Canada and the Living Tree

Living tree constitutionalism is firmly established in Canadian constitutional interpretation, notably since the arrival of the Charter of Rights and Freedoms. Some recent Canadian writing questions the early authority for the living tree (Edwards v AG Canada (1929)), arguing that the doctrine was essentially re-invented to support progressive Charter interpretation, and instead supports originalist constitutional interpretation along American lines. This paper re-examines the record and concludes that Canadian courts from the 1930s onwards understood the living tree doctrine and applied it, in particular to the changing context of Canada’s progress from colony to independent nation. This paper also attempts to put living tree constitutionalism in a broader theoretical frame, arguing that it is in conformity with other constitutional principles, such as democracy and the rule of law.