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

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP

Leonid Sirota

AUT Law School

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that originalist thinking is inconsistent with Canadian constitutional law and practice, and no basis for relying on outdated assumptions or caricatures for its rejection.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 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

Leonid Sirota (Contact Author)

AUT Law School ( email )

AUT City Campus
Private Bag 92006
Auckland, 1142
New Zealand
+64 9 921 9999 ext 5531 (Phone)

HOME PAGE: http://doubleaspect.blog

Paper statistics

Downloads
237
Rank
102,483
Abstract Views
1,037