The Persons Case and the Living Tree Theory of Constitutional Interpretation (Robert J. Sharpe)

On October 18, 1929, Lord Sankey, England’s reform-minded Lord Chancellor, ruled that women were eligible for appointment to Canada’s Senate. This was a significant victory for Edmonton Judge Emily Murphy, her four female colleagues, known as the “famous five”, and for the women’s movement in Canada.  The Judicial Committee of the Privy Council, then Canada’s court of last resort, had rejected the prevailing view of Canada’s legal establishment that women were not, in the words of the constitution, “qualified persons” for appointment to the Senate.

Lord Sankey’s bold decision overruled the Supreme Court of Canada’s 1928 judgment insisting that the meaning of the constitution could not change with time. Women could not hold public office in 1867 and, said the Supreme Court, only a constitutional amendment could render them “qualified persons.” Striking the most powerful and enduring metaphor in modern Canadian constitutional jurisprudence, Lord Sankey announced that the constitution is “a living tree capable of growth and expansion within its natural limits,” a document that is in “a continuous process of evolution.”

This paper will consider origins and the legacy of the “living tree” metaphor in Canadian constitutional interpretation.

Robert Sharpe has been member of the Court of Appeal for Ontario since 1999. Before his appointment as a trial judge in 1995, he was a professor and Dean at the Faculty of Law, University of Toronto. He is a Fellow of the Royal Society of Canada. Robert Sharpe is a Visiting Professor at Oxford University and was awarded LL.D. degrees from the Law Society of Upper Canada and the University of Windsor in 2011. He has written several books including The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (with Patricia McMahon) (2007).

The Living Tree In Theory and Practice (Peter C. Oliver)

I propose to look at how the “living tree” doctrine has been applied in Canada in a selection of cases since 1929. I will also attempt to situate this doctrine in constitutional and legal theory. I am particularly interested in the extent to which contextual factors are relevant to courts in constitutional adjudication.

Peter Oliver is a Full Professor at the Faculty of Law, University of Ottawa.  He held a Chair in Law at King's College London until 2007. He completed his DPhil at Oxford University under the supervision of Geoffrey Marshall. He subsequently clerked at the Supreme Court of Canada. In 2005-6 he was Scholar in Residence at the Constitutional, Administrative and International Law Section of Justice Canada. In 2006-7 he was Special Advisor, Legal and Constitutional at the Intergovernmental Affairs Secretariat of the Privy Council Office, and he has continued to act as a consultant from time to time. He is the author or editor of several books, including The Constitution of Independence (OUP, 2005), winner of one of the Society of Legal Scholars' Peter Birks Prizes for Outstanding Legal Scholarship. In 2014-15, while on sabbatical, he is Christensen Fellow at St Catherine’s College and a visiting researcher at the Faculty of Law.