Feminists claim that women became legal “persons” only when the Privy Council in England (the court of last resort for Canada until 1949) declared, in 1929, that women are eligible to be appointed to the Senate. Such an argument, however, is typical feminist nonsense.
Women have been separate as to property (that is, they may manage their own business affairs) since 1882. They could vote in the Province of Manitoba, Alberta and British Columbia since 1916, in the other provinces shortly thereafter, and federally since 1918. Universal male suffrage only occurred in 1885. (Prior to that time, only property owning males were permitted to vote.) All the “persons” case did was to acknowledge that women were eligible to be appointed to the Senate – nothing more.
The decision of the Privy Council in the case, however, not only serves as grounds for heated feminist fervor, but it also has created long range problems in Canadian constitutional law – problems that haunt us today. That is, the decision of the Privy Council has given judges the rationale and incentive to re-write legislation according to their own perspective and ignore the purpose and intent of the legislation, as passed by the legislators.
REALity has published several articles on the “Famous Five” Canadian women, promoted by feminists as having achieved equality for women by recognizing them as “persons.” These women brought the 1929 Persons case (Edwards vs Canada) before the Judicial Committee of the Privy Council in London, England, after the Supreme Court of Canada had decided that women were not eligible to become Senators. It should be noted that the BNA Act did not explicitly bar women from sitting as Senators. However, by the 1920s, only men had been appointed to the Senate, subject to certain requirements, such as owning real property to a net value of $4,000, a sizable sum at the time. The Supreme Court of Canada had decided that women could not become Senators because the framers of the Constitution did not foresee women Senators, as women did not participate in politics at that time. Moreover, they pointed out that the Constitution used the pronoun “he” only when referring to Senators.
The following article by Patrick Brode, Barrister and Solicitor, describes how the Privy Council decision in the “Persons case”, which reversed the Supreme Court of Canada decision, has created problems in regard to judicial interpretation in Canada today. The decision in the Persons case is being repeatedly used by the Supreme Court of Canada as an excuse to write-in provisions in the Charter of Rights and other legislation that were never intended by the legislators.
This is not to suggest, by the way, that women should not be appointed to the Senate. Quite obviously, they should be. The problem lies in the fact that any changes in the appointment system should have been brought about by the legislators who represent the public, not by the arrogant imposition of this change by an appointed judge. That is, the decision of Lord Sankey of the UK Privy Council to change the written words of the BNA Act more to his own personal views has given our present day Supreme Court of Canada the rationale to “write-in” words or find meaning in the Charter of Rights that were never in the written text and never intended to be included.
The Persons Case:
A sanctified piece of legal lore
By Patrick Brode
Barrister and Solicitor
Lord Sankey, of the UK Privy Council, was one of the Law Lords, who in 1929 reversed the Persons Case on appeal from the Supreme Court of Canada, and was an individual who thought he knew better than anyone else. Thanks to him, we have the “Persons” case that sanctified piece of legal lore that has led to a statue on Parliament Hill of the so-called “Famous Five”. In addition, law review journals are full of praise for this noble Law Lord who supposedly single-handedly raised women up to the level of equality. Sankey himself was a peer, and a progressive politician; it is, therefore, not surprising that his decision was not only heavily political, but also wrongly decided.
Robert Sharpe, a justice of Ontario’s Court of Appeal and Patricia McMahon, a Toronto lawyer, have written a book in praise of Sankey. The book is called The Persons Case: The Origins and Legacy of the Fight for Legal Personhood, published in 2007 by the Osgoode Society for Canadian Legal History and available at the University of Toronto Press for $50; 272 pages. The book details the proceedings that led to Sankey overriding Canadian law and settled constitutional interpretation, and imposing his personal view that the law should be changed to enable women to sit in the Senate. Not for a moment do the authors question the legitimacy of this method. Right from the first page, they advise us that the decision was a “bold legal step” and that it became “the most powerful metaphor in modern Canadian constitutional jurisprudence.”
The case itself sprang from a petition initiated by five well-educated and accomplished Alberta women. Among them were Irene Parlby, the first female member of the Alberta cabinet and Nellie McClung, an elected member of the Alberta legislature. Foremost among the five, however, was Emily Murphy, the first female police magistrate in the Commonwealth. The authors portray Murphy as a compelling figure: she was, indeed, a vigorous author, social reformer, world traveler and women’s advocate.
Emily Murphy: Support the Family Unit at Any Price
In 1916, Emily Murphy had proposed a special women’s court and was appointed to preside over it. Striking an independent line, she saw the role of the magistrate as not just handing out punishment, but inquiring into how women got into trouble with the law and how they might change to get out. However, the authors seem uncomfortable with Murphy, particularly her support of the integrity of the family unit “at virtually any price” and her opposition to abortion, which she called “murder in embryo.” No shrinking violet, Murphy nominated herself for the Nobel Prize in 1923 and fearlessly put herself forward to the Prime Minister as the appropriate individual to be the first female to fill a seat in the Senate Chamber.
Even at that time many were criticizing the Senate as a useless body to which no one, male or female, should be appointed. Nevertheless, Emily Murphy craved the appointment and lobbied hard for it. Her problem lay in the wording of the British North America Act of 1867 which simply stated that only “qualified persons” could be appointed and, in 1867, those persons were males. Despite all her political string pulling, Ottawa politicians were unwilling to seek a constitutional amendment. So Murphy and her colleagues turned to the courts.
When the case was heard by the Supreme Court of Canada in 1928, the judges were unanimous that the framers of the BNA Act could only have meant that men were qualified for the Senate in 1867, and, as the Act had not been amended, there was nothing further they could do. As one of the justices stated in a different context, “The reforming department of the State is not the Courts of Justice, but Parliament.” Whatever opprobrium it attracted from journalists, the decision was legally correct and consistent with all other precedent on how Canada’s constitution was supposed to be interpreted.
John Sankey: Lord Chancellor from the Left
Privately, Murphy distrusted any notion of democratic change and did not want the issue to be put to a vote in Ottawa, “as I had excellent reasons for believing it would be defeated …” So, bypassing the elected representatives, she pursued an appeal to London to the Judicial Committee of the Privy Council. That body would likely also have ruled against her, except for a fortuitous change of government. The British Labour Party came to power in early 1929 and John Sankey, a prominent sympathizer with the left, was appointed to the most powerful judicial post in the land of Lord Chancellor. Ten years earlier, he had been the chairman of a commission to investigate the coal mining industry. His conclusions, that state ownership of production was the only answer, was wisely shelved by the government of the day. Nevertheless, Sankey had proved his Labour credentials and was a top choice for the Lord Chancellor’s position.
Canadian Judges: Persons Could Well Refer to Women
The Persons case was the kind of progressive cause that John Sankey relished. He prefaced his decision with a comment that “The Canadian Supreme Court was unanimously of the opinion that the word ‘persons’ did not include female persons.” This was unforgivably inaccurate for the court had said no such thing. The Canadian judges had stated at several points that the word persons could well refer to women. But what the court faced was the interpretation of the phrase “qualified persons” in the context of BNA Act of 1867. It was a distinction Sankey chose to ignore.
Lord Sankey and “the Living Tree”
A pervasive theme of his judgement was that legal rules are not rules at all: they mean whatever the judges want them to mean at a given moment. As he artfully phrased it, the Canadian constitution was a “living tree capable of growth and expansion within its natural limits.” Unlike the Supreme Court of Canada, he chose to ignore the standard rules of interpretation and decided that the BNA Act should be read as if it had been passed in recent years, not in 1867. However progressive that may have seemed, it was an attempt, as a Canadian legal scholar of the time noted, “to take into account matters of political expediency”, not to interpret the law as it existed.
Ironically, the decision had little impact at first. Ten days after the judgment the New York stock market collapsed, the depression was on and whether or not a woman could serve in Canada’s Senate had become an issue irrelevant to all, except perhaps Emily Murphy. But even she was to be disappointed, for the first woman appointed to the red chamber was not herself, but Cairine Wilson of Ontario. Still, it was undeniable that the decision was a landmark. Nellie McClung concluded that now that the Senate doors were open to women, there were only two other great institutions closed to them, “the church and beer parlours.”
The legacy of the Persons case, however, has become very apparent within the past thirty years. The authors accurately note that, especially after the enactment of the Charter of Rights in 1982, “it is Lord Sankey’s approach to constitutional interpretation that has dominated the Supreme Court of Canada’s approach to Charter interpretation.” Judges intent on overriding existing laws have frequently invoked the “living tree” metaphor as justification.
Judge Driven Social Policy
This is a wonderful outcome, the authors conclude, for the metaphor has a “timeless quality, because it infuses constitutional interpretation with life.” There is only a passing reference (buried in a footnote) to the writings of Rainer Knopff and F.L. Morton who have called into question the legitimacy of judge driven social policy. Judicial activism has given us a situation in which the Supreme Court has negated Canada’s laws on abortion, leaving the country one of the few democracies with no legislation at all protecting the unborn. Such activism also led to the infamous Askov decision in which thousands of cases were peremptorily dismissed due to a judicially imposed notion of delay, and to a situation where, recently, the Supreme Court overrode twenty years of its own jurisprudence to conclude that unionized collective bargaining is a protected constitutional right. Not only does the living tree change from moment to moment, it seems more to resemble an uncontrolled weed: what was the law last year is no longer the law today; and what was acceptable social policy for generations is suddenly swept aside by a judicial decree.
An Elitist Judiciary
All of this change is effected by a judiciary that, much like the Senate, has no responsibility to the electorate. The Persons case was really a celebration of “Olympianism,” the notion that the Lord Sankeys, who end up on the bench, are not just the lucky recipients of political favour, but actually have some innate ability to understand what is best for us. There is a mistaken notion that these unelected elites are somehow endowed with a superior intellect to decide what the rest of us need. Ultimately, the Persons case is a commemoration of elitism, not equality and democracy. We have paid the price for this elitism, for example, in the Canadian courts finding same-sex marriage in the constitution – an entity that the Supreme Court of Canada never found before in its over 100 years of existence. There is no telling what else the courts will find using Lord Sankey’s “living tree” interpretation of our laws.
Lord Sankey’s argument is not a cause for celebration.
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