This paper argues that constitutional interpretation should be non-discriminatory. Unfortunately, Canada’s Constitution contains a particularly deep and troubling interpretive inconsistency. This flaw exists in relation to Aboriginal and treaty rights within section 35(1) of the Constitution Act, 1982. Most constitutional rights are interpreted in accordance with a living tree approach. Conversely, Aboriginal peoples’ rights are largely viewed through an originalist lens. This paper explains the differences in these approaches, highlights their adverse effects for Aboriginal peoples, and identifies non-discriminatory alternatives consistent with Canada’s broader constitutional framework.
"(Ab)Originalism and Canada’s Constitution."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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