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

Christopher English is a history lecturer at the Memorial University of
Newfoundland and a recent law-school graduate.

In the years since the constitutionalization of the Canadian Charter of Rights and Freedoms (1982), it has become unquestioned law in this country that all governmental statutes, regulations, and procedures must be interpreted in a broad and purposeful manner to respect individual and collective rights. This approach originated in the decision by Lord Sankey, Lord Chancellor of England, writing for a five-judge panel of the Judicial Committee of the Privy Council in 1929 in the Canadian case of Edwards vs. Attorney-General of Canada. The constitution was a “living tree” to be interpreted and applied in light of the social goals it was meant to achieve.

Edwards raised the issue of whether women in a post-war Canada, which was very different from that of the fathers of confederation in 1867, might be appointed to the Canadian Senate. In retrospect the Supreme Court of Canada to which the government of Mackenzie King referred the question in 1928 has come in for much criticism, abuse, and ridicule for its denial of personhood to women. How could they not be legal persons when they had attained property rights separate from their husbands, suffrage (except in Quebec), and the right to sit in the House of Commons? But these social, policy-laden questions were not part of the remit of judicial decision making at the time. Courts held that such issues belonged to parliament, which had the democratic mandate to decide them. Judges were simply to interpret issues argued before them, from the perspective and mindset of the founding fathers s of 1867. Judges were to be passive and objective arbitrators, applying the black letter of the law.

Lord Sankey’s decision in Edwards was revolutionary. Under a different U.K. government or a different Lord Chancellor the case would probably have gone the other way. The authors lay out the political and social context, the legal issues, and the course of the case deftly and persuasively.

Beyond the courts and the law, the case was highly political. The Persons Case reconstitutes in context the personalities, views, and activities of the five talented middle-class women, all from Alberta, who petitioned cabinet ministers, the prime minister, and the courts for relief; it also includes the role of Prime Minister King, vaguely sympathetic but cautious to the end. All the women had their misplaced hopes and blind spots: suffrage would bring reform and a better world; eugenics would improve the gene pool; prohibition would curb family abuse; eligibility for the Senate would bring female appointments. Yet Edmonton magistrate Emily Murphy, in many respects the leader of the five, lobbied tirelessly but unsuccessfully for a Senate seat. Of the eight prime ministers who followed King, only Jean Chrétien has a credible record of female appointments to the Red Chamber. Parity is far from achieved.

Widely researched and engagingly argued, this is a welcome and important study.