There is a tendency among those unfamiliar with women’s history to chuckle at the mere mention of the Persons Case. The notion of going all the way to the Privy Council of Britain to find out if women were persons seems amusing, at least on the surface. When talk turns to what the case was fought for — appointment to the Senate — there is a tendency to titter because, well, the Senate is a fossil of an institution, as everyone knows. The Senate as girl power — what were they thinking?
One of the most compelling reasons to read The Persons Case is to find out what drove the women known as the Famous Five to fight to open the Senate’s doors. Readers also discover why the verdict remains one of the most important constitutional decisions in Canadian history.
What Patricia I. McMahon and Robert J. Sharpe chronicle, however, is no mere legal story. Rather, they have created a gripping drama in which the fitness of women’s appointment to the Senate is merely the backdrop. At the heart of this tale is not Canada’s constitutional landscape, but the characters whose agendas drive the plot. You’re hardly aware it’s a book about Canadian law.
Emily Murphy was an Edmonton magistrate— becoming the first woman magistrate in the British Empire in 1916— and she knew very well that she was a person. But she became irritated when lawyers came before her court and challenged her authority, arguing that, as a woman, she was unfit to hold public office under the British North America Act.
The simple way to prove them wrong would be to convince Prime Minister Mackenzie King to appoint a woman — specifically, Murphy — to sit in Canada’s Red Chamber. Murphy did what anyone seeking a Senate appointment would do: She lobbied and got her friends to lobby on her behalf.
Alberta senators were dying every few years. Yet each time another man was appointed and Murphy’s hopes were dashed, her resolve grew. So did the resolve of Canadian women’s organizations. Resolutions were passed. Petitions were signed.
And so it was that Murphy joined with four other Alberta feminists — Henrietta Muir Edwards, a successful advocate for women’s property rights; the well-known Nellie McClung; Louise McKinney, the first woman elected to the Alberta legislature; and Irene Parlby, president of the United Farm Women’s Association. Throughout the 1920s, they led a battle to have the government of Canada appoint a woman to the Senate, in part so that women would be deemed persons in all matters of citizenship and law.
Murphy comes through as a redoubtable protagonist. However, it is the deft use of supporting characters that really moves the book along. Murphy’s brother William Ferguson, a lawyer whose expertise was railway law, advised her to ask the government to direct a reference on the matter to the Supreme Court, thereby avoiding a costly case the women had no means to launch.
It turns out there were many progressive- minded men who believed in the cause — men like Department of Justice counsel Eugene Lafleur, who argued that just because the BNA Act referred to senators as “he,” that did not mean women could not be senators. The Interpretation Act of 1850, after all, clearly stated that words using a masculine gender were deemed to include females.
In 1928, the Supreme Court declared that women were not qualified as persons who could be appointed to the Senate. Undaunted, the women, represented by Newton Rowell, went to Britain. Victory finally came on October 18, 1929, when the Privy Council determined that the term “persons” in the BNA Act applies to both males and females. Half a century later, the reasoning behind the Persons Case judgment informed the creation of the Canadian Charter of Rights and Freedoms.
Reading history should always be this much fun.
— Penni Mitchell (Read bio)
Penni Mitchell is editor of Herizons magazine and the author of About Canada: Women's Rights (Fernwood Press).