e Original Living Tree
Asher Honickman*
One of the main arguments in Canada in favour tion should not be interpreted in a “narrow and of the “living tree” doctrine is that it has deep technical” manner, but should rather be given roots in our constitutional tradition. As the a “large and liberal interpretation.” 6 ! e Privy Supreme Court of Canada said in Reference Re Council acknowledged the well-established rule Same-Sex Marriage, the living tree is “one of the that the then British North America Act, 1867 7 most fundamental principles of Canadian con- (now the Constitution Act, 1867 )8 should be stitutional interpretation.” 1 ! e argument goes interpreted “by the same methods of construc- something like this: beginning with the famous tion” 9 as other statutes. ! is would have neces- “Persons case” of 1929 ( Edwards v. Canada sarily included the original or # xed meaning as (Attorney General) ), 2 the Judicial Committee of canon, which holds that “the words of a statute the Privy Council recognized the Constitution to must be construed as they would have been the be a living tree, capable of evolving to meet new day a$ er the statute passed.” 10 ! e Privy Coun- social and economic realities, and this method of cil, however, distinguished between penal and constitutional interpretation has remained fun- taxing statutes — that ought to be interpreted damental to Canada’s constitutional order ever strictly — and other statutes passed to ensure the since. 3 peace, order, and good government of a British colony. 11 In recent years, several commentators, most notably Justice Bradley Miller (then a Professor at Two years a$ er Edwards was decided, the the University of Western Ontario), have refuted Supreme Court married the “living tree” passage this version of Canadian history. 4 ! ey have to the “large, liberal” interpretation a% orded to demonstrated that the Privy Council’s decision constitutional statutes. 12 It is not clear that Lord in Edwards was a standard exercise of statutory Sankey intended to connect the two concepts; interpretation and textual analysis. ! e reference but in any event, the Court’s interpretation of the to the living tree remains somewhat ambiguous, “living tree” was a far cry from the modern “liv- but Lord Sankey, the decision’s author, appears ing tree” doctrine, which only began to emerge to have said that Canada’s constitutional order in Canada in the 1970s and came into full frui- — most notably, its unwritten constitutional tion during the early Charter era. What is more, principles and the common law — was indepen- granting the BNA Act 13 a large and liberal con- dent of Britain. 5 Whatever else may be said about struction was hardly a new or radical proposition the decision, the Privy Council was clearly not in 1929. ! e Privy Council in Edwards relied on endorsing the principle that the meaning of the W.H.P. Clement’s ! e Law of the Canadian Con- Constitution should change to re" ect the values stitution ,14 third edition, which had been pub- of modern society. lished in 1916, in support of this proposition. 15 And, indeed, the early constitutional scholar, ! e Privy Council followed the “living tree” A.H.F. Lefroy, had written as early as 1897 that passage with an admonition that the Constitu- one of the leading propositions of the BNA Act
Constitutional Forum constitutionnel 29 was that it “cannot be construed in a rigidly tech- tion in which neither order of government could nical manner.” 16 properly address the Great Depression. 23 Nota- bly, however, O’Connor did not argue that the It is perhaps because Edwards was seen as interpretation of the Constitution should evolve a& rming an already-established and relatively to accommodate modern realities — that the uncontroversial proposition of constitutional courts, in other words, should confer more pow- interpretation that the decision fell into obscu- ers upon Parliament so that it may respond more rity so soon a$ er it was decided. It was cited in e% ectively to the Great Depression. Rather, the a handful of decisions in the early 1930s, but Privy Council had betrayed the original meaning rarely again a$ er that until it re-emerged in the of the text, which he considered to be centralist late 1970s. ! e Supreme Court did not utter the in character. phrase “living tree” between 1931 and 1979, and the phrase did not appear in any Canadian deci- Interestingly, O’Connor cited Lord Sankey’s sion between 1936 and 1972. 17 less known “Sixty Colours” analogy from the Aeronautics Reference 24 in support of his argu- * * * ment that courts must conduct a bare textual analysis .25 In that decision, Lord Sankey warned Legal scholars continued to discuss Edwards against judicial interpretations moving slowly during this long interval, but never for the prop- but surely away from the original meaning of osition that it supported a progressive interpre- the text and emphasized that jurists ought to “get tation of the Constitution. 18 As with the courts, back to the words of the Act itself and to remem- they tended to view Edwards , at most, as breath- ber the object with which it was passed .” 26 If that ing new life into an existing principle — that the were not clear enough, he added that “[t]he pro- BNA Act should not be interpreted too rigidly cess of interpretation as the years go on ought — as opposed to establishing a new principle not to be allowed to dim or to whittle down the of progressive interpretation. Two examples provisions of the original contract upon which are particularly instructive: the 1939 O’Connor the federation was founded.” 27 Report, 19 and G.P. Browne’s 1967 text ! e Judicial Committee and the British North America Act, 20 With respect to how the text should be inter- which was written largely in response to the preted, O’Connor acknowledged at the outset O’Connor Report . I single out these two because that the BNA Act was a statute and that “nearly both dealt expressly with the correct interpre- all rules relative to the interpretation of statutes 28 tation of the BNA Act , and both discussed the in general apply to it.” What distinguished the impact of the decision in Edwards on the proper BNA Act from other statutes was that it served as a method of constitutional interpretation. As I constitutional charter and enabled the making of argue below, both authors, despite writing nearly other statutes. Since it did not contain an amend- three decades apart and despite disagreeing to ment provision, “it must have been intended to 29 some extent on the nature of the division of pow- have more " exibility than an ordinary statute.” ers, understood that the BNA Act was to be con- At this point, O’Connor cited the “living tree” 30 strued in accordance with traditional principles metaphor from Edwards in conjunction with of statutory interpretation. dicta from the Privy Council’s decision in British Coal Corporation and others v. ! e King 31 that the BNA Act should be liberally construed. 32 e O’Connor Report O’Connor went on to discuss some Aus- William F. O’Connor wrote his report follow- tralian and English cases and then returned to ing three decisions from the Privy Council that the Canadian context, citing Bank of Toronto had invalidated a number of federal New Deal v Lambe 33 for the proposition that the courts laws. 21 O’Connor assailed the Privy Council as “must treat the provisions of the Act… by the an “imperial judicial tribunal” 22 and argued that same methods of construction and exposition its decisions had created a decentralized federa- which they apply to other statutes”; he then cited
30 Volume 28, Number 1, 2019 Edwards again for the proposition that consti- writing suggests at least a passing familiarity. 42 tutional statutes should be granted a large and It may be that he simply did not give these new liberal interpretation. 34 He concluded by discuss- ideas much credence. In any event, his classically ing basic principles of interpretation applicable textual analysis o% ers persuasive evidence that to all written instruments, namely that the words the new jurisprudential theories in general and should be read in their grammatical and ordinary the progressive “living tree” doctrine in particu- sense and that the “nature, history and ends” of lar had not yet become orthodoxy in the wider a statute should not even be considered unless legal and intellectual communities as they would necessary to resolve ambiguity, clarify obscurity, over the next few decades. or overcome absurdity. 35 ! us, Browne took on O’Connor on his ! us, for O’Connor, text was paramount, and turf. Rather than appealing to changing social in discerning its meaning, the courts should rely circumstances that could justify a less central- primarily on the ordinary meaning of the words. ist federation (such as the Quiet Revolution ! e BNA Act should be construed with some then underway in Quebec), Browne fought greater elasticity, but it remained, at its core, a O’Connor’s textual arguments for centralism statutory enactment subject to the ordinary rules with textual arguments of his own, which, in of interpretation. O’Connor devoted the balance his view, supported the coordinate sovereignty of his report to attacking Privy Council decisions model endorsed by the Privy Council. on textual grounds, honing in on the opening paragraph of section 91. Not only did his analysis Browne began his analysis, much in the steer clear of progressive interpretation, it paid same way as O’Connor had done, by discuss- little more than lip service to the more modest ing the underlying principles of constitutional “large and liberal” version of the “living tree.” If interpretation. Like O’Connor, he cited the Privy 43 anything, his analysis was overly technical and Council’s decision in Bank of Toronto v Lambe legalistic, admonishing the Privy Council for for the basic proposition that the BNA Act was appealing to the larger purposes underlying the a statute and should be interpreted as such. He BNA Act .36 also quoted the entirety of the “living tree” and “large and liberal” paragraphs from Edwards . But whereas O’Connor saw the two decisions work- e Judicial Committee and the ing in tandem with Edwards merely qualifying Lambe , Browne saw them as being in con" ict British North America Act and representing two distinct lines of authority emerging from the Privy Council. He referred to Gerald P. Browne was a Canadian historian, per- the former as the “literal approach” and the latter haps best known as the editor of Documents on the as the “constituent statute argument.” 44 Confederation of British North America ,37 which remains one of the de# nitive primary source ! e constituent statute argument was essen- texts in Canadian constitutional history. In 1967, tially that the BNA Act , being a constitutional when he authored ! e Judicial Committee ,38 the statute, should be interpreted more liberally than notion of a “living constitution” had already an ordinary statute. As noted above, this proposi- been accepted by many jurists in the United tion goes all the way back to early Privy Council States, and new instrumentalist legal philoso- decisions and to Lefroy’s leading constitutional phies, which de-emphasized the text in favour of propositions. But Browne argued that the con- “cultural, social and economic realities,” 39 were stituent statute approach was, in fact, a departure already dominant in Canadian academia. 40 And from the way in which the Privy Council had yet, Browne’s text is steeped in the old formalism typically interpreted the Act and was, at best, an and what historian Richard Risk called “rule of undertow against the strong literalist current. law thought.” 41 It is possible that, as an historian, Browne had not yet been thoroughly exposed In support of the literalist approach, Browne to new jurisprudential philosophies, though his cited the Lambe decision, along with the Labour
Constitutional Forum constitutionnel 31 Conventions Reference 45 decision of 1937, in function to interpret the ‘intention of Parlia- which Lord Atkin had referred to the jurisdic- ment’ as laid down in the Act and not to " t the tional spheres as “watertight compartments.” But Constitution to the changing conditions of social he also cited Lord Sankey’s statement in Edwards life ”. 52 Browne concluded that the Privy Council that “the question is not what may be supposed had essentially rejected the constituent statute to have been intended, but what has been said,” 46 argument. 53 which is far less quoted than the “living tree” passage but far more indicative of the approach Browne’s analysis o% ers an insight into how undertaken by the Privy Council in that case. Edwards was viewed nearly four decades a$ er it Browne thus relied on Edwards both in support had been decided. Two points bear emphasizing. of the constituent statute argument and the more First, while Edwards was seen as embodying a dominant literalist approach. somewhat novel approach to constitutional inter- pretation (known interestingly as the “constitu- Browne went on to discuss the development ent statute” and not the “living tree” approach), of the constituent statute approach, which he that approach was not that the meaning of the acknowledged preceded Edwards while main- text could change over time to re" ect new social taining that it was “explicitly approved and possi- norms; it merely acknowledged that the words bly adopted” in that decision. 47 ! e Privy Council must be capable of some elasticity to accommo- approved of this approach in a couple of subse- date new circumstances (such as the enactment quent decisions, notably British Coal in which of the Statute of Westminster ). Second, this lim- the Privy Council upheld the authority of Par- ited principle was greatly overshadowed by the liament to prohibit criminal appeals to the King Privy Council’s literalist approach, in which the in Council, and Attorney-General of Ontario v. BNA Act was treated no di% erently than an ordi- Attorney-General of Canada and others ,48 the nary statute. So it was, then, that Browne pro- seminal decision that con# rmed Parliament ceeded to undertake his own exposition of the could abolish all appeals to the Privy Council. BNA Act in much the same fashion O’Connor In both cases, the Privy Council had endorsed had done almost three decades earlier: through the view that the BNA Act , being an “organic a rigorous and technical evaluation of the words statute,” should be interpreted " exibly to allow themselves. for the “widest possible amplitude” of federal power. 49 Both decisions endorsed a “large and *** liberal” reading of the BNA Act , but both were ! e constitutional scholar William Lederman, also anchored fundamentally to the recent enact- 50 who perhaps more than any other can be cred- ment of the Statute of Westminster, 1931 , which ited with spearheading the movement toward had, in some respects, expanded the power of legal instrumentalism in Canada, saw the Parliament. ! us, while the Privy Council was O’Connor Report and the Judicial Committee as prepared to consider a changing constitutional exemplifying the hopelessness of the “literal or landscape , there is no indication that it was ever grammatical” approach to constitutional inter- prepared to consider changing social norms . pretation. Both O’Connor and Browne had pur- ported to employ a textualist method, but they Moreover, according to Browne, these deci- had reached opposite conclusions due to the sions were in the minority: “In by far the major- ambiguity of the BNA Act . ! e solution was to ity of cases it was the approach adopted in Bank interpret the Act based on the “ongoing life of of Toronto v. Lambe, rather than the one re" ected the country” — focusing less on the words them- in Edwards v. Attorney-General for Canada, that selves and more on the social and cultural con- 51 prevailed.” Browne quoted from a 1937 Har- text of modern Canadian society. 54 vard Law Review article written by progressive constitutionalist Ivor Jennings which had con- Lederman’s criticism arguably held the “liter- cluded that the Privy Council “has never seri- alist” or textualist method to an impossible stan- ously wavered from the principle that it was their dard. ! e virtue of textualism was always that it
32 Volume 28, Number 1, 2019 reduced, not eliminated, uncertainty and sub- ity to accommodate new phenomena such as the jectivity by signi# cantly narrowing the scope of invention of airplanes or the enactment of new plausible interpretation. Browne largely agreed constitutional statutes. ! e text alone enjoyed with O’Connor and their relatively narrow dis- primacy, and while it was not to be interpreted agreement can be examined and assessed with a narrowly, the courts were duty bound to apply great deal of objectivity. 55 But ultimately, it was its # xed meaning. It is this principle, and not the the view of Lederman and others that would pre- modern living tree doctrine, that was “one of the vail. ! e judicial function, which Chief Justice most fundamental principles of constitutional Lyman Du% had once summed up as “interpreta- interpretation” for most of Canadian history. tion and interpretation alone,” 56 soon expanded into the realm of social policy. ! e development of the “living tree” doctrine coincided with this larger phenomenon and was arguably a function of it; at its core, it was the rejection of formal- ism and traditional textual analysis in favour of a Endnotes “sociological” approach to law. * Asher Honickman is a partner at Matthews Contemporaries of the Edwards decision Abogado LLP, and founder of Advocates for the such as O’Connor saw it as an a& rmation of an Rule of Law, a legal think tank. He would like to existing principle and one that did not signi# - thank Professor Leonid Sirota for his helpful edits cantly a% ect the basic rule that the BNA Act be with an earlier dra$ construed in accordance with the ordinary prin- 1 2004 SCC 79 at para 22, [2004] 3 SCR 698. ciples of statutory interpretation. Within a few 2 Re Section 24 of the BNA Act , [1930] 1 DLR 98, decades, the decision had fallen into obscurity (sub nom Edwards v Canada (Attorney General)) [1930] AC 124 (PC) [Edwards cited to DLR]. and it can be no wonder that Browne viewed 3 Ibid, at 106-107. See, for example, Stéphane Edwards as little more than a footnote in Cana- Beaulac, “Constitutional Interpretation: On Issues dian constitutional history. Browne was writing of Ontology and Interlegality” in Peter Oliver, in the year of the Canadian centennial, and at Patrick Macklem, Nathalie Des Rosiers, eds, ! e that time he could state correctly that, a$ er an Oxford Handbook of the Canadian Constitution, entire century, the Canadian approach to con- (New York: Oxford University Press, 2017) at stitutional adjudication was still one of ordinary 893-894,905-908, in which the author argues statutory interpretation. that “[f]rom Edwards on courts have treated the Constitution as a living tree,” capable of evolving ! e “living tree” metaphor could trace its to meet changing social circumstances and moral roots to the Edwards decision, but the living tree and political views (at 908). ! e author argues doctrine would not take hold until # ve decades that the “living tree conception introduced in a$ er Edwards had been handed down. Whether Edwards continued, over the decades to exert or not the modern doctrine is correct in a nor- its in" uence in Canada, up to and including the mative sense has been debated for many years time when e% orts were being made to introduce and will most likely be debated for many more a new constitution” (at 894). See also, Justice Rothstein’s lecture in October 2015 in which he to come. But, the historical argument in favour discusses the “prevailing view” that Edwards was of the “living tree” doctrine, which has long but- decided based on the living tree doctrine: Marshall tressed the normative case, should # nally be laid Rothstein, “Checks and Balances in Constitutional to rest. Interpretation – Perspectives from a Recently Retired Supreme Court Justice” (McKercher LLP ! e original “living tree” was not an invitation Lecture Series delivered at the College of Law, to judges to tailor the Constitution to “the chang- University of Saskatchewan, 13 October 2015) ing political and cultural realities of Canadian online: YouTube
Constitutional Forum constitutionnel 33 in Grant Huscro$ and Bradley W Miller, eds, ! e 17 Honickman, supra note 4 at 337-338. Challenge of Originalism: ! eories of Constitutional 18 Reid, supra note 4 at 21. Interpretation (Cambridge: Cambridge University 19 Canada, ! e Parliamentary Counsel, Report Press, 2011). See also Asher Honickman, “! e Pursuant to Resolution of the Senate to the Living Fiction: Reclaiming Originalism for Honourable Speaker Relating to the Enactment of Canada” (2014) 43:3 Adv Q 329; Scott Reid, “! e the British North America Act, 1867 , by William Persons Case Eight Decades Later: Reappraising F O’Connor(Ottawa: 17 March 1939) [ O’Connor Canada’s Most Misunderstood Court Ruling” Report ]. (2013) [unpublished], online SSRN: 34 Volume 28, Number 1, 2019 on Refo rm of the Supreme Court of Canada” (1970) 8:1 Alta L Rev 1 at 2-3. 40 “Scholars and the Constitution”, supra note 39 at 249-255, 406-419. 41 RCB Risk, “! e Classical Age” in G Blaine Baker & Jim Phillips, eds, A History of Canadian Legal ! ought: Collected Essays , (Toronto: University of Toronto Press, 2006) at 253. 42 Judicial Committee , supra note 20 at 6-7. 43 Supra note 33. 44 Judicial Committee , supra note 20 at 20. 45 Labour Conventions Reference , supra note 21 at 684. 46 Edwards , supra note 2 at 107. 47 Judicial Committee , supra note 20 at 24. 48 [1947] UKPC 1, [1947] 1 DLR 801 [ Attorney- General of Ontario ]. 49 British Coal, supra note 31 at 410; Attorney-General of Ontario, supra note 48 at 814-815. 50 (UK), 22 & 23 Geo V, c 4. 51 Judicial Committee , supra note 20 at 28-29. 52 Ibid at 29 [emphasis added], citing W Ivor Jennings, “Constitutional Interpretation: ! e Experience of Canada” (1937) 51:1 Harv L Rev 1 at 35. 53 Ibid at 29. 54 WR Lederman, “! oughts on Reform of the Supreme Court of Canada” (1970) 8:1 Alta L Rev 1 at 2. See also Risk, supra note 39 at 418. 55 See e.g. Asher Honickman, “Watertight Compartments: Getting Back to the Constitutional Division of Powers” (2017) 55:1 Alta L Rev 225 at 230, 234. 56 ! e King v Dubois , [1935] SCR 378 at 381, [1935] 3 DLR 209. 57 Canadian Western Bank v Alberta , 2007 SCC 22 at para 23, [2007] 2 SCR 3. Constitutional Forum constitutionnel 35 36 Volume 28, Number 1, 2019