Today, with the equal rights of Canadian women ensured by the 1982 Constitution Act, it is difficult to remember that many basic rights were first won only seventy years ago.
Canadian women born before 1929 were generally considered to be "non-persons." Five governments stated that women were ineligible to be appointed to the Senate because they were not "persons." In fact, British Common Law stated they were:
A group of Alberta women—Emily Murphy, Henrietta Muir Edwards, Louise McKinney, Irene Parlby and Nellie McClung—worked together to try to improve attitudes towards and conditions for women and to change the interpretation of the Canadian constitution to ensure women could participate in all aspects of public life. They were known as the Famous Five.
In 1927, the Famous Five persuaded Prime Minister MacKenzie King to ask the Canadian Supreme Court to clarify the word "persons" under the British North America Act of 1867. When the Canadian court rejected their argument on April 24, 1928, the Famous Five persuaded the Government of Canada to appeal to the Judicial Committee of the British Privy Council. There, the Famous Five won and on October 18, 1929, Canadian women were legally declared "persons" and eligible for appointment to the Senate.
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 Five 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 Five 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?"
Six weeks later, on April 24, 1928, the Supreme Court of Canada said "no." The five male Justices stated that the British North America Act had to be interpreted in light of the times in which it was written. In 1867, women did not vote, run for office or serve as elected officials.
Only male nouns and pronouns were used in the British North America Act. As well, the British House of Lords did not have a woman member and therefore, the justices concluded Canada should not change this tradition.
With Prime Minister Mackenzie King's moral and financial support, the decision was appealed to what was at that time Canada's highest court of appeal, the Judicial Committee of the Privy Council of England.
On October 18, 1929, Lord Sankey, Lord Chancellor of the five male member Privy Council, announced that "yes, women are persons . . . and eligible to be summoned and may become Members of the Senate of Canada."
The Reactions and Effects
None of the Famous Five received appointments to the Senate. The first Senate vacancy occurred in Ontario and Prime Minister Mackenzie King appointed Ottawan Cairine Wilson on February 20, 1928, a remarkable woman who actively opposed anti-semitism and encouraged governments to accept refugees.
When a Senate vacancy occurred in Edmonton several years later, hopes were high that Emily Murphy, a Conservative, would be appointed because the Prime Minister was Calgarian R.B. Bennett, a Conservative. Bennett decided to consider religious affiliations. The Senator from Southern Alberta was a Protestant and Bennett decided that the Senator for Northern Alberta should be a Catholic. Therefore, Senator Patrick Burns, a Liberal, was appointed. Although Albertan women succeeded in opening the doors to the Senate for women, it was not until fifty years later in 1979 that Martha Beilish was appointed as the first female Senator from Alberta by Prime Minister Joe Clark.
On December 17, 1997, Senator Gerald Beaudoin, a renowned constitutional expert, described the importance of the "Persons" Case during Senate debates which concluded by approving a unanimous resolution concerning the placement of the "Women are Persons. . ." statues on Parliament Hill. Senator Beaudoin said,
"I suggest in closing that we keep and remember the famous 1929 case that first recognized the equality of men and women. . .
This was [also] the time when the Privy Council started what we call in law, the theory of 'evolution of the Constitution'."
The champions of the "Persons" Case, the Famous Five, secured the right in Western Canada for women to vote and to serve as elected officials at the school board, hospital board, municipal, provincial and federal level. Because the Senate is the senior law making body in Canada, these remarkable nation builders also sought the right for women, together with men, to participate at this level. As well, they advocated for and assisted in the creation of libraries, travelling health clinics, distance education, mother's allowance, equal citizenship of mothers and fathers, prison reform and many other initiatives that we cherish today.
EXPERIENCE A "PINK TEA"
Using a technique called binaural audio and specialized recording equipment, we have created a 360-degree audio experience that will transport you back in time by nearly a century to the centre of a “pink tea.”