Edwards v. Canada (Attorney General)

infobox court case
name=Edwards v. Canada (Attorney General)
court=Judicial Committee of the Privy Council


date_decided= October 18, 1929
full_name=Edwards v. Canada (Attorney General)
citations= [Case citation#England and Wales| [1930] A.C. 124]
judges=Lord Sankey
Cases_cited=?
Legislation_cited=?
prior_actions="Edwards v. Canada (Attorney General)", [1928] S.C.R. 276
subsequent_actions=None
Keywords=

"Edwards v. Canada (Attorney General)" [1930] A.C. 124 – also known as the Persons Case – is a famous Canadian and British 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 British Privy Council, then the court of last resort for Canada, and was a landmark case in at least two respects. First, as already stated, it 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.

Background

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 American Act. In 1917, the Alberta Supreme Court 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, and allowed 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."

In Canada, at least five people must sign a petition asking for constitutional clarification from the Canadian Supreme Court. Emily Murphy asked four other prominent Albertans to join her in just such a petition, and on August 27, 1927, the four other women joined her for tea at her house and the five women, later to be known as the Famous Five (or the Valiant Five) all signed the petition. Ernest Lapointe, who was Minister of Justice in the government of William Lyon Mackenzie King, changed the wording of the petition, narrowing down the number of questions from two to one, and on October 19, 1927, Freeman Freeman-Thomas, the Governor General, 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?"

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.

The five Justices who heard the case held that the meaning of "qualified persons" did not include women. Francis Alexander Anglin wrote the majority judgment, with Lamont J. 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, [http://www.swc-cfc.gc.ca/dates/persons/case_e.html 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. 24 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.

Opinion of the Judicial Committee of the Privy Council

Lord 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.

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.

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?"

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.

ee also

* List of Judicial Committee of the Privy Council cases
* List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
* Governor General's Awards in Commemoration of the Persons Case

External links

* [http://www.chrc-ccdp.ca/en/browseSubjects/edwardsscc.asp SCC judgment]
* [http://www.chrc-ccdp.ca/en/browseSubjects/edwardspc.asp JCPC judgment]