Eighty-three years ago this month, on Oct. 18, 1929, the British Empire’s senior jurist, Lord Chancellor John Sankey, ruled that “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” The way the Supreme Court sees it, these words give Canada’s courts the authority to unilaterally rewrite our country’s Constitution.
It might seem odd, to an outside observer, that so massive a power-grab would rest on the authority of a single 83-year-old precedent — particularly when the precedent is just a metaphor. Nonetheless, since 1980 Lord Sankey’s living tree has been so regularly cited by the Supreme Court that Chief Justice Beverly McLachlin refers to it as the “animating premise” of Canadian constitutional interpretation.
For example, here is the Court’s assertion that it can turn an area of formerly exclusive provincial jurisdiction into a shared federal-provincial responsibility: “If the Canadian constitution is to be regarded as a ‘living tree’ and legislative competence as ‘essentially dynamic,’ then the determination of categories existing in 1867 becomes of little, other than historic concern.”
And here is the Court’s assertion that it can periodically expand Charter rights, in ways never anticipated by Pierre Trudeau and the other authors of the Charter: “One day s. 7 [of the Charter] may be interpreted to include positive obligations. To evoke Lord Sankey’s celebrated phrase, the Canadian Charter must be viewed as ‘a living tree capable of growth and expansion within its natural limits.’ It would be a mistake to regard s. 7 as frozen….”
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The court case that changed everything | Full Comment | National Post
It might seem odd, to an outside observer, that so massive a power-grab would rest on the authority of a single 83-year-old precedent — particularly when the precedent is just a metaphor. Nonetheless, since 1980 Lord Sankey’s living tree has been so regularly cited by the Supreme Court that Chief Justice Beverly McLachlin refers to it as the “animating premise” of Canadian constitutional interpretation.
For example, here is the Court’s assertion that it can turn an area of formerly exclusive provincial jurisdiction into a shared federal-provincial responsibility: “If the Canadian constitution is to be regarded as a ‘living tree’ and legislative competence as ‘essentially dynamic,’ then the determination of categories existing in 1867 becomes of little, other than historic concern.”
And here is the Court’s assertion that it can periodically expand Charter rights, in ways never anticipated by Pierre Trudeau and the other authors of the Charter: “One day s. 7 [of the Charter] may be interpreted to include positive obligations. To evoke Lord Sankey’s celebrated phrase, the Canadian Charter must be viewed as ‘a living tree capable of growth and expansion within its natural limits.’ It would be a mistake to regard s. 7 as frozen….”
more
The court case that changed everything | Full Comment | National Post