Living tree. Any law student worth his or her salt instantly identifies these two words with Edwards v. A.G. of Canada,1 more commonly known as the ”Persons” case. This 1929 ruling overturned an earlier decision of the Supreme Court of Canada that the provisions of the British North America Act for the appointment of ”qualified persons” to the Canadian Senate did not include women. In those days our highest court of appeal was the Judicial Committee of the British Privy Council; and so it was that a British court, not a Canadian one, opened the doors of our Senate to women.
Law students are taught that the ”Persons” case marked a turning-point in the development of Canadian constitutional law. It gave new meaning to the term ”responsible government” by ruling that the BNA Act was to be interpreted progressively, like a ”living tree … capable of growth and expansion.”2 And so, in keeping with the times, the Act could now be read as including women in the governance of our society. In the words of Emily Murphy, one of the ”Famous 5” who brought the case before the courts, ”We, and the women of Canada whom we had the high honour to represent, are not considering the pronouncement of standing as a sex victory, but rather, as one which will permit our saying ’we‚ instead of ’you‚ in affairs of State.”3
In reaching their decision the British law lords reviewed external evidence such as case law and other legal precedents, and in so doing acknowledged and gave further validity to the changing role of women in Canadian society. But the history of this case, fraught with many interesting twists and turns, is also telling. Consider one of the items of external evidence reviewed by the Privy Council, the case of Lizzie Cyr.
Lizzie Cyr was a prostitute who in 1917 was brought before magistrate Alice Jamieson, in Calgary, on a charge of vagrancy. In the early decades of the 20th century, prostitution was controlled primarily by vagrancy laws. Societal prejudices that laid the blame at the feet of the prostitutes, combined with the rising fear of the spread of venereal disease, caused Lizzie to receive harsh treatment at the hands of Jamieson, the second female magistrate to be appointed in the British Empire. David Bright observes that ”an enduring sexual discrimination existed at the core of legislative measures — regulation, prohibition and rehabilitation — adopted by the state to combat prostitution.”4 In reviewing Jamieson‚s handling of the case, Bright concludes that she acted prematurely and unfairly in handing down an sentence of six months‚ hard labour without allowing the defence to present its case.
Cyr‚s lawyer appealed the case on a number of grounds, one of which was that Jamieson, as a woman, did not have the legal capacity to hold the public office of magistrate. The Alberta Court of Appeal addressed this argument head on and found that in ”presently existing conditions there is at common law no legal disqualification for holding public office in the government of the country arising from any distinction of sex.”5 This legal decision, along with other evidence of women‚s involvement in public office at that time, served to lay the foundation for the appeal to the Privy Council in the Edwards case.
The many achievements of the Famous 5 (Emily Murphy, Nellie McClung, Henrietta Muir Edwards, Louise McKinney and Irene Parlby) are acknowledged on October 18 with the unveiling of a statue on Parliament Hill — an honour that, until now, has been reserved for monarchs, deceased prime ministers and the Fathers of Confederation. The road to social change is often paved with irony, and so perhaps it shouldn‚t surprise us that the history of legal personhood for Canadian women is so strangely bound up with the less satisfactory history of that persona non grata, Lizzie Cyr.