One of the main arguments in Canada in favour of the “living tree” is that it has deep roots in our constitutional tradition. As the Supreme Court of Canada said in Reference Re Same Sex Marriage, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation.”[1] The argument goes something like this: beginning with the famous ...

I am very pleased to report that my paper, “Watertight Compartments: Getting Back to the Constitutional Division of Powers,” has been selected for publication in the upcoming edition of the Alberta Law Review. In this paper I argue that ss. 91 and 92 of the Constitution Act, 1867 (formerly the B.N.A. Act, 1867) establish mutually exclusive jurisdictional spheres – what the Privy ...

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 ...

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 ...

This Article was published in the Autumn 2014 edition of the Advocates’ Quarterly1   Eighty-five years ago this October, the Judicial Committee of the Privy Council handed down its decision in Edwards v. Attorney-General for Canada, in which it held that “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural ...