New study suggests Supreme Court has misinterpreted the 1929 Persons Case
Tuesday, October 16, 2012
PDF copy: The Person’s case eight decades later
According to this paper released today by the Canadian Constitution Foundation (CCF), Canada’s Constitution is not a flexible “living tree” open to progressive interpretation. This directly challenges the prevailing opinion in Canada’s legal community.
The paper, authored by Member of Parliament Scott Reid, lays out how the 1929 Persons case has been misinterpreted by the Supreme Court of Canada to grant judges authority to change the legal meaning of Canada’s Constitution.
The Persons case, celebrated annually on October 18th to commemorate women being made eligible to sit in the Canadian Senate, is often erroneously assumed to have also updated the legal meaning of “qualified persons” under section 24 of Canada’s Constitution, to better reflect changes in Canadian attitudes towards women.
“The Persons case was not a redefining of the legal meaning of a part of Canada’s Constitution,” said Reid. “The Governor General has always had the power to appoint women to the Senate, but had previously been restrained by a convention that any such appointment would be inappropriate”.
According to Reid, “The ‘living tree’ metaphor from the Persons case is not meant to apply to our Constitution”. Reid added, “Instead, we must acknowledge that it is our conventions that change over time. The legal meaning of the Constitution remains unaffected”.
The Supreme Court of Canada has cited the Persons case as a reason for using a progressive interpretation of the Constitution to ensure our Constitution has “continued relevance” in our changing society.
In contrast, Reid argued, “The Persons ruling does not justify an interpretation where the legal definition of the Constitution can be altered at the whims of sitting justices”. He added that, “Changing the definition of words in our Constitution is akin to amending it”.
“The advocates of progressive interpretation are saying that the Supreme Court of Canada has the authority to amend the Constitution. This is patently wrong,” Reid concluded.
Reid’s paper notes that the Supreme Court itself made reference to the living tree metaphor only four times in the first fifty years after the Persons case, and in none did the court or any judge use the metaphor in support of “progressive” interpretation. The endorsement of this novel form of interpretation did not occur until a 1980 ruling by then Supreme Court of Canada Chief Justice Dickson.
This paper is being made available as part of the on-going CCF project: Original Documents. The Original Documents website is an electronic depository of historical Canadian documents related to our Constitution, many of which can only be found on this website.