Canadian law The legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous ...

, the living tree doctrine () is a

doctrine Doctrine (from , meaning 'teaching, instruction') is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a ...

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.

Concept

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 Viscount Sankey stated in the 1929 decision: "The

British North America Act The British North America Acts, 1867–1975, are a series of acts of Parliament that were at the core of the Constitution of Canada. Most were enacted by the Parliament of the United Kingdom and some by the Parliament of Canada. Some of the a ...

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 only to the framers' intent and remains rooted in the past, the Constitution would not be reflective of society and would eventually fall into disuse. However, "natural limits" cannot be granted too elastic a definition. In the Marcotte trilogy, it was held that payments by credit card could not be considered to fall within the federal

bills of exchange A negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time, whose payer is usually named on the document. More specifically, it is a document contemplated by or consisting of a ...

power, as there had been no shift in how a bill of exchange is defined in Canada.

Charter

The interpretation of the ''

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the '' Constitution Act, 1982''. The ''Char ...

'' also makes use of the living tree doctrine. Chief Justice

Antonio Lamer Joseph Antonio Charles Lamer (July 8, 1933 – November 24, 2007) was a Canadian lawyer and jurist who served as the 16th Chief Justice of Canada from 1990 to 2000. Career Lamer practised in partnership at the firm of Cutler, Lamer, Bellemare ...

stated in '' Re B.C. Motor Vehicle Act'', "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."

Outside Canada

United States

In the

United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...

there is also a philosophy of a

living constitution The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. Proponents view the constitution as developing alongside society's needs and ...

. The idea of the living constitution is similar to the living tree doctrine; both philosophies assert that the constitution of their respective countries should reflect the current mores and values of society. This view point is in contrast with constitutional originalism, which is the belief that the

constitution of the United States The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...

is to be interpreted in a way that reflects the original meaning when it was written.

United Kingdom

In a 2011 speech,

Brenda Hale, Baroness Hale of Richmond Brenda Marjorie Hale, Baroness Hale of Richmond, (born 31 January 1945), is a British judge who served as President of the Supreme Court of the United Kingdom from 2017 until her retirement in 2020. In 2004, she joined the House of Lords as a ...

used the terminology of the ''living tree'' in a somewhat controversial discussion of the

European Convention of Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a supranational convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the ...

, describing it as a more "vivid image" than the "living instrument" doctrine used in relation to the Convention.

External links

The Canadian Doctrine of the Living Tree

References

Constitution of Canada Legal doctrines and principles {{Canada-law-stub