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A Criminal Mind: Originalist creed a problematic approach to assessing the law

Aggressive criminal justice policy has been one of the Conservative government’s preoccupations since it came to office in 2006.

A number of new proposals in advance of this October’s election suggests the government still considers this to be a bankable way of getting votes. Whether or not we get a new federal government this fall, it’s a safe bet that the courts will have the job of determining the constitutionality of Prime Minister Stephen Harper’s crime laws for years to come.

A couple of recent news items got me thinking again about the approach taken by our courts, especially our Supreme Court, in deciding whether a law conflicts with constitutional rights.

On June 26, the United States Supreme Court handed down its decision in Obergefell v. Hodges that allowed same-sex marriage in all 50 states. The decision was close: Four justices dissented,  with their common theme being that the people who adopted the 14th Amendment in 1868 hadn’t contemplated gay marriage. Therefore, because 19th-century understandings of due process and equal protection wouldn’t have included a right to same-sex marriage, 21st-century gays and lesbians wishing to marry were simply out of luck.

Happily, this cramped vision failed to carry the day. In an odd coincidence, however, June 26 was also the day on which the Canadian government announced the appointment of an originalist former law professor to the Ontario Court of Appeal. News of the appointment had already made the rounds earlier in the week, leading to a front-page story in the Globe and Mail about the originalist and conservative leanings of some recent Harper appointees.

This is newsworthy because of its novelty. Originalism has never taken hold in Canadian courts, and to my knowledge no government until now has taken an interest in promoting the theory through its appointment power. While Lord Sankey had coined the slogan about the Constitution being a “living tree” in 1929, the idea behind it was nothing new even then. And in one of the first cases dealing with the Charter of Rights and Freedoms in 1985, then-justice Antonio Lamer effectively declared originalism to be dead on arrival.

Originalism has fared no better in the 30 years since then. In criminal law, our Supreme Court’s non-originalist approach is evident in its high-profile recent decisions striking down some long-established laws that the framers of the Charter no doubt assumed were invulnerable to attack. A year and a half ago, in Canada (Attorney General) v. Bedford, the court invalidated a number of prostitution provisions that had existed in one form or another since the government enacted the Criminal Code in 1892. And earlier this year, in Carter v. Canada (Attorney General), the court got rid of the ban on assisted suicide that had a similarly ancient pedigree.

On an originalist interpretation of the Charter, neither of these decisions would have made any sense. In both cases, the court’s concern was with the facts: causes, effects, and consequences. What’s the point of the law? Who does it help and who does it hurt? Ultimately, do its benefits outweigh its consequences? Notably, in neither case did the court wring its hands over what the framers thought about prostitution or assisted suicide. Nor did it agonize over its institutional legitimacy in striking down a democratically enacted law. Compare this to the near-hysterical levels of institutional angst expressed by the four dissenters in Obergefell. “Just who do we think we are?” Chief Justice John Roberts asked at the end of his surprisingly strident dissent.

This kind of institutional self-loathing is absent from the Canadian decisions I’ve just mentioned. Occasionally, someone will bang the drum of judicial restraint — as Justice Michael Moldaver did recently in R. v. Nur, the mandatory minimum sentencing case — but the gist of the criticism tends to be narrow.

Further, no judge on the court has decried the institutional legitimacy of it pronouncing on a supposedly moral issue such as assisted suicide. The most relevant and persuasive critiques of cases such as Carter have also been on the practical level, engaging with the court’s cost-benefit analysis rather than questioning its right to resolve the question in the first place. Whether decriminalizing assisted suicide will do more harm than good is a matter on which we can have a reasonable debate. But I find it hard to comprehend how anyone could prefer originalism’s fixation on the proclivities of dead ancestors to a pragmatic assessment of how a law affects the well-being of those currently alive.

The appeal of originalism is supposed to be the constraint it places on activist judges in the name of democratic self-governance. Justice Antonin Scalia’s argument suggests that if you don’t like what the Constitution says, go ahead and amend it. But don’t rely on the courts to invent new rights that the democratic process has never validated.

But constitutions, by design, are very hard to amend. By the time a minority has enough numerical strength to pull off a rights-protecting amendment in its favour, it very likely no longer needs the protection. Accordingly, it’s the generally worded guarantees around equal protection of the law and the principles of fundamental justice that protect the rights of minorities and despised groups like criminal defendants. The point of these open-ended provisions is precisely to allow them to adapt to the times.

The framers obviously knew that. They were not themselves originalists.

For that reason, originalism tends to fall apart on its own terms. The most litigated provisions of the Charter are the ones that need the courts to fill in their content. No one in 1982 believed that a new constitutional convention should take place every time someone proposed to identify a novel principle of fundamental justice under s. 7 or a different analogous ground of discrimination under s. 15. The living-tree theory, in which the meaning of the Constitution evolves with the times, was firmly established in constitutional doctrine. For these reasons, the best originalist gloss on our Charter is really not originalist at all.

The rhetorical appeal of originalism in the United States appears to hinge on that country’s veneration of its founding fathers. For better or worse — I think for the better — we lack the same national mythology and are less prone to engaging in what former justice Ian Binnie has called “ancestor worship.” We’re aware that the people who enacted our Charter of Rights in the early 1980s were ordinary politicians. Some of them were admirable, no doubt, but none of them was a visionary. It doesn’t take an idealized notion of the judicial role to believe that present-day judges are in a better position to decide what fundamental justice requires in 2015 than some hypothesized version of what people thought in 1982, let alone in 1791. The shrill protests by Scalia and his ilk against advances such as gay marriage are, I think, unlikely to convince many on this side of the border that our courts should embrace the originalist creed.                         

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at

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