The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (review)

Robert Sharpe and Patricia McMahon have made a valuable contribution to the field of Canadian legal history with their study of the Persons case. The Persons case, officially Edwards v. Attorney General of Canada, was the 1920s legal case that dealt with the question of whether women could be appointed to the Senate under the Canadian Constitution. Section 24 of the British North America Act, 1867, provides that the prime minister may appoint ‘qualified persons’ to the Senate. Until the 1929 decision in the Persons case, that category did not include women. Sharpe and McMahon’s book thoroughly contextualizes the case and aims to demonstrate its lasting impact.

The book begins with biographies of the ‘Famous Five’ women who were behind the legal challenge to the exclusion of women from the Senate, focusing particularly on Emily Murphy, whose ‘determined efforts’ the authors explain were the driving force for the case. From there, the book moves to a survey of the women’s movement of the late nineteenth and early twentieth century to set the stage for the case. This is followed by a recounting of Emily Murphy’s fight in the political arena for her own appointment to the Senate. Only when her political efforts proved ineffective in securing her own appointment did she turn to the courts. The second half of the book tells the detailed story of the legal challenge itself from the Supreme Court of Canada (where the women were unsuccessful in persuading the Court that they were included in the category ‘qualified persons’) through to their ultimate success before the Judicial Committee of the Privy Council, an English body that until 1949 remained the highest appellate court for Canadian cases. In the final chapter, the authors explore the legacy of the case.

The real strength of the book lies in its drawing out the personal, political, social, and legal forces that animated this case. It is a masterful case study in the way these forces interact in complex ways to produce change. Particularly well explored is the impact that an individual can have on a case, whether as a litigant (Emily Murphy) or as judge (Edward Sankey, the author of the Privy Council decision). The book is meticulously researched, drawing on a range of archival material, as well as a variety of secondary sources (though at times I found that too much detail was recounted, such as when the authors spend two full pages describing the social engagements of lawyer Newton Rowell in London while he awaited the Privy Council hearing of the case). Parts of the book will seem basic to anyone who has taken an introductory women’s studies or constitutional law course. However, if the book hopes to be accessible to a wide audience with little legal expertise, the elementary treatment of some topics is certainly forgivable. What I find somewhat unsatisfactory is the brief treatment of the legacy of the case. The case raises issues of constitutional interpretation and the relationship between the legislative and judicial branches of government that continue to generate controversy today. The authors could have done more with the parallels to recent Charter cases, which might have contributed substance to what is often an ahistorical and sometimes even hysterical debate about the proper role of courts in the shaping of social policy. This objection aside, Sharpe and McMahon have written an interesting and informative exploration of a case that has had a profound impact on modern Canadian constitutional jurisprudence.