The Persons Case

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Throughout Canadian history, there have been many landmark cases but few are on the same level of importance as Edwards versus Canada, also known as The Persons Case.

The Persons Case would be decided in 1929, but its origins date back over a decade to 1916.

It was in that year that Emily Murphy and a group of other women attempted to attend the trial of Alberta women who were accused of prostitution. Murphy and those women with here were denied entrance to the trial because, as was stated, it was not not fit for mixed company.

Before I go further, I want to look at Emily Murphy. Throughout this episode, I will look at each of the Famous Five, as the women came to be called.

Murphy was born in Cookstown, Ontario in 1868 and she would often spend time with her two older brothers, something her father encouraged and she would share responsibilities with them equally. Heavily influenced by her grandmother, Ogle Gowan, who founded a local branch of the Orange Order in 1830, along with her uncles who were a Supreme Court justice and a senator. At the age of 21, she would marry and have four daughters.

Once her children were living their own lives, Murphy began to organize women’s groups where housewives could meet and discuss ideas and plan group projects. She would learn about a woman whose husband sold the family farm after abandoning his wife and children, leaving them homeless. At the time, property laws did not give women any legal recourse. Motivated by this, Murphy would campaign for property rights of married women. With the support of rural women, Murphy would pressure the Alberta government to retain the rights of their land. In 1916, she was able to get the Alberta government to pass the Dower Act that gave a women legal rights to one-third of her husband’s property.

Following being denied the ability to see the trial, Murphy protested to Attorney General of Alberta, stating “if the evidence is not fit to be heard in mixed company, then the government must step up a special court presided over by women, to try other women.”

Her request was approved and she became the first woman police magistrate in the British Empire. That appointment as a judge though would cause a major controversy. Her first case was on July 1, 1916 and she found the prisoner guilty. The lawyer for that prisoner called into question her ability to pass any sentence since she was not legally a person. While the Provincial Supreme Court denied the appeal, this would begin the process towards the Person’s Case.

In 1919, Murphy would preside over the first meeting of the Federated Women’s Institutes of Canada, which passed a resolution that a female senator be appointed. Murphy was selected as the candidate.

In order to test the issue, Murphy allowed her name to be put forward to Prime Minister Robert Borden as a candidate for the Canadian Senate. Borden would state that he was willing to do so but was unable to because of an 1876 British Common Law that ruled women were eligible for pains and penalties, not rights and privileges.

Over the next several years, Murphy would begin to work for clarification on how women were regarded under the British North America Act of 1867 and how they could become senators.

Enlisting the help of four other Alberta women, Murphy would sign a petition on August 27, 1927 asking the federal government to refer the issue to the Supreme Court. Joining her on the petition would be human rights activist Nellie McClung, ex MLA Louise McKinney, and women’s rights campaigners Henrietta Edwards and Irene Parlby.

We now had the Famous Five together.

So, let’s look at the other four members of that elite group up to the moment when they got involved in the Persons Case.

Nellie McClung was born in 1873 in Chatsworth, Ontario to John and Letitia Mooney and following the failure of the family’s farm they moved to Manitoba. McClung would receive six years of education but would not learn to read until she was nine. As an adult, she would campaign for the Liberal Party in 1915 and 1916 for the right for women to vote. She would organize the Women’s Political Equality League and on Jan. 28, 1916, Manitoba became the first province to give women the right to vote. By this point through, McClung had moved to Edmonton. In 1921, she was elected to the Alberta Legislative Assembly as a Liberal, serving until 1926.

Louise McKinney was born in 1868 in Frankville, Ontario and came to Alberta in 1903 with her husband to homestead. She would run for a seat in the Alberta Legislature in the 1917 Alberta general election, winning in the election and becoming one of two women elected to the Legislative Assembly that year. She would serve as MLA until 1921 and spoke out in favour of temperance, education and women’s property rights. In regards to temperance, she would found the local chapter of the Women’s Christian Temperance Union.

Henrietta Edwards was born in 1849 in Montreal to an upper-middle-class family that valued religion and culture. As a young woman, she founded a Working Girls Association to provide meals, reading rooms and study classes. After marriage and a move to Indian Head in what would one day be Saskatchewan, Edwards continued to push for women’s rights. In 1890, she would move to Ottawa with her husband and found the National Council of Women of Canada in 1893, followed by the Victorian Order of Nurses in 1897. In 1904, she moved back to the west with her husband. She would write two books on women and the legal problems they had to overcome in 1908 and 1921, while also becoming the first woman to be called upon to review of public policy with the government.

Irene Palby was born in 1868 in England to a military family. She would come to Canada in 1896 and in 1913, she founded the women’s local chapter of the United Farmers of Alberta. In 1921, she was elected to the Alberta Legislature, and would hold the position of MLA for 14 years, and became the first woman Cabinet minister in Alberta history. She also served as the president of the United Farm Women of Alberta from 1916 to 1919.

So, the five women came together and on their petition they asked two main questions.

The first was is power vested in the Governor General in Council in Canada or the Parliament of Canada, or either of them, to appoint a female to the Senate of Canada.

The second was is it constitutionally possible for the Parliament of Canada under the provisions of the British North America Act, or otherwise, to make provision for the appointment of a female to the Senate of Canada.

By this point in Canadian history, most women had achieved the right to vote. Manitoba, Saskatchewan and Alberta gave the right to vote to women in 1916, followed the next year by British Columbia and Ontario, and then Nova Scotia in 1918. New Brunswick gave the vote to women in 1919, Prince Edward Island did the same in 1922. In May of 1918, most women over the age of 21 could vote in federal elections, and women could be elected to the House of Commons as well. Agnes Macphail would do so in 1921, when she was elected to Parliament.

Ernest Lapointe, who was Minister of Justice, reviewed the petition and recommended that the questions be narrowed down to one, which related to women being appointed to the Senate of Canada.

On Oct. 19, 1927, the Cabinet submitted the question of “Does the word Persons in section 24 of the British North America Act 1867 include female persons?” To the Supreme Court.

Emily Murphy was unhappy with the narrowing down to one question and asked that the original two questions be submitted to the Supreme Court, with one more added. The third question would be “if any statute be necessary to qualify a female to sit in the Senate of Canada, must this statute be enacted by the Imperial Parliament, or does power lie with the Parliament of Canada or the Senate of Canada?”

In the end, the group accepted the single question posed by the Cabinet.

The Supreme Court would hear the case on March 14, 1928, issuing its decision on April 24, 1928. Chief Justice of Canada, Francis Alexander Anglin, would review the provisions of qualifications to be a senator including that the person had to be at least 30 years old, a British subject, own real and personal property worth at least $4,000 and live in the province that they are appointed in. He also described the qualifications as continuing the pronoun, he, which contributed to the argument that only men could be appointed to the Senate. In the end, all five justices held that qualified persons, under section 24 of the act, did not include women.

There is a common misconception that Supreme Court held that women were not persons, but the majority of the Supreme Court stated that there was no doubt that the word persons when standing alone includes women. The court made this clear in the judgement but the Supreme Court did not answer directly the question posed by the government, giving its own interpretation instead. The formal judgement of the court was “Understood to mean ‘are women eligible for appointment to the senate of Canada? The question is answered in the negative.”

At the time, unlike now, the Supreme Court was not the final arbiter of the constitutional questions of Canada.

At this point, the Famous Five took the case on appeal to the Judicial Committee of the Privy Council, which was the court of last resort in the British Empire.

On Oct. 18, 1929, The Lord Chancellor, Lord Sankey, found that the meaning of qualified persons could be read to include women, which reversed the decision by the Supreme Court of Canada. In his ruling, he wrote, “the exclusion of women from all public offices is a relic of days more barbarous than ours and that to those who ask why the word person should include females, the obvious answer is why should it not.”

With that, the Persons Case was completed.

Henrietta Edwards would say about the decision.

“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.”

One woman interviewed in British Columbia stated “the iron dropped into the souls of women in Canada when we heard that it took a man to decree that his mother was not a person.”

Murphy would state, “It should be made clear that we are not considering the pronouncement of the Privy Council as standing for a sex victory but rather as one which will now permit our saying we instead of you in all affairs of state.”

One year later, Carine Wilson was appointed to the Senate of Canada on Feb. 15, 1930.

Let’s go back to the five women who helped make this possible. I will acknowledge that several of the Famous Five were advocates for the terrible eugenics movement of Alberta, but I won’t be going into detail on this as I am saving that for a future episode of the podcast.

Irene Palby would continue to serve the Alberta Legislature until 1935 and work for the rights of women and for public health care services, the establishment of municipal hospitals and mobile medical and dental clinics. She would live until July 12, 1965, dying at the age of 97 and was the last surviving member of the Famous Five. In 1966, she would be commemorated as a Person of National Historic Significance by the government of Canada.

Emily McClung would continue to be a popular and accomplished author through her life time and would live until 1951, passing away at the age of 77. In 1954, she would be named a Person of National Historic Significance by the government. Her home in Calgary, that she lived in from 1923 to the mid-1930s, was designated as a heritage site, as were two other homes that she lived in.

Louise McKinney would pass away only two years after the case was decided, in 1931 at the age of 62. At the time of her death, she was Vice President of the world organization of the Women’s Christian Temperance Union. In 1939, she was recognized as a Person of National Historic Significance.

Henrietta Edwards would also live two years past the judgement, passing away on Nov. 10, 1931 at the age of 81. In 1962, she was recognized as a Person of National Historic Significance.

As for Emily Murphy, the woman who helped to get things rolling, she would never get the opportunity to sit as a senator. Prime Minister William Lyon Mackenzie King was a Liberal and Murphy was a partisan Conservative, so she was passed over in favour of Wilson in 1930. In the 1930 election, R.B. Bennett would become Prime Minister and despite being a Conservative, Murphy was denied the chance to sit in the Senate in 1931 because the vacancy was caused by the death of a Catholic senator and Murphy was a Protestant. Murphy would die in 1933, never reaching the Senate of Canada. Her home in Edmonton would be listed on the Canadian Register of Historic People and Places and in 1958, she would be recognized as a Person of National Historic Significance.

On June 11, 1938, a plaque commemorating the five women was unveiled by Prime Minister William Lyon Mackenzie King, which we can hear in this clip.

As for the Famous Five collectively, all five would be named honorary senators by the Senate of Canada in October of 2009. In 1979, the Governor General’s Award in Commemoration of the Persons Case was established and is given to the five individuals in Canada each year who distinguish themselves in advance of the equality of women and girls in Canada.

A statue of the Famous Five would be unveiled in Calgary in 1999, and a replica was placed at Parliament Hill in 2000. In 2004, a fifty-dollar note featured the statue of the Famous Five.

Information comes from Wikipedia, Canadian Encyclopedia, Famous, Adventurous Women, 200 Remarkable Alberta Women,

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