The Persons Case Eight Decades Later: Reappraising Canada's Most Misunderstood Court Ruling

Abstract

Lord Sankey's celebrated 1929 ruling in the Persons (Edwards v. A.-G. Canada) is widely regarded as the most important precedent for the tree doctrine, which holds that the courts may change the definition of individual words and phrases in the Constitution of Canada in order to allow the constitution to reflect current values. Indeed, the phrase tree is taken from this ruling: The British North America Act planted in Canada a living tree, capable of growth and expansion within its natural limits.This paper maintains that this phrase -- and indeed, Sankey's entire ruling -- has been completely misunderstood. Not only was Sankey not arguing that judges may expand rights by redefining the meaning of words; he was outlining an argument in favour of determining the meaning of ambiguous words and phrases by reference to the original publicly-understood meanings of these words, at the time that they were enshrined in constitutional law.This thesis is demonstrated by a detailed review of the Edwards ruling, by reference to several of Sankey's other rulings, and by a review of the literature relating to early interpretations of Sankey's words. Prior to 1980, there was a nearly universal consensus that Sankey had employed what would today be referred to as originalist logic, and that he had overtly rejected judicial redefinitions. Sources which concur in this include citations of the Edwards case from courts in Canada, Australia, Ireland, and India, as well as Canadian and Commonwealth legal scholarship from 1930-1980.