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On November 30, the Deputy Minister of Justice replied that the proposed questions were unacceptable. First, he said, the only power allowing admission into the Senate was conferred by the BNA Act upon the Governor General. It was evident that the exercise of that power rested on the interpretation of the word “persons” in section 24. Therefore, the only relevant question was to determine if this word included women. As for the other two questions, he explained, the BNA Act does not confer any power of amendment to the Parliament of Canada.
Irene Parlby (1878-1965), suffragette and politician. She was elected president of the women’s branch of the United Farmers of Alberta in 1916 and became a member of the Alberta legislature in 1921. She was still a member of Parliament at the time of the Persons Case. Photo: Courtesy of the Glenbow Archives, Canada, Alberta. NA-2204-12
It was not until April 24, 1928 that the Supreme Court of Canada rendered its decision and declared that women were not persons. Yet, in spite of that decision, Minister of Justice Ernest Lapointe declared that women had a legal right to sit in the Senate and that measures would be taken to amend the BNA Act accordingly. But Emily Murphy was not going to wait for some hypothetical amendment. In May 1928, undaunted, she resolved to appeal to the Judicial Committee of the Privy Council in London, England, which was, at that time, the final court of appeal for Canadians. “Nothing can stop us from winning”, she wrote to her colleagues in arms.11
A copy of her May 1928 letter and a copy of the petition were sent to the Deputy Minister of Justice on July 26, 1928. Emily Murphy explained in the letter the reasons for the appeal. In the Supreme Court, she said, discussion had been centred on the meaning of the word “qualified” (used in section 24 of the BNA Act) as it applied to the word “persons”. The true issue rested elsewhere and their question remained therefore unanswered. She added, a few months later, that by appealing to the British Privy Council she had wished to remove the issue from the political arena and have it addressed from a purely legal aspect.12
On November 16, 1928, she obtained permission to appeal to the Privy Council.13 The hearing on the “Persons” case, which was postponed several times, was finally set for July 18, 1929, and continued on July 23 and 25.
The appellants had argued before the Supreme Court that nothing in the BNA Act stated that the word “persons” did not apply to women. On the contrary, the proof was that the right to vote given to women at the federal level stemmed from an interpretation of the word “persons” that included women. The Crown based its defence, however, on historical considerations and stated that, at the time the BNA Act was drafted, women could not hold public positions. There had thus been no intention in the Act of admitting women into the Senate.14The British Privy Council rejected this argument. According to the members, if in the past no women had acceded to such a position, it was because custom prevented it, and that customs became traditions stronger than law and remained unchallenged long after they had lost their raison d’être. On October 18, 1929, the British Privy Council ruled in favour of women, declaring that they were indeed persons and therefore eligible to sit in the Senate of Canada.15
The “Persons” case cost a total of $23,368.47 in lawyers’ fees, paid by the government of Canada; $21,000 was for the appeal to the Privy Council.
Four months later, in February 1930, Mackenzie King seized the opportunity to be the first leader of the Government to allow women into the Senate and appointed Canada’s first woman senator, Cairine Reay Wilson. She had been active in the Victorian Order of Nurses, the Young Women’s Christian Association, the Salvation Army, the Twentieth Century Liberal Association and the National Federation of Liberal Women of Canada. When she was appointed, she had just celebrated her 45th birthday.
Opening this male-dominated bastion to women was an investment in the future, for in 1930 their political role was still undefined. For many more years, women would be limited to voting, and few women would be elected to the Senate, the House of Commons or to provincial legislatures. The appointment of Cairine Wilson reassured the senators, one of whom said in a speech: “We of the humble and gentle sex were apprehensive that one of those strong-minded and determined women with a mission in life and a pair of horned rimmed spectacles would be appointed and we knew that if so she would immediately commence to reform a number of matters that we did not wish reformed...”16 Behind this humourous speech transpires the heartfelt sentiment of a senator from Edmonton: “Oh, we never could have had Mrs. Murphy in the Senate. She would have caused too much trouble.”17Newspapers echoed the senators’ sentiments, noting how slim the new senator was, how youthful she looked in spite of having had eight children; in one word, they all emphasized her femininity.18
Neither Emily Murphy, who had so wanted to become Canada’s first female senator, nor Nellie McClung, nor any of the Famous Five ever got to sit in the Red Chamber. In King’s opinion, Emily Murphy was “a little too masculine and perhaps a bit too flamboyant”.19 She died in 1933 without ever being appointed to the position for which she had fought so hard.
Today, a bronze plaque at the entrance to the Senate, unveiled in 1938, recalls the victory of the Famous Five. Moreover, a Governor General’s Commemorative Award, created in 1979, rewards exceptional contributions to the promotion of equality for women in Canada.
The Famous 5 Foundation [http://www.famous5.org/]
Key dates in the history of Canadian Women throughout the 20th Century [http://www.swc-cfc.gc.ca/dates/whm/index_e.html]
The Irene Parlby Fonds from the General Inventory of the National Archives
- RG 13, op.cit., attachment to Emily Murphy’s letter to the Deputy Minister of Justice, July 26, 1928.
- National Archives of Canada, Supreme Court of Canada Fonds, RG 125. See Petitioners’ Factum and Factum on behalf of the Attorney General.
- RG 13, op. cit.,Judgment of the Lords of the Judicial Committee of the Privy Council, October 18, 1929.
- National Archives of Canada, Cairine Wilson Fonds, MG 27 III, C.6, vol. 8, speech by H.P. Hill at a banquet honouring Senator Cairine Wilson.