First Person. Valerie Knowles
of women under the BNA Act and the Act’s implications for their eligibility for appointment to the Senate.
In 1919, at the first conference of the Federated Women’s Institutes of Canada, Magistrate Murphy, by now the president of the FWIC, spearheaded a unanimous resolution requesting the Canadian government to appoint a woman to the Senate. The request was soon taken up by many other women’s organizations, including the powerful National Council of Women.
Two years later the Montreal Women’s Club, under the presidency of a resolute feminist, Mrs Isabella Scott, threw vagueness to the winds and asked Prime Minister Arthur Meighen point-blank to name Mrs Murphy to the Senate. Meighen turned down the request. Nevertheless, he was sufficiently impressed by the Club’s petition to promise during the 1921 election campaign to appoint a woman to the Senate if he was re-elected. The promise was unredeemed, however, when the Conservative Party went down to defeat.3
Despite such setbacks the issue did not die. Throughout the 1920s, Canadian women’s organizations continued to lobby the Government to appoint a woman to the Senate, but to no avail. Then, in 1927, an aroused Emily Murphy embarked on a new course of action. After consulting with her brother, Mr Justice Ferguson of the Supreme Court of Ontario, she decided to take advantage of Section 60 of the Supreme Court Act, which allows for any five interested persons to petition the Government for an order-in-council directing the Court to rule on a constitutional point in the BNA Act. Mrs Murphy applied to the Government for leave to present such a petition and was successful.4 Indeed, the Government considered the subject of the petition so important that it decided to defray all legal expenses associated with it.
Senator Wilson flanked by her two sponsors on the opening day of Parliament, 20 February 1930. Left to right: Hon. Raoul Dandurand, Cairine Wilson and the Right Hon. George Graham.
Then Emily Murphy found four “interested persons” to sign the petition with her. Her first choice was a friend and colleague, Nellie McClung, novelist, temperance worker and suffragist. The next person selected was Louise McKinney, a leading Women’s Christian Temperance Union organizer and an ex-member of the Alberta legislature. One of the two remaining appellants was English-born Irene Parlby, who served as Minister without Portfolio in Alberta for fourteen years. The other was Henrietta Muir Edwards, a prominent feminist, who in 1908 compiled a summary of Canadian laws relating to women and children and later wrote two books pertaining to the legal status of women.
Since the Government was assuming their legal expenses, Mrs Murphy and her fellow petitioners chose a well-known Toronto lawyer, Newton Wesley Rowell, to present their case in Ottawa and subsequently in London. To add to his already impeccable credentials, Rowell had demonstrated his strong support of woman suffrage in 1916 and 1917 when he was leader of the Liberal Opposition in the Ontario legislature.
The petition was forwarded to Ottawa in August 1927 and the following March the case reached the Supreme Court. After weeks of deliberation and despite Rowell’s well-sustained arguments, the five Supreme Court justices decided that the BNA Act must be interpreted in the light of what was intended when it was drawn up and because women did not hold public office of any kind in Canada in 1867, they were not eligible for elevation to the Senate in 1928.
All five Supreme Court judges ruled that women were ineligible, but for different reasons. Chief Justice Anglin and three other judges adopted a medieval approach to the question, invoking a common law rule that barred women from exercising any public function because historically only men had fought in battle and had been considered fit to govern. For his part, Lyman Duff, the fifth judge, rejected the proposition that section 24 of the BNA Act contained “a general presumption against the eligibility of women for public office.” In language chosen with the utmost care, he wrote:
It might be suggested, I cannot help thinking, with some plausibility, that there would be something incongruous in a parliamentary system professedly conceived and fashioned on this principle, if persons fully qualified to be members of the House of Commons were by an iron rule of the constitution, a rule beyond the reach of Parliament, excluded from the Cabinet or the Government; if a class of persons who might reach any position of political influence, power or leadership in the House of Commons, were permanently, by an organic rule, excluded from the Government.5
And he noted that:
...the Constitution in its Executive Branch was intended to be capable of adaptation to whatever changes (permissible under the Act) in the law and practice relating to the Election Branch might be progressively required by changes in public opinion.6
Having said all this, however, Duff still could not rule in favour of the women. Instead, he concluded that “there is much to point to an intention that the constitution of the Senate should follow the lines of the Constitution of the old Legislative Council under the Acts of 1791 and 1840,” from which women had always been excluded. In other words, according to a strict reading of section 24, only male persons qualified for appointment to the Senate.7 This argument would later be struck down by the Judicial Committee of the Privy Council in Great Britain which, in so doing, would pave the way for the appointment of the first woman to the Canadian Senate. That woman was, of course, Cairine Wilson, who, ironically, was a great friend of Lyman Poore Duff, a future Chief Justice of the Supreme Court. Equally ironic, Cairine Wilson herself would cling to the mistaken belief that Duff had broken ranks with his colleagues on the bench and ruled in favour of the appellants.8 But all this lay in the future.
On the same day that Chief Justice Anglin delivered the Supreme Court judgment — 24 April 1928 — Mackenzie King’s Minister of Justice, Ernest Lapointe, announced in the House of Commons that the Government would act immediately to have the BNA Act amended to permit the appointment of women to the Senate. When a year later no steps had been taken to implement Lapointe’s promise, the “five persons” requested an order-in-council allowing them to appeal to His Majesty’s Privy Council in London. The request was granted and Mr Lapointe’s department agreed to defray the costs of the action. Decades later, in the midst of tense leadership balloting at the 1958 Ontario leadership convention, Cairine Wilson would refer to her old friend Ernest Lapointe’s role in the case. With perhaps unconscious humour, she observed, “My unmerited distinction in being the first woman named to the Senate was due to the interest the Right Honourable Ernest Lapointe, minister of justice, took in women.” Not surprisingly, this remark brought down the house.9
Certainly the Gilbertian overtones of five learned British judges deliberating the meaning of the words “qualified Persons” as found in section 24 of the BNA Act did not escape the notice of one observer. In a Canadian Press account describing the arguing of the Persons case by the Judicial Committee of the Privy Council in July 1929, Lukin Johnston wrote:
In a quiet room at Number One, Downing Street, five great judges, with the Lord Chancellor of England at their head, and a battery of bewigged lawyers from Canada and from England, are wrestling with a question, propounded on behalf of their sex, by five Alberta women.... Deep and intricate questions of constitutional law are debated back and forth. The exact shade of meaning to be placed on certain words is argued to the finest point.... And so it goes on, and probably will continue to go on for several days. At the end of all these endless speeches, lessons on Canadian history, and questions by five great judges of England, it will be decided, if one may hazard a guess, that women undoubtedly are Persons. Which one may say, without exaggeration, most of us know already!10
Lukin Johnston was prescient. For, on 18 October 1929, Lord Sankey, the Lord Chancellor, delivered a judgment reversing the decision of Canada’s Supreme Court. The crux of that judgment read:
Their Lordships have come to the conclusion that the word persons includes members of the male and female sex and that therefore the question propounded by the Governor-General must be answered in the affirmative; and that women are eligible to be summoned and become members of the Senate of Canada.11
Upon learning of the Privy Council ruling, the Ottawa Evening Journal rhapsodized:
We