A Constitutional 'Work in Progress'? The Charter and the Limits of Progressive Interpretation

Abstract

The notion that the Constitution is a living tree - that its provisions can grow and develop to meet new social, political and historical realities - is well established in Canada. Nevertheless, there are limits to what may be accomplished through constitutional interpretation, limits that are crucial to the legitimacy of constitutional judicial review.

The difficulty of amending the Canadian Constitution is usually assumed to be an argument in support of progressive interpretation of the Charter of Rights and Freedoms, but the proper inference runs in the opposite direction: the difficulty in amending the Constitution is a compelling reason for the Court to be circumspect when it comes to interpreting the Charter, since interpretation may, in effect, change the Charter. When interpretation causes constitutional change, the Court establishes a burden on those opposed to that change to amend the Constitution, and we run into the very problem that was said to justify the need for living tree interpretation in the first place - the difficulty in amending the Constitution.

The author traces the development of the living tree concept in Canadian constitutional law and its extension to the interpretation of the Charter. He considers the Supreme Court of Canada's approach to living tree interpretation and addresses Gosselin v Quebec, in which the Court specifically leaves open the possibility that the Charter might one day be interpreted to include positive obligations such as economic rights, an interpretation he suggests would be tantamount to a constitutional change.

Keywords: Constitutional law, Canadian Charter of Rights and Freedoms, living tree interpretation, progressive interpretation, positive rights

JEL Classification: K10