What was the Persons Case?

The Persons Case (Edwards v. Canada, Attorney General) was a 1929 decision of the Judicial Committee of the Privy Council in London that ruled women were 'persons' eligible for appointment to the Senate of Canada under section 24 of the British North America Act, 1867. The decision was delivered by the Lord Chancellor Lord Sankey on October 18, 1929. It overturned the Supreme Court of Canada's 1928 ruling that women were not 'qualified persons' for Senate appointment. The case is celebrated as a landmark in Canadian women's rights history.

The case was brought by the Famous Five, five Alberta women's-rights advocates: Emily Murphy (1868 to 1933, Canada's first female magistrate, appointed in Edmonton in 1916), Henrietta Muir Edwards (1849 to 1931, founder of the Working Women's Hostel and convener of the National Council of Women's laws committee), Nellie McClung (1873 to 1951, the leading suffragist), Louise McKinney (1868 to 1931, the first woman elected to a Canadian legislative assembly), and Irene Parlby (1868 to 1965, Alberta Cabinet minister). The Famous Five used the constitutional procedure of asking the federal government to refer a question to the Supreme Court of Canada under section 60 of the Supreme Court Act.

The reference asked: 'Does the word "Persons" in Section 24 of the British North America Act, 1867, include female persons?' The Supreme Court of Canada heard the case in March 1928 and delivered its opinion on April 24, 1928, ruling unanimously that women were not 'persons' for the purposes of Senate appointment. The Court relied on common law tradition holding that women had historically been excluded from public office and on a literal reading of the Act in its 1867 context.

The Famous Five appealed to the Judicial Committee of the Privy Council in London, then Canada's highest court of appeal. Lord Sankey wrote that the British North America Act 'planted in Canada a living tree capable of growth and expansion within its natural limits' and that the Act should be given 'a large and liberal interpretation' to keep up with changing times. Sankey's 'living tree' doctrine has become the leading approach to constitutional interpretation in Canada and was reaffirmed in the 1981 Patriation Reference and many subsequent cases. Cairine Wilson became the first woman appointed to the Senate of Canada on February 15, 1930. The Famous Five are commemorated by statues on Parliament Hill (Ottawa, 2000) and at the Alberta Legislature (Edmonton, 1999), and by the federal Persons Day (October 18) and the Governor General's Awards in Commemoration of the Persons Case (annual since 1979).