The Persons Case and the Living Tree Theory of Constitutional Interpretation
Sharpe, Robert J., University of New Brunswick Law Journal
On 18 October 1929, the Judicial Committee of the Privy Council ruled that women were legally eligible for appointment to the Senate of Canada. (1) The judgment was written by Lord Sankey, the reform-minded Lord Chancellor appointed by Labour Prime Minister Ramsay MacDonald. Lord Sankey departed from a long line of cases and proclaimed an organic and progressive theory of constitutional interpretation. The British North America Act, 1867 (2) had, according to Lord Sankey, planted in Canada "a living tree capable of growth and expansion within its natural limits." (3) This allowed him to rule that "the exclusion of women from all public offices is a relic of days more barbarous than ours." (4)
The Privy Council's decision, popularly known in Canada as the "Person's Case", was a bold legal step that reverberates to this day as a proclamation of equality and universal personhood, and as a guiding principle of constitutional interpretation.
My lecture, drawn from a book I co-authored, (5) is a case study based upon archival other contemporary sources that attempts to put the Persons Case in its historical context. Who were the people behind the case? What were the legal, social and political forces that produced this remarkable decision? I hope that the story I am about to tell you will provide some insight into the human and contextual factors that shape and influence the legal and interpretive process.
ARE WOMEN PERSONS?
Let me start by explaining the precise legal issue put to the Privy Council in the Persons Case. The British North America Act, 1867, a statute enacted by the Westminster Parliament that served as Canada's Constitution until 1982, provides for an appointed upper house, the Senate. The Act states that on the advice of the Canadian government, the Governor-General of Canada, as the Queen's representative, can summon "qualified Persons to the Senate," and that "every Person so summoned shall become and be a Member of the Senate and a Senator." (6) Do the words "qualified persons" include women? Today the answer is obviously "yes" but it was not so straightforward in 1929. There is no doubt that when the British North America Act was written in 1867, the drafters did not imagine women being considered "qualified Persons" capable of being appointed to the Senate. By 1929, Canadian women had entered the work force. They could vote and sit in the House of Commons but eligibility for the Senate remained cast in the language of 1867. The English courts had consistently interpreted similar statutory qualifications for public office as excluding women. (7) The conventional legal thinking of the day was that the words of the constitution had to bear the same meaning in 1929 as they had borne in 1867, and that it would take a constitutional amendment to make possible a female Senator.
EMILY MURPHY'S SENATE CAMPAIGN
The Privy Council's decision in the Persons Case was the result of the untiring efforts of Emily Murphy, a well-published author and social crusader, (8) and the first woman to be appointed as a magistrate in the British Empire when she was named to the newly created Women's Court in Edmonton Alberta in 1916. (9) Murphy was not legally trained and she did not conduct herself either in or out of court as a traditional judge. She saw her role as being that of a social worker and she never surrendered her mantle as a social reformer. Courts, she proclaimed, should be "casualty clearing stations where 'magistrate-physicians' carefully diagnosed the offenders' problems and applied the proper remedy." (10) Despite her judicial office, Murphy continued to speak out on social issues affecting women and children and she continued to advocate legal reforms. She attracted national attention with her tirade against the evil of drugs in a book entitled The Black Candle, arguing that illicit drug use posed a dire threat to the moral health of the nation. (11) Clearly, Murphy's ambitions could not be satisfied by the lowly position of a Police Magistrate and, very shortly after she was appointed to the bench, she set about to get herself appointed to the Canadian Senate. …