Edwards v. Canada (Attorney General)
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| Edwards v. Canada (Attorney General) | |
| Judicial Committee of the Privy Council Image:Portcullis.gif |
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| Full case name | Edwards v. Canada (Attorney General) |
| Date decided | October 29, 1929 |
| Citations | [1930] A.C. 124 |
| Judges sitting | Lords Sankey |
| Case history | |
|---|---|
| Prior actions: | Edwards v. Canada (Attorney General), [1928] S.C.R. 276 |
| Subsequent actions: | None |
| Case opinions | |
Edwards v. Canada (Attorney General) [1930] A.C. 124 – also known as the Persons' Case – is a famous Canadian/British constitutional case where it was first decided that women were eligible to sit in the Senate. The case, put forward by the Famous Five, went all the way to the Privy Council and was a landmark case in many respects.
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[edit] Background
During this period women had earned the right to vote and gender equality issues were a hot political topic. The Famous Five had begun to bring attention to their cause of putting a woman in the Senate. At the time the legal definition of "qualified persons" under the British North America Act (BNA Act 1867) was thought by the Canadian Government not to include women.
In 1928, the Minister of Justice submitted a reference question to the Supreme Court of Canada asking if "the word "Persons" in section 24 of the British North America Act, 1867 include female persons?"
[edit] Opinion of the Supreme Court of Canada
The five Justices who heard the case held that the meaning of "qualified persons" did not include women. The majority judgment was written by Francis Alexander Anglin, with Lamont and Smith J. concurring. Mignault J. and Duff J. wrote separate concurring opinions. A common misinterpretation of the case is that the Supreme Court held that women are not persons. For example, at the Canadian Status of Women, Government of Canada, website it says that: "After five weeks of debate and argument the Supreme Court of Canada decided that the word "person" did not include women." On the contrary. The Supreme Court of Canada noted explicitly that "[t]here can be no doubt that the word "persons" when standing alone prima facie includes women."
The Court interpreted the definition of 'qualified person' as intended by the drafters of the BNA Act 1867, despite acknowledging that the role of women in society had changed since that date. The Court held that the common law incapacity of women to exercise public functions excluded women from the class of "qualified persons" under s. 23 of the B.N.A. Act.
In 1867 women could not sit in Parliament and thus if there were to be an exception to the practice from that period it would have to be explicitly legislated.
[edit] Opinion of the Judicial Committee of the Privy Council
Viscount Sankey, writing for the committee, found that the meaning of "qualified persons" could be read broadly to include women, reversing the decision of the Supreme Court. The landmark ruling was handed down on October 29, 1929.
[edit] Living tree doctrine
To arrive that his conclusion, Sankey proposed an entirely new approach to constitutional interpretation that has since become one of the core principles of constitutional law in Canada.
The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.
Their Lordships do not conceive it to be the duty of this Board -- it is certainly not their desire -- to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs.
From this the approach became known as the living tree doctrine which requires "large and liberal" interpretation.
[edit] Ruling
In applying this approach to the current case Sankey held that the "exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word "person" should include females, the obvious answer is, why should it not?"
[edit] Aftermath
Although the ruling was to be of crucial importance for Canadian women in the longterm, it did not result in Emily Murphy, of the Famous Five, achieving her dream of being appointed to the Senate. However, it was only a year later, on February 15, 1930, that the first woman, Cairine Reay Wilson, was appointed to the Senate.
[edit] See also
- List of Judicial Committee of the Privy Council cases
- List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
[edit] External links
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