Yesterday, Sean Fine published a provocative piece in the Globe, as he is wont to do, on a new appointment to the Ontario Court of Appeal.  As is typical in the media discussions around constitutional interpretation, ”˜originalism’ is characterized as a conservative and aberrant American preoccupation that has been soundly and uniformly rejected in Canadian law, in favour of the more informed and civilized ”˜living tree’ doctrine.  This is undoubtedly the orthodox position in Canada.

In support of this popular wisdom, one could note that the Supreme Court of Canada has frequently adopted a progressive, living-tree interpretation of the Canadian constitution, which tends to be seen as the diametric opposite of an ”˜originalist’ approach to interpretation.  The living-tree approach has been often applied, famously starting with the Persons Case and on to cases like Blaikie (at 1029-30),  Reference re Same-Sex Marriage (paras 22-9), Canada (AG) v. Hislop (paras 94-6)), and many others. Very early in the life of the Charter, in BC Motor Vehicle Reference, the Court determined not only that it should not be bound by the framers’ intent, but that those intentions should be given very limited weight in seeking to understand the meaning of the vague terms contained in the Charter, notwithstanding that it was a mere few years old at the time (see paras 38-53). (Of that case, Peter Hogg has quipped that ”œwhile Americans have debated whether the ”˜original understanding’ should be binding, Canadians have debated whether evidence of the ”˜original understanding’ should even be disclosed to the Court!”)

Indeed, in one case, Mr. Justice Iacobucci went so far as to say ”œ(t)his Court has never adopted the practice more prevalent in the United States of basing constitutional interpretation on the original intentions of the framers of the Constitution”.  So the notion that originalism has no purchase in Canada is certainly understandable. I happen to think it’s wrong.

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Briefly, a disclaimer: originalism is actually a body of various constitutional theories that exist on numerous planes and spectrums (see Professor Lawrence Solum’s brief explainer here). There are roughly as many versions of originalism as there are proponents (and critics, for that matter).  Some originalists think that the framers intentions should govern; others think that the original public understanding of the terms should govern; others still think the general intentions of the framers should govern, but not their specific intentions as to how a provision should be applied in concrete cases; and so on.  Some originalist theories are simple (and simplistic) and others are sophisticated and nuanced.  Indeed, the broad strokes of originalist thought are so capacious that it can, with some difficulty, accommodate a wide range of viewpoints, such that there’s a healthy debate in the US over whether everyone is an originalist, in some sense, including leading progressives. But I will say no more about this, other than one generalizes about ”˜originalism’ at his or her own peril.

That out of the way, the first point I should make is that the Supreme Court of Canada’s favoured approach to constitutional interpretation, the purposive approach – which I’ve written about here – is based at least in part on the notion that the Courts should be guided by the intentions of those who wrote, designed or voted upon the provisions.  Words on paper do not, strictly speaking, have any will or agency, and thus can have no independent ‘purposes’ or ‘intentions’.  On one view at least, seeking to determine the purpose of a given provision is another way of trying to ascertain what the persons who wrote or voted on it – namely, the framers or legislators – were trying to achieve.

Indeed, Chief Justice Lamer – the author of BC Motor Vehicle Reference, no less – seems content with consulting the framers’ purposes, in cases like B. (R.) v. Children’s Aid Society of Metropolitan Toronto:

Although it is recognized that through judicial interpretation the courts are called upon to play an important creative and necessary role, which indeed enables the law to change and adapt constantly to our society, nevertheless such interpretation must be strictly limited and circumscribed by the guidelines laid down by the Constitution or the legislation that our country, through its elected leaders and representatives, has adopted. Thus while, as this Court has repeatedly said, we must adopt a large and liberal interpretation of the Charter, this does not in any way mean that its provisions can be given whatever interpretation might be deemed useful or convenient. The flexibility of the principles it expresses does not give us authority to distort their true meaning and purpose, nor to manufacture a constitutional law that goes beyond the manifest intention of its framers. I am therefore entirely in agreement with McIntyre J., who wrote, at p. 394 of Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313:

. . . while a liberal and not overly legalistic approach should be taken to constitutional interpretation, the Charter should not be regarded as an empty vessel to be filled with whatever meaning we might wish from time to time. [at 337-338; emphasis added]

Indeed, one could argue that the key factors in undertaking a purposive interpretation – the historical origins of the rights and freedoms, the textual context in which they are found, and the language chosen to articulate the specific right or freedom – are, at least in some sense, a means of determining what the framers intended in drafting and enacting certain provisions in certain terms. As a result, it can sometimes be difficult to draw a bright line between a ”˜purposive’ approach – undoubtedly the leading approach to constitutional interpretation in Canada – and an approach dependent upon the intention of the framers.

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That being said, I will briefly canvass some decisions of the Court, in the hopes of dispelling the notion that the Court (or at least all of its members) have been in any sense consistent or uniform in discarding the intention of the framers at the outset or throughout the process of constitutional interpretation.  I have cobbled this together in about 30 minutes, so lets see how many errors I can make.

Let’s start with R. v. Ferguson, where Chief Justice McLachlin, writing for a unanimous court, discussed the importance of seeking to achieve the intentions of the framers in the context of section 24(1) of the Charter, which deals with constitutional remedies.

The jurisprudence of this Court allows a s. 24(1) remedy in connection with a s. 52(1) declaration of invalidity in unusual cases where additional s. 24(1) relief is necessary to provide the claimant with an effective remedy… However, the argument that s. 24(1) can provide a stand-alone remedy for laws with unconstitutional effects depends on reading s. 24(1) in isolation, rather than in conjunction with the scheme of the Charter as a whole, as required by principles of statutory and constitutional interpretation. When s. 24(1) is read in context, it becomes apparent that the intent of the framers of the Constitution was that it function primarily as a remedy for unconstitutional government acts.

The highly discretionary language in s. 24(1), ”œsuch remedy as the court considers appropriate and just in the circumstances”, is appropriate for control of unconstitutional acts.  By contrast, s. 52(1) targets the unconstitutionality of laws in a direct non”‘discretionary way:  laws are of no force or effect to the extent that they are unconstitutional.

The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case”‘by”‘case remedies (…)

However one defines the ”œrare” case, discussed more fully below, the risk is that the role intended for s. 52(1) would be undermined and that laws that should be struck down ”” over-inclusive laws that pose a real risk of unconstitutional treatment of Canadians ”” would remain on the books, contrary to the intention of the framers of the Charter. [paras 63-66; emphasis added; see also Greater Vancouver Transportation Authority, at para 87]

One might object that, in this passage anyway, the framers’ intentions did little analytical work, other than to serve as a rhetorical device following a conclusion that had been drawn on other grounds.  However, I would suggest that in itself is meaningful, as it seems to reveal that the Court thinks what the framers were intending to achieve should be relevant or important in understanding the words and phrases used in the Constitution.

The framers’ intentions seemed to play a more significant, if not dispositve, role in R. v. Cornell, where LeDain J., again speaking for a unanimous court, stated the following in the course of interpreting section 7 of the Charter:

I agree with this contention. I do so on the basis of the clear intention of the framers of the Charter as to when the constitutional protection of the right to equality before the law was to take effect, not on the basis of the maxim expressio unius est exclusio alterius, which was applied in v. Speicher, Kivell and Rodney (1983), 1983 CanLII 330 (BC SC), 6 C.C.C. (3d) 262, to which we were referred by counsel for the respondent and the interveners. As this Court has observed, there may be some overlap between s. 7 and other provisions of the Charter. It would be wrong, however, in my opinion, in view of the clear expression of legislative intention, to give effect to such protection as s. 7 might otherwise afford to the right to equality before the law in a case to which s. 15 could not apply because it was not in force at the relevant time. … If that issue were to be determined under s. 7 of the Charter on the basis that equality before the law was a principle of fundamental justice within the meaning of that provision, it would inevitably have the effect of determining the issue for the purposes of s. 15 as well, since the analysis, including the application of s. 1, if necessary, would be essentially the same under the two provisions. This further reinforces my conviction that it would be wrong to apply s. 7 in the present case, in view of the clear expression of legislative intention that the constitutional protection of the right to equality before the law was not to take effect until April 17, 1985. [at para 25; emphasis added]

The relevance of the framers purposes or intentions has arisen implicitly elsewhere.  Consider R. v. Prosper, which addressed whether a constitutional right to counsel should be read into section 7 of the Charter. In that case, Madam Justice L’Heureux”‘Dubé – no reactionary conservative, she – accepted that the courts could not blithely ”˜living-tree’ their way to a result not in the contemplation of the framers:

Before us, counsel for the appellant Cyril Patrick Prosper in Prosper, supra, and counsel for the respondent Ross Nelson Matheson in Matheson, supra, referred to the « living tree » theory and argued that the Charter had grown to the point where state-funded duty counsel should be constitutionally guaranteed.  While the « living tree » theory would perhaps let us by-pass the will of the legislature, that theory is usually used to put right an interpretation which is no longer in accordance with the current socio-economic context (see, inter alia: …. I doubt it can be used to interpret a constitutional document, such as the Charter, which is still in its infancy at a time when the socio-economic context has not evolved.  Besides, the « living tree » theory has its limits and has never been used to transform completely a document or add a provision which was specifically rejected at the outset.  It would be strange, and even dangerous, if courts could so alter the constitution of a country.  Counsels’ arguments regarding the « living tree » theory in the particular context of this case are not appropriate. [emphasis added]

Chief Justice Lamer adopted a similar approach in Prosper, the reasoning of which relies on the notion that the framers turned their mind to a given right or freedom, and deliberately omitted a broader approach to that right or freedom, and that the framers’ intent in this respect should govern.

A form of originalism has been used in interpreting other provisions, notably the language rights sections of the Charter. Here’s the Court speaking, per curiam, in A.G. (Que.) v. Quebec Protestant School Boards:

 This set of constitutional provisions was not enacted by the framers in a vacuum. When it was adopted, the framers knew, and clearly had in mind the regimes governing the Anglophone and Francophone linguistic minorities in various provinces in Canada so far as the language of instruction was concerned. They also had in mind the history of these regimes, both earlier ones such as Regulation 17, which for a time limited instruction in French in the separate schools of Ontario””Ottawa Separate Schools Trustees v. Mackell, [1917] A.C. 62””as well as more recent ones such as Bill 101 and the legislation which preceded it in Quebec. Rightly or wrongly,””and it is not for the courts to decide,””the framers of the Constitution manifestly regarded as inadequate some””and perhaps all””of the regimes in force at the time the Charter was enacted, and their intention was to remedy the perceived defects of these regimes by uniform corrective measures, namely those contained in s. 23 of the Charter, which were at the same time given the status of a constitutional guarantee. The framers of the Constitution unquestionably intended by s. 23 to establish a general regime for the language of instruction, not a special regime for Quebec; but in view of the period when the Charter was enacted, and especially in light of the wording of s. 23 of the Charter as compared with that of ss. 72 and 73 of Bill 101, it is apparent that the combined effect of the latter two sections seemed to the framers like an archetype of the regimes needing reform, or which at least had to be affected, and the remedy prescribed for all of Canada by s. 23 of the  Charter was in large part a response to these sections. [at 79-80; emphasis added; see also Solski (Tutor of) v. Quebec (Attorney General), at paras 8-9, and the cases it cites.]

Most recently, in the Reference re Supreme Court Act, the majority relied heavily on the purported ”˜compromise’ achieved by the framers of the relevant sections of the Act in seeking to determine its proper meaning (see paras 46-59). Indeed, not only that, they sought guidance in statements made in the course of debating the various iterations of the Act, including those made by Senator Jacques-Olivier Bureau, Minister Télesphore Fournier, Joseph-Aldéric Ouimet, David Mills, Henri-Thomas Taschereau, and the amazingly-named Toussaint Antoine Rodolphe Laflamme, way back in 1875.  (Research assist to Professor Paul Daly.)  Although the Court technically started out by interpreting a mere statute – where the ”˜intention’ of the legislature is more often considered important – I include it in my list of constitutional cases relying on some form of ‘originalism’, because the Court subsequently elevated the relevant provisions to constitutional status, and more importantly, because it supports my argument.

Similarly, federalism cases are occasionally shot through with originalist reasoning.  See for instance Ontario Home Builders’ Association v. York Region Board of Education, interpreting section 91(3) and 92(2) of the BNA Act. The analysis here, as far as I can tell, is based entirely on the original intentions of the framers: ”œ(t)o do otherwise would, as the Privy Council pointed out in that case, be to permit Parliament to enter fields assigned to the provinces contrary to the intention of the framers of the Constitution” (see paras 93-99).  And in Consolidated Fastfrate Inc., Rothstein J’s approach for the majority – as the dissent pointed out – is predicated on the original intentions or purposes behind section 92(10)(a) (see paras 33-9, and para 89).  (One might question – along with L’Heureux”‘Dubé J. – why it is sensible to apply originalist reasoning to a document drafted and enacted 150 years ago, but not one drafted and enacted 35 years ago, but that’s another matter.)

In other cases, the Court has more self-consciously used originalist thinking, at least as a sort of jumping off point. In Reference re Employment Insurance Act (Can.), ss. 22 and 23,  the Court stated that  ”œ(o)n the one hand, no constitutional head of power is static.  On the other hand, the evolution of society cannot justify changing the nature of a power assigned by the Constitution to either level of government. » Anticipating our confusion, the Court immediately added that « (t)hese two statements are not contradictory”, and quoted Professors H. Brun and G. Tremblay as follows:

[translation] Ultimately, however, there is no inconsistency between dynamic interpretation and adherence to the original intent of the framers: in order for something to evolve, it must have a starting point.  See Reference re Prov. Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158, at pp. 180”‘87.  To determine the original intent of the framers, it is obviously necessary to start with a generous reading of the words they used, taken in their strictly legal context.  That context may also be expanded by having regard to elements ”œextrinsic” to it that are more historical than legal in nature.  [at para 40; emphasis is the Court’s]

Sometimes, a form of originalism appears in dissent.  In Weber v. Ontario Hydro, Iacobucci J. sought to rely on the framers’ intent in his interpretation of the term ”˜court of competent jurisdiction’ in section 24(1); indeed, he contrasted the majority approach with his own, « which focuses on the intention of those who drafted the Charter » (at para 5).  And in Canadian Egg Marketing Agency v. Richardson, McLachlin CJ and Major J. focused again on the historical purposes leading to the enactment of s. 6 mobility rights, attempted to follow the purposes that ”œCanada’s constitutional framers have sought to ensure”,  and purported to take an approach which was necessary to ”œto seize the intent of the framers of the Charter”. They continued as follows:

More fundamentally, however, it is not apparent why s. 6(2)(b) must be confined to the two situations outlined by Estey J. in Skapinker or what is gained by forcing the analysis over this judge-made hurdle.  The broad words of s. 6(2)(b) target any disadvantage in pursuing a living in any part of the country based on province of residence.  If the framers of the Charter had wanted s. 6(2)(b) to apply only to two categories of cases, it seems to me they would have said so.  They did not.  This leads me to conclude that we should not artificially narrow s. 6(2)(b).  I see no reason why s. 6(2)(b) should not catch, as its words suggest, any law or practice that has the object or effect of making it more difficult to pursue a living in one province or territory than another. [at para 140; emphasis added]

We are all getting tired now, so just one more example. In BC Health Services, in the course of expanding the right to collectively bargain as a right derivative of freedom of association, the majority noted at para. 40 that ”œ(a)ssociation for purposes of collective bargaining has long been recognized as a fundamental Canadian right which predated the Charter », which to the majority, suggested that « the framers of the Charter intended to include it in the protection of freedom of association found in s. 2(d) of the Charter.”  (Of course, one could draw the opposite inference, as was done in Prosper: that because the right in question was familiar but not expressly included in the Charter, it was not intended to be covered). And in another passage, the majority referred to both the living tree doctrine and some form of presumed original intent-ism in a single paragraph, in seeking to justify the use of both old and new international instruments as a guide to interpreting the Charter:

The fact that a global consensus on the meaning of freedom of association did not crystallize in the Declaration on Fundamental Principles and Rights at Work, 6 IHRR 285 (1999), until 1998 does not detract from its usefulness in interpreting s. 2(d) of the Charter.  For one thing, the Declaration was made on the basis of interpretations of international instruments, such as Convention No. 87, many of which were adopted by the ILO prior to the advent of the Charter and were within the contemplation of the framers of the Charter.  For another, the Charter, as a living document, grows with society and speaks to the current situations and needs of Canadians.  Thus Canada’s current international law commitments and the current state of international thought on human rights provide a persuasive source for interpreting the scope of the Charter. [at para 78; emphasis added]

According to such reasoning, it’s difficult to see what conclusion could not be reached.  If it was in the framers’ contemplation, great, if not, that works too.

This list is by no means exhaustive, but suffices for my purposes. I should clarify that my point here is not to say that the Courts should employ originalist reasoning or rely on the framers’ intentions, at any level of abstraction.  It is only to suggest that 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.