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 had to respect the rights that existed at the time the North-West was annexed, but that 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.

What Did They Mean?

Must the laws of Alberta ― like those of Manitoba (as well as Québec, New Brunswick, and of course Parliament itself) be enacted and published in both French and English? The answer to this question, which the Supreme Court addressed in Caron v. Alberta, 2015 SCC 56, decided on Friday, turns on the meaning of a short phrase in a document soon to be 150 years old.

The Court’s majority, in an opinion by Justices Cromwell and Karakatsanis, found that Parliament’s promise to protect the “legal rights” of the inhabitants of the then-Rupert Land and North-Western Territory did not encompass a guarantee of legislative bilingualism. The dissenters, justices Wagner and Côté (whose opinion Justice Abella joined), begged to differ, repeatedly accusing the majority of committing an injustice. I will summarize the two opinions in this post, and venture some thoughts in a separate one.

* * *

To understand this case, a rather lengthy historical explanation is in order. In 1867, the territories that have since become Manitoba, Saskatchewan, and Alberta, as well the Yukon, the Northwest Territories, the Nunavut, and parts of Québec and Ontario, belonged to and were administered by the Hudson’s Bay Company (HBC). Section 146 of the Constitution Act, 1867, provided for the “admission” into Canada by the Imperial government, on address of the Canadian Parliament, “on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act.” Parliament approved the first such address in 1867, and another one in 1869. The 1867 address stated that Canada would uphold “the legal rights of any corporation, company, or individual” in the North-West ― the phrase on which the issue before the Supreme Court turned.

However, the Canadian annexation plans provoked a rebellion in the Red River Settlement, the main population centre in the North-West, in what would eventually become Manitoba. The rebels formulated a number of conditions on which they would accept Canadian sovereignty. Among them were demands for legislative as well as judicial bilingualism. They also demanded the creation, out of the territories, of a single province of Assiniboia, and made financial demands. 

The Canadian authorities responded, first, by issuing a Royal Proclamation promising among other things that “all your civil and religious rights and privileges will be respected” upon entry into Canada. Under pressure from the Imperial government, they negotiated with delegates from the North-West and eventually accepted that part of the new territories would enter Canada as a new province, Manitoba. The rest would become a federally administered Territory, whose creation was provided for by an Order of the Imperial government, to which the 1867 and 1869 addresses of the Canadian Parliament were annexed. That Order is part of the Constitution of Canada described in and entrenched by section 52 of the Constitution Act, 1982.

In the first years after 1870, the new North-Western Territory was governed as though it were part of Manitoba. The laws enacted (in both French and English) by that province’s legislature applied. Then, in 1875, Parliament enacted a statute setting up a separate territorial government. A requirement of legislative bilingualism was included in that law in 1877, as a result of an amendment moved by a Senator from Manitoba. Legislation enacted in 1891 made clear that the Territory’s legislature could decide which language to use. In 1905, the province of Alberta (as well as Saskatchewan) was created out of a part of the Territory, and eventually it legislated to enact future laws in English only.

If Canada’s undertaking to protect the “legal rights” of the North-West’s inhabitants included language rights, such as legislative bilingualism, then this chain of enactments was invalid. Canada could not allow the North-Western Territory, or its successors the provinces of Alberta and Saskatchewan, to renounce legislative bilingualism, and the provinces had no authority to do so. This was the appellants’ main argument.

* * *

For the Supreme Court’s majority, the phrase “legal rights” does not encompass legislative bilingualism. While the constitution generally “should be interpreted in a large and liberal manner,” [35] and linguistic guarantees are particularly important, “[t]hese important principles … do not undermine the primacy of the written text of the Constitution.” [36] Moreover, it is not enough to

simply resort to the historical evidence of the desires and demands of those negotiating the entry of the territories, and presume that those demands were fully granted. It is obvious that they were not. The Court must generously interpret constitutional linguistic rights, not create them. [38]

Having set out these interpretive principles, the majority explains why in its view they lead to the conclusion that “legal rights” do not include legislative bilingualism. First, “[l]anguage rights were dealt with explicitly in s. 133 of the Constitution Act, 1867 and in the Manitoba Act, 1870 in very similar and very clear terms. The total absence of similar wording in the contemporaneous 1870 Order counts heavily against the appellants’ contention.” [40] Second, “political leaders in the territories themselves expressly provided for language rights when they were meant to be protected and those rights were differentiated from other, more general, rights.” [52] Third, “[t]he parliamentary debates related to the adoption of the 1867 Address show that language rights were not subsumed under the term ‘legal rights’ or ‘droits acquis‘ / ‘droits légaux‘ [which were used in various French versions of the Address].” [53] Rather, “legal rights” referred to property and economic rights. Fourth,

[t]he end result of the negotiations regarding legislative bilingualism was the enactment of the Manitoba Act, 1870. Conversely, it was never the objective of the 1870 Order to dictate that French and English must be used by the legislative body governing the newly established North-Western Territory. [58]

While the delegates from the North-West “sought to entrench bilingual rights, just as … they sought for the territories to enter Canada as a province,” [60] they only succeeded with respect to what became Manitoba ― which, however, is where most of the North-West’s people lived. Fifth, the 1867 Address cannot be taken to reflect an agreement between Canada and the people of the North-West that would not be reached until 1870.

The majority further argues that the events after 1870 confirm that the relevant actors did not understand legislative bilingualism in the North-Western Territory to be a matter of constitutional obligation. Although the amendment establishing bilingualism in the Territory’s government was not contentious, nothing shows that it was perceived as fulfilling a constitutional duty. If anything, the government at the time thought that the matter was best left to the Territory’s legislature ― as was eventually done.

Before concluding, the majority notes that if the appellants were to succeed, legislative bilingualism would be “constitutionally entrenched not only for Alberta, but also for all of the former HBC lands, which now form part of Saskatchewan, Ontario, Quebec, Yukon, Nunavut and present-day Northwest Territories.” [102] Moreover, “[t]he logical extension of this reasoning would also lead inevitably to the conclusion that a variety of other demands made by the settlers have been constitutionalized by the words ‘legal rights,'” [102] including the to entrench the then-prevailing practice of appointing bilingual judges.

* * *

The dissent took a different approach to the issue before the Court. In its view, “[t]he answer to the question whether Alberta is constitutionally required to enact … all its laws in French as well as in English is written across the history of Rupert’s Land and the North-Western Territory” ― and not merely in the phrase “legal rights” in the 1867 Address. Ascertaining the meaning of that step is only the last step of its analysis.

Much of the dissenting opinion consists of an extensive review of the historical evidence. Its authors insist that “the content of the promises conveyed in the 1867 Address cannot be interpreted without reference to the context in which they were made.” [139] This review serves to stress, time and again, the importance of legislative bilingualism to the people of the North-West.

This population, the dissent notes, was composed of both French- and English-speakers; their legislature and their courts used both languages, as did the administrators appointed by the HBC; departures from these practices were met with discontent and resistance. Bilingualism extended throughout the North-West ― it was not limited to what became the province of Manitoba, and as the delegates who negotiated the annexation with the Canadian government represented the people of all the North-West, not only of the Red River Settlement, it would have been been inconceivable for them to limit their demands for legislative bilingualism to that province. Indeed, the Canadian government did not oppose these demands, nor was it in a position to do so, being pressed to conclude an agreement by the Imperial authorities.

For the dissent, the events after 1870 support the existence of a constitutional promise of legislative bilingualism to the people of the North-West. Little changed there in the aftermath of the annexation to Canada, since the bilingual administration of Manitoba exercised power. And once the territorial government was established, it was bilingual in practice, even before bilingualism was required by federal law.

This historical review takes up more than 100 paragraphs in the dissenting opinion. The “Application of the Principles of Constitutional Interpretation to the 1867 Address,” which follows it, fewer than 30. The principles in question “are that the Constitution must be interpreted contextually, that its provisions must be given a broad and purposive reading, and that its nature — as an expression of the will of the people governed by it — is relevant.” [216]

Applying these principles, the dissent concludes that the “historic” “compromise between the Canadian government and the territories’ inhabitants” [222] included a promise of legislative bilingualism. Referring to the French version of the 1867 Address, which spoke of the “droits acquis” ― the vested rights ― of the people of the North-West, the dissent states that “legislative bilingualism was one of these vested rights.” [226] It was also implicitly referred to by the Royal Proclamation, with its promise to uphold “civil and religious rights” ― which thus “recognized the cultural needs of the Métis” [229] of the North-West. That the protection of linguistic rights was not explicit as in other constitutional provisions is not determinative. To hold otherwise would be unjust and incompatible “with the broad and generous approach to constitutional interpretation that this Court has repeatedly taken,” [231] and with the “large and expansive meaning” which the authors of the 1867 Address “attributed … to the[] rights” it contained. [234] Finally, the dissent asserts that, like Confederation itself,

[t]he annexation of the territories … resulted from negotiations between a dominant English-speaking party and a party with a strong interest in protecting the French language. Like the French-speaking minority in the negotiations that resulted in Confederation, the inhabitants sought to have the protection of their linguistic rights entrenched in the Constitution, and this was granted to them. [239]

To give effect to “the will of the people” who enacted it, the interpretation of the Constitution must take their demands into account.

* * *

So much for the opinions. I will try to have some thoughts on them shortly.

Untenable

The Supreme Court will hear the oral arguments in l’Affaire Mainville this Friday. The issue in this case concerns the eligibility of Federal Court judges appointed from Québec, and thus former members of the Québec bar, for seats on Québec’s s. 96 Courts, pursuant to s. 98 of the Constitution Act, 1867, which provides that that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province.” More broadly, the eligibility of other former Québec lawyers is also in question. In past posts, I set out my argument for the constitutionality of such appointments; offered some thoughts on Québec’s factum at the Québec Court of Appeal, to which it had referred the question; reported on the interpretive and other issues that were canvassed during the oral argument at the Court of Appeal; and summarized and commented on the Court of Appeal’s opinion stating that the appointments in question were indeed constitutional.

In this post, I want to comment on two aspects of the factum Québec filed in the Supreme Court which I have not covered previously. The first is a somewhat new argument Québec makes: the claim that s. 98 must be interpreted consistently with s. 6 of the Supreme Court Act, which the Supreme Court interpreted in l’Affaire Nadon, Reference re Supreme Court Act ss 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433. The second is what I consider to be a deeply flawed version of originalism that is Québec’s favoured mode of constitutional interpretation.

* * *

The coherence argument, which Québec develops in 4.2.2 of its factum, holds that because s. 98 and s. 6 of the Supreme Court Act

are both consitutional provisions that help protect the civil law system in the context of judicial appointments by the Governor General […] it is important to reconcile their interpretation so as to ensure the coherence of Canada’s constitutional structure. [113; translation mine, here and throughout.]

Québec seeks to use this argument to bolster its claim that a judge appointed to a Superior Court in the province (including the Court of Appeal) must have “contemporaneous” links with one of Québec’s “legal institutions” ― of which the Federal Courts are not one. The Supreme Court accepted the idea of contemporaneous links in l’Affaire Nadon ― but that was based, to a considerable extent, on contrasting the wording of s. 6 with that of s. 5 of the Supreme Court Act, which quite clearly allowed the appointment of former, and not only current, judges and lawyers. This contrast does not exist in the case of s. 98, making the textual argument for the contemporaneity requirement unavailable, or at least much more difficult. Hence the attempt to important this requirement through the “coherence” argument. Of course, in l’Affaire Nadon, Québec was on the side of those who insisted on the importance of the textual difference between ss. 5 and 6 of the Supreme Court Act. But now, it would seem that this argument has served its purpose and has been jettisoned ― coherence, ironically, be damned.

Yet apart from being ironic and inconsistent ― which may not trouble Québec’s lawyers but should, it seems to me, trouble the Supreme Court’s judges ― Québec’s position is also paradoxical. It makes sense to argue that provision A ought to be interpreted consistently with provision B when A was enacted after or at the same time as B. In both these cases, the interpretive presumption that the legislature (or the constituant) had B in mind when drafting A is perfectly sensible. However, what Québec is asking the Court to do is to interpret an earlier provision in light of a later one, about which the people who drafted and enacted the earlier provision could not have known. The logic of this position escapes me.

Before moving on, I briefly address another aspect of Québec’s coherence argument. Québec claims that, if its position is not accepted, it would be possible,

insofar as he had once been a member of the Québec bar, for a judge of a federal court or a common law provincial court to be appointed to one of the seats reserved to Québec on the Supreme Court, following a brief stint at the Québec Court of Appeal. [125]

This, according to Québec would amount to doing indirectly that which the Supreme Court in l’Affaire Nadon said could not be done directly, and should not be allowed. The trouble with this claim is twofold. First, it rather blatantly misrepresents the majority’s opinion in l’Affaire Nadon, which was careful to specify that it “[did] not decide”

whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Quebec bar could rejoin the Quebec bar for a day in order to be eligible for appointment to [the Supreme] Court under s. 6. [71]

And second, Québec’s own interpretation of s. 98 allows the exact same run-around ― only for a different set of judges, namely those of Québec’s provincial court. They, no less than the judges of the federal courts, are excluded from appointment under s. 6, yet Québec argues that, as they possess the requisite contemporaneous link to the province’s “legal institutions,” they can be appointed under s. 98 ― and could thus be further appointed under s. 6. (NOTE: I hadn’t read it before posting this, but the factum of the Canadian Association of Provincial Court Judges makes this very point at par. 54.)

* * *

I turn now to the issue of constitutional interpretation. Québec’s argument is heavily originalist. It is replete with claims about the “framers’ intent” (l’intention du Constituant), the compromise to which s. 98 purportedly gives effect, and the conditions prevailing at or in the decades prior to Confederation in 1867. Whether originalism is an acceptable mode of constitutional interpretation in Canada is, in my view, an open question. Canadian constitutional rhetoric tends to reject it out of hand, but the Supreme Court’s practice suggests that, outside the realm of Charter interpretation, the rejection may not as complete as it is often proclaimed to be. (I have some thoughts on this subject here.) Indeed, the federal government’s factum also draws heavily on historical, and arguably originalist, arguments, so that they are likely to feature prominently in the argument before the Court, and perhaps in its opinion too. So rather than a knee-jerk rejection of originalism, I want to offer a reason for being skeptical of the specific brand of originalist argument the Québec invokes.

As Lawrence Solum’s Legal Theory Lexicon entry for “Originalism” helpfully explains, there are a number of distinct varieties of originalism in American constitutional thought, the two most significant of which are “original intent originalism” and “original (public) meaning originalism.” The former held that constitutional texts had to be interpreted in accordance with the intentions of their framers. It mostly had currency in the 1970s and early 1980s, but came under criticism, partly because it was not clear just what the intentions of the framers were and at what level of generality they had to be considered, and partly because the intentions unexpressed in the actually enacted text were deemed irrelevant to legitimate constitutional interpretation. In response to the criticism, a different form of originalism developed and came to dominate, one that focused not on the framers of the constitutional text might have intended, but on the way in which the text that was actually enacted would have been understood at the time. Those who tend to reject originalism out of hand ― and this category includes many Canadian jurists ― tend not to be aware of this distinction. But it matters, and the Québec factum in l’Affaire Mainville shows why.

Québec’s claims focus on what it considers to have been the “intentions” of the framers of s. 98. Thus it argues that

the framers (Constituant), by providing that the judges of Québec’s superior courts would be chosen “from the Bar of that Province,” wanted to guarantee that the persons appointed to these courts would have not only a training endorsed by the Barreau du Québec but also that they would have a contemporaneous link with Québec’s legal institutions. [76; emphasis mine]

How do we know that the framers wanted this, though? Actually, we don’t know this. Because ― as the Federal government repeatedly points out ― that’s not what they wrote. What the framers wrote was a text that ― unlike s. 6 of the Supreme Court Act (on the Supreme Court’s reading, anyway) ― says nothing about the “contemporaneous link,” and still less about the nature of the institutions membership in which can, or cannot, satisfy this purported requirement. Québec is simply taking advantage of the fact that the intent of the framers cannot be known (indeed, it acknowledges that s. 98 was the subject of “little debate” [73] among the framers), and using it as a banner under which to carryits own interpretive theory that doesn’t have much to do with the only sign the framers left of their intent ― the text itself. This is exactly the problem that the critics of original intent originalism identified with that interpretive approach.

Instead of reverse-engineering the intent of the framers of which we have very little evidence, it would make more sense to look, as the proponents of original meaning originalism would have us, at what the constitutional text meant to the people of 1867. And here, the federal government has made, both at the Court of Appeal and now at the Supreme Court (at par. 51-52 of its factum), a crucial point, which is that in 1867, and for a considerable time thereafter, judges could remain members of the Québec Bar. The phrase “from the bar of [Québec]” would therefore not have been understood to exclude individuals who stopped practising law in order to become judges ― such as the judges of the federal courts or, for that matter, those of the provincial court.

All this is not to say that originalist arguments are dispositive, or even that they are valid. For my part, I believe that Sébastien Grammond was right when he suggested, at oral argument at the Court of Appeal, that we should be especially weary of originalist arguments in cases where there is no continuous tradition of judicial interpretations that could bridge the gap between the worlds of 1867 and 2015. However, to the extent that the parties and, possibly, the Court are going to rely on originalist arguments, they should not allow themselves to be led astray by arguments of the type that the vast majority of originalist jurists would reject.

* * *

As I have argued from the moment the question arose, the appointment of Justice Mainville to the Québec Court of Appeal and, hypothetically, of other judges of the federal courts to Québec’s s. 96 bench, is constitutional. Québec’s claims to the contrary are not justified and was rightly rejected by the Québec Court of Appeal. Québec’s Supreme Court factum supplies no argument that would justify overturning this decision. On the contrary, its arguments are so weak as to demonstrate that its position is untenable.

Not Beyond Interpretation

This afternoon, the Québec Court of Appeal delivered its opinion in the Reference re Section 98 of the Constitution Act, 1867 ― which asked it to pronounce on the constitutionality of the appointment, to the Court, of Justice Robert Mainville who was, at the time of that appointment, a judge of the Federal Court of Appeal. The unanimous “Opinion of the Court” states that Justice Mainville’s appointment is, indeed constitutional.

The first substantive question the Court of Appeal addressed was the import of the Supreme Court’s opinion in l’Affaire Nadon, Reference re Supreme Court Act ss 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433. Québec and the interveners who argued that Justice Mainville’s appointment was unconstitutional said that it controlled the outcome, since it concerned the interpretation of a provision (section 6 of the Supreme Court Act) whose wording was very similar to that of section 98 of the Constitution Act, 1867 at issue here, the two speaking of appointments “from among the advocates” and “from the Bar” of Québec respectively.

The Court of Appeal finds, however, that to say that the two provisions were in effect identical would “camouflage the complexity of the issue [in l’Affaire Nadon].” [29] In l’Affaire Nadon, the interaction of ss. 5 and 6 of the Supreme Court Act created a difficult problem of interpretation, whose resolution depended on “textual elements” of the Supreme Court Act (the presence of s. 5 itself, as well as the enumeration of courts whose judges could be promoted in s. 6, and the provision relative to ad hoc judges) that do not have equivalents in the Constitution Act, 1867. The Supreme Court’s opinion, therefore, is not dispositive.

The second issue the Court had to address was the interpretation of section 98 of the Constitution Act, 1867 ― a provision, the Court says, that “although consistently applied since [Confederation,] has gone largely unnoticed.” [38] The Court adds that

[t]he historic context therefore takes on particular importance, since in the almost total absence of case law and learned commentary, we can only shed light on the purpose of s. 98 of the Constitution Act, 1867 from that context. In this connection, [Québec] is right to emphasize that in matters of constitutional interpretation, a provision that embodies an historic compromise must be interpreted in a manner to preserve that compromise. [39]

The Court’s opinion, accordingly, draws heavily on the historical record ― but concludes that the compromise embodied by s. 98 is very different from the one that gave birth to s. 6 of the Supreme Court Act. The latter was motivated by worries about

the [Supreme] Court as a federal and bi-juridical institution within which the three judges from Québec would be relied upon to represent the civil law tradition. … It is in this context that confidence in the institution and its legitimacy, a determining factor for the majority [in l’Affaire Nadon] is rooted. [47]

Unlike the Supreme Court, which was created, against some resistance, in 1875, the Superior Courts with which s. 98 is concerned (as is s. 97, which according to the Court of Appeal ― and contrary to Québec’s claims ― is its exact counterpart) existed before Confederation. The challenge, in 1867, was to integrate the pre-existent judicial system into the new federal structure, not really to make that system acceptable ― that problem had largely been solved by then. Section 98 was a pragmatic means of ensuring that Québec’s judges were well versed in the civil law, but not a grand bargain like s. 6 of the Supreme Court Act.

Accordingly, the Court of Appeal rejects “the notion of contemporaneity” [58] that the Supreme Court read into the latter provision. Indeed, given the numerous appointments of trial judges to courts of appeal, and of provincial court judges to superior courts, to read s. 98 literally, as requiring the appointment of current members of the bar, “would quite simply violate common sense.” [59] Echoing the federal government’s submissions, the Court concludes that past the initial admission, “the status a [provincial] Bar confers on someone should not become the criteria [sic] of s. 98.” [61] Former members of the bar ― including the judges of the federal courts ― can be appointed to superior courts and courts of appeal.

This conclusion is consistent with what I have argued since my first post on this issue. But it is interesting nonetheless. For one thing, its historicist or, if you prefer, originalist approach to interpretation is a somewhat surprising choice, having been championed by the parties on the losing more than those on the winning side of the argument (though this might have been one reason that motivated the Court to choose it). For my part, I am inclined to agree with Sébastien Grammond, who argued, on behalf of the Canadian Association of Provincial Court Judges, that the absence of judicial decisions relative to a constitutional provision, which can serve as a bridge before the time of its enactment and the present, should give us pause before adopting such an approach to interpreting it. (Incidentally, I want to point out that the Court is not quite right in saying that there was no “learned commentary” relevant to the issue before it: bloggers ― Paul Daly, Maxime Saint-Hilaire, and, well, yours truly if I can count as “learned,” have provided some!)

And then, there is the dry tone of the Court’s opinion, and the things that it said nothing about. When I wrote about about the oral argument, I divided my report into two parts: the first dealt with the interpretation of s. 98 and of the Supreme Court’s opinion in l’Affaire Nadon, the second with the “soft” issues that went beyond interpretation, namely the meaning of being a Québec jurist and public confidence in the courts. The latter issues, I wrote, were “[d]ifficult to assess” and “should not be decisive in any legal case. They certainly need not be decisive in the Mainville reference.” The Court of Appeal’s opinion suggests that it was of the same view. Still I find their almost complete absence from its opinion striking. Of course this absence does not mean that the Court did not think about these issues ― and then chose not to say anything about them. Whether its reluctance to go beyond interpretation, motivated no doubt by a desire to appear judicial and apolitical, even at the expense of seeming a bit oblivious to the reality of the case before it is a good thing, I’ll let others judge.

For a few years, the Supreme Court had been in the habit of releasing very important decisions in the week just before Christmas. This year, it broke with the tradition of making what Sonia Lawrence described on Twitter as cadeaux pour nerds. Its last pre-Christmas decision, R. v. Fearon, 2014 SCC 77, was in my view the judicial equivalent of a lump of coal. Today’s decision by the Court of Appeal though, is the perfect gift for a constitutional law nerd ― it gets the result right, but leaves one with plenty to think about.

The Mainville Hearing: Interpretive Issues

On Wednesday, I was at the Québec Court of Appeal as it heard the oral arguments in the reference on the constitutionality of Justice Mainville’s appointment. The Québec government, supported by Rocco Galati (a Toronto lawyer who had originally challenged Justice Mainville’s appointment before the federal court) and the Constitutional Rights Centre Inc. (a public interest litigation outfit), argued that s. 98 of the Constitution Act, 1867, which provides that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province” prohibited the appointment. Although Justice Mainville had been a Québec lawyer for 33 years, he was then appointed to the Federal Court of Canada, and subsequently to the Federal Court of Appeal. This, they said, means that he is no longer “from the bar of” Québec and thus ineligible. The federal government, supported by the Canadian Association of the Provincial Court Judges and the Grand Counsil of the Crees, contended that, having been a member of the Québec bar in the past, Justice Mainville satisfied the s. 98 criterion.

This blog has already hosted something of a mini-debate on the constitutionality of Justice Mainville’s appointment, with my friend Maxime St-Hilaire arguing against it, and me arguing that the appointment is indeed constitutional. Many of the arguments heard on Wednesday echo those prof. St-Hilaire and I made in these posts. It was a long day, too, and it would not be all that useful to produce a detailed report of everything that was said. Instead, I will structure my report by talking of a few themes that were raised, more or less directly, in the argument, and also one that wasn’t, but perhaps should have been ― or at least, should feature in the Court’s thinking.

Also, in the interests of readability, I will split the report in two. In this post, I will address the issues having to do with the authorities which the Court of Appeal will need to interpret to answer the question before it. In the next post, I will take on the issues that go beyond interpretation.

***

The first theme I want to talk about is constitutional interpretation. That’s a dangerous subject that fascinates constitutional law nerds (such as yours truly) too much, and which, in the United States, causes a lot of energy to be wasted on debates on which little may turn. (For a withering ― and entertaining ― criticism of the state of this debate, have a look at Richard Posner’s recent book Reflections on Judging.) In Canada, we have been largely free of this debate, at least in the courts. Charter cases, which is where most of the action in constitutional law has been for the last 30 years, barely even refer to the constitutional text. The occasional federalism cases courts decide mostly concern the development of judicial doctrines. But in the last couple of years, constitutional interpretation has come back ― in l’Affaire Nadon, 2014 SCC 21, [2014] 1 S.C.R. 433 (statutory when it started, but constitutional by the time the Supreme Court was done with it!), Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, and now in the Mainville reference. Unfortunately, the lack of both practice and theory means that we don’t really know what to do about it.

Although all the parties declared themselves, to various extents, proponents of purposive interpretation, those arguing against the constitutionality of Justice Mainville’s appointment favoured a rather originalist approach, as Québec had already done in the argument for the Senate Reform reference. (Indeed, Québec started its reply with the suggestion that we “go back to 1867.”) They argued that the bargain struck at confederation was absolutely and unconditionally binding, and the preoccupations that of the people who struck that bargain were the key to interpreting the text in which they enshrined it, and devoting much attention to the 92 Resolutions and to Sir Hector-Louis Langevin’s debates with Antoine-Aimé Dorion. (We might chuckle at Americans obsessing about the writings of James Madison and Alexander Hamilton, but we no longer have any right to do so, if we ever did. And at least, Madison and Hamilton are rather more inspirational figures than Langevin and Dorion.) And each of the parties denying the constitutionality of Justice Mainville’s appointment warned the Court about the danger of “living tree” constitutionalism, with Mr. Galati going so far as to say that it was inappropriate in non-Charter cases.

Their opponents, by contrast, embraced the “living constitutionalist’ approach, pointing out the changes in the organization of the bar and judicial institutions since Confederation, and saying that s. 98 must be read in such a way as to achieve its purposes within today’s context. Yet the federal government, at least, supplement its argument with heavy doses of originalism.

The Court, for its part, seemed unwilling fully to follow Québec down the originalist path ― and adopt what one of the judges described as “interpretation fixing the law in 1867.” The court systems of 2014 and 1867, the Court suggested, were “two worlds,” making an “evolutive” interpretation necessary.  It also seemed reluctant to make too much of s. 94 of the Constitution Act, 1867, which in theory allows common-law provinces ― but not Québec ― to “make uniform” their private law, and which in the view of those opposed to the constitutionality of Justice Mainville’s appointment is evidence that Québec’s legal specificity must receive greater protection than that of the other provinces.

One thing that could not be done, everyone agreed, was to read s. 98 literally, so that “from the bar” really means “from the bar.” Under that reading, judges could not even be promoted from the Superior Court to the Court of Appeal (as four of the five members of Wednesday’s panel were), and this was too much even for Mr. Galati, despite his obvious enjoyment at posing as the man who would do justice though the sky fall.

Beyond that, the best suggestion on interpretation came, in my view, from Sébastien Grammond, who represented the Provincial Judges (and whose arguments in both l’Affaire Nadon and the Senate Reference I had also found very thoughtful and compelling). Prof. Grammond pointed out that, in the absence of a tradition of judicial interpretation of s. 98, and with the legislative texts implementing it themselves not paragons of clarity, we cannot very well understand the nuances of the meaning of the constitutional language. In such circumstances, originalist interpretation risks leading us astray. And as for the claim that the “living tree” approach is only suited for Charter cases, those who would defend it should recall that the the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, from which that metaphor originates, was not a Charter case at all.

***

In addition to interpreting s. 98 of the Constitution Act, 1867, the Court also has to interpret a much more recent text ― the Supreme Court majority’s opinion in l’Affaire Nadon. The questions about it concern both its specific ratio ― the true grounds for the opinion ― and thus the extent to which it governs the Mainville reference, and also its broader implications.

The parties arguing that Justice Mainville’s appointment is unconstitutional argued that the Nadon reference stood for the proposition that the phrase “from among the advocates of [Québec]” in s. 6 of the Supreme Court Act included only current, but not former, members of the bar because the currency of bar membership was necessary to provide Québeckers with the assurance that judges appointed to Québec seats would share their “social values,” in addition to being qualified in Québec’s civil law. In their view, the phrase “from the Bar of that [Québec]” in s. 98 was effectively identical to that used in s. 6 of the Supreme Court Act, and had also to be interpreted as including a requirement of current membership ― albeit not in the Québec bar, but rather in Québec’s bar or courts. The contrary interpretation, they said, would fail to provide Québeckers with the assurance that their judges would be in sync with their legal tradition and values.

Those defending the constitutionality of Justice Mainville’s appointment, by contrast, said that the Nadon majority’s comments about assurances and values were not dispositive, and that the textual and contextual differences between the two cases meant that l’Affaire Nadon is not binding. In particular, they pointed to the fact that s. 6 specifically named two courts the judges of which could be appointed to the Supreme Court ― by implication preventing the appointment of the judges of other courts ― and emphasized the absence of analogous wording from s. 98.

The Court seemed to share these views, suggesting that the Nadon majority’s opinion rested on a “en effort of very careful exegesis” of ss. 5 and 6 of the Supreme Court Act. It was one of the judges who suggested that the Nadon majority’s comments regards Québec’s “social values” were in obiter, on which those who defended the constitutionality of Justice Mainville’s appointment eagerly seized. And during Québec’s reply, the Court quite clear took the view that the Nadon majority’s opinion was based on the rule inclusio unius est exclusio alterius.

Beyond the problem of figuring out the specific ratio the majority opinion in l’Affaire Nadon, there was also that of its broader import. Québec argued that it was a positive decision, enshrining a “generous” interpretation of a fundamental constitutional compromise. The federal government, by contrast argued that, although dictated by statutory text, the outcome of l’Affaire Nadon was nothing to celebrate, and certainly not “generous,” and that if the Court of Appeal could avoid extending it, it should by all means do so.

When l’Affaire Nadon was decided, I thought that the majority’s comments about the importance of Québec judges on the Supreme Court being seen as representing Québec’s “social values” was crucial to its opinion. I still don’t think that they can really be characterized as obiter dicta. At the same time, they weren’t all there was to that opinion, which also put considerable weight on what it took to be the “plain meaning” of s. 6 as excluding former lawyers. As the federal government and others pointed out, nobody is arguing that the same “plain meaning” considerations apply here. Ultimately, I think that the best characterization of the majority opinion in l’Affaire Nadon is one also suggested by the federal government ― it stands for the proposition that the specific wording of s. 6 reasonably advances its values-representation purpose (and must therefore be given full effect), although it is not the only way to achieve it. Since s. 98 is drafted differently from s. 6, it is possible to see it as implementing a similar purpose in a different way, and even the Supreme Court’s values talk is not a mere obiter, it does not dictate the outcome of the Mainville reference.

As for the broader significance of l’Affaire Nadon, I remain of the view it is not a good thing for Québec. Limiting the paths open to Québec’s jurists is not, it seems to me, a “generous” thing to do ― especially when the same limitations are not imposed on their counterparts from other provinces. But this point leads me to a theme I want to discuss, in my next post  ― identity.

Courts, Government, and Originalism

Despite its popularity south of the border, originalism hasn’t had much of a purchase in Canadian constitutional thinking. One reason, no doubt, is the power of what we think is the example of the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, generally taken to be a decisive rejection of originalist constitutional interpretation. It wasn’t exactly that, as I have argued here, but Canadian constitutional theory lives in the shade of its “living tree” all the same. But there might be other factors contributing to our rejection of originalism. A passage from Judge Jeffrey Sutton’s majority opinion for the U.S. Court of Appeals for the 6th Circuit* upholding bans on same-sex marriage, which Josh Blackman describes as “a pithy but deep understanding of originalism,” brings one of these other factors to mind.

Judge Sutton writes that the original meaning of a constitutional provision, the way “it was understood by the people who ratified it,” (17) is the first consideration in constitutional interpretation. He explains that

[i]f we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm … —that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. … Any other approach, too lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it. (17-18)

Now we may be inclined to dismiss the analogy between a constitution, meant to apply to people not even born at the time of its ratification, over decades and even centuries, and a contract of sale executed months after its conclusion and subject to a statute of limitations. But whether or not there is, nonetheless, some truth to it, or a constitution is more properly analogized to a “higher law” that binds the “governors” is not important for my purposes now. What I want to do instead is consider an premise that underlies Judge Sutton’s argument, but which is unstated because it would, I think, be universally accepted in the United States ― and which we in Canada tend not to share.

This premise is that judges are among the “governors” with whom the people “contract” or whom they bind by ratifying a constitution. If they are, then obviously letting them re-interpret the constitution, under whatever pretext, means letting one party to the agreement modify its terms unilaterally, or allowing the “governors” to be a law unto themselves. That we be unfair and, considering the power of the “governors” over the governed, outright dangerous. It is important to hold the “governors” to the original bargain struck with them, or bound by the law imposed on them. Originalism is intended to do that.

Yet Canadian constitutional thinking, I believe, does not see courts that way. Of course, we know that courts are a part of government ― indeed, that judges were, at first, servants of the Crown rather than a separate “branch” of government. But generally speaking, that’s not how we think of them today. We tend to regard them outside arbiters that stand between the government (i.e. the legislatures and the executives) and the citizens. Indeed, we might even tend think of them as our agents vis-à-vis what the Americans call the “political branches” ― that’s why many Canadians (and indeed at least some of our “governors”!) ― think of the Canadian Charter of Rights and Freedoms as having transferred power to the people, and not just the courts. But, of course, if the judges are not among the “governors” whom we fear and with whom we make a deal or whom we try to constrain, there is little reason for us to wish to limit their power to reinterpret the constitution. If, a fortiori, they are our agents vis-à-vis the “governors”, we probably want them to reinterpret the constitution, and it is the “governors” who ought to be originalists.

As for the question of who has it right, I’m not sure that it can really be answered. Indeed I’m not even sure it must be the same in different constitutional systems. But even if it is, it’s worth noting that both views of courts have something going for them. Courts are a part of government in the sense that they wield ― at least so long as the executive is inclined to enforce their decisions ― a coercive power over citizens, whether considered individually or, if judicial review of legislation is possible, collectively. At the same time, I think it’s fair to say that, so long as they remain independent from the popular will, courts are not a part of government like the others. So long as it is easier for individual citizens to make their voice heard through the courts than through the legislatures, the view that courts are our agents vis-à-vis the (other) “governors” rather than our opponents and that we want to empower them more than constrain them is at least plausible. So, pick your own view. Just know that it’s not the only possible, or even plausible one.


*As usual, I express no views on the correctness of an American decision as a matter of American law. All I can say is that if this decision is indeed correct ― something that Ilya Somin and Michael Dorf, not to mention Judge Richard Posner and many others, would dispute ― then I’m happy that Canadian law is different.

The Bill Is Due

In yesterday’s post on R. v. Cloud, 2014 QCCQ 464, I bemoaned the lack of property protections in the Canadian Charter of Rights and Freedoms, arguing that, as Cloud demonstrated, it hurt the poor rather than the well-off. However, while property rights are not mentioned in the Charter, section 1 of the Canadian Bill of Rights provides that

It is hereby recognized and declared that in Canada there have existed and shall continue to exist … the following human rights and fundamental freedoms, namely,

(a) the right of the individual to … enjoyment of property, and the right not to be deprived thereof except by due process of law;

Unlike the Charter, the Bill of Rights only applies to federal law ― which, of course, includes the Criminal Code. Can it be used to challenge the “victim surcharge” which, as I argued yesterday, is an arbitrary taking of property, often from the poorest members of society and for the benefit of those better off than them? The short answer is, almost certainly no. There is a way of arguing that it should be, but I would not expect courts seriously to entertain such an argument. And yet, they would be wrong not to.

Unlike the Charter, which helped usher in substantial changes in Canadian law within years of its coming into force, the Bill of Rights has languished in relative obscurity. The Supreme Court never made much of it, holding in R. v. Burnshine[1975] 1 SCR 693 at 702 that

[t]he Bill did not purport to define new rights and freedoms. What it did was to declare their existence in a statute, and, further, by s. 2, to protect them from infringement by any federal statute.

As cases such as Burnshine and Miller v. The Queen, [1977] 2 SCR 680, which rejected a challenge to the use of capital punishment on the basis that

[a]t the time when the Bill of Rights was enacted there did not exist and had never existed in Canada the right not to be deprived of life in the case of an individual who had been convicted of “murder punishable by death” by the duly recorded verdict of a properly instructed jury (704)

demonstrate, the courts’ approach to the Bill of Rights is strictly originalist. This is, of course, in contrast to their approach in constitutional cases, where originalism is (almost ritually) rejected and “large and liberal” interpretations prevail, and despite the Bill of Rights regularly being described a “quasi-constitutional” statute.

The most recent leading case dealing with the Bill of Rights is Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 SCR 40. The claimants in in that case argued that the federal government’s failure to pay interest on pension money it administered for them and Parliament’s enactment of a statutory provision barring any claim for such interest were a violation of, among other things, their property rights protected by the Canadian Bill of Rights. In a unanimous judgment by Justice Major, the Supreme Court held that the requirement of “due process of law” for any deprivation of property in par. 1(a) of the Canadian Bill of Rights did not include any procedural rights (such as notice and hearing) prior to the enactment of a statute or in “the non-discretionary application of a law to incontestable facts” (par. 45). More important for my purposes here, however, is the Court’s treatment of the claim that “due process of law” had a substantive dimension which included protection against expropriation without compensation. Justice Major noted the extreme reluctance of Canadian courts to recognize “substantive due process” rights arising out of the Bill of Rights; he also observed, however, that in the context of s. 7 of the Charter, which uses the terms “fundamental justice” instead of the Bill of Rights‘ “due process of law,” the Court has found that, in the proper circumstances, guarantees of process or justice may confer substantive protections” (par. 50). Reverting to an originalist analysis, Justice Major concluded that, in any case, when the Canadian Bill of Rights was enacted, “it was undisputed, as it continues to be today, that Parliament had the right to expropriate property if it made its intention clear” (par. 52).

How does this apply to the “victim surcharge”? To argue that it is contrary even to the narrow protection for property rights recognized by the Supreme Court in Authorson, one would need to show that a principle of proportionality or non-arbitrariness in the deprivation of property was part of Canadian law prior to 1960. I haven’t done any relevant research, but I suspect that it would not be an easy demonstration. Authorson does, however, leave open the possibility of reading “substantive protections” into a “guarantee of process.” It is difficult to know whether Justice Major really meant what he said. Perhaps the possibility he suggested was a purely theoretical one. I have no doubt that courts would be reluctant to give it effect. A case involving the “victim surcharge” might be the best opportunity to persuade them to do so. It might help, too, that since Authorson, important American scholarship has undermined the justification of the fear of  a new “Lochner Era” of judicial assault on legislation intended to foster social justice and called into question its purely procedural understanding of “due process of law.” Still, this would be a high hurdle to overcome.

The most radical, and least likely to succeed, argument against the compatibility of the “victim surcharge” with the Canadian Bill of Rights would involve a challenge to the Supreme Court’s entire approach to its interpretation. The originalism which limits the scope of its protection to what existed in 1960 is inconsistent with the Court’s approach not only to constitutional and quasi-constitutional laws, but even to ordinary statutes. To be sure, the Bill of Rights “recognizes and declares” that the rights it protects “have existed and shall continue to exist.” But recognizing the continued existence of a right need not entail its “freezing” at the moment of recognition. A right does not change, does not become a different or new right, just because it comes to have a novel application. When the equality rights of same-sex couples were recognized, they were the same old equality rights that had existed previously and would continue to exist thereafter, only extended to a new group of people. When the Supreme Court recognized that freedom of religion prevented Parliament from enforcing religious observance, it did not create a new liberty ― it only gave further meaning to an old one. Of course, there are limits to this reasoning, but that does not invalidate it altogether. It is probably always a safer bet to assume that the Supreme Court will not change course. But it should. 

The Canadian Bill of Rights deserves better treatment than it has received at the Supreme Court’s hands. The “victim surcharge” shows that the Bill is due ― to hold the government to account for its greed at the expense of some of the most vulnerable members of society.