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Photo by The Canadian Press/Sean Kilpatrick

Our Constitution is a lot younger

The U.S. Supreme Court spends a lot of its time trying to interpret the legalese of men who wore powdered wigs and died 200 years ago. The Canadian Supreme Court will occasionally find itself interpreting 18th century documents, the 1763 Royal Proclamation being a good example. But for the most part, Canadian justices are interpreting a document signed in 1982 — the age of telephones, computers, gender and race equality, security cameras and repeating firearms. Our Constitution is so young, in fact, that many of its framers are still alive and well. One of them is former federal court judge Barry Strayer. He’s 85, he’s from Saskatchewan and he appears to still be listed in the phone book. “Literally and relatively speaking, Canada’s Constitution is a young teenager, and the equality section younger still,” said Eugene Meehan, a lawyer with Supreme Advocacy, an Ottawa-based law firm specializing in Supreme Court appeals. “It’ll grow up, but like any teenager, there’ll be growing pains, and there’ll be talk back.”

Photo by Library and Archives Canada

And we don’t have warring camps on how to interpret it

The U.S. Supreme Court is divided into “originalist” and “living” camps. The originalists (which include Clarence Thomas and Neil Gorsuch) believe that the U.S. Constitution should be interpreted through the lens of the era in which it was created. Since Americans at the time of the 1868 Fourteenth Amendment had no concept of same-sex marriage, the originalists held that the amendment could not be used to legalize it. The “living” side (which includes Ruth Bader Ginsburg) holds that the U.S. Constitution evolves to reflect the era in which it exists. Canada doesn’t have this debate. With few exceptions, members of the Canadian judicial community are in the living camp — and have been since 1929. That was the year of the famous “persons case,” when the London-based Imperial Privy Council overruled Canada’s Supreme Court to decide that the word “persons” in our founding document included women. In the wildly sexist era in which Canada was created, the word “persons” was almost certainly meant to refer to men only — which is why our Supreme Court upheld the “no women” ban. But the British slapped it down, calling the Canadians’ reasoning a “relic of days more barbarous than ours.” The British can’t do that to us anymore, but a “living constitution” precedent was created nonetheless.