The Trouble with Living Tree Interpretation

Abstract

The Supreme Court of Canada interprets the Canadian Charter of Rights and Freedoms as a living tree capable of growth and expansion within its natural limits. Living tree interpretation is usually understood to be the opposite of originalism, but the concept is not well theorized.

The author reviews the history of the concept in Canada and discusses some of the constraints on it. He concludes that judges will go as far with living tree interpretation of bills of rights - statutory as well as constitutional - as they are comfortable in going given the way in which they perceive their role, their confidence in their institutional legitimacy and ability and, ultimately, something that is personal to individual judges: their sense of humility.

Drawing on Canadian experience, the author suggests that living tree interpretation is likely to cause considerable change to the way in which rights are understood, increasing the importance of judicial review and the role of the courts as a result.

Keywords: Constitutional law, Canadian Charter of Rights and Freedoms, judicial review, living tree interpretation, originalism, statutory bills of rights

JEL Classification: K10