Who Was the First Woman called to the Bar in Ontario,and Canada, and the British Empire ?

Contributor: Mary Stokes

Though women are still under-represented in many arenas of the legal profession, the ‘call to the bar’—the ceremony which marks the official entrance to the practice of law–is no longer one of them. The preponderance of women in law schools has finally compellingly refuted the strongly held and strongly voiced objections of those who opposed the admission of Clara Brett Martin to legal education and practice. For becoming the first woman to practise law was not merely an unconventional career choice in the late nineteenth. In deciding to forego a teaching career to attempt to enter a profession from which she was barred by law as well as custom and a powerful legal establishment, Martin took significant risks of time, money and reputation. Like many rights victories by marginalized groups however, the success was not hers alone. Martin provided the initiative and the energy, but the mechanics of her fight were carried out by men, inspired by changing public opinion itself facilitated by social change, who worked to overcome the prejudices of other men, Clara Brett Martin was an unusual woman before her interest turned to law. One of twelve children from a farming family which attached great importance to education, she entered Trinity College, Toronto in 1888, shortly after this institution began to accept female students. Furthermore, she studied mathematics and earned her degree at age sixteen. She began to teach, but shortly thereafter petitioned the Law Society of Upper Canada, the governing body of the legal profession in control of legal education, to become a student-at-law. The Society refused, citing their governing legislation. A sympathetic MPP proposed a bill to reform the law, but the issue was hotly contested. With the support of the Premier, Oliver Mowat, an amendment was finally passed which permitted, but did not mandate, the acceptance of women as solicitors.

The benchers (as the Law Society calls its directors) were thus forced to consider the matter, but decided against taking up the opportunity the legislature had presented them. As Attorney General and hence an ex officio bencher, Oliver Mowat appeared before the Society to argue Martin’s case. The vote was a tie, broken by the chair in Martin’s favour in the teeth of a nay-saying late-comer to whom he denied the right to re-open the debate. But the struggle was by no means over. The fact that she was formally accepted as a student did not make her a welcome one, and she was ostracised and harassed both by fellow students and instructors. Moreover, because legal education was primarily experiential, Martin had to find a law firm to sponsor her apprenticeship, or ‘articles.’ Due to her social standing and connections she was able to do so, though the experience was not a happy one. Inhospitably treated by the first firm to agree to take her on, Martin was forced to find another, and eventually managed to complete the requisite practical training and examinations.

At that time Ontario followed the British model of a bifurcated profession. Martin was admitted to practice legal office work as a solicitor, but could still not appear in court as a barrister. With the help of some highly placed and vocal female supporters and, once again, the agency of a number of male champions in the legislature, a bill to allow women to become barristers was enacted in 1895. Again the Law Society was not compelled to take action, but eventually capitulated to political and public pressure, and Clara Brett Martin passed the final hurdle to full formal eligibility to practise law in 1897, the first woman in Ontario, Canada, and the British Empire to do so.

Martin practised law uneventfully and successfully until her death in 1923. She became a public school trustee but was unsuccessful in a campaign for higher municipal office in 1920. Controversy surrounding her did not end with this defeat, however, or even her death. Lionized by so-called second wave feminists in the latter decades of the twentieth century, Martin became an embarrassment in 1990 when a letter from her to the solicitor-general of Ontario which expressed anti-Semitic views and urged action be taken against Jewish conveyancers, whom she denigrated as foreigners and fraudsters, was discovered in the Ontario archives.

Today Martin’s life is still celebrated but in a more moderate and equivocal fashion: she is respected for her courage in challenging a unjust status quo and achievement in overcoming considerable adversity, but with the understanding that her success was not all of her own making, and that she while she was undoubtedly a pioneer, she was no saint.

For further reading:
The recognized authority on Clara Brett Martin is University of Ottawa Law Professor Constance Backhouse. Backhouse was the first to resurrect Martin as an important figure in Canadian legal history in her article “To Open the Way for Others of My Sex”: Clara Brett Martin’s Career as Canada’s First Woman Lawyer” which appeared, fittingly, in the inaugural issue of the Canadian Journal of Women and the Law, in 1985. Backhouse also wrote movingly of Martin’s struggles in her award-winning monograph, Petticoats and Prejudice: Women and the Law in Nineteenth Century Canada, published in 1991 by Women’s Press for the Osgoode Society for Canadian Legal History (details on this site).

Backhouse deals specifically with the controversy arising from the discovery of Martin’s anti-Semitism in “Clara Brett Martin: Canadian Heroine or Not?” (1992) 5 Canadian Journal of Women and the Law. Others who have written on the ramifications of this issue for women’s history this issue and its place in the feminist movement include Marlee Kline and Brenda Cossman, “‘If not now, when?: Feminism and Anti-Semitism Beyond Clara Brett Martin” (1992) 5 Canadian Journal of Women and the Law; and Lynne Pearlman, “Rethinking Clara Brett Martin: A Jewish Lesbian Perspective [original title: Through Jewish Lesbian Eyes: Rethinking Clara Brett Martin] which appeared in the same issue.

Martin is one of a number of women whose ‘firsts’ are analysed and put in social context by Mary Jane Mossman in her recent work, The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Professions (Oxford and Portland Oregon: Hart Publishing, 2006).