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Remarks of the Right Honourable Beverley McLachlin, P.C.
Famous Five Breakfast
October 17, 2000
We are here today to celebrate the legacy of five women who pursued justice for all Canadian women against many obstacles, and succeeded in obtaining a ruling from the Judicial Committee of the Privy Council recognizing that women were qualified persons for appointment to the Senate of Canada.
As Chief Justice of Canada, I salute these women for the tenacity they demonstrated in achieving a remarkable legal victory, and I, a beneficiary of their efforts, thank them. At the same time, the irony is not lost on me that I am participating in a celebration of the overturning of a judgment of my own Court, albeit one that was handed down in 1928, a little before my time -- an irony that is acute on the occasion this year of the 125th Anniversary of the Supreme Court of Canada and its 50th year as our court of final appeal.
The five women who came together to petition for a Supreme Court ruling on the ability to appoint women to the Senate were in every sense of the word "persons". They were also an unlikely coalition.
Henrietta Muir Edwards came from a background of wealth and privilege in Montreal, and devoted her life to good works. She married a doctor who was dedicated to helping Canada's aboriginal people. Together, they traveled throughout Canada in pursuit of this goal -- travels that took them to southern Alberta. Her life was one of contrasts. She was a close associate of Lady Aberdeen, wife of the Governor General, but she also knew hardship and penury. Indeed, at the time of the petition, she was widowed, had lost two of her three children to illness and childbirth, and reduced to living with her sister in Fort Macleod, Alberta.
The legendary Nellie McClung was a life-long activist for women's causes, sparkling of intellect, quick of tongue and possessed of a devilish sense of humour. She achieved the vote for women in Manitoba and, when circumstances took her there, repeated the feat in Alberta. She became a member of the legislature in Alberta but, at the time of the petition, was rather dispirited by her defeat in the election of 1926.
Louise McKinney had long been active in the temperance movement. These days, when we look back on the efforts to control the consumption of alcohol of the teens and twenties, we picture rather stodgy, solemn and humourless ladies in bonnets who exaggerated -- perhaps just a tad -- the evils of drink. But in their time, these were the women who were the advocates for children, for women's rights and for social welfare reform. The reality is that a lot of harm came to those families in which the wage earners abused alcohol and it was women who, through the church and through temperance societies worked to improve things. Louise McKinney was at in the forefront of these efforts her entire life. She also became, in 1917, the first woman to sit in a provincial legislature.
Irene Parlby grew up in England and India and was schooled in Switzerland. She came to Canada on a holiday in 1896, met her future husband, a classical scholar, and stayed in Alberta. She became active in the United Farmers of Alberta, hardly an obvious choice of pastime for a woman of her standing and background. Even more surprising, when that organization formed a political party and swept into government in 1921, she was among the elected members and was made a member of Cabinet - only the second woman in the British Empire to hold such a post. She remained in Cabinet until the mid-1930s.
And, of course, Emily Murphy, the leader of the pack and the driving force behind the petition, pressing it to its successful conclusion in the Privy Council. Emily Murphy too began life comfortably, this time in Ontario. As a young minister's wife, she penned stories under the name "Janey Canuck". Once in Alberta (one begins to suspect the air), she turned to social causes and succeeded in having legislation passed that protected women's interests in family property. She was appointed a magistrate in 1916, the first in the British Empire.
It was in that role that the issue of women's status as "persons" for the purpose of holding public office first arose. Scarcely had Emily Murphy warmed the seat of the judicial bench when she found her jurisdiction as a magistrate challenged on grounds that, as a woman, she was ineligible for appointment to the bench as she was not a "person". The English Courts had ruled in 1876 that women were persons in matters of "pains and penalties" -- they could be sent to prison -- but not "privileges". Sitting as a judge was a privilege. Therefore, the argument went, a woman could not be a judge. The Alberta courts rejected the argument and Emily Murphy continued to sit as a magistrate, but the experience stirred her interest in the subject of women's legal status. She was not content with winning one right for women - the right to sit as a judge. She wanted women to have the right to sit as senators - a goal that eventually led to the famous petition on eligibility for appointment to the Senate.
These five women then are our cast. They shared very little except for one absolutely fundamental conviction -- that women were equal in every way and should have the right to participate fully in their society and its governance, fairly, equally and free of discrimination. Their backgrounds varied dramatically, as did their perspectives on the world. But it made no difference to the cause they pursued in common. In the end, they achieved spectacular, and lasting, success. Theirs was a remarkable achievement -- one we celebrate today and will continue to celebrate for generations to come.
I have spoken of the conviction and goal of the Famous Five, but convictions and desires are not enough to change a country. These women had a talent not only for seeing what should be done but for getting the job done. Indeed, Nelly McClung is said to have taken as her personal slogan: "Get the job done and let them howl". So often those with vision and grand ideals fail because they do not accept the realities of their society and understand how to work through and within the limits those realities impose. Someone once said that the difference between genius and stupidity is that genius has its limits. The Famous Five faced many limits - limits imposed arbitrarily by the society they lived in and by its laws. But they also understood that those limits could be turned into strengths. The law might oppress them, but it was also a powerful tool. So they used it. Each of the Five had, in her own way, discovered the power of the law before the Person's Case. Henrietta Muir Edwards was a noted expert in the laws governing the rights of women and children. Nellie McClung and Irene Parlby were members of the Alberta legislature and, while they sat on opposite sides of the floor, combined efforts to reform the law. And, of course, Emily Murphy was a judge. The law in their day, occupied almost exclusively by men, was not an obvious weapon. Yet with courage and vision, they used it.
They really had little choice when it came to making a place for women in the Senate. An amendment to the British North America Act of 1867 could have made clear that women could be appointed to the Senate, but that would have taken years, even had the political will been there. And it was not. Enactment of a domestic statute would not have been effective, since it could easily have been challenged as inconsistent with the BNA Act. But a little known, rarely used, and now repealed, provision of the Supreme Court Act allowed for a petition to be made to the Court.
The Supreme Court, sadly, disappointed them. The Court's judgment in the case was consistent with a cautious, positivist, textual approach to the Constitution. The Court, although conceding that women were obviously persons in the everyday sense of the word, held that they were not qualified persons for purposes of the provisions governing appointments to the Senate. Its analysis focused on the state of the common law at the time of Confederation, 60 years earlier, and the intention of the framers of the BNA Act. After all, at the time of Confederation no one imagined women would serve in the Senate, so how could it be said that the drafters of the Constitution intended the word "persons" to include the feminine gender? Moreover, had the courts of England not told us in 1876 that women were persons in matters of "pains and penalties, but not privileges"?
The Famous Five lost in the Supreme Court of Canada but they refused to taken no for an answer and pushed on. They raised money. They lobbied. They persuaded. Ultimately they moved their case across the ocean to London, where the Judicial Committee of His Majesty's Privy Council, then Canada's final court of appeal, sat to decide the most important legal issues of Britain's colonial domains.
The jurists of the day had every reason to doubt the success of this final appeal. After all, had not English Courts already ruled that women were not persons for purposes of holding public office? And had the Supreme Court of Canada not faithfully applied that ruling? How surprised they must have been when the Judicial Committee of the Privy Council allowed the appeal from the Supreme Court's judgment and found that women were indeed persons and qualified to be appointed to the Senate.
It was a great day, not only for women but for Canadian law. In his judgment, Viscount Sankey coined the phrase that has been the animating premise of our constitutional law ever since. "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits," he pronounced. Canadian constitutional law would never be the same. To this day, when we interpret our Constitution we look at what its words mean in the context of the society in which we now live. We try to give life and meaning to the text in the real world. As Chief Justice Dickson, quoting Professor Paul Freund, warned in Hunter v. Southam, we should not "read the provisions of the Constitution like a last will and testament, lest it become one."
The case of the Famous Five achieved many things. It won the right for women to serve in our country's institutions of governance, and it changed the course of Canadian constitutional law. It transformed the way we interpret and understand our constitutional rights and responsibilities, and planted the living tree that continues, through our Constitution, to flourish. But beyond these accomplishments, important as they are, the "Person's Case" and the Famous Five stand as an enduring example of how Canadians working together can use the law as an instrument to realize their dreams of justice. Perhaps Her Majesty Queen Elizabeth -- now the Queen Mother -- had their example in mind when on the laying of the cornerstone of the Supreme Court of Canada building in May 1939, she alluded to the role the law can play in women's lives:
Perhaps it is not inappropriate that this task should be performed by a woman; for woman's position in civil society has depended upon the growth of law.
The Famous Five had a vision. They took up the tool of the law and against all odds achieved that vision, not just for women but for all Canadians. Together, they helped to forge a country in which everyone, men and women, can stand side by side as equals. This then is their true legacy - a country in which none are excluded, in which all can participate.
Emily Murphy once wrote, "Canada is not just a map and railroad tracks. We are a song and we must sing it together." Not just men. Not just women. Together.
Today, together, we sing the song of Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Irene Parlby and Emily Murphy. It is a song of achievement, a song of justice, truly a song for all Canadians.
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Famous Five Breakfast
Tuesday, October, 17, 2000
