Emily Murphy, Henrietta Muir Edwards, Louise McKinney, Irene Parlby and Nellie McClung – The Famous Five
Hey white women of Canada, ring the bells, you’ve been legal “persons” since 1929. Well hey, it was a step in the right direction anyway, and it took women working together to make it happen. Women of colour, Aboriginal women and Asian women had a ways to go and we’ve all got a long way to go still. I have to say it makes me right mad to think that there was a time when women had no status at law, but what the heck, any I’ll take any opportunity to celebrate these days. I’m thinkin’ I’m gonna try Emily Murphy’s recipe.
Here’s a history of our “Persons Case” from section 15.ca:
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.
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.