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

2007

by Mr. Justice Robert Sharpe of the Court of Appeal for Ontario and Prof. Patricia McMahon, Osgoode Hall Law School. Published with the University of Toronto Press, 2007.

The Persons’ Case is one of the best known Canadian constitutional cases, both for the fact that it declared women to be ‘persons’ for the purposes of eligibility for Senate appointment, and for Lord Sankey’s invocation of the living tree metaphor in interpreting the constitution. Robert Sharpe and Patricia McMahon add enormously to our understanding of the case by a detailed exploration of its context. They analyse the campaign for the recognition of women as senators in both political and legal circles, and they examine the background and personalities of the major players in the litigation, in particular Lord Sankey, Prime Minister Mackenzie King, and Emily Murphy. Murphy, one of the ‘famous five’ litigants, was the driving force behind the demand for legal recognition, and she is shown here to be a fascinating and complex individual.

Awards

Canadian Law and Society Association Book Prize 2007

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

One of the most compelling reasons to read The Persons Case is to find out what drove the women known as the Famous Five to fight to open the Senate's doors. Readers also discover why the verdict remains one of the most important constitutional decisions in Canadian history..... [A] gripping drama in which the fitness of women's appointment to the Senate is merely the backdrop.... Reading history should always be this much fun. Penni Mitchell, The Beaver, June-July 2008
There is much that is engaging in this account of the Persons case, particularly in relation to the five women who requested the constitutional reference, and the behind the scenes political manoeuvres of Prime Minister Mackenzie King and his advisors... In addition the study situates the case within the ongoing tensions with respect to constitutional interpretation between judges in the Supreme Court of Canada on one hand and in the Privy Council on the other. Mary Jane Mossman, Ottawa Law Review, vol 40, 2009
Working closely from the archival record, Robert J. Sharpe and Patricia I. McMahon place the [Persons] case in its political, constitutional and personal context .... [A] valuable contribution to Canadian constitutional history. Lyndsay Campbell, Law and History Review, vol 27, 2009.

Reviews have also appeared in the following publications:

  • Alison J. Fingas, Saskatchewan Law Review, Vol. 71, 2008, pp. 424-425.
  • Jennifer Koshan, Canadian Journal of Women and Law, Vol. 20, 2008, pp. 343-351.
  • Francis C. Muldoon, Journal of Parliamentary and Political Law, Vol. 3, 2010, pp. 545-552.
  • Colleen Sheppard, McGill Law Journal, Vol. 53, 2008, pp. 367-373.
  • Janneke Lewis, Advocate, Vol. 66, 2008, pp. 814-815.
  • Christopher Moore, ‘New book authoritative telling of Persons Case,’ Law Times, November 12, 2007.
  • Tracey Tyler, ‘The mothers of Canadian equality,’ The Toronto Star, October 20, 2007, Sec ID, p. 4.

Robert J. Sharpe

Robert Sharpe was a judge of the Ontario Court of Appeal from 1999 to 2020. He was called to the bar in 1974 and practiced with MacKinnon McTaggart (later McTaggart Potts) in the area of civil litigation. He was a professor at the University of Toronto Faculty of Law from 1976 to 1988 where he… Read more »

Patricia McMahon

Patricia McMahon is the Director and lead interviewer of the Osgoode Society’s Oral History Program. She is a professor at Osgoode Hall Law School, and a historian, living in Toronto. Dr. McMahon holds a Ph.D. in History from the University of Toronto and a J.S.D. from Yale Law School. Her Ph.D. dissertation examined the influence… Read more »

Contents:

Contents

Foreword vii
Preface ix

Introduction: ‘A Relic of Days More Barbarous Than Ours’ 3
1 First of the Five 16
2 The Other Four 37
3 Women and the Law: The Trials of Legal Personhood 59
4 Emily Murphy’s Senate Campaign 74
5 Going to Court 104
6 The Supreme Court of Canada Decides 127
7 The Judicial Committee of the Privy Council and the
Canadian Constitution 142
8 Waiting to Be Heard 154
9 The Judicial Committee of the Privy Council Decides 173
10 The Political, Cultural, and Legal Legacy of the
Persons Case 189

Notes 207
Archival Sources 249
Facsimile of the Amended Petition 251
Illustration Credits 253
Index 255