This Week in Legal History – Canada Asks: Are Women ‘Persons’?

ANNIE ZHENG
Volume 2, Issue 6 (Originally Published 27 August 2012)
 
August 27, 1927 – Canada Asks: Are Women ‘Persons’?
On this day in 1927, five Canadian women filed a petition to the Supreme Court of Canada asking the question ‘Does the word 'Persons' in section 24 of the British North America Act 1867, include female persons?’ If so, women would be entitled to become appointed as members of the Canadian Senate.
 
The Act comprised a major part of the Constitution of Canada. The test case arose out of the events occurring in 1916, when Emily Murphy – Canada’s first female magistrate – was challenged by a lawyer who believed that the Act did not permit women to preside as a judge of a court, arguing that the interpretation of ‘persons’ refers only to men.
 
Murphy decided to run a test case by running for Senate, which was rejected by the Canadian Prime Minister Robert Borden on the same basis. In 1927, Murphy and four other Canadian women (prominent women’s rights activists Irene Marryat Parlby, Louise Crummy McKinney, Nellie McClung and Henrietta Muir Edwards) decided to ask the Supreme Court of Canada to decide on the issue of women’s status under the Act s 24. The five women were to become the ‘Famous Five’.
 
The subsequent decision handed down in Edwards v Canada (Attorney General) [1928] SCR 276[1930] held that women were NOT ‘qualified persons’ within the meaning of the Act, and therefore ineligible for a seat in the Senate. The women then appealed to the Privy Council in 1929, which remained at the time the highest court with respect to constitutional matters arising under the British Empire.
 
The Privy Council overturned the Supreme Court’s decision in Edwards v Canada (Attorney General) [1930] AC 124. Lord Chancellor Sankey ruled that ‘the exclusion of women from all public offices is a relic of days more barbarous than ours’ and that the word ‘persons’ includes both men and women. The landmark decision also proposed the ‘living tree doctrine’ of constitutional interpretation. The Canadian Constitution was held to be ‘a living tree capable of growth and expansion within its natural limits…subject to development through usage and convention’. Thus, this approach required a ‘large and liberal interpretation’ which reflected the needs of a modern Canadian society.
 
Following the Privy Council decision – now known as the landmark Persons Case – the first female senator, Cairine Reay Wilson, was appointed in 1930. Murphy remained the British Empire’s first female judge, Parlby became Alberta’s first female Cabinet Minister, McClung and McKinney became members of the Alberta legislature and Edwards became a founding member of the Victorian Order of Nurses.
 
Annie Zheng
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