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The Original Living Tree

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The Original Living Tree 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.
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