I would say in the USA a lot of the litigation is about rights read into the constitution, besides guns. As a document of modern conception, our courts aren’t reading rights into existence, but interpreting rights.
Like, roe v wade was about an implied right to privacy, where morgentaler in Canada was a security of the person case (as was medical assistance in dieing, medicinal marijuana) and the section 35 rights are actually interpreted very narrowly (the crown needs to consult and know the damage it is doing before making decisions that effect treaty rights).
That we have rights that are more relevant to the 21at century seems more likely the reason for divergence than anything. If anything the Canadian system is set up to be more ‘conservative’ with section 1 and what became the Oakes Test, and the not withstanding clause.
It’s really no different though. Both involve texts that outline vague propositions that need to be interpreted in order to determine what specific rights and procedural obligations are contained within the Charter and s.35. It has been SCC decisions that have expanded the meaning and substance of this text to modern contexts and sensibilities, and has done so expansively without being tied down to the originalist, textualist theories that exist in the US.
Morgentaler is not a good example of how the Charter clearly outlines rights. It was a deeply divided decision with the dissent going out of their way to say that finding a right to an abortion was not capable of being read into s. 7. The other opinions were all over the place and turned primarily on the procedural side of s.7 where the Criminal Code provision, which allowed for an exemption for women who faced a health risk of carrying to term, was “illusory” and therefore contrary to the principles of fundamental justice. La Forest and McIntyer’s dissent is an example of rights construction that is narrow. The majority/ concurring opinions were very liberal by any standard of construction.
The duty to consult is procedural and is part of the Court’s interpretation of what s.35 demands. It is an obligation that needs to be met if 1. The Crown is trying to justify infringing a right protected under s.35 or 2. The Crown is comprehending an action which might impact on a yet to be established right.
Neither the duty to consult, honour of the Crown, Aboriginal Title, nor reconciliation is mentioned in s.35 but forms a central part of modern SCC s.35 jurisprudence. That is hardly conservative interpretation.
S1 itself could be seen as conservative, but the SCC has not approached it as such and Oakes framework remains a very high bar for the government to meet, especially when it impacts vulnerable groups.
