Dear Madam or Sir,
The 1929 case of Edwards v. Canada (Attorney General)1, also known as the “Persons Case”, was ground-breaking in two ways. The first was covered by the University of Alberta's Law and Social Media project last year, then called Ms. Suffragette, which dealt with the issue of the right of women to be selected as senators because of their inherent nature as persons.
As our predecessors have skillfully covered this first aspect of Edwards, we write to you today to highlight the second, which arguably has an even further reach. This, of course, is the metaphor of the “Living Tree”.2
The major debate in Edwards was whether or not the definition of the word "persons", as seen in s. 24 of the BNA Act3, could be extended to include women; a downright silly question by today's standards. In all previous interpretations of this section of the Act courts determined that “persons” only applied to landholding men.
The plaintiffs lost at the Supreme Court of Canada. As we will revisit in November, the SCC was not the final authority in Canadian jurisprudence at the time, and the United Kingdom's Judicial Committee of the Privy Council (UKPC or JCPC are common abbreviations, depending on jurisdiction) heard and ruled on the final appeal. Lord Chancellor John Sankey, writing the decision, included a sentence in his ruling that would vastly change the legal landscape of Canada. The sentence reads:
“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”4
This pebble in the water of English jurisprudence has caused ripples that are still felt today, and “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”.5
The Living Tree Doctrine has affected how courts interpret the BNA Act itself, especially when considering issues of federalism (recall our posts regarding ss. 91 and 92). In 1930, the year after Edwards and 27 years after Wilbur and Orville Wright's historic first flight at Kitty Hawk, North Carolina, Lord Sankey of the UKPC needed to determine whether regulation of aeronautics was to be given to Parliament or to the provincial Legislatures.6 The Privy Council held that various subsections of s. 91 of the BNA Act could be reasonably expanded and interpreted it to cover the area of aeronautics. These were: s. 91(2), The Regulation of Trade and Commerce; s. 91(5), Postal Service; s. 91(7), Militia, Military and Naval Service, and Defence.
As we will soon discover when we delve into some of the decisions regarding the Canadian Charter of Rights and Freedoms,7 the lengths to which this living tree analogy is limited is only by the creativity and reasonability of the judiciary. Edwards and the Aeronautics Reference were simply the beginning. We will see that the courts are willing to rule for some rather clever parallels, but do have a tendency to limit these arguments based on sound reasoning.
In future posts, we will uncover, the fact that this doctrine of “The Living Tree” is not the only major unwritten constitutional principle, and is indeed part of the reason why others have emerged8.
Your Most Loyal Servants,
1 1929 UKPC 86,  AC 124 (UKPC) [Edwards].
3 Constitution Act, 1967 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.
4 Edwards, Supra Note 1.
5 Scott Reid, "The court case that changed everything", The National Post (22 October 2012), online: <news.nationalpost.com/full-comment/scott-reid-the-court-case-that-changed-everything>.
6 Canada (AG) v Ontario (AG),  UKPC 93,  AC 54 (UKPC) [Aeronautics Reference].
7 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
8 See Reference Re Secession of Quebec,  2 SCR 217, (1988) 161 DLR (4th) 385.