The Persons Cases

By Nick Nightengale

In Canada the “Persons” case is a big deal.  We even have an annual “Persons Day”—for women.  Oct 18.  Every year. Canada, like the U.S. has a bi-cameral legislature.  Canada has an elected national House of Commons and an appointed Senate.

Around the time women obtained the vote in Canada, other issues were examined.   Female eligibility for appointment to the Canadian Senate was one such issue.  The Constitution  authorized the Prime Minister (more or less equivalent to the U.S. President) to appoint “qualified persons” to the Senate.  A woman wrote to the federal government regarding the appointment of women. The government made a “reference,” meaning that the case was sent to the Supreme Court to have the issue resolved.  Five women, including one Mrs.  Edwards, for whom the case is named, joined. This occurred in the late 1920s.

The main reason there was an issue was based on the old “Original Intent” method of statutory interpretation still used by conservative members of the U.S. Supreme Court. The essence of the approach revolved around the question of what the original framers of the constitution intended.

This raised an issue about the intention behind the phrase “qualified persons” because at the time of framing the legislation the primary “qualification” one had to possess was to own real property and at that time women basically couldn’t hold property in their own name.

The Supreme Court took an “original intent” approach and held that women weren’t included in the phrase “qualified persons” because at the time of framing it was impossible for women to be “qualified.” The Court indicated that an amendment was required to make women eligible for appointment.

However, Canada as part of the British Commonwealth maintain a right (now abolished) for citizens to appeal cases to the British highest Court the Judicial Committee of the Privy Council.

Some of the women involved in the case were well off financially,  including Mrs. Edwards (upper middle class upbringing, then married  a doctor).  They appealed the case to the Privacy Council.  It took a “living tree” approach to constitutional interpretation and held that women were within the meaning of the phrase “qualified persons”.

The reader will note several facts:  the women had enough heft to get the government to make the reference to the Supreme Court, had the means to follow through with an appeal to the Privy Council and won the case.  The reader will also observe that the essence of the issue was more on “qualification” than on “persons”.

You would know little of that if you lived in Canada today.  Rather you would be told that women were not “persons” in some general sense of the word until October 18, 1929, when the case was decided.  The implication, sometimes expressly stated, is that if women were not “persons”, they must have been “property”.  That characterization appears to be false.  One can certainly say men, including particularly “husbands” had more rights than women or particularly “wives” back then (although men also had dramatically more responsibility), but ownership of live property connotes one or both of two factors:  a right to sell or a right to kill.  Husband’s had neither of those powers.   Yet the Edwards case, more commonly  known as “the Persons” case is so well known that the women who brought the case are known as “the famous five”.

Unfortunately, feminists and the mainstream media have “spun” the case to stand for the proposition that prior to Edwards women were property, not persons.

The astute reader might have observed that the title of the post is the persons cases, plural.  There is another “persons” case decided around 50 years later, around 1980.

Mr. Fitzpatrick was that rarest of all beings, a man with custody of his children.    Fitzpatrick was poor and his two children were young.  He thought that, in the absence of his wife, he should stay home with his children, as having a parent at home raising the children was then still common.  Being poor, he applied for social allowance benefits (welfare.) under The Social Allowances Act, as it then was.   For someone in Fitzpatrick’s position the key section was one that provided benefits to a “person in need” defined as a mother unable to provide “basic necessaries” to her children.

Fitzpatrick clearly fit the definition of being “in need” given he had to  house and feed his children.   But was he a “person”?  Did being a father rather than a mother disqualify him from “personhood”  There had been a Human Rights Act in place for a while at the time of this, prohibiting discrimination based on sex.

Fitzpatrick applied to the provincial (like a state) or city department for benefits and was turned town.  He then went to a social assistance appeal board—-alone, no high priced lawyers to help him—-and lost there also.

He then made an application before a justice of Court of Appeal, to seek leave to appeal to the full Court of Appeal—again, on his own. Recall that the Court had earlier found women to be persons and that was without human rights legislation.

One would think that a reasonable judge and reasonable system would hold that, in the unusual circumstances of a father having custody, that “mother” could be read as “parent”.  Alternatively the judge could have used the human rights legislation to hold that there was an issue worthy of a full hearing.

One would think so, but what judge said was “the applicant is of the view that the state should look after him since in the absence of his divorced wife, he is mothering his two infant children—-I, as an employed person, must make myself available to listen patiently to his pet theories.”

He then held “leave to appeal  is denied”.

Where does one start.  The words used put the lie to his claim about “patience”.  Note the shot about being “employed”.  As noted this judge had human rights legislation to assist him.   Note also  society’s contempt for an unemployed man is so deep that we deny him “personhood” for that status.  And the judge did this, even though the people harmed by the denial of men’s personhood, are helpless young children.  Accordingly, one deep lesson we can learn from the Fitzpatrick case—where the Court was prepared to run over children, to get at an “unproductive” man—-is that when Courts and society do special sexist things for women and then claim “it’s for the children”, that it is probably actually for the woman.   The children are a convenient excuse.

No doubt you are wondering whether there was a great outcry, whether feminists or the media criticized the decision and took to the streets demanding that men be considered “persons”. No doubt you are thinking that feminists, because after all, feminism is for “everyone” stated that denying personhood to men in a specific circumstance meant that men generally weren’t “persons”.    No doubt you are thinking that even if nothing was done at the time, that there is a special “non-persons’ day set aside for men, to demonstrate that a half century after deciding that women were persons that our society was not only so sexist but so hypocritical as hold that men were not persons.

So somehow women being found to be “persons” in the 1920’s somehow meant that women are oppressed, but a finding 50 years later that men aren’t “persons” means nothing.  The silence and the hypocrisy is deafening.

So men get to be “persons,” or so we hope, and women get affirmative action.  Hmm.

When do you think the Fitzpatrick kids got to eat?

Men are persons too.  Men’s rights are human rights.

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