Women's Equality: The Persons Case

From the Saturday, October 20, 2007, Toronto Star, Ideas section, page ID4, is this article on women's rights in Canada and the famous "persons" court case:

The Persons Case
THE MOTHERS OF CANADIAN EQUALITY

Seventy-eight years ago this week, a group of 'maternal feminists' rewrote the constitution

Tracey Tyler
Legal Affairs Reporter

With wheat ready for threshing and bumblebees on the delphiniums, it was "a perfect day in harvest time," said Nellie McClung, recalling the afternoon she and four other women gathered on Emily Murphy's veranda in Edmonton to sign a petition.

The issue, destined for the Supreme Court of Canada, was whether women were "persons" under the British North America Act - then, in effect, our constitution - and eligible for appointment to the Canadian Senate.

It was the Roaring Twenties and the women were decidedly out-of-sync with Flappers and the intoxicating jazz era. Few could understand why the five, particularly Murphy, who craved a Senate seat, were so determined to win the right to serve in an institution that, even then, was considered outdated and badly in need of reform.

But the women, in some ways unlikely trailblazers, knew they were on to something bigger. And by the time it was resolved 78 years go this week, the Persons Case, as it became known, had acquired huge symbolic importance, establishing the concept of universal personhood" - quite simply, equality for women and every disadvantaged group. It's also one of the most important constitutional cases in Canadian history because it carved out the principle that the Constitution is meant to be "a living tree," growing as the country changes.

More than 50 years later, that would become the foundation for the Supreme Court of Canada's decisions extending new rights under the Charter of Rights and Freedoms.

The case was celebrated yesterday with annual "Persons Day" breakfasts around the country. This year's event coincided with a new book about the case by Justice Rovert Sharpe of the Ontario Court of Appeal and Toronto lawyer Patricia McMahon. Entitled The Persons Case, The Origins and Legacy of the Fight for Legal Personhood, it recreates the courtroom drama and delves into the personalities of the ideological compatriots dubbed "The Famous Five."

It's recognition that eluded them at the time. Ten days after the decision, the stock market crashed, triggering the Great Depression, and their momentous victory was quickly forgotten.

While the case and the "living tree" approach to constitutional law would gain significance with the feminist movement of the 1970s and advent of the Charter in 1982, many of the details still aren't widely known.

Ardent prohibitionists, the five were also proponents of "maternal feminism," a progressive social movement that pressed for equality of the sexes but stressed the importance of family and believed that many of society's problems, including poverty, could be solved by applying a woman's perspective.

Three of them, McClung, Louise McKinney and Irene Parlby, were in their sixties. Murphy was in her fifties.

The fifth, Henrietta Muir Edwards, was pushing 80. All had deep roots in suffragist campaigns that secured voting rights for women. Battling for entry fo the Senate would be their last hurrah.

"I think it really just irritated them that someone was saying, under our constitution, that a woman can't play that role," Sharpe said in an interview. "It just seemed kind of ridiculous to them."

The case would not have forged ahead without Ontario-born Murphy, the colourful, complex and politicially ambitious Anglican minister's wife, who penned fiction under the name Janey Canuk. The first female magistrate in the British Empire, Murphy, it seems, favoured a hands-on style in everything she did, even corresponding and visiting with inmates she sent to prison.

"I think she would have been quite fun to sit down and talk to," said Sharpe. "Unfortunately, you couldn't have a drink with her. They were all teetotallers."

The constitution gave Murphy no right to complain about sex discrimination and the legal environment was hostile to reform, with a series of English cases denying women the right to hold public office or attend university.

The federal government maintained that women could not sit in the Senate without the almost insurmountable hurdle of a constitutional amendment.

Prime Minister William Lyon Mackenzie King agreed to refer the issue to the Supreme Court, which ultimately took the view the constitution was frozen in time; since women could not hold public office when the British North America Act was written in 1867, the Fathers of Confederation did not mean for women to become senators.

Sailing to England to appear before the Judicial Committee of the Privy Council, then Canad's final court of appeal, Newton Rowell, "a former Ontario Liberal leader and constitional lawyer who was representing the five, had to convince the law lords to abandon centuries of common law.

On Oct. 18, 1929, it was Lord Chancellor John Sankey, a lifelong bachelor (and, at the time, heartsick over his mother's death) who struck the blow for equality, declaring in his judgment: "The exclusion of women from all public office is a relic of days more barbarous than ours."

Looking back, the case shows how an unpredictable brew of personal and political considerations can shape a landmark court ruling, say McMahon and Sharpe. Individuals do make a difference, for there was nothing inevitable about the decision, the authors say in the book.

"But for the unlikely conincidence of Emily Murphy's unquenchable thirst for a Senate appointment, William Lyon Mackenzie King's fondness for referring difficult questions to the courts, and John Sankey's determination to make his mark as a reforming Lord Chancellor, the result could easily have been quite different."

Five months after the ruling, King appointed a female senator - but it wasn't Murphy. There were no Senate vacancies from Alberta. Instead, the honour went to Ontarian Cairine Wilson.

During her induction ceremony, a sword got caught in Wilson's gown. Still bitterly disappointed at being passed over, Murphy wasn't above a put down. "Isn't it time that both the sword and trailing gowns be put out of the Senate?" she wrote to McClung.

After Wilson, the government showed little commitment to giving equal voice in the upper chamber. In his remaining 18 years in office, King appointed 67 Senators, not one a woman.

Among his successors, Jean Chretien holds the best record, with 33 women among his 75 appointments. Today, women hold 32 of 105 Senate seats.