The Original Living Tree

Abstract

One of the main arguments in Canada in favour of the “living tree” doctrine is that it has deep roots in our constitutional tradition. As the Supreme Court of Canada said in Reference Re Same-Sex Marriage, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation.” The argument goes something like this: beginning with the famous “Persons case” of 1929 (Edwards v. Canada(Attorney General)), the Judicial Committee of the Privy Council recognized the Constitution to be a living tree, capable of evolving to meet new social and economic realities, and this method of constitutional interpretation has remained fundamental to Canada’s constitutional order ever since.