Persons case: a struggle for legal definition & personhood.

White, Anne

On 18 October, 1929, five Alberta women achieved a historic ruling from the highest court of the British Empire - the British Privy Council.(1) This precedent-setting decision changed the Canadian legal definition of the female person under the British North America Act and became known as the Persons Case. The Privy Council ruling on behalf of the appellants recognized the identity of the female person within the full ambit of the British North America Act.

From a historical perspective the issues, arguments, and social context surrounding this case are complex, addressing both the strict legal definition of "person" under the BNA Act, and the public perception of the issues surrounding the identity of female persons under the law. These themes can be identified through historic events and the interpretations given them by the commentators and purveyors of popular public sentiment as found within the press and women's magazines.

Within the historical context, the public debate over the term "person" pertaining to female legal status began in Alberta with opposition to the appointment of two female police court magistrates and their identity under the BNA Act. (2) The women were Emily Murphy from Edmonton, appointed in June 1916, and Alice Jane Jamieson from Calgary, appointed in January 1917. Initially, both women faced strong opposition from defence lawyers who argued that female magistrates did not possess authority to hear cases because as women they were not themselves classified as full persons under the law.

The objection was first recorded as being raised during Murphy's first morning as presiding judge. Murphy's opponent in this instance was a leading Edmonton criminal lawyer named Eardley Jackson, who based his opposition to her hearing his case on an 1867 Supreme Court of Canada ruling which stated that,

... Women are persons in matters of pains and penalties but are not persons in matters of rights and previleges. (3)

This argument proved to be a very popular one with defence lawyers and spread to Calgary where Jamieson was confronted with the same opposition. In Jamieson's circumstances, the issue proceeded further as a trial over which she had presided went to appeal before the Supreme Court of Alberta in 1917. The grounds for this appeal were two-fold: first and primarily, that as a woman, Jamieson was "not a police magistrate" and possessed "no capacity for holding the appointment of police magistrate." Second, that she had erred in law and her judgment was therefore incorrect. (4)

On 23 November 1917, the Alberta Supreme Court rendered its decision in favour of Police Magistrate Jamieson. This was a precedent-setting decision in that it found that there were many Albertan municipal Acts as well as the Equal Suffrage Act of Alberta (1916) which stated that women had the same "rights and privileges" as men and in conclusion, their Lordships stated,

... that applying the general principle upon which the common law rests, namely that of reason and good sense as applied to new conditions, this Court ought to declare that in this province and at this time in our presently existing conditions there is at common law no legal disqualification for holding public office in the government of the country arising from any distinction of sex... (5)

Notwithstanding this interpretation of the law, the challenge to the female magistrates continued. It became evident that even with various provincial suffrage Acts between 1916 and 1925, and the dominion franchise in 1918, the identification of the female person under the BNA Act was still at issue. Within the BNA Act the term "person" continued to be described by employing a masculine pronoun or adjective, despite the fact that various sections pertaining to "pains and penalties" were interpreted to include the female person. Thus, despite the provincial and federal political gains made by women through voting rights and the right to stand for office, their full legal standing pertaining to rights and privileges remained ambiguous. (6)

By 1921, the issue regarding the legal definition of "person" had developed to focus upon Section 24 of the BNA Act. This section dealt with Senate appointments within the Canadian government and stated that "properly qualified persons may from time to time be summoned to the Senate." The stipulations surrounding a "qualified person" were that one had to be a British citizen, at least thirty years of age, and possess $4,000 in real property. There was no reference to gender. The ambiguity regarding the gender of a "qualified person" gave rise to the debate over the eligibility of women for this position. The question was raised that if women could be appointed to positions of judicial standing, municipal leadership, and sit as MLA's and MP's, could they automatically also stand for appointment to the Senate of Canada?

Contrasted against these socio-political realities stood an 1876 ruling which rendered women non-persons in matters of rights and privileges. A question was raised as to whether the Canadian Government would need to amend the BNA Act and introduce a clear definition of equal female status within the Act. (7)

Canadian women's groups took up the issue. On 21 February 1921, Mrs. Elizabeth Bailey Price, as publicity convener of the Federated Women's Institutes of Canada, wrote to the Hon. Charles J. Doherty, Minister of Justice, in Ottawa, asking,

... if women senators can be appointed under the British North America Act, or would this Act have to be amended? (8)

Groups such as the Woman's Christian Temperance Union (WCTU), the Federated Women's Institutes of Canada, and the National Council of Women of Canada (NCWC) pressed the Canadian government and respective prime ministers, Sir Robert Borden, Arthur Meighen, and finally William Lyon Mackenzie King, for amendments and clarification of the Act. (9)

In 1921, the National Council of Women of Canada convened in Calgary. Representing 450,000 Canadian women, the NCWC secretary, Mrs. Price, wrote to the Hon. C. J. Doherty, Minister of Justice, informing him of the resolution made by the council on 16 June, that "women be forthwith appointed to the Senate of Canada," and that the council suggested Emily Murphy for the position. (10)

The WCTU also circulated a national petition requesting the appointment of women to the Senate. (11) This petition was signed by both women and men, and was submitted to Prime Minister W. L. Mackenzie King in 1923. (12)

Despite the campaign for a female senatorial appointment, nothing was done by the Canadian government to clarify the situation and there was no forthcoming amendment to the BNA Act. Since any amendment had to be agreed to by all provinces, a stalemate ensued as most provinces displayed little interest in the issue. (13) The unresolved situation continued until 1927 when Emily Murphy's brother, the Hon. Justice William Nassau Ferguson, K.C., discovered that a provision existed in Section 60 of the Supreme Court Act, which allowed any group of five interested persons to petition the court for clarification on a constitutional point of law.

Emily Murphy contacted four prominent Alberta women whose names were known to many women's groups throughout Canada. These were Nellie McClung, Henrietta Muir Edwards, Louise McKinney, and Irene Parlby. On 27 August 1927, the women met at the home of Emily Murphy and signed the petition. (14) The petition itself followed the same format as previously enunciated by the Federated Women's Institutes of Canada and the Woman's Christian Temperance Union. (15) It was sent to the Ministry of Justice in Ottawa where it was reworded to read more narrowly. The revised petition asked specifically, "Does the word `person' in Section 24 of the BNA Act include female persons?" The five women petitioners agreed that this version be presented before the Supreme Court of Canada. (16)

On 28 March 1928, Newton Wesley Rowell, K.C., acting as the women's counsel and backed by the Attorney General of Alberta, appeared before the Supreme Court of Canada in Edwards vs. The Attorney General of Canada. Among other points of law, Rowell argued that under the British Interpretations Act (1850), which was in effect prior to the BNA Act, all words denoting the masculine gender automatically included the feminine gender unless otherwise specifically stated. (17) Rowell also argued that the Dominion Elections Act of 1920 had quoted the Interpretation Act when it declared that the word "persons" in Section 41 of the British North America Act must be interpreted to include females. As a result of the 1920 Elections Act women had become eligible for election to the House of Commons.

In opposition to the petition, the Federal Crown and the Quebec counsel argued that at the time of Confederation and the implementation of the BNA Act, no one had intended or envisaged that women would hold public office. (18) Therefore, the correct reading of Section 24 of the BNA Act must be interpreted to exclude women as persons and render them ineligible for appointment to the Senate. (19)

On 24 April 1928, the Supreme Court of Canada found unanimously in favour of the Crown. In the decision, Chief Justice Anglin stated that women, along with children, criminals, and the insane were not persons under the strict interpretation of the BNA Act and were therefore ineligible to sit in the Canadian Senate. (20) The decision was a tremendous disappointment to many interested groups and individuals. Mary Ellen Smith, an MLA from British Columbia, wrote a letter to Emily Murphy after the decision and in it she said,

The iron dropped into the souls of women in Canada when we heard that it took a man to decree that his mother was not a person." (21)

After due consideration of the judgment, it was decided that the five women should appeal the decision and in this they were backed by the Attorney General of Alberta and the now sympathetic Dominion Government of Canada. The appellants took their case to the highest court of appeal in the British Empire which was the Judicial Committee of the Privy Council in England.

It was at this point that the Canadian campaign was assisted by developments within the British parliament itself. In British parliamentary circles Margaret Bonfield was gaining prominence. She had previously headed the Bonfield Inquiry into juvenile immigration to Canada and her recommendations had led the Canadian government to adopt a three-year moratorium on juvenile immigration for those under fourteen years of age. In June 1929, the Right Hon. Margaret Bonfield was appointed Minister of Labour and became the first female member of the British Privy Council. (22)

One month later in July 1929, Rowell presented the appeal before the Judicial Committee of the Privy Council. Their Lordships Sankey, Darling, Merrivale, Tomlin, and Sanderson reserved judgment for three months. When the Privy Council reconvened on 18 October 1929, they rendered a lengthy ruling in favour of the appellants stating that,

The word "persons" in Section 24 does include women and that women are eligible to be summoned to and become members of the Senate of Canada

and that,

...the exclusion of women from all public offices is a relic of days more barbarous than ours. (23)

Further in their historic decision, their Lordships declared that,

The word "person" as above mentioned may include members of both sexes, and to those who ask why the word should include females, the obvious answer is why should it not." (24)

The decision was reported extensively in the Canadian press. In Calgary, both The Albertan and the Calgary Herald covered the proceedings in detail. This was also the case for the Edmonton Journal, the Lethbridge Herald, the Red Deer Advocate, the Regina Morning Leader, the Montreal Gazette, the Toronto Globe, the Vancouver Sun, and the Western Producer. In addition, there was coverage by popular Canadian periodicals such as Farm and Ranch Review and The Chatelaine.

The print media covered two basic themes. First, the narrowly defined historical, legal issues and the ramifications of women's access to the Senate. Second, for public consumption the press adopted a practical approach to this civil rights cause. As the press and many of the public perceived the issue, the crux of the matter revolved around the struggle for recognition and equality of the female person under the law. According to the press and the "Famous Five" -- as the five women were now dubbed -- the Persons Case was an important issue for many Canadians because it challenged entrenched legal definitions and ultimately achieved recognition of women's identity as "persons."

From a pragmatic perspective, not many women would aspire to a senatorial position, but the lasting significance of the case for those who cared about identity did not lie in senatorial appointments. What had originally been a narrow legal issue had now been expanded upon by many to reflect the need for equality, identity, and dignity. The initial opposition towards women was moulded into a campaign which reflected the female humiliation of being classified as a non-person and that this discrimination had been exercised by the Supreme Court of Canada, the Canadian government, and to varying degrees, every provincial government excluding Alberta. The supreme court ruling had dismissed women's identity and this had been deeply offensive.

The British Privy Council was keenly aware of the issues in Canada and also of the presence of the Hon. Margaret Bonfield within their own midst. The ruling of the Judicial Committee of the Privy Council reflected this awareness when it acknowledged women as "persons" and overturned the Canadian supreme court decision.

These underlying sentiments were conveyed and emphasized by the press. On 18 October 1929, The Calgary Daily Herald reported Emily Murphy as saying,

That the members of the judicial committee of the Privy Council have given a wider and more favorable interpretation to the word `person' than that of the honorable members of the Supreme Court of Canada, is a matter of much gratification to myself and my co-appellants in Alberta. The same is applicable to all the women of Canada whom we have had the high pleasure to represent in a long and somewhat arduous struggle for full political rights. (25)

In an article entitled "So A Woman's A Person," the front page of the Regina Morning Leader read,

The average man may not be able to digest mentally the fine points of the law involved in the argument that went on as to whether a woman is a person in relation to the Senate of Canada but it [sic] will freely concede that common sense is altogether on the side of the decision of the Privy Council that a women is a person... The strange thing about it all is that it was necessary for the women of Canada to go to the courts to establish that point. (26)

Nellie McClung, in an article written for the Farm and Ranch Review, expounded on the same point. (27) Addressing the recent Privy Council decision, and perhaps the studied ignorance of numerous Canadian females, she wrote that many Canadian women received a shock when reading their newspaper on 18 October 1929 as,

...they read on the first page in bold black type that the Lords of the Privy Council had declared them to be Persons. That was not the shock. The shock came in the implication that they had not always been persons...

Byrne Hope Sanders, editor of The Chatelaine magazine in 1929, also commented on the issues of female equality and freedom underlying the Persons Case. Sanders wrote that the magazine was intensely interested in the Privy Council ruling since it marked "the removal of the final barrier between woman and her freedom." One thing Sanders did express concern over, however, was the "apathy of women themselves," observing that it was,

a sadly well-known fact that the proportion of women who vote is tragically small when one considers the bitter struggle that was made for the privilege such a few years ago.

The editor further wondered if women would lose interest in political participation now that they had the satisfaction of "entering another erstwhile holy of holies." (28)

Sander's concern appears to have been shared by the Famous Five. When they spoke at a celebration luncheon held by the Women's Canadian Club on 23 January 1930, each woman emphasized the need for women to continue active participation in social issues. (29) The five women consistently emphasized that equality was something to be used for the good of all -- not merely to be possessed in a state of apathy. They also urged Canadian women to work together to build a better country and a better world. (30)

After only three speaking engagements after the Privy Council decision there appears to have been speedy closure to the celebrations. The Famous Five resumed their normal lives and the Persons Case faded into Canadian history. Louise McKinney and Henrietta Muir Edwards died two years later in 1931. On 26 May 1931, Cairine Wilson from Ottawa was appointed as Canada's first female senator. In 1933, Emily Murphy died of complications due to diabetes. None of the five Alberta women was ever appointed as a senator.

Historically, the Persons Case stands as a landmark decision in Canadian history. In theory, it opened the way for women to participate in all levels of government. From a human rights perspective, it acknowledged in principle, if not always in harsh reality, that Canadian women were "persons" and as such possessed dignity and identity under the law.

Anne White is a resident of the Cochrane area and has been involved with the Famous Five Foundation for three years. She is currently a doctoral student at the University of Calgary.

NOTES

(1) The five women were famous Canadian social activists:

Henrietta Muir Edwards (1849-1931) - suffragist, legal expert on the status of women, vice-president of the National Council of Women - responsible for organizing Local Councils in Alberta, artist, co-founder of the Victorian Order of Nurses.

Nellie McClung (1875-1951) - suffragist, writer, journalist, Liberal MLA for Edmonton (1921-1926), first female director of the Board of Governors of the CBC (1936), delegate to the League of Nations in Geneva (1938).

Louise McKinney (1868-1931) - Leader of the Alberta Women's Christian Temperance Union, first woman to serve as a Member of the Legislative Assembly in the British Empire (1917), sole female representative to sign the Basis of Union for the United Church of Canada (1925).

Emily Murphy (1868-1933) - suffragist, first female police court magistrate (1916), leader of the Persons Case, author (pseudonym Janey Canuck).

Irene Parlby (1868-1965) - Suffragist, advocate for rural women in Alberta, first president of the United Farm Women of Alberta (1916), first female cabinet minister in Alberta (1921), delegate to the League of Nations in Geneva (1930).

(2) 19 June 1916, Emily Murphy was appointed as a police magistrate. It marked the first appointment of a women in that capacity throughout the British Empire.. See: Marjorie Norris, A Leaven of Ladies: A History of The Calgary Local Council of Women, Calgary: Detselig Enterprises Ltd., 1995, p 169. On 1 January 1917, Alice Jane Jamieson was appointed in the same capacity in Calgary. Prior to this, in 1914, Jamieson had been appointed as a juvenile court magistrate in Calgary. Although the 1915 appointment was of lesser jurisdictional authority, it still marked a historic achievement as Jamieson was the first female magistrate to be appointed anywhere in the British Empire. See "Mrs. R. R. Jamieson Is First Woman Judge of Juvenile Court," Calgary Herald, 24 January 1914; Donna James, Emily Murphy, Don Mills: Fitzhenry & Whiteside Limited, 1997, p 43.

(3) Chorlton v. Ling, L.R., 4 CP. 374; 38 L.J.C.P. 25; 19 L.T. 534. The British North America Act (1867) consists of English common law, decisions made by judges, and Acts of the British and Canadian parliaments (Statutes). In 1876, an English judge ruled that women were not persons in matters of rights and privileges. This ruling had never been formally challenged within the BNA Act and consequently had never been amended. The ruling formed part of the corpus of Canadian law.

(4) R. v Cyr (Waters), 1917 CarswellAlta 98, 12 A.L.R. 320 (1917); 3 W.W.R. 849; 29 C.C.C. 77; 38 D.L.R. 501.

(5) Carswell, para 46, p 10.

(6) Excluding Quebec, white women had the right to vote and stand for office.

(7) The BNA Act outlines the distribution of legislative powers between the federal and provincial governments. Each province was a partner in the Act therefore each province had to agree to amendments within it. See James, p 52.

(8) Mrs. E. B. Price, Calgary, to Charles to J. Doherty, K.C., Ottawa, 18 June 1921. Doherty papers, National Archives of Canada, RG13. vol 2425.

(9) Mrs. Leila G. Geggie, Quebec, to William Lyon Mackenzie King, ca. January 1923. Doherty papers, NAC, RG13, vol 2425. Robert J. C. Stead, Ottawa, to Deputy Minister, Department of Justice, Ottawa, 3 May 1924. Letter discusses NCWC and its request for the appointment of a woman to the Senate. Stead mentions the NCWC was informed that no appointment could be made without amendment to the BNA Act. Doherty papers, NAC, RG13, vol 2425.

(10) Mrs. Elizabeth Price, Edmonton, to the Hon. C. J. Doherty, Ottawa, 18 June 1921. Doherty papers, NAC, RG13, vol 2425.

(11) Private Secretary, Ottawa, Ont. to Mrs. Leila Geggie, Quebec, 15 January 1923. Doherty papers, NAC, RG13, vol. 2425.

(12) Prime Minister Mackenzie King promised changes within the BNA Act to incorporate women as persons. This was not done. See James, p 52.

(13) Excepting Alberta and Quebec, the other provinces showed little interest in the Senate question. The Alberta Supreme Court had already rendered its interpretation in 1917. The Province of Quebec firmly rejected any change to the status of women. See Gunilla Mungan, "Alberta Had Settled the Issue 12 Years Earlier," Calgary Herald, 18 October 1979.

(14) Petition under Section 60 of the Supreme Court Act, R.S.C. 1906, Cap. 139. Dated 27 August 1927.

(15) Ibid.

(16) The Attorney General of Alberta supported the petition of the five women, paying the legal costs.

(17) Bob Ward, "Women Not Legally `Persons' Until 1929," Lethbridge Herald, 18 October 1969.

(18) Apart from Alberta, Quebec was the only other province to send representation. Quebec opposed women being recognized as persons. See Judith Lishman, "Her Honor, Sir, Was Not A Person," The Calgary Herald, n.d., p 15. The Persons Case File, Glenbow Library.

(19) James, p 56

(20) Treasured Memories Exhibition, National Archives of Canada, RG 125, vol. 563, file 5426.

(21) Mary Ellen Smith was Liberal MLA for Nanaimo and would later become a cabinet minister. Lishman, "Her Honour, Sir, Was Not a Person," The Calgary Herald, n.d., p 16. See also "What is a Capable Woman," The Chatelaine, 30 March 1930, Vol. III, Number 3.

(22) Charlotte Whitton, "The Right Honourable Margaret: The dramatic story of the Empire's First Woman Privy Councillor," The Chatelaine, Vol. II, August 1929, Number 8.

(23) Henrietta Muir Edwards and Others vs. The Attorney General of Canada and Others. Privy Council Appeal No. 121 of 1928, p 2.

(24) Ibid., p 10.

(25) "Mrs. Murphy Says Decision Helps National Unity," The Calgary Daily Herald, 18 October 1929.

(26) "So A Woman's A Person," The Morning Leader, Regina, 19 October 1929.

(27) Nellie L. McClung, "Now That We Are Persons," Farm and Ranch Review, n.d., Provincial Archives of Alberta, 91.60 S.

(28) Byrne Hope Sanders, "To the Chatelaines of Canada: Applause for Their New Status as Persons," The Chatelaine, December 1929.

(29) At the time of the final decision in the Persons Case, Murphy, McKinney, and Parlby were each sixty-one years of age, McClung was fifty-six and Muir Edwards was eighty.

(30) "Prominent Alberta Women Speakers at Canadian Club," The Albertan, 23 January 1930.