Mr. Speaker, in two days' time, I will be publishing a paper on the living tree metaphor, which originated in Lord Sankey's 1929 ruling in the celebrated “persons case”.
In recent years, the ruling has been misunderstood as a justification for the courts to redefine words or phrases in the Constitution to reflect the context of contemporary values.
March 29 seems an appropriate publication date as it will be the 30th anniversary of the granting of royal assent to the statute that created the Charter of Rights and Freedoms.
The living tree was actually intended by Lord Sankey to refer to the non-justiciable usages characterized by Albert Venn Dicey as constitutional conventions. Lord Sankey held that the written Constitution has a fixed meaning, which is a natural limit on the growth of the living tree of usage and convention. Thus, he ruled that nothing in the Constitution Act had ever prevented the appointment of women to the Senate, even though such appointments were contrary to 60 years of usage and convention.
A more accurate reading of the persons case and, therefore, of the living tree metaphor, will lead, I hope, to a greater respect for the original meaning of the Charter of Rights and Freedoms as Lord Sankey would have done himself.