The Persons Case then and now

“The word ‘person’…may include members of both sexes, and to those who ask why the word should include females, the obvious answer is why should it not.” ~ Lord Sankey

With those words 90 years ago, Lord Sankey delivered the judgment of the Judicial Committee of the Privy Council in Edwards v Canada — more commonly called the “Persons Case” —which held that the term “qualified persons” in section 24 of the British North America Act included women. That meant women were eligible to become members of the Senate.

The Supreme Court of Canada had reached the opposite conclusion in Edwards, relying in part on the “common law disability of women to hold public office.” (It seems Lord Sankey’s “obvious answer” was not as obvious as it should have been.)

Milestone anniversaries are an opportunity to celebrate, and also to reflect. On this 90th anniversary, it is worth examining the Persons Case through the lenses of the past, the present, and the future.

Let’s start with the past.

When the Persons Case was decided, many women were already enfranchised and eligible to vote in federal and provincial elections (though not in Quebec). But not all: First Nations women were not fully enfranchised until 1960, following almost 100 years of discriminatory policies requiring First Nations men to give up their Indian status before they could vote in federal elections. (Voting in federal elections remains a fraught topic for many Indigenous people.)

The JCPC did not address, or perhaps even contemplate, this persistent inequality.

True equality did not motivate the appellants in the Persons Case, either. The appellants, Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Emily Murphy, and Irene Parlby, petitioned Cabinet to refer the matter to the Supreme Court, making this an early test case in Canadian constitutional law. We now call these women the “Famous Five” and honour them with statues and shout-outs, but we don’t always discuss their dark side.

Historian Charlotte Gray, in a recent piece for Canada’s History, corrected the record:

…some of the women who fought for this powerful symbol of gender-equality rights held views on other issues that are now considered deeply offensive. Murphy, the leader of the Famous Five, was openly racist in her attitudes to non-British immigrants, especially those from China, and a vocal supporter of the eugenics movement. In 1928, the same year she was pursuing the Persons Case, she urged the Alberta government to pass the Sexual Sterilization Act, to ensure the compulsory sterilization of those who were considered mentally deficient. Thousands of men and women in her province were sterilized without their consent before the act was repealed in 1972.

McClung also held views that are considered unacceptable today. During the battle for women’s suffrage, she had initially supported a proposal that only women born in Britain or in Canada should be given the vote. And both she and Parlby agreed with Murphy that “mentally defective” children should be forcibly sterilized. (McClung would drop her support for eugenics when she learned how the Nazis were applying the policy.)

These beliefs certainly tarnish the legacy of the Famous Five. Of course, most of our historical heroes are imperfect by today’s standards. But we should still push back on the glorification of five women from privileged circumstances who did not want their vision of equality to apply to everyone.

Still, there are women in the Senate today! At last count, 48 of Canada’s 105 Senators were women (around 45 per cent). But the numbers have been much worse in the House of Commons. Before the writ dropped, less than one-third of MPs were women. (A recent CBC / Radio-Canada analysis suggested that women may be “set up to fail,” as political parties more often nominate female candidates in “hard-to-win ridings instead of in party strongholds.”)

Which brings us to the future. This year, Persons Day happens to fall three days before the federal election. Women are running in record numbers, although none of the parties have reached gender parity. (Stats on trans and non-binary candidates are hard to find.)

It is reassuring to think that Canadian democracy is on track to becoming more progressive and more representative. But that progress is not going to happen automatically.

The same can be said about constitutional law.

If the Supreme Court had the last word in the Persons Case, women would not have been eligible for the Senate until who knows when. Luckily, the JCPC reached a more enlightened conclusion (despite clarifying that their Lordships were not “deciding any questions as to the rights of women but only a question as to their eligibility for a particular position”). And Lord Sankey’s “living tree” metaphor from the Persons Case has informed the progressive interpretation that has governed Canadian constitutional law ever since.

The principle that our Constitution is “a living tree capable of growth and expansion within its natural limits” has, for the most part, guided Canadian courts away from applying the originalist interpretations that have curbed many constitutionally protected rights in the United States. Constitutional law has been a way to protect and expand rights, not to restrict and retract. For this reason, the roots of the “living tree” offer some comfort for the future, no matter who is elected on October 21.

We have the Persons Case to thank for that.