Eighty-three years ago this month, on Oct. 18, 1929, the British Empire’s senior jurist, Lord Chancellor John Sankey, ruled that “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” The way the Supreme Court sees it, these words give Canada’s courts the authority to unilaterally rewrite our country’s Constitution.
It might seem odd, to an outside observer, that so massive a power-grab would rest on the authority of a single 83-year-old precedent — particularly when the precedent is just a metaphor. Nonetheless, since 1980 Lord Sankey’s living tree has been so regularly cited by the Supreme Court that Chief Justice Beverly McLachlin refers to it as the “animating premise” of Canadian constitutional interpretation.
For example, here is the Court’s assertion that it can turn an area of formerly exclusive provincial jurisdiction into a shared federal-provincial responsibility: “If the Canadian constitution is to be regarded as a ‘living tree’ and legislative competence as ‘essentially dynamic,’ then the determination of categories existing in 1867 becomes of little, other than historic concern.”
And here is the Court’s assertion that it can periodically expand Charter rights, in ways never anticipated by Pierre Trudeau and the other authors of the Charter: “One day s. 7 [of the Charter] may be interpreted to include positive obligations. To evoke Lord Sankey’s celebrated phrase, 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….”
There are a further 30 or so Supreme Court rulings in which the living tree metaphor is cited as the precedent justifying the power of the courts to rewrite the Constitution.
It therefore comes as a shock to sit down and read, for the first time, the ruling handed down by Lord Sankey 83 years ago, since it becomes immediately apparent that the Supreme Court’s understanding of the living tree metaphor is either delusion or deliberate fiction. Sankey applied the metaphor of the living tree not to the written text of the British North America Act, but rather to the body of “usages and conventions” (i.e., political practices) that had sprung up in connection with the Canadian constitution. Such conventions are not court-enforceable. The convention with which Sankey dealt in his 1929 ruling was the practice of appointing only men to the Senate. The practice had been continued from 1867 to 1929, but had never been written into the Constitution. Thus, Sankey ruled, there was no legal restriction, and there never had been a legal restriction, on appointing women to the Senate.
But if it is our usages and conventions that are Canada’s living tree, what of the written text of the Constitution itself? Are the courts free to change its meaning too, treating the 1867 division of powers as a matter “of little, other than historic concern”? Here, Sankey could scarcely be clearer. In a 1931 ruling, he wrote, “Inasmuch as the British North America Act embodies a compromise under which the original province agreed to federate … [the] process of interpretation as the years go on ought not to be allowed 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 [the BNA Act] should impose a new and different contract upon the federating bodies.”
Sankey’s outspoken belief that the courts ought to adhere rigorously to the original meaning of the law was so clearly and so universally understood that for half a century, British textbooks have cited his 1929 and 1931 rulings as the paradigmatic examples of the renewed interest of the British courts, in the early twentieth century, in accurately reflecting Parliament’s original, publicly-understood meaning.
Sankey’s rulings have been widely cited in the courts of other Commonwealth nations. I have located 17 cases in which courts in Ireland, Australia and India have used Sankey’s ruling in the 1929 “Persons case” as a precedent — always with precisely the opposite interpretation to the one held by Canada’s Supreme Court. For example, in a 1958 ruling the Allahabad High Court used the Persons case as its precedent for consulting the records of the debates from the drafting of the Indian constitution, as a tool for determining whether it was interpreting the constitution according to its original meaning.
Prior to 1980, the Canadian courts also correctly understood the Persons case ruling, and swatted aside suggestions that the courts were authorized to rewrite the Constitution. Here, for example, is a 1937 ruling from Alberta’s Court of King’s Bench: “[N]one 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.”
Since 1980, the Supreme Court has never so much as acknowledged the existence of what had been, until that moment, the universally-accepted understanding of Lord Sankey’s ruling. This silence leaves the uncomfortable impression that the court’s use of the living tree is mere window-dressing for an unprecedented power grab.
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