The Alberta Legislature

Virtual Visit: Step Inside the Alberta Legislature

www.virtualvisit.learnalberta.ca

Portraits of Alberta’s Famous Five

The Alberta Legislature – 5th Floor

Images of Alberta’s Famous Five grace the hallway of the fifth floor. The late Ms. Alice Tyler, an Alberta painter and sculptor, created the portraits; they are on loan for display in the Alberta Legislature courtesy of Ms. Tyler and Mr. William Deacon.

The “Persons” Case - Highlights

“Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges.” www.famous5.org

Canadian women were once defined by this 1876 British Common Law ruling. Thus, they were unable to participate fully in public office and affairs of state. In 1916, this situation came to the attention of Judge Emily Murphy, the first female magistrate in the British Empire. Judge Murphy was the magistrate of the newly created Women’s Court in Edmonton and on her very first day, a defendant’s lawyer challenged her ruling on the grounds that she was not a “person” and was therefore not able to perform the duties of a magistrate. Judge Murphy reportedly responded calmly, noting the objection and proceeded with the sentencing. Each time this lawyer appeared before her, he repeated his objection, as did others.

Magistrate Alice Jamieson of Calgary had been similarly challenged. Finally, in 1917, one of Judge Jamieson’s rulings was appealed to the Alberta Supreme Court, which stated: “There is ... no legal disqualification for holding public office in the government of this country on the basis of sex.” Thus the legitimacy of female judges was upheld. Women were, indeed, “persons” in the province of Alberta.

However, there was no such clarification at the federal level. Emily Murphy and others had lobbied for the appointment of a woman to the Senate. The government’s response was that according to the British North America Act, 1867, women were not “persons” and therefore were not eligible for appointment to the Senate. Prime Ministers Arthur Meighen and William Lyon Mackenzie King indicated their support for the change but the appointments did not occur.

Emily Murphy wanted to become Canada’s first female Senator and thus appealed to her brother, who was a lawyer, and other lawyers for guidance in resolving this matter through the courts. In 1927, her brother advised that as per Section 60 of the Supreme Court of Canada Act, any five persons could initiate an appeal for clarification of any part of the British North America Act, 1867. So she invited Henrietta Edwards, Nellie McClung, Louise McKinney and Irene Parlby to join her petition.

Although the Famous Five had drafted three different questions, on March 14, 1928, Emily Murphy's 60th birthday, the Supreme Court of Canada considered this question: "Does the word ‘person’ in Section 24 of the British North America Act, 1867 include female ‘persons’?” On April 24th, 1928, the Supreme Court said, “No, it does not.” Despite the fact that women had the right to vote in most provinces and in federal elections, the interpretation of the BNA Act was made in light of the times it was written. As well, because only male pronouns were used in the BNA Act and no woman in England had ever been appointed to the British House of Lords, the Supreme Court declined to include women in the definition of the term ‘persons’. Prime Minister Mackenzie King agreed to support their appeal of this ruling to the Judicial Committee of the Privy Council of England, then our highest court of appeal.

On October 18, 1929, Lord Sankey, Lord Chancellor of the Privy Council, announced the unanimous decision of the five Lords “that the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word (persons) should include females, the obvious answer is why it should not?"

The Honourable Cairine Wilson became Canada’s first female Senator when she was appointed in 1930. Unfortunately, none of the Famous Five ever received this honour. Since 1929, 58 women have been appointed to the Red Chamber. As of July 2000, there were 35 women Senators sitting as part of the 104-member body, the largest number yet.