In the 1920s five Alberta women fought a legal and political battle to have women recognized as persons under the BNA Act. The landmark decision by the British Privy Council, the highest level for legal appeals in Canada at the time, was a milestone victory for the rights of women in Canada.
The British North America Act, or BNA Act, of 1867, created the Dominion of Canada and provided many of its governing principles. The BNA Act used the word "persons" to refer to more than one person, and "he" to refer to one person. A ruling in British common law in 1876 emphasized the problem for Canadian women by saying "Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges."
When Alberta social activist Emily Murphy was appointed in 1916 as the first woman police magistrate in Alberta, her appointment was challenged on the grounds that women were not persons under the BNA Act. In 1917, the Alberta Supreme Court ruled that women were persons. That ruling only applied within the province of Alberta however, so Emily Murphy allowed her name to be put forward as a candidate for the Senate, at the federal level of government. Canadian Prime Minister Sir Robert Borden turned her down, once again because she was not considered a person under the BNA Act.
For years women's groups in Canada signed petitions and appealed to the federal government to open the Senate to women. By 1927, Emily Murphy decided to appeal to the Supreme Court of Canada for clarification. She and four other prominent Alberta women's rights activists, now known as the Famous Five, signed a petition to the Senate. The question asked was "Does the word "persons" in Section 24, of The British North America Act, 1867, include female persons?"
On April 24, 1928, the Supreme Court of Canada answered "no." The court decision said that in 1867 when the BNA Act was written, women did not vote, run for office, nor serve as elected officials; only male nouns and pronouns were used in the BNA Act; and since the British House of Lords did not have a woman member, Canada should not change the tradition for its Senate.
With the help of Canadian Prime Minister Mackenzie King, the Famous Five appealed the Supreme Court of Canada decision to the Judicial Committee of the Privy Council in England, at the time the highest court of appeal for Canada.
On October 18, 1929, Lord Sankey, Lord Chancellor of the Privy Council, announced the British Privy Council decision that "yes, women are persons ... and eligible to be summoned and may become Members of the Senate of Canada." The Privy Council decision also said "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 should it not?"
In 1930, just a few months after the Persons Case, Liberal Prime Minister Mackenzie King appointed Cairine Wilson to the Canadian Senate. Many expected Emily Murphy, a Conservative, to become the first woman appointed to the Canadian Senate because of her leadership role in the Persons Case, but Cairine Wilson's work in Liberal party political organization took precedence with the Liberal prime minister.
The five Alberta women responsible for the Persons Case victory are now known as "the Famous Five." Here are their biographies.
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