Progressive Interpretation or The Living Tree

In understanding the road Toronto would take in seeking provincial status the doctrine of progressive interpretation must be considered. This doctrine stipulates that the general language in the constitution is not to be frozen in the sense in which it would have been understood in 1867. The idea underlying this doctrine is that the Constitution, although a statute, is not a normal statute. It is an organic statute which has to provide the basis for the government of a nation over a long period of time. It differs from an ordinary statute in that it cannot be easily amended when it becomes out of date.

Over the years this doctrine has been applied in many cases. The cases shed light on the principle. The cases are also interesting in their own right. Many of the cases stand on the side of a more progressive society. They reflect the growth and development of Canada.

In 1930 in a landmark case the Privy Council, our then highest court, held in Edwards v. AG wrote, "The BNA Act planted in Canada a living tree capable of growth and expansion within its natural limits." [ See Note 11 below] This case is also known as "the Persons Case" because it established that women were ‘persons’ for the purposes of the Canadian Constitution and its provision on appointments to the Senate. Today this seems ridiculous. But in 1928 the Supreme Court of Canada had just ruled that women were not persons. The Privy Council took this progressive step based partially on the doctrine of progressive interpretation.

In 1947 the Privy Council in A.G. Ontario v. A.G. Canada [ See Note 12 below] addressed the question whether the Parliament of Canada had the power to grant to the Supreme Court of Canada the ultimate appellate authority in Canada. In discussing the issues the court said, "It is, as their Lordships think, irrelevant that the question is one that might have seemed unreal at the date of the B.N.A. Act. To such an organic statute the flexible interpretation must be given that changing circumstances require...". The Privy Council held that it was within Parliament’s authority to imbue the Supreme Court of Canada with ultimate appellate authority.

In 1979 the Supreme Court of Canada in AG of Quebec v. Blaikie [See Note 13 below] looked at section 133 of the BNA Act. The Quebec government had just enacted language laws which limited courts and administrative bodies to the use of the French language. Section 133 of the BNA Act granted various language rights to courts but not to administrative bodies. The court pointed out that non-curial adjudicative agencies (or administrative bodies) were not in existence in 1867. The court went on to discuss the need to give the constitution "a broad interpretation attuned to changing circumstances".

If a constitution is going to stand for hundreds of years it will only do so if it is given a broad interpretation attuned to changing circumstances. One of the most significant changes in Canada since 1867 has been the emergence of the city as a social, cultural and economic engine. As the Privy Council said in AG Ontario v AG Canada, it is irrelevant that this issue might have seemed unreal in 1867.

Without an iota of doubt, the legal means to make Toronto a province exists in Canadian law. The process is not contingent on the potentially arbitrary whims of elected officials. The process can not be shut down because a premier or prime minister does not like it. The process is contingent only on the merits of this historic step and the genuine, clearly expressed desire of Toronto’s population to pursue it.