Supreme Court of Canada and the Canadian Government
The person case is a famous Canadian constitutional case which decided that women were eligible to sit in the Canadian Senate. The case was put forward by the Famous 5 women movement which began as a reference case in the Supreme Court of Canada to a local court ruling. The person’s case was a landmark because it established Canadian women were eligible to be appointed to the senate and gave a lot more political rights to the women.
In 1916, Emily Murphy and another female judge were upheld by the Supreme Court of Canada. Emily murphy 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 … set up a special court presided over by women, to try other women” To her surprise, the minister agreed and appointed Emily Murphy as the first police magistrate of whole of the British Empire. This was only possible because the Supreme Court of Alberta ruled that women were persons. (This only applied to the province of Alberta and not nationally) As Emily Murphy got more supporters, she decided to run for the senate in which she was declined by the government of Canada on the statement of women not being defined by “person” in the BNA Act of 1867.
10 years later, Emily Murphey and 4 other Albertan women have a petition to the federal government on the issue of women’s status. The petition consisted of 2 questions:
In 1916, Emily Murphy and another female judge were upheld by the Supreme Court of Canada. Emily murphy 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 … set up a special court presided over by women, to try other women” To her surprise, the minister agreed and appointed Emily Murphy as the first police magistrate of whole of the British Empire. This was only possible because the Supreme Court of Alberta ruled that women were persons. (This only applied to the province of Alberta and not nationally) As Emily Murphy got more supporters, she decided to run for the senate in which she was declined by the government of Canada on the statement of women not being defined by “person” in the BNA Act of 1867.
10 years later, Emily Murphey and 4 other Albertan women have a petition to the federal government on the issue of women’s status. The petition consisted of 2 questions:
- "I. Is power vested in the Governor-General in Council of Canada, or the Parliament of Canada, or either of them, to appoint a female to the Senate of Canada?”
- "II. Is it constitutionally possible for the Parliament of Canada under the provisions of the British North America Act, or otherwise, to make provision for the appointment of a female to the Senate of Canada?”
In Canada, the federal government is allowed to refer to the Supreme Court of Canada to clarify legal and constitutional issues. Ernest Lapointe, who was Minster of Justice in the government of William Lyon Mackenzie King, reviewed the petition and revised the questions into “Does the word “Person” in section 24 of the British North America Act, 1867, include female person?” (National Archives of Canada, RG 13, vol. 2524, file C1044)
The case arrived at the Supreme Court of Canada on March 14, 1928. Francis Alexander Anglin, Chief Justice of Canada, wrote the majority judgment, with Lamont J. and Smith J. concurring. Mignault J. and Duff J. wrote separate concurring opinions. The Supreme Court of Canada had to follow through the Constitution act of 1867 as the BNA act was vague and did not speak anything about gender or sexuality. Anglin C.J.C related the case to the appointment of Senators under the Constitutional Act. Section 23 of the Act sets out the qualifications of the Senator. The senator must be at least of thirty years of age, British subject, must own real and personal property with a net value of at least $4,000, and must live in the province in which they are appointed. The act also uses the pronoun “he” to describe these qualification which automatically refers to a male character. (Edwards vs. Canada (Attorney General)) |
Qualifications of Senator 23. The Qualifications of a Senator shall be as follows:
- "He shall be of the full age of Thirty Years"
- "He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union;"
- "He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same;"
- "His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities;"
- "He shall be resident in the Province for which he is appointed;"
- "In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division. "
“24. The Governor General shall from time to time, in the Queen's Name, by instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.” (National Archives of Canada, BNA Act)
Ultimately, based on both these regulated Acts, the question was narrowed down to where women could be “qualified persons” under section 24 of the BNA Act thus eligible to be appointed to the Senate. Ultimately, the court decided that the word “person” did not include women. The court used interpretation from the Constitutional Act of 1867 to refer to the final decisions. Despite the acknowledging that the role of women in society had changed since the Constitutional act of 1867, the court stated that in ruling of keeping the original traditions of the Senate, Women will not able allowed to be appointed to the senate. (Edwards vs. Canada (Attorney General))
Ultimately, based on both these regulated Acts, the question was narrowed down to where women could be “qualified persons” under section 24 of the BNA Act thus eligible to be appointed to the Senate. Ultimately, the court decided that the word “person” did not include women. The court used interpretation from the Constitutional Act of 1867 to refer to the final decisions. Despite the acknowledging that the role of women in society had changed since the Constitutional act of 1867, the court stated that in ruling of keeping the original traditions of the Senate, Women will not able allowed to be appointed to the senate. (Edwards vs. Canada (Attorney General))