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Trudeau appointed 10 judges to the Supreme Court, completely remaking the institution during his premiership.

Such characterizations of originalism as a right-wing American creation are admittedly common, but demonstrably false. Originalism is neither American nor inherently conservative. In fact, it was the dominant method of interpreting Canadian statutes — including the Constitution — for the first century and more after Confederation. Contrary to popular wisdom, the true American import to Canada is not originalism, but the living constitution.

For most of Canadian history, our judges accepted that they were neutral umpires tasked with interpreting laws in a principled fashion, and that policy considerations were best left to the people’s elected representatives. This method of judging, known today as “formalism,” was considered an essential feature of the separation of powers and the rule of law.

Among the principles developed by the formalists was the original meaning canon – which held that “the words of a statute must be construed as they would have been the day after the statute was passed,” since this was the only way to give effect to the intention of the legislature. Early Canadian decisions confirmed that the BNA Act, being a legal statute, should be interpreted by discerning the original meaning of its text (allowing of course for technological innovations and other external developments).

The case ofEdwards vs. Canada — which dealt with whether women were “qualified persons” who could be summoned to the Senate — is often held up as the moment when Canada rejected originalism and adopted the “living tree” doctrine. But as a number ofrecent commentators, includingJustice Miller, have noted, the Privy Council based its decision on the meaning of “qualified persons” at the time the BNA Act was passed in 1867. The reference to the “living tree” in Edwards was simply meant to convey that, as of 1867, Canada was no longer bound by the British common law, which had long excluded women from public life.