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485:). It connotes human beings—the criminal and the insane equally with the good and the wise citizen, the minor as well as the adult. Hence the propriety of the restriction placed upon it by the immediately preceding word "qualified" in ss. 24 and 26 and the words "fit and qualified" in s. 32, which exclude the criminal and the lunatic or imbecile as well as the minor, who is explicitly disqualified by s. 23(1). Does this requirement of qualification also exclude women?
300:, 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." Much to her surprise, the minister not only agreed, but appointed her as the magistrate. On her first day on the job, however, her authority to preside as a judge was challenged by a lawyer on the basis that women were not considered to be "persons" under the
436:. Section 23 of the Act sets out the qualifications for a Senator. Senators must be at least thirty years old, must be a British subject, must own real and personal property with a net value of at least $ 4,000, and must live in the Province for which they are appointed. Section 23 uses the pronoun "He" to describe these qualifications, which contributed to the argument that only men could be appointed to the Senate.
462:, despite acknowledging that the role of women in society had changed since that date. In 1867, women could not sit in Parliament. Thus, if there were to be an exception to the practice from that period, it would have to be explicitly legislated. The majority decision held that the common law incapacity of women to exercise public functions excluded women from the class of "qualified persons" under section 24 of the
563:, 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. He wrote that "he exclusion of women from all public offices is a relic of days more barbarous than ours", and that "to those who ask why the word should include females, the obvious answer is why should it not". Finally, he wrote:
296:, a well-known activist for women's rights, and a group of other women attempted to attend a trial of Alberta women accused of prostitution. She and the rest of the group of women were ejected from the trial on the grounds that the testimony was "not fit for mixed company". Emily Murphy was outraged and appealed to
407:
Emily Murphy, speaking for the five petitioners, originally objected to this change in the wording of the question, which she described in a letter to the Deputy
Minister of Justice as "a matter of amazement and perturbation to us". On behalf of the petitioners, she asked that the Government withdraw
469:
A common misinterpretation of the case is that the
Supreme Court held that women are not persons. For example, the website of Status of Women Canada, a federal government organization, states, "After five weeks of debate and argument the Supreme Court of Canada decided that the word 'person' did not
455:
The question for the Court was whether women could be "qualified persons" under s. 24 and thus eligible to be appointed to the Senate. Ultimately, all five
Justices held that the meaning of "qualified persons" did not include women. The Court interpreted the phrase "qualified person" based on their
501:
respectively, of "qualified
Persons" and of "fit and qualified Persons." The question which we have to consider, therefore, is whether "female persons" are qualified to be summoned to the Senate by the Governor General; or, in other words—Are women eligible for appointment to the Senate of Canada?
317:
as a candidate for
Canadian Senator. He rejected her on the grounds that women were not "persons". In response to a petition signed by nearly 500,000 Canadians that asked that she be appointed to the Senate, Borden stated that he was willing to do so, but could not on the basis of an 1876 British
585:
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
500:
It should be observed that, while the question now submitted by His
Excellency to the court deals with the word "Persons," section 24 of the B.N.A. Act speaks only of "qualified Persons"; and the other sections empowering the Governor General to make appointments to the Senate (26 and 32) speak,
633:
A statue of the Famous Five was unveiled in
Calgary in 1999, and a replica placed on Parliament Hill in 2000. According to a publication of Library and Archives Canada, "The work depicts them as they might have appeared on hearing the news of the Privy Council's ruling. Standing behind an empty
567:
heir
Lordships have come to the conclusion that the word "persons" in sec. 24 includes members both of the male and female sex and that, therefore, ... women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty
450:
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
581:
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
249:
was a landmark case in two respects. The case established that Canadian women were eligible to be appointed senators and also established that the Canadian constitution should be interpreted in a way that was more consistent with the needs of society.
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The five women then took the case on appeal to the Judicial Committee of the Privy Council, at that time the court of last resort for the British Empire. Since their names were listed on the appeal documents in alphabetical order,
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for Canada within the British Empire and Commonwealth. The Judicial Committee overturned the Supreme Court's decision. (The case name lists Edwards as the lead appellant, as her name came first alphabetically.)
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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?
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3. If any statute be necessary to qualify a female to sit in the Senate of Canada, must this statute be enacted by the Imperial Parliament, or does power lie with the Parliament of Canada, or the Senate of
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The Court did not respond directly to the question as posed by the federal Cabinet. Instead, the Court gave its own interpretation of the question in a discussion of precedents regarding public office:
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After further correspondence with the Deputy Minister and consultation with their lawyer, however, Emily Murphy advised the Deputy Minister that they accept the single question posed by the Cabinet.
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Some years later, Emily Murphy asked four other prominent Albertan women to join her in a petition to the federal government on the issue of women's status. On August 27, 1927, the four other women (
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To arrive at his conclusion, Sankey proposed an entirely new approach to constitutional interpretation that has since become one of the core principles of constitutional law in Canada.
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Some others have interpreted the Privy Council rule as causing a change in the Canadian judicial approach to the Canadian constitution, an approach that has come to be known as the
253:
Some saw the eligibility of women for the senate as "radical change"; others saw it as a restoration of the original framing of the English constitutional documents, including the
266:. This is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.
627:, was created in 1979 and continues to be presented to five individuals each year to honour distinguished achievements that advance the equality of girls and women in Canada.
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chair, Emily Murphy, with a triumphant gesture beckons to visitors, men and women equally, to have a place at this celebration of a new day for women in Canada."
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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?
429:, Chief Justice of Canada, wrote the majority judgment, with Lamont J. and Smith J. concurring. Mignault J. and Duff J. wrote separate concurring opinions.
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that the questions be narrowed down from two to one, relating to the appointment of women to the federal Senate of Canada under section 24 of the
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limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs.
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346:(or the Valiant Five) all signed the petition, asking the federal government to refer two questions relating to women's status to the
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Some time later, Emily Murphy tested the issue in the rest of Canada by allowing her name to be put forward to Prime Minister
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Nearly 80 years later, in October 2009, the Senate voted to name the Five, posthumously, Canada's first "honorary senators".
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517:"Understood to mean 'Are women eligible for appointment to the Senate of Canada', the question is answered in the negative."
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In the matter of a Reference as to the meaning of the word " persons " in Section 24 of The British North America Act, 1867
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Reference to Meaning of Word "Persons" in Section 24 of British North America Act, 1867: Edwards v. A.G. of Canada
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the single question and refer the original two questions to the Supreme Court, along with a new, third question:
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common law ruling that stated that "women were eligible for pains and penalties, but not rights and privileges".
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838:
Directorate, Government of Canada, Status of Women Canada, Communications and Public Affairs (March 31, 2021).
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being appointed to the Senate. It was only a year later, on February 15, 1930, however, that the first woman,
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On October 19, 1927, the Cabinet submitted this question for clarification to the Supreme Court of Canada:
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At that time, however, the Supreme Court was not the final arbiter of constitutional questions in Canada.
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The Supreme Court of Canada heard the case on March 14, 1928, and issued its decision on April 24, 1928.
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Although the ruling was of crucial importance for Canadian women in the long term, it did not result in
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1120:'I can see the statue of the Famous Five when I look out my window in the Centre Block', said Tardif.
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Emily Murphy's house where the tea party occurred is now on the campus of the University of Alberta.
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Anglin C.J.C. began by reviewing the provisions relating to the appointment of Senators under the
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1027:"The Governor General's Awards in Commemoration of the Persons Case > Past Recipients"
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Reference re meaning of the word "Persons" in s. 24 of the British North America Act
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Reference re meaning of the word "Persons" in s. 24 of the British North America Act
872:
Reference re meaning of the word "Persons" in s. 24 of the British North America Act
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Reference re meaning of the word "Persons" in s. 24 of the British North America Act
665:
List of Judicial Committee of the Privy Council cases originating in Canada, 1920–29
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Reference re meaning of the word "Persons" in s. 24 of British North America Act
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List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
342:) joined her for tea at her house. The five women, later to be known as the
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List of Judicial Committee of the Privy Council cases originating in Canada
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to the Supreme Court of Canada to clarify legal and constitutional issues.
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Library and Archives Canada / Bibliothèque et Archives Canada: Famous Five
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The Persons Case: The Origins and Legacy of the Fight for Legal Personhood
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was listed as the first appellant, leading to the case being entered as
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Judicial Committee of the Privy Council cases on appeal from Canada
840:"Who were the Famous Five? – Persons Day – Status of Women Canada"
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There can be no doubt that the word "persons" when standing alone
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Reference re Meaning of the Word "Persons" in s. 24 of the BNA Act
765:"Letter from Emily Murphy (December 28, 1927)—The Famous Five"
625:
Governor General's Awards in Commemoration of the Persons Case
27:
1929 Canadian court case about women's eligibility as senators
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Library and Archives Canada / Bibliothèque et Archives Canada
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Library and Archives Canada / Bibliothèque et Archives Canada
747:"Letter from Emily Murphy (November 9, 1927)—The Famous Five"
716:
Library and Archives Canada / Bibliothèque et Archives Canada
555:
The landmark ruling was handed down on October 18, 1929. The
1195:. Toronto: Osgoode Society for Canadian Legal History, 2007.
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The majority judgment of the Supreme Court of Canada noted:
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1072:"The Famous Five on Parliament Hill: A Second Unveiling"
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University of Alberta Campus Map: Emily Murphy House.
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understanding of the intention of the drafters of the
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List of Judicial Committee of the Privy Council cases
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Appeal to the Judicial Committee of the Privy Council
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596:which requires "large and liberal" interpretation.
511:The Court's unanimous answer to that question was:
374:, who was Minister of Justice in the government of
366:In Canada, the federal government has the power to
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Arms of the Judicial Committee of the Privy Council
515:The formal judgment of the court was as follows:—
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1281:Supreme Court of Canada reference question cases
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235:Judicial Committee of the Imperial Privy Council
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378:, reviewed the petition and recommended to the
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934:Status of Women Canada (September 23, 2016).
712:"Petition of August 27, 1927—The Famous Five"
543:. However, it is more generally known as the
399:Does the word "Persons" in section 24 of the
1191:Robert J. Sharpe & Patricia I. McMahon.
1029:. Queen's Printer for Canada. Archived from
981:"Cairine Wilson | The Canadian Encyclopedia"
856:: CS1 maint: multiple names: authors list (
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590:From this the approach became known as the
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1286:Canadian federal government litigation
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1098:"The Famous 5 finally make the Senate"
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421:Opinion of the Supreme Court of Canada
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481:includes women. (Per Loreburn L.C.,
18:Edwards v. Canada (Attorney General)
1163:"$ 50 Note, Background Information"
1010:'Famous 5' named honorary senators"
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541:Edwards v Canada (Attorney General)
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276:in 1938, unveiling a plaque to the
24:
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1096:Janet Bagnall (October 16, 2009).
828:, pp. 283–285 (per Anglin C.J.C.).
483:Nairn v. University of St. Andrews
322:Petition to the federal government
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936:"The History of the Persons Case"
1251:Canadian constitutional case law
1165:. Bank of Canada. Archived from
191:l'Affaire « personne »
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401:British North America Act, 1867
384:British North America Act, 1867
310:ruled that women were persons.
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362:Reference to the Supreme Court
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1236:Supreme Court of Canada cases
1070:Bob Ferris (April 10, 2000).
956:Hutchinson, Allan C. (1992).
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637:The fifty-dollar note in the
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1012:, CBC News, October 10, 2009
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237:in London, at that time the
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376:William Lyon Mackenzie King
274:William Lyon Mackenzie King
10:
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1271:History of women in Canada
1057:November 13, 2010, at the
733:, RSC 1985, c. S-19, s. 53
439:Section 24 then provides:
350:. The two questions were:
1256:1929 in Canadian case law
986:The Canadian Encyclopedia
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427:Francis Alexander Anglin
308:Supreme Court of Alberta
639:Canadian Journey Series
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231:Supreme Court of Canada
221:. The case began as a
117:Supreme Court of Canada
1218:Saskatoon Star-Phoenix
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336:Louise Crummy McKinney
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1025:(December 31, 2008).
700:on December 18, 2019.
623:An annual award, the
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332:Nellie Mooney McClung
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176:Edwards v Canada (AG)
88:1929 UKPC 86 (BAILII)
35:Edwards v Canada (AG)
1266:Feminism and history
1110:on December 13, 2013
1033:on September 3, 2010
962:Constitutional Forum
923:, AC 124, UKPC 86.
593:living tree doctrine
573:Living tree doctrine
328:Irene Marryat Parlby
298:Charles Wilson Cross
263:living tree doctrine
239:court of last resort
179:, also known as the
1169:on January 20, 2005
1133:"Journey $ 50 note"
610:Cairine Reay Wilson
582:convention ...
255:Bill of Rights 1689
1222:(from Google News)
1220:, October 18, 1929
444:Summons of Senator
386:(now known as the
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154:Lancelot Sanderson
1137:CdnPaperMoney.com
844:www.swc-cfc.gc.ca
730:Supreme Court Act
203:Henrietta Edwards
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