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Beguiled By Metaphors: The “Living Tree” and Originalist Constitutional Interpretation in Canada

Published online by Cambridge University Press:  20 July 2015

Bradley W. Miller
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Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected in the new originalist theories that have been developed principally (but not exclusively) in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 22 , Issue 2 , July 2009 , pp. 331 - 354
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Copyright © Canadian Journal of Law and Jurisprudence 2009 

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References

Thanks go to Grant Huscroft and an anonymous referee for helpful comments.

1. E.g., Hogg, Peter W, Constitutional Law of Canada, 5th ed., vol. 2, looseleaf (Scarborough, ON: Thomson Carswell, 2007) at 36-26 ff 60-8Google Scholar [Hogg, , Constitutional Law, vol. 2.]Google Scholar; Binnie, Ian, “Constitutional Interpretation and Original Intent” in Huscroft, Grant & Brodie, Ian, eds., Constitutionalism in the Charter Era (Markham, ON: LexisNexis Canada Inc., 2004) 345 at 348Google Scholar [Binnie, , Original Intent]Google Scholar, “[original intent] has never gained much judicial or scholarly support, and … is unlikely to do so in the future.” For stark judicial rejections of originalism, see “[o]riginalism is not part of the Canadian constitutional tradition,” Criminal Lawyers’ Association v Ontario (Ministry of Public Safety & Security) (2007), 86 O.R. (3d) 259 (C.A.) at paras. 113-19Google Scholar; “[t]his Court has never adopted the practice more prevalent in the United States of basing constitutional interpretation on the original intentions of the framers of the Constitution. Rather, in Canada, constitutional interpretation rests on giving a purposive interpretation to the wording of the sections.” Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327 at 409Google Scholar (Iacobucci J. (dissent)) [Ontario Hydro].

2. E.g., an engagement with Whittington, Keith, Constitutional Construction: Divided Powers and Constitutional and Meaning (Cambridge, MA: Harvard University Press, 1999)Google Scholar; Barnett, Randy, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, NJ: Princeton University Press, 2004)Google Scholar; Solum, Lawrence, “Semantic Originalism”, (draft November 25, 2008) Illinois Public Law Research Paper No. 07-24CrossRefGoogle Scholar (http://ssrn.com/abstract=1120244); Balkin, Jack, “Abortion and Original Meaning” (2007) 24 Const. Commentary 291 Google Scholar, or Goldsworthy, Jeffrey, “Originalism in Constitutional Interpretation” (1997) 25 Fed. L. Rev. 1 Google Scholar. The exception has been originalist critiques of “judicial activism” from Morton, FL. & Knopff, Rainer, The Charter Revolution and the Court Party (Peterborough, ON: Broadview Press, 2000)Google Scholar and Manfredi, Christopher P., Judicial Power and the Charter: Canada and the Paradox Liberal Constitutionalism (Don Mills, ON: Oxford University Press, 2001)Google Scholar, and the scholars who take up originalist-style arguments as part of their arsenal against Morton, Knopff, and Manfredi: e.g., Kelly, James B., Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent (Vancouver: University of British Columbia Press, 2005)Google Scholar [Kelly, , Governing with the Charter]Google Scholar and Waluchow, W.J., A Common Law Theory of Judicial Review: The Living Tree (New York: Cambridge University Press)CrossRefGoogle Scholar [Waluchow, A Common Law Theory]. None of these works, however, engage with the arguments of the new originalists.

3. Leiter, Brian: “Canadians have a constitution, but originalism is barred as an interpretive method.” “Originalism Redux” Redux (with a reply to Solum) (19 August 2006)Google Scholar, online: Brian Leiter Law School Reports. http://leiterlawschool.typepad.com/leiter/2006/week33/index.html (last accessed July 14, 2008).

4. Or as expressed by Binnie, J., the courts “have given little incentive for such work to be done” Original Intent, supra note 1 at 172.

5. With illuminating and powerful exceptions such as Waluchow, A Common Law Theory, supra note 2 and Beatty, David, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004).CrossRefGoogle Scholar

6. Most recently in Reference re Same-Sex Marriage, 2004 SCC 79 Google Scholar, [2004] 3 S.C.R. 698 [Marriage Reference].

7. E.g., Justice Binnie’s terse dismissal of the ‘“originalism” philosophy’ of J., Scalia in R. v. Tessling, [2004] 3 S.C.R. 432 at para. 61.Google Scholar

8. I will not engage substantively with the New Originalism beyond noting two key differences between this family of theories and the more familiar old originalism: (1) The distinction between original intentions and original meaning/understanding: While the old originalists focused on ascertaining and giving effect to the original intentions of the constitutional framers, the new originalists are concerned with original meaning or understanding of the text. That is, what did the text mean to the original intended audience?(2) The interpretation/construction division: Constitutional interpretation is understood as the act of ascertaining the semantic meaning of the constitutional text, through a search for the constitutional rules provided by the original meaning or understanding of that text. It is expected that sometimes, perhaps often, the original meaning will be vague, and unable to generate a determinate rule. In such a case, the task changes to constitutional construction, which is a matter of specifying constitutional rules in a manner which will not (because it cannot) be guided by the constitutional text.

See Solum, “Semantic Originalism”, supra note 2 and “A Reader’s Guide to Semantic Originalism and a Reply to Professor Griffin” (June 19, 2008) Illinois Public Law Research Paper No. 08-12 (http://ssrn.com/abstract=1130665) [Solum, Reader’s Guide].

9. Prominent critics include Berman, Mitchell “Originalism is Bunk” (2009) 84 N.Y.U.L.Rev. 1 Google Scholar; Griffin, Stephen, “Rebooting Originalism” (2008) U. Ill. L. Rev. 1185 Google Scholar; and Colby, Thomas and Smith, Peter, “Living Originalism” (draft July 25, 2008), GWU Legal Studies Research Paper No. 393Google Scholar, http://ssrn.com/abstract=1090282.

10. E.g., Kavanagh, Aileen, “The Idea of A Living Constitution” (2003) 16 Can. J.L. & Jur. 55 Google Scholar [Kavanagh, Living Constitution] and at greatest length and sophistication in Canada, Waluchow, A Common Law Theory, supra note 2.

11. Hogg, Constitutional Law, vol. 2., supra note 1 at 36-26.

12. Marriage Reference, supra note 6 at para. 22. See also Binnie J., Original Intent, supra note 1 at 347-48 and Hogg, Constitutional Law, vol. 2, supra note 1 at 60.1(f).

13. Edwards v. Attorney-General for Canada, [1930] A.C. 124 Google Scholar (P.C.) (the “Persons” case) per Lord Sankey L.C. at 136 [Edwards].

14. Binnie describes the case as a “standing rebuke to an overly deferential attitude to originalism.” Binnie, Original Intent, supra note 1 at 366.

15. Marriage Reference, supra note 6; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669 (overturning Que CA for using an “originalist” approach instead of a progressive approach) at paras. 9-10 and 45-46 [Employment Insurance Reference]; Canadian Western Bank v. Alberta, 2007 SCC 2, [2007] 2 S.C.R. 3 at para. 23.

16. Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357. A thorough overview of the spread of progressive interpretation to the various constitutional instruments has been provided by Binnie, Original Intent, supra note 1. See also, Jackson, Vicki C., ‘Constitutions as “Living Trees”? Comparative Constitutional Law and Interpretive Methods’ (2006) Fordham L. Rev. 921 at 954 [Jackson]Google Scholar, and Huscroft, Grant, ‘A Constitutional “Work in Progress”? The Charter and the Limits of Progressive Interpretation’ in Huscroft, Grant & Brodie, Ian, eds., Constitutionalism in the Charter Era (Markham, ON: LexisNexis Canada, 2004) at 413 Google Scholar [Huscroft, A Constitutional “Work in Progress”?].

17. Marriage Reference, supra note 6 at para. 30.

18. Ibid. at para. 22.

19. Ibid. at para. 23.

20. Hogg, Constitutional Law, vol. 2, supra note 1 at 60.1(f).

21. This would be broader than the rejection of original intent, and would extend to, for example, original meaning originalism as well.

22. Hogg, supra note 1 at 15.9(f).

23. Solum, Reader’s Guide, supra note 8 at 3.

24. Ibid.

25. Marriage Reference, supra note 6 at para. 22.

26. A particularly unhelpful statement comes from the concurring reasons of J., LaForest in Ontario Home Builders’ Association v. York Region Board of Education, [1996] 2 S.C.R. 929 at paras. 145-46Google Scholar, which cites Hogg’s question-begging rationale for progressive interpretation: “[a]n inflexible interpretation, rooted in the past, would only serve to withhold necessary powers from the Parliament or Legislatures,” and appeals to the difficulties in obtaining constitutional amendments when needed. See also the discussion in Huscroft, A Constitutional “Work in Progress”?, supra note 16 at 417-27.

27. That the progressive interpretation doctrine should be better developed with respect to the Constitution Act, 1867 over the Constitution Act, 1982 is not surprising: the greater the passage of time, the more changes in society one would expect, and the greater the accumulation of precedents addressing them.

28. “For instance, Parliament’s legislative competence in respect of telephones was recognized on the basis of its authority over interprovincial “undertakings” in s. 92(10)(a) even though the telephone had yet to be invented in 1867: Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52 (P.C.).Google Scholar” Marriage Reference, supra note 6 at para 23.

29. Capital Cities Comm. Inc. v. C.R.T.C, [1978] 2 S.C.R. 141 Google Scholar.

30. Johannesson v. West St. Paul, [1952] 1 S.C.R. 292.Google Scholar

31. Ontario Hydro, supra note 1.

32. Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310 (PC) at 324Google Scholar. Marriage Reference, supra note 6 at para 23.

33. Constitution Act, 1867, (U.K.), 30 & 31 Vict, c. 3, s. 91(27)Google Scholar, reprinted in R.S.C. 1985, App. II, N0.5. s. 91(2)(a).

34. Employment Insurance Reference, supra note 15.

35. See Kavanagh, Living Constitution, supra note 10 at 79-86.

36. Note that in the Canadian constitutional order all legislative power is understood to be allocated to one or other of the federal or provincial governments.

37. Employment Insurance Reference, supra note 15.

38. Kavanagh, Living Constitution, supra note 10 at 79-86.

39. Ibid. at 80.

40. District of Columbia et al. v. Heller, 128 S.Ct. 2783 (2008) at 8.Google Scholar

41. Hogg, Constitutional Law, vol. 2, supra note 1 at 60.1(f). Hogg does not cite any exponents of this particular brand of originalism, one that “ignores … the possibility that the framers were content to leave the detailed application of the Constitution to the courts of the future.” However unlikely it is that any scholar held the position criticized by Hogg when he first made it in 1987, such a position had been entirely overtaken by originalist scholarship by the time Hogg repeated the words in the 2007 update to the looseleaf edition of his text.

42. Kavanagh, Living Constitution, supra note 10 at 80 (relying on Greenberg and Litman).

43. Ibid.

44. Ibid. at 84-85.

45. Ibid. at 85; equivalently, “underlying moral development in society” at 86.

46. R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571.

47. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.Google Scholar

48. R. v. Morgentaler, [1988] 1 S.C.R. 30 [Morgentaler].Google Scholar

49. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344 [Big M Drug Mart]. Google Scholar

50. Hunter v. Southam Inc, [1984] 2 S.C.R. 145 at 156 [Hunter]. Google Scholar

51. Big M Drug Mart, supra note 49 at 344.

52. B.C. Motor Vehicle Act Reference, [1985] 2 S.C.R. 486 at 509Google Scholar.

53. Big M Drug Mart, supra note 49 at 344 (Dickson CJ). At issue in Big Mwas whether a statute prohibiting retail trade on Sundays violated freedom of religion under s. 2(a) of the Charter. The Court held that it did, and that the infringement could not be justified under s. 1.

54. “In the case of most rights,” Hogg argues, “the widest possible reading of the right, which is the most generous interpretation, will “overshoot” the purpose of the right, by including behaviour that is outside the purpose and unworthy of constitutional protection.” Hogg, Constitutional Law, vol. 2, supra note 1 at 36.8(c).

55. Stéphane Beaulac has argued that the methodology for Charter interpretation articulated by the Court is in fact no different from the Court’s practice in ordinary statutory interpretation, see Beaulac, Stéphane, “L’interpretation de la Charte: reconsideration de l’approche téléologique et reevaluation du role du droit international” in Beaudoin, Gerald A. & Mendes, Errol, eds., Canadian Charter of Rights and Freedoms, 4th ed. (Markham, ON: Lexis Nexis Butterworths, 2005) 24.Google Scholar

56. Big M Drug Mart, supra note 49 at 344-45.

57. Ibid. at 339-41.

58. Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1985, App.III, s.1(b).

59. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 170 (McIntyre J).Google Scholar

60. ‘The issue … is not whether the intent of the originating body should be taken into account because no one who expects to be taken seriously would argue that it should not be. The issue is whether or not the framers intended a “frozen rights” approach to our political institutions and our rights and freedoms, Binnie, Original Intent, supra note 1 at 347-48. Hogg, Peter, Constitutional Law of Canada, 5th ed., vol. 1, looseleaf (Scarborough, ON: Thomson Carswell, 2007) at 15.9(f) [Hogg, , Constitutional Law, vol. 1].Google Scholar

61. “the past plays a critical but non-exclusive role in determining the content of the rights and freedoms granted by the Charter.” Reference re Prov. Electoral Boundaries (Sask.) [1991] 2 S.C.R. 158 at 180 (McLachlin J.)Google Scholar.

62. Granovsky v. Canada (Minister of’Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703 at para. 57Google Scholar [Granovsky].

63. Or, like Binnie J. in Original Intent, to mark the distinctions at the outset, and then proceed as though originalism and original intent were coextensive.

64. Binnie, Original Intent, supra note 1 at 347-48.

65. See Solum, Reader’s Guide, supra note 8 at 37-39.

66. At least, they cannot bind in the longterm: “(a)11 that progressive interpretation insists is that the original understanding is not binding forever.” Hogg, Constitutional Law, vol. 1, supra note 60 at 15.9(f).

67. See, e.g., onahan, Patrick: “Originalism does not merely claim that the intentions of the framers deserve to be considered or even to be accorded presumptive weight in the interpretive process. The identifying feature of the originalist argument is the claim that the intentions of the framers should be conclusive in resolving textual ambiguity. If it is possible to ascertain how the framers would have applied a particular constitutional provision, then that interpretation must govern, regardless of any arguments or considerations to the contrary.” Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto, ON: Carswell, 1987) at 74.Google Scholar

68. B.C. Motor Vehicle Act Reference, supra note 52 at 507-09 (Lamer J.).

69. “[T]he Minutes of the Proceedings of the Special Joint Committee, though admissible, and granted somewhat more weight than speeches should not be given too much weight.” Para. 50-52.

70. Some argue that such omissions are the inevitable because the framers not only did not communicate their intentions about how particular sections of the Charter should be interpreted substantively, but in fact had no such intentions. See, for example, Kelly, Governing with the Charter, supra note 2.

71. Solum, Reader’s Guide, supra note 8.

72. Egan v. Canada, [1995] 2 S.C.R. 519 at 536, per J., LaForest Google Scholar

73. ‘ … on the subamendment of Mr. Robinson (Burnaby) [part (d) of the subamendment, to add the words “sexual orientation” to Section 15 (1)] was negatived on a division of Yeas: 2 and Nays: 22.’ Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada (Hansard), 48:6 (29 January 1981) (Ottawa, ON: Queens Printer, 1981).Google Scholar

74. Kelly, Governing with the Charter, supra note 2 at 98-102.

75. Binnie, Original Intent, supra note 1 at 375.

76. Ibid.

77. See the discussion in Binnie, Original Intent, supra note 1 at 362-63.

78. Of course, this reading overstates the degree to which the “principled” sections of the Charter are statements of pure principle rather than the product of an historical bargain. It also understates the degree to which the confederation bargain sections are themselves the product of a vision of the common good.

79. A.G. (Que.) v. Quebec Protestant School Boards, [1984] 2 S.C.R. 66 at 79. Google Scholar

80. Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549 at 578.Google Scholar

81. [1987] 1 S.C.R. 1148 at para. 28.

82. [2003] 3 S.C.R. 3 at para. 27: “This Court has made it clear that the fact that language rights arose from political compromise does not alter their nature and importance; consequently, s. 23 must be given the same large and liberal interpretation as all Charter rights.”

83. Beaulac, Stéphane, “L’interpretation de la Charte: reconsideration de l’approche téléologique et reevaluation du role du droit international” in Beaudoin, Gerald A. & Mendes, Errol, eds., Canadian Charter of Rights and Freedoms, 4th ed. (Markham, ON: LexisNexis Butterworths, 2005) 24 at 35-36Google Scholar.

84. E.g., Ontario Hydro, supra note 1 at 409. (Iacobucci J. (dissent)), R. v. Prosper, [1994] 3 S.C.R. 236 at 287Google Scholar [Prosper], Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, para. 5 (J., Iacobucci (dissent)).Google Scholar

85. E.g., Health Services and Support—Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 Google Scholar, [2007] 2 S.C.R. 391 [Health Services]. Although these are really two separate contexts, the appeals to original intent in these two contexts serve the same purpose and for this reason are analyzed together.

86. Binnie, Original Intent, supra note 1 at 347.

87. I am grateful to Carolyn McKenna for making this observation.

88. More usually, the Court will not signal that it has overruled a precedent, but will instead explain that the underlying facts have changed since the time the precedent was decided, and that this changed factual matrix is what drives the new result. See, e.g., the Court’s reconciliation of Kinder v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 Google Scholar with R. v. Burns, [1994] 1 S.C.R. 656 Google Scholar, and its reconciliation of RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 Google Scholar and Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30 Google Scholar, [2007] 2 S.C.R. 610 at para. 9.

89. Health Services, supra note 85.

90. Overruling Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R 313 Google Scholar; PSACv. Canada, [1987] 1 S.C.R. 424 Google Scholar; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460 Google Scholar; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367.Google Scholar

91. Health Services, supra note 85 at para. 40.

92. Ibid. at para. 67: This established Canadian right to collective bargaining was recognized in the Parliamentary hearings that took place before the adoption of the Charter. The acting Minister of Justice, Mr. Robert Kaplan, explained why he did not find necessary a proposed amendment to have the freedom to organize and bargain collectively expressly included under s. 2(d). These rights, he stated were already implicitly recognized in the words “freedom of association”: Our position on the suggestion that there be specific reference to freedom to organize and bargain collectively is that that is already covered in the freedom of association that is provided already in the Declaration or in the Charter; and that by singling out association for bargaining one might tend to d[i]minish all the other forms of association which are contemplated—church associations; associations of fraternal organizations or community organizations. (Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, Issue No. 43, January 22, 1981, at pp. 69-70)

93. And indeed the majority does rely on such commitments in Health Services, supra note 85 at paras. 69-79 and in Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, para 10.Google Scholar

94. “To accept the proposition that deliberate lies can never fall under s. 2(b) would be to exclude statements such as the examples above from the possibility of constitutional protection. I cannot accept that such was the intention of the framers of the Constitution.” R v. Zundel, [1992] 2 S.C.R. 731 at 755 (McLachlin J. for the majority) [Zundel]. Google Scholar

95. R v. Collins, [1987] 1 S.C.R. 265 Google Scholar, R v. Morgentaler, supra note 48; R v. Hebert, [1990] 2 S.C.R. 151 Google Scholar; Mckinney v. University of Guelph, [1990] 3 S.C.R. 229 Google Scholar; Granovsky, supra note 62; R v. Finta, [1994] 1 S.C.R. 701 Google Scholar; R. v. S. (R.J.), [1995] 1 S.C.R. 451 Google Scholar; Zundel, supra note 94; Lovelace v. Ontario, 2000 SCC 37 Google Scholar, [2000] 1 S.C.R. 950; Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519Google Scholar; Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238Google Scholar, Employment Insurance Reference, supra note 15.

96. Granovsky, supra note 62 at para. 57.

97. B.C Motor Vehicle Act Reference, supra note 52.

98. Hunter, supra note 50.

99. Big M Drug Mart, supra note 49.

100. Binnie, Original Intent, supra note 1.

101. He argues that to the extent that we can know the framers’ intent, we know that they intended that we not be bound by framers’ intent: “[i]t would be wrong to conclude that the principle of progressive interpretation is necessarily inconsistent with the intentions of the framers. What originalism ignores is the possibility that the framers were content to leave the detailed application of the Constitution to the courts of the future, and were content that the process of adjudication would apply to the text in ways unanticipated at the time of drafting.” He continues with the argument that originalism is self-effacing: “it is quite likely that the ‘interpretive intention’ of the framers was something like the doctrine of progressive interpretation.” Hogg, Peter, “The Charter of Rights and American Theories of Interpretation” (1987) 25 Osgoode Hall L.J. 87.Google Scholar See also Dworkin’s, Ronald distinction between abstract and concrete intentions in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 38 Google Scholar, and discussion in Kavanagh, Aileen, “Original Intention, Enacted Text, and Constitutional Interpretation” (2002) 47 Am. J. Juris. 255 at 285.CrossRefGoogle Scholar

102. Kelly, Governing with the Charter, supra note 2 at 89-90.

103. One should note that while the question of limiting judicial discretion may have been the lodestar of the originalist project in the 1980s, it is not a central preoccupation of the New Originalism.

104. Scalia, Antonin, A Matter of Interpretation: Federal Courts and The Law (Princeton, NJ: Princeton University Press: 1997) at 44–45.Google Scholar

105. Kavanagh, Living Constitution, supra note 10 at 57.

106. Ibid. at 89.

107. Hogg, Constitutional Law, vol. 1, supra note 60 at 15.9(f). Internal citation is to R. v. Blais, [2003] 2 S.C.R. 236 at para. 40Google Scholar. Although Hogg goes much further and contemplates that in the context of federalism review, ‘original understanding’ is binding for an unstated period of time after enactment: “[a]11 that progressive interpretation insists is that the original understanding is not binding forever.” Hogg, Constitutional Law, vol. 1, supra note 60 at 15.9(f). Note that he does not repeat this claim in his analysis of the interpretation of the Charter.

108. Kavanagh, Living Constitution, supra note 10 at 69-73.

109. Ibid. at 71.

110. Ibid. at 78.

111. BCGEU v. British Columbia (Attorney General), [1988] 2 S.C.R. 214.Google Scholar

112. See, Bastarache J.’s thinly veiled commentary on the decision of the federal government to withdraw the Court Challenges Program, which funds some Charter challenges to federal legislation in Societe des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, [2008] S.C.J. No. 15:Google Scholar “The appellants ask for $135,000 in costs … In light of the abolition of the Court Challenges Program, which would have applied to a case such as this one, and since the respondent appears to have acknowledged the importance of the principles in issue in this case, as she has not asked for costs, the appellants are awarded the requested amount.” (These words were later expunged from the reasons for judgment after a rehearing on costs after it was revealed that the appellant did in fact receive funding from the Court Challenges Program. See Schmitz, C., “Reasons disappear from Supreme Court decision,” The Lawyers Weekly, November 28, 2008.)Google Scholar

113. For an example of the contestability of whether an interpretation transgresses such constraints, consider, L’Heureux-Dubé J.’s dissent in R. v. Prosper, supra, note 84 at 287-88, disagreeing that s.7 of the Charter required state-funded duty counsel: While the “living tree” theory would perhaps let us by-pass the will of the legislature, that theory is usually used to put right an interpretation which is no longer in accordance with the current socio-economic context … I doubt it can be used to interpret a constitutional document, such as the Charter, which is still in its infancy at a time when the socio-economic context has not evolved. Besides, the “living tree” theory has its limits and has never been used to transform completely a document or add a provision which was specifically rejected at the outset. It would be strange, and even dangerous, if courts could so alter the constitution of a country. Counsels’ arguments regarding the “living tree” theory in the particular context of this case are not appropriate.

114. Kavanagh, Living Constitution, supra note 10 at 83.

115. Ibid. at 83.

116. Ibid. at 84.

117. Ibid.

118. Ibid

119. Ibid. at 85.

120. She states that her argument “is based on an assumption that moral change of a certain sort is possible. Of course, I cannot provide a comprehensive analysis of the source or extent of moral change or the moral epistemological problems which may surround it. However, I will assume that the degree of change in moral views that is manifest in the history of our societies is evidence of moral change.” Ibid. at 84 [citation omitted].

121. Ibid. at 86.

122. Ibid.

123. I have argued that W.J. Waluchow’s argument for the constraining power of “community constitutional morality,” while more elaborately expounded than Kavanagh’s concept of “fundamental moral development” also suffers from being more illusory than real. See Waluchow, A Common Law Theory, supra note 2 at 216-38 and Miller, Bradley W, “A Common Law Theory of.Judicial Review by W.J. Waluchow” (2007) 52 Am. J. Juris. 297.CrossRefGoogle Scholar

124. See the discussion in Finnis, John, “Commensuration and Public Reason” in Chang, Ruth, ed., Incommensurability, Incomparability, and Practical Reasoning (Cambridge, MA: Harvard University Press, 1997) 215 at 221-23Google Scholar.

125. Kavanagh, Living Constitution, supra note 10 at 85.

126. Prosper, supra note 84 at 287.

127. [1985] 2 S.CR 486.

128. Hogg, 60.1(g) supra note 1.

129. Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.CR 429 at para. 82 (C.J., McLachlin)Google Scholar.

130. Jackson, supra note 16 at 959.

131. Marriage Reference, supra note 6.

132. See also Finnis, John, Aquinas: Moral, Political and Legal Theory (Oxford: Oxford University Press, 1998) at 146 Google Scholar, and George, Robert P., In Defence of Natural law (Oxford: Clarendon Press, 1999).CrossRefGoogle Scholar

133. Marriage Reference, supra note 6 at para. 27.