The 'Persons' Case - The Cause
Edmontonian Emily Murphy became the first female judge in the
Commonwealth on January 1, 1916. On her very first day in Court and
frequently thereafter, lawyers would begin their presentation by
objecting to having their case heard by a woman judge because, they
said, women were not 'Persons' as defined by our constitution, the
British North America Act of 1867.
Fortunately for the women of Alberta, a 1917 ruling by a Calgary
judge, Alice Jamieson, was upheld by the Supreme Court of Alberta,
thereby establishing the principle that both men and women were
persons and therefore equals.
In other provinces and on the federal level, in many matters, women
were still considered to be "persons only in terms of pains and
penalties, and not rights and privileges" as defined by British
Common Law. However, other changes were advancing the equality of
women. Nellie McClung had achieved a major breakthrough when the
province of Manitoba became the first Canadian jurisdiction to grant
women the right to vote and run for office on January 28, 1916. It was
not until 1940, however, that women could participate in provincial elections in
the province of Quebec, even though they could vote and run for office
in federal elections. On May 24, 1918, women were given the right to
vote in federal elections. However, Asian and Indo-Canadian men and
women were not enfranchised federally until 1947, and finally in 1960,
Aboriginal People were also accorded this right.
Emily Murphy wanted to become Canada's first female Senator.
Members of the Federated Women's Institutes, the National Council of
Women and the Montreal Women's Club were among the more than 500,000
citizens who signed petitions and wrote letters in support of Mrs.
Murphy. Between 1917 and 1927, five governments indicated their
support for such an appointment but said that their hands were tied
because only "qualified persons" could be appointed and that
definition did not include women. Two Prime Ministers promised to
change the law but, in fact, did not.
After more than ten years of political effort, Emily Murphy finally
decided on a new strategy recommended by her brother. Section 60 of
the Supreme Court of Canada act stated that any five citizens acting
as a unit could appeal through the Federal Cabinet to the Supreme
Court for clarification of a constitutional point. Thus the Famous 5
moniker was given to these women by the media when they requested that
Prime Minister Mackenzie King and his Cabinet pose their query to the
Court concerning the process of being appointed to the Senate.
Judge Murphy invited four outstanding Alberta women to her home in
Edmonton in late August, 1927. They were Henrietta Muir Edwards,
Louise McKinney, Irene Parlby and Nellie McClung. Following in
Nellie's footsteps, Emily, Henrietta, Louise and Irene had campaigned
for the right of Alberta women to vote and Emily, Henrietta and Louise
had succeeded in getting Alberta's Dower Act passed in 1917.
Although the Famous 5 proposed different questions, on March 14,
1928, Emily's sixtieth birthday, the Supreme Court of Canada
considered the following question: "Does the word 'persons' in Section
24 of the British North America Act, 1867 include female persons?"