HomeTag Archives: living tree

Tag Archives: living tree

Has the Supreme Court Moved Beyond the “Living Tree”?

One of the first things law students are taught is that our Constitution is a “living tree.”  The Supreme Court has said that the living tree doctrine, which holds that our Constitution must be capable of evolving to meet new social realities, is “one of the most fundamental principles of Canadian constitutional interpretation” (See Reference Re Same Sex Marriage, at ...

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On the Nomination of Justice Martin to the Supreme Court

Advocates for the Rule of Law congratulates Justice Sheilah L. Martin of the Alberta Court of Appeal on her nomination to the Supreme Court of Canada. Justice Martin’s academic and professional credentials to serve on the Supreme Court — including being a law dean, law professor, commercial litigator, pro bono constitutional lawyer, and very active member of the profession generally — ...

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Courts, Legislatures, and the Illusion of “Dialogue”

I.     WHAT IS A CONSTITUTIONAL RIGHT? It has been said that Constitutions are a “mirror reflecting the national soul”[1].  While these comments were made before the Canadian Charter of Rights and Freedoms (Charter) came into effect, there is no reason to believe that the Charter, which focusses on a guaranteed set of civil liberties (Charter rights), should be any less ...

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The Comeau Decision is a Welcome Example of Serious Doctrinal Analysis

Constitutional law and alcohol are forever linked. Many famous distribution of powers cases giving rise to new federalism doctrine were about alcohol. It should not be a surprise that we can now add another case to the list. R. v. Comeau, coming out of the New Brunswick Provincial Court, is a novel judicial meditation on Canadian federalism, specifically regarding the ...

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Constitutional Originalism is a Canadian Staple

Few legal concepts have been so little understood yet so much vilified as originalism has been in Canada. Adam Dodek has said that “originalism” is a “dirty word” on this side of the Canada-U.S. border. Following the death of Justice Antonin Scalia, Canadian jurists, including former Supreme Court judges, took to the media to remind us that originalism has no ...

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The Need for Doctrine: Scalian Originalism and Canadian Purposivism

A legal lion passed away recently. One might argue that the death of Justice Antonin Scalia means much more for the American legal audience than the Canadian one. After all, Scalia’s death tossed the Supreme Court of the United States into the centre of an already contentious election season and brought to the forefront the divisively partisan tendencies of the ...

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Reviving Originalism in Canada

Originalism posits that the content of a constitution is determined partly by the intentions and purposes of its founders and the understandings of the founding generation. This essay calls for the (re)introduction of originalism, which has an important place in American politics, legal academia, and courts,1 into Canadian constitutional law. First, I explain the importance of the methodology of constitutional ...

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Justice Stratas on the Decline of Doctrine

Justice David Stratas of the Federal Court of Appeal gave an excellent talk at the Canadian Constitution Foundation’s Law and Freedom Conference on January 8, 2016. The title of his keynote address was “Reflections on the Decline of Legal Doctrine.” It can be viewed here. The address focussed primarily on constitutional and administrative law. In Justice Stratas’s view, judges and academics ...

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Justice Rothstein Casts Doubt on the Living Tree

I recently learned that, back in October, recently-retired Justice Marshall Rothstein gave a speech at the University of Saskatchewan, in which he criticized the “living tree” doctrine, which holds that the meaning of the Constitution may evolve over time – in most cases, beyond what the text can reasonably bear.  The original living tree metaphor comes from the Privy Council’s decision in Edwards ...

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“Clear and Definitive”: The Offence of Bestiality and the Rules of Statutory Interpretation

Last month, the Supreme Court of Canada heard oral arguments in the case R. v. D.L.W.  The issue for appeal is not exactly garden variety. The Supreme Court has been asked to determine whether the offence of “bestiality” in the Criminal Code requires penetration.   Background The facts are not in dispute and are disturbing to say the least. The accused respondent ...

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