meaning or the intentions of its framers. If anything, this might justly be called living constitutionalism, were it not for the fact that this term is seldom used to describe the consistent attribution of the same meaning of a constitutional term. (I am not sure why that is the case, by the way.)

Justice Abella also noted that “while it does not define the scope of s. 91(24), it is worth noting that s. 35 of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution,” which suggests that reading section 91(24) as including the Métis makes for a more harmonious constitutional order overall. She pointed out, too, that other decisions of the Supreme Court suggest that groups other than “Indians” in a narrow sense ― notably the Inuit ― can be included in the scope of s. 91(24). It is worth observing that, as Justice Abella noted, one of these decisions ― Reference whether “Indians” includes “Eskimo”, [1939] S.C.R. 104  ― “[r]el[ied] on historical evidence to determine the meaning of ‘Indians’ in 1867.” [39]

There is one brief allusion to the “living tree” approach to constitutional interpretation which the Supreme Court usually claims to favour in Justice Abella’s reasons. Distinguishing Daniels from R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, Justice Abella quoted Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 at par. 30 for the proposition that “[t]hat case [Blais, that is] considered the interpretive question in relation to a particular constitutional agreement, as opposed to a head of power which must continually adapt to cover new realities.” I do not think that the reference to “adaptation to new realities” does any work at all in Daniels. The balance of Justice Abella’s reasons shows that the understanding of section 91(24) has been consistent throughout its history.

Perhaps Daniels can be best understood as representing not any particular interpretive methodology, but the Supreme Court’s thoroughgoing if utterly unsystematic interpretive pluralism, of which Benjamin Oliphant and I speak in one of our recent papers. Historical, and even originalist arguments are an ineradicable part of this pluralism, but the court is not committed to them, and it can sometimes affect to dismiss them out of hand even as it uses them to great effect. Daniels is thus an important reminder that, to really understand the Court’s approach to constitutional interpretation, we must look carefully at what it does, and not just at what it says.

Originalism in Canada

A couple of papers about originalism, and a call for comments

As promised in my last post, I have something to show for my silence in the last few weeks. Benjamin Oliphant and I have been working very intensively on a study of originalism in Canadian constitutional law. In a nutshell, we argue that, contrary to popular belief, not only has the Supreme Court never really rejected originalism ― at least contemporary originalism, as opposed to the sort of originalism that existed 30 years ago or more ― as a mode of constitutional interpretation, but Canadian constitutional jurisprudence is, in reality, shot through with originalist reasoning. It is not, of course, thoroughly, much less systematically, originalist, but originalist arguments of various types appear in all manner of cases, and do so frequently enough that they cannot be dismissed as mere aberrations. We argue, therefore, that Canadian scholars and judges should stop ignoring both originalist theory and the originalist jurisprudence hiding in plain sight in the Supreme Court Reports, and start thinking about how to be more consistent and more principled in our use of originalist arguments.

The project grew as it advanced, and would have been much too long for a single article, so we ended up making two. The first paper is asks Has the Supreme Court of Canada Rejected ‘Originalism’?” Here is the abstract:

The notion that “originalism” is fundamentally incompatible with Canadian constitutional law has achieved the status of dogma, both in the courts and the Canadian legal academy. However, this understanding tends to be premised upon the rejection of early and undertheorized conceptions of originalism that have been largely left behind. Originalism has evolved considerably over the past few decades, as scholars from across the political spectrum have developed more nuanced and defensible approaches to constitutional interpretation, which by no means freeze constitutional law in the era of constitutional enactment. In fact, the two core propositions upon which Canada’s anti-originalist myth is based – that constitutional law must evolve to meet new social realities, and that the framers intentions may be relevant, but not binding – have been largely embraced by modern originalist scholarship. Drawing upon the vast diversity of originalist thought in the United States, the authors reconsider the cases most frequently cited for the belief that originalism is fundamentally incompatible with Canadian constitutional thought, and show how many fit rather easily within the new originalist paradigm. The authors conclude that once the frequent compatibility between various forms of originalism and living constitutionalism are appreciated, there is no reason to conclude that originalist thinking is inconsistent with Canadian constitutional law and practice, and no basis for relying on outdated assumptions or caricatures for its rejection.

The second paper takes a more detailed look at “Originalist Reasoning in Canadian Constitutional Jurisprudence.” Here is the abstract:

Amongst the fundamental assumptions underlying the practice of Canadian constitutional interpretation is the belief that originalism – whether directed at the original intentions, expected applications, meaning or understanding – plays no meaningful role in discerning the meaning of constitutional provisions. This paper sets out to correct that mistaken narrative. Through a survey of historical and contemporary decisions, the authors show that various forms of originalism have played a significant role in Canadian constitutional interpretation. Its influence can be felt both with respect to the structural provisions of the constitution – those relating to the division of powers, constitutional “bargains”, and the core jurisdiction of superior courts – as well as in the context of rights protecting provisions, such as those found in the Charter and aboriginal rights in section 35. At the same time, it cannot be questioned that the Court has rejected or refused even to consult original intentions or meanings just as frequently as it has found them persuasive or even dispositive. The Court has provided little guidance as to those circumstances in which various forms of originalism, or any other forms of constitutional argument, can and should be relied upon, which has led to a troubling state of uncertainty. The authors suggest that whether or not originalist approaches to constitutional interpretation should be accepted in any given case, it is not possible (or desirable) to avoid them entirely, and conclude that Canadian constitutional practice would benefit from openly engaging with originalist ideas and how they can be most fruitfully employed.

We would love to have your comments, thoughts, suggestions, or even anathemas, as we work on getting these papers published. Let us know what you think!

 

How to do Originalism

In my last post, I summarized the Supreme Court’s recent decision in  Caron v. Alberta, 2015 SCC 56, which held that Alberta is not under a constitutional obligation to enact legislation in French as well as English. There was, you will recall, a majority opinion by Justices Cromwell and Karakatsanis, who were joined by four of their colleagues, and a dissent by Justices Wagner and Côté, joined by Justice Abella. In this post, I would like to venture some comments on the disagreement between them. This disagreement was quite sharp. The dissenters insist that the majority’s reasoning both results from and perpetuates an injustice, although they never explicitly accuse the majority of being unjust. I suppose that dissenting judges often think that ― but it seems to me that the thought is rarely expressed. And yet, in a sense, the disagreement between the two opinions is very narrow, almost abstruse.

Both the majority opinion are originalist, in the sense that they accept that the meaning of the relevant constitutional provision is to be determined by reference to the ideas of the time of the provision’s enactment. The provision at issue in Caron is a passage from an Address by the Canadian Parliament to the Queen, adopted in 1867 pursuant to section 146 of the Constitution Act, 1867 to ask for the incorporation of what was then Rupert’s Land and the North-Western Territory (to which I will collectively refer as “the North-West”) into Canada, and incorporate into the constitution as a schedule to the Imperial government’s Order that annexed most of these lands (except the portion that became the province of Manitoba) to Canada. The Address and the Order resulted from a complex series of events and interactions between the Canadian government and Parliament, the Hudson’s Bay Company (which owned and administered the North-West), the British government, and the inhabitants of the North-West and their government and delegates who negotiated their entry into Canada. The two opinions make extensive reference to these events and interactions, and to the thoughts of the people involved. Repeated out-of-hand rejections of originalism notwithstanding, it is alive and kicking in Canadian constitutional law, as Benjamin Oliphant and yours truly have been pointing out for a while now.

The majority and the dissent disagree, however, about the sort of originalism that ought to govern their interpretation of the 1867 Address. The majority’s approach is something like “original public meaning originalism,” which, as Lawrence Solum explains, “emphasizes the meaning that [constitutional provisions] would have had to the relevant audience at the time of its adoption[].” Much of the majority opinion is devoted to showing that the phrase “legal rights” used in the Address would not have been understood, in 1867 or 1870, as referring to linguistic rights. The majority’s summary of the reasons for its conclusion as to the interpretation of the phrase legal rights notes that

(i) Never in Canada’s constitutional history have the words “legal rights” been taken to confer linguistic rights;

(iii) The contemporary discussions show that neither Canada nor the representatives of the territories ever considered that the promise to respect “legal rights” in the 1867 Address referred to linguistic rights;

(iv) The contemporary evidence also shows that the territorial representatives themselves considered that their linguistic rights had been assured through the Manitoba Act, 1870, not the 1867 Address or the 1870 Order;

(v) Federal legislation and debates surrounding it in relation to the new North-West Territories in 1875 and 1877 show that no one involved thought that there had been any guarantee of legislative bilingualism in 1870. [4; emphases removed and added]

In other words, the majority’s focus is on the public meaning of the term “legal rights,” and more specifically its meaning to Canadians or Canadian lawyers generally (i, v), the Canadian government (iii, v), and the representatives of the North-West (iii, iv, v).

The dissent, by contrast, favours “original intent originalism,” which focuses on the intentions of the authors of the relevant constitutional provisions. Its review of the historical evidence focuses not so much on how the words “legal rights” would have been understood ― indeed, the analysis of these words takes up a very short portion of the dissenting opinion ― but on what the parties, and especially the inhabitants of the North-West, sought to accomplish. Their wishes, the importance they attached to legislative bilingualism are the dominant considerations for the dissenters. The dissent insists that “our reading of constitutional documents must be informed by the intentions and perspectives of all the parties, as revealed by the historical evidence.” [235; emphasis added] These documents are “a statement of the will of the people” [235] ― and one gets the impression that, for the dissent, the will to which is seeks to give effect is rather more important than the statement itself.

For my part, I prefer the majority’s approach. Prof. Solum’s brief introduction to originalism, to which I link above, points to some problems with the “original intent” version of that theory, which the dissent in Caron illustrates. One issue is the difficulty of ascertaining a collective “intent,” especially among a large and diverse group of constitutional framers or, as in Caron, in a situation where there were different parties with divergent interests involved. Indeed, although the dissent asserts, generally, that “[t]he Constitution of Canada emerged from negotiations and compromises … achieved when parties to the negotiations make concessions in pursuit of a mutual agreement and reach a meeting of the minds,” [235] the 1867 Address, which is, after all, the operative constitutional provision, was not the result of a negotiation at all. It was a unilateral statement by the Parliament of Canada, and it is therefore not obvious that the intentions or aspirations of the people of the North-West are actually relevant to its interpretation.

Another problem with “original intent” originalism, in Prof. Solum’s words, is that “[t]he intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations” as to how the provision will be applied. Assuming the relevant actors in 1867-70 had a unified intent, was it that legislative bilingualism in the North-West would in fact be continued and respected ― as indeed it was for decades ― or that it would also be constitutionally entrenched? Actually, this questions points to a broader difficulty, which affects the majority opinion as much as the dissent, and of which more shortly.

Both of these issues to point to a third one, which is simply that the intent of the framers of a constitutional provision is difficult to ascertain, and that the legitimacy of an intention not codified in the constitutional text itself as a source of constitutional law is very questionable. As I wrote here in connection with Québec’s arguments in l’Affaire Mainville, there is a danger of litigants ― or, I would now add, judges ―

simply taking advantage of the fact that the intent of the framers cannot be known … and using it as a banner under which to carry its own interpretive theory that doesn’t have much to do with the only sign the framers left of their intent ― the text itself.

Be that as it may, I want to reiterate a point that I might have made here before. Denying the significance of originalism to Canadian constitutional law, as both judges and scholars are wont to do, does not actually make it go away. Canadian courts still make originalist decisions, such as Caron, and litigants still make originalist arguments. But, importantly, this all happens in an intellectual vacuum. Because we are only interested in the question whether to do originalism, and have a ready-made negative answer for it, the debates over how to do it, such as those prof. Solum describes in the post linked to above and here, have not happened this side of the border, and the American debates have been ignored. As a result, questionable approaches to constitutional interpretation can endure unchallenged ― even if, as in Caron and in l’Affaire Mainville, they do not prevail when the votes are counted.

I come back to the broader issue I have with both the majority and the dissent to which I referred above. Both opinions assume that, if the “legal rights” which Canada undertook to uphold in the the 1867 Address include linguistic rights, then they are constitutionally entrenched. But it is not clear to me that this must be so. After all, nobody thinks that the (other) “legal rights” that all agree were part of this undertaking, those of property and contract, were similarly entrenched beyond modification by ordinary legislation, whether federal or, eventually, territorial and provincial. Canada respect the rights that existed at the time the North-West was annexed, but did not mean that Parliament or the legislatures created in the territories could not subsequently legislate to modify or even derogate from these rights. Why exactly are linguistic rights different? Neither opinion explains this.

The comparison with ordinary “legal rights” also casts doubt on the dissent’s assertion that legislative bilingualism or language rights more broadly are “not a political issue that can be left up to the government.” [243] Leaving rights to “government” ― or, more accurately, to legislatures ― need not mean that these rights will not be protected at all. To be sure, it may well be a good idea to entrench (some) rights beyond the reach of ordinary legislation. I have myself argued that the framers of the Canadian Charter of Rights and Freedoms erred in not doing so with property rights. But there is no need, it seems to me, to seek to infer the decision to entrench a right from tenuous evidence of intent, or from the desires of those whom this right would benefit. Contrary to what the dissent in Caron suggests, it is not at all clear that injustice results from a failure to do so.

The Caron majority thus arrived at what I believe is the right result, but even its reasoning might be questionable. Moreover, while its approach to originalist constitutional interpretation is better than the dissent’s, it is just as little explained and defended. Still, I hope that this case might give us the impetus to abandon the pretense that originalism has no place in our jurisprudence, and to start thinking more seriously about when, and how, as well as whether, it ought to be employed.