Emily Murphy - The Persons Case

The Persons Case

Murphy’s success in the fight for the Dower Act, along with her work through the Local Council of Women and her increasing awareness of women’s rights, influenced her request for a female magistrate in the women’s court. In 1916, Murphy, along with a group of women, attempted to observe a trial for women who were labelled prostitutes and were arrested for "questionable" circumstances. The women were asked to leave the courtroom on the claims that the statement was not "fit for mixed company". This outcome was unacceptable to Murphy and she protested to the provincial Attorney General. "If the evidence is not fit to be heard in mixed company," she argued, "then the government must set up a special court presided over by women, to try other women." Murphy’s request was approved and she became the first woman police magistrate for the British Empire. Her appointment as judge, however, became the cause for her greatest adversity concerning women within the law. In her first case in Alberta on 1 July 1916, she found the prisoner guilty. The prisoner's attorney called into question her right to pass sentence, since she was not legally a person. The Provincial Supreme Court denied the appeal.

In 1917, she headed the battle to have women declared as “persons” in Canada, and, consequently, qualified to serve in the Senate. Lawyer, Eardley Jackson, challenged her position as judge because women were not considered “persons” under the British North America Act 1867. This understanding was based on a British Common Law ruling of 1876, which stated, "women were eligible for pains and penalties, but not rights and privileges."

Murphy began to work on a plan to ask for clarification of how women were regarded in the BNA act and how they were to become Senators. In order for her question to be considered, she needed at least five citizens to submit the question as a group. She enlisted the help of four other Albertan women and on 27 August 1927 she and human rights activist Nellie McClung, ex MLA Louise McKinney, women’s rights campaigners Henrietta Edwards and Irene Parlby signed the petition to the federal Cabinet, asking that the federal government refer the issue to the Supreme Court of Canada. The women's petition set out two questions, but the federal government re-framed it as one question, asking the Supreme Court: "Does the word 'person' in Section 24 of the British North America Act include female persons?" The campaign became known as The Persons Case and reached the Supreme Court of Canada on March 1928. The Court held that women were not qualified to sit in the Senate. The five women then appealed to the Judicial Committee of the Privy Council in Britain. On 18 October 1929, in a decision called Edwards v. Canada (Attorney General), the Privy Council declared that women were considered as "persons" under the BNA Act and were eligible to serve in the Senate.

The women were known as the Famous Five and were considered leaders in education for social reform and women’s rights. They challenged convention and established an important precedent in Canadian history. In Canada’s Senate Chamber, the five women are honoured with a plaque that reads, "To further the cause of womankind these five outstanding pioneer women caused steps to be taken resulting in the recognition by the Privy Council of women as persons eligible for appointment to the Senate of Canada." Murphy, along with the rest of the Famous Five, was featured on the back of one of the Canadian 50 dollar bills issued in 2004 as part of the Canadian Journey Series. In October 2009, the Senate voted to name Murphy and the rest of the Five Canada's first "honorary senators."