Wednesday, April 23, 2008

Persons

April 23, 1928:

Eighty years ago today, in 1928, the Supreme Court of Canada ruled that women were not persons under the British North America Act and therefore could not hold office. In 1929 the British Privy Council reversed the decision, saying the exclusion of women from public office was "a relic of days more barbarous than ours.''

The Supreme Court of Canada's decision in Edwards v. Canada is here.

The Privy Council appeal decision in Edwards v Canada is here.

Wikipedia has more on these historic decisions:

The Famous Five had begun to bring attention to their cause of putting a woman in the Senate. At the time the legal definition of "qualified persons" under the British North America Act (BNA Act 1867) was thought by the Canadian Government not to include women.

In 1928, the Minister of Justice submitted a reference question to the Supreme Court of Canada asking if "the word "Persons" in section 24 of the British North America Act, 1867 include[s] female persons"

Opinion of the Supreme Court of Canada

The five Justices who heard the case held that the meaning of "qualified persons" did not include women. The majority judgment was written by Francis Alexander Anglin, with Lamont 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, 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 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.

- Garry J. Wise, Toronto

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