Edmontonian Emily Murphy became the first female judge in
the Commonwealth on January 1, 1916. On her 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 the British North
America Act of 1867.
Luckily for the women of Alberta, in 1917 the 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 federally, 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,
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 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 in
1960, Aboriginal people were finally 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 of Canada and the Montreal Women's Club were
among the more than 500,000 citizens who signed petitions
and wrote letters in support of her cause. 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 did not.
After more than 10 years of political effort, 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 McClung's footsteps, Murphy,
Edwards, McKinney, and Parlby had campaigned for the right of
Alberta women to vote and Murphy, Edwards, and McKinney had
succeeded in getting Alberta's Dower Act passed in 1917.
Although the Famous 5 proposed different questions, on
March 14, 1928, Murphy's 60 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?"