In the 1920s, section 24 of the B.N.A. Act, 1867, now the Constitution Act, 1867 stated, and still states, that the Governor-General shall summon “qualified persons” to the Senate.
Emily Murphy was the wife of an Anglican minister, mother to four children and a published author. She had sat as a city magistrate in Edmonton, Alberta. In 1922, she was being considered for appointment to the Senate of Canada.
As Beverley McLachlin, the third woman ever appointed as a justice of the Supreme Court of Canada, and its first female Chief Justice, states in her memoir Truth be told: the story of my life and my fight for equality:
Predictably, the government of Prime Minster Mackenzie King rejected her nomination on the grounds that Murphy was not a “person” capable of holding public office. Between 1917 and 1927, five different governments proposed women for Senate seats. The answer was always the same.
Ms. Murphy invited Henrietta Muir Edwards, Nellie McClung, Louise McKinney and Irene Parlby, sometimes referred to as the “Famous Five”, to her home. She suggested that they ask the governor general to refer the interpretation of s. 24 of the BNA Act to the Supreme Court of Canada.
However, in Reference re meaning of the word “Persons” in s.24 of British North America Act, [1928] SCR 276, an all-male Supreme Court of Canada unanimously decided against them.
As described by Beverley McLachlin, the Supreme Court of Canada:
was obliged- or felt itself obliged – to apply the law of the British Empire, which was that women were not “qualified” to hold public office.
The Supreme Court of Canada said that women were not “qualified persons” within section 24. So, they could not be appointed to the Senate.
Chief Justice Anglin, writing for the Court, stated at page 303 that the women’s arguments were “not new” and had “been conclusively rejected several times, and by decisions by which we are bound.”
As if that was not enough, he concluded that “it appears hopeless to contend against the authority of these decisions.”
Hopeless, in Canada, that women could ever be regarded as “persons.”
But, being women, the Famous Five refused to be intimidated or accept defeat.
At that time, prior to 1982, there was one more step they could take.
As Beverley McLachlin describes it, the Famous Five “raised more money and hired a new lawyer to take their case to the final court of appeal”, the Judicial Committee of the Privy Council (JCPC) in England. “To the surprise of everyone and the consternation of many, the women succeeded.”
In In the matter of a Reference as to the meaning of the word -persons- in Section 24 of The British North America Act, 1867, [1930] AC 124 , Lord Chancellor, writing for the JCPC, stated at page 10:
The word “person” as above mentioned may include members of both sexes, and to those who ask why the word should include females, the obvious answer is why should it not. [emphasis added]
The JCPC stated that the onus was upon those who sought to exclude women to demonstrate the exclusion.
At page 12, the JCPC, having reviewed the sections which deal with the Senate as a whole (sections 21-36), observed that it was unable to find anything in those sections “upon which the Court could come to a definite conclusion that women are to be excluded from the Senate.”
It stated that the women bore a “heavy burden” to “set aside a unanimous judgment of the Supreme Court” of Canada.
But in the end, the Lordships concluded that “persons” in section 24 “includes members both of the male and female sex”.
Therefore, women were and remain, “persons.” They were, and are, eligible to become members of the Senate of Canada.
Beverly McLachlan writes in Truth be told that on the day she was sworn in as a Supreme Court of Canada judge, 60 years after the JCPC decision in the Persons Case, she thought of the Famous Five:
What took us so long? I thought. And then, What is still holding us back?
Thirty years later, I still ponder these questions.
Indeed. Almost a century after this precedent setting case, many professional women still ponder these questions.
