Canadian law The legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous la ...

, the living tree doctrine () is a

doctrine Doctrine (from la, Wikt:doctrina, doctrina, meaning "teaching, instruction") is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, taught principles or positions, as the essence of teachings in a given ...

of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.

Concept

The living tree doctrine has been deeply entrenched into Canadian constitutional law since the seminal constitutional case of ''

Edwards v Canada (Attorney General) ''Edwards v Canada (AG)''also known as the ''Persons Case'' (french: l'Affaire « personne »)is a famous Canadian constitutional case that decided in 1929 that women were eligible to sit in the Senate of Canada. The legal case was put forward b ...

'', also widely known as the ''Persons Case'', wherein

Viscount Sankey A viscount ( , for male) or viscountess (, for female) is a title used in certain European countries for a noble of varying status. In many countries a viscount, and its historical equivalents, was a non-hereditary, administrative or judic ...

stated in the 1929 decision: "The

British North America Act The British North America Acts 1867–1975 are a series of Acts of Parliament that were at the core of the constitution of Canada. Most were enacted by the Parliament of the United Kingdom and some by the Parliament of Canada. In Canada, some ...

planted in Canada a living tree capable of growth and expansion within its natural limits." This is known as the doctrine of progressive interpretation. This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes. If constitutional interpretation adheres only to the framers' intent and remains rooted in the past, the Constitution would not be reflective of society and would eventually fall into disuse. However, "natural limits" cannot be granted too elastic a definition. In the Marcotte trilogy, it was held that payments by

credit card A credit card is a payment card issued to users (cardholders) to enable the cardholder to pay a merchant for goods and services based on the cardholder's accrued debt (i.e., promise to the card issuer to pay them for the amounts plus the o ...

could not be considered to fall within the federal bills of exchange power, as there had been no shift in how a bill of exchange is defined in Canada.

Charter

The interpretation of the ''

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...

'' also makes use of the living tree doctrine. Chief Justice Antonio Lamer stated in '' Re B.C. Motor Vehicle Act'', "If the newly planted 'living tree' which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials, such as the Minutes of Proceedings and Evidence of the Special Joint Committee, do not stunt its growth."

Outside Canada

United States

In the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., federal district, five ma ...

there is also a philosophy of a living constitution. The idea of the living constitution is similar to the living tree doctrine; both philosophies assert that the constitution of their respective countries should reflect the current mores and values of society. This view point is in contrast with constitutional originalism, which is the belief that the

constitution of the United States The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...

is to be interpreted in a way that reflects the original meaning when it was written.

United Kingdom

In a 2011 speech, Brenda Hale, Baroness Hale of Richmond used the terminology of the ''living tree'' in a somewhat controversial discussion of the European Convention of Human Rights, describing it as a more "vivid image" than the "living instrument" doctrine used in relation to the Convention.

External links

The Canadian Doctrine of the Living Tree

References

Constitution of Canada Legal doctrines and principles {{Canada-law-stub