October 18, 2021 marks the 92nd anniversary of the decision in the Persons Case. On this day in 1929, the Judicial Committee of the Privy Council (“JCPC”) decision (formally known as Edwards v Canada (AG)) legally recognized some women as “persons” in Canada and established their right to be appointed to the Senate of Canada.
Although some women had been granted the right to vote in federal elections in 1918 (subject to racial prohibitions) and received the right to stand for office in the House of Commons in 1919, prior to the Persons Case, women were still barred from running for the Senate. At the time, s. 24 of the British North America Act (“BNA Act”) provided that only “qualified persons” could be appointed to the Senate. The BNA Act did not specify whether “qualified persons” included women.
Emily Murphy, a prominent suffragist and magistrate from Alberta, decided to test the definition of “qualified persons”, and allowed her name to be submitted as a candidate for the Senate. A huge debate followed as to whether or not she was eligible to sit as a Senator, as “qualified persons” had previously been interpreted to include only men.
Interestingly, Justice Murphy had previously faced a similar challenge when a lawyer disputed her ability to sit as a judge in. In 1917, the Alberta Supreme Court definitively ruled that women were "persons" under the BNA Act and thus qualified to sit as judges. However, this decision from a provincial court did not settle the issue in other provinces or in the federal jurisdiction.
Murphy joined four other women leaders in Alberta; Henrietta Muir Edwards, Nellie McClung, Louise McKinney and Irene Parlby, together forming a group known as the “Famous Five”, and petitioned the Supreme Court to rule on whether section 24 of the BNA Act included women in its definition of “persons”.
In 1928, the Supreme Court of Canada ruled that women were not “qualified persons” under the BNA Act and thus, ineligible to sit in the Senate.
The Famous Five appealed, and the JCPC overruled the Supreme Court's decision. In its landmark decision, the JCPC concluded 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".
Although this date is engrained in history as one of the most significant and pivotal for women’s rights in Canada, even after this decision, Canadian laws continued to deny basic civil rights to racialized and Indigenous women in Canada.
For example, in January 1934, the Dominion Franchise Act explicitly disqualified Inuit and ‘Status Indians’ from voting in federal elections. In January 1948, the Citizenship Act was revised to extend the right to vote federally and provincially to Chinese-Canadian and South Asian-Canadians, but excluded other groups such as Japanese-Canadians. On July 1, 1960, Indigenous Canadians were finally granted the right to vote federally, though Indigenous peoples were still excluded from some provincial franchises until 1969. Systemic race and gender discrimination continues in Canada’s inaction on issues like murdered and missing Indigenous women.
While the Persons Case
signified an important milestone for Canadian women, 92 years later, the struggle for removing barriers from all women’s equal participation in society—and especially barriers to racialized and Indigenous women—continues.