by Robert J. Sharpe and Patricia I. McMahon. Toronto: The University of Toronto Press, 2007. 272 pp. Cloth. $50.00/£32.00. ISBN: 9780802097507.Reviewed by Lynne Chandler-Garcia, Department of Political Science, University of Maryland, College Park. Email: lgarcia [at] gvpt.umd.edu.
pp.113-115
THE PERSONS CASE, written by Robert Sharpe and Patricia McMahan, is an interesting and light-hearted account of the journey five women from Alberta took in order to attain the legal right to sit in Canada’s Senate. While the book is not substantive as a legal text, it does include many anecdotal stories about the lives of the plaintiffs, lawyers, and justices that add charm to the characters in the story. It is an easy-to-read story recounting many of the details of the lives of the “Famous Five” women, their struggle to make their voice heard in Canadian politics, and the men who helped or hindered them. The book goes to great lengths to tell the story of the women involved and their personal struggle. However, the account does not delve into the details of the legal arguments at stake such as the formalist tradition which mandated strict interpretation of Canada’s founding documents. Although mentioned, the book does not explain why Canada’s justices and scholars felt that legal formalism must prevail over civil rights. Finally, little mention is given to the social undercurrent of gender biases that pervaded political thought at the turn of the Twentieth Century and certainly affected the public officials involved in the case.
The crux of THE PERSONS CASE was Section 24 of the British North America Act (BNA Act) which allowed the Governor General to appoint “qualified Persons” to the Senate. The question at issue was whether “Persons” included women. When the BNA Act was ratified in 1867, women did not possess the right to vote or hold office. Thus, a strict originalist interpretation of the BNA Act dictated that the original intent of the document was to exclude women from the meaning of “Persons” as it applied to the Senate, and thus women could not be appointed. In 1927, five women from Alberta petitioned the government to ask the Supreme Court of Canada to examine the meaning of the BNA Act to determine if women could be included in its interpretation. The Supreme Court, relying on legal formalism, denied women access to the Senate. The women then appealed their case to the Judicial Committee of the Privy Council of Great Britain. The Privy Council took an expansionist view of the BNA Act arguing that the law was a “living tree” able to adjust to the needs of the present time. Lord Chancellor Sankey ruled that women were indeed included in the meaning of “persons” and could be appointed to the Senate.
The first half of the book details the lives of the “Famous Five” women from Alberta who initiated the case. Motivated by women’s issues, temperance, and suffrage, these five [*114] women devoted their public lives to furthering women’s rights while maintaining their domestic roles as wives and mothers. The story focuses on Emily Murphy who pioneered the PERSONS CASE through her strong will and determination. Murphy attained considerable legal status as a woman at the turn of the Twentieth Century by becoming the British Empire’s first police magistrate. Always wanting more for herself and women in general, Murphy set her sights on an appointment to Canada’s upper chamber, the Senate. Although women were allowed to vote in most provinces (Quebec excluded) and the national elections, and could serve in the House of Commons, until 1929, the interpretation of “qualified Persons” in the BNA Act precluded women from serving in the Senate. The Senate presided over most divorce matters, and therefore, it made sense that women should be represented in those proceedings. Further, as a matter of principle, it was improper to exclude women from this important political body. However, as Sharpe and McMahon hint, Murphy seemed to desire a seat in the Senate as much from personal ambition as principle. In an age of Populism, the Senate was increasingly seen as an antiquated institution not worthy of reform. If Murphy truly wished to foster change, she would probably do better to seek a seat in the House of Commons. The reader is left to wonder what drove Murphy to seek nomination to the Senate so relentlessly. Was Murphy primarily motivated by personal ambition, the suffrage movement, or both?
Upon referral to the Supreme Court of Canada, lawyers for the government argued that the BNA Act should be interpreted with the original intent of the Imperial Parliament who created the document in 1867. This argument was well received by Chief Justice Frank Anglin who was an adherent of legal formalism and believed in strict adherence to the original intent of the framers. Justice Anglin was unreceptive to legal interpretation, and thus his opinion found that, because the framers in 1867 did not intend to confer Senate appointments to women, “qualified persons” could not be interpreted to include women.
Unhappy with this decision, the plaintiffs appealed to the Privy Council. Lord Chancellor John Sankey who oversaw the Privy Council and wrote the opinion for the case, did not adhere to a strict policy of originalism. Instead, he believed that courts should interpret laws in their modern social setting rather than the historical context in which they were written. He called the BNA Act a “living tree” that was capable of growth and expansion to meet Canada’s modern needs. With this famous phrase, Lord Sankey established a new doctrine of constitutional jurisprudence that was not acted upon until the 1970s. From the view of legal jurisprudence, this paradigm shift is the most interesting part of THE PERSONS CASE. Yet, it receives relatively short shrift in this account. This book would benefit from a more thorough and rigorous study of this paradigm shift.
Noticeably absent from this account is a discussion of the underlying political undercurrents of gender bias that provide the context in which this case was heard. Canada had granted women the right to vote just ten years before the case reached the Supreme Court, and Quebec [*115] still denied women’s suffrage. The suffrage movement was still in full swing, causing citizens to reexamine their biases against women in politics. Surely this political debate influenced the members of government and the justices who addressed the case issues. For instance, Sharpe and McMahon note that Supreme Court Justice Duff generally viewed the constitution in “bold terms” and once referred to the constitution as a “living organism.” Yet, when writing his concurring opinion, Justice Duff reverted to the original intent of the framers in 1867 to deny women legal status as “persons.” Was Justice Duff truly motivated by a need to seek original intent or were there underlying biases that motivated his decision that the authors neglected to explore? Was original intent merely a screen behind which justices and public officials could hide their gender biases? The authors mention some of the newspaper reports that printed stories with a sexist bias but make no mention of the potential biases of the policymakers involved in the case. Without placing this case within the political and social context of the gender-based biases that existed at this time, Sharpe and McMahon do not truly tell the entire story of THE PERSONS CASE.
Overall, this book is an interesting and lively account of the “Famous Five” women who fought to gain personhood for women. However, as a history of THE PERSONS CASE, the authors do not discuss the political context of the case, nor do they adequately discuss the ramifications of this important decision for constitutional theory. As a historical narrative, it tells a significant story in Canada’s struggle to provide equal rights to all persons.
© Copyright 2008 by the author, Lynne Chandler-Garcia.
