Adrian Myers is a lawyer at Torkin Manes LLP.
Generally, the addition of diversity to Canada's bench is something to be praised, not feared. But Prime Minister Stephen Harper's appointments of Bradley Miller and Grant Huscroft to the Ontario Court of Appeals represent a much more controversial form of diversity. Namely, ideological diversity in the form of judges, particularly Justice Miller, who adhere to the U.S. judicial philosophy of "originalism," a controversial ideology hitherto mostly absent from Canadian jurisprudence.
Justice Miller's writings offer insight into what Canadian originalism might look like. Despite what proponents suggest, originalism is unlikely to lead to a more modest judiciary or solve the problem of "judicial activism" Mr. Harper has often bemoaned. Instead, further originalist appointments might give Mr. Harper a more conservative judiciary.
Originalism is the most influential U.S. constitutional-law doctrine of the past 25 years. It holds such sway that every competing theory of constitutional interpretation must address the challenge of originalism, which, incidentally, is also the title of a book on the topic that Justice Miller and Justice Huscroft edited together. Originalism is a solution to a straightforward problem of constitutional interpretation: all constitutional text is ambiguous, especially terms like "equality" and "free speech," so judges need a method for giving these terms meaning.
Originalism suggests that interpretation is best done by looking at the original meaning of the terms. Early originalists suggested judges look to what the framers of a constitution meant. This proved difficult – in the United States, as in Canada, the founders and framers of the country often had irreconcilable views on the very constitution they ratified.
Modern originalists, lead by bombastic and brilliant U.S. Supreme Court Justice Antonin Scalia, rejected the "intention of the framers," instead opting to search for the "original public meaning" of a constitutional provision. When answering a legal question about free speech, originalists now ask what a reasonable person at the time of constitutional ratification – 1791 in the United States, 1982 for the Canadian Charter of Rights and Freedoms – would have thought a term like "free speech" meant.
This sharply contrasts with the dominant approach to constitutional interpretation in Canada, which is based on the idea that the Constitution is – as famously described by Lord Sankey in Edwards v. AG Canada (the case holding that women were "persons" for the purpose of serving in the Senate) – a "living tree." Since the persons case, Canadian courts have taken a "purposive" approach to interpretation. This requires judges to interpret the constitution liberally, analyzing each provision contextually and harmoniously to give force to the rights each provision is designed to protect.
Originalists believe this gives judges too much discretion and results in "judicial activism" – a term suggesting judgments based on personal politics and not legal reasoning. In his working paper "Beguiled by Metaphors: The 'Living Tree' and Originalist Constitutional Interpretation in Canada," Justice Miller writes that purposive analysis "lacks the resources to discipline or constrain its interpretations." Constraining judges to the original public meaning of a clause, originalists argue, means they must base their decision on legal reasoning, not ad hoc moral judgments. Justice Miller thinks the purposive approach itself is founded on a mistake: in his paper "Origin Myth: The Persons Case, The Living Tree and the New Originalism," he says the Privy Council engaged in an originalist-like analysis, and not a purposive one, in its decision.
So we can expect Justice Miller and Justice Huscroft to write judgments that focus sharply on legislative history and other types of historical analysis to divine the original public meaning of a clause. Justice Miller argues that this does not mean originalist decisions could not deal with modernity. To this point, he holds up Justice Scalia's decision in District of Columbia v. Heller – a case that overturned a ban on handguns, automatic firearms and high-capacity semi-automatic firearms in Washington, D.C. – as a model of originalism's ability to cope with modernity, since the prohibited handguns in the case were a modern invention.
Although he leaves the door open to the idea that originalists could consider moral progress in their reasoning, Justice Miller is skeptical that moral changes deserve treatment similar to that of the technological changes in Heller. In that vein, Justice Miller has written skeptically of arguments for marriage equality. It would seem that his originalism rejects same-sex marriage as being protected under the Charter's equality guarantee – Section 15(1) – as sexual orientation was considered but not included as a protected ground when the Charter was drafted. (Justice Miller has argued against an expanded definition on behalf of The Interfaith Coalition on Marriage and Family in the landmark decision Halpern v. Canada (Attorney-General) approving same-sex marriage).
It is unclear why one noun, "arms" in the Heller decision, is more capable of sustaining an updated meaning than another, "equality" in Section 15(1) of the Charter. There is little reason to believe that the original public meaning of the word "arms" in 1791 would have approved of automatic handguns in the home had the public known such things were possible. Nor is there reason to believe that, had Canadians had the understanding of sexual orientation they have now, Canadians in 1982 would not have believed LGBT persons deserve equal protection.
Meanwhile, a purposive approach to interpretation may suggest the intent of the second amendment was to provide for the defence of the United States in the absence of a standing army or, at minimum, of an individual's home. Neither purpose supports overturning a democratically decided ban on automatic weapons. Similarly, the purpose of Section 15(1) has been described as preventing a violation of essential human dignity, something that discrimination based on sexuality – as we understand it in 2015 – surely does.
Originalism, it seems, is no less limited or constrained than the purposive approach and equally as capable of leading to "judicial activism."
Cynics would say this is because interpretive methodologies are a way to cloak political decisions in the veneer of principle. I would not go that far. Originalists will be more conservative than those who take a more purposive approach; the past was a more conservative place. Nor is ideological diversity necessarily a path towards U.S.-style politicized courtrooms. Purposives should welcome the challenge to consider the past more seriously. And it is heartening to read that originalists like Justice Miller do not necessarily believe originalism is bound by the morals of the past.
This could ultimately be a good thing for Canadian justice. But if Mr. Harper thinks originalism will prevent "judicial activism," he is wrong. But, if he wants "judicial activism" that works in his favour, he might just have found his ideology.
Editor's note: an earlier version of this story said Stephen Harper had appointed Bradley Miller to the Ontario Superior Court. That appointment was in December, and Justice Miller has since been elevated to the Court of Appeal. This story has been clarified.