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Defining moment
Mar 05, 2010

A defining moment in Canadian history occured in March 1928, when the “persons case” appeared before the Supreme Court of Canada. 

After years of frustration, Emily Murphy, who wanted to become the nation’s first female senator, looked to her brother and his fellow lawyers to come up with a plan to overcome the impasse over the definition of the  word “persons,” which had been used to hinder her aspirations. In 1927, Murphy’s brother advised her that Section 60 of the Supreme Court of Canada Act allowed any five persons to initiate an appeal for clarification of any part of the BNA Act.

Murphy then joined with feminists Henrietta Muir Edwards, Irene Parlby, Louise McKenney and Nellie McClung to fight for the right to be “persons” in the eyes of the law. The five women from Alberta brought their petition to the attention of the Supreme Court of Canada. Their argument was finally heard on March 14, 1928. But, the Supreme Court’s opinion was that Canadian women along with “children, criminals and idiots” were not legally “persons.”

In the modern concept, it is a rather surprising commentary from a panel of supposedly sage men charged with bringing justice to Canadians. But at the time, it accurately reflected the male consensus that women were fit only for raising children and keeping a home. In the Manitoba Legislature, Premier Sir Rodmond Roblin, who opposed suffrage, had years before said giving the vote to women was “a retrograde movement, that it would break up the home.”

The Supreme Court in part based their decision on the fact that only male pronouns were used in the BNA Act and that in England no woman had thus far been appointed to the House of Lords.

Angered at the court’s ruling, the five then entered an appeal with the Privy Council in London, England which was then the final court of appeal in the British Empire. Canadian Prime Minister King favoured their petition and gave the five women moral and financial support. 

The women who put forward the case, now referred to as the Famous Five, have in recent years been getting more attention for their role in advancing the cause of women’s rights, such as a statue grouping in their honour standing on Parliament Hill.

The fact that women were not “persons” under British law was brought to the attention of Murphy on July 1, 1916, which happened to be her first day of sitting on the magistrate’s bench of the newly-created Women’s Court in Edmonton, Alberta. Defence attorney Eardley Jackson, enraged at a stiff sentence given to a bootlegger client, shouted at the first woman magistrate in the British Empire: “You’re not even a person. You have no right to be holding court!”

Murphy asked Jackson to clarify his outburst. He replied: “Under British Common Law, in a decision handed down in 1876, the status of women is this: ‘Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges.’ Therefore, since the office of magistrate is a privilege, the present incumbent is here illegally. No decisions of her court can be binding.”

Murphy noted his objection and then proceeded with the sentencing.

Obviously, Murphy was quite taken aback, later telling a friend that her first day on the bench was “as pleasant an experience as running a rapids without a guide!”

Each time Jackson appeared in court before Murphy, he made the same objection, which caught on with other lawyers when they defended clients before the female magistrate. The practice even spread to Calgary where a ruling by magistrate Alice Jamieson was similarly challenged. 

Jamieson gave a prostitute a six-month hard labour sentence, the maximum term of imprisonment under the Criminal Code. Defence attorney John McKinley Cameron blurted out, “I shall see that your decision is overruled!”

He appealed both her decision and her right to sit as a magistrate. The legitimacy of women judges was upheld in Alberta but they still had to bring their case to the rest of the land, which was not as liberal-minded on womens’ right to hold public office.

Recognizing that Murphy was a leader in the battle against systemic inequity, the Women’s Club of Montreal in 1921 approached then Prime Minister Arthur Meighen — the only PM ever from Manitoba — to reward Murphy for her hard work through an appointment to the Senate. Meighen replied that his legal department had told him appointing a woman contravened the British North America Act so he refused to make the appointment. The act specified that only “quality persons” could serve in the Senate, and as British Common Law quite clearly stated, women were not counted among “persons.” 

Amazingly, the need to be a “person” only applied to appointed government positions such as the Senate. A woman after 1917 could be elected and serve in the House of Commons.

Finally on October 18, 1929, the Supreme Court of Canada decision was overturned, and women were declared to be “persons.”

Lord Sankey, Lord Chancellor of the Privy Council, announced the decision of the five lords, who described the exclusion of women from federal office as “a relic of days more barbarous than ours ..., and to ask why the word (person) should include females, the obvious answer is, why should it not?”

Newspapers throughout the British Empire ran banner headlines that declared: “Women are PERSONS! “

Women had acknowledgment of their legal status and the same rights and privileges granted to men. But, that didn’t mean that men were willing to forgo their dominance of the political process. Even a so-called egalitarian, Labour MP J.S. Woodsworth of Winnipeg, declared, “I still don’t think a woman has a place in politics.”

Unfortunately for Murphy, the first woman appointed to the Senate (1930) following the Persons Case was Cairine Wilson, who, according to Jean Bannerman, writer of the 1977 book Leading Ladies, “had done yeomen service for her (Liberal) party, but she was not a feminist ... When she heard the news Emily was bitterly disappointed. But all she said was: ‘Cairine Wilson is a good woman.’”

Murphy’s ambition may have been thwarted, but she had every reason to be proud of the success the Famous Five enjoyed for making women “persons” in the eyes of the law.