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Women Are Persons ... Aren't They?

For the week of Monday April 23, 2001

On April 24, 1928, the Supreme Court of Canada ruled that under Canadian law, defined in the British North America Act of 1867, women were NOT considered "persons."

Emily Murphy

Emily Murphy
© LAC / PA-138847

Under Canadian common law, the word "person" generally meant "male person," unless an Act of Parliament specifically included women. Since only "qualified persons" could become senators, Emily Murphy, Canada's first female magistrate, was barred from office. She approached Parliament to protest women's exclusion from the Senate, but received minimal support. Then she learned of a proviso in the Supreme Court of Canada Act which stated that any five citizens acting as a unit had the right to petition the Supreme Court for clarification of a constitutional point.

Emily recruited four women's rights activists from Alberta to join her. Nellie McClung, Louise McKinney, Mary Irene Parlby, Henrietta Muir Edwards and Emily Murphy, afterwards known as the "Famous Five," met on March 14, 1928 to ask the Supreme Court: "Does the word 'person' in Section 24 of the British North America Act of 1867 include female 'persons'?"

To their shock, in April 1928, the Court responded with a unanimous "No!" The judges — all male — realized that women's role had changed since 1867, but ruled that the Act had to be interpreted in light of the times in which it was written. Women were not meant to govern Canada, since all the nouns, pronouns and adjectives in the BNA Act were masculine. Women could earn university degrees, have the federal vote and even become magistrates, but they were not automatically entitled to all the rights of "persons"!

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Unveiling of the tablet to the Famous Five, June 1938. From left to right: (back row): Hon. Senator Iva Fallis; Hon. Senator Cairine Wilson; (front row) Mrs. Muir Edwards (the daughter-in-law of Henrietta Muir Edwards); Mrs. J.C. Kenwood (the daughter of Emily Murphy); Rt. Hon. W.L. Mackenzie King; Mrs. Nellie McClung
© Eugene M. Finn / National Film Board of Canada. Photothèque / Library and Archives Canada / C-054523

Refusing to accept defeat, the Famous Five persuaded Prime Minister Mackenzie King to appeal the decision to the Judicial Committee of England's Privy Council — then Canada's highest court of appeal. In 1929, the Judicial Committee unanimously reversed the Supreme Court ruling. Women were, in fact, entitled to all the rights that Canadian law gave to "persons." In 1930, a Senate seat was open in Ontario, and Mackenzie King appointed a liberal, Cairine Wilson, to become the first female senator.

Although none of the Famous Five were ever appointed to the Senate, they still won a significant political victory for Canadian women. Emily Murphy, Nellie McClung, Louise McKinney, Mary Irene Parlby and Henrietta Muir Edwards have been nationally commemorated for their contributions to the women's movement and, in 1997, the Minister of Canadian Heritage recognized the "Person's Case" as an event of national significance.

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