The Shotgun Blog
Monday, July 20, 2009
Liberty Summer Seminar: MP Scott Reid to discuss original intent and the Canadian Constitution
The Liberty Summer Seminar, hosted by the Institute for Liberal Studies, is an annual libertarian gathering in Orono, Ontario, an hour and a half east of Toronto.
Set on a beautiful 40-acre property, the event, now in its ninth year, is the premier libertarian event in Canada, drawing 100 attendees and some of the finest libertarian speakers from across North America. This year's event is this upcoming weekend, July 25, 26.
Scott Reid, Member of Parliament for Lanark, Frontenac, Lennox & Addington, will speak this year on the topic of "Original Intent and the Canadian Constitution." Canada's Supreme Court has adopted what it likes to call a "living tree doctrine" when it comes to the interpretation of our Constitution, including the Charter of Rights and Freedoms. Reid will argue that this is a mistake, and that the court should be more partial to following an original intent doctrine, where the original intentions of the writers and ratifiers of the constitution are given significant weight.
Reid has attended several Liberty Summer Seminars. Also from the riding of Lanark, Frontenac, Lennox & Addington, Reid's provincial counterpart, MPP Randy Hillier, who ran for the leadership of the Ontario PC Party recently on a pro-free speech, pro-private property, and pro-individual liberty platform, will also be in attendance to listen to the speakers. Both Reid and Hillier will be available to speak informally with attendees.
Can't make it, but sounds like a great line-up of speakers. Hope it all goes well.
Posted by: Craig | 2009-07-20 12:48:15 PM
LSS is one the best libertarian events in the world and easily the best in Canada.
Posted by: Michael Cust | 2009-07-20 1:37:08 PM
Consider me cynical. Reid is simply stating again what most of us already knew. I recall when the framers were still alive and stressed that judicial activists were reading into the charter things that had been purposely omitted. Yet we continue to get one government after another that refuses to address the issue. The issue being that non elected judicial activists have replaced Parliament in legislating.
Posted by: Alain | 2009-07-20 3:35:39 PM
I am not a legal scholar, so I can get lost easily in legal minutiae, but shouldn't we want laws and the Constitution to be read just as they are written, and not in the way we think the authors of them meant them to be understood? That is, shouldn't the laws be what they actually said, not what we think they meant to say?
I am not a fan of a "living tree" idea because that allows for the twisting of texts that has allowed, for example, human rights legislation to restrict speech in ways that do massive violence to the actual wording of the legislation. But talk of "original intent" worries me as well, because it allows judges to say things like "well, the wording of the legislation looks like it says X, but I think the authors meant to say Y instead." In effect, it seems to me that talk of "original intent" opens the door for asking judges to read the minds of the original legislators (and there might have been hundreds involved, too, each of whom had different ideas of what the law might really mean).
Sometimes people can intend to say one thing and say another. This, in fact, is exactly how legal loopholes are created in the first place. When that happens a judge should uphold the loophole because that's what the law really says. Shylock gets a pound of flesh yes, but not a drop of blood. It does not matter what he intended to demand. When there are loopholes, it is up to legislatures to close them. When the intent of the legislation otherwise does not match what it actually says, this also is for legislatures to fix. Judges should just read the words as written.
So while "original intent" sounds good as an improvement on "living tree", I still would feel more comforatble with the idea of "plain meaning of the words at the time they were written".
By the way, I should point out that the view I endorse here is one that backs up the Courts "reading in" sexual orientation as a protected category in the equality clause of the Charter. When it was written, some legislators intended that clause to specifically exclude sexual orientation and others specifically intended it to leave the issue unsettled while others, who saw the plain meaning of the words as written, saw that it really did include sexual orientation just without explicitly naming it. So while "living tree" people can support reading it in and "plain meaning of the words" people can also support it, the "original intent" crowd is stuck because there is no monolithic original intent for the court to side with. So in the end, "original intent" thinking is speculative mindreading with the possibility of concuding that there is no single reading possible, which would paralyze a court making them incapable of making any ruling of any kind at all. Surely that's a bad thing.
Posted by: Fact Check | 2009-07-20 5:17:33 PM
The concerns you raise are exactly the reasons Justice Scalia does not endorse an original intent interpretation of legal texts, instead going with original meaning -- what the written words would have meant at the time they were written.
It's a basic principle of rule-of-law that the law be clear and knowable to those expected to obey it. To whatever extent the meaning of the law turns on what might have been in the heads of the lawmakers, the law becomes inscrutable.
And just as you point out: what if more than one person was involved in the making of the law, each with somewhat different intentions? What then?
Your example involving the equality clause is a good one. I'd really like to know what others think of it.
Posted by: Terrence Watson | 2009-07-20 6:00:29 PM
Your worries, Alain, could be addressed by Scott directly, if you can make the LSS this year. Similarly, Fact Check, if you can make it out to Orono this weekend you, too, could challenge Scott's preference for an interpretation doctrine. I'd actually be curious to hear his responses.
Posted by: P.M. Jaworski | 2009-07-20 6:32:35 PM
PMJ, I did not express worries but facts. Also it was not meant to be a criticism of Scott, since this can do no harm. It is just that he is pointing out facts of which many were already aware and which have been pointed out many times in the past. The problem is clear and the solution is clear, but as long as government, whatever the party, refuses to act nothing changes. A simple means would be to invoke the not-withstanding clause every time judges exceed their mandate.
FC says we should not try to interpret what is written based on the original intention of the framers. That may very well be and is not the problem. I repeat the problem is with judicial activists reading into the document that which was NOT there. The court's job is to apply legislation passed by Parliament. Now we have the opposite.
Posted by: Alain | 2009-07-20 7:44:32 PM
Alain you miss the whole point of what a supreme court is. They are not there to "apply legislation passed by parliment"; their role is to limit excessive government: as defined by the constitution. This gives the citizens at least some minimal protection from abusive government.
As far as I know the only use so far of the not withstanding clause has been allowing bigotted legislation in Quebec to continue. The dangerous suggestion this clause be used every time the government is found to be acting illegally would make the current sad state of affaris even worse and give the government total power.
Posted by: V. M. Smith | 2009-07-21 12:49:13 PM
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