“I feel equal,” wrote Emily Murphy in 1927, “to high and splendid braveries.” By that point in her life, the 59-year-old native of Cookstown, Ont.’s had earned the right to big ambitions: Her achievements included turns as a successful writer (under the name “Janey Canuck”), social activist, self-taught legal expert and, as of 1916, the first female magistrate in the British Empire. She was also a wife and mother.
What she was not, under the law of Canada, was a “person,” because she was a woman. She discovered that fact on her first day on the bench in 1916. Murphy was challenged by a lawyer who insisted that as a woman, she was not a person under the terms of the British law system then in place in Canada.
Murphy was infuriated by that assertion and decided to change it. Over
the next decade, she gained four important allies — Henrietta Edwards, Louise McKinney, Nellie McClung and Irene Parlby — and together they became known first as “The Alberta Five” and eventually, as their renown grew, “The Famous Five.” All were Alberta residents, and each had a strong will and a commitment to social justice. McClung, McKinney and Parlby had served in the Alberta legislature; the Montreal-born Edwards was an expert in laws related to rights of women and children. They joined as petitioners in the “Persons Case” brought before the Supreme Court of Canada in 1927. The goal was to have women declared legal “persons,” which would make them eligible to hold appointed positions, including in the Senate.
They filed their petition on Aug. 27, 1927, asking whether it was constitutionally possible for a woman to be appointed to the Senate. The federal government referred the question to the Supreme Court, asking: “Does the word ‘Persons’ in Section 24 of the British North America Act, 1867, include female persons?” On April 24, 1928, the court responded, unanimously, that women are not such “Persons.” The judgment’s last line said: “Understood to mean ‘Are women eligible for appointment to the Senate of Canada,’ the question is answered in the negative.” But less than two months later, on Oct. 18, 1929, the British Judicial Committee of the Privy Council, which had precedence over the Supreme Court, overturned that decision.
The Liberal government of prime minister Mackenzie King moved relatively quickly after that, appointing Canada’s first female senator on Feb. 15 of the following year. It was not, however, Murphy (a Conservative), as expected: instead, the choice was Cairine Wilson, a fluently bilingual Montreal native who was a Liberal party activist. Ironically, Wilson’s husband didn’t want his wife to take paid work and advised the governor general that she did not want the position, but Wilson was offered and accepted the appointment anyway. Murphy did not have long to savour her victory: she died in October 1933, aged 65.
Murphy is best remembered, in one of Historica Canada’s Heritage Minutes, among other things, for that successful battle. It still stands as a key step toward women filling more important roles in Canadian politics and society. As one measure of that advancement, today the premiers of Canada’s four most populous provinces — Ontario, Quebec, British Columbia and Alberta — are women, as are the premiers of Newfoundland and Labrador and of the Nunavut territory. Murphy’s achievement also stands in contrast to her views on other issues, such as her opposition to non-white immigration and support of eugenics, a pseudo-scientific study of hereditary issues. The views she expressed on those topics are now clearly offensive and outside of mainstream attitudes and justifiably and negatively affect the way she is remembered. But her achievements on behalf of women remain indisputable, to the benefit of all.
Anthony Wilson-Smith is president of the Historica-Dominion Institute.
