Edwards v Canada (AG)

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Edwards v Canada (AG)
WLMK unveiling plaque to Valiant Five.jpg
William Lyon Mackenzie King unveiling a plaque to the Valiant Five of the Persons Case
Court Judicial Committee of the Privy Council
DecidedOctober 18, 1929
Citation(s)[1930] A.C. 124, 1929 UKPC 86.
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
Court membership
Judges sittingLord Sankey, L.C.
Lord Darling
Lord Merrivale
Lord Tomlin
Sir Lancelot Sanderson
Case opinions
Decision byLord Sankey

Edwards v Canada (AG) [1] also known as the Persons Caseis a famous Canadian constitutional case that decided that women were eligible to sit in the Senate of Canada. The legal case, put forward by the Government of Canada on the lobbying of a group of women known as the Famous Five, began as a reference case in the Supreme Court of Canada, which ruled that women were not "qualified persons" and thus ineligible to sit in the Senate. The case then went to the Judicial Committee of the Imperial Privy Council, at that time the court of last resort for Canada within the British Empire and Commonwealth. The Judicial Committee overturned the Supreme Court's decision.

Canada Country in North America

Canada is a country in the northern part of North America. Its ten provinces and three territories extend from the Atlantic to the Pacific and northward into the Arctic Ocean, covering 9.98 million square kilometres, making it the world's second-largest country by total area. Canada's southern border with the United States is the world's longest bi-national land border. Its capital is Ottawa, and its three largest metropolitan areas are Toronto, Montreal, and Vancouver. As a whole, Canada is sparsely populated, the majority of its land area being dominated by forest and tundra. Consequently, its population is highly urbanized, with over 80 percent of its inhabitants concentrated in large and medium-sized cities, many near the southern border. Canada's climate varies widely across its vast area, ranging from arctic weather in the north, to hot summers in the southern regions, with four distinct seasons.

Senate of Canada upper house of the Parliament of Canada

The Senate of Canada is the upper house of the Parliament of Canada, along with the House of Commons and the Monarch. The Senate is modelled after the British House of Lords and consists of 105 members appointed by the Governor General on the advice of the Prime Minister. Seats are assigned on a regional basis: four regions—defined as Ontario, Quebec, the Maritime provinces, and the Western provinces—each receive 24 seats, with the remaining portions of the country—Newfoundland and Labrador receiving 6 seats and the three northern territories each assigned the remaining one seat. Senators may serve until they reach the age of 75.

The Famous Five (Canada) five Canadian women in a Canadian court case

The Famous Five, or The Valiant Five, were five Alberta women, prominent suffragists who advocated for women and children, who asked the Supreme Court of Canada to answer the question, "Does the word 'Persons' in Section 24 of the British North America Act, 1867, include female persons?" in the case Edwards v Canada. The five women, Emily Murphy, Irene Marryat Parlby, Nellie Mooney McClung, Louise Crummy McKinney and Henrietta Muir Edwards, created a petition to ask this question. They fought to have women legally considered persons so that women could be appointed to the Senate. The petition was filed on August 27, 1927, and on April 24, 1928, Canada's Supreme Court summarized its unanimous decision that women are not such "persons".

Contents

The Persons Case was a landmark case in two respects. The case established that Canadian women were eligible to be appointed senators and also established that the Canadian constitution should be interpreted in a way that adapts to changing times.

Some saw the eligibility of women for the senate as "radical change"; others saw it as a restoration of the original framing of the English constitutional documents, including the Bill of Rights 1689, which uses only the term "person", not the term "man" (or "woman" for that matter).

Bill of Rights 1689 Act of the English Parliament guaranteeing certain rights

The Bill of Rights, also known as the English Bill of Rights, is an Act of the Parliament of England that sets out certain basic civil rights and clarifies who would be next to inherit the Crown. It received the Royal Assent on 16 December 1689 and is a restatement in statutory form of the Declaration of Right presented by the Convention Parliament to William III and Mary II in February 1689, inviting them to become joint sovereigns of England. The Bill of Rights lays down limits on the powers of the monarch and sets out the rights of Parliament, including the requirement for regular parliaments, free elections, and freedom of speech in Parliament. It sets out certain rights of individuals including the prohibition of cruel and unusual punishment and reestablished the right of Protestants to have arms for their defence within the rule of law. Furthermore, the Bill of Rights described and condemned several misdeeds of James II of England.

Some others have interpreted the Privy Council rule as causing a change in the Canadian judicial approach to the Canadian constitution, an approach that has come to be known as the living tree doctrine . This 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.

In Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.

Background

In 1916, Emily Murphy, a well-known activist for women's rights, and a group of other 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. On her first day on the job, however, her authority to preside as a judge was challenged by a lawyer on the basis that women were not considered to be "persons" under the British North America Act . In 1917, the Supreme Court of Alberta ruled that women were persons. Some time later, Emily Murphy tested the issue in the rest of Canada by allowing her name to be put forward to Prime Minister Robert Borden as a candidate for Canadian Senator. He rejected her on the 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". [2]

Emily Murphy Canadian judge

Emily Murphy was a Canadian women's rights activist, jurist, and author. In 1916, she became the first female magistrate in Canada, and in the British Empire. She is best known for her contributions to Canadian feminism, specifically to the question of whether women were "persons" under Canadian law.

Charles Wilson Cross Member of the Canadian House of Commons, Attorney-General of Alberta

Charles Wilson Cross was a Canadian politician who served in the Legislative Assembly of Alberta and the House of Commons of Canada. He was also the first Attorney-General of Alberta. Born in Ontario, he studied law at Osgoode Hall Law School before coming west to practice in Edmonton. He became active with the Liberal Party of Canada, and when Alberta was created in 1905 he was chosen by Premier Alexander Cameron Rutherford to be its first Attorney-General. Implicated in the Alberta and Great Waterways Railway scandal, he resigned in 1910 along with the rest of Rutherford's government.

The British North America Acts 1867–1975 are a series of Acts at the core of the constitution of Canada. They were enacted by the Parliament of the United Kingdom and the Parliament of Canada. In Canada, some of the Acts were amended or repealed by the Constitution Act, 1982. The rest were renamed in Canada as the Constitution Acts. In the United Kingdom, those Acts that were passed by the British Parliament remain under their original names. The term "British North America" (BNA) refers to the British colonies in North America.

Petition to the federal government

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:

Irene Parlby Canadian politician

Mary Irene Parlby was a Canadian women's farm leader, activist and politician.

Louise McKinney Canadian politician

Louise McKinney née Crummy was a Canadian politician and women's rights activist from Alberta, Canada. She was the first woman sworn into the Legislative Assembly of Alberta and the first woman elected to a legislature in the British Empire. She served in the Alberta legislature from 1917 to 1921 as a member of the Non-Partisan League. Later she was one of the Famous Five who campaigned successfully for the right of Canadian women to be appointed to the Senate. A former schoolteacher and temperance organizer, she came to Alberta in 1903 as a homesteader.

Supreme Court of Canada highest court of Canada

The Supreme Court of Canada is the highest court of Canada, the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. Its decisions are the ultimate expression and application of Canadian law and binding upon all lower courts of Canada, except to the extent that they are overridden or otherwise made ineffective by an Act of Parliament or the Act of a provincial legislative assembly pursuant to section 33 of the Canadian Charter of Rights and Freedoms.

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? [3]

Reference to the Supreme Court

In Canada, the federal government has the power to refer questions to the Supreme Court of Canada to clarify legal and constitutional issues. [4] Ernest Lapointe, who was Minister of Justice in the government of William Lyon Mackenzie King, reviewed the petition and recommended to the 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 ).

In Canadian law, a reference question or reference case is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation.

Ernest Lapointe Canadian lawyer, politician

Ernest Lapointe, was a Canadian lawyer and politician. A member of Parliament from Quebec City, he was a top adviser to Prime Minister William Mackenzie King, especially on issues relating to legal affairs, Quebec and French-speaking Canada.

William Lyon Mackenzie King 10th Prime Minister of Canada

William Lyon Mackenzie King, also commonly known as Mackenzie King, was the dominant Canadian political leader from the 1920s through the 1940s. He served as the tenth prime minister of Canada in 1921–1926, 1926–1930 and 1935–1948. He is best known for his leadership of Canada throughout the Second World War (1939–1945) when he mobilized Canadian money, supplies and volunteers to support Britain while boosting the economy and maintaining morale on the home front. A Liberal with 21 years and 154 days in office, he was the longest-serving prime minister in Canadian history. Trained in law and social work, he was keenly interested in the human condition, and played a major role in laying the foundations of the Canadian welfare state.

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". [5] 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? [5]

After further correspondence with the Deputy Minister and consultation with their lawyer, however, Emily Murphy advised the Deputy Minister that they accepted the single question posed by the Cabinet. [6]

Opinion of the Supreme Court of Canada

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. [7] 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. [8]

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, "After five weeks of debate and argument the Supreme Court of Canada decided that the word 'person' did not include women." [9]

On the contrary, the majority judgment of the Supreme Court of Canada noted explicitly, "There can be no doubt that the word 'persons' when standing alone prima facie includes women." [7] 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." [7]

At that time, however, the Supreme Court was not the final arbiter of constitutional questions in Canada.

Appeal to the Judicial Committee of the Privy Council

Name of the case

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). [10] However, it is more generally known as the Persons Case, from the subject matter.

Ruling

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 18, 1929. [11] He wrote 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". [10] 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. [10]

Living tree doctrine

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. [10]

From this the approach became known as the living tree doctrine which requires "large and liberal" interpretation.[ citation needed ]

Aftermath

Although the ruling was of crucial importance for Canadian women in the long term, it did not result in Emily Murphy being appointed to the Senate. It was only a year later, on February 15, 1930, however, that the first woman, Cairine Reay Wilson, was appointed to the Senate.[ citation needed ]

Nearly 80 years later, in October 2009, the Senate voted to name the Five, posthumously, Canada's first "honorary senators". [12]

Legacy

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.[ citation needed ]

Emily Murphy's house where the tea party occurred is now on the campus of the University of Alberta. [13]

A statue of the Famous Five was unveiled in Calgary in 1999, and a replica placed on Parliament Hill in 2000. According to a publication of Library and Archives Canada, "The work depicts them as they might have appeared on hearing the news of the Privy Council's ruling. Standing behind an empty chair, Emily Murphy, with a triumphant gesture beckons to visitors, men and women equally, to have a place at this celebration of a new day for women in Canada." [14] [15]

The fifty-dollar note in the Canadian Journey Series (first issued in 2004) featured the statue of the Famous Five celebrating the result of the Persons Case. [16] [17]

See also

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References

  1. Henrietta Muir Edwards and others v The Attorney General of Canada [1929] UKPC 86 , [1930] A.C. 124(18 October 1929), P.C. (on appeal from Canada)
  2. "Emily Murphy". Famou5.
  3. "Disclaimer - Electronic Collection". epe.lac-bac.gc.ca.
  4. Supreme Court Act , R.S.C. 1985, c. S-19, s. 53
  5. 1 2 "Disclaimer - Electronic Collection". epe.lac-bac.gc.ca. Archived from the original on 2013-01-01.
  6. "The Famous Five > Correspondence and Official Documents". epe.lac-bac.gc.ca.
  7. 1 2 3 Edwards v. Canada (Attorney General) [1928] S.C.R. 276. Anglin C.J.C. Canadian Human Rights Commission. Human Rights in Canada: A Historical Perspective. Retrieved on: October 15, 2011
  8. Constitution Act, 1867 , s. 23.
  9. Directorate, Government of Canada, Status of Women Canada, Communications and Public Affairs. "Who were the Famous Five? - Persons Day - Status of Women Canada". www.swc-cfc.gc.ca.
  10. 1 2 3 4 Reference to Meaning of Word "Persons" in Section 24 of British North America Act, 1867. (Judicial Committee of The Privy Council). Edwards v. A.G. of Canada [1930] A.C. 124 Archived March 28, 2015, at the Wayback Machine . Human Rights in Canada: A Historical Perspective.
  11. Status of Women Canada (September 23, 2016). "The History of the Persons Case" . Retrieved August 27, 2017.
  12. "'Famous 5' named honorary senators", CBC News, October 10, 2009
  13. University of Alberta Campus Map: Emily Murphy House. Archived November 13, 2010, at the Wayback Machine
  14. Bob Ferris (April 10, 2000). "The Famous Five on Parliament Hill: A Second Unveiling". The Archivist. Retrieved December 10, 2013.
  15. Janet Bagnall (October 16, 2009). "The Famous 5 finally make the Senate". Montreal Gazette . Archived from the original on December 13, 2013. Retrieved December 10, 2013. 'I can see the statue of the Famous Five when I look out my window in the Centre Block', said Tardif.
  16. "Journey $50 note". CdnPaperMoney.com. Retrieved December 10, 2013.
  17. "$50 Note, Background Information". Bank of Canada. Archived from the original on January 20, 2005. Retrieved December 10, 2013.