Originalism may be coming to Canada
Constitution historically seen as a living tree
When U. S. President Donald Trump nominated Amy Coney Barrett for the open seat on the U.S. Supreme Court he was hoping to score another victory for a certain type of constitutional interpretation.
Originalism, which means using the original understanding of the constitution as the main guide to its interpretation, will soon be dominant on the American court if Barrett is approved by the Senate.
In Canada, though, it’s hard to find high-profile originalists on the bench or even in the country’s law schools. A few experts have written, here and there, about how the death of Canadian originalism has been greatly exaggerated but it says something about the country’s legal landscape that this argument has to be made.
Things may be shifting, though.
In a ruling on a motion before the Federal Court of Appeal this week, Justice David Stratas took the opportunity to urge restraint on judges who may be inclined to grant “benediction” to their own personal views by including them in rulings. The ruling caused a minor sensation among law nerds in Canada, especially those who see originalism as a desirable restraint on judges.
It is widely argued that Canada’s living tree doctrine, which allows interpretation of the Constitution to evolve with the times, has been ingrained in the country since the decision in the 1929 Persons case, which decided women were allowed to sit in the Senate.
The idea of the living tree was decreed by the Judicial Committee of the Imperial Privy Council in the United Kingdom which, before 1982, could overturn the Canadian Supreme Court.
“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits,” wrote Lord Sankey, in the Persons decision. Since then, the Supreme Court has heard constant mentions of the living tree doctrine in decisions and arguments.
For originalists, they are up against a brick wall of institutional support for the living tree Constitution but they have been chipping away at Canada’s legal monoculture for years and, now, they seem to be making some progress.
“It’s a discussion and a debate that has not been had in Canada enough,” said Stratas, at an event hosted by the Runnymede Society last year. “We need to have a thoughtful discussion and debate about how to interpret constitutional provisions.”
A Canadian Scalia
The late Supreme Court Justice Antonin Scalia was a key promoter of originalism in the United States, with his larger- than- life personality and engaging prose in his decisions. Stratas has been quietly doing similar work in Canada.
In a relatively obscure dissent at the Federal Court of Appeal, Stratas wrote that there is a limit on what can be expected of the courts.
“Should I do the Minister’s job, interpret the subsections and write up the reasons the Minister should have written? No,” wrote Stratas. “I do not work for the Minister. I am not the Minister’s adviser, thinker, or ghostwriter. I am an independent reviewer of what the Minister has done.”
At the Runnymede event last year, Stratas made a direct argument for some form of originalism in Canada and disputed the notion that the living tree doctrine is universally accepted. In fact, Stratas argued, the living tree was rarely mentioned for decades after the Persons decision in 1929 until it was rediscovered in the 1980s.
“The Supreme Court, like an archaeologist dusts this off and says ‘Aha, the Constitution is a living tree.’ And they ran with it,” said Stratas. The actual quote from the 1929 decision describes the Constitution as a living tree that grows “within its natural limits.”
“That seems to have been lost,” said Stratas. “They plucked out half the quote.”
Like Scalia, Stratas makes the originalist argument with a plea for humility on the bench and a sense that unelected judges shouldn’t be doing the work of legislators. And Stratas makes the point that if a society was starting from scratch and went looking for some benevolent, unelected ruler to “do justice and be fair and do what you think personally is best,” that lawyers would be uniquely unsuited for the role.
“A narrow- minded lawyer... with bucks stuffed in their pockets and their bank accounts pregnant with money is probably the last person we would choose for that job,” said Stratas. “Our job is not to do what is right. Certainly not in a Judge Judy sense. We’re lawyers. We are to apply doctrine, we are to interpret laws and we are to assist the court in applying them to people fairly and impartially.”
When it suits
Law professors Benjamin Oliphant and Leonid Sirota argued in a 2016 paper that, contrary to popular wisdom, Canadian constitutional jurisprudence is filled with originalist reasoning.
“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,” the paper reads. But the version of originalism that is rejected by the Canadian law community is an ancient version of a philosophy that has been refined over the last several decades, the professors argue.
In a recent lecture, Barrett, the U. S. Supreme Court nominee, explained the new American thinking on how originalism has evolved.
“Originalists have two basic commitments. One is that the meaning of the law is fixed as of the time it is ratified. And that the original meaning of that law controls, if it is discernible,” said Barrett. But even the constitution will have some open- ended language, like the word “reasonableness,” which allows originalist judges some wiggle room, said Barrett.
And as originalists seem to be getting less inflexible, Oliphant points out that most justices, even the ones who would shudder at the idea of being called originalist, are happy to use the framers’ intent when it suits their argument. He points to a 2007 Supreme Court decision which uses the intent of the framers and the living tree doctrine in a single paragraph.
“According to such rea
soning, it’s difficult to see what conclusion could not be reached. If it was in the framers’ contemplation, great, if not, that works too,” wrote Oliphant. “The common refrain that originalism, in all its various forms, is merely an American oddity with no influence in Canadian jurisprudence, is at best an exaggeration.”
Scalia’s influence
The rise of originalism in the United States recently has been meteoric. Barrett was a clerk to Scalia and she has argued that the charismatic judge was the key promoter of originalism.
In his public lectures, books, and well- written decisions on the court, Scalia argued constantly that it was human nature for judges to get carried away with the “evolutionary” view of the constitution.
“The other view is enormously attractive to judges, because it empowers them to do good things. They’re not wicked people, they have a view of what ought to be and this view of the living constitution enables them to say,
‘ If it ought to be, it is,’” said Scalia, in an interview with Charlie Rose.
“That is the great attraction of the other philosophy. The living constitution judge is a happy fella. You always reach a result you like,” he argued.
In Scalia’s view, the originalist judge lived a harder life, forced to make agonizing decisions that had outcomes he found undesirable or even alarming.
In a lecture, Barrett noted that although Scalia likely held typical Republican tough- on- crime views, he was constantly voting with the liberal judges in favour of the rights of criminals because that’s where the constitution took him. Scalia also voted with the liberal justices to affirm that Americans have the right to burn the flag as a matter of free expression, a decision that was “very painful” for him, she said.
Beyond the living tree
Scalia’s big fear was that unelected judges would start doing the work of the
country’s elected representatives, but his critics point out that the job carries huge responsibilities either way.
“Justice Scalia asks what gives a judge the special wisdom to evolve the Constitution over time. Of course the same question can be asked about how the judges can divine the original meaning of a document written 230 years ago,” wrote former Canadian Supreme Court Justice Ian Binnie.
Scalia and Canadians sympathetic to his ideas argue that it’s easier for a living tree justice to get carried away with an evolving constitution. Some in Canada fear that the Supreme Court has already gone down that road, past the living tree and into an outcome- based philosophy.
“The Supreme Court seems to have gone from originalism, to living tree and now they seem to be passed even living tree,” said Asher Honickman, a lawyer and founder of the legal think tank Advocates for the Rule of Law, in an interview with National Post. “They’re no longer even worried
about the original purpose or the historical understanding. They’re not trying to reconcile modern society with history anymore. It’s just purely: let’s interpret this right as we want to interpret this.”
Stratas said that this is one of his concerns “as a judge who wants to obey the Supreme Court of Canada.”
“I’m not sure there really is a consistent method of interpretation. I would like that predictability and I think litigants deserve it,” said Stratas, at the Runnymede event.
Honickman has noticed that the court been mentioning the living tree doctrine less and less in its decision. He fears that the court may be simply opting for a practical, “results- oriented” manner of decision-making, the thing that Scalia feared all along.
“It must be conceded that a living tree doctrine is still preferable to no doctrine at all,” wrote Honickman in an online publication.