A Living Canadian Constitution, hmmmm

"I think the court belongs to the Canadian people and it should reflect the Canadian people... The law is an 'organic' entity that grows and transforms in keeping with the evolution of societal views, known as the 'living tree' doctrine." - Chief Justice Beverley McLachlin, former Chief Justice of the Supreme Court of Canada

"Our Constitution is not a static, immutable text. It is a living document, and its meaning must be discerned and applied in light of the evolving values and circumstances of our society." - (While this quote is from Barack Obama and applies to the US Constitution, the sentiment perfectly aligns with the "living tree doctrine" applied in Canada. Canadian legal scholars and judges often echo similar principles when discussing the Canadian Constitution's adaptability.)

"If the newly planted 'living tree' which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials, such as the Minutes of Proceedings and Evidence of the Special Joint Committee, are not used to forever freeze the meaning of the Charter." - Chief Justice Antonio Lamer, a former Chief Justice, underscored the importance of allowing the Charter to evolve beyond the original intentions of its drafters to ensure its continued relevance.

I think as a society we need to be cautious when it comes to the idea of a “living Constitution.” While the concept might sound adaptable, transparent, and democratic, it carries a serious risk, judges might start stretching the meaning of the Constitution to fit their own personal or political views.

When that happens, courts stop interpreting the law and start making it, which some people call “tyranny from the bench.”

It also creates confusion and inconsistency because different judges might follow completely different philosophies, with no clear rules to guide them.

That kind of unpredictability, sometimes called “anarchy on the bench,” can weaken the Constitution and erode the rule of law.

That said, I get why others support the idea of a living Constitution. Our society is constantly changing, and the earliest legislators couldn’t have foreseen every issue we’d face today. But even with that in mind, there have to be limits. If judges stray too far from the original meaning of the text, then just about anything could be labeled a constitutional right depending on who’s in charge. That kind of flexibility can shake the foundation of our legal system and damage public trust in the courts.

The real challenge, I think, is finding a balance. The Constitution needs to be able to grow with the times, but we can’t lose the core principles that give it meaning and legitimacy. Without that balance, the law risks becoming just another tool of politics, and judges risk becoming lawmakers the people never elected.