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Persons Case - Background Information

On October 18th, 1929, a landmark decision changed the face of Canadian politics. A battle had been won - women were declared "persons" under the law and were granted the right to be appointed to the Senate. Their victory was the result of an arduous struggle by five Alberta women, later to be known as the "Famous Five".

Emily Murphy, Louise McKinney, Nellie McClung, Irene Parlby and Henrietta Muir Edwards helped to pave the way for a more equitable, just society.

"Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges."

This 1876 British Common Law ruling was the stumbling block which, in the early part of this century, prevented Canadian women from taking an active part in public office and affairs of state.

In 1916 this situation came to the attention of Judge Emily Murphy, the first woman magistrate in the British Empire. As magistrate of the newly-created Women's Court in Edmonton, she had just severely sentenced a bootlegger when the latter's attorney challenged her ruling on the grounds that she was not a "person" and was therefore occupying the office of magistrate illegally. Judge Murphy reportedly handled the situation calmly, making a note of the lawyer's objection, but proceeded with the case. Apparently the lawyer repeated his objection every time he appeared in her court. Magistrate Alice Jamieson of Calgary was similarly challenged a year later. However, the Alberta Supreme Court, in 1917, made the provision that "there is...no legal disqualification for holding office in government of this country on the basis of sex." Thus the authority of Judges Murphy and Jamieson was upheld and it was established that, in Alberta at any rate, women were "persons."

However, the situation was by no means clear at the federal level. Emily Murphy became aware that the federal government would not appoint a woman to the Canadian Senate on the grounds that, according to The British North America Act, women were not "persons."

For the next decade a number of Canadian women's groups, including the Federated Women's Institutes, the National Council of Women, and the Montreal Women's Club, made representations to the federal government to open the doors of the Upper House to women. Promises were made by Prime Minister Meighen and later, Prime Minister Mackenzie King, to make changes in the BNA Act, but time passed and nothing happened.

In 1927, Emily Murphy decided to take matters into her own hands, and after consultations with several lawyers, learned that any five persons could initiate an appeal to the Supreme Court of Canada for clarification of any part of The British North America Act. So, Emily Murphy gathered around her four other determined Alberta women: Henrietta Muir Edwards, Nellie McClung, Louise McKinney, and Irene Parlby. Together they were to become known as the "Famous Five." The "Persons Case" came before the Supreme Court of Canada on March 14th, 1928 and the question asked by the Famous Five was very straightforward: "Does the word 'person' in Section 24 of The British North America Act include female persons?"

Their appeal was denied. The justification given for this decree was that since persons required for public office must be "fit and qualified," only men would be eligible for appointment. The women were shocked and disappointed at such a paternalistic ruling but, as Nellie McClung expressed it, "This ruling leaves us abashed, but not despairing: humbled but not hopeless. Acts can be amended and we believe they will."

The five women were true to this sentiment and did not let the matter rest. There was a further recourse - the Privy Council of England. And so, with Prime Minister King's support, they referred the petition to what was at that time Canada's highest court of appeal.

On October 18, 1929, Lord Sankey, Lord Chancellor of the Privy Council, announced the decision that "women are eligible to be summoned and may become Members of the Senate of Canada." The battle was won and an important milestone in women's formal rights and responsibilities, with respect to public affairs, was reached. As Emily Murphy stated in the press after the Privy Council's decision: "We, and the women of Canada whom we had the high honour to represent, are not considering the pronouncement as standing for a sex victory, but rather, as one which will permit our saying 'we' instead of 'you' in affairs of State."

The Canadian government promptly appointed two women to the Senate as soon as vacancies became available: Honourable Cairine Wilson, from Ottawa, and later, Honourable Iva E. Fallis, from Peterborough, Ontario. However, none of the "Famous Five" were to receive that honor, and it would not be until 1979 that the Honourable Martha Bielish would become the first woman from Alberta appointed to the Senate.

Henrietta Muir Edwards

Henrietta Edwards (née Muir) was 78 years old when the petition was signed and forwarded to Ottawa. She was a journalist and an accomplished artist, painting miniature portraits and china, which were exhibited at the Chicago World's Fair in 1893. In 1875 she organized the Montreal Working Girls' Association, a forerunner of the Young Women's Christian Association. The purpose of that organization was to provide poor working girls with vocational training and help in finding employment, as well as housing and recreational facilities. Being a legal expert, she worked as Conveyor of Laws for the National Council of Women. Prison reform was one of her chief interests. She also worked helping to organize public libraries, urged the establishment of mothers' allowances and equal parental rights, and pressed for divorce to be granted on equal grounds. Her book, The Legal Status of Women in Canada, was published by the federal government and she was a member of the Alberta Government Advisory Committee on Health.

Nellie McClung

Nellie McClung (née Mooney), well-known novelist, teacher, social reformer, and suffragist, served as a member of the Alberta Legislature between 1921 and 1926. During that time she actively campaigned for mothers allowances, birth control, free medical and dental treatment for school children, public health regulations, temperance, and the rights of women. She also campaigned for fairer property rights for women and the rights of women in divorce. In 1936 she became the first woman on the Board of Governors for the Canadian Broadcasting Corporation, and in 1939 was Canada's sole woman representative to the League of Nations.

Louise McKinney

Louise McKinney (née Crummy) had the distinction of being the first woman to be elected to a legislature in the British Empire. Active in the Alberta farm community as a social reformer, she was instrumental, along with Emily Murphy, in having The Dower Act passed in Alberta. She also helped introduce laws for immigrants and more effective liquor laws and she aroused public opinion against the unjust status of widows and separated wives.

Emily Murphy

Emily Murphy (née Ferguson) strongly believed women's associations could help with social reforms and worked to establish several women's clubs in Canada, as well as serving as President of the Canadian Women's Press Club. Her efforts resulted in The Dower Act being passed. She believed that insanity was a disease, not a crime. Writing under the pen name of "Janey Canuck," she spoke out on drug addictions in her book The Black Candle and on birth control in Pruning the Family Tree. In 1930 she saw the first mental health clinic established in Alberta. She also worked toward the establishment of public playgrounds and the election of women as school trustees.

Irene Parlby

Irene Parlby (née Marryat) began her public life in 1916 when she took over the presidency of the United Farm Women of Alberta. Later elected to the Alberta Government, she became the second woman in the British Empire to serve as a cabinet minister, and was Minister without Portfolio in the Alberta Cabinet from 1921 to 1935. During her years in public office, she supported 18 laws affecting the lives of women and children. These included a bill to improve the quality of rural education, legislation to provide municipal hospitals and public health nurses to rural districts in the province, and The Minimum Wage for Women Act. She was also responsible for having obstetrical nurses placed in outlying districts of the province not having doctors, and establishing child welfare clinics.

© Alberta Women's Secretariat (now part of Alberta Children and Youth Services), January 1992. May be freely reproduced as long as the source is acknowledged.