1) It is generally accepted the law and constitutions in many cases both do, and ought to resist change. (Whittington, 2015: 15) Yet, this conservative disposition must not be so rigid as to absolutely prevent legal evolution, for also among the law’s functions is the facilitation of social change. (Vago & Nelson, 2014: 17) In order for this function to be carried out, the law must maintain a standard of adaptability. Legal evolution arises from this function. Indeed, we see a fine balance between the two.
2) Though the ramifications of legal evolution are contested, what is clear amongst the uncertainty is that it necessarily alters and/or impairs existing legal foundations. In the face of this alteration and/or impairment, one of the essential questions is who gets to decide the nature of this evolution. In Canada, it is the Supreme Court, which since 1949 has served as the country’s highest court of appeal.
3) Also among the essential questions, however, is how the nature of this evolution is to be considered. It is well established in Canadian jurisprudence that our constitution is flexible. That is to say, that its meaning is not frozen. This is by virtue of the living-tree doctrine.
4) The Canadian Constitution, however, is not to be interpreted arbitrarily. Though it is flexible, it is not limitlessly so. It is the limits upon the flexibility of constitutional interpretation that this article will focus upon.
5) This article shall first consider the living-tree doctrine and its origins in Canadian jurisprudence. It will then, in analyzing limitations upon legal evolution, focus on same-sex marriage as an application of the doctrine; traditional common law marriage and same-sex marriage will be analyzed with regards to their internal structure and mutual compatibility. It will ultimately be proposed that this structural analysis of the law can, in certain cases, be an effective means of determining the natural limits of legal expansion.
The Living Tree Doctrine:
6) It has been mentioned that is in the nature of law to maintain a standard of adaptability. This adaptability is perhaps best demonstrated by the living-tree doctrine. The doctrine has its origins in Edwards v. Canada, 1929. In the case, it was stated that:
“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.”
7) This adaptability is integral within Canadian law. Indeed, the view of the Constitution as a living tree is “one of the most fundamental principles of Canadian constitutional interpretation.” (Reference re: Same-Sex Marriage, 2004.) The living-tree doctrine has not been scarcely applied in Canadian jurisprudence; it has been referenced in numerous cases post-Edwards.
8) It was, for example, reiterated after Edwards in British Coal Corporation v. The King, 1935. Likewise, it was in 1984 applied in Law Society of Upper Canada v. Skapinker, and in 1985 in Reference re: BC Motor Vehicle Act. Furthermore, in 1987, it was applied in Reference re: Public Service Employee Relations Act, and in 1990 in R v. Sparrow.
9) The point to be taken is simple: that the large and liberal interpretation afforded to constitutional interpretation through the living tree doctrine is an inseparable component of Canadian constitutional jurisprudence.
10) This attitude of interpretation is not, however, absolute; there are, in fact, limits. Such limits take the form of “natural limits.” We see such limits referenced in Edwards.
11) Similarly, Justice Mcintyre, in discussing these limits, asserted in Reference re: Public Service Employee Relations Act, 1987 that “while a liberal and not overly legalistic approach should be taken to constitutional interpretation” the Constitution should not be seen as “an empty vessel to be filled with whatever meaning we might wish from time to time.”
12) Furthermore, the interpretation of constitutional documents is “constrained by the language, structure, and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies of our society.” (Reference re: Public Service Employee Relations Act, 1987) It is, ultimately, by virtue of these constraints that natural limits to legal evolution are present. These limits, however, are only ostensibly discernible.
13) The traditions and underlying philosophies of society are often disputed, and the history of society a source of various implications and lessons to be applied. Likewise, constitutional tradition is often subject to debate, and language flexible in meaning. The discussion of the law’s natural limits is, therefore, highly subjective and without a universal solution to which one may appeal.
14) Perhaps the limits could best, then, be ascertained on an individual, case by case basis. With this in mind, we shall now consider the nature of these limits with respect to a particular case, that being Reference re: Same-Sex Marriage, 2004.
15) In 2004, the Court held in the Reference that Parliament has the authority to legislate on issues regarding same-sex marriage. Important to this discussion is the Court’s analysis regarding the impact of legal tradition and traditional common law marriage on the proposed legislation and the legality of same-sex marriage.
16) The court, in considering common law marriage, turned to the English case of Hyde v. Hyde, 1836. In the case, it was stated that common law marriage “as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”
17) The Court, however, rejected this contention, citing the living tree doctrine expounded in Edwards. The interpretation of the law based upon the Christendom was incompatible with the secular society of Canada.
18) Further, the Court reaffirmed the contention expounded in Proprietary Articles Trade Association v. Attorney-General for Canada, 1931, that English decisions are not a “secure foundation on which to build the interpretation” of the Canadian Constitution.
19) Interveners, however, argued that as the traditional definition of marriage had been accepted for thousands of years, the natural limits of the law preclude same-sex marriage.
20) The Court, however, again in citing the living-tree doctrine, rejected these arguments. The only objective core to common law marriage, the Court stated, is that it is a union of two exclusive to all others. The Constitutionality of same-sex marriage was, therefore, accepted.
21) Though it has been stated that English decisions are “not a secure foundation on which to build the interpretation” of the Constitution, they remain valuable. This is for two reasons.
22) First, the value in citing English decisions has been demonstrated in numerous cases prior. Chief Justice Brian Dickson, then Puisne Justice, for example, in analyzing the scope of Charter s. 8 for the purposes of Hunter v. Southam, 1984, did so with reference to the English case of Entick v. Carrington, 1765. The Case was integral in the construction of a purposive interpretation of Charter s. 8.
23) Second, as a result of the first, English decisions are not necessarily, in their entirety, irreconcilable with modern legal principles and institutions. In clarifying this second reason, let us turn back to Hyde v. Hyde.
24) Marriage, per the Case, consists of «a voluntary union between one man and one woman to the exclusion of all others. » Analysis of this definition reveals five components. First, marriage is a life-long legal union of persons. Second, it is between two individuals. Third, these individuals are one man and one woman. Fourth, it is exclusive to the two individuals. Fifth, it is voluntary.
25) This analysis applied to same-sex marriage reveals the continued integrity of four of the five factors. First, same-sex marriage is a life-long legal union of persons. Second, it is between two individuals. Third, it is exclusive to the two individuals. Fourth, it is voluntary. The impaired component is the condition of being a union between one man and one woman.
26) In Warrender v. Warrender, 1835, it was found that foreign institutions, including marriage, not resembling the equivalent English institutions could not be valid under English law. Perhaps this notion of resemblance is applicable to this discussion.
27) In our analysis it has been determined that four of the five components of common law marriage that have been found are present in same-sex marriage. The institution of same-sex marriage is, in this light, highly resemblant of traditional common law marriage.
28) Furthermore, in addition to its resemblance to same-sex marriage, it would appear through this analysis that the fundamental integrity of common law marriage remains intact within the institution of same-sex marriage. Four of the five conditions are unaffected by the expansion. Common law marriage, in this light, retains its fundamental structural integrity. Same-sex marriage would not, therefore, appear to detrimentally impair it.
29) Ultimately, the goal of this article has not been to criticize the reasoning employed by the court in Reference re: Same Sex Marriage. It has, rather, been to provide an alternative approach in considering the legality of same-sex marriage, doing so as a means of analyzing the natural limitations of the law.
32) It has been argued that an analysis of the structural integrity of the law in question post-expansion could be, in certain cases, seen as a means to assess the validity of an instance of legal expansion.
33) In concluding, the Constitution has both a conservative and progressive nature. It is in the conservative nature of the constitution to resist change, and it is in the progressive nature of the constitution to adapt alongside society. Ultimately, the interpretation of constitutional documents should bear both dimensions in mind, for the liberal ‘social’ interpretation of the constitution must ultimately rest upon existing legal foundations.
Edwards v. Attorney-General for Canada,  A.C. 124
Re B.C. Motor Vehicle Act,  2 S.C.R. 486
Reference Re Public Service Employee Relations Act (Alta.),  1 S.C.R. 313
Reference re Same-Sex Marriage,  3 S.C.R. 698, 2004 SCC 79
R. v. Sparrow,  1 S.C.R. 1075
Hyde v. Hyde (1866) L.R. 1 P. & D. 130
Warrender v. Warrender (1835) 2 Cl. & F. 531
Law Society of Upper Canada v. Skapinker,  1 S.C.R. 357
British Coal Corporation v. The King,  A.C. 500
Hunter et al. v. Southam Inc.,  2 S.C.R. 145
Entick v. Carrington (1765), 19 St. Tr. 1029, 1 Wils. K.B. 275
Constitution Act, 1867
Canadian Charter of Rights and Freedoms, s. 8
Vago, Steven, and Adie Nelson. Law and Society (Fourth Canadian Edition). Toronto: Pearson, 2014.
Whittington, Keith E. Against Very Entrenched Constitutions. Wisconsin Law Review. (2015). Accessed April 4, 2017. http://wisconsinlawreview.org/wp-content/uploads/2015/02/Whittington-Final.pdf