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The Persons Case

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Emily Murphy.  Glenbow ArchivesAlthough the infamous "Persons" Case occurred on the national political scene, it had its origins in Alberta. The Edmontonian, Emily Murphy, became the first female judge in the British Commonwealth on January 1, 1916. On her very first day in court and frequently thereafter, lawyers would begin by objecting to having their cases heard by a female judge on the basis that women were not defined as "persons" by the British North America Act. (The act did not say were not persons, but all the pronouns in the constitutional phrasing were masculine and according to British Common Law they were only considered "persons in the matter of pains and penalties, but not in the matter of rights and privilege.")

The Provincial Court of Alberta in 1917 overruled this objection by declaring women "persons" in every legal sense. However, Murphy also had ambitions to be appointed a senator in the federal government and to do so she needed to be considered a "person" in Canada, not just Alberta. She garnered the support of many women's organizations, including the National Council of Women, who helped her collect the signatures and letters of 500,000 Canadian calling for her appointment. 

For the next 10 years she pressured the federal government to recognize women as persons with constitutional rights, but to no avail. Finally, in 1927, she tried a new strategy based on Section 60 of the Supreme Court of Canada Act, which stated that any five citizens acting as a unit could appeal through the federal government to the Supreme Court for clarification of a constitutional point. She invited five other Albertan women, Henrietta Muir Edwards, Louise McKinney, Irene Parlby and Nellie McClung, to join and together they formed the "Famous Five." They immediately began lobbying Prime Minister William Lyon Mackenzie King to take the matter to Supreme Court, which he quickly did. On March 14, 1928, the Supreme Court considered the question: "Does the word 'persons' in Section 24 of the British North America Act, 1867 include female persons?" and; six weeks later their answer was "no."

The Famous Five did not stop here. With King's support, they appealed the decision with Canada's highest court at the time, the Judicial Committee of the British Privy Council. On October 18, 1929, after a long uphill battle, Emily Murphy finally succeeded as the Privy Council announced that "yes, women are persons… and eligible to be summoned and may become Members of the Senate of Canada." Murphy, however, never did become a senator; instead the first woman senator was Cairine Wilson from Ottawa appointed by King in 1928.

Unveiling of a tablet commemorating the Famous Five's victory in the lobby of the Canadian Senate, Ottawa.  Glenbow ArchivesThe importance of the Persons Case to Canada cannot be underestimated. The constitution would now treat women as "persons," eligible for the same rights and freedoms as men. It also paved the way for the involvement of women the federal government. The same Albertan women that made up of the Famous Five helped lead the suffrage and property rights movements in Alberta. They opened the public sphere in Alberta to women ensuring that their right to participation in politics and to financial security was legally guaranteed. By the 1930s, women's rights seemed to have been significantly advanced and Alberta seemed to be a breeding ground for women's rights activism. What then was the legacy of this early activism in the coming decades - did women's participation and authority in the political sphere increase? We will examine these question in the section, Party Politics

Suggested Readings:

  • Famous Five Website - this interactive website chronicles the lives and achievements of the Famous Five. Together, Emily Murphy, Henrietta Muir Edwards, Louise McKinney, Irene Parlby and Nellie McClung achieved the recognition of women as persons under the British North America Act in 1929. They also worked in their own ways to improve women's lives in Alberta, across Canada and the world.

 

  
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