Lawyer and legal scholar Mary Eberts was a founder of LEAF ( Women’s Legal Education and Action Fund). The organization was created in 1985 to ensure Canadian courts protect the equality provisions Canada’s Charter of Rights and Freedoms. LEAF has often appeared in courts to advance equality for women and girls. On October 18, 1990, Eberts spoke to a breakfast meeting commemorating the 60th anniversary of the Persons case, which established the right of women to be appointed to the Senate.
“A group of women frustrated by years of seeking change through petitions and lobbying”
We have gathered together this morning on the anniversary of the decision of the Privy Council in 1929 that the word “persons” in section 24 of the British North America Act of 1867 includes women, and that women are thus eligible to be Senators.
Canada is such a wonderful country. Where else would you get so many people coming out so early in the morning to celebrate a decision of a court that no longer has jurisdiction over us on an Act passed over 100 years ago by a foreign government dealing with an institution most people in the country want to abolish, and that doesn’t sit anyway?
Of course, with more and more Senate seats being created, the decision may be taking on an entirely new importance.
The Persons case, as it is called, was brought by five women from Alberta — still, as we know, a hotbed of interest in Senate reform. It was typical of the pattern we still see in women’s constitutional litigation — the case was brought by a group of women frustrated by years of seeking change through petitions and lobbying. Also typical was that the women at first got nowhere trying to interest male lawyers in this issue — one prominent Montreal lawyer whom they approached in 1921 charged them $200 to tell them indignantly that their idea had no merit. Finally, they found a male lawyer sympathetic to their case: Newton Rowell, whose daughter Mary — Mary Jackman, a long-time benefactress of the women’s community in Toronto and one of the original funders of LEAF — accompanied him to London, England when he argued the last stage of the case. And here we meet another feature of litigation about women’s rights with which we have become familiar.
The five women were unsuccessful before the Supreme Court of Canada and had to appeal before finding a court responsive to them. . . And what about the five women themselves — Emily Murphy, Nelly McClung, Louise McKinney, Henrietta Muir Edwards and Irene Parlby? They were activists, professionals, politicians, writers, pressing for change across a wide range of areas, hard-working, distinguished, and effective. Yet after the court victory, none of these splendid women was appointed to the Senate — though the public interest in having Emily Murphy appointed had been a major impetus behind the lobbying that culminated in the Persons case and there was a lively campaign for her appointment after the Privy Council decision. The first woman appointed to the Senate [Cairine Reay Wilson] has been described as someone “who had done yeoman service for her party, but not a feminist.”
An enduring lesson of the Persons case, this. Women who are not feminists, who are “safe”, “correct”, familiar, may often inherit the victories of feminists — whose ideas inspire change but who are at the root, not trusted — not, as they say over on Bay Street — “sound.” Not a “team player.” Not “committed.” Recognize these familiar phrases? …
Women who make it
A few women do make it. These are the ones whose smiling white, faces we see on magazine covers and whose happy stories we read in the “Life” sections of our newspapers. They are an example to us all that “any woman can,” as long as she has the determination and self-discipline to succeed. In person, these “exemplary” women may not be at all like their public descriptions: but the way of keeping the focus off the need for real social change is to stress that it is personal strength or personal weakness — not social structure — which really makes the difference. And “exemplary” women are often the icons used to reinforce that message — whether we want to be or not.
In this way, we privatize responsibility for social change — make it the individual’s burden just to pull up her socks that extra little bit higher — and we privatize too the responsibility for the lack of social change. How many women who are poor, who are raped, who are beaten, who are passed over again at work while younger men they train receive promotions — say, “if I were just better, stronger, more organized, more appealing, things would be better for me?”
This is where LEAF comes in. LEAF’s name reminds me of a famous statement by the Privy Council in the Persons case. They said that the constitution planted in Canada a “living tree,” capable of growth and expansion within its natural limits. For five years now, LEAF has been using the constitution — and in particular the Canadian Charter of Rights and Freedoms — to further the work of the Persons case — to urge the growth and expansion of the rights of women — of all women.
LEAF has appeared in the Supreme Court of Canada eight times, with two more cases to be heard; we have appeared in the Court of Appeal and Supreme Court in several jurisdictions, and have made important submissions about the law to governments and to legislatures. LEAF has volunteers, both women and men, in all parts of Canada. Though many are lawyers, these volunteers pursue many different types of employment, including that of full-time homemaker. In our cases and in our policies LEAF is committed to reflecting — and valuing — the diversity of Canadian women; believing that we find strength and not divisiveness when women of different races, cultures, abilities, sexual preferences, geographical locations and economic circumstances share ideas, share work, share power and make together a future in which we all can claim our full dignity as human beings.
We believe that women should be able to be women, to be ourselves, and still claim full participation in society. We should not have to turn ourselves into some sort of version of the ideal man in order to have rights. And we believe that when they make decisions about us and our rights, courts should know who we are and what happens in our lives, behind those glossy magazine covers and those heartwarming newspaper stories about the women who “have it all.” …
As we sit here this morning, we are not far away from another anniversary — the one that in many ways is the exact mirror image of women’s success in claiming their personhood.
Coming soon is the anniversary of the assassination of 14 young women, in their engineering school, late last fall — by a man who screamed, “Feminist! Feminist!,” as he gunned them down in the brightest days of their youth.
Did you notice how quickly this confession of woman hatred was submerged in a flood of rhetoric about gun control? How quickly his acts were written off as the aberrations of a crazy person, an abnormality outside society? How the media did not even realize the irony that their accounts of how he got to be crazy spoke of his own father’s pattern of violence against his wife and his children? It is a pattern of training to be violent against women with which we are all to familiar.
We had at work here the effective operation of what many call “the right not to know” — the right not to know about women’s poverty, about our circumscribed life chances, about the violence that is the companion of our everyday lives …
In doing our work against violence — against inequality — we collaborate with many diverse groups in the community, and call upon a network of volunteers and supporters which is steadily increasing. We have, with this help, already accomplished a lot — but more remains to be done. . . The job is large, but we are off to a grand start. Will you help us continue?
Canadian Speeches: Volume 04, #08, December, 1990.
Canadian Encyclopedia, Persons Case.
CBC Digital Archives: The Montreal Massacre.
Women’s Legal Education and Action Fund (LEAF).
University of Saskatchewan, circa 2012.