The Living Fiction: Reclaiming Originalism for Canada

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 limits.”2There is perhaps no other decision in the annals of Canadian jurisprudence that is both so well-known and so fundamentally misunderstood.

For many Canadians, Edwards has taken on a sort of mythological character. It is generally revered for two distinct reasons. First and foremost, it stands as a normative justification for the “living tree” doctrine (the concept that the meaning of the Constitution is not fixed and changes to reflect the values of the current society) and by extension, a firm rebuttal of originalism (the concept that the words in any statute, including the Constitution, should be given the “original meaning” they bore at the time of the law’s enactment).3 The story goes that, in Edwards, the Judicial Committee of the Privy Council – Canada’s highest court until 1949 – found that women are “legal persons”4 and did so by going beyond the original meaning of the Constitution and by viewing the Constitution instead as a “living tree.”

The second reason Edwards is celebrated is that it provides a historical justification for the living tree approach. It allows judges and lawyers to assert that the Constitution has “always” been viewed as a living tree,5 and that to disagree with the living tree doctrine is effectively to disagree with Canada’s fundamental legal character. In Reference re Same-Sex Marriage, for example, a unanimous Supreme Court declared that the living tree was “one of the most fundamental principles of Canadian constitutional interpretation.”6

The problem with this narrative surrounding Edwards is that, as a matter of legal interpretation and history, it is demonstrably false.

What Edwards Actually Said

In the first place, the court in Edwards did not declare that women are “persons” under “the law.” The case concerned whether women were qualified persons pursuant to section 24 of the then British North America Act (now the Constitution Act, 1867), and could therefore be summoned to the Senate should the Governor General choose to do so. The Supreme Court of Canada, which had found that women were not “qualified persons” under section 24, nevertheless conceded “[t]here can be no doubt that the word ‘persons’ when standing alone prima facie includes women.”7 On appeal, the Privy Council confirmed that their lordships were not being called upon to decide “any question as to the rights of women but only a question as to their eligibility for a particular position.”8 In other words, while the decision was unquestionably a victory for female equality at the time, it was, at its heart, a case about statutory interpretation, not constitutional rights.

In determining whether the term “qualified persons” in section 24 referred to women, the Privy Council engaged in a detailed textual analysis of the BNA Act. It noted that the use of persons elsewhere in the Act unquestionably included both sexes and that other sections used the term “male persons” to denote the exclusion of females. Section 23 of the Act set out the various qualifications for a senator, none of which specified that senators must be male. Whereas the Supreme Court had framed its analysis on what Parliament would have intended, the Privy Council was concerned with the meaning of the words themselves. As Lord Sankey, the decision’s author, put it, “the question is not what may be supposed to have been intended, but what has been said.”9 The Privy Council concluded that, as a matter of proper statutory interpretation, the term “qualified persons” in section 24 referred to both sexes.

There can be no doubt that the Privy Council’s analysis eschewed a “narrow and technical” approach in favour of a “large and liberal” interpretation. By the same token, however, there is no indication that the Privy Council was concerned with reaching a result that accorded with contemporary values. The Privy Council’s primary interest was ensuring that Canada remained a self-governing dominion – a “mistress in her own house,”10 as it were. The real “right” at issue in Edwards was not the right of women to be appointed to the Senate; it was whether “the Governor General has a right to summon women to the Senate,”11 and for this reason section 24 warranted a liberal interpretation. Thus, insofar as there remained any ambiguity in the definition of “persons,” the court should err on the side of inclusivity to maximize the Governor General’s discretion over appointments. In the final paragraph of the ruling, Lord Sankey summarized the Privy Council’s reasoning as follows:

…having regard: (1.) To the object of the Act — namely, to provide a constitution for Canada, a responsible and developing State; (2.) that the word “person” is ambiguous, and may include members of either sex; (3.) that there are sections in the Act above referred to which show that in some cases the word “person” must include females; (4.) that in some sections the words “male persons” are expressly used when it is desired to confine the matter in issue to males; and (5.) to the provisions of the Interpretation Act; their Lordships have come to the conclusion that the word “persons” in s. 24 includes members both of the male and female sex, and that, therefore…women are eligible to be summoned to and become members of the Senate of Canada…12

Proponents of the living tree doctrine would undoubtedly respond that the decision was only part textualist – that the Privy Council was also concerned with updating the Act to reach the right result, as evidenced by its reference to the living tree. This, however, is to misread Edwards. As Professor Bradley Miller correctly points out in his 2008 essay on the Edwards decision,13 the Privy Council did not state that the BNA Act was a living tree, but rather that it had planted a living tree. Immediately following the living tree reference, the Privy Council went on to state that “[t]he object of the Act was to grant a Constitution to Canada. ‘Like all written constitutions it has been subject to development through usage and convention’.” The “living tree” metaphor was therefore not in reference the text of the Act itself; it was describing Canada’s larger constitutional order, written and unwritten, and most particularly its unwritten “conventions.”14Conventions are essentially customs that may develop gradually and organically over time within the “fixed limits”15 of the constitutional text. As an example, the role of the Prime Minister is nowhere to be found in the Constitution Act, 1867, but no one would deny that the Prime Minister was a part of Canada’s constitutional order prior to 1982. The Prime Minister’s role can and has evolved to some extent with usage and convention, but there is a fixed limit imposed upon the office by the Constitution Act, 1867 – namely, that whatever power the Prime Minister may wield in practice, he/she can never become the de jure head of state, since the Constitution Act, 1867 explicitly reserves this role for the Queen, as represented in Canada by the Governor General.

In other words, the Privy Council did not state that the meaning of the BNA Act changes with time. It held that Canada’s constitution as a whole, and more particularly the convention of not appointing women to the Senate, were capable of evolving within the constitutional framework. Viewed in its entire context, the living tree passage was clearly meant to convey that Canada, as an independent country, was no longer bound by the British common law, which had long held that women were incapable of holding public office. Canada was now capable of developing its own conventions, so long as they could coexist peacefully with the text of the BNA Act. Since the ordinary meaning of “persons” included women as well as men, Canada was free to establish a new convention of appointing women to the Senate, notwithstanding that the practice up to that point had been only to appoint men. It should be stressed, however, that the meaning of the BNA Act remained the same: the Governor General was authorized, but not compelled, to appoint women to the Senate.

The Privy Council’s approach in deciphering the meaning of “persons” was entirely textualist, and indeed, there is every indication that the lords were interested in what persons meant at the time the BNA Act was passed in 1867 – a meaning that it considered to be unchanging with the passage of time. According to a contemporaneous news account, during the hearing before the Privy Council, the lawyers for Edwards argued that “words may change over the course of a century,” to which one of the judges replied “[w]e must interpret the words in their meaning at the time the Act was passed.”16 Indeed, such an interpretation would have been mandated by the age-old fixed meaning canon17 which provides that “the words of a statute must be construed as they would have been the day after the statute was passed,”18 and the traditional Canadian practice of interpreting the BNA Act “by the same methods of construction and exposition which…apply to other statutes.”19 Even to this day, courts continue to give statutory terms (aside from the Constitution Acts) “the meanings they had at the time of enactment.”20

In sum, the decision that is held up in Canada as the seminal defence of the living tree doctrine actually advocates textual originalism.

Over the course of the next five decades, Edwards received very modest consideration from Canadian courts. In the first decade after its release, it was cited in only a handful of decisions and the living tree passage was quoted only three times. These early decisions generally agreed that the BNA Act should be liberally construed and that the original meaning should be able to accommodate new external circumstances that had not existed in 1867, such as the invention of radios and airplanes; but none of the decisions advocated that the meaning of the text is subject to evolving societal standards. In Reference Re Regulation and Control of Aeronautics in Canada, which was released just two years after Edwards, Lord Sankey once again emphasized that the interpretation of the Constitution must remain textually grounded. He explained that while judicial interpretation remains an integral part of the common law system, care should be taken to ensure that the words of a statute do not become “unduly extended” and that attention is not “diverted from what has been enacted to what has been judicially said about the enactment.”21

Similarly, in the 1936 decision, Kazakewich v. Kazakewich, the majority for the Alberta Court of Appeal summed up the ratios from several Privy Council decisions, including Edwards, and concluded that BNA Act should be interpreted by ascertaining “the intention of the framers…as at the date of the enactment by having regard to the words employed without extraneous aids to interpretation where the language is unambiguous.” The majority went on to emphasize that “none of the observations of Viscount Sankey can be said to provide legal justification for an attempt by Canadian Courts to mould and fashion the Canadian Constitution by judicial legislation so as to make it conform according to their views to the requirements of present day social and economic conditions.”22

By the end of the 1930’s, Edwards had fallen into obscurity. It was cited only twice in the 1940’s, twice in the 1950’s and then not at all in the 1960’s.23 The phrase “living tree” did not appear in a single Canadian decision between 1936 and 1972, and did not appear in a Supreme Court decision again until 1979. The Privy Council would never again utter the phrase in the context of a Canadian appeal.24

The New “Living Tree”

What is now known as the living tree doctrine did not begin to surface until the 1970’s,25 and did not become the dominant form of constitutional interpretation until the 1980’s. As late as 1975, the British Columbia Court of Appeal could state with confidence that, unlike the United States, Canadian courts were concerned solely with the text of a statute and were not permitted to reference “things said in debates,” or engage in “a philosophical and political discussion that extends progressively beyond the ordinary meaning of the words.”26

The Supreme Court’s 1980 decision in British Columbia (Attorney General) v. Ellett Estate27 marks the true beginning of the living tree revolution, and with it, the fundamental mischaracterization of Edwards. The issue in that case was whether British Columbia could impose a succession duty on property in circumstances where the property was located outside the province and the deceased had resided in another province, but the beneficiary was a resident of British Columbia. The Supreme Court concluded the duty was intra vires the province, and found that the phrase “within the province” in section 92 of the BNA Act no longer bore the same meaning it did in 1867. The Court incorrectly cited Edwards for the proposition that the BNA Act is a “living tree” that must “remain flexible and elastic.” Following from this erroneous premise, the Court declared open season on originalism: “[i]f the Canadian Constitution is to be regarded as a ‘living tree’…then the determination of categories existing in 1867 becomes of little, other than historic, concern.”

Recall that in Edwards the living tree was something that had been planted by the BNA Act, but it was separate and distinct from the Act itself. Five decades later, the Act suddenly became the “living tree.” This distinction is utterly crucial since there was no suggestion in Edwards, or in any subsequent decisions of the Privy Council, that the text of the BNA Act was itself a living tree whose meaning would “grow” over time. By shifting the meaning of “living tree” away from Canada’s larger constitutional order to the text of the BNA Act itself, the Supreme Court fundamentally misapplied the ratio in Edwards and set Canada upon a path of judicial legislation.

With the enactment of the Canadian Charter of Rights and Freedoms in 1982, the living tree began to blossom in new directions. In one early Charter decision, Re B.C. Motor Vehicles Act,28 a unanimous Supreme Court used the living tree doctrine to expand the ordinary meaning of the phrase “principles of fundamental justice.” Section 7 of the Charter grants everyone “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The phrase “principles of fundamental justice” had been borrowed directly from section 2(e) of the Canadian Bill of Rights, Canada’s proto-Charter enacted in 1960, and had been interpreted by the Supreme Court to mean that everyone was entitled to a fair hearing before an impartial tribunal.29 Put another way, fundamental justice incorporated a procedural guarantee synonymous with “natural justice,” meaning that the state may certainly deprive an individual of life, liberty or security of the person, but only if procedural safeguards have first been met.

In the first three years following the enactment of the Charter, a number of decisions considered the meaning of fundamental justice under section 7 and generally concluded that it remained an entitlement to procedural fairness only.30 In Re Potma and The Queen (1983), a five-member panel of the Ontario Court of Appeal concluded that the terms “fundamental justice” and “fair hearing” are “the same whether considered under ss. 7 and 11(d) of the Charter under s. 2(e) and (f) of the Bill of Rights, or under the common law.”31That same year, the Manitoba Court of Appeal clarified that “the phrase “principles of fundamental justice” in the context of s. 7 and the Charter as a whole does not go beyond the requirement of fair procedure and was not intended to cover substantive requirements as to the policy of the law in question.”32 These decisions reflected the understanding of the Charter’s framers,33 including the then Minister of Justice, Jean Chretien, who thought fundamental justice and natural justice were basically identical concepts.34

The Supreme Court rejected this “narrow and technical” construction of section 7 and found that “principles of fundamental justice” also includes substantive guarantees – in this case, that offences which carry a prison sentence must contain a mens rea element. The Court reasoned that if the “newly planted ‘living tree’ which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials…do not stunt its growth.”35 Despite clear evidence of a generally accepted meaning, the Supreme Court effectively chose to re-write a section of the Charter and extended substantially the ambit of democratic legislation that may be reviewed and struck down by the judiciary.

Canadian courts have continued to expand the principles of fundamental justice since B.C. Motor Vehicles Reference, adding new (and yet somehow fundamental) principles, some of which have invited a great deal of uncertainty and judicial discretion, such as the principle that laws should not be “over-broad.”36 The result has been that the courts have pronounced on a wide range of value-laden subjects historically reserved for the people’s elected representatives, including but certainly not limited to abortion, private health care, the death penalty, assisted suicide and prostitution – and all through a provision of the Charter whose accepted original meaning was simply that accused individuals be entitled to a fair trial.

What is perhaps most troubling about B.C. Motor Vehicles Reference is that it was not dealing with a vague provision from some bygone era; the Charter had been enacted only three years earlier. The “principles of fundamental justice” had been defined by the Supreme Court just thirteen years earlier. There was therefore no basis upon which the Court could plausibly conclude that times had changed; and yet this is the necessary implication of the ruling. B.C. Motor Vehicles Reference set a dangerous precedent for future decisions. If the meaning of a term could change over such a short period of time, then there was no limit to what a “progressive interpretation” could foster, and no way of predicting when and how the Court would decide that an updated interpretation was needed so that the Constitution could “accommodat[e] and addres[s] the realities of modern life.”37

The Supreme Court has essentially acknowledged this lack of predictability. In Gosselin v. Quebec (Attorney General), the majority found that section 7 of the Charter does not currently include a positive obligation on government to provide welfare services, but still conceded that “[o]ne day s. 7 may be interpreted to include positive obligations.”38 In other words, we know today (or rather, we knew in 2002) that section 7 does not guarantee a right to welfare, but the future is anyone’s guess. While this sentiment may seem appealing in the abstract, the real world consequence is that Canadians cannot say with any assurance what a core section of their Charter provides, and therefore do not know what rights and freedoms they actually possess.

Reclaiming Originalism

The good news for originalists is that enthusiasm for the living tree does appear to be waning somewhat. Landmark Charter decisions have become rarer and references to the living tree have declined in recent years.39 In one recent decision, Consolidated Fastfrate v. Western Canada Council of Teamsters, a 6-3 majority of the Court employed a traditional division of powers analysis and found that the appellant’s business was subject to provincial jurisdiction based on the “nature of its operation” – meaning that it conducted its business entirely within the province – and the long-accepted rule that works and undertakings are generally to be regulated by the provinces. Writing for the dissent, Justice Binnie chided the “originalism” of the majority opinion, and repeated the common fallacy that ours is a living tree nation where originalism was “never accepted.” Binnie J. argued that the Court’s proper role is to apply the Constitution based on the “business realities of 2009,” which would have been “unrecognizable to the statesmen of 1867.”40 What remains unclear, however, is how a court can actually determine what Canada’s “business realities” are, and precisely how those realities should change the way the Constitution is interpreted.

The truth, as we have seen, is that Edwards was itself a model of originalism and exemplified the proper method of statutory interpretation that was accepted for much if not most of Canadian history. The notion that it is the responsibility of the courts to ensure that the Constitution keeps up to date with changing social or cultural norms is the relative newcomer to the interpretive landscape.

There can be no doubt that in the last generation, the living tree has become the primary (and the only officially accepted) method of constitutional interpretation. We have, in certain respects, strayed very far from the original meaning of our Constitution, but it is not too late to return to a more originalist footing.

There are several basic problems with the living tree doctrine: Firstly, it is undemocratic. It empowers judges to create rights or obligations that are found nowhere in the democratically enacted text, and in doing so, it places fundamentally moral choices in the hands of unelected individuals who typically represent a very narrow and privileged segment of society. At the same time, the living tree doctrine encourages legislative abdication. Why, after all, would our elected representatives choose to tackle sensitive political issues when they can simply punt these issues to an activist court which can be counted on to “do something”?

Secondly, insofar as the court is forced to weigh in on moral or public policy debates, originalism ensures that, with very few exceptions, this only happens once. A living tree constitution, on the other hand, must revisit these issues many times over. And when the time comes to reassess whether a particular right is now found somewhere in the Charter, prior judicial precedent will invariably be disregarded where it has fallen out of fashion. A “living tree” court may of course choose to uphold a prior ruling, but its decision to do so will hinge not on whether the case was decided correctly in the first instance, but rather whether the result remains compatible with society’s values, as interpreted by the judges themselves. By its very nature, then, the living tree doctrine is incompatible with one of the key elements of the common law system: stare decisis.

A living tree constitution is also fundamentally unpredictable. There is no legal test to determine whether and in what way a statutory or constitutional provision will evolve – that is left entirely up to the discretion of the presiding judge. Textual originalism, by contrast, can say with relative certainty what the law is today and how it will be interpreted tomorrow, which reduces litigation costs and allows individuals to plan their own affairs accordingly.

Originalism is often disparaged as thinly veiled political conservatism; but this is not borne out by the history of constitutional jurisprudence. In Chaoulli v. Quebec (Attorney General)41, a majority of the Supreme Court found that Quebec’s prohibition on private medical insurance violated the Quebec Charter and section 7 of the Charter (however, Justice Deschamps held that the violation was saved under section 1). This result would have been impossible without the “living tree” decisions that began with B.C. Motor Vehicles Reference. Lest Canadians also forget that long before the Charter was enacted the United States Supreme Court implicitly relied on the living tree doctrine to find that “liberty of contract” was a protected right under the “due process” clause of the Fourteenth Amendment.42 In other words, the “living tree” has the potential to grow in whatever direction the presiding judge sees fit. A “living tree” Constitution may protect the right to public health care; but it may also entrench the right to private health care. It may include a positive right to basic living accommodations; but it may also prevent government expropriation of private property. Indeed, it is the living tree doctrine, not originalism, that is inherently political, and those who gamble on the living tree to advance their political ideology may find in the end that they are disappointed with the result.

In sum, originalism cannot claim to be perfect, but it generally provides a more democratic and predictable legal framework that limits judicial policymaking. In addition, the legal arguments against originalism that we often hear from advocates of the living constitution south of the border – namely, that the text of the Constitution is unintelligible, that evidence of an original meaning is not forthcoming, and that judges are not trained historians – do not transfer well into the Canadian context. Our Charter was enacted in the era of mass media and diligent record-keeping. Many of its terms and provisions find their origin in our rich common law heritage. There is, in other words, an abundance of evidence from which we may safely determine the original meaning of any Charter provision without resort to the ‘heavy lifting’ that is often necessary in an American courtroom.

There may of course be instances in which an originalist interpretation proves less predictable or democratic, or is otherwise not legally sound, such as where a new interpretation has come to be relied upon and where returning to the original meaning would prove wholly impracticable. It would be futile, for instance, to attempt to erase thirty years of Charter jurisprudence by returning section 7 to its original meaning. That ship has sailed. Nevertheless, in light of its original meaning, the application of section 7 should not go beyond issues concerning the administration of justice, and the meaning of “principles of fundamental justice” should not be any further extended. Overall, the courts should presume that the original meaning of the text governs its interpretation and should only depart from that presumption where there is a proper interpretive basis for doing so.43

In deciphering the original meaning, courts should avoid construing words strictly in favour of interpretations that fairly and reasonably consider the text in its entire statutory context (much as the Privy Council did in Edwards). The original meaning should also be construed in broad enough terms to accommodate new phenomena that accord with the ordinary meaning of the text (for example, interpreting the phrase “freedom of the press and other media of communication” in section 2(b) of the Charter to include internet publications, which did not exist at the time of the enactment).

A return to textual originalism would not mean rewriting all of Canada’s Charter jurisprudence. The doctrine of stare decisis ensures that past decisions will not be reversed where they have been generally accepted and have proven workable. Re-embracing originalism will not eliminate rights or obligations that have already been created and have come to be relied upon; but it will ensure that constitutional interpretation is and remains an exercise in applying the law, not in finding the most politically agreeable result. This, after all, is the true proposition for which Edwards stands.

 

 

 

Notes

1 I would like to thank Ronald Podolny for his assistance and especially in helping to articulate the arguments in favour of originalism.

2 [1929] J.C.J. No. 2, para. 44 [“Edwards”]

3 Textual originalism, which seeks to decipher the original meaning of the text, should not be conflated with the original intent of the drafters. Many American jurists and commentators, such as Justice Antonin Scalia, have talked at length about the important distinctions between “original meaning” and “original intent”, the former of which is a species of textualism (and is therefore more legally sound in my view), while the latter may best understood as a species of purposivism.

4 See, for example, the CBC digital archive, which states “1929: Women become persons” and goes on to claim that “On Oct. 18, 1929, women are finally declared “persons” under Canadian law,” located at: http://www.cbc.ca/archives/categories/politics/rights-freedoms/general-2/women-become-persons.html

5 Gosselin v. Quebec (Attorney General), 2002 SCC 84, para. 317 [“Gosselin”].

6 2004 SCC 79, para. 22.

7 [1928] S.C.R. 276.

8 Edwards, para. 47.

9 Ibid., para. 46.

10 Ibid., para. 45.

11 Ibid., para. 47.

12 Ibid., para. 78

13 See Bradley W. Miller, “Origin Myth: The Persons Case, the Living Tree, and the New Originalism” in G Huscroft & B Miller, eds, The Challenge of Originalism (Cambridge: Cambridge University Press, 2011).

14 Edwards, para. 44.

15 Ibid., para. 45

16 See Miller, at 13 [Emphasis Added]. As Professor Miller also notes, the only external text cited in the decision is a legislative amendment proposed by John Stuart Mill in 1867 with respect to the Representation of the People’s Bill – a Scottish Act. Mr. Mill was concerned with securing women’s suffrage and proposed that the term “man” should be left out of the Act and replaced with “person”.

17 This canon is related to a rule of evidence known as contemporanea expositio et fortissima in lege (meaning: a contemporaneous exposition is the best and most powerful in the law), a rule which dates all the way back to Sir Edward Coke. Since at least the 19th century, it has been trite that statutory provisions should be interpreted as they would have the day after the statute was passed and that earlier judicial interpretations from the period when the statute was passed is the best evidence of the original meaning.

18 R. v. Perka [1984] 2 S.C.R. 232, p.264 [“Perka”].

19 Bank of Toronto v. Lambe (1887) 12 App. Cas. 575, 56 L.J.P.C. 87. The Privy Council in Edwards accepted the Lambe proposition as being generally valid, but added that the BNA Act should not be construed strictly, as penal or tax statutes are, and should instead be given a liberal interpretation since it was “passed to ensure the peace, order and good government of a British Colony.” Edwards, para. 45. In other words, all statutes should be construed by looking to the ordinary meaning of the words at the date of enactment, but in the case of the BNA Act, the words should be not be interpreted in an overly technical manner since this would defeat the object of the Act.

In Kazakewich v. Kazakewich, [1936] A.J. No. 10 (C.A.), the Alberta Court of Appeal summed up the ratios in Lambe, Severn and Edwards in this way at paragraph 86: I take it then that in approaching the interpretation of the pertinent sections of The B.N.A. Act with respect to the administration of justice, a Court should keep in mind that these sections are embodied in an Imperial statute to which the ordinary rules for the interpretation of statutes apply, that therefore the intention of the framers of this Imperial statute must be ascertained as at the date of the enactment by having regard to the words employed without extraneous aids to interpretation where the language is unambiguous, and that having regard however to the nature of the statute, a great constitutional charter, the widest and most liberal construction of the words used should be adopted with a view to giving effect to the whole scheme of Canadian union [Emphasis Added].

20Perka, supra; Felipa v. Canada (Citizenship and Immigration), [2012] 1 F.C.R. 3, para. 71. Of course, courts are now also permitted to look beyond the text to the intent of the legislators; but insofar as the Court is interpreting the words themselves, the words should still be given their original meaning.

21 [1931] J.C.J. No. 4, para. 19.

22 Kazkewich, supra. The decision appears to have been reversed by the Supreme Court of Canada in a brief decision, [1937] S.C.J. No. 36 – but no reasons are given for the basis of the reversal – and then was also declined to be followed in Reference re: Adoption Act (Ontario) [1938] S.C.J. No. 21. However, the Supreme Court did not challenge Kazakewich’s summary of the approach to constitutional interpretation – it appears to have disagreed only with the result.

23 This is based on a QuickLaw search. Edwards was also cited in the Privy Council’s 1947 decision, Ontario (Attorney General) v. Canada (Attorney General), [1947] J.C.J. No. 3, in the arguments section of the headnote for the, arguably incorrect, proposition that “changing circumstances may alter the way in which the language operates.” The Privy Council did not refer to the Edwards decision in its judgment, however. The issue in that case was whether Parliament was competent to make the Supreme Court the final appeal court in Canada. The Court interpreted Section 101 of the BNA Act in light of the Statute of Westminster, 1931, which had provided Canada with a great deal more autonomy. Thus, the issue was not that ‘Canadian values’ had changed, but rather that the Canadian Constitution had effectively been amended by a subsequent Imperial Act.

24 This is based on a Quicklaw search. The Privy Council has mentioned the phrase in the context of a United Kingdom appeal, but appears not to have done so until the year 2000.

25 R. v. Pelletier (1974), 4 O.R. (2d) 677, 18 C.C.C. (2d) 516 appears to be the first decision to use the “living tree” to advocate a morphing constitution: “As the nature of the Canadian community changes and in this immediate issue, the activities of those sought to be controlled by the Narcotic Control Act and the Criminal Code change in scale and complexity, new considerations arise which bring into prominence facets of the law including the Constitution which were less important or less applicable in former times.”

26 Regina v. Miller and Cockriell, [1975] B.C.J. No. 1040, para. 161. The Court conceded that one of the reasons (but not the only reason) for the disparate approaches in Canada and the United States was that the US Courts were interpreting a constitution, while Canadian courts were interpreting a parliamentary statute – the Canadian Bill of Rights. There is no indication, however, that the BNA Act would be interpreted any differently.

27 [1980] 2 S.C.R. 466.

28[1985] 2 S.C.R. 486 [“B.C. Motor Vehicles Reference”].

29 Duke v. The Queen [1972] S.C.R. 917:“Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.”

30 See for example, R. v. Carter, (1982), 39 O.R. (2d) 20, para. 10 (county court): “it appears to my mind that the Charter of Rights is attempting to guarantee that in a criminal trial the accused will be treated fairly”; Re Jamieson and R. (1982), 142 D.L.R.(3d) 54 (Que. S.C.); Re Potma and The Queen (1983),41 O.R. (2d) 43 (C.A.) [“Potma”]; R. v. Hayden, [1983] M.J. No. 27, para. 6 (C.A.) [“Hayden”]; Mason v. The Queen [1983] O.J. No. 3174, para. 9 (S.C.): “It is undoubted that the phrase “fundamental justice” was borrowed from the Canadian Bill of Rights…and that s. 7 is an amalgam of ss. 1(a) and 2(f) of that statute. It is also undoubted that s. 7 was intended to guarantee procedural due process (i.e., natural justice) and not substantive due process”; R. v. M.H. [1984] A.J. No. 1020 (Q.B.), para. 10: “fundamental justice is synonymous with natural justice” citing cases for that proposition; Re United States of America and Smith, 44 O.R. (2d) 705 (C.A.): “I do not believe that the concepts of fundamental justice have changed since 1976…”; Public Service Alliance Of Canada v. Canada (Treasury Board), [1984] F.C.J. No. 175.

Aside from the lower court decisions in B.C. Motor Vehicles Reference, it appears the only decisions to find that “principles of fundamental justice” include a substantive element are Regina v. Young (1984) 46 O.R. (2d) 520 (C.A.) and Mia v. British Columbia (Medical Services Commission), [1985] B.C.J. No. 2920 (S.C.).

31 Potma, supra, para. 16. Potma was cited in a number of subsequent decisions, including Re United States of America and Smith, supra.

32 Hayden, supra, para. 6 [Emphasis Added]. The Court went on to state that “To hold otherwise would require all legislative enactments creating offences to be submitted to the test of whether they offend the principles of fundamental justice. In other words, the policy of the law as determined by the legislature would be measured against judicial policy of what offends fundamental justice. In terms of procedural fairness, that is an acceptable area for judicial review but it should not, in my view, be extended to consider the substance of the offence created.”

33 Indeed, the evidence indicates that the framers used the term “fundamental justice” rather than “due process” since the latter had been interpreted by the United States Supreme Court to protect substantive rights. Mark Carter, “Fundamental Justice in Section 7 of the Charter: A Human Rights Interpretation” (2003) 52 U.N.B.L.J. 243, at 247-248.

34 See B.C. Motor Vehicles Reference, supra, para. 37.

35 Ibid., para. 53.

36 See R. v. Heywood, 1994 3 S.C.R. 761.

37 Reference Re Same Sex Marriage, supra, para. 22.

38 Gosselin, para. 82. The Court then cited Edwards for the proposition that “the Canadian Charter must be viewed as a living tree capable of growth and expansion within its natural limits…It would be a mistake to regard s. 7 as frozen, or its content as having been exhaustively defined in previous cases.”

39 Since 2008, the Supreme Court has only referenced the living tree in a single majority opinion: Reference re Securities Act, [2011] 3 S.C.R. 837, para. 56. In R. v. N.S. [2012] 3 S.C.R. 726, Justices Rothstein and Lebel referenced the living tree in their concurring opinion, but for the proposition that the living tree must grow “from its roots” and that the Constitution is rooted in its political and legal traditions – in other words, the emphasis was placed on the natural limits of growth.

40 [2009] 3 S.C.R. 407, para. 89.

41 [2005] 1 S.C.R. 791

42 Lochner v. New York, 198 U.S. 45 (1905)

43 In this vein, originalism should be treated like any other canon of interpretation – it should be utilized to discern the true meaning of a text, but as with other canons, it is not absolute.