''Edwards v Canada (AG)''also known as the ''Persons Case'' (french: l'Affaire « personne »)is a famous
Canadian
Canadians (french: Canadiens) are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of ...
constitutional case that decided in 1929 that women were eligible to sit in the
Senate of Canada
The Senate of Canada (french: region=CA, Sénat du Canada) is the upper house of the Parliament of Canada. Together with the Crown and the House of Commons, they comprise the bicameral legislature of Canada.
The Senate is modelled after the B ...
. The legal case was put forward by the Government of Canada on the lobbying of a group of women known as the Famous Five:
Henrietta Edwards
Henrietta Muir Edwards (18 December 184910 November 1931) was a Canadian women's rights activist and reformer.
She was the eldest of "The Famous Five", along with Emily Murphy, Nellie McClung, Louise McKinney and Irene Parlby, who fought to have ...
,
Nellie McClung
Nellie Letitia McClung (; 20 October 18731 September 1951) was a Canadian author, politician, and social activist, who is regarded as one of Canada's most prominent suffragists. She began her career in writing with the 1908 book ''Sowing Seeds ...
,
Louise McKinney
Louise McKinney (; 22 September 186810 July 1931) was a Canadian politician, temperance advocate, and women's rights activist. She was the first woman elected into the Legislative Assembly of Alberta and the first woman to serve in a legislatur ...
,
Emily Murphy
Emily Murphy (born Emily Gowan Ferguson; 14 March 186827 October 1933) was a Canadian women's rights activist and author. In 1916, she became the first female magistrate in Canada and in the British Empire. She is best known for her contributio ...
and
Irene Parlby
Mary Irene Parlby ( Marryat; 9 January 186812 July 1965) was a Canadian women's farm leader, activist and politician. She served as Minister without portfolio in the Cabinet of Alberta from 1921 to 1935, working to implement social reforms th ...
. The case began as a
reference case
In Canadian law, a reference question or reference case (formally called abstract review) 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 concer ...
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
, which ruled that women were not "qualified persons" and thus ineligible to sit in the Senate. The five women then appealed to the Judicial Committee of the Imperial Privy Council in London, at that time the
court of last resort
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
for Canada within the British Empire and Commonwealth. The Judicial Committee overturned the Supreme Court's decision. (The case name lists Edwards as the lead appellant, as her name came first alphabtically.)
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 was more consistent with the needs of society.
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
The Bill of Rights 1689 is an Act of the Parliament of England, which sets out certain basic civil rights and clarifies who would be next to inherit the Crown, and is seen as a crucial landmark in English constitutional law. It received Royal ...
, which uses only the term "person", not the term "man" (or "woman" for that matter).
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
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.
Concept
The livin ...
''. 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.
Background
In 1916,
Emily Murphy
Emily Murphy (born Emily Gowan Ferguson; 14 March 186827 October 1933) was a Canadian women's rights activist and author. In 1916, she became the first female magistrate in Canada and in the British Empire. She is best known for her contributio ...
, 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
Charles Wilson Cross (November 30, 1872 – June 2, 1928) 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 s ...
, the Attorney General of Alberta, arguing, "If the evidence is not fit to be heard in mixed company, then ... the government ...
ust UST or Ust may refer to:
Organizations
* UST (company), American digital technology company
* Equatorial Guinea Workers' Union
* Union of Trade Unions of Chad (Union des Syndicats du Tchad)
* United States Television Manufacturing Corp.
* UST Grow ...
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
The British North America Acts 1867–1975 are a series of Acts of Parliament that were at the core of the constitution of Canada. Most were enacted by the Parliament of the United Kingdom and some by the Parliament of Canada. In Canada, some ...
''. In 1917, the
Supreme Court of Alberta
The Court of King's Bench of Alberta (abbreviated in citations as ABKB or Alta. K.B.) is the superior court of the Canadian province of Alberta. Until 2022, it was named Court of Queen's Bench of Alberta.
The Court of Queen's Bench in Calgary wa ...
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
Sir Robert Laird Borden (June 26, 1854 – June 10, 1937) was a Canadian lawyer and politician who served as the eighth prime minister of Canada from 1911 to 1920. He is best known for his leadership of Canada during World War I.
Borde ...
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".
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
Henrietta Muir Edwards (18 December 184910 November 1931) was a Canadian women's rights activist and reformer.
She was the eldest of "The Famous Five", along with Emily Murphy, Nellie McClung, Louise McKinney and Irene Parlby, who fought to have ...
) 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 Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
. The two questions were:
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.
Ernest Lapointe
Ernest Lapointe (October 6, 1876 – November 26, 1941) was a Canadian lawyer and politician. A member of Parliament from Quebec City, he was a senior minister in the government of Prime Minister W. L. Mackenzie King, playing an importa ...
, who was Minister of Justice in the government of
William Lyon Mackenzie King
William Lyon Mackenzie King (December 17, 1874 – July 22, 1950) was a Canadian statesman and politician who served as the tenth prime minister of Canada for three non-consecutive terms from 1921 to 1926, 1926 to 1930, and 1935 to 1948. A Li ...
, 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
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'').
On October 19, 1927, the Cabinet submitted this question for clarification to the Supreme Court of Canada:
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". 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:
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.
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
Francis Alexander Anglin PC (April 2, 1865 – March 2, 1933) was the seventh Chief Justice of Canada from 1924 until 1933.
Born in Saint John, New Brunswick, one of nine children of Timothy Anglin, federal politician and Speaker of the Ho ...
, Chief Justice of Canada, wrote the majority judgment, with Lamont J. and Smith J. concurring. Mignault J. and Duff J. wrote separate concurring opinions.''Reference_re_meaning_of_the_word_"Persons"_in_s._24_of_British_North_America_Act'',_[1928 /nowiki>_SCR_276..html" ;"title="928">''Reference re meaning of the word "Persons" in s. 24 of British North America Act'', [1928 /nowiki> SCR 276.">928">''Reference re meaning of the word "Persons" in s. 24 of British North America Act'', [1928 /nowiki> SCR 276./ref>
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.
Section 24 then provides:
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
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'', 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 majority decision 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."
The majority judgment of the Supreme Court of Canada noted:
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 in a discussion of precedents regarding public office:
The Court's unanimous answer to that question was:
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
Henrietta Muir Edwards (18 December 184910 November 1931) was a Canadian women's rights activist and reformer.
She was the eldest of "The Famous Five", along with Emily Murphy, Nellie McClung, Louise McKinney and Irene Parlby, who fought to have ...
The landmark ruling was handed down on October 18, 1929. The
Lord Chancellor
The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...
,
Lord Sankey
John Sankey, 1st Viscount Sankey, (26 October 1866 – 6 February 1948) was a British lawyer, judge, Labour politician and Lord High Chancellor of Great Britain, famous for many of his judgments in the House of Lords. He gave his name to th ...
, 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. He wrote that " e 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". Finally, he wrote:
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.
From this the approach became known as the ''
living tree doctrine
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.
Concept
The livin ...
'' which requires "large and liberal" interpretation.
Aftermath
Although the ruling was of crucial importance for Canadian women in the long term, it did not result in
Emily Murphy
Emily Murphy (born Emily Gowan Ferguson; 14 March 186827 October 1933) was a Canadian women's rights activist and author. In 1916, she became the first female magistrate in Canada and in the British Empire. She is best known for her contributio ...
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.
Nearly 80 years later, in October 2009, the Senate voted to name the Five, posthumously, Canada's first "honorary senators".
Legacy
An annual award, the
Governor General's Awards in Commemoration of the Persons Case
The Governor General's Awards are a collection of annual awards presented by the Governor General of Canada, recognizing distinction in numerous academic, artistic, and social fields.
The first award was conceived and inaugurated in 1937 by the ...
, 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.
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."
The fifty-dollar note in the
Canadian Journey Series
Canadian Journey is the sixth series of banknotes of the Canadian dollar designed and circulated by the Bank of Canada. It succeeded the 1986 Birds of Canada banknote series. The first banknote of the Canadian Journey series issued into circula ...
(first issued in 2004) featured the statue of the Famous Five celebrating the result of the ''Persons Case''.
List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
This is a chronological list of notable cases decided by the Supreme Court of Canada from the formation of the Court in 1875 to the retirement of Gérald Fauteux in 1973.
Note that the Privy Council heard appeals for criminal cases until 193 ...
References
Further reading
* Robert J. Sharpe & Patricia I. McMahon. ''The Persons Case: The Origins and Legacy of the Fight for Legal Personhood''. Toronto: Osgoode Society for Canadian Legal History, 2007.