The legacy of the Persons case

By Rebecca Bromwich March 6, 20176 March 2017

The legacy of the Persons case

As I noted in my  last post, in the era of post-truth and alternative facts, lawyers matter. 

This week will mark International Women’s Day. It is another reminder that progressive reform to law matters and our times don’t have to define us. 

Much is rightly made about the landmark 1929 Persons Case, which recognized women as persons under the British North America Act, 1867, which provides in its section 24, that only “qualified persons” can be appointed to the Senate.

It was the name of Emily Murphy — one of the “Famous Five” women who pushed the legal battle all the way to Privy Council — which had been put forward for the Senate.  But it was Cairine Wilson who, shortly after was appointed Canada’s first female Senator. Wilson was not one of the upstart western women who had challenged the definition of “persons” in court, but rather someone from firmly within the circles of government. She was the daughter of a senator and had become the wife of an MP, a man whom she had first met at a gala at the Governor General’s residence. 

In contemporary parlance made popular by right-wing social movements, you could say Wilson was a member of the “liberal elite.” It isn’t unreasonable to suggest that her appointment was strategic. If there had to be a woman in the Senate, this one might not to rock the boat.

Greatly to her credit, Wilson defied those expectations and did, most certainly, rock the boat. There are many things Senator Wilson did during her time in office, but one in particular stands out. In spite of her privileged background, she understood that equality is multidimensional and reached out to those who were most in need. She was an early and outspoken critic of strategies of appeasement in relation to Hitler in 1938.  As World War II wore on in 1943, against the wishes of the Prime Minister, William Lyon Mackenzie-King, Wilson was able to arrange for the transport and admission of 100 holocaust orphans to Canada. Wilson, as it turns out, wasn’t just a woman trailblazer for her own sake. Like the cinematized Oskar Schindler, she had her own Schindler’s List.

History, and causation, are complicated, but it’s reasonably certain that, but for the Person’s Case, there would have been no Senator Cairine Wilson, and but for Senator Wilson, at least one hundred refugee children would have been denied entry to Canada at the height of the holocaust. The shadows of legal decisions, and of the work that lawyers do towards them, are long.

So, on International Women’s Day this year, as unprecedented numbers of migrants pour across our borders at fields, walking through snow, I would encourage lawyers to think about the legacy of Canada’s first woman senator, and, by extension, the Person’s Case

That’s what CBA Past-President Janet Fuhrer and I will be doing at this March 7, 2017 free Ottawa event, which open to all. It’s an issue of intersectionality: gender equality should not just be understood to be about women – it’s about equality for all.   And it’s not where we start in life, or even where we land, that matters as much as what we do with it.

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