Earlier this\nmonth, I had the true privilege of taking part in a discussion with Justice\nDavid Stratas of the Federal Court of Appeal, who is one of Canada\u2019s most\nprominent jurists, on the subject of statutory and constitutional\ninterpretation. The conversation was part of the Runnymede Society\u2019s annual Law\n& Freedom Conference. <\/p>\n\n\n\n
Justice Stratas and I covered a lot of ground, including the basics of statutory interpretation, the justification for the textualist approach, the perils of purposive analysis, the living tree doctrine, and more. Our talk kicked off what, in my opinion, proved to be the best Law & Freedom Conference to date. The entire conversation and the excellent questions that followed can now be viewed on YouTube<\/a>. <\/p>\n\n\n\n While Justice Stratas and I did not get into the weeds on whether constitutional interpretation should be \u201coriginalist\u201d – and while I would never want to speak for him \u2013 the methodology we endorsed throughout the conversation is, in my view, implicitly originalist. By \u201coriginalist,\u201d I don\u2019t mean to suggest that either one of us was advocating a narrow interpretive approach based on the intentions or expectations of the framers; but rather that judges should interpret text based on traditional principles of statutory interpretation. One of these principles is that \u201c[t]he words of a statute must be construed as they would have been the day after the statute was passed\u2026\u201d[1]<\/a> <\/p>\n\n\n\n This \u201coriginal meaning rule,\u201d while falling out of fashion in the constitutional realm with the advent of the living tree doctrine four decades ago, continues to inform the interpretation of ordinary statutes. The Supreme Court has reaffirmed the rule on numerous occasions, most recently in the 2013 decision, McLean v. British Columbian, <\/em>stating that \u201cwords must be given the meanings they had at the time of enactment.\u201d[2]<\/a> The reason for employing the original meaning rule in the statutory sphere is obvious: if we seek to understand the meaning of the words the legislature has enacted, it only makes sense to understand what those words meant at the time they were enacted<\/em>. One could theoretically be a textualist and simultaneously reject originalism, but in practice, the search for textual meaning is almost invariably the search for its original meaning. <\/p>\n\n\n\n Justice Stratas and I both took the view that constitutional interpretation in Canada should be viewed essentially as a form of statutory interpretation. The nature of certain constitutional provisions may necessitate a broader reading, but fundamentally one is conducting the same sort of exercise. Unlike the U.S. Constitution, which is arguably of a distinct character from ordinary statutes, Canada\u2019s constitutional documents are statutes that were enacted by the British Parliament. They should therefore be interpreted as one would interpret a statute, and this includes applying the original meaning rule.<\/p>\n\n\n\n This view that the\nConstitution should be construed essentially as a statute has deep roots in\nCanadian constitutional jurisprudence. In Bank\nof Toronto v. Lambe, <\/em>the Privy Council stated that courts should\ninterpret the B.N.A. Act <\/em>\u201cby the same\nmethods of construction and exposition which they apply to other statutes.\u201d[3]<\/sup><\/a>In that case, the issue was the meaning\nof the phrase \u201cdirect taxation\u201d in section 92(2). The Privy Council emphasized\nthat \u201cthe question is a legal one, viz., what the words mean, as used in this\nstatute\u201d[4]<\/sup><\/a>and could not be answered with\nreference to modern economics. The Privy Council opted for the definition\nfamously offered by the 19th<\/sup> century philosopher, John Stuart Mill,\nas this was \u201clikely to have been present to the minds of those who passed the\nFederation Act.\u201d[5]<\/sup><\/a>\n<\/p>\n\n\n\n As I have argued elsewhere<\/a>, the decision in Edwards v. Canada<\/em>, known to many as the Persons Case, did not represent a break from this methodology. While the decision is famously known for giving birth to the living tree metaphor, its reasoning was dry and textualist. Indeed, the Privy Council affirmed the Lambe<\/em> decision, qualifying it only to the extent that constitutional provisions should be afforded a \u201clarge and liberal\u201d construction, contrary to penal and taxing statutes, which should be interpreted strictly.[6]<\/a> Just three years after Edwards <\/em>was handed down,<\/em> a unanimous Supreme Court reaffirmed that the B.N.A. Act <\/em>should be construed \u201caccording to the ordinary canons of construction\u201d (with no indication that the binding precedent in Edwards<\/em> had affected or even qualified that rule).[7]<\/sup><\/a> The Privy Council and Canadian courts would continue to treat the B.N.A. Act <\/em>as a statute subject to the original meaning rule for another five decades after Edwards <\/em>was decided. <\/p>\n\n\n\n It was only in the late 1970s that the Supreme Court\nbegan to turn to the new \u201cliving tree\u201d doctrine, reinventing the Edwards<\/em> decision in the process. As late as 1975, the B.C. Court of Appeal\ncould state correctly that, unlike the living constitution approach then\npopular in the United States, Canadian courts were not permitted to engage in\n\u201ca philosophical and political discussion that extends progressively beyond the\nordinary meaning of the words.\u201d[8]<\/sup><\/a> <\/p>\n\n\n\n One of the common criticisms leveled against originalism is that it necessitates \u201cfrozen concepts,\u201d which prevents the Constitution from responding to societal change. This, with respect, is a strawman argument. While an originalism based on original intent or original expected applications can fairly be criticized for tying modern society to the dead hand of the past, the textualist original meaning rule is far more flexible. This interpretive principle ensures that while the meaning<\/em> of the term is fixed, its specific interpretation <\/em>or application <\/em>can change over time.<\/p>\n\n\n\n As Ruth Sullivan\nexplains, the original meaning rule can be applied in two separate ways. In\nsome situations, a court will adopt a \u201cstatic\u201d approach, meaning that the\noriginal interpretation <\/em>of a\nprovision governs. In other contexts, the courts will adopt a \u201cdynamic\u201d\napproach by conceiving of the original meaning more abstractly as \u201coriginal\nsense\u201d or \u201coriginal definition,\u201d and thereby allowing new phenomena to come\nwithin the ambit of the word.[9]<\/a> In determining\nwhich approach to take, courts should have regard to the character of the\nlegislative language and the degree of discretion that it confers upon the\ninterpreter.[10]<\/a><\/p>\n\n\n\n This analysis easily lends itself to the constitutional realm.[11]<\/a> As the Constitution was meant to govern society over an indefinite period of time, constitutional provisions should generally garner a more dynamic approach, though this will depend on the particular term or provision. By way of example, the term \u201cbanking\u201d in s.91 of the Constitution Act, 1867<\/em> conveys something fairly specific and its meaning is further limited by the other enumerated powers in ss. 91 & 92. But, at the same time, the term is fairly open-ended and is part of a general legislative distribution scheme. \u201cBanking\u201d should therefore be afforded a relatively dynamic interpretation, such that new methods and types of banking will come within its meaning. The Privy Council specifically addressed this issue in Alberta (Attorney General) v Canada (Attorney General)<\/em>.[12]<\/sup><\/a> In that decision, Viscount Simon correctly noted that \u201c[t]he question is not what was the extent and kind of business actually carried on by banks in Canada in 1867, but what is the meaning of the term itself in the Act<\/u>.\u201d[13]<\/sup><\/a><\/p>\n\n\n\n The Fathers of Confederation clearly never conceived\nof credit cards when they granted Parliament the banking power. However, since\na bank\u2019s issuing of credit cards is fundamentally related to credit, which is\nan historic banking activity, it makes no difference that the practice did not\nexist in 1867. On\nthe other hand, this dynamic approach should not be used as an invitation to\nunmoor the provision from its original meaning. It is now commonplace for banks\nto underwrite homeowner and motor vehicle liability policies. While Parliament perhaps\npossesses the legislative authority to delineate the scope of a bank\u2019s\nparticipation in the insurance market, it ought not to be permitted to regulate\nthe conduct of banks and customers within<\/em>\nthat market. The underwriting of insurance policies has no connection with\ncredit dealing or any other historical activity carried on by banks. What is\nmore, insurance contracts already existed at the time of Confederation and were\nshortly thereafter designated as falling under the province\u2019s exclusive\nauthority to make laws relating to property and civil rights.[14]<\/sup><\/a>\n<\/p>\n\n\n\n The history of the criminal law power provides a nice\nillustration of the basic distinction between a properly dynamic approach to\noriginal meaning, on the one hand, and a non-originalist \u201cliving tree\u201d approach\non the other. In the Board of Commerce<\/em>\ncase,<\/a> Lord Haldane stated that Parliament\u2019s power\nto make criminal law was limited to situations \u201cwhere the subject matter is one\nwhich by its very nature belongs to the domain of criminal jurisprudence\u201d\u2013 in other words, to the specific type\nof crimes that existed at the time the Act was passed in 1867.[15]<\/sup><\/a>\nThis approach was overly static as it appeared to fix the specific\ninterpretation of criminal law in 1867 and thus prevented Parliament from\nresponding to social, economic and technological developments. For this reason,\nthe Privy Council broadened its interpretation a decade later in the Proprietary Articles Trade Association[16]<\/sup><\/strong><\/sup><\/a>\n<\/em>case, which the Supreme Court then refined in the Margarine Reference<\/em>. Rand J.\u2019s test in the Margarine Reference<\/em> correctly recognized that the essential meaning\nof criminal law is \u201ca body of prohibitions\u201d[17]<\/sup><\/a>\nthat serve a traditional criminal law purpose, such as public peace, order, security,\nhealth and morality. In other words, it matters not whether the crime itself\nexisted in 1867; what makes a law proper criminal legislation is that it is\ncaptured by the broad meaning of criminal law as used in s.91(27). This is a\ndynamic approach, but one that remains faithful to the original meaning. The\nbroad and essential meaning of \u201ccriminal law\u201d remains the same, but this\noriginal meaning can be applied dynamically to new external circumstances. <\/p>\n\n\n\n This dynamic originalist approach can be contrasted\nwith the non-originalist approach the Court has taken in some of its more\nrecent decisions. While the traditional\ntest is still applied for the most part, several decisions have upheld laws\nthat either lack the prohibition\/penalty dichotomy,[18]<\/sup><\/a> or that were not enacted for a\ntraditional criminal law purpose.[19]<\/sup><\/a> These decisions raise the very real\nquestion of whether the Supreme Court has broadened the criminal law power\nbeyond its original meaning, which has empowered Parliament to encroach upon\nthe exclusive sphere of the provinces to regulate property and civil rights.<\/p>\n\n\n\n In the Charter <\/em>context, a dynamic originalist approach would enable the Charter <\/em>to keep apace with societal developments, while also ensuring that the nature and limits of the rights themselves remain fixed. Freedom of association could thus encompass new types of associations, but would be interpreted as an individual freedom, not a collective right. The phrase \u201cin particular\u201d in s.15 would allow for new analogous grounds, but those grounds must be concern characteristics that are actually immutable. The state could raise new policy concerns that did not exist in 1982 at the s.1 stage, but it would always bear the onus of justifying a rights limitation and could not rely upon so-called \u201cCharter <\/em>values,\u201d which are found nowhere in the Charter<\/em>\u2019s text.\u00a0 <\/p>\n\n\n\n Several commentators have argued in the last few years that Canada should embrace constitutional originalism. There has been little discussion, however, of what exactly this would mean. Much work remains to be done in this regard, but as a starting point, it is my respectful submission that the courts should treat constitutional texts fundamentally as statutes to be interpreted in accordance with traditional principles of statutory interpretation. <\/p>\n\n\n\n Both in the statutory and constitutional realm, the\ncourts should look at the ordinary meaning of the words in their entire\nstatutory context and use the traditional tools of statutory interpretation \u2013\nwhat are often known as the \u201ccanons\u201d \u2013 to discern the meaning of the words. One\nof these canons, as discussed, is that the meaning of statutory language\nremains fixed and that words should be construed as they would have been when\nthe statute was first enacted. And while \u201cpurpose\u201d plays a role, it should, as Justice\nStratas argued, be discerned from the text itself. Courts should be wary of engaging\nin an inquiry of the framer\u2019s supposed intent, whether in the context of the\nConstitution or an ordinary statute. Evidence extraneous to the text itself\nshould be utilized carefully and sparingly and only to resolve ambiguity in\nwords, not to justify an extra-textual purpose.<\/p>\n\n\n\n This, I believe, is what Justice Stratas and I both were advocating at the recent Runnymede Society conference. It is an approach with deep roots in our constitutional tradition and was the dominant form of constitutional interpretation for most of Canadian history. <\/p>\n\n\n\n In the B.C.\nMotor Vehicles Reference, <\/em>the Supreme Court expressly adopted the living\ntree approach to the interpretation of the Charter<\/em>,\ndespite the Charter <\/em>having been\nenacted only three years earlier. The Court appeared to foreclose any further\ndebate on the subject. But as Professor Leonid Sirota and Benjamin Oliphant\nhave persuasively argued, the Supreme Court\u2019s approach since then has been\nmulti-faceted and inconsistent.[20]<\/a> In the rights realm, the\nCourt is usually content with the living tree \u2013 or even post-living\ntree<\/a> \u2013 approach, but in other contexts, such as the historical\nbargain sphere, the Court takes a much more originalist view. The problem is\nthat the Supreme Court has offered little guidance in terms of which approach\nis appropriate in a given context, and more particularly, what each approach\nentails from a methodological perspective.<\/p>\n\n\n\n Indeed, as Justice Stratas correctly noted during our\nconversation at the Law & Freedom Conference, the debate in Canada over how\nto interpret the Constitution is far from over; in fact, it has only just\nbegun. <\/p>\n\n\n\n Notes<\/em><\/p>\n\n\n\n [1]<\/a> Sharpe v Wakefield<\/em> (1888) 22 QBD\n239, aff\u2019d [1891] AC 173).<\/p>\n\n\n\n [2]<\/a> McLean v. British Columbia (Securities Commission)<\/em>, [2013] 3 SCR\n895 at para 46.<\/p>\n\n\n\n [3]<\/a> Bank of Toronto v. Lambe, <\/em>[1887] JCJ No 1 at para 1 [\u201cLambe<\/em>\u201d]. As RCB Risk notes, the \u201cmethods\nof exposition\u201d were the rules of statutory interpretation and specifically\nMaxwell\u2019s rule that \u201cthe object of all judicial interpretation is to determine\nwhat intention is either expressly or by implication conveyed by the language\nused.\u201d Thus, the \u201cmethods of exposition\u201d prima\nfacie <\/em>refer to textualist methodology. See RCB Risk, A History of Canadian Legal Thought: Collected Essays<\/em>, eds, G\nBlaine Baker & Jim Phillips (Toronto: University of Toronto Press, 2006) at\n54.<\/p>\n\n\n\n [4]<\/a> Ibid <\/em>at para 7.<\/p>\n\n\n\n [5]<\/a> Ibid <\/em>atpara 10.<\/p>\n\n\n\n [6]<\/a> Reference re: British North America Act, 1867 s. 24, [1929] JCJ No 2 at paras 44 & 45<\/p>\n\n\n\n [7]<\/a> Charlottetown (City) v Foundation Maritime Ltd.<\/em>,[1932] SCR 589<\/p>\n\n\n\n[8] R v Miller and\nCockriell<\/em>, [1975] BCJ No 1040, para 161.<\/p>\n\n\n\n [9]<\/a> See Ruth\nSullivan, Sullivan on the Construction of\nStatutes<\/em>, 6th ed. (Markham, ON: LexisNexis Canada, 2014) at paras.\n6.16-6.22. This approach is similar to the \u201cconnotation\u201d vs \u201cdenotation\u201d <\/p>\n\n\n\n [10]<\/a> Ibid, <\/em>at para 6.24<\/p>\n\n\n\n [11]<\/a> Indeed, it\nvery much resembles the connotation-denotation\ndistinction<\/a> popular in Australian constitutional interpretation. <\/p>\n\n\n\n [12]<\/a> Alberta (Attorney General) v Canada (Attorney General),<\/em> [1947] JCJ\nNo 5.<\/p>\n\n\n\n [13]<\/a> Ibid <\/em>atpara 14 [emphasis\nadded]. To be sure, this is a difficult task in practice, though there is much\nto be said for Duff C.J.\u2019s definition of a banker as a \u201cdealer in credit.\u201d Canadian Pioneer Management Ltd. v Saskatchewan\n(Labour Relations Board)<\/em>, [1980] 1 SCR 433.<\/p>\n\n\n\n [14]<\/a> See Citizens Insurance Co of Canada v Parsons, [1881] UKPC 49 at 6-7.<\/em><\/p>\n\n\n\n [15]<\/a> Re Board of Commerce Act 1919 and the Combines and Fair Prices Act 1919<\/em>,\n[1921] UKPC 10, at para 11.<\/p>\n\n\n\n [16]<\/a> Proprietary Articles Trade Association v Canada<\/em> (AG), [1931] UKPC\n11.<\/p>\n\n\n\n [17]<\/a> Reference re Validity of Section 5 (a) Dairy Industry Act<\/em>, [1949]\nSCR 1 at para 49 [Margarine Reference<\/em>].<\/em><\/p>\n\n\n\n [18]<\/a> R v Hydro-Quebec<\/em>, [1997] 3 SSCR 213; Re Firearms Act<\/em>, [2000] 1 SCR 783.<\/p>\n\n\n\n [19]<\/a> RJR-MacDonald v Canada<\/em>, [1995] 3 SCR 199.<\/p>\n\n\n\nThe Original Meaning Rule<\/strong><\/h4>\n\n\n\n
Originalism in Constitutional Jurisprudence<\/strong><\/h4>\n\n\n\n
A \u201cDynamic\u201d Approach to Original Meaning<\/strong><\/h4>\n\n\n\n
Toward a Canadian Originalism<\/strong><\/h4>\n\n\n\n
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