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The True American Import to Canada is the Living Tree, not Originalism

Constitutional originalism, which holds that the meaning of the Constitution remains constant with the passage of time, does not enjoy a great deal of support Canada. It is dismissed as an American phenomenon, and a distastefully conservative one at that. The Canadian Constitution, we are told, is a “living tree” and it is therefore the responsibility of judges to rediscover its meaning with every passing generation, and in some cases, with each passing year.

It is for this reason that the appointments of Justices Grant Huscroft and Bradley Miller – two proponents of originalism – have generated such an unusual amount of public interest and media scrutiny, including a recent Globe article that suggested that Prime Minister Stephen Harper has remade Canada’s Supreme Court into a much more conservative institution in only a decade. The article offers little in the way of statistical analysis and a significant portion of the discussion is, not surprisingly, devoted to the appointments of Justices Huscroft and (to a lesser extent) Miller and their “U.S.-style” originalism.

Such characterizations of originalism as a right-wing American creation are admittedly common, but demonstrably false. Originalism is neither American nor inherently conservative. In fact, it was the dominant method of interpreting Canadian statutes — including the Constitution — for the first century and more after Confederation. Contrary to popular wisdom, the true American import to Canada is not originalism, but the living constitution.

For most of Canadian history, our judges accepted that they were neutral umpires tasked with interpreting laws in a principled fashion, and that policy considerations were best left to the people’s elected representatives. This method of judging, known today as “formalism,” was considered an essential feature of the separation of powers and the rule of law.

Among the principles developed by the formalists was the original meaning canon – which held that “the words of a statute must be construed as they would have been the day after the statute was passed,” since this was the only way to give effect to the intention of the legislature. Early Canadian decisions confirmed that the BNA Act, being a legal statute, should be interpreted by discerning the original meaning of its text (allowing of course for technological innovations and other external developments).

The case of Edwards vs. Canada — which dealt with whether women were “qualified persons” who could be summoned to the Senate — is often held up as the moment when Canada rejected originalism and adopted the “living tree” doctrine. But as a number of recent commentators, including Justice Miller, have noted, the Privy Council based its decision on the meaning of “qualified persons” at the time the BNA Act was passed in 1867. The reference to the “living tree” in Edwards was simply meant to convey that, as of 1867, Canada was no longer bound by the British common law, which had long excluded women from public life.

Edwards was barely cited in the five decades following its release and never for the proposition that the meaning of the Constitution changes over time.  The phrase “living tree” did not appear in a single Canadian decision between 1936 and 1972 and did not appear in a Supreme Court decision between 1931 and 1979. In 1937, the Privy Council re-affirmed that Canada’s Constitution must retain its “original structure,” a sentiment that was echoed by the Supreme Court in 1950.

Canada remained steeped in originalism even as its neighbour to the south began to experiment with the “living constitution.” In 1972, an Alberta judge lamented that “the courts here (as distinct from the United States Supreme Court), cannot legislate.” Three years later, the British Columbia Court of Appeal commented that, unlike the United States, Canadian courts were not permitted to engage in “a philosophical and political discussion that extends progressively beyond the ordinary meaning of the words.”

If there is one prime minister who did change Canada’s judicial culture, it is most definitely not Stephen Harper; it is Pierre Trudeau. Trudeau appointed 10 new judges to the Court, completely remaking the institution during his premiership. Most of the new judges were proponents of the American school of “legal instrumentalism,” which effectively called on judges to become agents of social change. This new judicial philosophy began to take hold in the 1970s and by the end of the decade it had become entrenched at the highest court. In 1980, the Supreme Court gave birth to the now-dominant “living tree” doctrine, fundamentally misinterpreting the Edwards decision in the process, and ignoring Canada’s long history of originalist interpretation.

While there are flaws with any interpretive methodology, originalism – when applied flexibly in the face of new external circumstances and pragmatically yielding to accepted precedent – is by far the most predictable, democratic and principled approach to judging (which is tellingly why it continues to govern the interpretation of ordinary statutes). As the history of the United States demonstrates, a “living tree” Constitution can grow in any number of ideological directions. A century ago, the U.S. Supreme Court held that “liberty of contract” was a constitutional right, despite being found nowhere in the text, and invalidated a slew of labour laws on that basis. In Canada, the right to strike is currently in vogue, but the right to bear arms could be popular tomorrow. And the rights already entrenched could just as easily be read down or marginalized, which, according to Justice Miller, has already happened to freedom of religion.

If there is any doubt that originalism protects rights, one need only look to Justice Huscroft’s first major constitutional decision at the Court of Appeal. Justice Huscroft found that the defendant’s right to privacy under the Charter had been violated when police entered his condominium complex without a warrant and spied on him from the common areas, reasoning that if police are permitted to monitor an individual in this fashion, “then the concept of reasonable expectation of privacy means little.”

Justice Huscroft did not suddenly become a bleeding heart liberal; he simply, and correctly, applied the law. There is nothing more that we should expect or desire from our judicial appointments.


This article was originally published in the National Post and is being reprinted courtesy of the National Post.