A Look Back at the “Persons Case”Nov 15th, 2006 | By Erin McGrath-Gaudet | Category: Feminism, History, Society
The early part of the 20th century marked major advances in the position of women in Canada. Perhaps most famously, women fought for and won the right to vote in federal and most provincial elections by the early 1920s but there were many other important changes such as minimum wages for women and property rights. Society was also witnessing women assuming roles once held exclusively by men- legislators, magistrates- and a new activism was reshaping Canada.
But as is often the case with significant change, the advancement of women in social and political life did not sit well with everyone. For Emily Murphy, the first female magistrate in the British Empire, the challenge presented itself in 1916 on her first day as an Edmonton police magistrate. A lawyer presented a challenge to her appointment, on the basis that throughout the British North America Act (1867), a person was referred to as ‘he’; therefore women were not legally ‘persons’ and not qualified to hold certain constitutionally defined positions. A year later, the Alberta Supreme Court ruled that women were indeed persons; however, this only applied within Alberta. When the same argument held back her from a Senate appointment, Murphy and four other prominent women activists (Nellie McClung, Irene Parlby, Louise McKinney and Henrietta Muir Edwards) became known as the ‘Famous Five’ by taking the matter before the Supreme Court of Canada in 1927.
On April 24, 1928, the Supreme Court addressed the question “Does the word ‘Person’ in section 24 of the British North America Act, 1867, include female persons?” The court claimed that the BNA Act must be interpreted based on what was intended at the time of writing. When the act was written, women did not play the same role in society that they did and only male nouns and pronouns were used. Thus, the ruling was negative: women could not be considered “persons.”
Needless to say, the Famous Five were disappointed in the decision of the Supreme Court, but with the help of Prime Minister Mackenzie King, an appeal was made to the Judicial Committee of the Privy Council in England—the highest court of appeal for Canada at that time. According to the Privy Council, tradition and custom were all that were keeping women from attaining positions such as that of Senator and on October 18, 1929, the council ruled that women were included in the definition of “persons.”
Henrietta Muir Edwards reacted to the ruling by saying: This decision marks the abolition of sex in politics. . . . Personally I do not care whether or not women ever sit in the Senate, but we fought for the privilege for them to do so. We sought to establish the personal individuality of women and this decision is the announcement of our victory.
None of the Famous Five would ever be appointed to the Senate, but the Persons Case had much more significance than simple Senate representation. The case removed the use of the constitution as a tool to deny certain rights and freedoms to women and legally and finally opened many doors for women be active participants in Canadian society. In the years since the Privy Council ruling, women have risen to positions which would have been beyond their reach had they not been defined as “persons.”
Reflecting on this case nearly 80 years later, I am struck not only by the significance of this landmark ruling but also by the tenacity and sheer will of the Famous Five. They all led lives in which their passions for feminist causes pushed them to overcome many obstacles. Not even a constitutional challenge to their personhood overwhelmed their feminist sensibilities and principles. While it can always be argued that such legal changes would have occurred eventually—after all, feminist movements were becoming common in almost every developed country—the efforts of the Famous Five ensured an enviable position for Canadian women and created a voice for many issues of social reform which have defined the modern Canadian welfare state.