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October 18, 1929 Persons Case

December 22, 2004

Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges.

— 1876 British court ruling

Five women who wanted to be persons in “matters of rights and privileges” changed the legal world for women in Canada on October 18,1929.

Today, the women of LEAF (Women’s Legal Education and Action Fund) continue to change the laws of our land affecting women.

To all the women of Canada who have gone to court to seek justice and laws that work in the lives of women, we owe a great deal.

It started with the first women’s constitutional law case, the Persons Case.

In 1916, two women in Edmonton, AB, from the local Council of Women’s law committee, were sent to observe the trial of prostitutes who were rounded up in very suspicious circumstances. The women were asked to leave the courtroom – on the grounds that the testimony would not be “fit for the ears of ladies.”

In response, the local Council of Women campaigned for a Women’s Court to try cases involving women, and Emily Murphy was appointed its first magistrate in June of 1916. Murphy was the first woman magistrate in the British Empire.

On her first day in court, Judge Murphy gave a bootlegger a stiff sentence. The bootlegger’s lawyer challenged Emily’s ruling and authority – on the grounds that she was not a person. He based his case on the 1876 English common law which stated, “women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges” and said, “... since the office of magistrate is a privilege, the present incumbent is here illegally. No decision of her court can be binding.”

Judge Murphy is said to have stayed calm, making a note of the lawyer’s objection and then proceeding with the case. Every time this lawyer appeared in her court, he repeated his objection to Judge Murphy. Magistrate Alice Jamieson of Calgary’s juvenile court was similarly challenged in 1917. So, in 1917, the Alberta Supreme Court, on the grounds of “reason and good sense” held the provision that “there is no legal disqualification for holding public office in the governments of this country on the basis of sex.” The authority of Judges’ Murphy and Jamieson was upheld.

This ruling also established that in Alberta, women were persons. But this wasn’t so at the federal level. The federal government would not appoint a woman to the Senate, because the British North American (BNA) Act said, “the Governor General shall ... summon qualified persons to the Senate” and women were not persons.

These were the times when:

  • In 1917, Louise McKinney and Roberta MacAdams were elected to the Alberta Legislature. They were the first women elected to a political assembly in the British Empire.
  • In 1918, some women in Canada were granted the right to vote in federal elections. It took until 1960 for all Canadian women to have the right to vote.
  • In 1919, a British subject who married an “alien” was permitted to keep her citizenship.
  • In 1921, Agnes Macphail is the first woman elected as a Member of Parliament.

Over the next ten years – 1917–1927 – there were repeated requests by individuals and women’s groups – like the National Council of Women of Canada, the Federated Women’s Institutes of Canada and the Montreal Women’s Club – for the appointment of a woman to the Senate.

Arthur Meighen was the Prime Minister. The Department of Justice told him that the appointment of a woman was impossible under the British North America Act (the “BNA Act” – a statute of the British Parliament setting out the government structure of Canada which has been since 1982 part of the made-in-Canada Constitution of Canada). The BNA Act said that only “qualified persons” could be appointed to the Senate. William Lyon MacKenzie King, the next Prime Minister, wouldn’t appoint a woman either. Both prime ministers promised to make changes in the BNA Act. But they didn’t.

In 1927, Murphy decided to do something about this. She learned from her lawyer brother that the Supreme Court of Canada Act said that “five interested persons” could ask the Court for an interpretation of any part of the BNA Act. If the petition were accepted, all expenses would be paid for by the government. She learned an important lesson: if governments won’t legislate in our favour, women have no option but to litigate. And so she did, and so we do now through LEAF.

Emily Ferguson Murphy got together with four of her Alberta friends – Nellie Mooney McClung, Louise Crummy McKinney, Irene Marryat Parlby and Henrietta Muir Edwards (who was 78 at the time). They sat on Emily’s porch on 88th Street in Edmonton one August afternoon in 1927, sipping tea and eating slices of date and nut loaf (recipe below). Then they signed and dispatched the historic petition that created the earliest test case in women’s constitutional litigation. This test case would eventually see women declared legally as persons.

Emily Murphy’s
Date and Nut Loaf

from Edmonton Bulletin
May 4, 1930
Tested in the CoolWomen kitchen – it was heavy and hard in the style of the time!

4 cups flour 1 cup chopped walnuts
1 cup sugar 1 cup chopped dates
2 cups milk 1 teaspoon baking soda
Pinch of salt 1 egg, well-beaten

Let rise for 20 minutes in a warm, dark place
Bake at 350 degrees for 1 1/2 hours
Makes two loaves.
For one loaf, use half the amount and bake for 45 minutes.

The “Persons Case” came to the Supreme Court of Canada (the “SCC”) in March 1928. The question the five Alberta women asked was “Does the word ‘person’ in Section 24 of the BNA Act include female persons?” They chose Toronto lawyer Newton Wesley Rowell (my granddad) as he was former leader of the Ontario Liberal Party and had supported women’s suffrage. Besides, some of the five knew Newton Rowell from the Methodist (later the United Church) and they trusted him. Rowell was supported in the SCC by the Attorney General of Alberta and opposed by the Solicitor General of Canada and the Government of Quebec.

On April 24, 1928, SCC Chief Justice Anglin said that, since persons required for public office must be fit and qualified, only men would be eligible for appointment.

The “Alberta Five” were angry. Nellie McClung said, “this ruling leaves us abashed, but not despairing; humbled but not hopeless. Acts can be amended and we believe they will.”

The five were determined to win. They decided to go to the final court of appeal at that time, the Judicial Committee of the Privy Council in London, England. They went with Prime Minister King’s support, and his government continued paying for the case.

On October 18, 1929, the women of Canada were finally declared persons.

Newton Rowell, after four days of argument in a quiet room at Number One Downing Street, managed to convince the judges.

Lord Sankey, Lord Chancellor of the day, said, “The BNA planted in Canada a living tree, capable of growth and expansion ... the word persons in section 24 of the BNA Act includes members of both the male and female sex ... and women are eligible to be summoned and may become Members of the Senate of Canada.”

McClung said “Ladies, hang Lord Sankey’s picture on the wall of the Community Rest Room with Newton Wesley Rowell’s beside it, and let these names and the names of the other Lords of the Judicial Committee of the Privy Council be kept in perpetual and grateful remembrance ...”

Emily Murphy told the press, “We, and the women of Canada whom we had the high honour to represent, are not considering the pronouncement as standing for a sex victory, but rather, as one which will permit our saying ‘we’ instead of ‘you’ in affairs of State.”

Murphy wanted to be the first woman appointed to Senate. But the next year, it was the Honourable Cairine Wilson of Ottawa who became Canada’s first woman Senator in 1930. The Honourable Iva E. Fallis from Peterborough, Ontario followed her. Emily must have been disappointed after all that work! It was 50 years later – in 1979 – before a woman from Alberta (Honourable Martha Bielish) became a senator.

Some women became persons under 1929 ruling. Many women, including Aboriginal, Asian and other women of colour, remained ineligible because of their race. Person’s Day is an occasion to celebrate victories and reaffirm our commitment to achieving full equality for all women in Canada.

  • 50 years later, the development of the second document of our constitution, the Canadian Charter of Rights and Freedoms, began. Women remembered these five women and the fact that our constitution is a living tree, capable of growth and expansion. Women remembered that governments give you nothing without political pressure, and that sometimes the court is the only place left to go – if there is law to support you – like Charter gender equality rights.
  • Women knew that Diefenbaker’s Bill of Rights had left many women unprotected in law. Women knew that an equality section had to be in the Charter of Rights and Freedoms. So the Charter, in 1982 came to include these provisions and others in sections 15 and 28.
  • As a result of women’s struggle for equality rights in the Charter, LEAF was formed in 1984 to sponsor test-case litigation to expand women’s equality rights in Canada. Test cases involve breaking new ground: challenging a discriminatory law or securing from the courts an interpretation of equality that fulfills the promise of the Charter of Rights and Freedoms. LEAF also watches out for any slippage in the laws around women. LEAF has taken over 110 cases to help women.
Persons Case awards

The awards were established in 1979 to celebrate the fiftieth anniversary of the judicial decision in the “Persons Case.” The Governor General’s Awards are Canada’s foremost tribute to women who make substantial contributions to promote the equality of women in the country. A ceremony is held every fall in Government House, Ottawa, to present the awards (usually five are given to women over 55 years, as well as one to a young woman).

2008 winners
Shelagh Day, Vancouver, BC
France Ennis, St. John’s, NL
Beverley Jacobs, Ohsweken, ON
Maureen A. McTeer, Ottawa, ON
Maïr Verthuy, Montréal, QC
Benjamin Barry (Youth Award), Ottawa and Toronto, ON

2007 winners
Dr. Mildred L. Burns, Montréal, QC
Élaine Hémond, Québec City, QC
Shari Graydon, Kingston, ON
Wendy J. Robbins, Fredericton, NB
Muriel Smith, Winnipeg, MB
Viviana Astudillo-Clavijo, Toronto, ON

2006 winners
Joyce M. Hancock, St. John’s, NL
Maureen Kempston Darkes, Toronto, ON
Doreen McKenzie-Sanders, Vancouver, BC
Jan Reimer, Edmonton, AB
Seema Shah, Markham, ON
Charlotte Thibault, Montréal, QC

2005 winners
Ruth Marion C.R. Bell, Ottawa, ON
Bonnie Diamond, Gatineau, QC
Aoua Bocar LY-Tall, Montréal, QC
Josephine Enero Pallard, Edmonton, AB
Erica Jamie (Samms) Hurley, Mount Moriah, NL
Muriel Stanley Venne, Edmonton, AB

2004 winners
Allison Brewer, Iqaluit, Nunavut
Léa Cousineau, Montréal, QC
Huberte Gautreau, Moncton, NB
Bonnie Sherr Klein, Vancouver, BC
Rosemary Speirs, Toronto, ON
Frances Wright, Calgary, AB
Chi Nguyen, Toronto, ON

2003 winners
Nicole Demers, Laval, QC
Eira “Babs” Friesen, Winnipeg, MB
Joyce Sandra Hayden, Whitehorse, YK
Marilou McPhedran, Toronto, ON
Jayanti Negi, Edmonton, AB
Jennifer Hustwitt, Waterloo, ON

2002 winners
Margaret-Ann Armour of Edmonton, AB
Françoise David of Montreal, QC
Elisapie Ootova of Pond Inlet, Nunavut
Michele Landsberg of Toronto, ON
Nancy Riche of St. John’s, NL
Megan Reid of Leamington, ON

To nominate a woman for this award contact:

Governor General’s Awards in Commemoration of the Persons Case
Status of Women Canada. The deadline for nominations is usually at the end of May.
e-mail: vilas@swc-cfc.gc.ca
tel. (613) 995-7835; TDD (613) 996-1322; fax (613) 943-2386

For info on the award visit Status of Women Canada.

more to consider

In 2000, a sculpture of the Famous Five was erected outside the Senate Building in Ottawa. A copy of this sculpture had been unveiled the previous year in Calgary by Adrienne Clarkson, then Canada’s second woman Governor General.

The Famous Five Foundation of Calgary raised $1,000,000 to erect these two sculptures. Frances Wright did much of the work in this endeavor, crisscrossing the country, speaking and raising money for over two years. Frances’ vision came when she explored what was written on the tomb stones of some of the Famous Five, and saw that it said nothing about their work. She then was determined to make these women known ... and she did so.

resources in this story
  • Emily Murphy: Rebel, by CHRISTINE MANDER, Simon & Pierre, Toronto | 1985
  • Firing the Heather – The Life & Times of Nellie McClung, by MARY HALLETT and MARILYN DAVIS, Fifth House Ltd., Saskatoon | 1993
  • Her Story – Women from Canada’s Past, by SUSAN E. MERRITT, Vanwell Publishing Inc., St. Catharines ON | 1993
  • Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada, by CONSTANCE BACKHOUSE, Women’s Press, Toronto | 1991
  • Mother Was Not a Person, by MARGRET ANDERSON, ed., Black Rose Books, Montreal | 1972
  • A Respectable Feminist: The Political Career of Senator Cairine Wilson, 1921–1962, by FRANCA IACOVELLA, Atlantis II, pgs. 108–23 | fall 1985
    Reprinted in Linda Kealey and Joan Sangster, eds., Beyond the Vote: Canadian Women and Politics.Toronto: University of Toronto Press, pgs. 63–85 | 1989
  • The Taking of Twenty-Eight: Women Challenge the Constitution, by PENNEY KOME, Women’s Press, Toronto | 1983

This feature was first published on section15.ca’s predecessor site CoolWomen.

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