The 'Living Tree' and Origin A List Constitutional Interpretation in Canada

DRAFT Bradley W.
Miller January 7, 2009
BEGUILED BY METAPHORS: THE LIVING TREE AND ORIGINALIST CONSTITUTIONAL INTERPRETATION IN CANADA
I.
INTRODUCTION
Constitutional interpretation in Canada is dominated by the metaphor of the living tree. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, frozen at the moment of adoption.1 But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars, and are in fact expressly rejected in new originalist theories that have been developed principally (but not exclusively) in the United States over the past 20 years.2 The Canadian constitutional academy has, for the
1
Eg, Peter W. Hogg, Constitutional Law of Canada, 5th ed., vol. 2, looseleaf (Scarborough, Ontario: Thomson Carswell Limited, 2007) at 36-26 and ff, 60-8 [Hogg, Constitutional Law, vol. 2.]; Ian Binnie, Constitutional Interpretation and Original Intent in Grant Huscroft & Ian Brodie, eds., Constitutionalism in the Charter Era (Markham, Ontario: LexisNexis Canada Inc.: 2004) 345 at 348 [Binnie, Original Intent], [original intent] has never gained much judicial or scholarly support, and is unlikely to do so in the future. For stark judicial rejections of originalism, see (o)riginalism is not part of the Canadian constitutional tradition., Criminal Lawyers Association v. Ontario (Ministry of Public Safety & Security) (2007), 86 O.R. (3d) 259 (C.A.) at paras. 113-19; (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. Rather, in Canada, constitutional interpretation rests on giving a purposive interpretation to the wording of the sections. Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327 at 409 (Iaccobucci J. (dissent)) [Ontario Hydro]. 2 For example, an engagement with Keith Whittington, Constitutional Construction: Divided Powers and Constitutional and Meaning (Cambridge, Mass.: Harvard University Press, 199); Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, N.J.: Princeton University Press, 2004); Lawrence Solum, Semantic Originalism, (August 20, 2008) Illinois Public Law Research Paper No. 0724, Jack Balkin, Abortion and Original Meaning, (2007) 24 Const. Commentary 291, or Jeffrey Goldsworthy, Originalism in Constitutional Interpretation, (1997) 25 Fed. L. Rev. 1. The exception has been originalist critiques of judicial activism from F.L. Morton and Rainer Knopff, The Charter Revolution and the Court Party (Peterborough, Ont.: Broadview Press, 2000) and Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox Liberal Constitutionalism (Don Mills, Ont.: Oxford University Press, 2001), and the scholars who take up originalist-style arguments as part of their arsenal against Morton, Knopff, and Manfredi: e.g. James B. Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers Intent (Vancouver: UBC Press, 2005) [Kelly, Governing with the Charter] and W.J. Waluchow, A Common Law Theory of Judicial Review: The Living Tree (New
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Electronic copy available at: http://ssrn.com/abstract=1272042
DRAFT Bradley W. Miller January 7, 2009
most part, denounced originalism without engaging with (or even acknowledging) originalist scholarship since the mid-1980s. This neglect of originalist scholarship is understandable; if, as is sometimes assumed, originalism is barred as an interpretive method by the Canadian courts,3 then it would seem at least excusable for constitutional lawyers (if not scholars) not to bother with it.4 The corollary is a certain complacency in Canadian constitutional theory; there has been no reason for judges or scholars to defend or develop the doctrine of living tree interpretation and constitutional lawyers have been content to recite metaphors instead of developing actual doctrine.5 And so the Canadian courts continue, on a perfunctory basis, to affirm living tree constitutional doctrine6 and denounce originalism7 without providing much of an account of what they are accepting or rejecting. But challenges are essential to the health of any theory. Are there questions that the dominant tradition lacks the resources to answer? Can it incorporate insights from the challenger? Where do the theories agree? Where are the fault lines of disagreement? These questions force an examination not only of the challenger, but also of the established tradition. A fresh encounter with a rival tradition could provoke proponents of living tree interpretation to develop a more robust version of that doctrine, either
York: Cambridge University Press) [Waluchow, A Common Law Theory]. None of these works, however, engage with the arguments of the new originalists. 3 Brian Leiter: Canadians have a constitution, but originalism is barred as an interpretive method. Originalism Redux Redux (with a reply to Solum), (19 August 2006), online: Brian Lieters Law School Reports <http://leiterlawschool.typepad.com/leiter/2006/week33/index.html> (last accessed July 14, 2008). 4 Or as expressed by Binnie, J., the courts have given little incentive for such work to be done, Original Intent, supra note 1 at 172. 5 With illuminating and powerful exceptions such as Waluchow, A Common Law Theory, supra note 3 and David Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004). 6 Most recently in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 [Marriage Reference]. 7 Eg, Justice Binnies terse dismissal of the originalism philosophy of Scalia J. in R. v. Tessling, [2004] 3 S.C.R. 432 at para. 61
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Electronic copy available at: http://ssrn.com/abstract=1272042
because it provokes fresh questions that require new answers, or because the challenger provides resources that can be severed and incorporated into the dominant tradition. There is a need to identify the genuine areas of disagreement and agreement between Canadian non-originalist interpretation and the New Originalism, and in this paper I set out to clear some ground to make such an encounter possible. What I offer is a prefatory study of Canadian living tree interpretation that must precede the necessary engagement with New Originalist scholarship. In what follows, I construct an account of the current commitments of Canadian living tree constitutional theory and doctrine, pausing to engage with some theoretical arguments that have been made in its defence and to note the Supreme Courts attitudes towards originalism. The intention is to establish the central commitments of living tree constitutional doctrine, in order to encourage subsequent investigations into the whether the Courts opposition to originalism is more apparent than real, whether a rejection of the New Originalism necessarily follows from the fact of the Supreme Court of Canadas rejection of the old originalism, and whether constitutional theory in Canada can benefit from the work being done by the New Originalists and their critics. In what lies ahead, I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.
II.
THE CENTRAL COMMITMENTS OF LIVING TREE INTERPRETATION
While much has been written about the necessity and desirability of living constitutional interpretation in Canada,8 the legal doctrine of living tree constitutional interpretation remains underdeveloped in Canada. The first order of business, then, is not to ask whether living constitutionalism is desirable, defensible, or even inevitable9, but rather to consider the more mundane question about what are the central commitments of Canadian constitutional interpretive doctrine. What is the interpretive methodology at the core of living constitutional adjudication in Canada? To get an answer, we must ask
what the Supreme Court of Canada understands itself to be doing when it is interpreting the Constitution? What do we observe it doing? As I suggested in the previous section, there seem to be four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent of framers in interpreting the constitution; and (4) that the presence of other constraints on judicial interpretation. I will explore each of these in turn.
1.
Progressive interpretation
The doctrine of progressive interpretation is held by the Supreme Court of Canada to be one of the most fundamental principles of constitutional interpretation.10 Unfortunately, there is no canonical definition of progressive interpretation, and the
Eg. Aileen Kavanagh, The Idea of A Living Constitution, (2003) 16 Can. J.L. & Jur. 55 [Kavanagh, Living Constitution]. At greatest length and sophistication in Canada by W.J. Waluchow. 9 Hogg, Constitutional Law, vol. 2., supra note 1 at 36-26. 10 Marriage Reference, supra note 8 at para. 22. See also Binnie J., Original Intent, supra 347-48 and Hogg, Constitutional Law, vol. 2, supra note 1 at 60.1(f).
various definitions provided by the courts and its commentators do not address distinctions that are central to locate it against originalist constitutional theory: for example, distinctions between semantic claims about the linguistic meaning of constitutional texts and normative claims about the construction of constitutional rules, and distinctions among the various ways in which the meaning of a constitutional text can fixed or frozen (through original intention, original public meaning, and original expected application, etc.). So the meaning of progressive interpretation needs to be sorted out with some care. The central metaphor of progressive interpretation in Canada the constitution as living tree had its debut in Edwards v. Attorney-General for Canada (1930): The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits Their Lordships do not conceive it to be the duty of this Board it is certainly not their desire to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs.11 Edwards was concerned with the question of whether the phrase fit and qualified person eligible to serve in the Senate per s.32 of the British North America Act, could include female persons as well as male. The Privy Council overturned the Supreme Court of Canada and held that the word persons was ambiguous between male and female, and that there was no good reason to why it should not be read to include female persons. The government of Canada had argued that persons could only mean male persons, because at the time of the enactment in 1867, the clear understanding was that
11
Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.) (the Persons case) per Lord Sankey L.C. at 136 [Edwards].
only male persons were eligible for public office. The standard reading of Edwards is that the Privy Councils progressive interpretation displaced the originalism of the Supreme Court.12 The doctrine of progressive interpretation was later applied to divisions of powers cases13 and to the interpretation of the Canadian Charter of Rights and Freedoms.14 Abstract definition of progressive interpretation is seldom attempted by the Supreme Court of Canada beyond exhortations such as a head of power must continually adapt to cover new realities.15 Such statements, without more, cannot tell us what it is that is being adapted (the actual linguistic meaning of the text or a legal rule derived from it), what sort of realities require the adaptation, what the boundaries of permissible adaptation are, and what other considerations temper this requirement. We can
understand that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life16 without knowing how these realities are to be accommodated. We can understand that
progressive interpretation is the means by which the Constitution succeeds in its ambitious enterprise, that of structuring the exercise of power by the organs of the state in
Binnie describes the case as a standing rebuke to an overly deferential attitude to originalism. Binnie, Original Intent, supra note 1 at 366. 13 Marriage Reference, supra note 8; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669 (overturning Que CA for using an originalist approach instead of a progressive approach) at paras. 9, 10 [Employment Insurance Reference]. Also paras. 45-46; Canadian Western Bank v. Alberta, 2007 SCC 2, [2007] 2 S.C.R. 3 at para. 23. 14 Law society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357. A thorough overview of the spread of progressive interpretation to the various constitutional instruments has been provided by Binnie, Original Intent, supra note 2 See also, Vicki C. Jackson, Constitutions as Living Trees? Comparative Constitutional Law and Interpretive Methods, (2006) Fordham L. Rev. 921 at 954 [Jackson], and Grant Huscroft, A Constitutional Work in Progress? The Charter and the Limits of Progressive Interpretation, in Grant Huscroft & Ian Brodie, eds., Constiutionalism in the Charter Era (Markham, Ontario: LexisNexis Canada Inc.: 2004) at 413 [Huscroft, A Constitutional Work in Progress?]. 15 Marriage Reference, supra note 8 at para. 30. 16 Ibid., at para. 22.
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times vastly different from those in which it was crafted17 and still be unsure about the sorts of differences that are contemplated, and the restraints on power that they will justify. Peter Hogg writes that progressive interpretation entails that the language of the Constitution Act, 1867 is not to be frozen in the sense that it would have been understood in 1867. Rather, the language is to be given a progressive interpretation so that it is continuously adapted to new conditions and new ideas.18 This could be
understood as the rejection of the originalist thesis that the linguistic meaning of the words of the constitutional text are fixed at the time of enactment.19 But what does Hogg mean by language being continuously adapted? It seems unlikely that he is making a claim about semantics or linguistic meaning: e.g. that courts can change the linguistic meanings of the actual words used in the Constitution Act, 1867 to meanings that would be better suited to new conditions and ideas. In fact he argues that the doctrine of progressive interpretation does not liberate the courts from the normal constraints of interpretation,20 which of course includes construing the semantic meaning of the text. A more likely possibility is that Hogg is not making a claim about linguistic meaning at all. Instead, he could be addressing a question of legal meaning. Larry Solum helpfully identifies four steps involved in reasoning from the semantic content of a constitutional text to the actual decision made in any legal dispute: (1) the discovery of the linguistic meaning of the text; (2) the translation of the linguistic meaning into a rule
17 18
Ibid., at para. 23. Hogg, Constitutional Law, vol. 2, supra note 1 at 60.1(f). 19 This would be broader than the rejection of original intent, and would extend to, for example, original meaning originalism as well. 20 Hogg, supra, 15.9(f),
of law; (3) the application of the legal rule to the concrete facts at hand; and (4) the moral decision of whether to take the action that the law requires.21 When urging that
constitutional language not be frozen, Hogg could be misspeaking and not be making a claim about constitutional language at all. Instead, he could be making a claim at the second stage: that the particular legal rule that is constructed should not be settled once and for all at the time the constitution is drafted. So when Hogg argues that (t)he principle of progressive interpretation is flatly inconsistent with originalism, the whole point of which is to deny that the courts have the power to adapt the Constitution to new conditions and new ideas,22 we have to be careful about what he means by adapt the Constitution. If he means change the linguistic meaning, then such a doctrine would be clearly inconsistent with originalist interpretation. It would also be impossible a court cannot alter a linguistic fact. But if adapt the Constitution means change constitutional law or change the legal rule drawn from the text, then it is not clear that what he advocates is necessarily inconsistent with all (or any) schools of originalism. The Court is similarly on shaky ground when it states that frozen concepts reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.23 It is this latter reading of progressive interpretation that it is opposed to fixed constitutional rules, not fixed linguistic meaning that seems consistent with the actual practice of the Court, at least in Edwards and the division of powers cases discussed below.
21 22
Solum, Readers Guide 3. Ibid. 23 Marriage Reference, supra note 8 at para. 22.
To understand the Courts doctrine of progressive interpretation it is more useful to observe the Courts concrete decisions, rather listen to the Courts own explanations or rationale for progressive interpretation.24 There are many examples of how this doctrine functions on the ground, particularly with respect to division of powers cases.25 The
Court has been asked to sort out disputes over jurisdiction over new technologies such as telephones,26 television,27 aeronautics,28 and atomic energy.29 The Court has also allowed for the federal government to rely on the criminal law power to legislate with respect to matters (such as anti-competitive activities) that were not crimes in 1867, thus expanding the scope of the federal parliaments criminal law power.30 The Court has had to
consider the effect of changes to the social economy in interpreting whether the federal jurisdiction over Employment Insurance31 could validly extend to leaves of absence for maternity (eg the relatively recent phenomenon of women reentering the workforce after childbirth).32
A particularly unhelpful statement comes from the concurring reasons of LaForest J. in Ontario Home Builders' Association v. York Region Board of Education, [1996] 2 S.C.R. 929 at paras. 145-46, which cites Hoggs question-begging rationale for progressive interpretation: (a)n inflexible interpretation, rooted in the past, would only serve to withhold necessary powers from the Parliament or Legislatures, and appeals to the difficulties in obtaining constitutional amendments when needed. See also the discussion in Huscroft, A Constitutional Work in Progress?, supra note 20 at 417-27. 25 That the progressive interpretation doctrine should be better developed with respect to the Constitution Act, 1867 over the Constitution Act, 1982 is not surprising: the greater the passage of time, the more changes in society one would expect, and the greater the accumulation of precedents addressing them. 26 For instance, Parliaments legislative competence in respect of telephones was recognized on the basis of its authority over interprovincial undertakings in s. 92(10)(a) even though the telephone had yet to be invented in 1867: Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52 (P.C.). Marriage Reference, supra note 8 at para 23. 27 Capital Cities Comm. Inc. v. C.R.T.C., [1978] 2 S.C.R. 141. 28 Johannesson v. West St. Paul, [1952] 1 S.C.R. 292. 29 Ontario Hydro, supra note 1. 30 Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310 (P.C.) at 324. Marriage Reference, supra note 8 at para 23. 31 Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, s. 91(27), reprinted in R.S.C. 1985, App. II, No.5. s. 91(2)(a). 32 Employment Insurance Reference, supra note 19.
24
We can note here that in all of the above cases, change means change to legal rules, not to semantic meaning. There are two relevant types of change at play here that drive the change to the legal rule.33 First is what is often described as social change. Examples of this kind of change dominate the list set out above. These are changes in the common life of a community that, whatever their cause, require some sort of government response (perhaps co-ordination, perhaps prohibition). These include challenges brought by technical change. These changes to society brought by new technology could not have been (or at any rate, were not) foreseen by the drafters of the constitution, and thus jurisdiction over them was not explicitly assigned in the Constitution Act, 1867. In a
federal state, it might be obvious that a government needs to take steps to facilitate the orderly provision of a new technology such as telephone services or air travel or atomic energy. But which government has jurisdiction might be a matter of dispute. When confronted with such social change, a government will interpret the heads of power enumerated in the Constitution and come to a conclusion about whether it has been given jurisdiction. If it concludes that it has jurisdiction, and no one (either another government or an interested party) disputes the conclusion, then the matter is at an end. But in the rare event of a dispute that culminates in a reference to an appellate court or a trial, a court will interpret the Constitution progressively in the sense that the matter that did not exist in 1867 will be allocated to one or more of the enumerated heads of power on a principled basis.34
33 34
See Kavanagh, Living Constitution, supra note 11 at 79-86. Note that in the Canadian constitutional order all legislative power is understood to be allocated to one or other of the federal or provincial governments.
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Also included in the category of social change are changes that impinge on common life that are not in any way tied to technical innovation. There are, of course, an enormous number of changes that have occurred in Canadian society since 1867, though not all of them (or even most) affect common life in a manner and degree that warrant legislative action (eg the rise and fall of the suburban bowling alley), let alone give rise to jurisdictional disputes. But there are social changes, such as the return of women to paid employment after childbirth,35 that have both provoked legislative responses and a challenge to the vires of those responses. It makes no difference whether these new social phenomena are generated by new technologies or otherwise. The key fact is that they could not have been (or simply were not) anticipated and provided for when the constitution was enacted.36 Therefore, when a court adjudicates over the allocation of jurisdiction over these sorts of matters, it is engaging in a sort of gap-filling of the eiusdem generis variety. It renders the
Constitution Act, 1867 more determinate by allocating responsibility for new matters under existing heads of power which can reasonably bear it. It does not create new heads of power and assign them to the government it thinks best. It is not surprising, then, that this sort of progressive interpretation is widely accepted, amongst supporters and detractors of the living constitution alike.37 Originalists, whatever their
denomination, seem to have no problem with this sort of modest gap-filling; we can use as Exhibit 1 Scalia J.s reasons for judgment in District of Columbia v. Heller: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not
35 36
Employment Insurance Reference, supra note 19. Kavanagh, Living Constitution, supra note 11 at 79-86. 37 Ibid., at 80.
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interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 3536 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.38 So we have to be cautious of Hoggs claim that (t)he principle of progressive interpretation is flatly inconsistent with originalism, the whole point of which is to deny that the courts have the power to adapt the Constitution to new conditions and new ideas.39 Progressive interpretation, at least in the weak form practiced historically by
the Supreme Court of Canada, should pose no problem in principle for the originalist. What about the second form of change, described as a change in moral values40 or moral judgment? Could this be the type of change that the Court seeks to accommodate by banishing frozen concepts reasoning? Kavanagh includes in this category changes in common beliefs about what counts as a cruel punishment, about who should be allowed to participate in the democratic system, whether gender or sexual orientation should be grounds for discrimination in employment or whether there is a right to have an abortion under certain circumstances.41 Kavanagh argues that
originalists are wrong to treat these two species of change differently: (j)ust as judges are required to keep abreast of economic, scientific, and technological advances and not be oblivious to them in their judgments, they should be in tune with moral development
38
39
District of Columbia et. al. v. Heller, No. 07-290, 554 U.S. __ 2008, at *8 (U.S. June 26, 2008). Hogg, Constitutional Law, vol. 2, supra note 1 at 60.1(f). Hogg does not cite any exponents of this particular brand of originalism, one that ignores the possibility that the framers were content to leave the detailed application of the Constitution to the courts of the future. However unlikely it is that any scholar held the position criticized by Hogg when he first made it in 1987, such a position had been entirely overtaken by originalist scholarship by the time Hogg repeated the words in the 2007 update to the looseleaf edition of his text. 40 Kavanagh, Living Constitution, supra note 11 at 80 (relying on Greenberg and Litman) 41 Ibid.
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and change.42 Kavanagh here draws a distinction between conventional morality (which she says that judges must ignore) and fundamental moral development43 or genuine moral progress. I will have to more to say later on the proposed division between conventional morality and fundamental moral development, which could be unstable. It is more
important for the present, however, to draw attention to another division: the division between judicial review on federalism grounds and judicial review under a bill of rights. It is not safe to assume that the techniques which apply to assessing the one can be transferred to the other. From the brief survey conducted so far, it seems that the incremental changes to the interpretation of heads of power have been justified as authorized responses to social changes, usually provoked by new technology. For the living constitution proponent, changes to interpretations of bills of rights seem to rest on a different footing; they are not social changes in the sense described above, but rather challenges to moral judgments that have hitherto been institutionalized through legislation. Challengers seek to use bills of rights to dismantle the institutionalized moral judgment, from thence to provoke a social change (eg a licence to use recreational drugs,44 to receive assistance in committing suicide,45 to abort46). Bills of rights are used precisely because of the recalcitrance of the majority in refusing to agree to what the challenger seeks. What then is the significance of moral change for this sort of
constitutional interpretation? If the change is in how a majority would now understand
42 43
Ibid., at 84-85. Ibid.,at 85; equivalently, underlying moral development in society at 86. 44 R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571. 45 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. 46 R. v. Morgentaler, [1988] 1 S.C.R. 30 [Morgentaler].
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life, liberty and security of the person, and if the old morality effectively blocks the new interpretation, then there would seem to be no reason why the majority could not enact its will, either through ordinary legislation or constitutional amendment, though this may be cumbersome and time-consuming. If the change is to the morality of a minority, what reason can a judge have to prefer and to recognize this new morality? Certainly, it would have nothing to do with the bare fact that it is the morality held by some minority, whoever that minority might be. Is there anything antithetical to originalist interpretation in any of this? It would seem entirely possible that an originalist theory of constitutional interpretation could compel the conclusion that the Canadian Charter instructs its interpreters to construct legal rules from essentially contested concepts such as equality, principles of fundamental justice, etc., and that current day interpreters are not bound by the imperfect grasp of these principles at any previous point in time. Such a conclusion would have to wait for a proper engagement with originalist constitutional theory.
2.
The purposive approach to interpretation
A second central interpretative commitment of the Supreme Court of Canada (at least with respect to the interpretation of Charter rights) is purposive interpretation. Most simply stated, it is the principle that every right or freedom is to be ascertained by an analysis of the purpose of such a guarantee.47 The purposive approach (described as consonant with the classical principles of American constitutional construction48) is
47 48
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344 [Big M Drug Mart]. Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 156 [Hunter].
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not to be contrasted with some supposedly purposeless approach. Rather, by purposive, the Court stressed that the Charter is to be interpreted so as to fulfil the purpose of the guarantee and securing for individuals the full benefit of the Charters protection.49 The relevant meaning of a constitutional provision is thus stipulated to be its teleological meaning. But how is the purpose of the Charter to be determined? And in what sense is the Court using the word purpose? It is important to be clear that when the Court is determining the purpose of the Charter, it is not searching for the purpose or intention that the drafters of the Constitution had in mind, or that of the parliaments or legislative assemblies which enacted the Charter. Recall that the Court has specifically rejected original intent as an interpretive approach, arguing that the result of such an approach would be that: the rights, freedoms and values embodied in the Charter [would] in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing societal needs.50
In place of the framers` purposes, the Court employs the fiction that the Charter is an organic creature a living tree that has its own purpose which is neither the framers nor the Courts, nor any identifiable persons or groups. The purpose of the Charter is, in reality, a judicial construct, the product of an interpretation of the Charters abstract language. The Courts most elaborate meditation on the purposive methodology is set out by Dickson C.J. in Big M Drug Mart:
49 50
Big M Drug Mart, supra note 47 at 344. B.C. Motor Vehicle Act Reference, [1985] 2 S.C.R. 486 at 509.
15
This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charters protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore be placed in its proper linguistic, philosophic and historical contexts. 51
Although the Court returns to this passage whenever it gives an account of its interpretive methodology, it tends to reduce it to two points: (1) that interpretation of the Charter should be purposive (in the sense that it should be understood in light of the interests that it was meant to protect), and (2) that interpretation should be a generous rather than legalistic one. There is a tendency to further collapse these two points into one, as purposive interpretation is often wrongly understood as being synonymous with a wide or generous interpretation of rights. But, as Hogg highlights (and Dickson C.J. himself notes) there is no necessary connection between a purposive interpretation and a generous one, and the effect of a purposive interpretation may often be to narrow the scope of the
51
Big M Drug Mart, supra note 47 at 344 (Dickson CJ). At issue in Big M was whether a statute prohibiting retail trade on Sundays violated freedom of religion under s 2(a) of the Charter. The Court held that it did, and that the infringement could not be justified under s 1.
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right in question.52 Big M Drug Mart contains within it the seed of a much richer methodology than is expressed in the usual exhortation to a purposive and generous interpretation. In the lengthy passage reproduced at note 51, Dickson CJ explains that the Charter is to be interpreted by reference to(1) the character and larger objects of the Charter, (2) the language chosen to articulate the specific right or freedom, (3) the historical origins of the concepts enshrined, and (4) the purposes of the other specific rights. It should (5) aim at a generous interpretation, which should be tempered by (6) the proper linguistic, philosophic and historical contexts. That is, the interpreter is to be guided by fidelity to the text (read as a whole and not in isolation), is to consider the whole of the historical context of the right or freedom in question, and is to consider appropriate limits suggested by the linguistic, philosophical, and historical contexts (including the past and present commitments and policies of the state).53 What is clear from Dickson C.J.s meditation is that ascertaining the semantic meaning of the text is a first step towards understanding the purposive or teleological meaning. They are not mutually exclusive in this methodology. We should also note that the requirement to engage with the philosophical and historical context seems to be a
In the case of most rights, Hogg argues, the widest possible reading of the right, which is the most generous interpretation, will overshoot the purpose of the right, by including behaviour that is outside the purpose and unworthy of constitutional protection. Hogg, Constitutional Law, vol. 2, supra note 1 at 36.8(c). 53 Stphane Beaulac has argued that the methodology for Charter interpretation articulated by the Court is in fact no different from the Courts practice in ordinary statutory interpretation, see Stphane Beaulac, Linterpretation de la Charte: reconsideration de lapproche tlologique et reevaluation du role du droit international, in Gerald A. Beaudoin et Errol Mendes, eds., Canadian Charter of Rights and Freedoms, 4th ed (Markham, Ontario: LexisNexis Butterworths, 2005) 24.
52
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broad invitation to normative evaluation. In this passage (and others like it)54 the Court suggests that constitutional interpretation involves moral assessment with an eye to the public good. This analysis of linguistic, philosophical, and historical context is to be undertaken with a view towards serving the good of those who are intended to benefit from the Charter that is, all of the members of the political community. In some instances ascertaining the limits of the text and assessing the historical context are relatively simple matters. In determining the scope of freedom of religion in Big M Drug Mart, for example, Dickson C.J. interpreted s 2(a) of the Charter as a continuation of long-standing Anglo-Canadian political philosophy which began in the aftermath of the English civil war.55 He was able to reject the proposal that s 2(a) be read as incorporating an American establishment clause, on the grounds that nothing in the text supported such an interpretation.56 Similarly, in the context of s 15(1), it is clear from the text (and context) that s.15(1) of the Charter was intended by the framers to provoke a change in anti-discrimination law in Canada. The Canadian Bill of Rights57 (1960) had guaranteed equality before the law. This statutory guarantee applied only to federal law, and had been interpreted as providing only that the law would be administered equally. It was found not to guarantee equality of the law. In the years following the enactment of the Bill of Rights, this limitation was widely condemned. The of s 15(1) departs from the language of the Bill of Rights in that it provides for equality before and under the law and the equal protection and benefit of the law. The Court
54
Eg. historical, social and economic context R. v. Laba, [1994] 3 S.C.R. 965 at 1001,or fundamental values and traditions, philosophical and religious traditions and biological and social realities Egan v. Canada, [1995] 2 S.C.R. 519 at 536, per LaForest J. [Egan]. 55 Big M Drug Mart, supra note 47 at 344-45. 56 Ibid., at 339-41. 57 Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1985, App.III, s.1(b).
18
therefore held that s 15(1) is a broader right than the anti-discrimination provision of the Bill of Rights.58 It also seems clear from the fact that the framers had suspended
bringing s 15(1) into effect for three years after the rest of the Charter that they believed that it was necessary to provide legislatures with an opportunity to determine whether existing legislation complied with s 15(1). (It can also be argued that the absence of a similar delay in bringing into force other sections is evidence that the framers had no such concerns about the compatibility of existing legislation with other provisions of the Charter). Of course, the historical context is often highly controversial and one should not overstate the determinacy provided by the wording of the text. For example, even in the relatively clear case of determining that s 15(1) is to be interpreted as a broader guarantee than s 1(b) of the Bill of Rights, the question of how much broader is not settled either by the text or historical context.
3.
The role of original intentions/understandings/applications
The third feature of Canadian living tree constitutionalism is the thesis that the intentions of the framers (or perhaps the original meaning of the words, or the original expected applications of the Constitution) play some role in the interpretation of the Constitution.59 Even before we turn to the difficult question of what role is envisioned by the Court, it is often difficult to sort out what the Court (and its leading commentators)
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 170 (McIntyre J). The issue is not whether the intent of the originating body should be taken into account because no one who expects to be taken seriously would argue that it should not be. The issue is whether or not the framers intended a frozen rights approach to our political institutions and our rights and freedoms Binnie, Original Intent, supra note 1 at 347-48. Peter Hogg, Constitutional Law of Canada, 5th ed., vol. 1, looseleaf (Scarborough, Ontario: Thomson Carswell Limited, 2007) at 15.9(f) [Hogg, Constitutional Law, vol. 1.].
59 58
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mean when they are talking about the intentions of the framers. While the Court usually addresses the intentions of the framers, it sometimes uses obscuring metaphors that make it difficult to be sure.60 Other times, what it describes as the intentions of the framers are intentions about application, not textual meaning. The Court has stated that it is not bound by the various interpretations of Charter provisions offered by individuals however distinguished in the drafting process.61 Does this simply rule out the applications of the Charter that were proposed by the framers? Or does it also rule out original intention as to meaning of the text? Similarly, it is not uncommon for commentators to run together the concepts of intention, understanding, and application.62 This makes it difficult to state what the Courts position is and to determine how it maps onto current debates between originalist and non-originalist scholars. When we probe the Court and its leading commentators for their attitudes to originalist interpretation, there are some surprises. Justice Binnie, in his argument
against originalism, concedes a place for original intentions of the framers: (t)he issue is not whether the intent of the originating body should be taken into account because no one who expects to be taken seriously would argue that it should not be.63 The greater surprise is that the New Originalists such as Jack Balkin, Randy Barnett, Solum, and Whittington, who very much wish to be taken seriously, strongly disagree with
the past plays a critical but non-exclusive role in determining the content of the rights and freedoms granted by the Charter.Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 at 180 (McLachlin J.). 61 Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703 at para. 57 [Granovsky]. 62 Or, like Binnie J. in Original Intent, to mark the distinctions at the outset, and then proceed as though originalism and original intent were coextensive. 63 Binnie, Original Intent, supra note 1 at 347-48.
60
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Binnie J; they do not think that the original intentions of the framers can resolve the meaning of the constitutional text.64 The orthodox Canadian view is that while original intentions or understandings may be relevant to interpretation, the judge may decide that they have little or no weight. What they cannot do is bind.65 This restricted role for original intentions or
understandings is understood in the orthodox Canadian view as a rejection of the key originalist thesis.66 The canonical statement of the Courts attitude towards framers intentions is contained in Reference re BC Motor Vehicle Act. Justice Lamer canvassed the problem of determining the intentions of multiple authors and warned of the danger of interpreting the Charter with reference to original intentions (casting the interpretation of s. 7 in terms of the comments made by those heard at the Special Joint Committee Proceedings) such that the rights, freedoms and values embodied in the Charter in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing societal needs.67 The majority in BC Motor Vehicle Reference did not rule out the use of framers intentions. Rather, it held that framers intentions should be given minimal weight in interpreting the Charter.68
64 65
See Solum, A Readers Guide to Semantic Originalism and a Reply to Professor Griffin (37-39) At least, they cannot bind in the longterm: : (a)ll that progressive interpretation insists is that the original understanding is not binding forever. Hogg, Constitutional Law, vol. 1, supra note 62 at 15.9(f). 66 See, eg. Patrick Monahan: Originalism does not merely claim that the intentions of the framers deserve to be considered or even to be accorded presumptive weight in the interpretive process. The identifying feature of the originalist argument is the claim that the intentions of the framers should be conclusive in resolving textual ambiguity. If it is possible to ascertain how the framers would have applied a particular constitutional provision, then that interpretation must govern, regardless of any arguments or considerations to the contrary. Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell, 1987) at 74 67 B.C. Motor Vehicle Act Reference, supra note 4 at 507-509 (Lamer J.). 68 (T)he Minutes of the Proceedings of the Special Joint Committee, though admissible, and granted somewhat more weight than speeches should not be given too much weight. Para. 50-52.
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To give framers intentions even minimal weight requires that those intentions be assessed. Nevertheless (and despite the occasional judicial statement that a consideration of framers intentions is a necessary step in constitutional interpretation) the Courts usual practice is to make no reference whatsoever to framers intentions. There are several possible explanations for this. It may be that in most cases there is little
interpretation to be done. It may be a quick step from the language of the text to the conclusion that the framers intended for judges to settle for themselves the meaning of, say, equality or principles of fundamental justice.69 Or it might be a short step for judges to move from interpreting a text that establishes freedom of expression to a constitutional rule that all expression is protected constitutionally.70 Of course, many questions about interpretation could be settled by precedent, and it would not be necessary to revisit those precedents on every occasion.71 And, of course, at least in some cases, failure to engage with either original intentions or original understanding (even to accord them minimal weight) will be a straightforward judicial failure. Consider, for example, the Courts reading-in of sexual orientation as an analogous ground of discrimination in Egan v Canada (1995).72 The legislative record is clear that at the time of the drafting of the Charter, the relevant parliamentary committee considered and explicitly rejected a proposal to add sexual orientation as an enumerated ground of discrimination under s 15(1).73 However, the
69
Some argue that such omissions are the inevitable because the framers not only did not communicate their intentions about how particular sections of the Charter should be interpreted substantively, but in fact had no such intentions. See, for example, Kelly, Governing with the Charter, supra note 3. 70 Solum 71 Solum 72 Egan, supra note 54. 73 ...on the subamendment of Mr. Robinson (Burnaby) [part (d) of the subamendment, to add the words sexual orientation to Section 15 (1)] was negatived on a division of Yeas: 2 and Nays: 22. Minutes of
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intention of the drafters to exclude sexual orientation from s 15(1) (or indeed, as argued by James Kelly, the intention of the framers that the courts recognize sexual orientation as an analogous ground of interpretation when the time was right)74 did not factor at all in any of the three sets of reasons for judgment in Egan v Canada (1995), when the Court held sexual orientation to be an analogous ground of discrimination. Those purposes or intentions were not discussed even to be rejected.75 Although we do not often see the Court discussing original intentions or understandings in Charter analysis, it does happen, and Binnie J. also observes that the intentions of the Canadian and British politicians who were present at the creation of the B.N.A. Act have been invoked with surprising frequency in our constitutional cases.76 Nevertheless, Binnie J. dismisses these references as rhetorical flourishes paraded to confirm a view reached by other means.77 But there may be more behind these
invocations of original intent than Binnie J. suggests. On my review of the case law, judges appeals to original intent can be grouped into three categories: (1) the confederation bargain cases, (2) justification for dissent and for overturning precedent, and (3) the gratuitous reference cases. What can we learn from these?
(i) Confederation bargain cases
Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada (Hansard), 48:6 (29 January 1981) (Ottawa, Queens Printer, 1981). 74 Kelly, Governing with the Charter, supra note 98-102. 75 Note James Kellys argument that the decision to recognize sexual orientation as an analogous ground was in fact supported by the historical materials as a matter of original intent. 76 Binnie, Original Intent, supra note 1 at 375. 77 Ibid.
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The Confederation Bargain cases78 are those cases interpreting sections of the written Constitution that are commonly understood to have been the product of historic compromise rather than high principle.79 When interpreting the minority language and religious education provisions of the Constitution, the Court has (at least until recently) been much more concerned with original intentions than it is otherwise. For example, in interpreting s 23 of the Charter, the Court held:
Rightly or wrongly,and it is not for the courts to decide,the framers of the Constitution manifestly regarded as inadequate someand perhaps allof 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 Quebec80 Justice Beetz made the compromise/principle distinction explicitly: Unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle. Some of them, such as the one expressed in s. 7 of the Charter, are so broad as to call for frequent judicial determination. Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter, remain nonetheless founded on political compromise. This essential difference between the two types of rights dictates a distinct judicial approach with respect to each.81
Similarily, Wilson J. also appealed to the the basic compact of Confederation in interpreting s. 93(3) of the Constitution Act, 1867 as providing that rights and privileges already acquired by law at the time of Confederation would be preserved and provincial legislatures could bestow additional new rights and privileges in response to changing
See the discussion in Binnie, Original Intent, supra note 1 at 362-63. Of course, this reading overstates the degree to which the principled sections of the Charter are statements of pure principle rather than the product of an historical bargain. It also understates the degree to which the confederation bargain sections are themselves the product of a vision of the common good. 80 A.G. (Que.) v. Quebec Protestant School Boards, [1984] 2 S.C.R. 66 at 79. 81 Socit des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549 at 578.
79 78
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conditions in Reference re Bill 30.82 We should note, however, that it has been argued that the category of basic compact cases was repudiated by the Court in DoucetBoudreau v. Nova Scotia (Minister of Education)83 (2003), and that all Charter rights are now to be interpreted purposively.84
(ii) Dissents and overturning precedent A second category of appeals to original intent includes dissents85 and cases that overturn precedent.86 Justice Binnie makes light of reference to original intent in
dissenting reasons on the grounds that more often than not this is done to express judicial frustration with colleagues rather than to demonstrate the result of a systematic application of a serious doctrine.87 Assuredly, no judges on the Court are committed to
originalist interpretation there is no Canadian version of Justice Scalia. But then what is the cause of the short-lived attraction to original intent for judges who find themselves in a dissenting role? Justice Binnie suggests mere pique, but this seems implausible. Could it be that dissenting judges, having been called on to resolve a hard case in which the court could plausibly find for either the appellant or respondent, and having failed to persuade their colleagues and finding themselves in the minority, develop a sudden (and
[1987] 1 S.C.R. 1148 at para. 28. [2003] 3 S.C.R. 3 at para. 27: This Court has made it clear that the fact that language rights arose from political compromise does not alter their nature and importance; consequently, s. 23 must be given the same large and liberal interpretation as all Charter rights. 84 Stphane Beaulac, Linterpretation de la Charte: reconsideration de lapproche tlologique et reevaluation du role du droit international, in Gerald A. Beaudoin et Errol Mendes, eds., Canadian Charter of Rights and Freedoms, 4th ed (Markham, Ontario: LexisNexis Butterworths, 2005) 24 at 35-36. 85 Eg. Ontario Hydro, supra note 1 at 409. (Iaccobucci J. (dissent)), R. v. Prosper, [1994] 3 S.C.R. 236 at 287 [Prosper], Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, para. 5 (Iaccobucci J. (dissent)) 86 Eg. Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 [Health Services]. Although these are really two separate contexts, the appeals to original intent in these two contexts serve the same purpose and for this reason are analyzed together. 87 Binnie, Original Intent, supra note 1 347.
83
82
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perhaps fleeting) attraction to the moral authority of framers intentions? Comfortable in its numbers, the majority has no need to depart from standard procedure. But the
minority needs to locate its dissent in something more foundational than its usual sources and draws on the democratic credentials of original intent. Justice Binnie protests that we should not take such arguments at face value, as none of the judges are prepared to deploy this methodology consistently when in the majority. However, the majority will occasionally appeal to original intentions in constitutional cases on the very rare occasions when it is expressly overruling precedent.88 The Court seldom overturns its own interpretations of the Charter. Even less frequently does it expressly acknowledge that in so doing it is overturning a Charter precedent.89 One of those rare occasions is Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia90 (2007), where the Court overruled a 20 year old precedent that held that the Charters guarantee of freedom of association under s. 2(d) does not provide a right to collective bargaining.91 In justifying the change of course, the majority of the Court relied heavily on history and originalist style argumentation: (a)ssociation for purposes of collective bargaining has long been recognized as a fundamental Canadian right which predated the Charter. This suggests 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.92
88 89
I am grateful to Carolyn McKenna for making this observation. More usually, the Court will not signal that it has overruled a precedent, but will instead explain that the underlying facts have changed since the time the precedent was decided, and that this changed factual matrix is what drives the new result. See, for example, the Courts reconciliation of Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 with R. v. Burns, [1994] 1 S.C.R. 656, and its reconciliation of RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 and Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610 at para. 9. 90 Health Services, supra note 82. 91 Overruling Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367. 92 Health Services, supra note 82 at para. 40.
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There is no judicial frustration here. Why, then, the 30 paragraphs of history? Why cite statements made by the acting Minister of Justice before the Special Committee in 1981?93 The attraction to appeals to original intent in these circumstances, I suspect, is that it softens the apparent threat to the ideal of the rule of law that is posed by overturning a comparatively recent precedent. A court must be anxious that its
departures from precedent not only be principled and restrained, but that they appear to be principled and restrained. They do not want to look as though they have simply changed their minds, and will prefer to ground the change in direction in something more fundamental than the now abandoned precedent. The nations commitments under
international law has been taken to be one such source,94 and the original intentions of the framers appears to be accepted as another.
(iii)
Gratuitous references
93
Health Services, supra note 82 at para. 67: This established Canadian right to collective bargaining was recognized in the Parliamentary hearings that took place before the adoption of the Charter. The acting Minister of Justice, Mr. Robert Kaplan, explained why he did not find necessary a proposed amendment to have the freedom to organize and bargain collectively expressly included under s. 2(d). These rights, he stated, were already implicitly recognized in the words freedom of association: Our position on the suggestion that there be specific reference to freedom to organize and bargain collectively is that that is already covered in the freedom of association that is provided already in the Declaration or in the Charter; and that by singling out association for bargaining one might tend to d[i]minish all the other forms of association which are contemplated church associations; associations of fraternal organizations or community organizations.
(Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, Issue No. 43, January 22, 1981, at pp. 69-70) 94 And indeed the majority does rely on such commitments in Health Services, supra note 82 at paras. 6979 and in Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, para 10.
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The third and most frequently occurring example of reference to original intent is what we might call the gratuitous reference. It does not play a commanding role in the reasons for judgment, but is simply another voice being added to the chorus of reasons provided to support the courts judgment. Original intentions, in this sort of example, are never deployed if they pull against other reasons. This is simply the lawyers technique of marshalling all opinion that supports ones judgment, wherever that support may come from. Consider, for example, McLachlin Js majority judgment in R v Zundel (1992), in which she specifically rejected the Crowns interpretation of s 2(b) because she found it to be inconsistent with the intention of the framers.95 Other examples of this sort of reference abound.96 Intentions of framers are often cited, but
usually with a disclaimer that their views are not determinative of anything, and without any apparent methodology governing what weight they should be given.97 One instance of appeals to framers intent which we might expect to find but do not, is judges appeals to framers intent in order to justify the methodological decision to adopt living tree interpretation in the first place. Such argumentation is entirely absent, for example, in the Motor Vehicle Reference,98 Hunter v. Southam,99 and Big M Drug
To accept the proposition that deliberate lies can never fall under s. 2(b) would be to exclude statements such as the examples above from the possibility of constitutional protection. I cannot accept that such was the intention of the framers of the Constitution. R v. Zundel, [1992] 2 S.C.R. 731 at 755 (McLachlin J. for the majority) [Zundel]. 96 R. v. Collins, [1987] 1 S.C.R. 265, R. v. Morgentaler, supra note 46, R. v. Hebert, [1990] 2 S.C.R. 151, Mckinney v. University of Guelph, [1990] 3 S.C.R. 229, Granovsky, supra note 63, R. v. Finta, [1994] 1 S.C.R. 701, R. v. S. (R.J.), [1995] 1 S.C.R. 451, Zundel, supra note 79, Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, Sauv v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238, Employment Insurance Reference, supra note 19. 97 Granovsky, supra note 63 at para. 57. 98 B.C. Motor Vehicle Act Reference, supra note 4. 99 Hunter, supra note 48.
95
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Mart.100 Nevertheless, we can find such arguments made by Binnie,101 Hogg,102 and Kelly.103
4.
Limits to non-original interpretation
Perhaps the chief complaint levelled against living constitutionalism is that it is allows for ad hoc and unprincipled constitutional interpretation, that it lacks the resources to discipline or constrain its interpretations.104 Justice Scalia, for example, complains of the glaring defect that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution.105 Aileen Kavanagh objects that depictions such as these are distorting exaggerations.106 Properly understood, she argues, (t)he metaphorical idea of the Constitution as a living tree, emphasise(s) the creative dimension of constitutional adjudication, but (does) not endorse unconstrained, free-wheeling judicial creativity.107 Similarly, Hogg argues that living tree analysis must be anchored in the historical context of the provision.108
Big M Drug Mart, supra note 47. Binnie, Original Intent, supra note 1. 102 He argues that to the extent that we can know the framers intent, we know that they intended that we not be bound by framers intent: (i)t would be wrong to conclude that the principle of progressive interpretation is necessarily inconsistent with the intentions of the framers. What originalism ignores is the possibility that the framers were content to leave the detailed application of the Constitution to the courts of the future, and were content that the process of adjudication would apply to the text in ways unanticipated at the time of drafting. He continues with the argument that originalism is self-effacing: it is quite likely that the interpretive intention of the framers was something like the doctrine of progressive interpretation. Peter Hogg, The Charter of Rights and American Theories of Interpretation, 25 Osgoode Hall L.J. 87. See also Ronald Dworkins distinction between abstract and concrete intentions in A Matter of Principle (Cambridge Mass.: Harvard University Press, 1985) at 38, and discussion in Aileen Kavanagh, Original Intention, Enacted Text, and Constitutional Interpretation, (2002) 47 Am. J. Juris. 255 at 285. 103 Kelly, Governing with the Charter, supra note 3 at 89-90. 104 One should note that while the question of limiting judicial discretion may have been the lodestar of the originalist project in the 1980s, it is not a central preoccupation of the New Originalism. 105 Antonin Scalia, A Matter of Interpretation: Federal Courts and The Law (Princeton: Princeton University Press: 1997) at 44-45. 106 Kavanagh, Living Constitution, supra note 11 at 57. 107 Ibid., at 89. 108 Hogg, Constitutional Law, vol. 1, supra note 62 at 15.9(f). Internal citation is to R. v. Blais, [2003] 2 S.C.R. 236 at para. 40. Although Hogg goes much further and contemplates that in the context of federalism review, original understanding is binding for an unstated period of time after enactment: (a)ll that progressive interpretation insists is that the original understanding is not binding forever. Hogg, Constitutional Law, vol. 1, supra note 62 at 15.9(f). Note that he does not repeat this claim in his analysis of the interpretation of the Charter.
101
100
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In support, Kavanagh lists some institutional constraints that judges face:109 living constitution judges understand themselves to be constrained (to some degree) by precedent, by being restricted to pronouncing on matters brought before them rather than issuing judgments at their own initiative, by being restricted to incremental extensions of constitutional doctrine in a particular case,110 and by the desire to be respected and honoured for the willingness to make the right decision for the right reason.111 The existence of these constraints are common ground between living constitution proponents and their critics (except, perhaps, for the last) although the critic is perhaps more likely to argue that we should be careful not to exaggerate their significance. The extent to which precedent should bind, what counts as a truly incremental extension of a doctrine, and what counts as a judge acting on his or her own initiative (eg, does it include deciding cases on issues not argued by the parties? issuing injunctions on ones own motion?112 gratuitous excursions into political commentary?113) are all contestable (and contested) matters.114 Furthermore, we should remember that the critics complaint is not that there are no constraints on the living constitution judge, but that there are insufficient
Kavanagh, Living Constitution, supra note 11 at 69-73. Ibid., at 71. 111 Ibid., at 78. 112 BCGEU v. British Columbia (Attorney General), [1988] 2 S.C.R. 214. 113 See, Bastarache J.s thinly veiled commentary on the decision of the federal government to withdraw the Court Challenges Program, which funds some Charter challenges to federal legislation in Societe des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, [2008] S.C.J. No. 15: The appellants ask for $135,000 in costs In light of the abolition of the Court Challenges Program, which would have applied to a case such as this one, and since the respondent appears to have acknowledged the importance of the principles in issue in this case, as she has not asked for costs, the appellants are awarded the requested amount. (These words were later expunged from the reasons for judgment after a rehearing on costs after it was revealed that the appellant did in fact receive funding from the Court Challenges Program. See Reasons disappear from Supreme Court decision, C. Schmitz, The Lawyers Weekly, November 28, 2008.) 114 For an example of the contestability of whether an interpretation transgresses such constraints, consider, LHeureux-Dub J.s dissent in R. v. Prosper, supra, note 81 at 287-88, disagreeing that s.7 of the Charter required state-funded duty counsel:
110 109
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 ... 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.
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constraints, particularly over interpretations that are motivated by moral changes in society. Lets consider Kavanaghs answer to the problem of moral reasoning and the limits of judicial authority to transform constitutional law. Recall that Kavanagh argues that, to the deliberating judge, there should be no difference between (1) the reason to change a constitutional interpretation provided by the to a need to respond to a technological change in society (eg interpreting heads of power to accommodate new technology such as atomic power), and (2) the reason to change a constitutional interpretation provided by a need to respond to a moral change in society. The
constitution, she argues, must be interpreted in a way that is responsive to both kinds of social change. She argues, rightly I believe, that judges engaged in constitutional
interpretation have an obligation to engage in moral reasoning. They must not defer to conventional moral judgment, track popular morality, or substitute anyone elses views for their judgment be it the framers or any other group in society.115 They must ask themselves what morality requires, and not substitute anyones judgment for their own.116 They are not obligated to test whether the impugned legislation is congruent with current perceptions or popular values.117 Nevertheless, she argues, constitutional decisions should be attuned to commonly held moral views in some more subtle way.118 While rejecting conventional or popular morality, she insists that there is
nevertheless a check on idiosyncratic moral reasoning, and it is provided by the concept of moral change. Judges, she argues, should be in tune with moral development and change.119 It would be wrong for them to decide constitutional issues pertaining to moral matters which are blind to fundamental moral development or to ignore moral realities.120
115 116
Kavanagh, Living Constitution, supra note 11 at 83. Ibid., at 83. 117 Ibid., at 84. 118 Ibid., at 84. 119 Ibid., at 84. 120 Ibid., at 85.
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Much depends on the concept of moral change that she employs but does not sufficiently explain.121 How are we to make sense of this category of moral change, or fundamental moral development or moral realities (which I take to be equivalent expressions) that somehow constrains judges but at the same time is somehow distinct from the conventional or popular morality that judges must eschew? It is not clear to me that there is a stable distinction between them. The only way to discern between a widely held but false (ie merely conventional) moral judgment and a widely held and sound moral judgment is through ones own exercise of moral reasoning. So what constraint is left to guide the judge if he or she cannot take fundamental moral development at face value? At the end of the day, it not clear to me what relationship Kavanagh is urging between the judge and widely held morality. I think that I understand Kavanagh when she argues that judges must not follow social consensus, and that (j)udges must rely on those moral views that they believe to be correct.122 But then mid-sentence she shifts from the internal point of view (with its clear insistence on the personal demands of morality) to the external point of view: (m)y point is merely that moral judgment will change (whether due to changes in social conditions or otherwise) and that judges should make their decisions in accordance with that changed morality.123 And so it would seem that judges are, at the end of the day, to be guided by societys morality and not the other way around. But the waters are muddied further when she argues that judges should reason well to the best moral conclusion and, in so doing their judgments will and should reflect the underlying moral development in society. Kavanaghs remarks can only make sense, I think, if we presuppose that the best moral conclusion is necessarily equivalent to moral development in society, such that it is inevitably the case that over time, a societys collective understanding and institutionalization of morality will improve. I cannot argue the case here, but this
121
She states that her argument is based on an assumption that moral change of a certain sort is possible. Of course, I cannot provide a comprehensive analysis of the source or extent of moral change or the moral epistemological problems which may surround it. However, I will assume that the degree of change in moral views that is manifest in the history of our societies is evidence of moral change. (CJLJ) Ibid., at 84 (citation omitted). 122 Ibid., at 86. 123 Ibid., at 86.
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conclusion seems doubtful. It seems more likely that a change in a societys moral norms (fundamental moral development) is either the product of a more perfect (collective) grasp of the intermediate principles of practical reason or it is a collective mistake. Judges can only sort out which is which through their individual exercises of moral reasoning. If judges must be the arbiter of what is a false (but nevertheless widely held and institutionalized) morality, and what is a genuine moral development, then such judgements will not reflect the underlying moral development in society, they will define it. They will distinguish between what is conventional and false and what is foundational and true, and the injunction that judges make their decisions in accordance with that changed morality is empty.124 Kavanaghs argument that judges should treat the fact of moral change and the fact of other social changes as equivalently justificatory of progressive interpretation depends on the fact of moral change having the upper hand over the judges own exercise of moral judgment in judicial reasoning. We need to be cautious about the proposed equivalence. It is a mistake to equate matters in the natural or technical domain with those in the moral domain.125 The creation of the atomic energy industry in Canada, for example, was a social fact (resulting from a development in knowledge in the natural sciences) that required a response from a government in Canada. But Kavanagh
highlights another sort of social fact: changes in social attitudes towards (or moral judgments about) women working, contraception, homosexuality, etc.126 These changed attitudes may reflect changes in morality: judgments about the value or morality of women working outside the home, of couples using contraception, of homosexual acts (although they may not). For Kavanagh, on my reading, it is the fact of a societys judgments about social attitudes that are to drive a judges reasons, regardless of what the judge reasons about the morality of societys judgments. Kavanaghs argument that
I have argued that W.J. Waluchows argument for the constraining power of community constitutional morality, while more elaborately expounded than Kavanaghs concept of fundamental moral development also suffers from being more illusory than real. See Waluchow, A Common Law Theory, supra note 3 at 216-38 and B.W. Miller, A Common Law Theory of Judicial Review by W.J. Waluchow, (2007) 52 Am. J. Juris. 297. 125 See the discussion in John Finnis, Commensuration and Public Reason, in Ruth Chang, ed., Incommensurability, Incomparability, and Practical Reasoning (Cambridge, Mass.: Harvard University Press, 1997) 215 at 221-23. 126 Kavanagh, Living Constitution, supra note 11 at 85.
124
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changing social mores should be accommodated by progressive interpretation in the same way as any other novel social fact then seems unsupported by (and indeed contrary to) her own understanding of judicial responsibility in moral reasoning. It cannot provide an intelligible limit for the judge. Justice LHeureux-Dub suggested a limit in her dissent in Prosper127 (1994): that the courts should be barred from interpretations which would effectively add a provision which was specifically rejected at the time of the adoption of the Constitution. Determining what was specifically rejected would require an investigation into the deliberations of the framers; it will seldom be evident from the text of a constitution. While one would expect a majority of the Court to agree with LHeureux-Dub J. in the abstract, s.7 jurisprudence to date suggests otherwise. The Courts first foray into interpreting s.7 in the Motor Vehicle Reference (1985)128 has been characterized by Hogg (no friend of originalist interpretation) as wrongly decided because it rejected the unanimous historical record that s.7 was intended to provide for procedural justice only, and not substantive justice.129 More recently, a majority of the court relied on the living tree metaphor as authority for the even more expansive proposition that (o)ne day s. 7 may be interpreted to include positive obligations.130 Were it to reach such a result a finding that s. 7 of the Charter creates positive rights the Court would so transform s.7 that it would be a matter of adding a provision that was specifically rejected by the framers of the Charter. There is, of course, the limiting principle expressly adopted by the Supreme Court: the category of natural limits expressed in Lord Sankeys metaphor a living tree capable of growth and expansion within its natural limits. The tree metaphor implies that there is a limit to constitutional interpretation: trees, after all, have roots and there is a limit to how much they will grow, how quickly, and in which directions. The concept of natural limits has not received much sustained attention from either the Court or its commentators and it is reasonable to conclude that it lacks any real explanatory power.
127 128
The emphasis on natural limits seems ill-equipped for the task. Vicki Jackson
Prosper, supra note 81 at 287. [1985] 2 S.C.R. 486 129 Hogg, 60.1(g) 130 Gosselin v. Qubec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 at para. 82 (McLachlin C.J.).
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sums up the problem succinctly: the natural metaphor understates the role of human agency.131 Judges have choices to make about the meaning and application of concepts like equality and fundamental justice and of constitutional heads of power. The Court has not entirely ignored the concept of natural limits in its jurisprudence, but its applications of it demonstrate that it is an empty concept at best, it is a mere exhortation. Consider the Courts most extensive meditation on the metaphor in the Marriage Reference132 (2003). An intervener in that case had argued that it was not within the legislative competence of the federal government to legislatively stipulate that marriage would henceforth be an institution between two persons, thus including samesex couples. There are, the intervener argued, natural limits to the concept of marriage over which the federal Parliament has jurisdiction. The intervener argued that what is natural to marriage is procreation and the nurture and education of children, and the concomitant sharing of family life.133 Once this core is then shed, there is nothing
natural about marriage: only social constructs about which relationships should or should not be marriages. The Court dismissed this argument as follows: The natural limits argument can succeed only if its proponents can identify an objective core of meaning which defines what is natural in relation to marriage. Absent this, the argument is merely tautological. The only objective core which the interveners before us agree is natural to marriage is that it is the voluntary union of two people to the exclusion of all others. Beyond this, views diverge. We are faced with competing opinions on what the natural limits of marriage may be.134 We do not need to engage with interveners argument to grasp how unsatisfactory the Courts response is. On the methodology on view in the Marriage Reference, what is a natural limit is to be resolved by unanimous opinion. Where litigants conflict on their views about the nature of a head of power, the court has concluded that there can be no nature, and therefore no limit. Constitutional adjudication is not the place where one
Jackson, supra note 20 at 959. Marriage Reference, supra note 8. 133 See also John Finnis, Aquinas: Moral, Political and Legal Theory (Oxford: Oxford University Press, 1998) at 146, and Robert P. George, In Defence of Natural law (Oxford: Clarendon Press, 1999). 134 Marriage Reference, supra note 8 at para. 27.
132
131
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would expect to find unanimity, with the result that natural limits can be limits in name only.
III.
CONCLUSIONS
I have argued that Canadian constitutional interpretive scholarship needs to be refined beyond unhelpful and obscuring metaphors of the living tree and frozen concepts before Canadian constitutional law can benefit from the debates over constitutional interpretation and construction that are going on in the United States, Australia, and elsewhere. The purpose of this paper has been to formulate the central doctrines of Canadian constitutional interpretation in a way that can facilitate such an engagement. Because Canadian constitutional interpretation is so often defined in terms of its apparent (and complete) opposition to originalism, it has first been necessary to raise doubts about (1) the courts and commentators understanding of originalism, and (2) the stark incompatability of originalism and living tree interpretation, before such an engagement can be seen to have any value. What lies ahead? The next task must be to determine the areas of true disagreement and agreement between originalist interpretation and orthodox Canadian constitutional interpretation. It may well be that there is a great deal more common ground than is commonly supposed.
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The 'Living Tree' and Origin A List Constitutional Interpretation in Canada

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DRAFT Bradley W.

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THE CENTRAL COMMITMENTS OF LIVING TREE INTERPRETATION

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constitutional interpretation? If the change is in how a majority would now understand

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The purposive approach to interpretation

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The role of original intentions/understandings/applications

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(i) Confederation bargain cases

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Limits to non-original interpretation

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