On the eighteenth of October 1929, a committee of judges in London told the Government of Canada that Canadian women were people.
The Judicial Committee of the Privy Council was then the final court of appeal for this country, which is its own commentary on where sovereignty sat in 1929. It had been asked whether the word "persons" in section 24 of the British North America Act, the section governing who may be summoned to the Senate, included women. Canada's own Supreme Court had said no the year before, holding that women were not "qualified persons" and so could not sit.
That is the finding a Canadian court reached, about Canadians, in 1928. It took a panel in London to undo it.
Five women from Alberta had forced the question: Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Emily Murphy and Irene Parlby. Murphy was a magistrate in Edmonton who had been told from the floor of her own courtroom that she had no standing to be sitting in it, on the grounds that she wasn't a person in law. She took that badly and spent the next decade on it.
Lord Sankey wrote the decision, and the sentence everybody remembers is about a tree. The British North America Act, he said, "planted in Canada a living tree capable of growth and expansion within its natural limits."
A country can read its founding documents as a list of what was permitted in the year they were signed, or it can read them as something still growing.
It is worth stopping on what that actually did, because it is much larger than the Senate.
Sankey was rejecting a method. The government's case rested on what the word "persons" had meant to the men who wrote it in 1867, and in 1867 it had plainly not meant women. Sankey's answer was that a constitution isn't a contract to be read against the intentions of the dead. It's a frame for a country that keeps happening, and it has to be read for what it can hold now. Within natural limits — he was careful about that, and the limits have been argued over ever since.
That is the living tree, and it is the reason Canadian constitutional law has the shape it has. Every subsequent fight about what the Charter covers, about words written in 1982 and applied to questions nobody in 1982 had thought of, runs through that sentence from 1929. It is probably the single most consequential line ever written about our constitution, and it was written because five women in Alberta wouldn't let a definition stand.
Cairine Wilson was appointed to the Senate the following year, the first woman to sit in it.
Now the part that a paper claiming to keep an accurate ledger has to put in. The Famous Five were not saints and their records on other questions — eugenics above all — have been argued over hard, and that argument is a real one rather than a modern fastidiousness. Murphy in particular wrote things about race and about sterilisation that are indefensible and that she did not consider controversial at the time. Several of the five held views on who ought to be permitted to have children that read now as monstrous.
Both halves are true. They won a case that enlarged the constitution for everybody, including every group some of them would have excluded, and the instrument they created was then used by people they'd never have let in the door. That is a fairly common shape in Canadian history and we would rather report it than tidy it.
What the case settled, in the end, is a habit of mind. A country can read its founding documents as a list of what was permitted in the year they were signed, or it can read them as something still growing. We picked the second in 1929, in a London courtroom, on a question about whether half the population counted — and the tree has been doing the work ever since.
This is the second piece in The Long Record, a series on Canadian history and what it still decides.
