That day was October 18, 1929, the day on which the Judicial Committee of the Privy Council of England concluded that the word “persons” in section 24 of the British North America (BNA) Act does include women.
The decision threw the door wide open for women in Canada to be appointed to the Senate and established that future interpretations of Canada’s constitution should be approached in such a way as to adapt to changing times.
But about a year and a half previous to that, in April 1928, while Mom was gestating comfortably in her mother’s womb, things had not been looking good for women with certain political aspirations. That’s because the Supreme Court of Canada had actually ruled that the term “persons” in section 24 of the BNA Act did not include women.
There was a reason why the Supreme Court of Canada, and later the Privy Council of England, was investigating this issue. Precedents that had been set in 1867 were being used to block women from political positions. The early 20th century had seen a definite increase in women’s participation in political life. Most women had the vote by 1918 (although universal suffrage in Canada didn’t happen until 1960; that’s only a year before I was born!) and women were now present in the House of Commons. Nevertheless, arguments against women participating in political life tended to run along the same lines: since in 1867 – when the BNA Act was established – “person” was legally understood to refer only to men, the Act made no provision for women.
In 1922, when Alberta Magistrate Emily Murphy became a candidate for appointment to the Senate, Prime Minister Robert Borden rejected her appointment, once again referencing the 1867 precedent. However, Emily Murphy found out about an interesting provision in the Supreme Court of Canada Act, by which five persons acting as a unit could ask the Supreme Court for an interpretation of any part of the BNA Act.
So, on a summer day in 1927, Emily Murphy invited four women activists (Nellie McClung, Irene Parlby, Louise McKinney and Henrietta Muir Edwards) to her home in Edmonton. Over tea, the five women (now known as the Famous Five) drafted and signed a petition, which they sent to the federal government, asking them to refer the issue to the Supreme Court of Canada.
The letter asked two questions:
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?
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 government made the decision to condense the two questions into one; the new question, presented to the Supreme Court by the federal cabinet was very specific:
Does the word “Persons” in section 24 of the British North America Act, 1867, include female persons?
And the answer from Canada’s Supreme Court: No.
But in those days Canadians still had a higher court of appeal (we were still 53 years away from the patriation of the constitution, an event I witnessed on a rainy day on Parliament Hill…another story for another time). And so, while my mother was finalizing her development and making her way into the world, the “Persons” question crossed the Atlantic and was put before this higher British authority. While Mom learned to hold objects, recognize faces, and crawl, the question was deliberated. And finally, on her first birthday the Judicial Committee of the Privy Council of England reversed the Supreme Court of Canada’s “no” and made it a “yes”: Yes, the word “persons” in section 24 of the BNA Act does include women.
Emily Murphy, due to a change in government, never did get to be a senator. Cairine Wilson was the first female senator, appointed in 1930, and women have been active in the Senate ever since.
Mom carried on growing and developing, as children do, and was launched into adulthood in a society in which interpretations of constitutional law were encouraged to be large and liberal, and where clever legal arguments and narrow interpretations of law could no longer be used to block women’s rights.