Has the Supreme Court of Canada Rejected 'Originalism'?

(2016) 42:1 Queen's LJ 107

59 Pages Posted: 20 Mar 2016 Last revised: 26 Jan 2017

See all articles by Benjamin J. Oliphant

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP; University of British Columbia (UBC), Faculty of Law

Leonid Sirota

School of Law

Date Written: March 17, 2016

Abstract

The notion that “originalism” is fundamentally incompatible with Canadian constitutional law has achieved the status of dogma, both in the courts and the Canadian legal academy. However, this understanding tends to be premised upon the rejection of early and undertheorized conceptions of originalism that have been largely left behind. Originalism has evolved considerably over the past few decades, as scholars from across the political spectrum have developed more nuanced and defensible approaches to constitutional interpretation, which by no means freeze constitutional law in the era of constitutional enactment. In fact, the two core propositions upon which Canada’s anti-originalist myth is based – that constitutional law must evolve to meet new social realities, and that the framers intentions may be relevant, but not binding – have been largely embraced by modern originalist scholarship. Drawing upon the vast diversity of originalist thought in the United States, the authors reconsider the cases most frequently cited for the belief that originalism is fundamentally incompatible with Canadian constitutional thought, and show how many fit rather easily within the new originalist paradigm. The authors conclude that once the frequent compatibility between various forms of originalism and living constitutionalism are appreciated, there is no reason to conclude that originalist thinking is inconsistent with Canadian constitutional law and practice, and no basis for relying on outdated assumptions or caricatures for its rejection.

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

Suggested Citation

Oliphant, Benjamin J. and Oliphant, Benjamin J. and Sirota, Leonid, Has the Supreme Court of Canada Rejected 'Originalism'? (March 17, 2016). (2016) 42:1 Queen's LJ 107, Available at SSRN: https://ssrn.com/abstract=2749212 or http://dx.doi.org/10.2139/ssrn.2749212

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP ( email )

Vancouver, British Columbia
Canada

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

Leonid Sirota (Contact Author)

School of Law ( email )

Foxhill House
Whiteknights Campus
Reading, Berkshire RG6 6BA
United Kingdom

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