Oh Canada

Are women people? Believe it or not, this very question was posed as late as the 1920’s (specifically, August 27, 1927) when five Canadian women asked the Supreme Court of Canada to decide whether “the word ‘Persons’ in Section 24 of the British North America Act, 1867, include female persons?” That particular Act is a major part of Canada’s constitution and defines most of the operation of Canada’s government. These ladies specifically wanted the Court to determine if women were eligible to sit in the Canadian Senate.

The ‘Famous Five’ or ‘Valiant Five’ as they came to be known included the British Empire’s first female judge, Alberta’s first female Cabinet minister, a famous suffragist, the first woman elected to any legislature in Canada or the British Empire, and a founding member of the Victorian Order of Nurses. The whole thing started with Emily Murphy (the judge) who attempted to attend a trial of women accused of prostitution in 1916, but was barred because the testimony wasn’t “fit for mixed company.” She argued that, in that case, the trial should be heard by a special court presided over entirely by women. Surprisingly, the Attorney General of Alberta agreed and appointed her the court’s magistrate. But then one of the more sexist lawyers claimed she couldn’t sit as a judge because women weren’t actually ‘persons’ under the British North America Act. The Supreme Court of Alberta declared that not to be the case in 1917, so the matter was settled for Alberta, but not for the rest of Canada.

Emily decided to see how far she could take this by allowing her name to be put forward as a candidate for Senate. She was rejected, because she wasn’t really a person in the rest of Canada, and when 500,000 people signed a petition asking her to be appointed, the Canadian Prime Minister responded that an 1876 British common law ruling determined that “women were eligible for pains and penalties, but not rights and privileges.” So, essentially, women in Canada were human enough to be punished for wrongdoing, but not citizen enough to partake of any of the nicer aspects of being a Canadian, like having a say in the creation of the very laws that could one day send them to jail.

Emily thought that was pretty stupid, so she got four other prominent ladies together (at least five people must sign a petition asking for constitutional clarification from the Supreme Court), and over tea on August 27, they signed their petition. It was submitted to the Court on October 19, the court heard the case on March 14, 1928, and handed down its decision on April 24. Three of the five justices determined that ‘persons’ did not actually include women in this case, and women could not, therefore, sit in Parliament without new legislation explicitly allowing them to do so.

The case was then brought to the attention of the Judicial Committee of the Privy Council, which felt differently. The committee determined that the meaning of ‘qualified persons’ in the Act could be read broadly to include women, and that “the exclusion of women from all public offices is a relic of days more barbarous than ours…To those who ask why the word [person] should include females, the obvious answer is why should it not?” In case you’re wondering, the wise man who wrote those words on behalf of the committee was Lord Sankey.

Sankey went on to propose a whole new approach to constitutional interpretation known as the Living Tree Doctrine. It holds that “the British North America Act planted in Canada [is] a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions, it has been subject to development through usage and convention.” Would that all countries believed their constitutions were capable of growth and change over time.

Despite the decision, Emily Murphy was not appointed to the Canadian Senate. However, only a year after Sankey’s decision, Cairine Reay Wilson was appointed, and in October 2009, the Senate voted to name the Valiant Five the country’s first “honorary senators.”

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