"Persons" Controversy - Journals @ The Mount

The "Persons"
Controversy:
The Legal Aspects of
the Fight for Women
Senators
Rudy G. Marchildon
University of Victoria
C a n a d a is a country where anniversary
celebrations play a large role i n maintaining
the historical consciousness of the people. T h e
women's movement has not escaped this
phenomenon. T h u s , in 1979, the country witnessed the spawning of numerous projects,
conferences and articles celebrating the fiftieth
anniversary of the "persons case" decision.
J u d g i n g from the attention that it received, the
obvious conclusion would be that the case
represented a significant step in the evolution
of women's rights in C a n a d a as well as an i m portant
development
in C a n a d i a n legal
history.
T h e central focus of discussions of the case
has been the fact that, incredulous as it might
seem, C a n a d i a n women, until 1929, were not
legally considered to be " p e r s o n s . " B u t , like
most historical events, context is a key i n understanding the whole story. T h i s paper
focuses on two interacting forces that place the
" p e r s o n s " case i n the broader framework of
C a n a d i a n constitutional and legal history. It
examines the historical development of the persons issue in C a n a d a and illustrates the u n derlying theme of Senate reform and j u d i c i a l
mandate that influenced the final outcome. B y
treating the subject i n this manner, it becomes
apparent that the " p e r s o n s " case, although i n teresting as an issue i n legal history, does not
represent the major breakthrough that the attention it received i n 1979 w o u l d have us
believe.
In C a n a d a the " p e r s o n s " problem had a
relatively short, albeit volatile, career. It first
became an issue i n 1916, shortly after E m i l y
M u r p h y was appointed Police Magistrate for
the newly created W o m e n ' s C o u r t of E d m o n t o n . A l t h o u g h she had no formal legal
training, members of her family i n O n t a r i o
were firmly associated with that calling. H e r
brother W i l l i a m Ferguson, for example,
became a Judge i n that province i n 1916. H e r
cousin H o w a r d Ferguson, who became the
Conservative P r e m i e r of O n t a r i o i n 1923, also
practised law prior to e m b a r k i n g upon his
political career. A c c o r d i n g to her biographer,
M u r p h y had received an excellent education
and had often discussed the law with her father
and brothers. A s soon as she was appointed
Police Magistrate, she made good use of her
past experiences and set out to correct existing
deficiencies i n her legal k n o w l e d g e .
1
2
3
4
Unveiling of Tablet to Five Alberta Women who launched the Persons Case.
Participating in the 1938 ceremony with Rt. Hon. W.L. Mackenzie King—left to right: (back row) Hon. Senator
Fallis; Senator Cairine Wilson; (front row) Irene Parlby; Mrs. JC. Kenwood; Nellie L. McClung. The tablet
was located in the lobby of the Senate Chamber at the persistent urging of the Canadian Federation of Business and
Professional Women's Clubs. (Photo courtesy of the Public Archives Canada C-54523)
T h e appointment had made M u r p h y the
first woman Magistrate in the British E m p i r e .
H o w e v e r , this distinction d i d not prevent her
from h a v i n g difficulties. O n her first day in
court, an E d m o n t o n defense lawyer objected to
her presence on the bench on the grounds that
she was not eligible to hold the office because of
her sex. T h e comment was also made that this
was based on a long-standing interpretation of
the word " p e r s o n " and how it applied to
eligibility for public office. A l t h o u g h the
remark had no effect upon the outcome of the
trial, it had a profound impact upon
Magistrate M u r p h y . T h e lawyer's comment
whetted her interest and she began to i n vestigate the implications of what he had said.
T o her surprise and consternation, she found
that women under British C o m m o n L a w were
only considered to be persons i n "the matter of
pains and penalties, but not in the matter of
rights and p r i v i l e g e s . "
5
6
7
8
E v e n though the same point was brought u p
numerous times i n her courtroom, nothing
came of the matter until A l i c e J a m i e s o n was
appointed Police Magistrate for the W o m e n ' s
C o u r t of C a l g a r y . She too encountered the
" p e r s o n " arguments that E m i l y M u r p h y had
faced. T h i s state of affairs existed until 1918,
when, i n an appeal arising from the C a l g a r y
court, the Honourable M r . Justice Scott of the
Supreme C o u r t of Alberta ruled that as far as
that province was concerned, "there was at
c o m m o n law no legal disqualification for
holding public office arising from any distinction of s e x . " O f course, this Judge's decision
had little influence upon the interpretation of
" p e r s o n " i n other parts o f C a n a d a because
provincial legal decisions carry almost no
weight when they represent new explanations
of long-standing precedents such as the "persons" interpretation.
9
Whereas the Alberta decision can be seen as
a defensive action, i n that it was aimed at
m a i n t a i n i n g the rights of w o m e n to hold
positions i n the j u d i c i a r y , other activities of a
more aggressive nature aimed at gaining additional privileges for women were taking place
i n the D o m i n i o n . In 1919, partly as a response
to a heightened sense of political awareness
resulting from successes i n the
suffrage
struggle and partly as a result of vacancies i n
the Senate, the Federated W o m e n ' s Institutes
of C a n a d a and the N a t i o n a l C o u n c i l of
W o m e n petitioned the federal government to
have a w o m a n appointed to the U p p e r H o u s e .
T h e argument used by the petitioners was that
since the Senate considered legislation that affected women and children, it was only right
that women should be represented so as to
safeguard their interests i n that H o u s e .
1 0
In a sense the w o m e n were correct i n using
this argument. T h e function of the Senate is to
oversee the activities of the H o u s e of C o m mons, thereby guaranteeing that the elected
representatives do not get carried away with
spontaneous, ill-considered legislation promoted by vote-getting, crowd-pleasing rhetoric
and motives. In order to carry out this m u l t i faceted duty, Senators have a designated term
of appointment and thus, theoretically, are
above the petty squabblings and intrigues of
the House of C o m m o n s politician. Further, all
pieces of federal legislation must be approved
by
the
Senate
before
becoming law.
Significantly, however, Senators are appointed
to represent a region of the country, not a class
or group of p e o p l e . Therefore, the notion
that there should be w o m e n Senators to protect
the interests of C a n a d i a n w o m e n could be
challenged as being at odds with the actual
functions and duties of Senators.
11
12
A l t h o u g h the arguments presented by the
petitioners for the admission of women to the
Senate had considerable merit, the request was
denied. T h e basis of this refusal was not the
"Tightness" of women's representation in the
Senate, but rather, the constitutional i n terpretation of the w o r d " p e r s o n s " as it pertained to qualifying for the S e n a t e . N o doubt
this pronouncement came as a surprise to
m a n y C a n a d i a n w o m e n who had never
questioned the possibility that they were not
persons.
13
F o r the next five years considerable activity
was focused on the question of the eligibility of
w o m e n to sit i n the Senate. I n J a n u a r y 1921,
the secretary of the M o n t r e a l W o m e n ' s C l u b
wrote to E m i l y M u r p h y asking i f she would
allow her name to be put forward as that club's
nominee for the S e n a t e . In M a y of the same
year, Nellie M c C l u n g wrote to Senator W . H .
Sharper
14
T h e only objection that any person can
have to M r s . M u r p h y for the Senate is
that she is a w o m e n . She can qualify i n a
dozen different ways, each one o f them
far beyond the qualifications of the
average Senator. She is a writer, a lecturer, a public-minded citizen, a leader
among w o m e n , a w o m a n of open m i n d
and generous heart, who has done m u c h
to b r i n g about better conditions i n
Canada.
She is recognized as
an
authority i n matters of law, and above a l l ,
she is o u r choice at this time. M e n and
women all over C a n a d a , east, west, north
and south, are asking for her appointment.
15
It is important to note that this was an era
when m o u n t i n g criticism was being leveled at
the very existence o f the Senate.
The
Progressive Party had as one of its planks the
abolition of the R e d C h a m b e r and throughout
the 1920s numerous speakers rose i n the H o u s e
of C o m m o n s suggesting either the abolition or
the reform o f the Senate. Indeed, the Grain
Growers' Guide, the leading reform organ for the
prairies, noted with dismay i n September
1921, that a delegation of women had pressed
P r i m e M i n i s t e r M e i g h e n for the appointment
of E m i l y M u r p h y to the Senate. T h e editorial
d i d not oppose women i n the Senate but
rather, it objected to the very existence of that
C h a m b e r . It stated:
It does not look well, to say the least, to
see women, directly they become enfranchised, playing the game just as the
men played it and h u n t i n g for special
favors and privileges presumably as the
price of their votes. A non-elected Senate
is an anachronism; it should have no
place in a democracy and as nobody ever
knows what goes on i n the Senate or cares
to read the speeches of Senators, M r s .
M u r p h y would only waste her time and
eloquence i n that chamber. She should
get out and tell the people what reforms
she wants to see established and i f they
approve she will have no difficulty i n persuading them to send her to the proper
place for the enactment of the required
legislation—the House of C o m m o n s .
1 6
T h e controversy over the Senate c u l m i nated, in 1927, in a constitutional conference
between the nine provinces and the federal
government to discuss various proposals to
reform the upper house. Significantly, the
issue of women's eligibility to the Senate was
not mentioned at this gathering. In fact, few
references can be found in either the House of
C o m m o n s debates or the Senate debates which
even mentioned this reform. There was one
notable exception. T h i s occurred in 1921 when
the Government M e m b e r of Parliament for
Kindersley, M r M e y e r s , proposed that along
with other reforms to the Senate, "the right of
sitting in the Senate should be also accorded to
w o m e n . " H e argued that since the government had
. . . extended the suffrage to women and
they are now entitled to sit i n this C h a m ber as well as i n the
Provincial
Legislatures, I see no reason why they
should not be enabled to sit i n the U p p e r
C h a m b e r of this P a r l i a m e n t .
these groups for being "small-hearted, stupid,
selfish and g r a c e l e s s . " T h e dreams of the
previous decade that w o m e n w o u l d inject a
purer, nonpartisan outlook into politics, by
1927 was shown i n many ways to be false.
19
17
M e y e r s ' proposal was not taken up by the
M e i g h e n government. T h i s lack of action is
understandable because the M e i g h e n government was ushered out of office i n that year.
Moreover,
MacKenzie
King's
minority
government w h i c h succeeded to office, was dependent upon the Progressive Party for surv i v a l . G i v e n that Party's assault on the Senate
as an outmoded and restrictive encumbrance
to a truly democratic C a n a d a , K i n g felt it
prudent not to move too quickly on the issue.
Government inaction d i d not deter women
from seeking equal rights of representation.
T h e cry for a woman Senator was raised by a
vocal m i n o r i t y whenever a vacancy became
available. But even within the ranks of the
dedicated few, there were problems of partisanship and dissension. E m i l y M u r p h y noted
in a letter to Nellie M c C l u n g :
I had letter from M r s . J o h n Scott today.
She says that the M o n t r e a l W o m e n ' s
C l u b would not send a resolution to the
Conservative C o n v e n t i o n at W p g . / sic/
because it was a Conservative C o n vention, and the majority of the M o n t r e a l
C l u b were Liberals. Vice Versa, the
women at W p g . gave two reasons for not
asking the Conservative C o n v e n t i o n to go
on record. (1) The men didn't want it; (2)
they were not going to work for anything
that might end i n M a r y Ellen S m i t h being
appointed.
Besides m a r k i n g the end of the first decade
of enfranchisement for the five westernmost
provinces, 1927 was an important date regarding the whole " p e r s o n s " question. A c c o r d i n g
to her biographer, it was i n the early part of
that year that E m i l y M u r p h y ' s brother,
W i l l i a m , a prominent O n t a r i o lawyer who had
been appointed to the bench of the First A p pellate D i v i s i o n of the Supreme C o u r t of O n tario i n 1916, informed her about a little
k n o w n section of the federal Supreme C o u r t
A c t . T h i s section allowed interested persons,
appealing as a unit, to ask for the i n terpretation of a constitutional point raised u n der the B N A A c t . If the Department of Justice
agreed that the question was of sufficient
public importance, it would then be referred by
the
G o v e r n o r - G e n e r a l - i n - C o u n c i l to
the
Supreme C o u r t for a r u l i n g . T h i s revelation
reputedly set M u r p h y furiously casting about
for suitable "interested P e r s o n s , " finally
deciding that Henrietta ( M u i r ) Edwards,
Nellie M c C l u n g , Louise M c K i n n e y and Irene
P a r l b y should be her co-appellants. In a letter
to Nellie M c C l u n g on August 5, 1927, she
urged:
2 0
2 1
22
I do not feel it even remotely necessary to
urge upon y o u the extreme desireability
of your lending your m u c h valued i n fluence to this matter which is so closely
allied with the political, social and philanthropic
interests
o f all C a n a d i a n
women.
2 3
18
Understandably, M u r p h y ' s reaction to this
situation was less than generous as she berated
T h u s was set i n motion the most important
constitutional debate concerning women's
rights i n C a n a d a since their D o m i n i o n enfranchisement i n 1918.
T h e five petitioners, being fully aware of the
failure of previous attempts at h a v i n g w o m e n
appointed to the Senate, deemed it advisable to
avoid all reference to the term " p e r s o n s " i n
the questions submitted to the Supreme C o u r t .
T h u s , the final w o r d i n g of the three questions
that were presented for consideration dealt
with the two themes of the constitutional
ability of the federal government to both appoint w o m e n to the Senate a n d , failing that, to
amend the statutes g o v e r n i n g admission to the
Senate. T h e questions read as follows:
1. Is power vested i n the G o v e r n o r G e n e r a l of C a n a d a , or the Parliament o f
C a n a d a , or either o f them, to appoint a
female to the Senate of C a n a d a ?
2. Is it constitutionally possible for the
Parliament
of C a n a d a ,
under
the
provisions of the British N o r t h A m e r i c a
A c t , or otherwise, to make provision for
the appointment o f a female to the Senate
of C a n a d a ?
3. If any statute be necessary to qualify a
female to sit i n the Senate of C a n a d a ,
must this statute be enacted b y the I m perial parliament, or does power lie with
the Parliament o f C a n a d a , or the Senate
of C a n a d a ?
2 4
These questions were forwarded to the
M i n i s t e r of Justice. I n response to them the
federal C a b i n e t decided that the "question
whether the w o r d 'Persons' i n said section 24
includes female persons is one of great public
i m p o r t a n c e . " T h u s , " o n the recommendation
of the M i n i s t e r of J u s t i c e " the following
question was forwarded to the G o v e r n o r G e n e r a l for submission to the Supreme C o u r t .
Does the w o r d " P e r s o n s " i n section 24 o f
the British N o r t h A m e r i c a A c t , 1867, i n clude female p e r s o n s ?
25
T h e discrepancy between the questions submitted to the M i n i s t e r of Justice by the
petitioners and the final form of the question
forwarded to the Supreme C o u r t provoked an
immediate and vehement response from E m i l y
M u r p h y . I n her reply to the letter from the
C l e r k of the P r i v y C o u n c i l of N o v e m b e r 2,
1927, she wrote:
W e respectfully beg to point out that the
question referred to the Supreme C o u r t
. . . is not the one submitted by y o u r
petitioners either i n word or i n meaning
and is, i n consequence, a matter of
amazement and perturbation to us . . . .
In framing their questions o n constitution, your petitioners were not u n mindful of the fact that the officers of the
C r o w n had already expressed the o p i n i o n
publically, and to various delegations,
that a female was not a " p e r s o n " under
the B . N . A . A c t a n d , for this, and other
very excellent reasons, refrained from
using the w o r d " p e r s o n " i n any of o u r
questions. W e , therefore, reiterate that
the citation as forwarded to the Supreme
C o u r t of C a n a d a by your O r d e r - i n C o u n c i l is not our question, nor a correct
interpretation thereof, and that accordingly it requires to be w i t h d r a w n .
26
In connection with her concern about the
w o r d i n g of the actual questions put before the
Supreme C o u r t , M u r p h y was also worried
" a b o u t the uncertainty that prevails under
Canada's ' a u t o n o m y ' . "
T h i s uncertainty
had considerable bearing u p o n any remedial
legislation brought into existence i f the
Supreme C o u r t ruled against the petitioners.
A l t h o u g h the sections of the B N A A c t governing the composition of the House of C o m m o n s
could
be
changed
b y the
Dominion
Parliament, the sections dealing with the selection of Senators could not. Instead, agreement
2 7
of both Houses of Parliament as well as
unanimous agreement of the provinces was
required before a petition to the British
Parliament regarding a change in these sections of the B N A A c t could be made. A s was
pointed out i n an editorial in the Manitoba Free
Press:
T h e H o n . H . Ferguson is reported to
have said that he is all for women but he
cannot bear to see the B . N . A . A c t tampered with, and i f such drastic action
must be taken before the R e d C h a m b e r
opens its gilded doors to women, he
would favour them being reserved as at
present for a men's o w n .
2 8
T h e questionable ability of the House of C o m mons to pass legislation enabling women to sit
in the Senate and the vocal resistance of men
like
Premier
Ferguson
of Ontario
to
" t a m p e r i n g " with the B N A A c t represent two
very poignant reasons for E m i l y M u r p h y ' s
reservations. It is interesting to note that
Ferguson's biographer, P . N . O l i v e r , has observed that:
when federal politicians . . . talked of new
procedures for constitutional amendment, Ferguson sprang forward to defend
the status quo; when the same politicians
suggested that the Supreme C o u r t of
C a n a d a replace the P r i v y C o u n c i l as the
final court of appeal, Ferguson muttered
of veiled treason to the E m p i r e .
2 9
M o r e o v e r , the fact that women in Quebec still
d i d not have the right to vote i n the 1920s
meant that Ottawa could expect little enthusiasm from that province on the question of
constitutional reform to give women access to
the S e n a t e .
30
EMILY
MURPHY
(Photo courtesy of the Public
Archives Canada C-89581)
existence of the Senate. A l t h o u g h , by 1928 the
force of the Progressive Party was largely
spent, reform of the Senate was still a potent
issue. J . S .
Woodsworth,
the
prominent
L a b o u r M e m b e r of Parliament for W i n n i p e g
N o r t h Centre, was one critic who periodically
rose i n the House of C o m m o n s blasting the
government over the undemocratic nature of
the Senate. O b v i o u s l y , K i n g ' s government
had more than the Conservative Premier of
O n t a r i o to consider.
31
It must be remembered also that there still
existed considerable misgivings about the very
W i t h these potential problems as a backdrop
for constitutional reform, the careful phrasing
of the questions presented by the petitioners
comes into sharper relief. T h e y knew what
they were up against; i f it was found that the
B N A A c t had to be amended i n order to admit
w o m e n to the Senate, then the measure w o u l d
face a great deal of resistance and inevitably
get bogged d o w n i n partisan political squabbles and questions of principle other than the
status of w o m e n . T h e w o m e n had selected
N . W . R o w e l l , one of the top constitutional
lawyers i n the country, to argue their case.
R o w e l l was sympathetic to the issue and since
he was a prominent L i b e r a l it could not be
charged that the decision was influenced b y
nefarious political c o n s i d e r a t i o n s . N o r was
the cost o f the procedure a p r o b l e m . O w i n g to
the w o r d i n g of subsection 5 o f section 55 o f the
Supreme C o u r t A c t (which provides that "the
reasonable expenses" of a r g u i n g the case
might be p a i d by the M i n i s t e r of Justice out of
any moneys appropriated by Parliament for
expenses of l i t i g a t i o n ) , the w o m e n d i d not
even have to w o r r y about legal fees. T h u s there
was little that the petitioners could do but await
the C o u r t ' s decision.
3 2
33
34
It was not until A p r i l 24, 1928, that the
Supreme C o u r t o f C a n a d a handed d o w n its
judgement on the question, " D o e s the w o r d
'Persons' i n section 24 o f the B r i t i s h N o r t h
A m e r i c a A c t , 1867, include female persons?"
It was unanimously agreed by
Justices A n g l i n , Duff, M i g n a u l t , L a m o n t and
S m i t h that:
3 5
W o m e n are not 'qualified persons' within
the m e a n i n g of section 24 of the B . N . A .
A c t , 1867, and therefore are not eligible
for
appointment
by the
Governor
G e n e r a l to the Senate of C a n a d a .
3 6
A l t h o u g h this judgement m a y have disappointed m a n y , it was not a surprising decision
when one examines the rationale used by the
Justices and understands the scope o f the
Supreme C o u r t at that time. A foremost consideration was that, i n 1928, the Supreme
C o u r t was not the final court of appeal. F u r thermore, its traditional role was not that of i n novator, i n that it d i d not have the j u d i c i a l
mandate, due m a i n l y to historical practise, to
overturn strongly established
precedents.
A n o t h e r equally strong basis for the C o u r t ' s
decision was the relative weight that they allotted to the w o r d " p e r s o n s . " T h e y found i n
e x a m i n i n g the sections of the B N A A c t dealing
with the selection and appointment of Senators
that the w o r d " p e r s o n s " was always used i n
conjunction with either " q u a l i f i e d " or "fit and
q u a l i f i e d . " O n the basis of this they decided
that the question which had to be answered was
"whether 'female persons' are qualified to be
summoned to the S e n a t e . " T o the l a y m a n
these distinctions appear to be irrelevant
semantic problems but i n the judgement that
followed these distinctions play an important
role.
37
H a v i n g established the exact question to be
answered by the court, the Justices proceeded
to weigh the various arguments put forward by
the litigants. T h e key argument used by
L u c i e n C a n n o n , solicitor general i n K i n g ' s
government, against the petitioners was based
upon the case of Chorlton v. Lings which was
heard before the British C o u r t of C o m m o n
Pleas i n
1867. T h i s
precedent
setting
judgement determined that:
C o n s i d e r i n g that there is no evidence of
w o m e n ever h a v i n g voted for members of
parliament i n cities or boroughs, and that
they have been deemed for centuries to be
legally incapable of so d o i n g , one would
have expected that the Legislature, i f
desirous of m a k i n g an alteration so i m portant and extensive as to admit them to
the franchise, would have said so plainly
and d i s t i n c t l y .
38
Furthermore, this argument was supported
by more recent decisions which lent considerable strength to the case against the
petitioners. In 1922, for example, V i s c o u n t
Birkenhead, L . C . , i n rejecting the claim of
Viscountess R h o n d d a to sit i n the British
H o u s e o f L o r d s stated:
It is sufficient to say that the Legislature
i n dealing with this matter cannot be
taken to have departed from the usage of
centuries or to have employed such loose
and ambiguous words to carry out so
momentous a revolution i n the constitution of this House. A n d I am content
to base m y judgement on this a l o n e .
39
N . W . R o w e l l , in his plea for the petitioners,
contended that there were sections of the B N A
A c t where the word " p e r s o n s " was obviously
used to include the more general meaning, i n cluding women as well as m e n . Further, he
invoked the aid of the statutory interpretation
provisions i n force i n E n g l a n d i n 1867 k n o w n
as L o r d B r o u g h a m ' s A c t — w h i c h read:
establish as historical fact that women were
considered to be persons w h e n the A c t was
framed i n 1867. F i n a l l y , by using L o r d
B r o u g h a m ' s A c t , he hoped that, since no
specified gender was "expressly p r o v i d e d " for
i n the sections of the B N A A c t dealing with the
Senate, the Justices w o u l d leniently interpret
the w o r d " p e r s o n s " to include both men and
women.
In the opening remarks to his judgement,
C h i e f Justice A n g l i n stated:
In considering this matter we are, of
course, i n no wise concerned with the
desirability or the undesirability of the
presence of women i n the Senate, nor
with any political aspect of the question
submitted. O u r whole duty is to construe,
to the best of our ability, the relevant
provisions of the B . N . A . A c t , 1867, and
upon that construction to base our answer.
42
4 0
Be it enacted that i n all Acts words i m porting the M a s c u l i n e Gender shall be
deemed and taken to include Females,
and the Singular to include the P l u r a l ,
and the P l u r a l the Singular, unless the
contrary as to Gender or N u m b e r is expressly p r o v i d e d .
41
Rowell's
strategy
i n adopting
these
arguments were threefold. First, by stressing
the fact that there were instances i n the construction of the B N A A c t where the w o r d ' 'pers o n s " obviously included women, it is apparent that he was attempting to undermine
the precedent of Chorlton v. Lings. A l o n g these
same lines R o w e l l was also attempting to
Furthermore, he added that i f "the phrase
'qualified persons' i n section 24 includes
w o m e n today, it has so included them since
1867."
These pronouncements are particularly important because they indicate the
court's predeliction to r e m a i n w i t h i n the strict
confines of the law and the precedents that had
arisen to that point. T h i s court certainly was
not about to make any radical reinterpretations
of the British N o r t h A m e r i c a A c t . Rather, they
strove to establish the original intent of the
framers of the legislation without regard for
changing social and political consequences.
4 3
R o w e l l ' s contention that " p e r s o n s " i n other
sections of the B N A A c t included w o m e n was
forcefully argued. But it floundered o n the
point that " p e r s o n s " i n these instances was not
used i n conjunction with either " q u a l i f i e d " or
" f i t and q u a l i f i e d " , thus r u n n i n g aground o n
A n g l i n ' s precondition that females must be
" q u a l i f i e d " or "fit and q u a l i f i e d " persons.
Likewise,
Rowell's
reference
to
Lord
B r o u g h a m ' s A c t was quashed by A n g l i n , who
pointed out that " 'persons' is not a ' w o r d i m porting the masculine gender.' Therefore, ex
facie, L o r d B r o u g h a m ' s A c t has ho application
to i t . "
Since these were the key arguments
presented for the petitioners their dismissal by
the Justices helps to explain the final outcome
of the hearing.
4 4
Regardless of the strengths and weaknesses
of the petitioners' case, the court's predisposition for legal precedent and historical fact,
explains the ultimate decision. Justice D u f f
stated:
. . . it is sometimes the duty of a court of
law to resort, not only to other provisions
of the enactment itself, but to the state o f
the law at the time the enactment was
passed, and to the history, especially the
legislative history, of the subjects with
which the enactment d e a l s .
45
B y their interpretation of the pertinent sections
of the B N A A c t the court made it clear that
they believed that w o m e n had not been i n cluded by the framers of the A c t i n 1867. T h e
judgement of the court was based on the belief
that had the legislators intended that w o m e n be
included i n the group of " q u a l i f i e d " persons
there would have been an explicit reference i n dicating what would have been a revolutionary
break with legislative tradition. T h e historic
Chorlton v. Lings case cited as an argument
against the petitioners was used as the legal
basis for this decision. T h i s was clearly stated
by C h i e f Justice A n g l i n i n his closing remarks:
In our opinion C h o r l t o n v . L i n g s is conclusive against the petitioners alike on the
question of the c o m m o n law incapacity of
women to exercise such p u b l i c functions
as those of a member of the Senate of
C a n a d a and on that of their being expressly excluded from the class of
"qualified persons" within section 24 of
the B N A A c t by the terms i n which section 23 is couched, so mat
Lord
B r o u g h a m ' s A c t cannot be invoked to extend those terms to b r i n g " w o m e n "
within their purview.
W e are,
opinion that
appointment
the Senate of
for these reasons, of the
women are not eligible for
by the G o v e r n o r General to
Canada.
4 6
T h i s judgement received a mixed press i n
English C a n a d a . A Manitoba Free Press editorial
perhaps best expressed the prevailing sentiment i n government circles. T h e m a i n focus
of the editorial was upon the "unexpected i m plications (that) m a y arise from the Supreme
Court r u l i n g . "
T h e editorial raised the
possibility that women were not eligible to sit
i n the various provincial legislatures and i n the
H o u s e of C o m m o n s . It continued b y e x p l o r i n g
the ramifications of h a v i n g to ask women
already sitting i n C a n a d i a n legislatures to
vacate their seats. T h i s situation was treated
satirically b y the author and the implications
were that few would seriously consider such an
interpretation. T h e problem of how to make
women eligible for the Senate, however, was
treated with all seriousness. It was pointed out
that:
4 7
W h a t we will have to do now is to obtain
an amendment to the B . N . A . A c t .
C a n a d a , of course, has no power to
change the A c t ; we w i l l have to ask the
British government to do it for us. T h e
H o u s e of C o m m o n s w i l l have to m o v e ,
the Senate will have to approve, the
provinces, we suppose, will have to be
consulted, and i f one of them object we
have the w o r d of M r . C a h a n of M o n t r e a l ,
M r . Ferguson of T o r o n t o , and other
more or less legal minds that the British
government will sit tight and refuse to lift
a finger to help the w o m e n of C a n a d a .
an exchange between R . B . Bennett and W . L .
M a c k e n z i e K i n g i n the House of C o m m o n s o n
June 11,1928.
J u d g i n g from the tone of the editorial it was
these latter consequences of the " p e r s o n s " case
that presented the "unexpected i m p l i c a t i o n s "
to which the author referred.
M r . Bennett: . . . W e are not a sovereign
power even for domestic purposes, and I
can best illustrate that statement by a
reference to one house of this parliament.
T h e Supreme C o u r t of C a n a d a has
decided that women m a y not be appointed to the Senate, and we have not
the power to change our constitution i n
that regard. T h a t must be done by an
amendment to the B . N . A . A c t .
M r . M a c K e n z i e K i n g : It is a matter of
method, that is a l l ; the power comes from
us.
M r . Bennett: N o , the legislative power is
exercised at Westminister, not at O t t a w a
4 8
W h i l e the press mulled over the implications
of the Supreme C o u r t decision, an immediate
reaction was forthcoming from the federal
government. In response to a question from
M r . A . W . N e i l l , the Independent M e m b e r of
Parliament
from
Comox-Alberni,
the
H o n o u r a b l e Ernest L a p o i n t e , M i n i s t e r of
Justice replied:
. . . In view of this judgement, and i n
view of the fact that w o m e n i n this country now have an equal franchise with
m e n , and i n view of the further fact that
one of the seats i n this house is occupied
by a w o m a n , the government have
decided that they should have the equal
right to sit i n the other chamber, and
means w i l l be taken to secure an amendment to the British N o r t h A m e r i c a A c t i n
that respect.
49
A l t h o u g h no one questioned Lapointe's sincerity, his promise to find the means to place
women i n the Senate provoked considerable
debate. T h e m a i n issue was the questionable
ability of the House of C o m m o n s to pass b i n d i n g legislation which w o u l d fulfill
his
promise.
T h e question of women's eligibility i n the
Senate became embroiled i n the m u c h broader
issue of federal sovereignty i n matters of constitutional reform and, as such, it was used as a
political football by politicians seeking to embarrass M a c k e n z i e K i n g ' s L i b e r a l government. T h i s opportunism is best illustrated by
50
M a n y political observers agreed with Bennett and believed that L a p o i n t e w o u l d not be
able to follow through on his p l e d g e . T h i s
group included E m i l y M u r p h y . O n M a y 2,
1928, only eight days after the judgement of
the Supreme C o u r t had been passed d o w n ,
E m i l y M u r p h y sent copies of an appeal to the
J u d i c i a l C o m m i t t e e of the P r i v y C o u n c i l Q C P C ) to the other appellants. A l t h o u g h she was
cautious about criticizing L a p o i n t e ' s promise
it was made clear that she distrusted the
politics involved i n amendments to the B N A
A c t . She stated:
51
Be it understood that this appeal must not
be construed as i n anywise expressing a
lack o f confidence i n the determination of
the H o n o u r a b l e , the M i n i s t e r of Justice
and his colleagues of the Cabinet to devise
means whereby the B N A A c t m a y be
amended to permit of w o m e n sitting i n
the Senate of C a n a d a , but only that we,
as Petitioners, can have no certainty that
the exigencies of politics or the dissent of
one or more of the Provinces m a y not
preclude the possibility of such amendment.
52
B e a r i n g i n m i n d P r e m i e r Ferguson's fear of
federal " t a m p e r i n g " with the B N A A c t and
P r e m i e r Taschereau's oppostion to female enfrancisement,
M u r p h y ' s reservations about
the "exigencies of p o l i t i c s " and the " d i s s e n t "
of a P r o v i n c e was not without a basis i n fact. I n
A u g u s t o f the same year M u r p h y wrote to
Nellie M c C l u n g c o m m e n t i n g u p o n the federal
government's willingness to pay for the costs o f
the appeal to the J C P C . " A p p a r e n t l y , no
means have been 'devised' else they w o u l d not
be w i l l i n g to pay the costs of a p p e a l , "
she
concluded. T h e comment
that
followed
illustrates M u r p h y ' s clear grasp of the realities
of C a n a d i a n politics and of the problems of
constitutional reform i n this country:
53
5 4
It is well though that it has turned out this
way for i f a w o m a n or women had been
appointed through " m e a n s "
Quebec
w o u l d have likely appealed against it, so
we m a y as well get it settled now so far as
the legal end is c o n c e r n e d .
55
A l t h o u g h M u r p h y expressed a great deal o f
confidence i n the ultimate success of the appeal
the first arguments heard by the J C P C were
not delivered until J u l y 22, 1929, nearly fifteen
months after the Supreme C o u r t d e c i s i o n .
But the long wait was not i n v a i n , for oh O c tober 18, 1929, L o r d Sankey o f the J C P C announced:
56
T h e i r Lordships are of the opinion that
the w o r d " p e r s o n s " i n section 24 does i n clude w o m e n , and that w o m e n are
eligible to be s u m m o n e d to and become
members of the Senate o f C a n a d a .
5 7
O n e w o u l d think that i n order for such a
decision to be reached, especially i n light of the
unanimous r u l i n g of the Supreme C o u r t of
C a n a d a , new and conclusive evidence had
been introduced to sway the P r i v y C o u n c i l ' s
decision.
But, surprisingly enough,
no
dramatic new arguments were put forward by
either side. A n important factor i n the J C P C
decision was the historic mandate of the two
courts. O n the one hand the Supreme C o u r t of
C a n a d a held a secondary position i n the
C a n a d i a n j u d i c i a l hierarchy as compared with
that of the J C P C . Further, the lesser court had
traditionally exercised a relatively limited role
in initiating new and overturning o l d
precedents. T h e J C P C , on the other h a n d ,
represented the final court of appeal i n the
D o m i n i o n ' s legal system. T h i s position
coupled with the i m m u n i t y of J C P C judges
from C a n a d i a n political changes allowed the
J C P C to have greater scope i n reinterpreting
past legislation and, as evidenced by its
numerous
rulings on issues of federalprovincial powers, the court used this function
freely.
58
Related to the v a r y i n g mandates of the two
courts was the weight placed upon the
historical arguments used in the previous
hearing. In passing down the judgement L o r d
Sankey noted:
T h e exclusion of women from all public
offices is a relic of days more barbarous
than ours, but it must be remembered
that the necessity of the times often forced
on m a n customs which i n later years were
not necessary . . . . T h e fact that no
w o m a n had served or has claimed to serve
such an office is not of great weight when
it is remembered that custom would have
prevented the claim being made, or the
point being contested. Customs are apt to
develop into traditions which are stronger
than law and remain unchallenged long
after the reason for them has disappeared.
T h e appeal to history therefore i n this
particular matter is not c o n c l u s i v e .
59
A n issue i n the appeal judgement which affected the outcome was the willingness of the
P r i v y C o u n c i l to be influenced and directed by
modern political and social developments.
T h i s particular stance was a complete reversal
of that taken by the C a n a d i a n Supreme C o u r t .
In their judgement the P r i v y C o u n c i l ruled
that they d i d " n o t think it right to apply rigidly
to C a n a d a of to-day" the customs and
reasonings used i n other centuries and i n other
countries.
Furthermore, they were determ i n e d not to restrict the B N A A c t to a
' 'narrow and technical construction, but rather
to give it a large and liberal interpretation so
that the D o m i n i o n . . . may be mistress i n her
own h o u s e . "
In light of the changing
relationship
between
Britain
and
her
D o m i n i o n s , destined to be formalized by the
Statute of Westminister i n 1931, the impact of
the altering political and social realities undoubtedly played a very substantial role i n the
final J C P C r u l i n g of 1929.
60
61
A C a n a d i a n Press interview that appeared
in the V a n c o u v e r Province quoted the following
optimistic remarks made by E m i l y M u r p h y
about the results of the appeal.
. . . that the members of the J u d i c i a l
C o m m i t t e e of the P r i v y C o u n c i l have
given a wider and more favourable i n terpretation of the w o r d " p e r s o n s " than
that of the Supreme C o u r t of C a n a d a , is a
matter of m u c h gratification to myself
and m y co-appellants in A l b e r t a . T h e
same is applicable to all the women of
C a n a d a , w h o m we have had the pleasure
to represent i n the long and somewhat arduous struggle for full political r i g h t s .
62
A n d on paper it d i d appear that the J C P C
r u l i n g had heralded a new day for the political
equality of men and w o m e n i n C a n a d a . But
this was not the case i n the cold realities of
C a n a d i a n politics.
A l t h o u g h the first w o m a n Senator was appointed within months of the J C P C r u l i n g , the
general trend has been to overlook women
when Senatorial vacancies have come up. Indeed, the pattern for these few appointments
has been to provide token plums to loyal party
workers by the party i n power at O t t a w a .
T h u s , the first w o m a n Senator i n C a n a d a was
not E m i l y M u r p h y , whose strong family ties
with the C e n t r a l C a n a d i a n Conservative
establishment
eliminated her
from consideration by the M a c k e n z i e K i n g L i b e r a l s .
Rather this honor was bestowed upon C a i r i n e
W i l s o n whose activities as a former president
of the W o m e n ' s L i b e r a l Federation allowed
K i n g to extend a seat i n the Senate to a L i b e r a l
of impeccable, though
uncontroversial,
qualifications.
63
Furthermore,
Senators
and
politicians
generally d i d not accept the view that women
had special interests that must be represented
in the U p p e r H o u s e . T h i s point was brought
home graphically by Senator L i a r d of Saskatchewan i n response to a comment made by
C a i r i n e W i l s o n i n her m a i d e n speech to the
Senate. L i a r d stated:
. . . she/Wilson/claimed to be "the
representative of the w o m e n of C a n a d a "
in this C h a m b e r . . . m a y I point out that
our fair colleague is hardly correct i n so
designating herself. She is a Senator from
the Province of O n t a r i o , and is one of the
representatives i n this C h a m b e r of all the
people of O n t a r i o , m e n , women and
children. She stands i n a position no different from that of any other member of
this House: no one of us represents any
particular class, creed or sex, but each
member
people.
is here to speak for all the
64
Unfortunately, M u r p h y ' s ideal o f " f u l l
political r i g h t s " for w o m e n is as m u c h o f a
d r e a m today, over fifty years after the J C P C
r u l i n g as it was i n 1929. A l t h o u g h the " p e r s o n s " case is particularly interesting for the
constitutional a n d j u d i c i a l problems that it
contains, it represents a mere splinter i n an
almost impregnable wall o f restrictions that
prevent to this day women's complete equality
i n C a n a d i a n society.
NOTES
1.
Bryne H o p e Sanders, Emily Murphy—Crusader (Toronto:
1945), p p . 135-138.
2.
3.
Ibid., p. 222.
Peter N . Oliver, G. Howard Ferguson: Ontario Tory (Toronto:
1977), p. 273.
Sanders, Murphy, pp. 1-50.
Ibid., p p . 135-138. T h e Women's C o u r t was established at
the request of various women's groups in Edmonton. It
was initiated on the belief that a woman, facing a minor offence, would receive a more compassionate hearing from a
female magistrate. Emily M u r p h y was appointed to conduct the first Women's C o u r t partly because of her
standing in the community and partly because of her
forthright concern about the women appearing in court.
4.
5.
6.
7.
8.
9.
10.
11.
Barbara V i l l y C o r m a c k , Perennials and Politics: The Life Story
of Hon. Irene Parlby (Sherwood Park, Alberta: n.d.), p . 109.
C o m m o n L a w is the basis of all English Canadian law as
well as federal law. In Quebec, C i v i l L a w is the basis of the
provincial legal system.
leathering Govier, " H o w Canadian W o m e n C a m e to be
Senators . . . and Persons, t o o , " unpublished essay held in
theGlenbow Archives, p. 6.
12.
13.
14.
Infra., p. 20.
Sanders, Murphy, p. 216.
Ibid., p. 216.
15.
16.
Ibid., p. 221.
Grain Growers' Guide, 7 Sept. 1921, p . 5. In fact throughout
1921 various editorial remarks were made about the desire
of women, especially women linked to Emily M u r p h y , to
gain access to the Senate. None gave support to this reform
and all criticized the women for attempting to become
associated with what was seen as a useless appendage to the
parliamentary system in C a n a d a . See the Guide, 30 M a y ,
1 9 2 1 , p . 3 5 ; 6 J u l y , 1921,p. 17; 1 6 N o v . , 1921,p.24.
D o m i n i o n of C a n a d a , Debates of the House of Commons 1921,
vol. I (Ottawa: 1921), p. 389.
Emily M u r p h y to Nellie M c C l u n g , 2 December 1927.
Correspondence relating to the 'persons' case and referred
to in this paper can be found in the M c C l u n g Papers in the
Public Archives of British C o l u m b i a . These papers are
hereafter cited as M. P.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
Ibid., p. 6; see also J o h a n n a Wenzel, ' ' H o w E m i l y M u r p h y
became a person," Golden Harvest (Jan./Feb. 1966), p. 34.
" W o m e n not legally 'Persons' until 1929," Lethbridge
Herald, October 18, 1969. In an interview printed in the
J a n . 31, 1928 issue of the Edmonton Journal, Emily M u r phy stated: "It was at a conference of the Federated
Women's Institutes of C a n a d a , held in Winnipeg, that I
framed the first of many resolutions asking that women be
appointed to the Senate. T h i s resolution was passed by
representatives of all provinces then assembled and forwarded to the Minister of Justice. Subsequently nearly
every important organization of women, including the
National Council of W o m e n , have endorsed this stand,
sending numerous delegations and petitions to O t t a w a . ' '
34.
35.
Robert A . M a c k a y , The Unreformed Senate of Canada (Toronto: 1963), passim.
36.
33.
Ibid.
Sanders, Murphy, p. 222.
Section 55, subsections l a , 4 and 5 of the Supreme Court
Act are the specific parts of the legislation which pertained
to petitioning the Government for an interpretation of the
B . N . A . Act.
Sanders, Murphy, p. 223.
M u r p h y to M c C l u n g , 5 August, 1927, M.P.
M u r p h y to Stuart Edwards, Deputy Minister of Justice, 9
November, 1927, M.P.
E . J . Lemaire, Clerk of the Privy Council to Emily M u r phy, 2 November, 1927, M.P.
M u r p h y to S. Edwards, op, cii., M.P.
M u r p h y to M c C l u n g , 5 November, 1927, MP.
Manitoba Free Press, 22 October, 1927, p. 13.
Oliver, Ferguson, pp. 171-172.
Catherine Cleverdon, The Woman Suffrage Movement in
Canada (Toronto: 1974), p. 229.
D o m i n i o n of C a n a d a , Debates of the House of Commons 1924,
vol. l , p . 509.
Although Emily M u r p h y had "not thought it necessary to
submit the matter to Canadian women generally" (see
M u r p h y to M c C l u n g , 5 August, 1927, M.P.) since they
had "already endorsed the principle," there apparently
was some surprise expressed by women's groups, especially
from eastern C a n a d a , at the petitioners' action. In a letter
to Nellie M c C l u n g , dated 2 December, 1927, M u r p h y
commented:
I hear, though, that it has been a terrible shock to the
Eastern women that five coal-heavers and ploughpushers from Alberta . . . went over their heads to the
Supreme Court without ever saying "Please ma'am
can we do it?" W e know now how to stir up interest in
the East—just start it going ourselves.
Margaret Prang, A'. W. Rowell: Ontario Nationalist (Toronto:
1975), p. 444; M u r p h y to M c C l u n g , 5 August, 1927, M.P.
See section 55, subsection 5 of the Supreme Court Act.
Canada Law Reports, Supreme Court of Canada (Ottawa: 1928),
p. 278.
Ibid., p. 278.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
Ibid., p. 276.
Ibid., p. 281.
Ibid., p. 289.
Ibid., p. 290.
Ibid., p. 286.
Ibid., p . 281-282.
Ibid., p. 282.
/ * « / . , p . 288.
/to*., p . 291.
Ibid., p . 290.
Manitoba Free Press, 25 A p r i l , 1928, p. 15.
Ibid.,p. 15.
49.
Dominion of C a n a d a , House of Commons Debates, Session
1928, vol. II, 2 4 A p r i l , 1928, p. 2311.
Ibid., 11 J u n e , 1928, p . 4164.
See Manitoba Free Press, 25 A p r i l , 1928, p. 15 and Vancouver
Province, 24 A p r i l , 1928, p . 1, for examples of this opinion.
M u r p h y to M c C l u n g , 2 M a y 1928, M.P.
Cleverdon, Woman Suffrage, p. 229.
M u r p h y to M c C l u n g , 16 August, \$2%,M.P.
Ibid.
50.
51.
52.
53.
54.
55.
56.
57.
AU England Reports Reprint, 1929, p . 571.
/W.,p.573.
58.
F r o m the mid-1880s the J C P C in a series of landmark
decisions reshaped the constitutional powers of the federal
and
provincial governments from what had been
established by the British North American A c t . These
judgements have been viewed by some historians, most
notably D . G . Creighton, as the undoing of the original
purposes of confederation.
59.
60.
61.
Ibid., p p . 574-576.
Ibid., p . 577.
Ibid.,p.m.
62.
Vancouver province, 18 October, 1929, p. 18.
63.
O n e might also conjecture that K i n g chose an Ontario
woman to become the first female Senator in the hopes that
women voters would be attracted to the Liberal party
which at that time was stumbling badly in that important
province.
64.
Dominion of C a n a d a , Debates of the Senate of the Dominion of
Canada 1930, 27 F e b . 1930, p. 47. F o r Senator Wilson's
speech see p p . 8-9 of the same volume.
o