But major obstacles had yet to be overcome. A handwritten note by Judge Newcombe in the margin of a brief intended to close the case, and the subject, stated that women were not qualified for the Senate because the word “senator” does not describe a woman. There was no Latin word to describe a female senator, he wrote, and the name of senator does not apply to a woman.7 On February 4, 1928, he refused to hear the “persons” case.
To Emily Murphy, the admission of women to the Senate was also the culmination of three decades of struggle for Alberta women to improve their lot. Working within women’s organizations, they had gained the right to vote, the passage of laws on prohibition, and better economic conditions for farmers. In 1916, women had the right to vote and run for elected office in Manitoba and Alberta. In 1917, they voted at the federal level on behalf of men who were at war, and the following year, every Canadian woman could vote in her own name. After Agnes McPhail was elected to the House of Commons in 1921, becoming the first woman to sit as a Member of Parliament, admitting women to the Senate became once again a burning issue. The death of an Alberta senator in the following year revived the Alberta women’s militancy. They seized the opportunity and proposed that Emily Murphy be appointed to fill the vacant seat.
Alas, this attempt was no more successful than the others. They were told that “The gentlemen would like nothing better than to have women in the Senate but the British North America Act made no provision for women and the members feared that women could not be appointed to the Senate until this great foundation of our liberties was amended and that would take time and careful thought.”8A few years later, however, Prime Minister Mackenzie King made a promising move and asked Senator McCoig from Chatham to propose an amendment to the BNA Act. The motion was duly recorded in the agenda of June 25, 1923 but, apparently due to lack of time, it was neither proposed that day nor reinstated later.
The BNA Act remained a convenient screen behind which the senators and the federal government could hide their refusal to take action. So much so that in 1927 Emily Murphy decided to test the strength of that screen. She had found a little-known section of the Supreme Court Act that allowed five persons to petition the government to obtain an interpretation on a point of law within the BNA Act. This section also provided that the government would bear the costs of the petition. And so, on August 27, 1927, Emily Murphy invited Nellie McClung, Irene Parlby, Louise McKinney and Henrietta Muir Edwards to cosign a letter addressed to the Governor General asking that the Supreme Court hear and rule on two constitutional questions : “1. Is power vested in the Governor-General in Council of Canada, or the Parliament of Canada, or either of them, to appoint a female to the Senate of Canada? 2. Is it constitutionally possible for the Parliament of Canada under the provisions of the British North America Act, or otherwise, to make provision for the appointment of a female to the Senate of Canada?”
With regard to appointments to the Senate, section 24 of the BNA Act provided that “The Governor General shall from Time to Time... summon qualified persons to the Senate...”. Properly qualified persons had to be at least 30 years old, hold property, be worth at least four thousand dollars and reside within the province for which they were appointed. Numerous women met the requirements. It remained to be determined if they were “persons”.
The petition arrived at an opportune moment, because the 1927 Dominion-Provincial Conference had put Senate reform on its agenda and the women’s second question dealt indeed with procedures for amending the BNA Act. However, admission of women into the Senate was not on the Conference agenda.
Prime Minister Mackenzie King referred the petition to the Minister of Justice, Ernest Lapointe, who thought that, in spite of previous decisions, it would be an act of justice to the women of Canada to obtain the opinion of the Supreme Court of Canada upon the point. The Privy Council Committee accepted the Justice Minister’s recommendation and on October 19, 1927, referred the following question to the Supreme Court: “Does the word ‘Person’ in section 24 of the British North America Act, 1867, include female persons?” On October 29, the Supreme Court announced that the case would be heard on February 28, 1928, but the hearing was postponed to March 14 at the request of the Quebec Superior Court. The provinces were invited to provide their legal opinions on the appointment of women to the Senate, and they all declined except Quebec9 and Alberta. The case was heard in the presence of the Solicitor General for Canada, the Attorney General for the province of Quebec, and the petitioners. N.W. Rowell, Q.C., former Leader of the Opposition in Ontario, who favoured women’s suffrage, represented the petitioners as well as the Alberta Government.10
In the meantime, Emily Murphy learned that the wording of the question submitted to the Supreme Court was different from what the petitioners had specified. Wasting no time, she wrote on November 9, 1927 to the Deputy Minister of Justice, W. Stuart Edwards, pointing out that the question referred to the Supreme Court was not the one submitted by the petitioners “either in word or meaning” and that it was “in consequence, a matter of amazement and perturbation” to the five petitioners. They had deliberately avoided using the word “persons” because, on several occasions, representatives of the Crown had declared publicly that, according to the BNA Act, women were not “persons”. She emphasized the omission of the second question that asked about a constitutional amendment if their case were not upheld. To clarify the situation even further and avoid more delays, she asked a third question: “3. If any statute be necessary to qualify a female to sit in the Senate of Canada, must this statute be enacted by the Imperial Parliament, or does power lie with the Parliament of Canada, or the Senate of Canada?”
- National Archives of Canada, Supreme Court of Canada Fonds, RG 125, vol. 563, file 5426. This file contains mainly arguments from the defence, the Solicitor General for Canada, the Attorney General for Quebec, and the Privy Council Order no. 2034, dated October 19, 1927, referring the case to the Supreme Court.