Legal Theory in Canada

Tue, 07 Jul 2026 00:00:00 +0000

Theories of Constitutional Interpretation

Canadian legal theory is distinguished by its sustained engagement with questions of constitutional interpretation. The central interpretive doctrine is the “living tree” metaphor, first articulated by Lord Sankey LC for the Privy Council in Edwards v. Canada (Attorney General), [1930] AC 124 (the Persons Case). The Constitution, Lord Sankey declared, is “a living tree capable of growth and expansion within its natural limits.” This organic metaphor rejects the notion that the constitution is a static text whose meaning was fixed at the moment of enactment, instead embracing a dynamic or progressive approach to interpretation. The living tree doctrine has been persistently invoked by the Supreme Court of Canada to expand the scope of constitutional rights — most notably in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698, and in the interpretation of s. 91(10) of the Constitution Act, 1867 regarding federal jurisdiction over navigation and shipping.

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Legal Theory in Canada

Theories of Constitutional Interpretation