by Bruce Cherney
An important, though little known, anniversary in Canadian history has just passed. October 18 is the 75th anniversary of one of the most famous court cases in Canadian history. The significance of the case is that women were finally recognized after years of litigation as “persons.”
The women who put forward the case, now referred to as the Famous Five, have in recent years being getting more attention for their role in advancing the cause of women’s rights. For example, the new $50 bill has them on one side and a statue grouping in their honour on stands on Parliament Hill.
The fact that women were not “persons” under British law was brought to the attention of Emily Murphy on July 1, 1916, which happened to be her first day of sitting on the magistrate’s bench of the newly-created Women’s Court in Edmonton, Alberta. Defence attorney Earley Jackson, enraged at a stiff sentence given to a bootlegger client, shouted at the first woman magistrate in the British Empire: “You’re not even a person. You have no right to be holding court!”
Murphy asked Jackson to clarify his outburst. He replied that, “Under British Common Law, in a decision handed down in 1876, the status of women is this: ‘Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges.’ Therefore, since the office of magistrate is a privilege, the present incumbent is here illegally. No decisions of her court can be binding.”
Murphy noted his objection and then proceeded with the sentencing.
Obviously, Murphy was quite taken aback, later telling a friend that her first day on the bench was “as pleasant an experience as running a rapids without a guide!”
Each time Jackson appeared in court before Murphy, he made the same objection, which caught on with other lawyers when they defended clients before the female magistrate. The practice even spread to Calgary where a ruling by magistrate Alice Jamieson was similarly challenged.
Jamieson gave prostitute Lizzie Cyr a six-month hard labour sentence, the maximum term of imprisonment under the Criminal Code.
Defence attorney John McKinley Cameron blurted out, “I shall see that your decision is overruled!”
He appealed both her decision and her right to sit as a magistrate. On June 14, 1817, Alberta Supreme Court
Justice David Scott dismissed the case, but Cameron filed an application with the Appellate Division of the Alberta Supreme Court. This was also dismissed.
The Alberta Supreme Court ruled on the appeal that “there is ... no legal disqualification for holding public office in the government of this country on the basis of sex.”
The legitimacy of women judges was upheld in Alberta but they still had to bring their case to the rest of the land, which was not as liberal-minded on women’s right to hold public office.
Recognizing that Murphy was a leader in the battle against systemic inequity, the Women’s Club of Montreal in 1921 approached then Prime Minister Arthur Meighen — the only PM ever from Manitoba — to reward Murphy for her hard work through an appointment to the Senate. Meighen replied that his legal department had told him appointing a woman contravened the British North America Act so he refused to make the appointment. The act specified that only “quality persons” could serve in the Senate, and as British Common Law quite clearly stated, women were not counted among “persons.”
Amazingly, the need to be a “person” only applied to appointed government positions such as the Senate. A woman after 1917 could be elected and serve in the House of Commons.
When women received the vote, feminists of the day thought they would be able to change the world.
As renowned feminist Nellie McClung said when fighting for the vote in Manitoba: “Women have cleaned up things since time began, and if women ever get into politics there will be a cleaning out of pigeonholes and forgotten corners, on which the dust of years has fallen, and the sound of the political carpetbeater will be heard in the land.”
Women’s suffrage was more than just a move to get the vote. Suffragettes like McClung also sought to remake society through social reforms such as prohibition, child welfare, health and education legislation, and improvements to the workings conditions women laboured under.
The Women’s Christian Temperance Union was among the first to call for the vote for women, though its major platform in 1891 was prohibition. “We believed we could shape the world nearer to our heart’s desire if we had a dry Canada,” McClung later wrote. “Looking back at our life in the small town (Manitou, Manitoba) I see we owed much to the activities of the WCTU and these initials, I hasten to explain, stand for ‘Women’s Christian Temperance Union,’ and not ‘Women Continually Torment Us,’ as some have us believed.”
The Saskatchewan and Manitoba Grain Growers and the United Farmers of Alberta were organizations that also supported the vote for women. The Manitoba Grain Growers endorsed women’s suffrage in 1911.
Farm groups saw granting the vote to women as a way to combat the growing political influence of urban centres. By the 1900s, Canada was starting to transform itself from a mostly rural to growing urban society.
Labour movements also had their own agenda in supporting the cause of women’s suffrage. Getting the vote for women was seen as a method of increasing the power of labour. In particular, women were the lowest caste in the workplace, working for low wages and thus undercutting the movement’s ability to progress in its reforms. With women achieving more power through the vote, it was thought that the problem of low wages could be solved.
Women looked upon labour as a potentially strong ally in advancing their own concerns. Though, the majority of suffragettes were from the middle-class and as such opposed unionization and strikes. Their acceptance of labour support was for them merely a matter of convenience.
In Manitoba, the Conservative government of Premier Sir Rodmond Roblin was openly hostile to women’s suffrage. When the Liberals, seeing an opportunity for regime change, endorsed the vote for women, suffragette organizations endorsed the Liberals and actively campaigned on their behalf.
When T.C. Norris and the Liberals received a majority in the Manitoba Legislature, the suffragettes were rewarded with the vote on January 28, 1916, the first province to enfranchise women. Other provinces quickly followed suit — Saskatchewan in March 1916, Alberta in April 1916, British Columbia in April 1917, and Ontario in April 1917, but Quebec women were the last to get the vote in 1940 — as did the federal government in 1917, though only for relatives of those serving overseas during the First World War. All women over 21 received the vote in federal elections on May 24, 1918.
“I concede that women are entitled to the franchise (vote) on their merits, and it is upon that basis that this bill is presented to Parliament for its consideration,” admitted Prime Minister Sir Robert Borden upon the introduction of the legislation for universal suffrage.
But when little happened following the winning of the vote, a 1928 edition of Maclean’s magazine asked: “Is Women’s Suffrage a Fizzle?” (A similar title was invoked in another Maclean’s issue a few years ago, which asked whether today’s feminist movement had also fizzled out and if backlash to radical feminism was gaining ground.)
On June 7, 1917 Albertans Louise McKinney and Roberta MacAdams became the first women voted to a provincial legislature.
Canada’s first woman MP was Agnes Macphail of Ontario, who was elected in 1921 as a member of the United Farmers of Ontario (she held her seat until 1940). She declared political parties are dominated by men who “want to hog everything.” It was she who also said: “Women have to be twice as good to get half as far as men.”
“In my very early teens I saw that men did a job in the world outside their home and women did not,” said Macphail. “At fourteen I turned it around in my mind this way: a woman has children — the boys do things and the girls marry and have children —and I asked myself: ‘Does this thing never end in a woman being a person and making a contribution in addition to, or in place of, having children?’”
When asked why she never married, Macphail replied, “The person could be subjected.” She said that if men were willing to give women economic freedom in the home and lived by the same standard as they expect women to live by, “the home would be preserved. If preservation of the home means enslavement of women, economically or morally, then we had better break it.”
The conflict between the sexes was rooted in the pervasive male thought at the time that a woman’s role was of nurturing —to raise a family and keep the home fires burning. By controlling the political process, the woman’s role as a homekeeper was institutionalized.
After further pressure, Meighen said he would take up the cause of appointing women to the Senate following a pending 1922 federal election, but Meighen and his Conservative Party were defeated.
The club then received a promise from the new Liberal prime minister, Mackenzie King that he would amend the BNA Act to allow women to hold a Senate seat. But, like many political promises throughout the ages, this one was conveniently forgotten.
Murphy, whose desire to become the nation’s first female senator hadn’t waned, looked to her brother and his fellow lawyers to come up with a plan to overcome the impasse. In 1927, her brother advised her that Section 60 of the Supreme Court of Canada Act allowed any five persons to initiate an appeal for clarification of any part of the BNA Act.
Murphy then joined with feminists Henrietta Muir Edwards, Irene Parlby, Louise McKenney and Nellie McClung to fight for the right to be “persons” in the eyes of the law.
Frustrated over the years at being unable to get the Canadian government to take action, the five women from Alberta brought their petition to the attention of the Supreme Court of Canada. Their argument was finally heard on March 14, 1928. But, the Supreme Court’s opinion was that Canadian women along with “children, criminals and idiots” were not legally “persons.”
In the modern concept, it is a rather surprising commentary from a panel of supposedly sage men charged with bringing justice to Canadians, but, at the time, accurately reflected the male consensus that women were fit only for raising children and keeping a home. In the Manitoba Legislature, premier Sir Rodmond Roblin, who opposed suffrage, had years before said giving the vote to women was “a retrograde movement, that it would break up the home.”
The Supreme Court in part based their decision on the fact that only male pronouns were used in the BNA Act and that in England no woman had thus far been appointed to the House of Lords.
Angered at the court’s ruling, the five then entered an appeal with the Privy Council in London, England which was then the final court of appeal in the British Empire. Canadian Prime Minister King favoured the petition and gave the five moral and financial support.
Finally on October 18,1929, the Supreme Court of Canada decision was overturned, and women were declared to be “persons.”
Lord Sankey, Lord Chancellor of the Privy Council, announced the decision of the five lords, who described the exclusion of women from federal office as “a relic of days more barbarous than ours ..., and to ask why the word (person) should include females, the obvious answer is, why should it not?”
Newspapers throughout the British Empire ran banner headlines that declared: “Women are PERSONS! “
Women now had acknowledgment of their legal status and the same rights and privileges granted to men. But, that didn’t mean that men were willing to forgo their dominance of the political process. Even a so-called egalitarian, Labour MP J.S. Woodsworth of Winnipeg, declared, “I still don’t think a woman has a place in politics.”
Unfortunately for Murphy, the first woman appointed to the Senate (1930) following the Persons Case was Cairine Wilson, who, according to Jean Bannerman, writer of the 1977 book Leading Ladies, “had done yeomen service for her (Liberal) party, but she was not a feminist ... When she heard the news Emily was bitterly disappointed. But all she said was: ‘Cairine Wilson is a good woman.’”
Murphy’s ambitions may have been thwarted, but she had every reason to be proud of the success she and the others enjoyed for making women “persons” in the eyes of the law.
Before the “persons” case was even conceived, Nellie McClung prophesied in 1915 that: “The time will come when women are economically free and spiritual}y independent enough to have their food paid for by men, when women will receive equal pay for equal work and have all activities open to them ... when free men and women will marry for love and together work for the sustenance of their family.”
When the Calgary Women’s Canadian Club held a lunch to honour the Famous Five, Louise McKinney called on women “to dream big and act honourably.”
But, despite their good work in the cause of equality for women, fame has also brought greater scrutiny. In recent years much has been made that some of the early suffragists held their own barbaric ideas—forced sterilization of the mentally ill and a belief in the racial superiority of whites.
Murphy, who wrote under the penname Janey Canuck, attacked non-white immigrants as well as Jews and Eastern Europeans. She worried that “if the white race lacks both the physical and moral stamina to protect it self, ... maybe the black and yellow races may yet obtain the ascendency.” Her 1922 anti-drug book The Black Candle is a scathing attack on the Chinese.
Murphy and McClung also toured Alberta promoting the sterilization of persons deemed mentally deficient, which culminated in the 1928 Alberta Sexual Sterilization Act. Until the act was repealed in 1972, 4,725 Albertans had been sterilized under its terms.
The Famous Five typically espoused the prevailing middle-class, white opinion of their time, believing that the Anglo-Saxon race was entitled to rule Canada as part of the British Empire.
These flaws cannot be dismissed, but the fact remains that early feminists such as Murphy and McClung, by challenging the conventional wisdom of the day, ensured that Canadian women — regardless of race — now have the wherewithal to fulfill their aspirations away from the home.