The History of the Persons Case

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In 1927 Emily Murphy and four other prominent Canadian women – Nellie McClung, Irene Parlby, Louise McKinney and Henrietta Muir Edwards – asked the Supreme Court of Canada to answer the question: does the word "person" in Section 24 of the B.N.A. Act include female persons? After five weeks of debate and argument, the Supreme Court of Canada decided that the word "person" did not include women.

The five women, who came to be known as The Famous Five, were shocked by the Supreme Court decision but did not give up the fight. They took their case to London, to the Judicial Committee of the Privy Council of Great Britain, which in those days was Canada's highest court of appeal.

The Judicial Committee of the Privy Council of Great Britain decides

On October 18, 1929, Lord Sankey, Lord Chancellor of Great Britain, announced the decision of the five lords:

"The exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word "person" should include females, the obvious answer is, why should it not?"

The Famous Five not only won the right for women to serve in the Senate but helped pave the way for women to participate equally in – and contribute equally to – all other aspects of life in Canada.

The roots of Reform

The early 1900s in the Canadian west were turbulent and rapidly changing times. In Alberta, the population began to shift from a strictly rural to an increasing urban one. Men outnumbered women three to two. These situations combined to create a number of serious social problems, including alcohol abuse and prostitution.

In response, women began to organize and support organizations dedicated to 'cleaning up society.' They also began to seek a larger role in politics. In 1916, Alberta passed legislation granting women the right to vote.

The British North America Act (BNA Act) of 1867 set out the powers and responsibilities of the provinces and of the federal government. This federal Act used the word "persons" when it referred to more than one person and the word "he" when it referred to one person. Therefore, many argued, the Act was really saying that only a man could be a person, thus preventing women from participating fully in politics or affairs of state.

This situation was of concern to Canada's Emily Murphy, the first woman magistrate in the British Empire. Judge Murphy was the magistrate of a newly created Women's Court operating in Edmonton. On her first day, a defendant's lawyer challenged a ruling on the grounds that she was not a "person" and therefore not qualified to perform the duties of a magistrate.

Magistrate Alice Jamieson of Calgary found herself similarly challenged. In 1917 one of her rulings was appealed to the Alberta Supreme Court, which deemed there was no legal disqualification for holding public office based on sex.

At the same time, women's groups began pressuring the federal government to appoint a woman to the Senate. Despite the support of two consecutive prime ministers, no appointments materialized. Governments used the "persons" argument to keep women out of important positions, like the Senate. If the word "person" applied only to men, then the stipulation that only "qualified persons" could be appointed to the Senate of Canada meant that only men could be appointed.

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