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iverglas Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-29-07 04:54 PM
Original message
So this is my thread. It's about me.
Hey, if I knew how, I'd make it a poll. ;)

No, actually, it's about Canadian constitutional history. And me.

Anybody here know Viscount Sankey? Well, be not embarrassed. *I* was, that I didn't recognize the name when I was sent an email about him this week. I should know these things; it's actually kinda my job. I'm enormously embarrassed. And not just because ... but wait, more on that after.

The email I was sent explained how Viscount Sankey was the one who wrote the line about "The Golden Thread that runs through English law" that Rumpole was so fond of quoting at the Bailey -- about the presumption of innocence and the burden of proof and all that.
In articulating the ruling, Viscount Sankey made his famous "Golden thread" speech:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused.

But after getting the email, I googled a bit more, and smacked my forehead and hung my head in shame at my negligent memory.,_1st_Viscount_Sankey
Several of his judgments in the House of Lords have landmark statements of law. Of particular note are his statements in Edwards v. Canada (Attorney General) in which a case was held about women being allowed in the senate. In the end, women were allowed being senators.

He wrote the decision in the Persons Case -- the Famous Five and all that.

And not only that -- I just don't seem to have realized the extent to which our whole Canadian universe revolves around that case, completely apart from the question of women's equality itself:
Edwards v. Canada (Attorney General) <1930> A.C. 124 also known as the Persons Case is a famous Canadian/British constitutional case where it was first decided that women were eligible to sit in the Senate. The case, put forward by the Famous Five, went all the way to the Privy Council and was a landmark case in many respects.

Opinion of the Judicial Committee of the Privy Council

Viscount Sankey
, writing for the committee, found that the meaning of "qualified persons" could be read broadly to include women, reversing the decision of the Supreme Court. The landmark ruling was handed down on October 29, 1929.

Living tree doctrine

To arrive that his conclusion, Sankey proposed an entirely new approach to constitutional interpretation that has since become one of the core principles of constitutional law in Canada.
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.

Their Lordships do not conceive it to be the duty of this Board -- it is certainly not their desire -- to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs.
From this the approach became known as the living tree doctrine which requires "large and liberal" interpretation.

Viscount Sankey invented the "living tree", along with the large-and-liberal approach to constitutional interpretation. (All of which I work with daily ...)

And this is why we have, oh, same-sex marriage and minority language rights.
In Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to the changing times.

This is known as the Doctrine of Progressive Interpretation. This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes. If constitutional interpretation adheres to the Framer's Intent and remains rooted in the past, the Constitution would not be reflective of society and eventually fall into disuse.
The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. (from the same-sex marriage reference)

Of course, the right wing in the US hates us for our living tree:
It's almost impossible to read much commentary about the role of the courts without stumbling across arguments for more judge-made law, often couched in fancy rhetoric about "a living Constitution" or the alleged need to read the Constitution "in light of societal needs and evolving legal policy." (U.S. liberals aren't unique: In approving gay marriage, Canada's Supreme Court said, "Our Constitution is a living tree, which, by way of progressive interpretation, accommodates and addresses the realities of modern life.")

So ... talk about yer civics lessons, eh?

But no; remember, this thread is about me.

I am the great-great-great-great-great granddaughter of Viscount Sankey's great-grandparents. My greatx4 grandmother and his grandfather were brother and sister.

So he is my second cousin four times removed. (I think.) Different generation, same set of ancestors.

Oh, he was a Labour peer (not hereditary) -- also served as Lord Chancellor under the Labour government 1929-35. And was apparently regarded as a class traitor in some quarters.

Now just exactly how cool is that??

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Spazito Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-29-07 05:33 PM
Response to Original message
1. That, in all sincerity, is very cool!
One hell of a civics lesson for me, that's for sure! I had never heard of Viscount Sankey nor about his landmark opinions that, as you point out, were so crucial to where we are today.

Thanks for this, iverglas, it was fascinating reading. I have no doubt you are very proud of your ancestry, new-found or not, as well you should be.
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iverglas Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-29-07 06:35 PM
Response to Reply #1
3. did I hear a forelock being tugged?
I did just learn this the day before yesterday. The ancestors are in my father's line -- back from his paternal grandmother, whose name I didn't even know until I found her in the UK censuses / marriage records with his grandfather. (All I knew of my ancestry when I started was the other 7 gr-grandparents' names ... one of which has turned out to be fake ...) My dad's father died when I was a very little kid, and he wasn't exactly the nicest man in the universe. So that side of the family was both a blur and not a source of great affinity.

The husband of John Sankey's grandfather's sister -- i.e. my greatx4 grandfather -- was a butcher. Quite prosperous, by all accounts. ;)

If it ever does turn out that the gr-grparent with the fake name had some legitimate (er, illegitimate) claim to it, I'll have Viscounts on both sides, at about the same distance, and both with enormous influence on Canadian constitutional history! Of course, the gr-grparent with the name in question was hauling crates in a factory in England when the Viscount in question was getting up to his illustrious doings ...

I think ancestry is like nationality, or ethnicity, or sexual orientation group -- it's what one is, so it's good to be "proud" of it -- amounting, really, to taking an interest in it and also having a vested interest in it, so one judges it by high standards for its own good -- just as long as one isn't being proud not to be something else. ;)

In this case, I'm just kinda bowled over!

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Spazito Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-29-07 06:45 PM
Response to Reply #3
4.  My roots are Irish and Scottish and it seems
some might have been brigands, others farmers and, some, no doubt able to tip their elbow with the best of them. I am proud to be of such stock, I have little doubt my independent, might I even say feisty, nature is, in part, an inherited trait.

I love hearing/reading stories such as yours, they are always fascinating.

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daleo Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-29-07 06:25 PM
Response to Original message
2. That's all cool
And I like that you quoted Rumpole too.
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iverglas Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-29-07 06:45 PM
Response to Reply #2
5. my English cousin
-- who told me about this the other day, she with whom I share the grx4 grandmother -- thought that the Rumpole line was old John's big claim to fame, so that was how she introduced him, not being sure whether I'd ever heard of Rumpole even.

I'm not sure she's quite grasped the momentousness of our cousin's accomplishments yet, and the niftiness of the cousinhood. I may seem a silly colonial in a tizzy.

Obviously, ideas' times come, and we would probably be pretty much what we are today were it not for the Famous Five and Lord Sankey and everyone else around whom that decision revolved -- including the reactionaries on the Sup Ct itself. You never know, though. It would have been fairly easy to slide into line with the original-intent school in the US, the US being the main model of a constitutional democracy at the time.

Can you imagine anyone demanding that we go back and scrutinize what Sir John A or his pal Cartier ... or whoever else is in that old pic ... had to say about, oh, anything, or would say if they were here? People would point and laugh.

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daleo Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-29-07 10:28 PM
Response to Reply #5
7. I am glad he made the decision that he did
And that courts have had the sense to continue with that line of reasoning. Strict constructionists (or whatever they call themselves) seem pretty loopy to me. I can't imagine trying to fathom the intentions of long dead people and sticking to them religiously. It would be a recipe for paralysis.
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MrPrax Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-29-07 08:00 PM
Response to Original message
6. What type of gardening were your Druids doing
with the Chaoulli v. Quebec decision?

The Butler Decision?

um...when the Supremes just ruled on the right of collective bargaining and recognizing that as Constitutional, they were essentially re-visiting the 'Trilogy' where that tree more or less stated that the Charter wouldn't be used for a basis for the protection of labour law, workers' rights, etc etc?

Their opinion of the 'Clarity Act'??? Seems more like pruning...that Charter Rights can be extinguished by simple vote (but only if the question isn't 'loaded')

At times I think the 'living tree' is merely a stump filled with diesel waiting for match to unravels it's own relevancy.

As the poet said, "only God can make a tree" - probably because it's so hard to figure out how to get the bark on.
- Woody Allen

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iverglas Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-30-07 10:04 AM
Response to Reply #6
8. hey, you don't like it ...
get it changed. Get god out of there while you're at it, will you?

The Charter contains certain sets of rights. Not others. Not collective / third-generation / solidarity rights (fraternit). It would be nice if it did. It would have been nice if the 1867 constitution had contained equality rights. Oh well. It would have been nice if that god had created a perfect world, instead of this one.

Knowing, I have absolutely no doubt, more about the Chaoulli decision than you (for starters, I read the trial decision, the appeal decision and the submissions of all of the parties to the SCC before the SCC decided the case -- hundreds of pages in toto, and word by word), I believe the SCC decision was flat out wrong. Wrong under our current constitution, not one that we should have, and not as I think our current constitution should be interpreted to accommodate modern reality. Just plain wrong. I have seldom seen such a completely wrong-headed decision, in particular a decision in which a court has so completely failed to understand / have regard to the evidence that was presented, including the wealth of very expert opinion evidence based on very notorious fact.

(Actually, I have, though in much less exalted realms. I know the feeling, as a lawyer, of wondering why the fuck you bothered to get out of bed that morning, since the court obviously didn't hear a word you or your witnesses or your experts said.)

In a way, it was judicial activism at its worst. It was a court thumbing its nose at a policy decision made by a government in an area that is arguably not one the courts should be interfering in, under traditional notions of judicial restraint -- a policy decision made for very demonstrably sound reasons, moreover, which clearly justified it under section 1 even if the court was not improperly meddling.

I don't much know what that has to do with anything I said, though. The court in Chaouilli was not dealing with anything that called for interpretation of the constitution having regard to the living tree doctrine. There are lots of aspects of constitutional interpretation that have nothing to do with the living tree doctrine.

The doctrine was relevant in the same-sex marriage reference, because the court was being asked to interpret the constitution as including something not expressly stated in it: the right to equality under the law without discrimination on the basis of a characteristic that is not enumerated in section 15. The court had already found that non-enumerated grounds were covered, by interpreting the list as non-exhaustive and open to including grounds that modern Canadian society recognized as improper distinctions when it comes to the right to dignity and equal treatment, and applying the principles and values that Canada clearly adheres to and that clearly underlie section 15 to other situations.

The issues in Chaoulli were entirely different. Perhaps you know what they were.

Essentially, they dealt with first-generation / negative rights (libert): life, liberty, security, and non-interference by government.

Equality rights, where the living tree doctrine has had most impact, are second-generation rights (galit), recognized in our constitution but not so much in earlier ones like the US's.

The secession reference dealt with collective rights, which our constitution recognizes only in very particular instances: aboriginal rights and language rights. Oh, and dissentient education rights, in the old constitution. Frankly, I kinda think the court should have just refused to get involved. The decision is an absolutely fascinating read (once again, I read many of the research papers prepared for the court, and the parties' submissions, before the decision came down), as a review of the state of international law on the issue of the collective right to self-determination in the late 20th century, but that's really about all.

The court mentioned the living tree doctrine in passing in the secession reference, but again, it really had nothing to do with the case or the decision.

Don't know what your beef with Butler might be (a couple of words with a question mark at the end; such a productive way to discuss things). But once again, there was no call for application of the living tree doctrine in that case. Perhaps you can explain how the living tree doctrine influenced that decision, or could have, had it been applied.

And I can't make head nor tail of your critique (?) of the Health Services decision
Per McLachlin C.J. and Bastarache, Binnie, LeBel, Fish and Abella JJ.:

Freedom of association guaranteed by s. 2(d) of the Charter includes a procedural right to collective bargaining.

The grounds advanced in the earlier decisions of this Court for the exclusion of collective bargaining from the s. 2(d)s protection do not withstand principled scrutiny and should be rejected.

The general purpose of the Charter guarantees and the broad language of s. 2(d) are consistent with a measure of protection for collective bargaining.

Further, the right to collective bargaining is neither of recent origin nor merely a creature of statute. The history of collective bargaining in Canada reveals that long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society, emerging as the most significant collective activity through which freedom of association is expressed in the labour context. Association for purposes of collective bargaining has long been recognized as a fundamental Canadian right which predated the Charter. The protection enshrined in s. 2(d) of the Charter may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining.

Canadas adherence to international documents recognizing a right to collective bargaining also supports recognition of that right in s. 2(d). The Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.

Lastly, the protection of collective bargaining under s. 2(d) is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.
a summary for anyone interested:

Actually, the court is pretty clearly implying that there was no need to even consider the living tree doctrine -- that collective bargaining is an age-old right that was clearly intended to be protected by the constitution as it is written, without any need for fancy interpretation. It did toss in that last bit about principles and dignity, but that seems just by way of testing the validity of the conclusion. If only they'd done that in Chaoulli ...

Some might see it as judicial activism at its best. But really, it wasn't. The court interpreted and applied the rights clearly stated in the Charter, and simply flat out rejected a previous interpretation. That isn't an appeal to a living tree constitution; that's a decision by a court that its predecessors were wrong.

The same thing happened in the Lawrence decision by the US Sup Ct a couple of years ago -- it struck down, as unconstitutional, state "sodomy" laws that had been expressly upheld by its predecessors on that court years before.

Neither court said that society had changed and thus the way in which the constitution is to be interpreted must change. Both courts said that the interpretations in the previous decisions were simply wrong, at the time they were made, and refused to follow them.

Maybe a successor court will say something similar about Chaoulli, before too very long. It only took 20 years for the labour trilogy to be dumped in the dustbin.

Your opinion of the living tree doctrine is fascinating, I'm sure. Of course, I didn't state one, myself -- I simply pointed out the huge influence it has had on Canadian law and society, and how different things could have been if we had followed the US lead on constitutional interpretation.

So I guess I'd have to say that my opinion of the doctrine is, on the whole, positive. It has been used to facilitate some fairly significant progress.

Which would very obviously not mean -- because it simply cannot be inferred from anything I have said -- that I think we should spend the next 150 years refusing to change our constitution or our system of government or anything else, and just relying on the courts getting things right under the living tree doctrine.

Maybe you thought I meant that. I can't imagine why, but there ya go. That's my usual problem in these situations.

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MrPrax Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-30-07 01:40 PM
Response to Reply #8
9. Not that fascinating...
Edited on Sat Jun-30-07 01:43 PM by MrPrax
I don't normally subscribe to 'paradigms' where mighty oaks are tossing acorns about to create golden fliaments tying the servant to slave unto God...I am not a Tory. (...and I do mean that in the polite sense of the tradition and NOT it's 'changing' character as a word ;-)

I am a socialist!!!

I dare say I tend to the tree analogies where they must be watered by the blood of patriots.

Yes, I do find the imagery and sexist machismo disturbing but it does nicely underline that loyalty, respect and social purpose comes from the roots UP and not from an already existing aged tree where large parts of it can be hacked and pruned away, all for the safety and betterment of the tiny green buds receiving the sun, as if in prayer.

...and no that doesn't make me a Republican, but it does make me aware that unless a society tends to the needs of it's majority, then it doesn't matter what law thinks because it won't really exist anymore. Traditionally good conservatives of that tradition understood and asked notions of 'blowback'. If Burke was worried about his class being 'cashiered' at the hands of those unfit, then he also was honest enough, to tell his OWN class about their excesses and what they could do to 'manage that problem' which is always based on security for one group at the expense of another. Canuck equivalent of this criticism: George Grant.

That majority that can no longer be treated as dangerous rabble, hairdressers and tallow-makers or problematic 'human conduct' as seen by people like Oakshott.

In other words, I tend to think IN CIVIL SOCIETY!!! we are ALL 'equally' important as an end unto ourselves and not simply there to provide sap to inspire the great dreams of great men ;-)

But you will be pleased that I agree with entirely on the "Chaoulli decision". That was bizarro. I thought I read a very good piece in Dalhousie's review (couldn't find it...) that came precariously close to judicial disrespect and disbarment.

But like the BC Nurse decision. While I do applaud the good sense of the courts to tell governments that they must abide by agreements they signed, the year extension for this, reminds some of us back to the shocking and despicable federal denial of it's own wage disparities regarding it's female staff and the overly generous time the courts concluded to kick that fucker around for a couple of decades.

Oh yes and then there is the two year extension to Quebec for the Chaoulli decision which ironically decided in favour of a man whose complaint was based on 'waiting'. Of course this wait might be so Quebec can invoke the notwithstanding clause (probably not) but the last time we heard about the 'notwithstanding' clause was when Alberta was kicking it around as a way to ignore the highest courts decision on same-sex. so on and so on and so on...frighteningly inconsistent. It's a English common law institution that seems to act like the cassion in France that issues opinions, instead of law. Maybe leaning more towards the French tradition of roman jurisprudence might simply be the cure. Perhaps the French 'republicans' got it right and their buddy 'republican' friends to the south of us didn't...because they continued to follow English Common Land tradition tempered ONLY by the Old Testament's Judaic law. (so enough on those guys...perhaps I AM over projecting largely due to the seemingly obvious collapse of the rule of law in the US that most called to the bar in the US are missing)


I understand your a lawyer so you can say only so much, but I think there should be a lot more critical examination of not ONLY these hallowed courts but many of the 'acorns' out there that might get all huffy, in a very British way, when one of their servants tells them they're an idiot, like our Chief medical health officer when they attempt to continue to view the world through hygiene films of their youth that told the chaps that the only way you could get lice was from a dirty woman. (probably divorced ones too!)

Frighting to think isn't it?.... that one group of stuffed up idiots who might be incompetent but upholding the public decisions of other stuffed up idiots who are incompetent and all this might be enforced by acts of violence on behalf of the 'men with guns'.

Toryism requires far too much obedience for this humble servant.

just to clarify I don't actually buy the 'red' tory theory about Canadian politics -- I don't believe that the millennium old, well-oiled preservation machine of the Aristocracy magically transplanted itself in the Prairie soil among farmers annoyed by train freight prices.

I think, to invoke old Tommy, is it is just something that the 'city' mice used to say why they found themselves in agreement with 'country' cats so often. Some of the 'elegance' of Toryism and Conservatism, which is indeed useful, does not live on in the hearts and minds of right wingers these days

Oh didn't offer an opinion smelt a trap...I will have try better ;-)
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Swede Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-30-07 07:26 PM
Response to Original message
10. Very cool,Iverglas.
Interesting stuff.
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iverglas Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-30-07 08:35 PM
Response to Reply #10
11. and more

I have received a copy of the pdf document with the class traitor stuff -- it's on JSTOR, which an academic colleague of mine has access to. I drool every time google presents me with fascinating thing after fascinating thing on that site, that I can't see.

But because the damned thing is a scan, I can't copy any of it. That link should work to see the first page -- I think the second footnote will find an audience here:

"Tory democracy": "a deviant form of class politics in which the Conservatives capture the working class vote by outbidding the Liberals on social policy". An essential characteristic of tory democracy thus defined was a conciliatory attitude towards trade unions.

Ah, plus a change, plus the Liberal colonials learned from their Tory cousins in the motherland.

Apparently 1 in 3 of the converts to Labour left the party (my knowledge of UK political history in that period is, uh, non-existent, so I'm skimming the document and summarizing).

Some of the ex-Conservatives joined the Mosleys, and I do know what they got up to. It was called the British Union of Fascists.

Sankey was one who followed PM Ramsay MacDonald into the National government in 1936, apparently so that he could continue working on foreign policy matters from Cabinet. He continued to identify as Labour, and rejoined the Labour Party in 1842.

I'm smelling some class consciousness without class analysis hereabouts, maybe. Sankey was not to the manor born; he was a barrister, who became a judge, who was appointed Lord Justice of Appeal on merit, and made a Baron and then a Viscount, for some reason, by a Labour Government. Kinda like Glenda Jackson. So we had a Labour law lord interpreting the Canadian constitution for us in 1929. Pretty much the best we could have hoped for, I'd say.

Aargh, another JSTOR document I'll have to dream of, or beg for:

"Sankey was the most genuinely interested in social problems and law reform." He wasn't one of the farthest left batch of recruits, and he saw trade union interests as too dominant in the Labour Party apparently. If anybody's interested in the paper, 25 pages about this perhaps arcane aspect of an interesting historical/political period, gimme a gmail address or something and I'll send it on. Shh.

But hey, if anybody'd rather hear about another of set of my gr-gr-gr-grandparents -- "Pauper Ag. Lab" in 1841, I'll see what I can do. And there's the grandfather who was the son of the guy with the fake aristocratic name -- the one who started work at the jam factory somewhere in Ontario at 13, was a union man all his life, a master printer, and fought for the 40-hour week and all that. The nicest kindest goodest man you'd ever want to know. Voted Tory all his damned life. That's what living in London Ont. will do to you. I dunno ... maybe it was strategic voting.

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Bragi Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-03-07 03:18 PM
Response to Original message
12. Great Find! Terrific thread! /NT
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