Edwards v. Canada (Attorney General)

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Edwards v. Canada (Attorney General) [1930] AC 124 - also known as Persons Case - is a Canadian - British court ruling that gave women the option of becoming Canadian Senators .

The case was brought by the Canadian Famous Five : Nellie McClung , Henrietta Muir Edwards , Emily Murphy (1868-1933), Louise McKinney and Irene Parlby , who took the proceedings to the Judicial Committee of the Privy Council in London, then the highest auditor in Canada , carried.

background

The decision came at a time when the women's movement had already made great strides and in most western nations the right to vote for women had already been achieved. The Famous Five had started an intense campaign aimed at ensuring that women could also become Canadian Senators.

At the time, the Canadian government, in whose hands the nomination of senators lay, interpreted the Constitution Act of 1867 to mean that the required “qualified persons” could only be men and women would therefore be excluded from the Senate.

As a result of the campaign, in 1928 the Canadian Justice Minister asked the Supreme Court of Canada the “ reference question ” as to whether the word “persons” in Article 24 of the British North America Act also includes “women”.

Decision of the Supreme Court of Canada

The five judges of the federal court ruled that the section “qualified persons” in this context is limited to men only. The ruling, written by Judge Francis Alexander Anglin , stated that "persons" in general does include women, but not in this particular case.

The judges interpreted the passage as the authors of the North America Act 1867 intended. At that time it was inconceivable that women could take a seat in parliament, which is supported by the use of the masculine personal pronoun “he” throughout the text. If the authors had also meant women as “qualified persons”, they would have made this explicitly clear.

Decision of the Judicial Committee of the Privy Council

The Famous Five took the case to London before the Judicial Committee of the Privy Council , then the highest judicial authority for all areas of the British Empire outside the British Isles. There the committee decided on October 29, 1929 that the section on people should be read to include women. The decision was made by John Sankey, 1st Viscount Sankey .

Living Tree Doctrine

In order to reach this decision, Sankey established an entirely new approach that has since evolved into a fundamental approach to Canadian constitutional law .

The British North America Act planted a living tree in Canada that is capable of growing within its natural limits. The intent of the law was to give Canada a constitution. Like all written constitutions, it has evolved through use and convention.

Their lordships feel it is not the duty of this body - it is most certainly not their intention - to curtail the provisions of this law by a narrow and technical interpretation, but by a broad and liberal interpretation, so that the Dominion to a large extent, albeit one within certain limits, lady of the house may be, just as the provinces are in large part, but within certain limits, lady of the house are in theirs.

This justification made the interpretation approach of the "broad and liberal" interpretation of the constitution known as the Living Tree Doctrine .

decision

In applying the doctrine to the Persons' Case, Sankey concluded that the exclusion of women from public office “is a relic of more barbaric times than ours. And for those who ask why the word "person" should include women, the obvious answer is why shouldn't it? "

consequences

The decision by the Privy Council had implications for the entire British Empire outside the British Isles, and especially for Canadian women. It was irrelevant to the question of whether women could sit in the British House of Lords, as it was outside the jurisdiction of the Privy Council. The plaintiff Emily Murphy (1868-1933), who could become a senator, failed because the Prime Minister did not want to appoint her as a senator. However, less than half a year after the decision with Cairine Wilson on February 15, 1930, he appointed the first woman to be a senator in the Canadian Senate.

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Remarks

  1. ^ 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.
  2. ↑ 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.
  3. ↑ ... 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?