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. xi, 269.
In their book, The Persons Case: The Origins and Legacy of the Fight for Legal
Personhood,1 Robert J. Sharpe and Patricia I. McMahon provide a rich and detailed
account of the individuals, social forces and ideologies behind one of Canadas most
important constitutional decisions, Edwards v. Canada.2 Their book tells us the
remarkable story of how Emily Murphy, the leading protagonist, along with Nellie
McClung, Henrietta Edwards, Louise McKinney and Irene Parlbyfive prominent
Canadian womens rights advocates from Western Canada, referred to as the Famous
Fiveadvocated for the advancement of the rights of women throughout World War I
and during the 1920s. Their engagement with womens rights included the struggle
for womens suffrage, married womens property rights, female factory workers
rights, temperance, and childrens rights. These struggles culminated in the historic
effort to seek affirmation of womens entitlement to hold public office, specifically as
members of the Senate of Canada. Against significant odds, they succeeded in
convincing the Judicial Committee of the Privy Council, the highest appellate court
on constitutional questions at the time, to declare that women were qualified
persons for the purposes of appointment to the Senate. Affirming a purposive living
tree approach to constitutional interpretation, Lord Sankey concluded that women
are eligible for Senate appointments, despite the fact that the drafters of the British
North America Act, 1867, now the Constitution Act, 1867,3 did not believe that
women should be eligible for public office.4
To unravel the legacy of the Persons Case, the book begins by examining the life
of Emily Murphy, who played the primary role in advancing the struggle for the
inclusion of women in the Senate both politically and in the courts. The first chapter
of the book reviews her life, appointment as a magistrate in Alberta, and controversial
views on immigration, race and eugenics. The second chapter discusses the
background and contributions of the other four members of the Famous Five. The
book then examines a range of legal contexts in which womens legal capacities and
personhood were debated, such as womens entitlements to judicial appointment,
womens suffrage, and criminal liability. Turning to the specific history of the
Persons Case, the book assesses Emily Murphys efforts to secure access for women
to the Senate by using political channels. Despite extensive political connections,
Murphys attempts to reform access to the Senate through political means ultimately
failed, prompting her to turn to the courts. Over the next five chapters in the book, the
authors outline the legal arguments advanced by the Famous Five, the counter-
arguments put forward by the Canadian government, the Supreme Court of Canadas
1 (Toronto: University of Toronto Press, 2007).
2 [1930] A.C. 124, [1930] 1 D.L.R. 98 (P.C.) [Persons Case cited to D.L.R.].
3 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5 [Constitution].
4 Ibid. at paras. 44, 66, 71-78.
[Vol. 53
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
368
decision against the women, and the processes and outcome of the appeal to the
Judicial Committee of the Privy Council. The book concludes by reviewing the
legacy of the case, most notably the affirmation of womens legal personhood and the
living tree approach to constitutional interpretation, reminding us that equality is
an evolving concept and that the Famous Five created a legacy that transcends their
own shortcomings.5
As in most legal cases, the stories, ideas and people behind the decision reveal a
host of contradictions and complexities that are often forgotten with the passage of
time or perhaps never explored within the traditional confines of the study of legal
doctrine and precedent. The authors reveal a clear sensitivity to this feature of legal
history. And the contradictions of the Persons Case are manifold. The decision
remains a powerful symbol of equality rights and inclusion of women in Canada, yet
three of the five women behind the case endorsed anti-immigrant, racist public
policies andor eugenics policies for persons with disabilities.6 The Famous Five
advanced maternal feminism, which celebrates womens familial contributions, yet
their lives and commitments were directed toward securing a place for women in the
public sphere. The decision opened up the doors of the Senate to women, but did not
challenge the undemocratic appointment process for accessing the Senate, or the
requirements for property ownership as a criterion for inclusion.7 It affirmed the legal
personhood of women, but endorsed the notion that a judicial decision from the
Judicial Committee of the Privy Council was somehow needed to confirm womens
personhooda powerful endorsement of the hegemony of law and judicial power.8
And though it attested to the significance of the rule of law, it also revealed how
deeply law and politics are intertwined. Finally, though its substance concerned
access of propertied women to the Senate, it is most often cited for its affirmation of a
living tree approach to constitutional interpretation.
As Sharpe and McMahon carefully document, the contributions of the Famous
Five were deeply tied to the womens movement in Western Canada prior to and
during World War I and continuing through the 1920s (when the Persons Case
unfolded). Emily Murphy, perhaps the most controversial of the Famous Five and the
driving force behind the Persons Case, was an active participant in the Western
Canadian womens movement. In 1916, she was appointed as a magistrate to preside
over cases involving women and children in Alberta, despite her lack of legal
training. Her vision of the role of the judge embodied a traditional social-work
5 Supra note 1 at 206.
6 Emily Murphys views on race and eugenics have been widely condemned (ibid., chapter 1).
Concern has also been raised about Nellie McClungs initial support of the Conservative proposal to
accord the suffrage only to British or Canadian-born women and to exclude foreign-born women
(ibid. at 44-45). In addition, Murphy, McClung, and Irene Parlby have been criticized for supporting
eugenics and forced sterilization of persons with mental disabilities (ibid at 34-36, 46-47, 55).
7 To this day property ownership is a necessary qualification for Senate membership. See
Constitution, supra note 3, s. 23(3).
8 See Carol Smart, Feminism and the Power of Law (London: Routledge, 1989).
369
BOOK NOTE / RECENSION SIMPLE
2008]
orientationa therapeutic vision that sought to reform women and children to
conform to her moralistic, white, protestant, middle-class, familial, and maternal
beliefs about the world. She was not only a vocal proponent of temperance, but wrote
an extensive book on the perils of the drug trade. Her book, The Black Candle,
contained deeply offensive racial stereotypes and expressed anti-immigrant
sentiments.9 Racism in the struggle for suffrage also emerged as an issue, with some
participants in the womens movement endorsing a suffrage plan for women that
excluded foreignborn women.10 Murphy, along with Nellie McClung and Irene
Parlby, also supported eugenics, including legislation in Alberta to require the
sterilization of mentally defective children.11 Although they do not explore this
debate in great detail, Sharpe and McMahon note how adherence to these
discriminatory beliefs has prompted significant outcry about celebrating the
accomplishments of the Famous Five in the domain of womens rights.
In addition to the introductory profiles of the women behind the case, the book
reviews other legal cases where womens legal capacities were challenged. One very
significant Canadian decision that the authors review is the relatively unknown
Alberta case R. v. Cyr.12 Lizzie Cyr was charged with violating vagrancy laws.13 In
appealing her conviction by magistrate Alice Jamieson, it was argued that the
vagrancy laws (which were framed using male pronouns and in connection to
employment) applied to men only. Additionally, Cyrs lawyer maintained that she
should not be convicted by a female magistrate, since women were incompetent and
incapable of holding such a position. Justice Scott of the Alberta Supreme Court
focused on womens potential liability under the vagrancy provisions and concluded
on the basis of the Interpretation Act that words imputing ma[sc]uline gender
include females, meaning the ordinary meaning of vagrant was applicable to both
sexes.14 Justice Scott refrained from responding to the issue of whether a woman
could be a magistrate, noting nonetheless that he entertained serious doubt whether a
woman is qualified to be appointed to that office.15 On appeal, Justice Stuart directly
addressed the general question of the capacity of a woman to hold a public office
and proceeded to conduct an extensive review of legal precedents from the United
9 (Toronto: Thomas Allen, 1922), online: Free World News
Western Canada).
10 For a general discussion of racism in the womens movement, see e.g. Mariana Valverde, When
the Mother of the Race is Free: Race, Reproduction, and Sexuality in First Wave Feminism in
Franca Iacovetta & Mariana Valverde, eds., Gender Conflicts: New Essays in Womens History
(Toronto: University of Toronto Press, 1992).
11 Sharpe & McMahon, supra note 1 at 55, citing Sexual Sterilization Act, S.A. 1928, c. 37
(establishing the Alberta Eugenics Board to examine and subsequently authorize sterilization of
mentally defective persons).
12 [1917] 2 W.W.R. 1185 (Alta. S.C.).
13 See Criminal Code, R.S.C. 1906, c. 146, s. 238(a).
14 Supra note 12 at 1186.
15 Ibid. at para. 9.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
370
States and England.16 Justice Stuart concluded that the English cases are neither clear
nor unequivocal.17 Moreover, in recognition of the specificity of legal interpretation
in different political and social contexts, he wrote:
[Vol. 53
In my opinion in a matter of this kind the Courts of this province are not in
every case to be held strictly bound by the decisions of the English Courts as to
the state of the common law of England in 1870. We are at liberty to take
cognizance of the different conditions here, not merely physical conditions, but
the general conditions of our public affairs and the general attitude of the
community in regard to the particular matter in question.18
He then proceeded to affirm womens legal capacity to be appointed as magistrates.
As Sharpe and McMahon note, the Cyr case was however exceptional and stood in
direct contrast to the large number of decisions denying women the right to
participate in the political and professional domains of public life in Canada, the
United States, and England.19 Womens legal capacity was often affirmed in terms of
their liability for wrongful conduct, but denied with respect to legal privileges and
their eligibility to hold public office and engage in certain professions. It is significant
that neither the Supreme Court of Canada nor the Judicial Committee of the Privy
Council referred to Justice Stuarts decision in Cyra decision clearly ahead of its
time that resonates with the celebrated judgment of Lord Sankey in the Persons Case.
Another aspect of the story behind the case that the book examines in significant
detail is the politics of constitutional reform, interpretation, and litigation. It was
following the death of a senator from Alberta in 1919 that Emily Murphy began
actively seeking a senate appointment. Numerous womens rights activists began
lobbying to have Murphy appointed as the first woman senator, and these lobbying
efforts continued over the next eight years, before the court action was finally
initiated. Drawing extensively on archival research, Sharpe and McMahon provide an
extensive review of the divergent legal opinions about whether the Constitution
allowed for the appointment of women as senators. The Constitution simply stated
that qualified persons were to be appointed.20 The qualifications were nonetheless
framed using the male pronoun: He shall be the full age of Thirty years or His real
and Personal Property shall be together worth Four Thousand Dollars over and above
his Debts and Liabilities. The language of the constitutional provisions therefore
could have simply been interpreted to allow women to be appointed provided they
met the specific qualifications, such as age and property ownership. Such was not to
be the case. Instead, lawyers advising successive federal governments took the
position that the Constitution prohibited the appointment of women. Their legal
arguments were based largely on the conclusions regarding womens incapacities in
16 R. v. Cyr, [1917] 3 W.W.R. 849 (Alta. S.C. (A.D.)) at 850 [Cyr].
17 Ibid. at 858.
18 Ibid. at 857.
19 See e.g. Chorlton v. Lings (1868), 4 L.R. C.P. 374; Viscountess Rhonddas Claim, [1922] 2 A.C.
339; Langstaff v. Bar of Quebec (1915), 47 R.J.Q. 131 (Sup. Ct.), affd (1916), 25 R.J.Q. 11. (Q.B.).
20 Supra note 2, s. 91.
371
BOOK NOTE / RECENSION SIMPLE
2008]
the British common law, which meant that unless the Constitution itself was
amended, women were not eligible for appointment.21 Given the complexities of
amending the Constitution and the controversies even in the 1920s about the Senate
itself,22 obtaining a constitutional amendment remained mired in political stalemate.
With the continued advice of her brother, Justice William Ferguson of the
Supreme Court of Ontario, Murphy, along with the four other women of the Famous
Five, petitioned the federal government to initiate a reference to the Supreme Court of
Canada on the question of womens eligibility for Senate appointment. Sharpe and
McMahon clarify that it was the federal Cabinet that referred the question to the
Supreme Court of Canada, perhaps persuaded that it would be best to divert this
question out of the political arena and into the courts.23 The reference question stated
the matter directly: Does the word persons in section 24 of the British North
America Act, 1867, include female persons?24 Of significance was the governments
agreement to pay for counsel for the five petitioners so that this view could be
effectively represented. Indeed, the federal government also funded the appeal to the
Judicial Committee of the Privy Council.25 Based on the legal opinions of Department
of Justice lawyers, the government intended to argue that women should not be
considered qualified persons for the purposes of appointment to the Senate. They
were supported in this position by the government of Quebec. Notably, Alberta
intervened in support of the women petitioners.26
After clarifying how the Reference Procedure was invoked to bring the issue into
the judicial arena, Sharpe and McMahon examine the legal arguments advanced
regarding the interpretation of qualified persons before the Supreme Court of
Canada and the Judicial Committee of the Privy Council. Here, the reader begins to
recognize familiar territory as the content of the arguments and the judgments is
reviewed. Yet, the reader is also left feeling a much deeper appreciation for the legal
texts, armed with the broader knowledge of the people and politics behind the case
that Sharpe and McMahon have so skillfully provided. On behalf of the Famous Five,
21 Sharpe & McMahon, supra note 1.
22 The Grain Growers Guide, described by Sharpe & McMahon as a pro-farmer, progressive
Winnipeg publication (supra note 1 at 80), considered the Senate to be an anachronism, and
disapproved of the very project of women pursuing Senate membership directly [after] they become
enfranchised, playing the game just as men played it (1921, cited in Sharpe & McMahon, supra note
1 at 80).
23 It is often suggested that Murphy found an obscure provision in the Supreme Court Act that
allowed five interested citizens to petition the court. See e.g. Joel Bakan et al., Canadian
Constitutional Law, 3d ed. (Toronto: Emond Montgomery, 2003) at 36. But see Sharpe & McMahon,
supra note 1 at 106 (clarifying that the Governor General in Council referred the question directly to
the Court).
24 Sharpe & McMahon, ibid. at 115.
25 The government paid Newton Rowell $10,000 to plead against the Department of Justice in front
of the Judicial Committee of the Privy Council in England. It is notable that this is the current
equivalent of more than $124,000 (ibid. at 186).
26 Ibid. at chapter 6.
[Vol. 53
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
372
lawyer Newton Rowell focused on how a literal interpretation of qualified persons
includes women. Sharpe and McMahon highlight how his oral argument also raised
considerations of public policy in support of inclusion of women as senators. On
behalf of the government, Department of Justice lawyers argued that common law
disabilities existing at the time the constitution was drafted affirm that women were
never intended to be included as qualified persons for the purposes of eligibility for
the Senate. As countless students of Canadian constitutional law have learned, the
Supreme Court of Canada accepted the frozen-rights and drafters-intent arguments of
the government and concluded that women were not qualified persons for the
purposes of appointment to the Senate.27 Rejecting this approach, the Judicial
Committee of the Privy Council, in a decision written by the recently appointed Lord
Sankey, concluded unanimously that constitutions should be interpreted in light of
changing circumstances over timeas living trees, rooted in the traditions and values
of a nation, but capable of growth and renewal. Recognition of womens legal
capacities as qualified persons was consistent with a living-tree approach to
constitutional adjudication cognizant of the changing role of women since 1867.28 It
was with this judicial pronouncement of 1929 that women were proclaimed to be
persons in Canadian constitutional law.
Sharpe and McMahon do not end their book with Lord Sankeys pronouncement,
but go on to examine the aftermath of the decision. Emily Murphy, despite all of her
efforts, was never appointed to the Senate.29 Although the federal government did
appoint Carine Wilson as the first woman to the Senate in 1930, Sharpe and
McMahon explain that even after the decision of the Judicial Committee of the Privy
Council, women were not appointed in equal numbers.30 They further conclude:
The recognition of women as legal persons was a momentous legal
achievement, but full personhood required more than an edict from the Judicial
Committee of the Privy Council in London at a time when that institutions
authority was being questioned and in an era not yet ready to embrace women
as true equals.31
This important insight reminds us of the way in which law and judicial decisions
constitute just one small part of the social, economic, and political fabric of equality
and inequality. A decision of the Judicial Committee of the Privy Council was clearly
not enough to secure substantive equality for women in Canada. Nor should a court
decision in England be necessary to affirm womens inclusion in humanity.32 Still, the
27 Reference Re Meaning of Word Persons in s. 24 of the B.N.A. Act, [1928] S.C.R. 276, [1928] 4
D.L.R. 98.
28 Persons Case, supra note 2 at paras. 7, 44-45.
29 Sharpe & McMahon, supra note 1 at 190.
30 Ibid. at 200-01.
31 Ibid. at 205.
32 See Martha Minow, Forming Underneath Everything That Grows: Toward a History of Family
Law [1985] Wis. L. Rev. 819 (highlighting how formal law is not the only source of knowledge
about legal and social relations).
BOOK NOTE / RECENSION SIMPLE
2008]
Persons Case remains a powerful historic and symbolic marker of the struggle for
womens equality in Canada. Through their comprehensive archival research and
careful analysis of the women, men, politics, law, and legacy of the Persons Case,
Sharpe and McMahon have contributed significantly to our understanding and
knowledge of this important chapter in Canadian legal history.
373
Colleen Sheppard
