Persons Case

Persons Case, constitutional ruling that established the right of women to be appointed to the Senate of Canada. The case was initiated in 1927 by the Famous 5, a group of prominent women activists. In 1928, the Supreme Court of Canada ruled that women were not “persons” according to the British North America Act and therefore were ineligible for appointment to the Senate. However, the women appealed to the Privy Council of England, Canada’s highest court at that time, which in 1929 reversed the Supreme Court’s decision. The Persons Case opened the Senate to women, enabling them to work for change in both the House of Commons and the Upper House. Moreover, the legal recognition of women as “persons” meant that women could no longer be denied rights based on a narrow interpretation of the law.

Women, the vote, and political office

By 1927, most Canadian women were able to vote in federal elections and provincial elections (except Québec). Women first achieved the vote—and the right to hold political office—in Manitoba in January 1916, followed soon after by Saskatchewan (March 1916) and Alberta (April 1916). British Columbia and Ontario gave women the right to vote the following year (April 1917). Nova Scotia followed suit in April 1918 and Prince Edward Island in May 1922. New Brunswick gave women the vote in April 1919, although they could not stand for provincial office until March 1934. Only Québec women could not vote in provincial elections in 1927—indeed, they had to wait until 1940 for that right. Newfoundland, which was not part of Canada at the time, gave women the vote in April 1925.

In May 1918, the majority of Canadian women over the age of 21 became eligible to vote in federal elections. The following year, they received the right to stand for office in the House of Commons. In 1921, Agnes Macphail became the first woman elected to the House of Commons. However, the Senate was still closed to women. This was because of the way the Canadian government interpreted Section 24 of the British North America Act.

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Persons in the BNA Act

The British North America Act (BNA Act) of 1867—also called the Constitution Act, 1867—was the law that created and governed the Dominion of Canada. According to Section 24 of the BNA Act, only “qualified persons” could be appointed to the Senate:

The governor general shall from time to time, in the Queen’s name, by instrument under the Great Seal of Canada, summon qualified persons to the Senate; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a senator.

Qualified persons included those of at least 30 years of age who owned property worth at least $4,000 and who resided in the province of their appointment. However, the BNA Act did not specify whether “persons” included women or not. In 1867, “person” was legally understood to refer only to men. Consequently, the Canadian government had since that time interpreted “persons” in Section 24 as including men only.

They held this position in 1922, for example, when female activists in Alberta proposed Emily Murphy, Canada’s first woman magistrate, for a Senate position. Thousands across Canada (including the National Council of Women, the Federated Women’s Institutes, and the Montreal Women’s Club) supported Murphy’s appointment, and many newspapers championed her cause. Yet the government responded that even though it “would like nothing better than to have women in the Senate […] the British North America Act made no provision for women.” This was not the first time that Murphy had herself been discounted as a “person”; in 1916, on her first day as a magistrate, a lawyer challenged her on the basis that she was not a “person” and therefore not qualified to be a judge.

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The Famous 5 petition

According to Canadian legal scholar Sheryl Hamilton, five different governments from 1917 to 1927 suggested that although they would like to appoint a woman to Senate, Section 24 of the BNA Act made it impossible. In 1923, Prime Minister Mackenzie King asked Senator Archibald McCoig to propose an amendment to the Act, but the proposal was never made.

To activists, the government was using Section 24 of the BNA Act as an excuse for stalling. In August 1927, Emily Murphy invited four prominent women activists (Nellie McClung, Irene Parlby, Louise McKinney, and Henrietta Muir Edwards) to her home in Edmonton. Her plan was to send a petition to the Canadian government regarding the interpretation of the word “persons” in the BNA Act. According to Section 60 of the Supreme Court Act, a group of five persons could petition the government to direct the Supreme Court to interpret a point of law in the BNA Act. On 27 August 1927, the Famous 5 signed the letter, which was sent to the governor general. The petition asked that the Supreme Court rule on the following two questions:

1. Is power vested in the Governor-General in Council of Canada, or the Parliament of Canada, or either of them, to appoint a female to the Senate of Canada? 2. Is it constitutionally possible for the Parliament of Canada under the provisions of the British North America Act, or otherwise, to make provision for the appointment of a female to the Senate of Canada?

The minister of justice, Ernest Lapointe, believed that it would be an “act of justice to the women of Canada to obtain the opinion of the Supreme Court of Canada upon the point.” The Supreme Court was therefore directed to consider the following question: “Does the word ‘Person’ in section 24 of the British North America Act, 1867, include female persons?”

The Supreme Court (Chief Justice Francis Alexander Anglin, Mr. Justice Lyman Duff, Mr. Justice Pierre-Basile Mignault, Mr. Justice John Lamont, and Mr. Justice Robert Smith) ruled unanimously on 24 April 1928 that women were not “persons” under Section 24 of the BNA Act and were therefore ineligible for appointment to the Senate. Their decision was based on the premise that the BNA Act had to be interpreted the same way in 1928 as in 1867, when the Act was passed. It was generally accepted that in 1867, “persons” would have included men only, which was supported by the fact that women could not hold political office at that time; thus, they argued, the BNA Act would have specifically referred to women if they had meant an exception for Senate appointments.