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The Persons Case

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

Copyright Date: 2007
Pages: 272
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  • Book Info
    The Persons Case
    Book Description:

    The Persons Caseis 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.

    eISBN: 978-1-4426-8498-0
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword The Osgoode Society For Canadian Legal History
    (pp. vii-viii)
    R. Roy McMurtry and Jim Phillips

    ThePersonscase is one of the best-known Canadian constitutional cases, both for the fact that it declared women to be ʹpersonsʹ for the purposes of eligibility for appointment to the Senate, and for Lord Sankeyʹs invocation of the ʹliving treeʹ metaphor in interpreting the constitution. Robert Sharpe and Patricia McMahon add enormously to our understanding of the case by a detailed exploration of its context. They analyse the campaign waged in both political and legal circles for the recognition of women as senators, and examine the background and personalities of the major players in the litigation, in particular Lord...

  4. Preface
    (pp. ix-2)
  5. Introduction: ʹA Relic of Days More Barbarous Than Oursʹ
    (pp. 3-15)

    Canadian women became legal persons just days before the stock market crash that ushered in the Great Depression. On 18 October 1929, Lord Sankey, the reform-minded Lord Chancellor, recently appointed to Englandʹs highest judicial office by Labour Prime Minister Ramsay MacDonald, ruled that women were legally eligible for appointment to the Senate of Canada, proclaiming, ʹThe exclusion of women from all public offices is a relic of days more barbarous than ours.ʹ¹

    With Edmonton judge Emily Murphy at the helm, five prominent Western Canadian women had fought to secure the legal right for women to be appointed to the Senate....

  6. 1 First of the Five
    (pp. 16-36)

    But for the determined efforts of Emily Murphy, thePersonscase would not have occurred. Despite her lack of formal legal training, Murphy – an author, social activist, and judge – had a significant impact on the fabric of Canadian law beyond the case that permitted women to be appointed to the Senate. From the bench of the Womanʹs and Childrenʹs Court in Edmonton, where she sat as the presiding magistrate from 1916 until her retirement in 1931, Murphy challenged the traditional approach of Albertaʹs legal profession. Likewise, in her quest for a seat in the Senate and her bold...

  7. 2 The Other Four
    (pp. 37-58)

    Emily Murphy may have taken the leading role in litigating thePersonscase, but she knew that the battle could not be hers alone. She enlisted the aid of four other accomplished women: Henrietta Muir Edwards, Irene Parlby, Nellie McClung, and Louise McKinney, each of whom had played a distinctive role in the promotion of womenʹs legal rights and equality. The formidable Famous Five represented all the major concerns in the womenʹs reform movement of the day: the struggle for suffrage, the fight for prohibition, the effort to apply Christian values to public issues, and the promotion of improved legal...

  8. 3 Women and the Law: The Trials of Legal Personhood
    (pp. 59-73)

    Canadian women achieved a number of firsts during the Great War, and Emily Murphy was already able to count herself among these Canadian pioneers. She was very proud of ʹbeing the first womanʹ appointed as a magistrate ʹin the British Empire,ʹ¹ but she quickly learned that not everyone welcomed her presence on the bench. Some lawyers regarded Murphy as an interloper invading their exclusively male domain, and they did what they could to humiliate her and to undermine her authority. Shortly after her appointment, Murphy handed down a stiff sentence. After she left the courtroom, the prisonerʹs lawyer exclaimed: ʹTo...

  9. 4 Emily Murphyʹs Senate Campaign
    (pp. 74-103)

    The coalition Union government of Prime Minister Robert Borden led in the House of Commons, and the Conservatives held the majority in the Senate, when Emily Murphy began her quest to secure the appointment of a woman to Canadaʹs upper chamber.¹ It all began in 1919, when Murphy was elected the first president of the Federated Womenʹs Institutes of Canada at its inaugural meeting in Winnipeg in February of that year. The Federation brought together hundreds of local Womenʹs Institutes from across Canada that had been formed to advance the interests of rural women, to promote domestic science, and to...

  10. [Illustrations]
    (pp. None)
  11. 5 Going to Court
    (pp. 104-126)

    Emily Murphy decided in the summer of 1927 that she had exhausted all political channels and that it was time to turn to the courts. Murphy was far from confident that she could win a court challenge, but believed she had no other option. If, as she half expected, the tradition-bound judges could not be convinced to break with the past and refused to declare women to be ʹpersonsʹ in the eyes of the law, she could reactivate the political campaign by ridiculing the constitutionʹs deplorable failure to recognize the legal personhood of women.

    A significant procedural obstacle stood in...

  12. 6 The Supreme Court of Canada Decides
    (pp. 127-141)

    The era in which the Supreme Court of Canada decided that women were not persons has been called ʹThe Sterile Yearsʹ¹ because the Courtʹs strict adherence to a narrow formalist approach to legal reasoning and interpretation rested upon purely objective principles, derived exclusively from the text of statutes and precedents. This formalist tradition refused to consider that the law should be interpreted and developed with an eye towards the social, political, and economic context in which it operated. For this reason, Newton Rowell must have realized that he would have a difficult time persuading Chief Justice Anglin and his colleagues...

  13. 7 The Judicial Committee of the Privy Council and the Canadian Constitution
    (pp. 142-153)

    The Judicial Committee of the Privy Council – also known as the JCPC – was Canadaʹs court of last resort until 1949. This august imperial institution, one of the last vestiges of Canadaʹs colonial past, served as the final judicial arbiter for legal disputes throughout the Empire and played a pivotal role in Canadaʹs constitutional evolution for more than eighty years. Scholars still debate the merits of the Judicial Committeeʹs influence on Canadaʹs constitutional arrangements.¹ In the seemingly unending string of jurisdictional disputes between Canadaʹs Parliament and the provinces, the Judicial Committee favoured provincial autonomy at the expense of Ottawa....

  14. 8 Waiting to Be Heard
    (pp. 154-172)

    Whatever misgivings Canadian lawyers may have had about the role of the Judicial Committee of the Privy Council, those who were able to argue their cases in London relished the experience. They enjoyed the luxury, then relatively rare, of travelling to London and, although many Canadian lawyers resented the colonialism, they still revered British judges. To argue a case before the Privy Council was the pinnacle of an advocateʹs career. Newton Rowell had enjoyed the experience in 1924, when he had argued three cases before the JCPC,¹ and he welcomed the opportunity to appear before the British Empireʹs highest tribunal...

  15. 9 The Judicial Committee of the Privy Council Decides
    (pp. 173-188)

    The Judicial Committee of the Privy Council finally reached thePersonscase on 22 July 1929. Although the Supreme Court of Canada heard the case in a single day, the Judicial Committee allowed four days for oral argument.

    In his written argument, filed well before the hearing,¹ Newton Rowell pointed out that the word ʹpersonʹ appeared in no fewer than thirteen other sections of the constitution² and that, in several sections, ʹpersonʹ almost certainly included women. For instance, women had been given the vote and the right to sit in Parliament and in all provincial legislatures except in Quebec. The...

  16. 10 The Political, Cultural, and Legal Legacy of the Persons Case
    (pp. 189-206)

    Reminding the prime minister of Sir Walter Scottʹs dictum, ʹWho leaps the wide gulf should prevail in his suit,ʹ Emily Murphy wrote to Mackenzie King within a day of the Privy Councilʹs decision, urging him once more to appoint her to the Senate. She portrayed herself as the ideal non-partisan candidate; from a family of Conservatives, Murphy had become a Liberal and she now enjoyed the confidence of both the UFA and the labour movement. As she explained to the prime minister, he would have the chance to appoint other women to the Senate on partisan grounds, but ʹthe first...

  17. Notes
    (pp. 207-248)
  18. Archival Sources
    (pp. 249-250)
  19. Facsimile of the Amended Petition – November 1927
    (pp. 251-252)
  20. Illustration Credits
    (pp. 253-254)
  21. Index
    (pp. 255-270)
  22. Back Matter
    (pp. 271-273)