In 1916, magistrate Emily Murphy was hearing her first case in the Women’s Court in Alberta. She was stung by the hostile words of an attorney about to lose his case. He declared the new magistrate’s decision was not valid since Murphy was not a “person” under the law. Murphy was incensed.

The ruling he referenced concerning women was rendered in 1876 and was not updated to meet social advancements. “Women are persons in matters of pains and penalties,” stated the obsolete law, “but are not persons in matters of rights and privileges,” wrote Monique Benoit in “Are Women Persons? The ‘Persons’ Case” on Library and Archives Canada (LAC).

The province ensured the legality of her post as magistrate but Murphy was not content to leave the aggravating issue against women’s full participation in government alone. The matter of the oppressive status of women must be addressed. It would take 13 years of determined preparation to see it through, and Murphy herself would be delighted to receive an appointment to Canada’s Senate

There was no shortage of support for Murphy’s plan. A report was issued by a publicist of the Women’s Institute of Canada stated “that the National Council of Women, representing 450,000 women, unanimously supported their annual meeting’s resolution that a woman, namely Emily Murphy, be immediately appointed to the Senate of Canada,” said Benoit.

To put a constitutional question before the Supreme Court, a group of at least five people was required to sign the petition. Murphy enlisted several prominent women politicians and activists to support her quest.

Joining in Murphy’s mission, Irene Parlby was the second woman in Canada to be elected to a provincial legislature, winning a seat in Alberta in 1921. A writer, activist and advocate for the vote for women, Nellie McClung was concerned with women’s rights of property, medical care and political rights. Henrietta Muir Edwards was a co-founder of the National Council of Women. She fought for prison rights and women’s rights to job training.

The fifth member of the petitioners was Louise McKinney, the first woman sworn into the Alberta Legislature in 1917. Prohibition was a major issue for the politician, along with the social welfare of women and children. She advocated with Murphy for Alberta’s Dower Act, ensuring certain property rights for married women. (Before the Act was legislated in 1911, a woman’s husband could sell the family home and leave her with nothing. Even if the wife had paid for the home.)

After much discussion and wrangling at Murphy’s home in Edmonton, the women formulated the question for submission to the Privy Council in 1927. The goal was a seat for a woman in the Senate and the freedom to participate fully in all levels of government:

“Does the word ‘Persons’ in section 24 of the British North America Act 1867, include female persons?”

Employing alphabetical order, Murphy’s petition was assigned to Henrietta Muir Edwards’ name, the legal title becoming Edwards v. Canada (Attorney General). After examining the issue, the Supreme Court of Canada rendered its decision on Oct. 18, 1927. The judges unanimously “replied that the word ‘person’ did not include female persons,” said University of Calgary in “The Persons Case (1929).”

“Women are under a legal incapacity to vote at elections. What was the cause of it, it is not necessary to go into: but admitting that fickleness of judgment and liability to influence have sometimes been suggested as the ground of exclusion…,” wrote one of the Supreme Court judges. The wise judge disagreed with the observation in regard to Canadian women, but still declined to define women as “qualified persons” who could be appointed to the Upper House. (Extended rights in 1918, women first voted in federal elections in 1921, and voted several years earlier in provincial elections.)

The women and their legions of supporters were disheartened with the results but hearts were set afire to compel change. Another petition was submitted to Canada’s then-highest court, the Privy Council in England.

The Lordships of the high court examined the issue thoroughly from all angles, looking at history, at definitions of “person” and “qualified,” and reviewed the negative response made by the Supreme Court of Canada. The Persons Case did not only concern Canadians; women across the British Empire awaited the decision with great anticipation.

“On Oct. 18, 1929, Lord Sankey arrived to a packed courtroom in London to read the Privy Council’s judgement,” said the Famous Five Foundation. “Yes,” the senior jurist Lord Chancellor John Sankey announced, “women were indeed persons and could become Senators.” Overturning the Canadian Supreme Court’s ruling, he added, “The exclusion of women from all public offices is a relic of days more barbarous than ours.”

Sankey’s ruling also included the “living tree doctrine,” allowing for more liberal interpretation of the Constitution to meet changing attitudes and values over time.

Murphy, Parlby, Edwards, McKinney and McClung were dubbed the Famous Five in recognition of their efforts. Following the joyful reverberation, boosters expected Emily Murphy — now a “qualified person” — to be appointed to the Senate. The appointment did not happen. Prime Minister William Lyon Mackenzie King instead appointed Cairine Reay Mackay Wilson to the Upper House on Feb. 15, 1930. Breaking the male-dominated traditions, Wilson “became Canada’s first woman delegate to the United Nations General Assembly in 1949,” and “first woman to chair a Senate Standing Committee (Immigration and Labour),” according to LAC’s “Celebrating Women’s Achievements.”

Advancements for women rippled throughout the Commonwealth, the ruling used as a precedent in at least “17 cases in which courts in Ireland, Australia and India,” said politician and author Scott Reid in “The court case that changed everything,” on the Canadian Constitutional Foundation site.

Presently, women occupy approximately 36% of the seats in Canada’s Senate. In 2009, the Famous Five were posthumously named honorary Senators in utmost respect for their advancements in women’s rights. Life-sized bronze monuments of the Famous Five commemorate the landmark event. One heartfelt scene is located on Parliament Hill in Ottawa, another graces Olympic Plaza in Calgary.

Cheers for the Famous Five! Their commitment set Canada on a path of leadership toward fairness and equality of all persons, not yet fully achieved but still inching ever closer. Happy Women’s History Month.

Susanna McLeod is a writer living in Kingston’s north end.

Sources:

Benoit, Monique, “Are Women Persons? The ‘Persons’ Case,” Archived at Library and Archives Canada

“The Persons Case (1929),” Global Perspectives on Personhood: Rights and Responsibilities, University of Calgary

“The ‘Persons’ Case,” Famous Five Foundation

“Celebrating Women’s Achievements: Cairine Reay Mackay Wilson,” Archived Content, Library and Archives Canada

Reid, Scott, “The court case that changed everything,” Canadian Constitutional Foundation