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What then of the JCPC’s famous statement: “The (BNA) Act planted in Canada a living tree capable of growth and expansion within its natural limits”? The statement was made, Miller explains, in an effort to minimize the controlling effect of English common law in Canada. It was English common law and its treatment of women that had in part determined the SCC’s ruling.

Moreover, Miller points out, the JCPC did not say that the BNA Act is a living tree, but that it planted a living tree — the Canadian Constitution in its entirety, a “Constitution similar in principle to that of the United Kingdom,” including unwritten conventions as well as statutes. The “living tree” was not the specific textual provisions of the BNA Act. For the JCPC, the task of interpretation was to recover the fixed, semantic meaning of the text.

We do not see much of the “living tree” metaphor again in Canadian jurisprudence until the Charter. The implication, of course, is that our courts resurrected and misapplied the metaphor to justify changing the meaning of specific Charter provisions through interpretation.

Doing so raises serious questions about the rule of law and democratic legitimacy. It is such questions that concern constitutional law scholars such as Miller. To flout the constitution’s requirement for democratic amendment is to flout the constitution itself, the rule of law and democracy.

The Globe story quotes the University of Toronto’s David Dyzenhaus: “it is crazy that commitment to values that are central to the Canadian legal order is considered a disqualification for judicial appointment by this government.” Based on Dyzenhaus’ criterion, Justice Miller is an excellent appointee. Examine Miller’s work, and you will find that he is deeply concerned about democratic legitimacy and the rule of law — principles which are indisputably central to the Canadian legal order.

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