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

• Author: Sheppard, Colleen
• Position: 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. 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 Canada's 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 Parlby--five prominent Canadian women's rights advocates from Western Canada, referred to as the Famous Five--advocated for the advancement of the rights of women throughout World War I and during the 1920s. Their engagement with women's rights included the struggle for women's suffrage, married women's property rights, female factory workers' rights, temperance, and children's rights. These struggles culminated in the historic effort to seek affirmation of women's 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, face 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 women's legal capacities and personhood were debated, such as women's entitlements to judicial appointment, women's suffrage, and criminal liability. Turning to the specific history of the Persons Case, the book assesses Emily Murphy's efforts to secure access for women to the Senate by using political channels. Despite extensive political connections, Murphy's 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 Canada's 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 women's 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 and--or eugenics policies for persons with disabilities. (6) The Famous Five advanced maternal feminism, which celebrates women's familial contributions, yet their lives and commitments were directed toward...