The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

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Comeau and Constitutional Interpretation


R. v. Comeau raises questions about the place of originalism in the interpretation of a federalism provision of the Constitution Act, 1867, as well as related issues about the doctrine of stare decisis. Indeed, in anticipation of the Supreme Court’s hearing of the case, Léonid Sirota and Benjamin Oliphant wrote in the postscript to their 2017 article entitled “Originalist Reasoning in Canadian Constitutional Jurisprudence”: “[t]he Supreme Court’s decision … may well provide welcome clarifications as to [the] value and importance of originalist reasoning in Canada”. They argued that the case posed a question that represented “‘the biggest single challenge facing originalists’ — whether and how to ‘reconcil[e] originalism with precedent’” that deviates from the original meaning of a constitutional provision. When understood in these terms, Comeau engaged a broad academic debate about the relationship between living tree constitutionalism and originalism that is ongoing in Canada, the United States and elsewhere.