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The Persons Case: The Origins and Legacy of the Fight for Legal Personhood
On 18 October 1929, John Sankey, England's reform-minded Lord Chancellor, ruled in the Persons case that women were eligible for appointment to Canada's Senate. Initiated by Edmonton judge Emily Murphy and four other activist women, the Persons case challenged the exclusion of women from Canada's upper house and the idea that the meaning of the constitution could not change with time. The Persons Case considers the case in its political and social context and examines the lives of the key Emily Murphy, Nellie McClung, and the other members of the "famous five," the politicians who opposed the appointment of women, the lawyers who argued the case, and the judges who decided it. Robert J. Sharpe and Patricia I. McMahon examine the Persons case as a pivotal moment in the struggle for women's rights and as one of the most important constitutional decisions in Canadian history. Lord Sankey's decision overruled the Supreme Court of Canada's judgment that the courts could not depart from the original intent of the framers of Canada's constitution in 1867. Describing the constitution as a "living tree," the decision led to a reassessment of the nature of the constitution itself. After the Persons case, it could no longer be viewed as fixed and unalterable, but had to be treated as a document that, in the words of Sankey, was in "a continuous process of evolution." The Persons Case is a comprehensive study of this important event, examining the case itself, the ruling of the Privy Council, and the profound affect that it had on women's rights and the constitutional history of Canada.
272 pages, Paperback
First published September 1, 2007
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August 18, 2011
From www.golishlaw.com\comment\2007-10.htm
One of the most important cases in our constitutional history, Edwards v. A.G. of Canada [1930] A.C. 124, the Persons Case is the subject of The Persons Case: The Origins and Legacy of the Fight for Legal Personhood, University of Toronto Press, 2007, a new book by Robert J. Sharpe, of the Court of Appeal for Ontario, and lawyer, Patricia I. McMahon. It chronicles the times and the individuals who were the backdrop of this decision, the litigants, lawyers, civil servants, politicians and judges.
On October 18, 1929, woman had the right to vote everywhere in Canada--except Quebec. They were even represented in Parliament and provincial legislatures. On that day however, Lord John Sankey read his famous decision on behalf of the British Judicial Committee of the Privy Council (JCPC), pronouncing "qualified persons" under the British North America Act included women as eligible for appointment to the Senate. Before then, they were not qualified because the Supreme Court of Canada had already said no in the reference decision of Edwards v. Canada (Attorney General) [1928] S.C.R. 276.
This main character is Emily Murphy, originally from Ontario, but one of the Persons Case's five petitioners, all Westerners. Nellie McClung, Henrietta Muir Edwards, Louis McKinney and Irene Parlby were the others, but it is Emily Murphy whose story is the focus of the book, who campaigned relentlessly to be a senator.
Murphy made a name for herself as a writer, then as the Commonwealth's first magistrate. She was also a social activist. While all five women were part of the movement that saw woman gain the vote, their activism was not limited to that one issue, as they advocated for a whole host of social reforms, not the least of which was temperance legislation. A half century later, to distinguish them from modern feminists, these reformers were would be described as maternal feminists. They saw themselves not necessarily as equal to men, but just as entitled to participate in Canada's democracy as men did because of their sex. As the authors write, they thought "maternal virtue would improve Canadian society if only woman were permitted to assume their rightful positions of power and influence."
The book gives us a moving picture of the years leading up to the decision of the JCPC. Sharpe and McMahon also discuss the intellectual influences, both in law and politics and the sociology of the age. They tell us about the state of matrimonial law, property law and criminal law at the time and we read the five woman were not necessarily all in favour of equal rights as we understand that concept today. Emily Murphy herself appears to have had little respect for persons of any ancestry other than English and while some of her ideas were progressive in many respects, not all of them would be accepted today. For instance, Murphy and most of the famous five, including McClung, were proponents of sterilization for individuals called "feeble-minded" or mentally deficient.
Despite its natural meaning, the term 'qualified persons' for the purposes of Senate appointment, was generally understood not to include women: Given that at Confederation woman did not hold political office, the Framers could not have contemplated their inclusion as senators. Canada's Department of Justice research supported this interpretation and ironically, Henrietta Muir Edwards's husband's nephew, W. Stewart Edwards, an assistant deputy minister in the department was among those who stood by that view as correct. The nephew was not the only relative of the famous five to have a part in all this. Murphy, although not a lawyer herself, had brothers who were. One of them was William Ferguson, a judge of Ontario's appeal court, who provided her with a written opinion to support her cause, an opinion that she shared with the department of justice.
Although a Conservative, Murphy, no doubt to assist her cause, befriended the person who was prime minister for most of the period leading up to the decision, Liberal William Lyon Mackenzie King. She frequently wrote him on matters both political and personal. King appears to have been inclined to consider a female for appointment to the Senate, although privately he may have been uncomfortable about woman in politics. However, politics coming into play, he gave in to Murphy only by deferring the issue to another body. He then opted for exercising the government privilege of putting the question to the Supreme Court of Canada on a reference.
When the Supreme Court decided against the petitioners, an appeal was taken to the Privy Council. The government of Mackenzie King must have been content with the final decision of the JCPC in favour of including woman as eligible for senate appointments. Although the government had their lawyers arguing that persons did not include woman, they also agreed beforehand to pay the legal expenses, in full, of the counsel who argued they were. King would have otherwise had to go to the trouble of amending the constitution and perhaps face considerable animosity in doing so.
The authors give us lively and interesting portraits, mainly of Newton Wesley Rowell--he later became chief justice of Ontario--counsel for the famous five in both courts, and Lord Sankey.
Sharpe and McMahon also write about Chief Justice Francis Alexander Anglin and Justice Lyman Poore Duff. Duff, later chief justice, took a different view of the issue than Anglin and the three other judges of the court: Rather than categorically stating women were not eligible, he simply said the decision was that of the Senate, not the court. As for Anglin, long before Murphy's case, he was openly contemptuous of the role of the Privy Council and campaigned for the abolition of all Canadian appeals to that court.
The book then takes us to London, to the chambers and places there, in the weeks before the appeal was heard. Unlike the Supreme Court of Canada, the Privy Counsel would, as was the tradition, speak with once voice, no dissents or alternative opinions allowed. What Murphy and her fellow petitioners should have expected was the JCPC deciding the case against them, not in their favour. Not only did the Lord Justices have a history of conservatism, but they had enough precedent to back up their decision had they chosen to dismiss the appeal. However, Canadian history took a different course, perhaps because of the advocacy of Rowell, but more likely because John Sankey was uniquely suited to writing a modern decision. It is Sankey, new to the Privy Council, whose opinion must have prevailed over any dissent on the issue, who gets the major credit for writing the judgment. Here is the key passage about the 'living tree' in his opinion:
The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.
Their Lordships do not conceive it to be the duty of this Board -- it is certainly not their desire -- to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs.
Thus with these words, the JCPC, not only decided one simple question, but also forged a new approach to the interpretation of our constitution, an approach that required courts to consider the adaptation of its provisions to changing times.
In the years that followed, in decisions taken on appeal from the Supreme Court to the JCPC, Sankey went on to steer his court in a new direction: When considering cases involving Canada's division of powers, the court moved away from giving more power to the provinces. The residual power of "peace, order and good government" became more expansive than before. As for Emily Murphy, she never got an appointment to the Senate. Vacancies were filled on the basis of geography first, not gender. King called on Cairine Wilson from Ontario four months after the JCPC decision to be the first female senator. Emily Murphy died in 1933, her ambition unfulfilled. Appeals to the Privy Council were abolished by 1949.
The authors then write that the real impact of Edwards v. A.G. of Canada came later when the Supreme Court of Canada truly embraced the living tree doctrine first in Att. Gen. of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016, 1979 CanLII 21, to strike down Quebec legislation that restricted English in tribunals that did not exist in 1867 and continuing into such cases as the Reference re Secession of Quebec, [1998] 2 S.C.R. 217; 1998 CanLII 793, [1998] 2 S.C.R. 217, (1998), 161 D.L.R. (4th) 385, (1998), 55 C.R.R. (2d) 1. Of significance, starting in 1984, the Court invoked the doctrine to interpret the Charter as well, most notably in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 1984 CanLII 33, (1984), 11 D.L.R. (4th) 641, (1984), 14 C.C.C. (3d) 97, (1984), [1985] 27 B.L.R. 297, (1984), 2 C.P.R. (3d) 1. However, the reader should be cautious about concluding that this one case changed the course of our legal history. If there had been no Emily Murphy wanting to become a senator, the reference would have never happened, but just as woman would eventually find their place in our senate, judges would have found a way to a give a large and liberal interpretation to our constitution and the Charter.
Sharpe and McMahon make it clear that in US legal commentaries the concept that a constitution must be interpreted flexibly was around before Sankey wrote his decision. To this day, the debate continues on what the proper approach is to the US Constitution. It seems however, on that point, there is no debate about the concept of the living tree's place in Canada's constitutional law since Hunter. As was said most recently in Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79 (CanLII), (2004), 246 D.L.R. (4th) 193, (2004), 125 C.R.R. (2d) 122, (2004), 12 R.F.L. (6th) 153:
23 A large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document. By way of progressive interpretation our Constitution succeeds in its ambitious enterprise, that of structuring the exercise of power by the organs of the state in times vastly different from those in which it was crafted.
The Persons Case: The Origins and Legacy of the Fight for Legal Personhood is well-researched, rich in context, history and legal analysis.
One of the most important cases in our constitutional history, Edwards v. A.G. of Canada [1930] A.C. 124, the Persons Case is the subject of The Persons Case: The Origins and Legacy of the Fight for Legal Personhood, University of Toronto Press, 2007, a new book by Robert J. Sharpe, of the Court of Appeal for Ontario, and lawyer, Patricia I. McMahon. It chronicles the times and the individuals who were the backdrop of this decision, the litigants, lawyers, civil servants, politicians and judges.
On October 18, 1929, woman had the right to vote everywhere in Canada--except Quebec. They were even represented in Parliament and provincial legislatures. On that day however, Lord John Sankey read his famous decision on behalf of the British Judicial Committee of the Privy Council (JCPC), pronouncing "qualified persons" under the British North America Act included women as eligible for appointment to the Senate. Before then, they were not qualified because the Supreme Court of Canada had already said no in the reference decision of Edwards v. Canada (Attorney General) [1928] S.C.R. 276.
This main character is Emily Murphy, originally from Ontario, but one of the Persons Case's five petitioners, all Westerners. Nellie McClung, Henrietta Muir Edwards, Louis McKinney and Irene Parlby were the others, but it is Emily Murphy whose story is the focus of the book, who campaigned relentlessly to be a senator.
Murphy made a name for herself as a writer, then as the Commonwealth's first magistrate. She was also a social activist. While all five women were part of the movement that saw woman gain the vote, their activism was not limited to that one issue, as they advocated for a whole host of social reforms, not the least of which was temperance legislation. A half century later, to distinguish them from modern feminists, these reformers were would be described as maternal feminists. They saw themselves not necessarily as equal to men, but just as entitled to participate in Canada's democracy as men did because of their sex. As the authors write, they thought "maternal virtue would improve Canadian society if only woman were permitted to assume their rightful positions of power and influence."
The book gives us a moving picture of the years leading up to the decision of the JCPC. Sharpe and McMahon also discuss the intellectual influences, both in law and politics and the sociology of the age. They tell us about the state of matrimonial law, property law and criminal law at the time and we read the five woman were not necessarily all in favour of equal rights as we understand that concept today. Emily Murphy herself appears to have had little respect for persons of any ancestry other than English and while some of her ideas were progressive in many respects, not all of them would be accepted today. For instance, Murphy and most of the famous five, including McClung, were proponents of sterilization for individuals called "feeble-minded" or mentally deficient.
Despite its natural meaning, the term 'qualified persons' for the purposes of Senate appointment, was generally understood not to include women: Given that at Confederation woman did not hold political office, the Framers could not have contemplated their inclusion as senators. Canada's Department of Justice research supported this interpretation and ironically, Henrietta Muir Edwards's husband's nephew, W. Stewart Edwards, an assistant deputy minister in the department was among those who stood by that view as correct. The nephew was not the only relative of the famous five to have a part in all this. Murphy, although not a lawyer herself, had brothers who were. One of them was William Ferguson, a judge of Ontario's appeal court, who provided her with a written opinion to support her cause, an opinion that she shared with the department of justice.
Although a Conservative, Murphy, no doubt to assist her cause, befriended the person who was prime minister for most of the period leading up to the decision, Liberal William Lyon Mackenzie King. She frequently wrote him on matters both political and personal. King appears to have been inclined to consider a female for appointment to the Senate, although privately he may have been uncomfortable about woman in politics. However, politics coming into play, he gave in to Murphy only by deferring the issue to another body. He then opted for exercising the government privilege of putting the question to the Supreme Court of Canada on a reference.
When the Supreme Court decided against the petitioners, an appeal was taken to the Privy Council. The government of Mackenzie King must have been content with the final decision of the JCPC in favour of including woman as eligible for senate appointments. Although the government had their lawyers arguing that persons did not include woman, they also agreed beforehand to pay the legal expenses, in full, of the counsel who argued they were. King would have otherwise had to go to the trouble of amending the constitution and perhaps face considerable animosity in doing so.
The authors give us lively and interesting portraits, mainly of Newton Wesley Rowell--he later became chief justice of Ontario--counsel for the famous five in both courts, and Lord Sankey.
Sharpe and McMahon also write about Chief Justice Francis Alexander Anglin and Justice Lyman Poore Duff. Duff, later chief justice, took a different view of the issue than Anglin and the three other judges of the court: Rather than categorically stating women were not eligible, he simply said the decision was that of the Senate, not the court. As for Anglin, long before Murphy's case, he was openly contemptuous of the role of the Privy Council and campaigned for the abolition of all Canadian appeals to that court.
The book then takes us to London, to the chambers and places there, in the weeks before the appeal was heard. Unlike the Supreme Court of Canada, the Privy Counsel would, as was the tradition, speak with once voice, no dissents or alternative opinions allowed. What Murphy and her fellow petitioners should have expected was the JCPC deciding the case against them, not in their favour. Not only did the Lord Justices have a history of conservatism, but they had enough precedent to back up their decision had they chosen to dismiss the appeal. However, Canadian history took a different course, perhaps because of the advocacy of Rowell, but more likely because John Sankey was uniquely suited to writing a modern decision. It is Sankey, new to the Privy Council, whose opinion must have prevailed over any dissent on the issue, who gets the major credit for writing the judgment. Here is the key passage about the 'living tree' in his opinion:
The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.
Their Lordships do not conceive it to be the duty of this Board -- it is certainly not their desire -- to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs.
Thus with these words, the JCPC, not only decided one simple question, but also forged a new approach to the interpretation of our constitution, an approach that required courts to consider the adaptation of its provisions to changing times.
In the years that followed, in decisions taken on appeal from the Supreme Court to the JCPC, Sankey went on to steer his court in a new direction: When considering cases involving Canada's division of powers, the court moved away from giving more power to the provinces. The residual power of "peace, order and good government" became more expansive than before. As for Emily Murphy, she never got an appointment to the Senate. Vacancies were filled on the basis of geography first, not gender. King called on Cairine Wilson from Ontario four months after the JCPC decision to be the first female senator. Emily Murphy died in 1933, her ambition unfulfilled. Appeals to the Privy Council were abolished by 1949.
The authors then write that the real impact of Edwards v. A.G. of Canada came later when the Supreme Court of Canada truly embraced the living tree doctrine first in Att. Gen. of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016, 1979 CanLII 21, to strike down Quebec legislation that restricted English in tribunals that did not exist in 1867 and continuing into such cases as the Reference re Secession of Quebec, [1998] 2 S.C.R. 217; 1998 CanLII 793, [1998] 2 S.C.R. 217, (1998), 161 D.L.R. (4th) 385, (1998), 55 C.R.R. (2d) 1. Of significance, starting in 1984, the Court invoked the doctrine to interpret the Charter as well, most notably in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 1984 CanLII 33, (1984), 11 D.L.R. (4th) 641, (1984), 14 C.C.C. (3d) 97, (1984), [1985] 27 B.L.R. 297, (1984), 2 C.P.R. (3d) 1. However, the reader should be cautious about concluding that this one case changed the course of our legal history. If there had been no Emily Murphy wanting to become a senator, the reference would have never happened, but just as woman would eventually find their place in our senate, judges would have found a way to a give a large and liberal interpretation to our constitution and the Charter.
Sharpe and McMahon make it clear that in US legal commentaries the concept that a constitution must be interpreted flexibly was around before Sankey wrote his decision. To this day, the debate continues on what the proper approach is to the US Constitution. It seems however, on that point, there is no debate about the concept of the living tree's place in Canada's constitutional law since Hunter. As was said most recently in Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79 (CanLII), (2004), 246 D.L.R. (4th) 193, (2004), 125 C.R.R. (2d) 122, (2004), 12 R.F.L. (6th) 153:
23 A large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document. By way of progressive interpretation our Constitution succeeds in its ambitious enterprise, that of structuring the exercise of power by the organs of the state in times vastly different from those in which it was crafted.
The Persons Case: The Origins and Legacy of the Fight for Legal Personhood is well-researched, rich in context, history and legal analysis.
May 17, 2016
Dry, but it does what it was supposed to do. I like that it doesn't gloss over the racism etc of the Famous Five.
On another note, I remember being in 1L and all my ghastly peers peppering their speech with references to stuff we'd learned about in class, including this case. They'd have these godawful ~debates amongst themselves where they'd invoke the living tree doctrine etc. I'm amazed my face isn't stuck in a permanent scrunch of disgust tbh.
On another note, I remember being in 1L and all my ghastly peers peppering their speech with references to stuff we'd learned about in class, including this case. They'd have these godawful ~debates amongst themselves where they'd invoke the living tree doctrine etc. I'm amazed my face isn't stuck in a permanent scrunch of disgust tbh.
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