The "Persons" Controversy: The Legal Aspects of the Fight for Women Senators Rudy G. Marchildon University of Victoria Canada is a country where anniversary treating the subject in this manner, it becomes celebrations play a large role in maintaining apparent that the "persons" case, although in• the historical consciousness of the people. The teresting as an issue in legal history, does not women's movement has not escaped this represent the major breakthrough that the at• phenomenon. Thus, in 1979, the country wit• tention it received in 1979 would have us nessed the spawning of numerous projects, believe. conferences and articles celebrating the fiftieth anniversary of the "persons case" decision. Judging from the attention that it received, the In Canada the "persons" problem had a obvious conclusion would be that the case relatively short, albeit volatile, career. It first represented a significant step in the evolution became an issue in 1916, shortly after Emily of women's rights in Canada as well as an im• Murphy was appointed Police Magistrate for portant development in Canadian legal the newly created Women's Court of Ed• history. monton.1 Although she had no formal legal training, members of her family in Ontario The central focus of discussions of the case were firmly associated with that calling. Her has been the fact that, incredulous as it might brother William Ferguson, for example, seem, Canadian women, until 1929, were not became a Judge in that province in 1916.2 Her legally considered to be "persons." But, like cousin Howard Ferguson, who became the most historical events, context is a key in un• Conservative Premier of Ontario in 1923, also derstanding the whole story. This paper practised law prior to embarking upon his focuses on two interacting forces that place the political career.3 According to her biographer, "persons" case in the broader framework of Murphy had received an excellent education Canadian constitutional and legal history. It and had often discussed the law with her father examines the historical development of the per• and brothers. As soon as she was appointed sons issue in Canada and illustrates the un• Police Magistrate, she made good use of her derlying theme of Senate reform and judicial past experiences and set out to correct existing mandate that influenced the final outcome. By deficiencies in her legal knowledge.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) The appointment had made Murphy the maintaining the rights of women to hold first woman Magistrate in the British Empire. positions in the judiciary, other activities of a However, this distinction did not prevent her more aggressive nature aimed at gaining ad• from having difficulties.5 On her first day in ditional privileges for women were taking place court, an Edmonton defense lawyer objected to in the Dominion. In 1919, partly as a response her presence on the bench on the grounds that to a heightened sense of political awareness she was not eligible to hold the office because of resulting from successes in the suffrage her sex. The comment was also made that this struggle and partly as a result of vacancies in was based on a long-standing interpretation of the Senate, the Federated Women's Institutes the word "person" and how it applied to of Canada and the National Council of 6 eligibility for public office. Although the Women petitioned the federal government to remark had no effect upon the outcome of the have a woman appointed to the Upper House. trial, it had a profound impact upon The argument used by the petitioners was that Magistrate Murphy. The lawyer's comment since the Senate considered legislation that af• whetted her interest and she began to in• fected women and children, it was only right vestigate the implications of what he had said. that women should be represented so as to To her surprise and consternation, she found 10 safeguard their interests in that House. that women under British Common Law7 were only considered to be persons in "the matter of pains and penalties, but not in the matter of In a sense the women were correct in using rights and privileges."8 this argument. The function of the Senate is to oversee the activities of the House of Com• mons, thereby guaranteeing that the elected Even though the same point was brought up representatives do not get carried away with numerous times in her courtroom, nothing spontaneous, ill-considered legislation promot• came of the matter until Alice Jamieson was ed by vote-getting, crowd-pleasing rhetoric appointed Police Magistrate for the Women's and motives. In order to carry out this multi- Court of Calgary. She too encountered the faceted duty, Senators have a designated term "person" arguments that Emily Murphy had of appointment and thus, theoretically, are faced. This state of affairs existed until 1918, above the petty squabblings and intrigues of when, in an appeal arising from the Calgary the House of Commons politician. Further, all court, the Honourable Mr. Justice Scott of the pieces of federal legislation must be approved Supreme Court of Alberta ruled that as far as by the Senate before becoming law. that province was concerned, "there was at Significantly, however, Senators are appointed common law no legal disqualification for to represent a region of the country, not a class holding public office arising from any distinc• 11 9 or group of people. Therefore, the notion tion of sex." Of course, this Judge's decision that there should be women Senators to protect had little influence upon the interpretation of the interests of Canadian women could be "person" in other parts of Canada because challenged as being at odds with the actual provincial legal decisions carry almost no functions and duties of Senators.12 weight when they represent new explanations of long-standing precedents such as the "per• sons" interpretation. Although the arguments presented by the petitioners for the admission of women to the Whereas the Alberta decision can be seen as Senate had considerable merit, the request was a defensive action, in that it was aimed at denied. The basis of this refusal was not the "Tightness" of women's representation in the prairies, noted with dismay in September Senate, but rather, the constitutional in• 1921, that a delegation of women had pressed terpretation of the word "persons" as it per• Prime Minister Meighen for the appointment tained to qualifying for the Senate.13 No doubt of Emily Murphy to the Senate. The editorial this pronouncement came as a surprise to did not oppose women in the Senate but many Canadian women who had never rather, it objected to the very existence of that questioned the possibility that they were not Chamber. It stated: persons. It does not look well, to say the least, to For the next five years considerable activity see women, directly they become en• was focused on the question of the eligibility of franchised, playing the game just as the women to sit in the Senate. In January 1921, men played it and hunting for special the secretary of the Montreal Women's Club favors and privileges presumably as the wrote to Emily Murphy asking if she would price of their votes. A non-elected Senate allow her name to be put forward as that club's is an anachronism; it should have no nominee for the Senate.14 In May of the same place in a democracy and as nobody ever year, Nellie McClung wrote to Senator W.H. knows what goes on in the Senate or cares Sharper to read the speeches of Senators, Mrs. Murphy would only waste her time and The only objection that any person can eloquence in that chamber. She should have to Mrs. Murphy for the Senate is get out and tell the people what reforms that she is a women. She can qualify in a she wants to see established and if they dozen different ways, each one of them approve she will have no difficulty in per• far beyond the qualifications of the suading them to send her to the proper average Senator. She is a writer, a lec• place for the enactment of the required turer, a public-minded citizen, a leader legislation—the House of Commons.16 among women, a woman of open mind and generous heart, who has done much to bring about better conditions in The controversy over the Senate culmi• Canada. She is recognized as an nated, in 1927, in a constitutional conference authority in matters of law, and above all, between the nine provinces and the federal she is our choice at this time. Men and government to discuss various proposals to women all over Canada, east, west, north reform the upper house. Significantly, the and south, are asking for her ap• issue of women's eligibility to the Senate was pointment.15 not mentioned at this gathering. In fact, few references can be found in either the House of It is important to note that this was an era Commons debates or the Senate debates which when mounting criticism was being leveled at even mentioned this reform. There was one the very existence of the Senate.