Edwards v. Canada (Attorney General)
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Edwards v. Canada (Attorney General) [1930] A.C. 124 – also known as the Persons' Case – is a famous Canadian/British constitutional case where it was first decided that women were eligible to sit on the Senate. The case, put forward by the Famous Five, went all the way to the Privy Council and was a landmark case in many respects.
Background
During this period women had earned the right to vote and gender equality issues were a hot political topic. 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) did not include women, thus they were barred from ever being appointed.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 female persons?"
Opinion of the Supreme Court of Canada
The five Justices who heard the case held that the meaning of "persons" did not include women. The majority judgment was written by Chief Justice Anglin, with Lamont and Smith J. concurring. Mignault J. and Duff J. wrote separate concurring opinions.Their basis was that the BNA Act 1867 had to be read in the context of the year it was brought into force. 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
Viscount Sankey, writing for the committee, found that the meaning of "persons" could be read broadly to include women, reversing the decision of the Supreme Court.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 constitional 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
It was only a year later in 1930 that the first woman, Cairine Reay Wilson, was appointed to the Senate.See also
- List of Judicial Committee of the Privy Council cases
- List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
External links
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