Prepared by: Karina Pogosyan
March is Women’s History Month, with March 8th being recognized as International Women’s Day. To celebrate and honour the women who have championed equality rights in Canada, SWL is highlighting the activism and achievements of some notable women in Canadian history, and their contributions to furthering the rights of women in this country.
Less than 100 years ago, in 1927 Canada, women’s legal rights looked very different than they do today. While Canadian women had the right to vote in federal and provincial elections, as well as run for office in most, but not all provinces (exceptions being Quebec and New Brunswick), the Senate still remained closed to women. This was because under s. 24 of The British North America Act, 1867, only “qualified persons” could be appointed to the Senate of Canada. In 1867, “person” was legally understood to refer to men only and the Canadian government continued to interpret it that way.
The Famous Five, composed of five prominent Canadian women’s rights activists, Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Emily Murphy, and Irene Parlby, set out to change that. They sought to ensure that women could not be denied rights based on narrow interpretations of the law and were able to fully participate in all stages of Canada’s legislative process and political life.
In 1927, they petitioned the Governor General of Canada to ask the Supreme Court about the right of women to be appointed to the Senate. The question before the Supreme Court in the Edwards v A.G. of Canada – or the Persons Case as it came to be known – was: “Does the word ‘Persons’ in Section 24 of the British North America Act, 1867, include female persons?”
In 1928, the Supreme Court unanimously declared that women were not “persons” according to The British North America Act, 1867 (now Constitution Act, 1867), based on the premise that the term “persons” should be interpreted in the same way in 1928 as it was in 1867. Since women were not specifically mentioned, they could not have been contemplated by the drafters of the legislation.
The Famous Five appealed and that decision was reversed by the Judicial Committee of the Privy Council in London, England the next year, in 1929. The Lord Chancellor, Viscount Sankey, delivered the decision on behalf of the Judicial Committee, reasoning as follows:
“…exclusion of women from all public offices is a relic of days more barbarous than ours…and to those who ask why the word [persons] should include females, the obvious answer is why should it not.”
This ruling meant that women could no longer be denied rights based on a narrow interpretation of the law and enabled them to serve in both the House of Commons and the Senate. This decision is also significant because Viscount Sankey set out the living tree doctrine of constitutional interpretation that has become a foundation of Canadian constitutional law:
“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits…Their Lordships do not conceive it to be the duty of this Board…to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation…”
The Famous Five’s achievement for the advancement of rights of women in Canada is commemorated with monuments in Calgary and Ottawa.
Today, the Famous Five’s legacy in Canada lives on, with women fully being able to participate and being represented in all spheres of political life. For example, in 2013, women were elected premiers leading the provincial governments in Ontario, Quebec, British Columbia, Alberta, Newfoundland and Labrador and Nunavut.
SWL is an all-women, women-led law firm and is a proud supporter of women’s equality in Canada. Connect with us today!
