The Person's Case

“The Canadian Constitution is a living tree capable of growth and expansion within its natural limits”

Lord Chancellor Viscount Sankey

“The Person’s Case:  The Origins and Legacy of the Fight for Legal Personhood” is a book written by Robert Sharpe and Patricia McMahon.  It chronicles the history of the case and the lasting effects it had on Canadian history.  I chose this book not only because I have a personal interest in constitutional law, but also because this particular case set a precedent for future Canadian legislation, including The Charter ofRights and Freedoms.  This was a landmark case for two reasons:  1) It established that women were “persons” and could be appointed to the senate; and 2) The quote by Lord Sankey above established a new era in constitutional law.  Gone were the days of rigid adherence to the intentions of the original drafters of the Canadian Constitution, since the” living tree doctrine” stated that the Canadian Constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.  This is a principle that is paramount to constitutional law as we know it because it allows the constitution to be amended as times change.  Modern issues, such as women’s suffrage, “personhood” or even, as Robert Sharpe pointed out, same sex marriage, would not have been in the minds of the men who forged the original Constitution.

Overview:

The book starts out with an introduction to the key players in the Edwards v. Canada case, or The Person’s Case, as it was known.  Without the central figure of Emily Murphy, the case would never have happened.  She is undoubtedly one of the most famous Albertans, and made up one-fifth of the “Famous Five," along with Nellie McClung, Irene Parlby, Henrietta Muir Edwards and Louise McKinney.  Murphy was an accomplished writer and became the first Police Magistrate in the province of Alberta.  Sharpe and McMahon devote an entire chapter to her and detail the events leading up to her pursuing a seat in the Senate.  Throughout the chapter, it becomes known to the reader the causes Murphy was passionate about and the beliefs that she held.  Although the issue of women as “persons” was settled in Alberta by the Supreme Court in 1917, there was no ruling that encompassed the whole of Canada.  Emily Murphy had garnered a lot of support in her own province, but when she pushed the issue of being appointed to the Senate, she was rejected on the grounds that “women were not Persons.” 

The Famous Five

Chapter Three, aptly titled “The Trials of Legal Personhood” chronicles the successes and failures of other cases where women sought equality.  By explaining these other cases, it helps us understand the sentiment of the time and the blatant sexism toward women that was commonplace, not only in Canada, but in Great Britain as well.  The Second Reform Act of the late nineteenth century in Britain extended the right to vote to “every man” of full age that was a householder.  The Interpretation Act of 1850 stated that “words importing the masculine gender shall be taken to include females” (Page 66).  On all accounts, according to the laws in place at the time, women homeowners should have been extended the vote.  When this was challenged in court, the judges rejected the argument based on common law, which stated that women were incapable of voting.  The Chief Justice presiding over the case added that “gender-specific legislation” was needed to overcome this disability and that the word “men” included women in some statutes, but in others was “ridiculous” (Page 66).   It seemed as though every time women had a good case for equality, there was a differing interpretation of the law standing in the way. 

The remaining chapters outline the birth of The Person’s Case, starting with the filing of a petition to the federal government outlining two questions:  1) Can a female be appointed to the Senate?  and 2) Is it constitutionally possible for a provision to be made in order to allow a woman to be appointed to the Senate?  Although the initial questions got narrowed down to one:  “Does the word persons in section 24 of the British North American Act of 1867, include female persons?,” the petition was referred to the Supreme Court of Canada to be decided.  The Supreme Court heard the case on March 14, 1928, and came back with a disappointing verdict for the Famous Five.  It was decided that according to section 24 of the British North America Act, only “qualified persons” could be elected to the Senate, and women did not fit that description.  The essential backing to their argument was the fact that the original founders would never have thought of women as “qualified persons” and; therefore, the law must adhere to that fact.  Agnes MacPhail, one of the women in the House of Commons at that time, wondered, “Why should a group of men in 1867 govern the actions of men and women in 1928?” (Page 136).

Not satisfied with defeat, the five women appealed to the Judicial Committee of the Privy Council (JCPC), the last resort in their quest for equality.  The JCPC was a court located in London that would oversee legal disputes throughout the British Empire and which Canada utilized until 1949.  The case was not just about the status of women in regards to the Senate, but about two differing ideologies and which was the better course to take for the betterment of a nation.  Was the British North America Act of 1867 a legislative enactment of the Parliament of Westminster which was frozen in time, or a document designed to be the enduring charter of a nation--one that was adaptable to meet the changing needs of an evolving and maturing nation? (Page 178).  The choice was between lamenting about the traditions of old and rhetoric of generations past or forging a new path forward, granting equal rights to men and women.  Although it took quite a while for the case to be heard initially, the women finally got a verdict.   

The answer to this question forever changed the course of constitutional law in Canada and paved the way for the “living tree” doctrine.  Lord Chancellor of Great Britain, John Sankey was the inventor of the living tree metaphor and it was perfectly suited to the case.  Women were to be considered “persons” under section 24 of the BNA Act and, in addition to that, he also ruled women to be persons in other statutes.  In the final chapter, Sharpe and McMahon allude to the fact that the living tree doctrine was the true legacy of The Person’s Case.  The idea of an ever-changing, evolving constitution is something that we in the 21^st century take for granted.  We were born in an age where our rights are enshrined in the Charter of Rights and Freedoms, which would never have existed without The Person’s Case.

Lord Chancellor John Sankey

Equality for Everyone?

The lasting effect this case had on Canadian constitutional law was tremendous; however, it does not come without any criticism.  To a modern reader, some of this book was hard to get through.  Normally when I read history, I understand quite well that depending on the time period, I may or may not agree with the views of the people in question, but I understand that I cannot take them out of context.  Even Sharpe & McMahon comment on this fact in the prologue.  Especially in the initial chapter regarding Emily Murphy, some of her views, which are undoubtedly a product of that time, were quite alarming and hard to digest.  She worked tirelessly to get full recognition for women but, at the same time, held deplorable views towards immigrants, the “feeble-minded,” and drug addicts and dealers (who usually ended up being coloured or Asian people).   Her dubious work The Black Candle raised concerns about the proliferation of drugs in Canada at the time and exasperated the “war on drugs” rhetoric that persists even to this day.  All of the five women held views that most modern readers would not agree with today, but the views of Emily Murphy appeared to be the most apparent.  It became clear to me as I progressed through the book that Murphy not only wanted women to be allowed to sit on the Senate, but that it was imperative that SHE sit on the senate.  Although this case was a valiant pursuit of equality, it was also Emily Murphy’s personal quest to write her name further into history.  When the National Council of Women urged the appointment of Henrietta Muir Edwards as the first female senator, Sharpe & McMahon pointed out that Murphy opposed the resolution on the ground that “she wanted to be the first female senator, and the candidacy of Henrietta Muir Edwards posed a threat to her ambition.” (Page 89).  It is quite ironic that after many years of fighting for her cause, Emily Murphy does not become the first female senator.

After reading the Book, I was left with the feeling that these people were hypocrites.  They wanted to fight for women’s rights, yet only for white, middle-to upper-class Anglo-Saxon women, due to their nativist views.  These women had only one view of what society should be, in particular, one that was dominated by Christian morals.  Yet I cannot fathom how someone can feel morally superior or even have a moral conscious when they support eugenics.  I feel that equality for the Famous Five would only have been for a small group, and not the whole of society.  Whenever the negative aspects of the Famous Five are brought up--Murphy and McClung in particular--the same excuse is always made:  That their views were shaped by the time they lived in.  With issues like eugenics and blatant racism in history, I try to remain unbiased with my 21^st century mindset because I know that prevalent views like these shaped the times, yet after reading this book I cannot remain unbiased.  It just escaped me as to how people who believed so strongly in equality for women could so easily shun it for others.  Equality is equality across the board.  Selective equality is not equality at all.  You either have it in all respects, or you don’t have it at all.

Sources:

Famous Five Photo:

http://michailasara.files.wordpress.com/2009/10/famous5.jpg

Lord Sankey Photo:

http://imgc.allpostersimages.com/images/P-473-488-90/17/1749/9ZN3D00Z/posters/lord-john-1st-viscount-sankey-lord-chancellor-during-ramsay-macdonald-s-labour-government.jpg