In 1916, Emily Murphy became the first female magistrate in Canada and the British Empire.
Not long after taking her seat on the bench, however, Murphy encountered resistance from a male lawyer who believed she was unable to preside over the case. He didn’t take issue with her qualifications, rather, he believed Murphy was unfit to sit on the bench because she wasn’t a person.
Using the strictest interpretation of the British North America Act, he argued women were not persons in a legal sense because the pronoun “she” was not explicitly used in Canada’s constitutional document. Although Murphy successfully countered this dubious claim, the issue did not go away for her. As long as the archaic wording in the constitution was upheld, men continued to challenge her authority on the grounds that she was a woman.
Meanwhile, beyond Murphy’s courtroom, the obtuse phrasing in the British North America Act prevented women from holding positions in public office, such as the Senate. Despite Murphy’s efforts throughout the decade to change the eligibility requirements so that she and other women could be appointed to the Senate, the federal government consistently refused.
Thinking outside the box, Murphy found a loophole in Supreme Court of Canada Act, that noted five people, acting as a unit, could bring constitutional matters to Canada’s highest court. With this discovery, Murphy, along with Henrietta Muir Edwards, Irene Parlby, Nellie McClung and Louise McKinney formed what would become known as the “Famous Five” and took their case to the Supreme Court of Canada in April 1928.
Their hopes, however, were dashed when the court sided with the constitution, ruling that if the term “person” was meant to include women, it would have been spelled out explicitly in the constitution.
Undeterred, the Famous Five took their fight to the Judicial Committee of the Privy Council (JCPC) in London, England, the highest court in the Dominion.
Although it has become known as the “Persons Case,” at the time, it was simply known as Edwards v. Canada, since Henrietta’s surname would have been listed first on the documents by virtue of alphabetical order. On Oct. 18, 1929, the JCPC overturned the Supreme Court’s initial decision and ruled that women were indeed persons.
Under that landmark ruling, one of the judges, Lord Sankey, argued that despite its wording, the constitution should be viewed as, “a living tree capable of growth and expansion within its natural limits.” For him, the Supreme Court of Canada’s interpretation of a “person” was far too narrow.
Despite their important role in the historic decision, when it came time to select the country’s first female senator, Prime Minister Mackenzie King passed over both Murphy and McClung.
Instead, a few months later, Cairine Wilson was sworn in as Canada’s first female Senator. During her time in office, Wilson also served as the president of the League of Nations Society of Canada and the chair of the Canadian National Committee on Refugees. Her role in the latter position proved to be a thorn in the side for King as she, rightfully, criticized the federal government for not accepting Jewish refugees fleeing Nazi persecution.
Outside of her tenure in the Senate, Wilson continued to make history. In 1949, she became Canada’s first female delegate to the United Nations General Assembly.
Today, Canada marks the anniversary of the landmark ruling by observing Persons Day. It is a poignant reminder about the barriers that Canadian women have overcome and how that today, perhaps more than ever, women’s voices matter.
While Persons Day honours these accomplishments, it’s also an important time to reflect on how we commemorate this moment in history, and how historical people are usually far more complicated individuals than the narrow framing we usually apply to them.
For Dr. Linda Ambrose, professor of history at Laurentian University, teaching her students about the Persons Case is an important entry point for a discussion about how we represent history and frame our narratives, especially when it comes to the Famous Five.
“As much as they help us celebrate our feminist values, they also help us, as historians, complicate the story because we don’t celebrate everything about them,” she told me. “I’m a feminist to the core, I celebrate Persons Day with all my heart, but there are things about some of the individual women in the Famous Five that I can’t celebrate.”
In particular, while Nellie McClung and Emily Murphy are forever tied to the Persons Case, they are also remembered for the role they played in advancing the eugenics movement in Canada.
With their support, the country established a Eugenics Board in 1928, which was responsible for the forced sterilization of nearly 3,000 Canadian men and women until it was disbanded in 1972.
Properly framing the Famous Five, particularly McClung and Murphy, is important, but so too is the legacy of the Persons Case. Some have dismissed it largely a symbolic victory because they contend it did little to change or improve women’s equality in Canada.
Although Cairine Wilson may have been appointed to the Senate, these types of advancements were reserved largely for well-to-do white women. At the time, many women could still not vote. Asian Canadians did not receive the franchise until the late 1940s, while Indigenous peoples were denied the ballot at the federal level until 1960 and even as late as 1969 provincially. As a result, any of the doors that may have been wedged open, remained firmly closed for some women.
While the short-term impact may have been limited, Ambrose contends the Persons Case needs to be assessed in Canada’s broader history.
“The Persons Case, plus Agnes Macphail getting elected , plus the right to vote , those three things together, each one was a significant event, but incrementally it sort of normalized the idea of women in public life, and not just in those elite roles as senator, a parliamentarian or even a voter. It legitimized things that women had been doing at the local level for a long time,” she said.
But one of the most important things Ambrose likes to remind her students of is that the Persons Case was really not that long ago. Before beginning her lecture on the subject, she always tells her students that her mother was born in 1923, meaning this was something that happened in her mother’s lifetime.
“To young adult learners that we’re teaching in our classrooms, it would be their great grandmothers, it’s not that long ago. We need that not to be lost on us,” Ambrose reflected.
Canadians will interpret the Persons Case and its place in history in different ways, but regardless of your perspective, today pays homage to perseverance to these five women who wouldn’t take no for an answer. Although their case failed and failed and failed and failed, they never gave up. Instead, they relentlessly pushed their initiative forward until it was heard in the highest court in the Dominion.
Eighty-eight years later, their spirit of activism, determination, and resiliency are the characteristics we should be striving to impart in the next generation of girls and women.
Beyond celebrating Persons Day, October is also Women’s History Month in Canada. Here in Sudbury, Ambrose and her colleagues at Laurentian are collaborating with the Ontario Women’s History Network to host a weekend conference, which focuses on Indigenous Women and Education. The conference begins on Friday and runs through Saturday. For more information, click here.
More #Canada150 moments from this month
October 1, 1951: Charlotte Whitton was elected mayor of Ottawa, becoming the first female mayor of a major city in Canada. Fifteen years earlier, Webbwood’s Barbara Hanley made history when she became the first female mayor in Canada. While Whitton made important contributions through her work with children and advancing women’s equality in Canada, her legacy also includes accusations of racism and anti-Semitism.
October 19, 1937: Marilyn Bell was born in Toronto. At the age of sixteen, she became the first person to swim across Lake Ontario. Bell hopped in the water at Youngstown, New York, and 21 hours and 51.1 kilometers later, she arrived in Toronto. It was no easy dip. Besides fighting off exhaustion, Bell also had to combat lampreys and oil slicks. Following her successful Lake Ontario swim, Bell continued to make waves. A year later, she became the youngest person to swim across the English Channel.
October 21, 1944: Hollywood star Shirley Temple joins Prime Minister Mackenzie King in Ottawa as part of a special ceremony to drum up support for a Victory Loan campaign during the Second World War. The 16-year-old actress received a warm welcome and told the crowd how thrilled she was to be invited to Ottawa to speak on behalf of Canadian children to rally behind the important cause. Following her career as an actress and singer, Temple entered the world of diplomacy. In 1969 she was appointed as a delegate to the 24th United Nations General Assembly and later served as the United States Ambassador to Ghana.
October 22, 1958: Margaret Meagher made history on this day when she was appointed ambassador to Israel, becoming Canada’s first female emissary. A teacher by training, the Halifax native entered diplomacy during the Second World War when she joined the Department of External Affairs. Meagher served in Israel until 1961, at which point she was concurrently appointed as the Canadian high commissioner to Cyprus, before heading up embassies in Austria (1962-66) and Sweden (1969-73). Meagher continued to set firsts throughout her career. In September 1964, she was elected chairperson of the twenty-six country International Atomic Energy Agency, becoming the first woman to assume that role. Not long after her nuclear appointment, she became Canada’s first resident High Commissioner in Nairobi, Kenya.
In honour of Canada’s sesquicentennial this year, Sudbury.com, with the help of our resident historian Dr. Mike Commito, is going back to the archives each month throughout 2017 to highlight some important memories and events in our nation’s history. We hope to provide you with some interesting stories about our past as we collectively celebrate, and analyze, what #Canada150 means.