Original Myth

Any constitution, at least I suppose any constitution that has existed for a while, is surrounded by myths―stories that we tell ourselves to explain why things are as they are and, often, to reassure ourselves that they are as they ought to be. Among the myths surrounding the Canadian constitution, one of the most popular ones is that according to which originalism has no place in Canadian constitutional interpretation. Justice Binnie, for example, retold this myth in a debate with justice Scalia on “judging in a democracy” at a conference dedicated to the 25th anniversary of the Canadian Charter of Rights and Freedoms.

As many if not all myths, this one is rooted in fact, namely in the famous rejection of originalism by the Judicial Committee of the Privy Council in the “Persons Case”―Edwards v. Canada (Attorney General), [1930] A.C. 124. The Privy council compared the constitution to a “living tree” and held that it interpretation should make room for its “growth and expansion within its natural limits.” But as with other myths, our anti-originalist myth makes claims much broader than what its historical foundation can support. Contrary to popular belief, originalism is not altogether absent from Canadian constitutional law, though areas in which it lives on are admittedly narrow enough.

One application of originalism in Canadian constitutional law can be found in a Privy Council decision rendered only a few years after the Persons Case, A.-G. Canada v A.-G. Ontario, [1937] A.C. 326, better known as the Labour Conventions Reference. As I wrote here, Lord Atkin rejected the federal government’s argument that a constitutional provision allowing Parliament to enact legislation implementing imperial treaties also allowed it to implement treaties entered into by Canada itself, holding that “it is impossible to strain the section so as to cover the uncontemplated event” (Canadian independence, that is, uncontemplated at the time of confederation in 1867). As I said in the post linked to, Lord Atkin’s reasoning is not only originalist, but it is that, too. And however much that decision has been criticized, including by those who, like F.R. Scott, thought that it contributed to the Privy Council’s distortion of the constitution’s original meaning, it is an essential part of the fabric of our constitutional law.

Another application of originalism in Canadian law is in the interpretation of the terms “the Constitution of Canada” and “the constitution of the province” in ss. 91(1) and 92(1) of the Constitution Act, 1867 (now ss. 44 and 45 of the Constitution Act, 1982) does not include what Justice Beetz described, in Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2, at 40, as “fundamental term[s] or condition[s] of the union formed in 1867.” In OPSEU, Justice Beetz cited Att. Gen. of Québec v. Blaikie, [1979] 2 S.C.R. 1016, which held that legislative bilingualism of the federal Parliament and Québec’s legislature was “part of the Constitution of Canada and of Quebec in an indivisible sense” (OPSEU, p. 40) and thus outside the scope of s. 92(1), as an example of the application of that rule. The rule was also applied in Re: Authority of Parliament in Relation to the Upper House, [1980] 1 S.C.R. 54, to support the conclusion that some hypothetical constitutional amendments regarding the Senate would be outside the scope of Parliament’s power under s. 91(1). It will also  be applied, though we do not yet know to what effect, in the Supreme Courts future decision on the constitutionality of the federal government’s proposed Senate reform.

Finally, something like originalism is also used to define the “core jurisdiction” of provincial superior (“s. 96”) courts that cannot be removed from them, whether in favour of the Federal court or of (purely) provincial courts. Although Parliament and provincial legislatures respectively can confer on these courts jurisdiction that was exercised by superior courts at Confederation (in 1867), they cannot, pursuant to MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, make these grants of jurisdiction exclusive.

Originalism seldom, if ever, appears unalloyed in Canadian constitutional law. Thus, as I wrote in the post on the Labour Conventions Reference linked to above, Lord Atkin’s reasons not only rely on the original meaning of the provision at issue, but are also “mindful of principle and of practical concerns.” Blaikie, for its part, uses an originalist approach to interpretation of the term “constitution of the province,” but then switches to living constitutionalism in order to answer “the question whether ‘regulations’ issued under the authority of acts of the Legislature of Quebec are “Acts” within the purview of s. 133,” holding that  “it would truncate the requirement of s. 133 if account were not taken of the growth of delegated legislation” since 1867. Still, a fair reading of these decisions must acknowledge how important originalist reasoning is to them.

Very tentatively, I am inclined to think that this is unavoidable. We wouldn’t have an entrenched constitutional text that prevails over ordinary legislation unless we thought that the moment of its enactment had some special importance―otherwise it is not clear why decisions taken then must carry greater weight than those reached more recently. And if that moment had and still has some sort of special importance, then so, plausibly, have the ideas or practices that prevailed then. The temptation to refer to them might be too strong to avoid. This is very sketchy, I know, but, I hope, enough for now.

UPDATE: In the interest of shameless self-promotion, I mention that I took on another myth of the Canadian constitution, the one contrasting our “peace, order, and government” with the Americans’ “life, liberty and pursuit of happiness” here.

5 thoughts on “Original Myth

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