By Dylan R. Clarke
April 29, 2026
Since the Canadian Charter of Rights and Freedoms came into force, the “living tree” – often framed as a “broad, large and liberal, and purposive approach” – has come to dominate constitutional interpretation. Courts have used it to read Charter rights expansively and apply them generously.
This metaphor dates to 1930, when Edwards v. Canada interpreted the word “persons,” and it was later affirmed as a distinctly Canadian method in Hunter v. Southam, a major Supreme Court of Canada decision in 1984. Yet, both landmark cases could have been decided on alternate grounds – without inviting the looser, ungrounded practice of judicial interpretation that has since grown around the living tree.
The metaphor now symbolizes a blank cheque for judicial activism and legal realism in Canada. In the process, it has drifted far from its original roots in Edmund Burke’s judicial minimalism – a philosophy that emphasizes conservation, respect for established tradition and practice, and restraint. On that view, constitutional liberties should expand cautiously, case-by-case, to preserve their core meaning as new circumstances arise. Returning to these Burkean roots invites a more disciplined approach to interpretation, one that adheres to judicial method and the principle of judicial restraint while keeping the living tree “within its natural limits.” It would favour narrower rulings and incremental development, rather than the broader doctrines now common in Charter law – such as the “reasonable hypothetical” test in cruel and unusual punishment cases.
Edwards, Hunter, and now
Hunter v. Southam concerned search and seizure law. Its evocation of a “broad, large and liberal, and purposive” approach helped justify adopting the then novel “reasonable expectation of privacy” test. That test came from the United States Supreme Court’s 1967 decision in Katz v. United States, which untethered search and seizure law from trespass and shifted focus to protecting “people, not places.” As the court put it, “[t]he guarantee of security from unreasonable search and seizure … protects a reasonable expectation [of privacy]” (p. 159). Yet, the Katz test can be seen in two very different ways: either as a judge-made innovation of the Warren Court – since the written Constitution does not mention “privacy” – or as a deeply originalist effort to preserve the Fourth Amendment’s purpose in the face of technological change (Kerr 2022).
Another Fourth Amendment approach, the trespass-based approach favoured by originalists, was never a discredited approach. It remains valid even today as a baseline, focused not on privacy alone but on physical intrusions onto persons or their effects (i.e. trespass). Building on that logic, newer “positive law” (Baude and Stern 2016) and “general law” (D’Onfro and Epps 2023) approaches try to adapt originalist trespass principles to modern technologies, where no physical trespass occurs.
Hunter’s particular application to the evolving law of search and seizure in the face of technological innovation in policing makes it somewhat of a historical relic in our constitutional history. Justice Breyer, a Burkean minimalist himself, emphasized the need for cautious, narrow decisions on questions involving the relationship between privacy and modern technologies (Breyer 2005).
Edwards v. Canada dealt with the political rights of women and the definition of the word “persons.” Hunter’s own use of the “broad, liberal, and purposive” approach to constitutional interpretation finds historical support in Viscount Sankey’s classic formulation in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (“The Persons Case”) at p. 136:
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 […]
This would establish the “large and liberal” or “living tree” approach as we now understand it. But that decision and its approach, which dealt with the political rights of women, was a product of its time. One could simply have used a canon of statutory interpretation – ejusdem generis (“of the same kind”) – to argue that women are like men and therefore considered both are to be considered “persons” per the language of the statute. That would resolve the case on stronger footing than a broad, sweeping pronouncement about how to interpret constitutional documents untethered from constitutional text or judicial method.
Hunter is a story within a story in the grand narrative of the Charter in Canadian constitutional history that has led us to the point we are at today: one with increasing uses of the notwithstanding clause, an increasing invalidation of penal statutes (Clarke 2026), a dearth of core free expression rights, a seemingly unlimited protection against cruel and unusual punishment, search and seizure, and other deprivations of life, liberty, or the security of persons, and a more expansive right to legal equality. Hunter’s “broad, liberal, and purposive” pronouncement is now a mere slogan for a l’état, c’est moi (“I am the State”) form of constitutional adjudication on Charter rights review. The high degree of subjectivity granted by the living tree metaphor to “the theoretical opinions of individuals” (to quote the dissent in Dred Scott,[1] another “persons” case that led to the Civil War in the US) explains the high degree of legal realism and judicial activism we see at the Supreme Court of Canada (see Clarke 2026), where Liberal- and Conservative-appointed justices differ in labour and criminal cases, while male and female justices diverge on equality.
A more Burkean legal approach to understanding the role of the judiciary is that it must make only gradual or incremental changes, speaking only the facts before them on a sort of case-by-case basis and not making any broad, sweeping pronouncements. These are not dead metaphors; they’re political theory enshrined in section 1 of the Charter and the section 33 notwithstanding clause, which give direct textual effect to our intentions in constitutional design toward a constitutional democracy founded upon the notion of parliamentary sovereignty and supremacy that the Charter’s introduction would displace.
Living tree as Burkean minimalism
One could contend that the “living tree” metaphor is simply Burkean minimalism by another name. Even originalism – which restricts the interpretation of a provision to its original public meaning, or whatever other denomination – can allow for small practical updates to fill gaps. Interpreting a law based on its purpose doesn’t always mean choosing the most generous possible interpretation; sometimes a narrower reading fits better. This suggests that originalism and the living tree approach may actually agree more often than people think. And it’s likely that the meaning of the metaphor of the living tree does not change at the 49th parallel. This recharacterization dramatically alters the current constitutional interpretation debate in Canada by inviting plural approaches to constitutional interpretation into the conversation.
Burke, himself a fan of organic metaphors, once wrote famously that “[a] state without the means of some change is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished so religiously to preserve” (Burke 1790, 19). Burke’s fascination with organic imagery in both politics and aesthetics – where nature’s growth and power formed the paradigm of the sublime – makes the later living tree metaphor for constitutional development feel distinctly Burkean. Burke also wrote that “[w]e wished at the period of the Revolution, and do wish now, to derive all we possess as an inheritance from our forefathers. Upon that body and stock of inheritance we have taken care not to inoculate any scion alien to the nature of the original plant” (Burke 1790, 29) [emphasis in original]. He asserted that “[a] spirit of innovation is generally the result of a selfish temper and confined views” (Burke 1790, 31). He believed that new ideas should be used to protect, not replace, historical wisdom regarding inherited liberties. The goal is to preserve the core liberties, or principles, enshrined in constitutional rights, while adapting how they are applied to new situations as they arise.
Last February, in the Taylor case, which dealt with the constitutional right to interprovincial mobility, the SCC doubled down on its “broad, large and liberal, and purposive” approach to Charter interpretation after pulling back from this approach in two recent cases.[2] Indeed, the SCC has yet to fully embrace, or even acknowledge, one of the competing theories that has emerged to displace the broad, liberal, and purposive approach, such as the many brands of originalism or common good constitutionalism, or other basic judicial postures, such as the deferential Thayerism (Thayer 1893), Judge Posner and Justice Breyer’s legal pragmatism, or Burkean judicial minimalism (Sunstein 2006), which all emphasize judicial restraint as an arms control agreement in the war of constitutional politics. There has been pushback in the academic sphere on this idea, but it largely advocates for originalism, which interprets constitutional provisions according to their original public meaning. While these alternate theories may themselves, too, be politics by another means or invite their own political morality, they emphasize judicial restraint, a commitment to text, and a second-order attention to widely accepted unwritten legal principles – all legal virtues.
The living tree metaphor now symbolizes an approach that is entirely divorced from the intellectual history of Burkean minimalism. For example, the reasonable hypothetical test used in cases involving the right not to be subjected to cruel and unusual punishment – often used to strike down mandatory minimum sentences – relies on imagining possible scenarios beyond the specific facts of the case. From a Burkean minimalism perspective, this kind of reasoning is more abstract than necessary; instead, cases should be decided basely only on the facts before it in a narrow or shallow judgment free from theoretical abstractions about reasonable hypothetical cases. This is one obvious failure of the living tree approach to adhere to Burkean minimalism, which decides cases one at a time.
Burke would have scoffed at the common usage of the living tree metaphor. He writes that “I cannot conceive how any man can have brought himself to that pitch of presumption, to consider his country as nothing but carte blanche, upon which he may scribble whatever he pleases […] A disposition to preserve, and an ability to improve, taken together, would be my standard of statesman” (p. 158). He would not have approved of the blank cheque currently characterized as the “living tree” approach to constitutional interpretation.
Burkean minimalism decides the law one case at a time and not through broad, sweeping pronouncements that are maximalist in their holdings, either by being too wide or too deep, as with the case in the reasonable hypotheticals test in the law of cruel and unusual punishment. This could be said of other rights as well, such as equality or search and seizure.
The future of constitutional interpretation
Has the die simply been cast? The Rubicon crossed? Not quite. Nothing in the bill of rights embodied by Canada’s Charter prescribes the living tree constitutionalism approach to constitutional interpretation. It is less clear that interpretive approaches are a matter of settled law, binding on future and lower courts (Plaxton 2026). This interpretive hegemony of “broad, purposive, large and liberal” interpretation was wholly designed by the Court itself, perhaps under Chief Justice Brian Dickson. It appears to have emerged through historical path dependence, building on an expansive reading of a few early cases, including those dealing with the definition of “persons” and the evolving law of search and seizure. It is now clear that their favourable results or outcomes achieved could have been arrived using other legal interpretive methods or political means (i.e. legislative or constitutional amendment). The living tree metaphor requires and deserves to be historically situated in its intellectual roots, stemming from Edmund Burke, a legal thinker who advocated for gradual or incremental innovation in constitutional rights to preserve and conserve existing liberties, case-by-case adjudication, and respect for reasonable traditions or established practices that are not unjust or intolerable.
The broad, liberal, and purposive approach to Charter interpretation is not gospel or a theoretically optimal approach to legal interpretation. Competing approaches were available and others have emerged since the adoption of the Charter. Normatively desirable results are merely one criterion upon which to evaluate a theory of constitutional interpretation; there are other virtues that the legal system promises. The degree of subjective realism and activism the “theoretical opinions of individuals,” to quote Dred Scott’s famous dissent, that the living tree metaphor permits and almost explicitly authorizes is an unfavourable quality because the metaphor is too broad and meaningless to prescribe a specific outcome. This legal certainty is something that formalism and textualism claim to promise.
Burkean minimalism is meant to be a compromise approach – one that tries to manage the difficulties of judicial interpretation in a reasonably good (but not perfect) way, by favouring caution and stability over bold and sweeping legal change. Understanding the Burkean origins of the living tree metaphor, and its emphasis on judicial restraint, can adequately explain the Court’s recent retreat from a “broad, large and liberal, and purposive” approach. A first-best or perfectionist approach to constitutional interpretation may not be feasible under current political constraints in Canada, whereas Burkean minimalism offers an implementable second-best alternative within the prevailing living constitutionalist framework, serving to restrain the living tree within its natural limits.
How we define, characterize, describe, and collectively understand our intellectual approach to constitutional interpretation has palpable impacts on judicial behaviour and our constitutional equilibrium. The living tree has become a dead metaphor; we should properly place our approach to constitutional interpretation within its intellectual roots in Burkean minimalism. It is worth recharacterizing our inherited approach to constitutional interpretation in the future. Perhaps, as is sometimes said in technology circles, “that future is now.”
About the author
Dylan R. Clarke holds graduate degrees in law and economics and is currently a CUSP Fellow at the West Neighbourhood House. His research uses the tools of economics and statistics to study legal phenomena. His work has been published in Journal of Urban Economics, Regional Science and Urban Economics, and Journal of Law & Empirical Analysis.
References
Baude, William, and James Y. Stern. 2016. “The Positive Law Model of the Fourth Amendment.” 129 Harvard Law Review 1821.
Breyer, Stephen. 2005. Active Liberty at 69–74.
Burke, Edmund. Reflections on the Revolution in France. 1790. Dover Publications, 2006. Available at https://archive.org/details/burkerevolutioninfrance/page/n1/mode/2up.
Clarke, Dylan R. 2026. “Judicial Activism in Canadian Criminal Law.” Macdonald Laurier Institute, January 9. Available at macdonaldlaurier.ca/judicial-activism-in-canadian-criminal-law-the-lasting-legacy-of-irwin-toy-dylan-r-clarke/.
D’Onfro, Danielle, and Daniel Epps. 2023. “The Fourth Amendment and General Law.” 132 Yale Law Journal 910.
Dred Scott v. Sandford. 1857. 60 U.S. (19 How.) 393. U.S. Supreme Court.
Edwards v. Attorney-General for Canada, [1930] A.C. 124 (“The Persons Case”).
Hunter et al. v. Southam Inc. 1984. [1984] 2 S.C.R. 145.
Kerr, Orin S. 2022. “Katz as Originalism.” 71 Duke Law Journal 1047–1104.
Plaxton, Michael. 2026. “Interpretive Methodology: Is Anything Ever Really Settled?” Michael Plaxton Substack, March 11. Available at https://michaelplaxton.substack.com/p/interpretive-methodology-is-anything.
Sunstein, Cass R. 2006. “Burkean Minimalism.” 105 Michigan Law Review, 353.
Thayer, James B. 1893. “The Origin and Scope of the American Doctrine of Constitutional Law.” Harvard Law Review 7:3, 129–156.
[1] The 1857 case of Dred Scott v. Sandford in the United States first employed the concept of “substantive due process” to invalidate the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. That decision is poorly looked upon today and seen as one of the worst decisions in judicial history with an unwelcome attempt to settle political questions by judicial fiat. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”
[2] More textualist approaches were nodded at in Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 and Toronto (City) v. Ontario (Attorney General), 2021 SCC 34.
