How should we read the Canadian Constitution?

The new Globe and Mail article has recently seen a great deal of attention. One of the concepts discussed in the article is ‘Originalism’ whereby the constitution is to be interpreted exactly as it was written, and seemingly, without room for growth. The article goes on to discuss judicial appointments, leaving Originalism behind but the idea is nevertheless an interesting one. As the article mentions, Originalism flies in the face of the living tree doctrine which asks judiciaries to interpret the constitution in reference to the nuances of the modern world.

Seeing the constitution as a proverbial living tree lets us develop our laws to reflect societal changes. Originalism, taken to it’s natural end, is incompatible with a number of civil rights that the Canadian legal system has afforded it’s citizens and in it’s most extreme form, strips Canadian citizen’s of basic rights. That, however, is the most extreme reading of the doctrine. Even a favourable and moderate interpretation of Originalism seems like an unworkable model for the entire judicial system (not just it’s liberal members). For example, Courts remodel and interpret our Charter rights in a way that reflects the modern realities of police investigations and police duties. In some situations, the Courts relax our Charter right to be informed of the reason for our detention to mean that we must simply be aware of the reason for our detention in light of the circumstances. The judiciary reads our Charter right to retain and instruct a lawyer not as an absolute or unconditional one, but one that is coupled with our duty to be diligent in doing so. These interpretations and additions are necessary because our constitution is a list of our basic rights and not a step-by-step guide. If we adopt Originalism and simply read the constitution the way it was meant to be written, we come dangerously close to relinquishing an important tool in legal decision-making, namely judicial interpretation. It becomes hard to see how we can move forward, if we can move at all.

Originalism in place of the living-tree doctrine is unworkable, not only for those that take a defence-friendly position, but for those that want to understand the real-world implications of a constitution that is (appropriately) shorter than some high school essays.


This entry was posted in Alin Mayer, tagged Constitutional Law and posted on July 29, 2015


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