Canada’s “Persons” Case: A living tree

Whether it would be desirable for women to be eligible for senatorial appointment was beside the point, Chief Justice Frank Anglin wrote in his opinion. What mattered was what the drafters of the 1867 statute intended, and the words they wrote had to “bear today the same construction which the courts would, if then required to pass upon them, have given to them when they were first enacted.”

The five women then appealed to the Judicial Committee of the Privy Council in London, which as a vestige of empire served until 1949 as Canada’s court of last result. There the outcome was different. A newly appointed Lord Chancellor, John Sankey, rejected the originalist approach. It was wrong, he wrote in the 1929 decision, “to apply rigidly to Canada of today the decisions and the reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.” Driving the point home, Lord Sankey went on to say: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Women, the court concluded, were indeed persons. Soon enough, they were senators as well.