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

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The Persons Case: the Origins and Legacy of the Fight for Legal Personhood The Persons Case: The Origins and Legacy of the Fight for Legal Personhood by Rfobertj Sharpe and Patricial McMahon Toronto, University of Toronto Pressfor the Osgoode Socie yfor Legal History, 2007 Pp. 269. 2008 CanLIIDocs 60 In 1938, a plaque commemorating the tenth anniversary of the Pasouis case,' spon- sored by the Canadian Federation of Business and Professional Women's Clubs (BPW Canada), was unveiled at the entrance of the Senate of Canada by Prime Minister Mackenzie King. A press report about this event noted that there were then two women in the Senate (Hon. Cairine Wilson, Ottawa, and Hon. Iva Fallis, Peterborough), two women in the House of Commons (Agnes McPhail, Grey-Bruce and Mrs. George Black, Yukon) and five women members of provincial legislatures, all in the West (two in British Columbia, two in Alberta and one in Manitoba).' As the report also noted, two women had qualified in 1938 as ship captains, four women had received honorary degrees (conferred by Mount Allison University, the University of British Columbia, McGill University and the University of Toronto), Margaret Hyndman had become the second Canadian woman lawyer (after Helen Kinnear in 1934) to receive recognition as King's Counsel, and Nellie L. McClung had been appointed an official Canadian delegate to the League of Nations in Geneva. Women in Quebec were still persevering in lobbying for the franchise, even though the year had witnessed the defeat of the thirtemth woman's franchise bill in the province. Finally, as the report noted, by 1938, three of the "Alberta Five," the women who had championed the Perscns case litigation, were deceased; only Nellie L. McClung and Irene Parlby were still living.' I. Refermc reBitcshNahAmric Act 1867 (l) Secn 24, [1928 S.C.R. 276,[192814 D.L.R. 98 [eRaryr BNAAa SCC cited to S.C.R.1; and Raenmere Btish'Nath Arryca Act,1867s. 24,119301 1 D.L.R. 98, [19301 AC 124 (PC) [RermaireBNA ActPC cited to ACI. 2. Joan Hopkins, "Ability is Recognized in Professional, Political, Educational, Other Fields"The Globe and Mail (30 December 1938) 10. 3. Ibict Margaret Hyndman, a prominent woman lawyer, was actively involved in BPW Canada. 160 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 40:1 40:1 In identifying the different spheres of women's accomplishments in 1938, this press report reveals how women were still facing major barriers to full participation in Canadian society, particularly in paid work and in public life. Moreover, as a new Osgoode Society publication, The Persas Case by Robert J. Sharpe and Patricia I. McMahon, 4 suggests, most politicians and civil service advisors at the time showed little sympathy for women's claims to equality.5 In this context, the Supreme Court of Canada had responded to a reference case in 1928, initiated by the Alberta Five 6 to seek recognition of women as "persons" for appointment by the Senate, by adopting an interpretation of constitutional language understood by the founding fathers at Confederation fifty years earlier.7 Ironically, it was Canada's continuing colonial sta- tus that permitted a further appeal to the Privy Council, in which Lord Sankey enun- ciated the now-famous "living tree" doctrine of constitutional interpretation, and in applying this principle, held that women in Canada were indeed "persons" for pur- poses of eligibility for Senate appointments.' 2008 CanLIIDocs 60 The authors of The Paw-cis Case describe the case as a "landmark decision for women's legal rights."' However, they also claim that "its broader legacy is the recog- nition of Canada's constitution as an enduring document intended to withstand the challenges of time." ° In this context, the primary purpose of their study is to "shed light on Canada's constitutional history and the process of constitutional decision- making" by "taking a close look at the people and politics behind a specific case."11 Thus, the study examines the five Alberta women who requested a constitutional ref- erence, the politicians, civil servants and male lawyers involved in its presentation to the courts, and the judges of the Supreme Court of Canada and the Privy Council who rendered decisions about the meaning of the word "persons" in the British North 2 Airr'a Act. 1 Significantly, the authors suggest that there was nothing inevitable about 4. RobertJ. Sharpe & Patricia 1. McMahon, 7he Psns Cas: The Oigins and Legacy cf the fight for Legal Pawihood(Toronto: University ofToronto Press for the Osgoode Society for Legal History, 2007). 5. Ibid. at 3-5. 6. Iid. at 16-58.The Alberta Five included Emily Murphy, a writer and social astdvist who was also the first woman appointed a Police Magistrate in Edmonton in 1916. Murphy had long been involved in a variety of reformist causes and organizations, and her work as a magistrate included a focus on issues of delinquency and prostitution. The group also included four other women: Henrietta Muir Edwards, a founding member of the National Council of Women and the Victorian Order of Nurses; Nellie McClung, a writer and mem- ber of the Women's Christian Temperance Union (WCTU) who actively campaigned for suffrage; Louise McKinney, also an active member of the WCTU and the first female legislator in the British Empire when she was elected in Alberta in 1917; and Irene Parlby, also elected to the Alberta legislature and only the sec- ond woman in the Empire to hold cabinet office. 7. RdatuoereBNAAaSCC, sa note I at 281-82. 8. RdJuareBNAAaPC, supa note I at 136, 143. 9. Sharpe & McMahon, siqra note 4 at 14. 10. liL 1. Ibid. at 1 . , 12. Cxistitution Act, 1867 (U.K), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. 11,No.5. BOOK REVIEW COMPTE RENDU DE LECTURE 161 the result in the Privy Council, as the story of the case illuminates how "individuals do make a difference." 3 At the same time, the study seems most interested in the legacy of the case in terms of the "living tree" principle of constitutional interpreta- tion, clearly enunciated by the Privy Council in deciding the Pesons case. As they note, the "living tree" principle has been highly significant for contemporary Canadian courts in interpreting the Charter of Rights and FreebnZ 14 , most recently in the Quebec"5 and same-sex marriage reference 16 cases.'I There is much that is engaging in this account of the Pesriscase, particularly in relation to the five women who requested the constitutional reference, and the behind-the-scenes political manoeuvres of Prime Minister Mackenzie King and his advisors who had to respond to their challenge. In addition, the study situates the case within the ongoing tensions with respect to constitutional interpretation between judges in the Supreme Court of Canada on one hand and in the Privy Council on the other. It also tries to explain the British social and political context in which Lord 2008 CanLIIDocs 60 Sankey rendered the Privy Council's decision, overturning the decision of the Supreme Court of Canada to declare that women were "persons."'"T hus, even though the case lapsed into legal obscurity for some time, the authors conclude that the P-sais case is now embraced, eighty years later, as an ideal of "universal personhood" 19 which lies "at the core . of a just and democratic society."' Indeed, as this phrasing suggests, the authors clearly connect the legal and political contexts of the "living tree" interpretive principle to (harterdecision-making in Canadian courts today. Yet, while the study provides a careful exegesis of the legal and political aspects of the Parmns case, it does not fully succeed in explaining this case as part of the long history of women's legal challenges to attain recognition as "persons."20 Although there is commendable attention to R v. Cyr 2 1 the case in which Emily 22 Murphy's status as a magistrate was challenged in Alberta, and to Gchriton v. Ings, the British case that held that women were not necessarily included in statutory lan- 13. Sharpe & McMahon, supa note 4 at 15. 14. Canadian GartercRights andFrekm, Part I of the (GyistutinAct, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 chartfl. 15. RdeauxreSeimen cfQuebeq [199812 S.C.R. 217, 161 D.L.R. (4th) 385. 16. RencererrSarn-SexManiag 2004 SCC 79,120041 3 S.C.R. 698, 246 D.L.R. (4th) 193. 17. Sharpe & McMahon, Apra note 4 at 204. 18. A/id. at 104-53. 19. II d at 15. 20. See generally Beverley Baines, "Women and the Law" in Sandra Burt, Lorraine Code & Lindsay Dorney, eds., Ohanging Pattns: WA'bn in Canada (Toronto: McClelland and Stewart, 1988) 157. 21. (1917), 12 Alta. L.R. 320, 38 D.L.R. 601 (S.C.(A.D.)). 22. (1868), L.R. 4 C.P. 374, 38 L.J.C.P. 25. 162 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 40:1 40:1 guage (notwithstanding presumptive inclusion under the Lord Brougham's Act), 23 the study focuses much more on the history of "persons cases" in Britain than in North America. 24 Interestingly, the study does not examine cases in which women were induded as "persons" in other parts of the British Empire as early as 1896,25 nor the extent to which the Privy Council's decision in the Perscu case influenced recogni- tion of women's rights elsewhere. 26 A more complete treatment of the "persons cases" history would better situate the significance of the Persans case for women's legal status, both in Canada and beyond. In addition, the study is much less focussed on how the Persons case related to the exigencies of the Canadian women's movement in the decade after World War I and the achievement of female suffrage.2 7 Indeed, in focussing primarily on the case's significance for principles of constitutional interpretation, the authors downplay its importance for women's rights, suggesting that it was "all but forgotten until the 28 1970s when it was resurrected by a new wave of feminists." While this claim is cer- 2008 CanLIIDocs 60 tainly credible, it could be challenged by women (including women lawyers) who continued to assert women's equality rights during these interim decades (and who also organized the presentation of the plaque in the Senate in 1938).29 Moreover, the study's treatment of maternal feminism is not fully convincing," ° although the Alberta 23.
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