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Book Review
| Robert J. Sharpe and Patricia I. McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood, Toronto: University of Toronto Press, 2007. Pp. 272. $50.00 cloth (ISBN 978-0-8020-9750-7); $27.95 paper (ISBN 978-0802096289).
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| The Persons Case concerns the 1929 decision of the Judicial Committee of the Privy Council (JCPC) that held that women could be qualified "persons" for the purposes of appointment to the Canadian Senate. Driving the case was an Albertan named Emily Murphy, the first woman magistrate in the British Empire, who wanted to be the first woman to sit in the Senate. The case was an appeal from the Supreme Court of Canada, which had advised the government, through a reference case, that women could not sit in the Senate. Murphy's lobbying campaign had, however, begun years earlier. Working closely from the archival record, Robert J. Sharpe and Patricia I. McMahon place the case in its political, constitutional, and personal context. |
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As the narrative unfolds, the authors introduce Murphy, the four other women petitioners, and the politicians, judges, and lawyers. The authors describe these people's positions on other controversial topics of the time, including prostitution, illicit drug use, matrimonial property law reform, and prohibition. They note women's greater presence in prairie politics than elsewhere, and they describe the postwar decline of "maternal feminism," whose advocates included the petitioners, and women's withdrawal from the workforce and public life in the 1920s. In 1929, eligibility for the Senate finally arrived. |
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The petitioners' legal case was dicey. A long line of cases limited British women's political opportunities, including a 1922 decision that excluded them from the House of Lords. Those who drafted the 1867 British North America Act did not contemplate women senators. They did not contemplate women voting in federal elections or sitting in the Canadian House of Commons either; but by 1929, some Canadian women were doing both. After the JCPC's decision, Prime Minister Mackenzie King appointed a woman to the Senate, but she was a wealthy, well-connected Ontario wife and mother, appointed to an Ontario seat. Murphy died in 1933, and Alberta did not get a woman senator until 1979. |
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The authors emphasize Lord Sankey's view, as expressed in his judgment, that the BNA Act framed a constitution that was "'a living tree capable of growth and expansion within its natural limits.'" The act, therefore, had to be given a "'large and liberal interpretation'" to meet the needs of Canadian society as it changed. After lying dormant for the next fifty years, this language was revived by Chief Justice Brian Dickson in the early Charter jurisprudence of the 1980s, when he rejected the Court's earlier constitutional formalism and originalism to hold that Charter rights should be given a large and liberal interpretation. Much as I admire Dickson's jurisprudence, I did find myself reflecting on how a judge may call on the past to serve the present. |
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In the authors' telling, the hope that Murphy and her lawyer may have felt, as they waited for the JCPC to hear the case, rested on the JCPC's established practice in federalism cases of ignoring the intentions of those who had drafted the BNA Act: perhaps they would also disregard precedent in interpreting the word "person." Faced with challenges to the legitimacy of their own institution, the judges might want to look worldly and progressive. And in fact, the JCPC broke with tradition and, over the objections of the Canadian government, gave a group of western Canadian women rabble-rousers political rights the analogs of which had recently been refused to British women. |
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I was left puzzling about gender and colonialism. When Murphy asked powerful men for help, essentially every one, except for her brother, promised to try but then, oh so regretfully, found his hands tied—but was it really only because of the law? Did the Senate for some reason have to remain a male preserve? What did these men think of the ambitious, dogged Murphy? How could an English judge describe excluding women from such public offices as a "'relic of days more barbarous than ours'" when women were still excluded from the House of Lords? Did he disapprove of that decision, or was Canada actually where the barbarians dwelt, a wild hinterland that might be able to use someone like Murphy? The justness of the outcomes are indisputable and I admire the authors' sympathy for their subjects, but these subjects' motivations are still opaque to me. |
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The Persons Case makes a valuable contribution to Canadian constitutional history in that it describes the people and times in considerable detail. It is perhaps to be expected that such an interesting story would invite questions, even as it answers so many. |
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| Lyndsay Campbell
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| University of Calgary |
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