The Persons Case is a historic part of women’s fight for political equality in Canada. The case is significant for establishing that interpretation of the Canadian Constitution is adaptable to the changing needs of society and for determining that “qualified persons” in the British North America Act, 1867 (BNA Act, now known as the Constitution Act, 1867) includes women. This decision paved the way in Canada by asserting women’s rights to be active in political life.
The events leading to the Persons Case began in 1916 when Emily F. Murphy was appointed as the first female police magistrate in the British Empire. Undermining her authority, lawyers challenged her position as illegal on the grounds that a woman was not considered to be a person under the BNA Act, and therefore she was unable to act as magistrate. Although the Provincial Court of Alberta would confirm Murphy’s appointment by declaring women as “persons,” this decision was not proclaimed federally.
Over the next 10 years, the federal government faced pressure from women’s groups to appoint a female senator. The government declared the appointment of a women impossible according to the BNA Act, which specified only “qualified persons” could hold a senate position. Turning to the law, Murphy found that under section 60 of the Supreme Court Act, five interested persons are allowed to petition the government for interpretation on a constitutional point.
Murphy enlisted the help of Henrietta Muir Edwards, Nellie Mooney McClung, Louise Crummy McKinney, and Irene Marryat
Parlby—now known as the “Famous Five”—who were engaged politically and championed equal rights for women.
The wording of the questions was carefully composed and reviewed by the petitioners, as demonstrated in a letter dated November 9, 1927 from Murphy to the Deputy Minister of Justice, Mr. W. Stuart Edwards. The first question asked whether the Governor General or Parliament had the power to appoint a woman to the Senate, while the second asked if it would be possible for Parliament to make a provision for the appointment of a woman to the Senate. A third question regarding how women could be appointed to the Senate was at one point considered for referral to the Supreme Court in an effort to avoid appeal on the matter but ultimately was removed.
The Supreme Court eventually answered both questions in the negative.
Murphy’s tenacity is apparent in another letter to Edwards. She cites the negative ruling as not properly addressing the petitioner’s questions as justification for appeal.
October 18, 1929 marked the day the Judicial Committee of the Imperial Privy Council in England, Canada’s highest court at the time, overturned the Supreme Court of Canada’s decision. This historic ruling proclaimed women as “persons” under the BNA Act and granted (or recognized) Canadian women’s eligibility to be appointed to the Senate. Four months after the ruling, Cairine Reay Mackay Wilson was named to the position. She served in the Senate until her death in 1962.