| Edwards v. Canada (Attorney General) | |
|---|---|
| Court | Judicial Committee of the Privy Council |
| Full case name | Edwards v. Canada (Attorney General) |
| Date decided | October 18, 1929 |
| Citation(s) | [1930] A.C. 124, 1929 UKPC 86. |
| Judges sitting | Lord Sankey, L.C. Lord Darling Lord Merrivale Lord Tomlin Sir Lancelot Sanderson |
| Decision by | Lord Sankey |
| Case history | |
| Prior action(s) | Reference re Meaning of the Word "Persons" in s. 24 of the BNA Act, [1928] S.C.R. 276 |
| Appealed from | Supreme Court of Canada |
Edwards v. Canada (Attorney General) [1930] A.C. 124 – also known as the Persons Case – is a famous Canadian constitutional case where it was first decided that women were eligible to sit in the Canadian Senate. The case, put forward by a group of women known as the Famous Five, went all the way to the Judicial Committee of the Imperial Privy Council, then the court of last resort for Canada, and was a landmark case in at least two respects. The Persons Case established that Canadian women were eligible to be appointed senators and more generally, that Canadian women had the same rights as Canadian men with respect to positions of political power. Second, it established what came to be known as the "living tree doctrine", which is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.
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In 1916, Emily Murphy and a group of women attempted to attend a trial of Alberta women accused of prostitution. She, and the rest of the group of women, were ejected from the trial on the grounds that the testimony was "not fit for mixed company." Emily Murphy was outraged and appealed to Charles Wilson Cross, the Attorney General of Alberta, arguing "If the evidence is not fit to be heard in mixed company, then ... the government.. [must] set up a special court presided over by women, to try other women." Much to her surprise, the minister not only agreed, but appointed her as the magistrate. However, on her first day on the job, her authority to preside as a judge was challenged by a lawyer on the basis that women were not "persons" under the British North America Act. In 1917, the Supreme Court of Alberta ruled that women were persons, thus settling the issue for Alberta, but not for the rest of Canada. Sometime later, Emily Murphy decided to test the issue in the rest of Canada by allowing her name to be put forward to Robert Borden, the Canadian Prime Minister, as a candidate for Canadian Senator. He rejected her on the familiar grounds that women were not "persons". In response to a petition signed by nearly 500,000 Canadians that asked that she be appointed to the Senate, Borden stated that he was willing to do so, but could not on the basis of an 1876 British common law ruling that stated that "women were eligible for pains and penalties, but not rights and privileges."
Some years later, Emily Murphy asked four other prominent Albertan women to join her in a petition to the federal government on the issue of women's status. On August 27, 1927, the four other women (Irene Marryat Parlby, Nellie Mooney McClung, Louise Crummy McKinney, and Henrietta Muir Edwards) joined her for tea at her house. The five women, later to be known as the Famous Five (or the Valiant Five) all signed the petition, asking the federal government to refer two questions relating to women's status to the Supreme Court of Canada. The two questions were:
"I. 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?
II. 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?"[1]
In Canada, the federal government has the power to refer questions to the Supreme Court of Canada to clarify legal and constitutional issues.[2] Ernest Lapointe, who was Minister of Justice in the government of William Lyon Mackenzie King, reviewed the petition and recommended to federal Cabinet that the questions be narrowed down from two to one, relating to the appointment of women to the federal Senate of Canada under section 24 of the British North America Act, 1867 (now known as the Constitution Act, 1867).
On October 19, 1927, the Cabinet submitted this question for clarification to the Supreme Court of Canada:
"Does the word 'Persons' in section 24 of the British North America Act, 1867, include female persons?"
Emily Murphy, speaking for the five petitioners, originally objected to this change in the wording of the question, which she described in a letter to the Deputy Minister of Justice as "...a matter of amazement and perturbation to us."[3] On behalf of the petitioners, she asked that the Government withdraw the single question and refer the original two questions to the Supreme Court, along with a new, 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?"[3]
However, after further correspondence with the Deputy Minister and consultation with their lawyer, Emily Murphy advised the Deputy Minister that they accepted the single question posed by the Cabinet.[4]
The Supreme Court of Canada heard the case on March 14, 1928, and issued its decision on April 24, 1928. Francis Alexander Anglin, Chief Justice of Canada, wrote the majority judgment, with Lamont J. and Smith J. concurring. Mignault J. and Duff J. wrote separate concurring opinions.[5] Anglin C.J.C. began by reviewing the provisions relating to the appointment of Senators under the Constitution Act, 1867. Section 23 of the Act sets out the qualifications for a Senator. Senators must be at least thirty years old, must be a British subject, must own real and personal property with a net value of at least $4,000, and must live in the Province for which they are appointed. Section 23 uses the pronoun "He" to describe these qualifications, which contributed to the argument that only men could be appointed to the Senate.[6]
Section 24 then provides:
Summons of Senator
24. The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon 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.
The question for the Court was whether women could be "qualified persons" under s. 24 and thus eligible to be appointed to the Senate. Ultimately, all five Justices held that the meaning of "qualified persons" did not include women. The Court interpreted the phrase "qualified person" based on their understanding of the intention of the drafters of the Constitution Act, 1867, despite acknowledging that the role of women in society had changed since that date. In 1867, women could not sit in Parliament. Thus, if there were to be an exception to the practice from that period, it would have to be explicitly legislated. The Court held that the common law incapacity of women to exercise public functions excluded women from the class of "qualified persons" under section 24 of the Constitution Act, 1867.
A common misinterpretation of the case is that the Supreme Court held that women are not persons. For example, the website of Status of Women Canada, a federal government organization, states that "After five weeks of debate and argument the Supreme Court of Canada decided that the word 'person' did not include women."[7]
On the contrary, the majority judgment of the Supreme Court of Canada noted explicitly that "There can be no doubt that the word 'persons' when standing alone prima facie includes women."[5] The Court also made this point clear in its formal judgment. The Court did not respond directly to the question as posed by the federal Cabinet. Instead, the Court gave its own interpretation of the question and then answered that re-formulated question:
"The formal judgment of the court was as follows:
Understood to mean 'Are women eligible for appointment to the Senate of Canada,' the question is answered in the negative."[5]
However, the Supreme Court at that time was not the final arbiter of constitutional questions in Canada.
The five women then took the case on appeal to the Judicial Committee of the Privy Council, at that time the court of last resort for the British Empire. Since their names were listed on the appeal documents in alphabetical order, Henrietta Muir Edwards was listed as the first appellant, leading to the case being entered as Edwards v. Canada (Attorney General).[8] However, it is more generally known as the Persons Case, from the subject matter.
The Lord Chancellor, 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. He held that "[t]he exclusion of women from all public offices is a relic of days more barbarous than ours," and that "to those who ask why the word ["person"] should include females, the obvious answer is why should it not."[8] Finally, he wrote:
"[T]heir Lordships have come to the conclusion that the word "persons" in sec. 24 includes members both of the male and female sex and that, therefore, ... women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly."[8]
To arrive at 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."[8]
From this the approach became known as the living tree doctrine which requires "large and liberal" interpretation.
Although the ruling was to be of crucial importance for Canadian women in the long term, it did not result in Emily Murphy 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.
Nearly 80 years later, in October 2009, the Senate voted posthumously to name the Five Canada's first "honorary senators."[9]
An annual award, the Governor General's Awards in Commemoration of the Persons Case, was created in 1979 and continues to be presented to five individuals each year to honour distinguished achievements that advance the equality of girls and women in Canada.
Emily Murphy's house where the tea party occurred is now on the campus of the University of Alberta, and houses the Student Legal Services.[10]