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.
Our next Annual Conference will take place from July 6-9, 2021. It will be held in a completely novel way as a fully online Conference: ICON•S Mundo. Stay tuned.
The Call for Papers for ICON•S Mundo is now closed. Successful applicants will be notified by the end of May.
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