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The Persons Case

Without the British Privy Council, the status of women might have been ‘non-personhood’ for much longer that it was. In the 1920’s, five Alberta women went to court to have women recognized as persons under the British North America Act.

Background on the Persons Case

Prime Minister William Lyon Mackenzie King and Emily Murphy, Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Irene Parlby

Prime Minister William Lyon Mackenzie King and Emily Murphy, Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Irene Parlby

The British North America Act of 1867 (BNA) created the Dominion of Canada. The BNA use the word “persons” to refer to the plural of person and “he” to refer to once person. A ruling from British common law in 1876 stated; “Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges.”

Emily Murphy was appointed the first woman police magistrate in Alberta in 1916 but her appointment was challenged on the grounds that women were not persons under the act.

The Alberta government ruled, in 1917, that women were persons but the ruling was limited to Alberta. To move the issue forward, Murphy put her name forward as a candidate for the Senate. The prime minister of the time, Sir Robert Borden, turned her down because she was not considered a person under the BNA act.

Appeal to the Supreme Court of Canada

Years went by while women’s groups in Canada signed petitions and appealed to the federal government. In 1927, Emily Murphy appealed the ruling to the Supreme Court of Canada.  She was joined in her petition by four other Alberta women’s rights activists. Their question was “Does the word ‘persons’ in Section 24, of The British North America Act, 1867, include female persons?”

In April, 1928, the Supreme Court of Canada answered “no.” In their decision, the court said that in 1867 when the BNA Act was written, women did not vote, run for office, nor serve as elected officials. Only male nouns and pronouns were used in the BNA Act and since the British House of Lords did not have a woman member, Canada should not change the tradition for its Senate.

British Privy Council Decision

The women appealed the Supreme Court’s decision to the British Privy Council, which was the highest court of appeals at that time.

On October 18, 1929, Women are Recognized as Persons

Lord Sankey, Lord Chancellor of the Privy Council, announced the British Privy Council decision that “yes, women are persons … and eligible to be summoned and may become Members of the Senate of Canada.” The decision also said “that the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word ‘persons’ should include females, the obvious answer is, why should it not?”

1930: The Way is Clear for First Woman Canadian Senator to be Appointed

Although many people expected Emily Murphy to become the first woman appointed to the Canada Senate because of her leadership role in the court case, Liberal Prime Minister Mackenzie King appointed Cairine Wilson, an active organizer in the liberal party, to the senate in 1930.