The Past Speaks

Prof. Bradley Miller of UBC has published some astute observations about the Canadian Supreme Court’s recent decision in the Comeau case and the court’s approach to the use of historical evidence. I take Miller’s point about the complexity of determining “authorial intent” in a document (the BNA Act) that had many Fathers.  My own view is that in parsing out the meaning of this text, historians and judges should focus on what was likely the intent of the individual who actually decided on the phrasing of the sections– the lawyer Francis Savage Reilly (1825-1883), the man in whose handwriting the various drafts of the BNA Act were composed. (I can offer a coherent explanation for why this individual’s intention should be regarded as the most important in this context, but doing so would involve drawing on philosophy and on the classic works on historical methodology by Von Ranke, Langlois and Seignobos,  and Sir Richard Evans. However, I will leave that taks to another day!).

I would add that while I was disappointed by the outcome of the case, I respect the fact that the Supreme Court took my historical argument very seriously.  Paragraphs 55 to 67 of the decision were basically devoted to unpacking what I had written and said and included direct quotations from my text. Moreover, I think that my testimony did have an impact on the Court’s eventual decision, for the Court did not change the existing interpretation of Section 121 enough to help Mr. Comeau, it did significantly change how this section of the constitution will be interpreted in the future.

Here’s what I mean. In 1921, the Supreme Court said that Section 121 only prohibits interprovincial trade barriers that take the form tariffs/customs duties. The Comeau decision holds that Section 121 was only designed to prohibit laws that whose essential purpose is to restrict interprovincial trade. [I suspect that from now on, governments that pass new laws that restrict interprovincial trade will be careful to avoid declaring their protectionist intentions in public and on the record]. I would say that I, and the lawyers I worked with, did help to “move the needle” a little bit.

It seems to me that Brad and other legal historians should do a study of “comparative originalism” that would investigate how historical information and historical expertise is processed differently by courts in the nations that have constitutional lawyers who advance originalist arguments. These nations include the US, Australia, and India and likely others as well. We know that originalist theory has evolved over the last 40 years in the US and that each variant of originalism privileges different types of primary sources and historical expertise. Balkin’s piece on new-style originalism may interest researchers. It seems to me that Leonid Sirota would be the ideal individual to lead a collaborative project that would compare how originalist jurisprudence in different countries process history.

By the way, some excellent papers on the Comeau decision have appeared online and haven’t been cited as much as they should have. I would like to draw them to the attention of readers.

Brett Capstick, “The Supreme Court of Canada’s Re-Examination of Internal Trade: The Case of Beer” (2017) Library of Parliament HillNote

Christian Whalen, “R. v. Comeau and Judicial Activism” (2016) Canadian Bar Association

Malcolm Lavoie, “R. v. Comeau and Section 121 of the Constitution Act, 1867: Freeing the Beer and Fortifying the Economic Union, (2016) Dalhousie Law Journal)

Asher Honickman, “A Marriage Made in Britain: Section 121 and the Division of Powers” (2016) CanliiConects.