- The Persons Case: The Origins and Legacy of the Fight for Legal Personhood
The broad outline of the Persons Case is familiar to anyone with even a passing knowledge of Canadian women's history. The 1929 decision of [End Page 177] Britain's Judicial Committee of the Privy Council, determined that women were 'persons' and eligible for appointment to the Senate. At issue was section 24 of the British North America Act that allowed the governor general to appoint 'qualified Persons' to the Senate. The reference case, brought by the federal government at the request of five women from Alberta, asked if the word persons included women.
At the time the act was passed in 1867, women were excluded from the vote and denied the right to hold public office. A narrow, technical construction that adhered to the framers' original intent would hold that women were not included under section 24 and were therefore ineligible for Senate appointment. This was the view taken by the Canadian Supreme Court in 1928. It was left to Britain's Lord Chancellor, John Sankey, and his fellow law lords to give Canadian constitutional law a broader and more liberal interpretation. Likening the constitution to a 'living tree,' Sankey found that, rather than being stuck in the past, it should reflect contemporary attitudes and values. As Sharpe and McMahon point out in their introduction, 'The Famous Five . . . sought to transform the Senate and ended up changing the fundamental tenets of Canadian constitutional interpretation' (15).
Sharpe (a justice of the Ontario Court of Appeal) and McMahon (a practising lawyer) provide a lively account of the key personalities associated with the case while presenting a clear, easy-to-read account of events surrounding the case and the legal arguments advanced by both sides. They also clear up several long-standing misperceptions. For example, the oft-repeated suggestion that Murphy uncovered an obscure provision in the Supreme Court Act that allowed any five interested citizens to petition the court for an interpretation of the constitution is not correct.
Also, under the terms of the act it is the government, not an individual, who can request an interpretation from the Supreme Court. Once the government (on the advice of the Department of Justice) determined to allow a reference case, the court decided who should be notified and heard (106). This context is important for understanding Prime Minister Mackenzie King's role in the case. The authors provide compelling evidence to support their conclusion that, rather than championing the women's cause, King acted out of political expediency when his government referred the case rather than seeking a political solution. But, as Sharpe and McMahon point out, reference to the Court did not place the question beyond politics.
The authors offer plenty of evidence of the blatant sexism of most of the politicians, policy makers, lawyers, and judges involved in the case without critically assessing the persistence of these attitudes in the [End Page 178] immediate post-suffrage period. Indeed, the achievement of suffrage enlivened the debate over the role of women in Canada's public life and, far from being a spent force, the women's movement continued to press for and win important legal rights during the 1920s. The Great War of 1914–18 had ushered in widespread social changes, and women had gained a foothold in new occupations, including the law. Anglophone editorial opinion generally supported Murphy (francophone Quebec, of course, did not include women in that province's franchise until 1940) and, with one woman already sitting in the Lower Chamber, some saw the persistence of women's exclusion from the Upper Chamber as a curious anomaly.
The authors fail to adequately explain why the question of women's access to the Senate, first raised in 1919, took such a long and protracted route to resolution. Why were most Canadian politicians so reluctant to extend full citizenship rights to most women? Did...