Originalist Reasoning in Canadian Constitutional Jurisprudence

Abstract

Amongst the fundamental assumptions underlying the practice of Canadian constitutional interpretation is the belief that originalism – whether directed at the original intentions, expected applications, meaning or understanding – plays no meaningful role in discerning the meaning of constitutional provisions. This paper sets out to correct that mistaken narrative. Through a survey of historical and contemporary decisions, the authors show that various forms of originalism have played a significant role in Canadian constitutional interpretation. Its influence can be felt both with respect to the structural provisions of the constitution – those relating to the division of powers, constitutional “bargains,” and the core jurisdiction of superior courts – as well as in the context of rights protecting provisions, such as those found in the Charter and aboriginal rights in section 35. At the same time, it cannot be questioned that the Court has rejected or refused even to consult original intentions or meanings just as frequently as it has found them persuasive or even dispositive. The Court has provided little guidance as to those circumstances in which various forms of originalism, or any other forms of constitutional argument, can and should be relied upon, which has led to a troubling state of uncertainty. The authors suggest that whether or not originalist approaches to constitutional interpretation should be accepted in any given case, it is not possible (or desirable) to avoid them entirely, and conclude that Canadian constitutional practice would benefit from openly engaging with originalist ideas and how they can be most fruitfully employed.

Keywords: Constitutional interpretation, originalism, Canada, living constitutionalism, living tree, judicial review