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11/14/2020

Leonid Sirota on Canadian Originalism
Michael Ramsey

Yesterday I mentioned the interesting Canadian law blog Double Aspect, which has an originalist orientation.  Here is a recent post from its founder Leonid Sirota:  Still Keeping It Complicated--The Supreme Court tries to bring more rigour to constitutional interpretation and takes a step towards textualism, but won’t admit it.  From the introduction: 

In my last post, I summarized the opinions delivered in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32. While the Supreme Court unanimously holds that corporations are not protected from cruel and unusual punishment by section 12 of the Canadian Charter of Rights and Freedoms, the majority (Justices Brown and Rowe, with the agreement of the Chief Justice and Justices Moldaver and Côté) and the principal concurrence (Justice Abella, with Justices Karakatsanis and Martin) strongly disagree about the proper approach to constitutional interpretation and to the role in this process of international and foreign legal materials.

As promised, in this post I present my thoughts on these opinions, primarily on their general approach to interpretation, though I’ll say something on the role of international and foreign materials too. I will, once again, begin with Justice Abella’s opinion, which in my view is representative of what I have described as “constitutionalism from Plato’s cave” ― the judicial creation of constitutional law out of abstract ideals favoured by the judges themselves rather than genuine interpretation of a constitutional text. I will then turn to the majority opinion, which repudiates constitutionalism from the cave, but also seemingly rejects what I regard as the best interpretive method, public meaning originalism. I will argue that there is less to this rejection than meets the eye.

One question on which I will say nothing, although the majority and the principal concurrence trade sharp accusations on it, is which of these opinions is more consistent with precedent. As Benjamin Oliphant and I have pointed out in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence”, the Supreme Court has never been consistent in how it interpreted the constitution, mixing and matching originalist and living constitutionalist approaches in any number of unpredictable ways. (Mr. Oliphant has developed this theme elsewhere too.) Justices Brown and Rowe are right to call for more rigour and consistency on this front; but they are wrong, as is Justice Abella, to suggest that has been any rigour and consistency in the past. Whatever their flaws, neither the majority nor the concurring opinion break with established law, because there is no real law to break with.