Living tree doctrine
Encyclopedia
In Canadian law, the living tree doctrine is a doctrine
of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.
The living tree doctrine has been deeply entrenched into Canadian constitutional law since the seminal constitutional case of Edwards v. Canada (Attorney General)
also widely known as the "Persons Case" wherein Lord Sankey
stated: "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits." This is known as the Doctrine of Progressive Interpretation. This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes. If constitutional interpretation adheres to the Framer's Intent
and remains rooted in the past, the Constitution would not be reflective of society and eventually fall into disuse.
The interpretation of the Canadian Charter of Rights and Freedoms
also makes use of the living tree doctrine. Chief Justice Antonio Lamer
stated in Re B.C. Motor Vehicle Act
(1985), "If the newly planted 'living tree' which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials, such as the Minutes of Proceedings and Evidence of the Special Joint Committee, do not stunt its growth."
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.
The living tree doctrine has been deeply entrenched into Canadian constitutional law since the seminal constitutional case of Edwards v. Canada (Attorney General)
Edwards v. Canada (Attorney General)
Edwards v. Canada [1930] A.C. 124 – also known as the Persons Case – is a famous Canadian and British constitutional case where it was first decided that women were eligible to sit in the Canadian Senate...
also widely known as the "Persons Case" wherein Lord Sankey
John Sankey, 1st Viscount Sankey
John Sankey, 1st Viscount Sankey GBE, KStJ, PC, KC was a prominent British lawyer, judge and Labour politician, famous for many of his judgments in the House of Lords...
stated: "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits." This is known as the Doctrine of Progressive Interpretation. This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes. If constitutional interpretation adheres to the Framer's Intent
Original intent
Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...
and remains rooted in the past, the Constitution would not be reflective of society and eventually fall into disuse.
The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.
—Supreme Court of Canada
Supreme Court of CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
, in its ruling, Re: Same-Sex Marriage, December 20042004 in CanadaEvents from the year 2004 in Canada.-January:* January 1 - Montreal Dorval Airport is renamed, after some controversy, Montréal-Pierre Elliott Trudeau International Airport....
The interpretation of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
also makes use of the living tree doctrine. Chief Justice Antonio Lamer
Antonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
stated in Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...
(1985), "If the newly planted 'living tree' which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials, such as the Minutes of Proceedings and Evidence of the Special Joint Committee, do not stunt its growth."
See also
- Living ConstitutionLiving ConstitutionThe Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...
- Persons CaseEdwards v. Canada (Attorney General)Edwards v. Canada [1930] A.C. 124 – also known as the Persons Case – is a famous Canadian and British constitutional case where it was first decided that women were eligible to sit in the Canadian Senate...
- Constitutional history of CanadaConstitutional history of CanadaThe constitutional history of Canada begins with the 1763 Treaty of Paris, in which France ceded most of New France to Great Britain. Canada was the colony along the St Lawrence River, part of present-day Ontario and Quebec. Its government underwent many structural changes over the following century...
- Original intentOriginal intentOriginal intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...
- Moral relativismMoral relativismMoral relativism may be any of several descriptive, meta-ethical, or normative positions. Each of them is concerned with the differences in moral judgments across different people and cultures:...