Missing the Forest for the Living Tree

What Lord Sankey actually meant with his living tree metaphor

It is often said that the only interpretive method sanctioned in Canadian constitutional law is one that recognizes , in a well known articulation in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698, “that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life”. [22] The “living tree” metaphor comes from a decision of the Judicial Committee of the Privy Council in Edwards v Canada (Attorney General), [1930] AC 124, [1930] 1 DLR 98, better known as the “Persons Case” because it resolved the question of whether women could be “qualified persons” for the purposes of section 24 of the then-British North America Act, 1867, which governs appointments to the Senate.

As Benjamin Oliphant and I have shown, the conventional view that living constitutionalism is our law is mistaken: the Supreme Court in fact frequently, if unsystematically, resorts to other interpretive methods, and indeed the Same-Sex Marriage Reference itself is consistent with an originalist approach. Moreover, as we discuss at some length, and as I long-ago suggested here, and now-Justice Bradley Miller has demonstrated, the view that Edwards employed and requires what has come to be known as “living tree” interpretation is simply wrong. It cannot be sustained on a fair reading of the case, which turns on the deployment of orthodox statutory interpretation techniques.

But of course the people who invoke Edwards and the “living tree” metaphor aren’t making it up: the words really are there. But what exactly do they signify, if not that the meaning of the constitution changes over time? Here is my best reading: it is shorthand for the Canadian constitution as a whole ― the constitution considered, in J.A.G. Griffith’s phrase, as “just what happens” ― as opposed to the text of what we now call the Constitution Acts.

Recall that Lord Sankey’s judgment proceeds in two main sections: first he deals with what he refers to as “[t]he external evidence derived from extraneous circumstances”, (DLR 99) namely the suggestion that the reference to “persons” in section 24 was specifically a reference to male persons because it implicitly incorporated the common law rule excluding women from public office. This, Lord Sankey says, “is a relic of days more barbarous than ours”, (99) and he is generally unimpressed with the strength of this “external” evidence, which had swayed the majority of the Supreme Court of Canada.

Towards the end of that section of his judgment, Lord Sankey starts pivoting to the interpretation of section 24 itself. He notes that

No doubt in any code where women were expressly excluded from public office the problem would present no difficulty, but where instead of such exclusion those entitled to be summoned to or placed in public office are described under the word “person” different considerations arise.

The word is ambiguous and in its original meaning would undoubtedly embrace members of either sex. On the other hand, supposing in an Act of Parliament several centuries ago it had been enacted that any person should be entitled to be elected to a particular office it would have been understood that the word only referred to males, but the cause of this was not because the word “person” could not include females but because at Common Law a woman was incapable of serving a public office. (104-105)

The question is whether such implicit understandings are binding. Lord Sankey warns that “[c]ustoms are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared”. (105) He says, accordingly, that history ― in this case, the history of the exclusion of women from public office ― is not determinative. With this he turns to the examination of “the internal evidence derived from the [B.N.A.] Act itself”, (106) beginning not far from where he left off: with a warning that the Judicial Commitee “must take great care … not to interpret legislation meant to apply to one community by a rigid adherence to the customs and traditions of another”. (106)

And then, after a quick glance at the history of Confederation, Lord Sankey comes to the famous metaphor:

The B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits. The 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:” (Canadian Constitutional Studies, Sir Robert Borden, 1922, p. 55) .

Their Lordships do not conceive it ta be the duty of this Board—it is certainly not their desire—to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs. (DLR 106-107)

A couple of further general considerations follow. For one thing, Lord Sankey notes that, while it is true that a “large and liberal” interpretation is appropriate for a constitutional statute, “the question is not what may be supposed to have been intended, but what has been said”. (107) (This blog’s readers need go no further than yesterday’s post by co-blogger Mark Mancini for a re-articulation of this principle.) For another:

[T]heir Lordships [are not] deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one either male or female has a right to be summoned to the Senate. The real point at issue is whether the Governor-General has a right to summon women to the Senate.

And then Lord Sankey gets on with really deciding the case by deploying the whole arsenal of usual statutory interpretation techniques. In my earlier post on Edwards, I compared this to “Ravel’s Boléro, an almost-endless repetition of the same simple theme with different instruments”.

Putting all that together, it is clear that Lord Sankey’s judgment is, above all, textualist. He attaches little attention to early history or to intentions and expectations. (Justice Wakeling of the Alberta Court of Appeal, among others, should take note.) By the same token, he is not trying to re-write the text, or to give words new meanings they didn’t have at the time of their enactment. As he says, if the statute referred to men alone instead of using language that in its “original meaning” could encompass women, the case would be open and shut. To repeat, the “living tree” is absolutely not an invitation to update the constitution. But what is it?

To the extent the metaphor does work, it is to help warn against the temptation to “cut down the provisions of the Act by a narrow and technical construction”. Rather, Lord Sankey says, they must receive “a large and liberal interpretation” ― consistent, however, “not [with] what may be supposed to have been intended, but what has been said” ― to ensure freedom of action “within certain fixed limits” ― fixed, mind you! ― for governments, federal and provincial alike. In this sense, Edwards really is about the right of the Governor General, which is to say of the federal government of the day, to appoint women to the Senate. It is this freedom that must not be unnecessarily curtailed, or “cut down” as Lord Sankey says.

The actions of the government in the constitutional sphere ― “just what happens” ― are the living tree. This tree can grow as society changes, because the government will take actions, which will then develop into practices, and these in turn into “usage and conventions”, in response to social change. But this growth is constrained by constitutional text, whose meaning, while free of presuppositions long pre-dating its enactment, may not change.

It is unfortunate that people appeal to the authority of Lord Sankey’s judgment in Edwards without actually thinking about what that judgment says and does. Justice Rothstein admitted, in a lecture, that he’d never read it until retiring from the Supreme Court. I suspect he is not alone. Of course people who extol Lord Sankey also pay not heed to his overtly originalist opinion in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58:

Inasmuch as the [Constitution Act, 1867] embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR, 65)

But the Aeronautics Reference is a niche interest, a hidden gem. Edwards, by contrast, is supposed to be the most iconic case in all of Canadian constitutional jurisprudence, a font of wisdom and a national symbol, a literal monument. And it truly is a great case, with a great judgment given by a great jurist. If only people would pay it the well-deserved compliment of reading understanding what makes its greatness by reading it closely from beginning to end instead of just taking a line out of the decision, they wouldn’t miss the forest for the living tree.

Author: Leonid Sirota

Law nerd. I teach public law and legal philosophy at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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