A significant advancement was made for Canadian women when they were granted the right to vote by the provinces and federal government. However, this did not eradicate all inequalities that women faced in the early 1900s - one key example of these persisting inequalities was that women continued to be restricted from holding seats in the Canadian Senate . Successive federal governments relied on the British North America Act of 1867 (the “BNA Act”) to support their refusal to grant women this right . Specifically, section 24 of the BNA Act stated that “[t]he governor general shall from time to time, in the Queen’s name, by instrument under the Great Seal of Canada, sumon qualified persons to the Senate; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a senator” . Governments relied on this section to argue that because “women would not have been considered to be ‘qualified persons’ at the time the 1867 Act was passed”, they were not eligible to hold seats in the Senate .
These political circumstances dictated that in order for women to be granted the right to be appointed to the Senate, strong actions were required. Just as Emmeline Pankhurst argued that “deeds, not words” were required to gain momentum in the women’s suffrage movement, such dedication was also necessary here . While many Canadian women’s groups fought to have this bar on women holding Senate seats lifted, their efforts were futile. For example, although both Prime Minister Meighan and Prime Minister Mackenzie King promised to alter the BNA Act, such assurances proved to be hollow . Emily Murphy, the first female magistrate in the British Empire, was troubled by this refusal of the federal government to amend the BNA Act. Thus, after being advised that any five people could “initiate an appeal to the Supreme Court of Canada for clarification of any part of the [BNA Act]”, Murphy found four other women in Alberta dedicated to this cause . This group of five women - Henrietta Edwards, Nellie McClung, Louise McKinney, Emily Murphy and Irene Parlby - later came to be known as the “Famous Five” .
As a result of the Famous Five’s petition to the government, the Supreme Court of Canada (the “SCC”) considered whether women could be appointed to the Canadian Senate in Edwards v AG Canada, which is more commonly known as the “Persons Case” . The SCC ruled that pursuant to section 24 of the BNA Act, women could not be candidates for the Senate. This decision was “based on the premise that the BNA Act had to be interpreted in the same way in 1928 as in 1867 when the Act was passed. It was generally accepted that in 1867, ‘persons’ would have included men only” . This decision was appealed to the Judicial Committee of the Privy Council (the “Privy Council”), who reversed the SCC’s ruling.
The Privy Council recognized that constitutions were living trees, which meant that they were “evolving documents that could respond to changes in society over time” . The Court therefore found that the BNA Act had to be interpreted liberally and broadly in determining whether women were included as “qualified persons”, and even acknowledged that “the exclusion of women from all public offices is a relic of days more barbarous than ours” . These statements were a recognition of the fact that the circumstances in 1929 were very different from those in 1867. For example, in 1929, all Canadian women (with the exception of women in Quebec) had gained the right to vote. The Privy Council ultimately held that “the word ‘persons’ in s. 24 includes members both of the male and female sex and that, therefore, the questions propounded by the Governor-General must be answered in the affirmative and that women are eligible to be summoned to and become members of the Senate of Canada” . Moreover, this ruling was “consistent with the legislative changes of the 1910s and 1920s concerning women’s suffrage” .
The Persons Case was significant in numerous ways. As a result of the Privy Council’s determination that “qualified persons” included women, the Senate was opened to women. This gave women the power to fight for change and greater rights through both the Senate and the House of Commons . As well, the “legal recognition of women as ‘persons’ meant that women could no longer be denied basic rights on a narrow interpretation of the law” . Finally, this decision illustrated an important principle of constitutional interpretation, whereby constitutional documents must be viewed as living trees that respond to evolving “social, political, and legal values” . Thus, the Persons Case has lasting significance in Canadian law, extending beyond only women’s rights. The Famous Five will be examined more thoroughly next week, when we provide biographies of these five women who helped change the course of history in Canada.
 Neil Craik et al, eds, Public Law: Cases, Materials, and Commentary, 2nd ed (Toronto: Emond Montgomery Publications, 2011) at 16 [Public Law].
 The British North America Act, 1867, SS 1867, c 3.
 Ibid, s 24.
 Public Law, supra note 1 at 16.
 Alberta, Alberta Women’s Secretariat, The Persons Case (Edmonton: Alberta Women’s Secretariat, 1991) [The Persons Case].
 Edwards v AG Canada (1929),  AC 124, 1 DLR 98 (PC) [Edwards].
 Public Law, supra note 1 at 16.
 Edwards, supra note 8.
 Leonard I Rotman, “Foundations of Canadian Constitutional Law” in Bruce P Elman, Gerald L Gall & Leonard I Rotman, eds, Constitutional Law: Cases, Commentary and Principles (Toronto: Thomson Carswell, 2008) 1 at 24.