Prior to 1929, women in Canada were not considered ‘Persons’ —at least not in the fullest legal sense of the word.
Emily Murphy - Famous Five monument in Ottawa, ON.
Section 24 of the British North America Act, 1867, (at that time, Canada’s constitution) outlined the qualifications that a person needed to be appointed to the Senate of Canada. The Canadian government had consistently interpreted this clause as meaning men only. This was based on the historical belief that men should govern and women should be governed. Later in 1876, some pesky English women tried to vote. They were arrested and when the judge ruled, he referred to an ancient English law that stated, women were not eligible for rights and privileges, only pains and penalties.
Naturally, suffragists like Emily Murphy were outraged. This interpretation suggested women were not "qualified persons". Determined and ready to fight, Judge Murphy found a way. One of her brothers told her of a little-known provision in the Supreme Court of Canada Act that included provision for any five persons acting as a unit to petition the Supreme Court for an interpretation of any part of the constitution. So on a fine summer’s day on August 27, 1927, four of the brightest and most determined women activists in Canada gathered at Emily’s Edmonton home. On her veranda, the Famous 5 sipped tea and signed a letter asking the federal government to refer several sophisticated questions to the Supreme Court to determine whether the government could appoint a female senator.
Prime Minister William Lyon Mackenzie King, like Prime Ministers before him, had received hundreds of letters and petitions in favour of women being appointed to the Senate of Canada. Most favoured the appointment of Emily Murphy but the answer was always, legally, it’s not possible.
PM Mackenzie King’s office referred the letter signed by the five advocates to the Department of Justice for their advice. They recommended the matter be sent to the Supreme Court of Canada but that the question simply be:
Does the word ‘persons’ in Section 24 of the BNA Act of 1867 include female persons?
The matter quickly became known as the ‘Persons’ Case. It was debated on March 14, 1928, with the Supreme Court eventually ruling on April 24, 1928 that women were not “qualified persons” as it related to Section 24 of the BNA Act.
BC’s Ellen Smith was the first female Cabinet Minister and female Speaker of the Legislature in the British Empire and she reacted to the news saying, “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.”
The Famous 5, however, were not daunted. At the time, there was one authority even higher than the Supreme Court of Canada. The Privy Council of Great Britain. So they petitioned Prime Minister Mackenzie King to appeal this dreadful decision to the Privy Council and he agree.
On October 18, 1929, Lord Sankey arrived to a packed courtroom in London to read the Privy Council’s judgement. To the relief and joy of the Famous 5 and women across Canada, the Privy Council said:
Yes, women were indeed persons and could become Senators.
Lord Sankey took things one step further, saying, “The exclusion of women from all public offices is a relic of days more barbarous than ours.”
This decision had reverberations throughout the British Empire (later the Commonwealth), for it clearly asserted that anti-suffragists could no longer suppress women’s rights through clever legal arguments and prejudiced traditions. Also, many other countries adopted the new definition of the word ‘persons’ as always meaning both women and men.
“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.”
No F5 Senators…
Senate appointments are based on geography and until recently, were political appointments. That is, Conservative Prime Ministers appointed Conservatives and Liberal Prime Ministers usually appointed Liberals.
The first senate opening after October 18, 1929, happened four months later when a vacancy occurred in an Ontario riding. Emily lived in Edmonton and so Cairine Wilson became Canada’s first female Senator. She served with distinction for 30+ years, achieved many firsts and earned the title Mother of Refugees. Incidentally, Emily was a staunch Conservative so even if she lived in Ottawa, it is unlikely that a Liberal Prime Minister would have appointed her.
However, by 1931, Conservative Leader, R.B. Bennett, was Prime Minister and a vacancy occurred in Alberta. Bennett had been an Alberta MLA and Emily’s ally in promoting women’s property rights. There was great excitement! It was going to happen - Emily Murphy was going to become a Senator!
In addition to consideration of geography and politics, there was also the matter of religion. Senator Prosper Lessard who had died was a Catholic and the other five Alberta Senators were Protestants so PM Bennett decided he must appoint another Catholic. Emily Murphy was raised as an Anglican faith and Bennett knew this. Instead, he appointed Patrick Burns, a Catholic man who was a very successful businessman - but a Liberal. Emily died the next year, perhaps of a broken heart, but more likely of advanced diabetes.
Many people thought that the equally remarkable Nellie McClung would be appointed to the Senate when the Liberals regained power a year later because she was a Liberal. None of the Famous 5 became Senators but… they are smiling because currently, our Senate is gender equal!