Beguiled by Metaphors: The 'Living Tree' and Originalist Constitutional Interpretation in Canada

Abstract

Constitutional interpretation in Canada is dominated by the metaphor of the "living tree". Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, "frozen" at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars, and are in fact expressly rejected in new originalist theories that have been developed principally (but not exclusively) in the United States over the past 20 years. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of either theory.

This paper was prepared for a colloquium on originalist constitutional interpretation held at the Faculty of Law, University of Western Ontarion in October 2008. In it, I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court's attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with originalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.

Keywords: constitutional interpretation, judicial review, Living Tree, originalism, living constitutionalism, progressive interpretation, purposive interpretation, Canada, Kavanagh, Waluchow