Feb. 1, 2019

The Famous Five: The fight to be considered "persons" under the law

Until 1929, women were not considered "persons" under Canadian law. Five women banded together to push for change in courts in Canada and beyond.

When Emily Murphy and her husband, an Anglican minister, moved to Edmonton in 1907, she quickly discovered that women had very few rights and even fewer laws that protected them. If their husbands ran off, sold the farm or other male relatives abandoned them, the women and their children were left destitute.

That simply wouldn’t do.

Murphy threw her energy into researching the plight of women and “lobbied like hell” for years for Alberta to bring in laws that offered women some protection, writes Professor Aritha van Herk in Mavericks: An Incorrigible History of Alberta. Murphy’s various ladies’ committees started championing the cause of women who were tossed into the judicial system for one reason or the other. Murphy and her ilk were “tough do-gooders who made it their business to attend court cases and to intervene if they saw fit.”

Eventually Murphy saw fit to lobby that a woman be appointed to the bench to preside over the cases of women, from those who forgot to pay dog taxes to desperate alcoholics or prostitutes. And that’s how, in 1916, Murphy became the first female judge in the Commonwealth. On her first day on the bench, and on many days thereafter, she had to tolerate lawyers objecting to appearing before her because, they would argue, women weren’t considered “persons” under the British North America Act, Canada’s then-constitution.

Murphy also aspired to be Canada’s first female senator. While a few prime ministers over the years said they supported her ambition, none would actually do anything about appointing her to the red chamber. Alas, only “qualified persons” were allowed to sit in the Senate. Murphy spent ten years working on politicians to change the law. “The fight seemed to fizzle, until Murphy discovered that if five persons acting as a unit could petition the Supreme Court to interpret the BNA Act, the issue would have to be heard by the court,” writes van Herk, a novelist and creative writing professor in UCalgary's Faculty of Arts.

So Murphy gathered the “four women she trusted the most”: journalist Henrietta Muir Edwards and three elected members of the Alberta Legislative Assembly — Nellie McClung, Louise McKinney and Irene Parlby. In 1927, the Famous Five, as they became known, got to work pushing for clarification around the word “person” in the constitution. The matter got to the Supreme Court of Canada in 1928, where the judges ruled “person” did not, in fact, include women.

The prime minister gave his approval and the Famous Five pressed on, appealing the case to the Judicial Committee of the Privy Council of Great Britain. In 1929, the Lord Chancellor of Great Britain announced: “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.”  While Murphy never did get appointed to the senate, the Famous Five have been immortalized and celebrated in bronze statues in downtown Calgary and on Parliament Hill.


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