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Living tree doctrine

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Title: Living tree doctrine  
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Subject: Judicial interpretation, Living Constitution, Edwards v Canada (AG), Section 121 of the Constitution Act, 1867, Constitution of Canada
Collection: Constitution of Canada, Legal Doctrines and Principles
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Living tree doctrine

"Living tree" redirects here. For the biological sense of the living tree, see Tree

In Canadian law, the living tree doctrine (French: théorie de l'arbre vivant) is a doctrine 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.

The living tree doctrine has been deeply entrenched into Canadian constitutional law since the seminal constitutional case of Edwards v. Canada (Attorney General) also widely known as the "Persons Case" wherein Viscount Sankey stated in the 1929 decision: "The British North America Act planted in Canada [is] 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 to the Framer's Intent and remains rooted in the past, the Constitution would not be reflective of society and 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 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.[2]

The interpretation of the Canadian Charter of Rights and Freedoms 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."[3]

See also

References

  1. ^ Reference re Same-Sex Marriage 2004 SCC 79 at par. 22, 28, [2004] 3 SCR 698 (9 December 2004)
  2. ^ Marcotte v. Fédération des caisses Desjardins du Québec 2014 SCC 57 at par. 21 (19 September 2014)
  3. ^ Re B.C. Motor Vehicle Act 1985 CanLII 81 at par. 53, [1985] 2 SCR 486 (17 December 1985)


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