October 2020: Women’s History Month

In 1992, the Government of Canada designated October as Women’s History Month. According to the Women and Gender Equality (formerly known as the Status of Women) webpage, it is “a time to celebrate the women and girls from our past, and our present, who are contributing to a better, more inclusive Canada.”

Did you know that less than 100 years ago on October 18, 1929 a famous Canadian constitutional case of Edwards v. A.G. Canada (Attorney General), more commonly known as The Persons Case had implications for women that went beyond the realm of politics?

If you recall, the British North America Act (“the Act”) of 1867, also known as the Constitution Act was the governing piece of legislation that established the powers and responsibility of the provinces and the federal government. The use of the word “persons” in the Act meant more than one person, and “he” when referring to only one.

Many, including government, argued that because only the word “he” was used, it implicitly meant that only men were persons and therefore women were not allowed to fully participate in politics or other areas of life.  For example, if the word “person” applied only to men, then the stipulation that only “qualified persons” could be appointed to the Senate of Canada meant that only men could be appointed.

In May 1918, the majority of women over the age of 21 could vote in federal elections. In 1919, they earned the right to stand for office in the House of Commons. By 1927, women could vote in federal and most provincial elections (not Québec) however still could not sit in the Senate thanks to the interpretation of the word “persons” under the Act. It is important to note that the Act did not specifically exclude women from the definition. Societal interpretation in 1867 implied only men and by 1927 this was not changed.

A long-time advocate for the protection of the rights of women and children, Emily Murphy had been proposed to sit in the Senate in 1922. She was the first female magistrate in the British Empire after arguing for the rights of women who were alleged prostitutes to have a fair trial. However, the rationale that as a women she was not recognized as a person was used to block her advancement. This was not the first time in Murphy’s history that she had heard this argument. On her first day as a magistrate, she was challenged by a lawyer who argued that she was legally not a person in the eyes of the law and therefore was not allowed to sit as a magistrate.

Murphy was joined by four other women who were known leaders, politications, reformists, or activists for the rights of women and children: Nellie McClung, Irene Parlby, Louise McKinney and Henrietta Muir Edwards. They became known as the Famous Five.

In the Persons Case of 1927, the Famous Five questioned the Supreme Court of Canada regarding women not being included in the word ‘person’ according to the Act.  After weeks of debate, the court ruled that the word ‘person’ would continue to exclude women.

The five women were not deterred. They went to London, to the Judicial Committee of the Privy Council of Great Britain, this being the highest level of court appeal possible at the time. On October 18, 1929, the Lord Chancellor of Great Britain, Lord Sankey, announced the decision:

“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 {person} should include females, the obvious answer is, why should it not?”

Here’s to Strong Women. 

May we know them, May we be them, May we raise them.

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