INTERPRETING THE CONSTITUTION: THE LIVING TREE VS. ORIGINAL MEANING

Ian Binnie

Continuing our year-long series The Charter @ 25, Justice Ian Binnie of the Supreme Court of Canada argues for “the living tree” interpretation of the Constitution, as opposed to “original meaning.” This article is adapted from his debate with Justice Antonin Scalia of the United States Supreme Court at the McGill Institute for the Study of Canada’s landmark Charter @ 25 conference, in Montreal last February 16. Binnie vs. Scalia, as the debate was dubbed, was a riveting performance by both judges.

Dans le cadre de notre série sur les 25 ans de la Charte des droits et libertés, le juge Ian Binnie, de la Cour suprême du Canada, propose d’interpréter la Constitution selon une « approche évolutive » plutôt qu’en privilégiant son « sens premier ». Cet article est tiré du débat qui l’a opposé au juge Antonin Scalia, de la Cour suprême des États-Unis, lors de l’importante conférence « La Charte @ 25 ans » tenue à l’Institut d’études canadiennes de McGill le 16 février dernier. Un débat surnommé « Binnie vs Scalia » au cours duquel les deux magistrats ont offert une éblouissante démonstration de leur savoir.

ustice Scalia espouses what he would call a doctrine of United States, the last successful attempt to amend the judicial restraint — he does so with such success that Constitution was in 1992; the amendment addressed the J the New Yorker says he has gained the status of a “rock procedure governing raises in congressional pay. The star.” More specifically he espouses what is known as “orig- amendment was actually proposed in 1789, a gestation peri- inalism.” The idea is that judges should stick to the “origi- od of 218 years. nal meaning” of the terms of a constitution, because that is In this country when the government in 1982 proposed all that was ratified by the people who are governed by it. a charter of rights and freedoms, the provincial premiers The text is the sole source of the legitimacy for their judicial demanded more legislative powers over resources. Prime decisions. If the text is out of step with society and needs to Minister Trudeau complained that he was supposed to bar- be updated, it should be done by the people not by the gain human rights against fish. I proceed on the basis that judges. Justice Scalia writes, in A Matter of Interpretation, that in this country a set of frozen rights will, for all practical “what I look for in the Constitution is precisely what I look purposes, stay frozen. On that basis the question is whether for in a statute: the original meaning of the text, not what the theory of “original meaning,” or as I prefer to call it, a the original draftsmen intended.” theory of frozen rights with no realistic prospect of a thaw, Of course, the original meaning of the text, if it can be is correct for Canada. ascertained, should be taken into account. No one argues Whatever may be the right approach in the United that it should not be. The issue is whether the framers States, it seems clear that a frozen rights theory has never intended a “frozen rights” approach to our political institu- been accepted in Canada, and I say that is so for at least four tions and our rights and freedoms. Is the Constitution a liv- reasons. ing tree or a dead tree? Justice Scalia will point out that if a majority of the people don’t like their rights frozen, they irstly, a frozen rights theory misconceives the nature of can amend the Constitution. For 115 years of our history we F our Constitution and our government institutions, and had no power to amend our Constitution, and once we got our history, all of which are very different from those of the an amending formula it became clear that if there is one United States. Secondly, supporters of “original meaning” in thing Canadians dislike more than judicial impudence it is Canada ignore the lessons of some of the less glorious an endless series of constitutional conferences. In the episodes in our constitutional history, including the Persons’

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Case, where the courts in Canada rights they were entrenching in the the Constitution Act, 1867, executive embarrassed themselves by holding, in Constitution, drawn largely from authority is vested in the Queen. By accordance with the “original mean- European and US precedents, and so convention, of course, she exerts that ing” of section 32 of the Constitution they chose very open textured lan- authority on the advice of her Prime Act, 1867, that women were not quali- guage, which they then delegated to Minister and Cabinet, but no such lim- fied for appointment to the Senate the courts to refine and develop. itation is expressed in the Constitu- because they were not “qualified per- However, in Canada, unlike the United tion. Nothing in the Constitution sons.” Thirdly, the argument about States, the elected framers balanced speaks of the prime minister, or “original meaning” is at bottom an this delegation to the courts with a leg- requires the government to enjoy the confidence of the House of However, in Canada, unlike the United States, the elected Commons. According to framers balanced this delegation to the courts with a legislative section 16 of the Constitu- power to override court decisions with respect to most Charter tion Act, 1867, the Queen rights and freedoms, including the freedom of expression, could designate Moose Jaw as the capital of Canada freedom of association, including even the right to life, liberty without consulting any- and security of the person. In other words, Parliament and the body, just as she designated provincial legislatures largely retained the power to prevail over Ottawa without much con- the courts in cases where they see fit to do so. sultation. A language law made by the elected repre- argument about judicial legitimacy. I islative power to override court deci- sentatives in Quebec could be set aside do not think judges need apologize for sions with respect to most Charter by Ottawa, and a federal budget could not being elected. The legitimacy of the rights and freedoms, including the be disallowed by Queen Victoria sit- courts does not flow from the ballot freedom of expression, freedom of ting in London. Even opponents box but from the fact that our association, including even the right to would have been outraged at such Constitution, like the American life, liberty and security of the person. interference in elected politics, but the Constitution, envisages a system of In other words, Parliament and the Constitution Act, 1867 authorizes, and checks and balances. Our system provincial legislatures largely retained in its original meaning was meant to includes an unelected judiciary who the power to prevail over the courts in authorize, just such a disallowance. are supposed to bring to their job cases where they see fit to do so. The fact is that the politicians something more than a capacity to learned from experience that a power research the writings of our ancestors, eturning, then, to my first propo- of disallowance that looked like a good what I believe is described in the R sition. Proponents in Canada of idea on paper was a bad idea in prac- United States as “law office history” “original meaning” misconceive the tice, and they got around the original (or, less reverentially, “ancestor wor- nature of our Constitution. Ours is not meaning of the Constitution by adopt- ship”). Fourthly, I believe that the “liv- a revolutionary document. Confedera- ing certain constitutional conventions ing tree” approach has served us well. tion was coaxed into existence by a which are defined as parliamentary In terms of government powers, the series of British Colonial Secretaries practices that contradict the text of the federal government would have over- including Earl Henry Grey (1802- Constitution. In the parliamentary whelmed the provinces under the 1894), the third Earl by that name. context adherence to original meaning “original meaning” of the division of Unlike Thomas Jefferson, Earl Grey would have been a disaster. powers set out in 1867 with conse- today is chiefly remembered more for It seems clear that our judges have quent pressure in some regions to sep- his blend of tea rather than his philo- always accepted, along with our legisla- arate, or radically to overhaul the sophic writings. The Constitution Act, tors and members of the executive, that confederation, which in the absence of 1867 contains no visionary statement Canadian society evolves and that while an amending power or a civil war, of a bold new democracy. On the con- the constitutional text remains the same would have been impossible. Insofar as trary it established an unelected Senate it is interpreted now in the only way it the Canadian Charter of Rights and that is authorized to kill legislative can be, by Canadians of today not by Freedoms is concerned, the framers measures enacted by the elected House the colonial judges of 1867. specifically rejected the idea that rights of Commons. In 1867 it promised a should be frozen as of the date of form of government of the people, for y second proposition is that enactment. The history of Charter the people but only to the extent the M Canadians who support the negotiations demonstrates that in Crown represented by the imperial original meaning or frozen rights many cases, the framers had only the government in London considered approach ignore some of the more most general idea of the scope of the good for us. According to section 9 of embarrassing episodes in our constitu-

POLICY OPTIONS 105 OCTOBER 2007 Ian Binnie

Owen Egan, McGill University Justice Ian Binnie of the Supreme Court of Canada proposes a “living tree” interpretation of the Constitution in his debate with US Supreme Court Justice Antonin Scalia, famously a proponent of “original meaning” at McGill University’s Charter @ 25 conference.

tional history that occurred when the positions against abortion and in third of its number, but the credit does courts failed to move with the times. favour of capital punishment equally not belong to the framers of 1867. It Almost anyone with any interest in reflect policy choices rather than dis- belongs to the women who refused to Canadian history knows that in 1928, passionate legal doctrine. acquiesce in such an outdated concept the Supreme Court of Canada held that of the inequality of women, and the the reference in our Constitution to ustice Scalia asks what gives a judge judges who eventually agreed with “qualified persons” eligible to sit in the J the special wisdom to evolve the them, and abandoned “original intent” Senate excluded women; that is to say Constitution over time. Of course the for a meaning more consistent with the that women, as a class, without excep- same question can be asked about how values of Canadian society, which had tion, were declared unqualified for the judges can divine the original mean- learned from experience and moved on public office. Justice Scalia will say that ing of a document written 230 years from the views of their colonial fore- public policy belongs to the elected ago. My answer is that judges could and bears. representatives, but for the Supreme should move cautiously and incremen- I offer another example. The issue Court of Canada to say no to women in tally. It did not take a rocket scientist to of the treatment of racial minorities 1928 was as much a public policy pro- appreciate in 1930 that women were has been difficult in both Canada and nouncement as it was for the Judicial capable of holding public office. In the the United States. Canadians will Committee of the Privy Council to say Persons’ Case, it had become clear that remember that until the last 50 years yes to women when the case reached Canadian society had moved on from or so Aboriginal peoples in Canada that final court on appeal in 1930. It is its 1867 roots and it was right and prop- were effectively denied almost all civil sometimes said in this country that the er for the court to move with it. Our rights on the basis, and I quote a Nova use of “original meaning” to support Senate today has 35 women, about a Scotia judge writing in 1929, that:

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The savages’ rights of sovereign- In the United States there has society is conferred by elected office, ty even of ownership were never been an even greater evolution in the that if Canada is to move with the recognized.... In my judgment constitutional treatment of racial times the only agent of change should the Treaty of 1752 is not a minorities. In the Dred Scott v. Sandford be elected members. That is not in fact treaty at all and is not to be case in 1857, Chief Justice Taney of the our tradition. In the 1981 constitu- treated as such; it is at best a United States Supreme Court relied on tional hearings before the mere agreement made by the “original intent” to deny that Afro- Parliamentary Committee, the fact the Governor and council with a American slaves were “constituent judges are not elected was seen as a handful of Indians members of the sovereignty” to be strength not a weakness. In the matter Eventually our Supreme Court included among “we the people.” His of minority education rights, for declared this approach to be “unaccept- view, and I quote: example, the justice minister, Jean able” and brought to bear a more con- We think they are not, and they Chrétien, suggested that within the temporaneous view of aboriginal peoples are not included and were not broad framework of section 23 of the and of federal responsibilities under sec- intended to be included, under Charter it should be left to the courts tion 91(24) of the Constitution Act, 1867. the word ‘citizens’ in the to work out the scope of the rights on In 1984, I acted for the federal govern- Constitution. a case-by-case basis, saying: ment in a case that decided that exercise Some jurists, including the late The courts will decide and it by the Crown of its power to accept a sur- Chief Justice Rehnquist, argue that would be out of the political render of Indian lands creates a arena, where the matter is trust enforceable in the courts, a Some jurists, including the late Chief sometimes dealt with by conclusion which would have some people who do not been unthinkable in 1867. Justice Rehnquist, argue that despite comprehend or do not want However, the evolving view of Chief Justice Taney’s assertions to the to comprehend. I think we the courts toward Aboriginal contrary, the decision in Dred Scott did are rendering a great service rights, initially signalled in Calder not reflect original meaning but was a to Canadians by taking v. Attorney General of British some of these problems away Columbia, in 1973, in effect was departure from it. The fact of the from the political debate and endorsed by the political leader- matter is that the American allowing the matter to be ship when they included a recog- Constitution in its present form had in debated, argued, coolly nition of existing treaty and 1857 co-existed with slavery for more before the courts with prece- aboriginal rights in the dents and so on. It will serve Constitution Act, 1982. than half a century under the the population, in my judg- In all of these examples an supervision of judges who were ment very well. unacceptable gap had opened probably more conversant with the The fact judges are inde- up between the original mean- “original meaning” of the Constitution pendent of electoral politics ing of the Constitution and was seen by the Parliamentary what people in Canada were than Americans are today. Committee as one of the prepared to live with. Nobody strengths of our system, not a thought about a constitutional despite Chief Justice Taney’s assertions weakness. amendment because we had no power to the contrary, the decision in Dred My fourth proposition is that the of amendment. Nor was it considered Scott did not reflect original meaning living tree approach has served Canada objectionable that the agents of but was a departure from it. The fact of well. This certainly does not mean that change in both these cases were the the matter is that the American people agree with the Supreme Court in judges. After all in Somerset’s Case in Constitution in its present form had in all its decisions. On occasion they are 1772, Lord Mansfield held that there 1857 co-existed with slavery for more highly controversial, but over the long was no legal basis in England for slav- than half a century under the supervi- haul it seems that people agree the ery based in part on an evolutionary sion of judges who were probably courts are doing their job, and that our reading of the provision in the Magna more conversant with the “original Constitution should be interpreted in Carta that no man “should be killed, meaning” of the Constitution than light of all our experience as a country imprisoned or disseised except by the Americans are today. over the past 140 years, not just what lawful judgment of his peers or by the was known to the colonial statesmen law of the land.” He apparently felt y third proposition is that advo- who met at Charlottetown and Quebec things had evolved in the 557 years M cates of the “original meaning” in 1864. I mentioned earlier that if the since the Magna Carta had been signed or frozen rights theory believe that the plan of government envisaged by the in 1215. only source of legitimacy in Canadian Constitution Act, 1867 had been imple-

POLICY OPTIONS 107 OCTOBER 2007 Ian Binnie

mented according to its “original mean- owever, for Canadians, as for distinguish from a “moderate non- ing” it would have resulted in a degree H Americans, the real controversy originalist.” Moderate non-originalists of centralization in Ottawa that would over “original meaning” focuses on will be delighted with the concession have threatened the country’s future human rights. In the United States the on the public floggings issue. existence. critical issues are abortion and capital punishment. In Canada, the issues are hristopher Manfredi of McGill he Fathers of Confederation meet- different and include language rights, C University and other critics say T ing in 1866 in the shadow of the gay marriage and, more recently, the more generally that the courts have American Civil War were alarmed at duty of reasonable accommodation for pushed too far in subjecting laws to the divisiveness of the theory of states’ minorities. In both countries, the critics Charter review, but I believe that had rights, and called for a more central- argue that the courts have increased the courts taken an “original mean- ized federation, including the power of their own power by reading in rights ing” approach they would have the federal Parliament to legislate gen- that are not there. Our Canadian pushed further still. Section 52 of our erally for the “peace, order and good Charter of Rights and Freedoms is only Charter says that “a law that is incon- government of Canada.” Equally the 25 years old. Surely, the critics say, if sistent with the provisions of the federal government was given there was ever a situation in which Constitution is, to the extent of the extremely broad powers over trade and “original meaning” is not only desirable inconsistency, of no force or effect.” In commerce. In the early days, the but entirely workable, it must be in this 1982 the plain meaning of the word Supreme Court applied the “original situation. “law” undoubtedly included the meaning” of these powers and gave a Of course, if a constitutional pro- Québec Civil Code and the common broad scope to federal legislation, vision is clear and unambiguous, it is law of the other provinces. According moving toward a highly centralized simply applied according to its terms. to the advocates of “original mean- state in which the federal government Section 4 says that elections must be ing,” therefore, every legal aspect of could micro-manage everything down held at least every five years. This sort private affairs, whether under the to the level of licensing local liquor of provision gives very clear guidance. Quebec Code or the common law, establishments. But most constitutional provisions are whether dealing with private con- As the country in gen- eral and the courts in partic- However, for Canadians, as for Americans, the real ular gained experience with controversy over “original meaning” focuses on human rights. the new Constitution, it was In the United States the critical issues are abortion and capital realized that if federal pow- punishment. In Canada, the issues are different and include ers were applied as originally contemplated, the provinces language rights, gay marriage and, more recently, the duty of would be reduced to little reasonable accommodation for minorities. In both countries, more than municipalities, a the critics argue that the courts have increased their own situation that many parts of power by reading in rights that are not there. the country were not willing to accept, as the history of the various written in very general language, tracts, wills and trusts or family mat- secessionist movements in Western which can be interpreted in different ters, would be subject to Charter Canada and Quebec illustrates. ways, especially when read with other challenge. The Charter of Human The courts, based on the country’s provisions in the Constitution. Rights and Freedoms would apply to evolving experience, began to curb Expressions like “cruel and unusual every law dealing with relationships. federal power by striking down laws punishment” undoubtedly mean The state would have a place not only that intruded into areas of provincial something different in 2007 than they in the bedrooms of the nation, but in jurisdiction. did in 1867 or 1791. Public floggings its kitchens, living rooms, garages and It was held that each level of gov- were considered perfectly acceptable workplaces to a far greater extent than ernment was sovereign in its allocated then. Justice Scalia has expressed it does now. The courts declined to sphere, with neither the federal gov- doubt that he could uphold as consti- accept this enormous jurisdiction, and ernment nor the provinces being sub- tutional a statute providing for public adopted a more modest interpretation, ordinate in status or importance to the floggings in the United States today holding that the role of the Charter other, a theory which is very much at even though it could have been con- should be restricted to fights against odds with the original scheme, as the sidered neither cruel nor unusual in the government not your neighbour. existence of a federal power of disal- 1791. This, he acknowledges apologet- lowance in the Constitution Act, 1867 ically, makes him a “faint-hearted orig- nd what about equality rights? I plainly demonstrates. inalist,” which he hastens to A happened to be in the Depart-

108 OPTIONS POLITIQUES OCTOBRE 2007 Interpreting the constitution: the living tree vs. original meaning ment of Justice from 1980 to 1982. The the onus of justifying every distinc- replied, during his first appearance draft of the Charter originally pro- tion made by statute between peo- before the committee, “It will be the posed by the government did not ple, whatever the ground. courts who will decide. The way I include an equality clause. The gov- If you ask where the court gets its understand the courts to operate, the ernment put forward a non-discrimi- mandate to give an interpretation of precedents will determine the next nation clause targetting certain the Constitution other than its “origi- move. It will be the court because we prohibited grounds such as race, reli- nal meaning,” I say it comes from a are not giving them other tests than gion and gender. It was the elected shared understanding of the framers these.” members of the Parliamentary Com- and judges that this would be the role In other words, section 1 says mittee who greatly expanded its scope of the courts. For example, when the what it says. The committee declined to provide that every individual is Minister of Justice presented the to work toward a consensus about equal before and under the law. They Charter to the Parliamentary what “the original meaning” could added these words: Committee, he explicitly stated that or should be. They laid down the Every individual is equal before the “government intended to avoid the most general of tests and felt com- and under the law and has the problem of frozen rights by entrench- fortable leaving it up to the courts to right to the equal protection and ing a broadly worded Charter that develop the tests precise content. equal benefit of the law without would require the judiciary to play an And the test developed by the courts, discrimination. important role in defining the content I might say, is more deferential to the The grounds of discrimination of rights and to allow for the continual elected legislators in matters of pub- proposed by the government were evolution of their meaning.” Of course, lic policy than a reading of the actu- reduced by parliamentarians to mere words like “cruel and unusual treat- al wording of section 1 might particulars of a more general right to ment or punishment” provide some suggest. equality. Thus, in the early days of the guidance, but our framers rejected the Having rejected a “frozen rights” Charter, workers injured on the job in idea that what was meant by the words theory, and fully appreciating the role of Newfoundland successfully contended “cruel and unusual” in 1982 should the courts in delineating and fleshing that a worker’s compensation act that bind Canadian society forever. The out the guaranteed rights and freedoms, denied them access to the courts to Minister said, “It is essentially a draft- the Parliamentary Committee also pro- seek tort damages like everybody else, ing problem to ensure that entrenched vided in section 33 of the Constitution but instead required them to deal with rights will not be ‘frozen.’ If the Act, 1982, an override clause whereby a regulatory board, violated equality Charter casts the rights in broad terms Parliament or a provincial legislature could insist that a law oper- It was the courts, not the framers, who shrank from this larger ate notwithstanding a provi- vision of equality and concluded that the Charter should be sion included in interpreted as an anti-discrimination law not an anti- enumerated sections of the classification law, which would have put on the government Charter. The override must be re-enacted every five the onus of justifying every distinction made by statute years but if that is done it between people, whatever the ground. can go on forever. The elected branches of govern- rights. Under the “original meaning” and contains a clause stating that the ment have, therefore, given them- of section 15, every classification made rights listed in the Charter are not selves the last word. It cannot be said in every statute or common law in the exclusive, courts will have sufficient in Canada, as it is in the United States, country could be the subject of a law- latitude to interpret the rights flexibly that the Supreme Court is not last suit. Rich people might have gone to but subject to reasonable limitations.” because it is always right but is right court to complain that they were pay- because it is always last. Section 33 is ing an unfair share of the tax burden, ne of the most important provi- as much part of the Constitution as even though wealth is not identified as O sions of the Charter is section 1 any other provision. Whether or not it a prohibited ground of discrimination. which says that its rights and free- is used is a matter of political judg- It was the courts, not the doms are: ment. It is a matter between the politi- framers, who shrank from this larger subject only to such reasonable cians and the voters. It has nothing to vision of equality and concluded limits prescribed by law as can do with the courts. that the Charter should be interpret- be demonstrably justified in a ed as an anti-discrimination law not free and democratic society. homas Jefferson, a man who was an anti-classification law, which When asked by a committee mem- T very well versed in the “original would have put on the government ber what that meant, the minister meaning” of the US Constitution,

POLICY OPTIONS 109 OCTOBER 2007 Ian Binnie

opposed any theory of frozen rights. everybody else should learn from It was enough for them to real- He wrote, “We might as well require experience. Justice Scalia is well- ize or to hope that they had cre- a man to wear still the coat which known for his view that Supreme ated an organism; it has taken fitted him when he was a boy, as civ- Court judges in the United States a century and has cost their ilized society to remain ever under should not be moved by constitution- successors much sweat and the regimen of their barbarous al pronouncements by judges of other blood to prove that they created ancestors.” The state in 2007 is countries, precisely because such a nation. The case before us much more activist, interventionist, statements can have no relevance to must be considered in the light intrusive and controlling of the lives the original meaning of the United of our whole experience and not of its citizens than ever before. The States Constitution, so I will end with merely in that of what was said checks and balances must be corre- the observation of an earlier member a hundred years ago. spondingly stronger. Jefferson of the United States Supreme Court, expected the constitutional renewal Justice Oliver Wendell Holmes, who Justice Ian Binnie, named to the Supreme would have to occur every 20 years wrote in 1920: Court of Canada in 1998, is a graduate or so, in a never ending series of [W]hen we are dealing with of McGill University, Cambridge and constitutional conferences, a words that are also a con- University of Toronto. Adapted from his prospect which to Canadians is the stituent act, like the debate with Justice Antonin Scalia of the stuff of nightmares. Constitution of the United United States Supreme Court at the Justice Scalia will tell you that on States, we must realize that McGill Institute for the Study of the Supreme Court of the United they have called into life a Canada’s Charter @ 25 conference. The States only a minority of the judges being the development of which streaming video of the debate may be advocate “originalism.” The other could not have been foreseen by viewed at the MISC Web Site, judges acknowledge that judges like the most gifted of its begetters. www.misc-iecm.mcgill.ca

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