Definitions

1. The Living Tree Doctrine: a framework or set of rules in Canadian law used to interpret the Canadian constitution. It states that the constitution is organic and adapts as times change, so it must be read it a progressive way.

2. Originalism: the view that the primary intent of the authors and the original significance of the Constitution language should decide how the Constitution is understood now.

History

-The Living Tree Doctrine became entrenched in the Canadian Constitution starting with the Edwards v. Canada case (Persons Case) in 1930

-“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”- Lord Sankey

Advantages and Disadvantages

Advantages: helps adapt to changing society, helps deal with modern problems, flexibility, helps divide power between federal and provincial governments

Disadvantages: original values may not be preserved, imprecision/ambiguity, people may claim the Constitution implies something it does not, bias

Case Study 1: The Persons Case (Edwards v. Canada/ Attorney General)

– this case resulted in women being permitted to be Senators in Canada

-the Famous Five lobbied for women to have equality with men in terms of political rights

– this case brought the Living Tree Doctrine into being (the Constitution had to be read in a broad-minded manner, not literally, otherwise women would not be considered “persons” under the law

Case Study 2: Reference Re Same-Sex Marriage

-In 2004, responding to provincial appeal courts on the matter, the Canadian government conveyed to the Supreme Court the question of whether same-sex marriage was valid under the Constitution.

-The Court rejected the original definition of marriage as being the union of a man and a woman.  The Living Tree Doctrine  was used . A parallel was drawn between excluding women from being “persons” in the Persons Case and the exclusion of same-sex partners from the meaning of marriage.

-The Court stated that the meaning of marriage was not restricted to what it meant in 1867, but that it must develop with the multitude of  groups that make up the mosaic of Canadian society.



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