Defining "persons" under the BNA Act

Supreme Court of Canada Building
Ottawa, Canada
April 24, 1928

Although some women have won the right to vote, Canada remains a patriarchal society. For instance, did you know that in 1928 a woman had yet to be appointed to the Senate?

You may be asking yourself, "Was it because they were not encouraged, or was it because they were not eligible?"

The answer is both. You see, many believed that the Constitution - the British North America Act - implied that women were not "qualified persons". In 1928, the Minister of Justice decided to settle the matter once and for all by putting the question to the Supreme Court:

"Does the word "Persons" in section 24 of the British North America Act, 1867 include female persons?"

After careful consideration, the five male justices of the Supreme Court decided unanimously that the answer was "No, it does not."

The Court's logic was as follows:

1. The B.N.A. Act in 1928 has to have the meaning it would have been given by the Courts when it was passed in 1867
2. According to common law - that's traditional judge-made law - women couldn't hold office. Before 1867, it was well established that women could not sit in Parliament.
3. Knowing that, if the British Parliament had meant for women to be included as "qualified persons" under s. 24 of the B.N.A. Act, it would have said so.

The verdict was not well received. An appeal to the Privy Council was launched.

London, England
October 18, 1929

If the Supreme Court saw the glass as half empty, the Privy Council saw it as half full.

The Law Lords decided that the intention of section 24 was not clear. The word person in itself is ambiguous. Given this ambiguity, the Council judged justice would be better served if the B.N.A. Act was given a wider interpretation.

They established a key, sensible principle of understanding that justice requires judges to consider an evolving social context when they interpret laws. In other words, if the Imperial Parliament had meant to exclude women, they should have said so. The Lord Chancellor said it best:

"...to those who ask why the word [persons] should include females the obvious answer is why should it not?"

And there you have it. Caucasian women can vote in all provinces but Québec, run for office, and be appointed to the Senate. Another small step towards gender equality has been made.

Quotable quote

" The exclusion of all women from public offices is a relic of days more barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which in later years were not necessary."

Lord Sankey L.C., from Edwards v. Attorney General for Canada

Cool stuff

Do you have Adobe Acrobat Reader software? Then don't miss the chance to read an article from the National Archives of Canada's publication, The Archivist, celebrating the Person's case.

Don't have Acrobat Acrobat Reader? Don't pout - get it free from Adobe.

Did you know?

• Henrietta Muir Edwards
• Nellie L. McClung
• Louise C. McKinney
• Emily F. Murphy
• Irene Parlby

Quotable quote

" In considering this matter we are, of course, in no way concerned with the desirability or the undesirability of the presence of women in the Senate, nor with any political aspect of the question submitted. Our whole duty is to construe, to our best ability, the relevant provisions of the B.N.A. Act, 1867, and upon that construction to base our answer."

Supreme Court of Canada

Did you know?

In 1930, Montreal's Cairine Reay Wilson will become the first woman appointed to the Senate. Most people had expected that Emily Murphy - the British Empire's first female judge - would get the call. Reay Wilson will play a major role in advocating help to prewar refugees from Nazi Germany.

Quotable quote

" Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared."

Lord Sankey L.C., from Edwards v. Attorney General for Canada

Want To Know More?

See:
Edwards v. Attorney General for Canada (Supreme Court of Canada)
Edwards v. Attorney General for Canada (Privy Council)
s. 21-35 of the British North America Act, 1867