Reference to Meaning of Word "Persons" in Section 24 of British
North America Act, 1867. (Judicial Committee of The Privy Council)
Edwards v. A.G. of Canada
 A.C. 124
The judgment of their Lordships was delivered by Lord Sankey,
By sec. 24 of the British North America Act, 1867, it is provided
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.
The question at issue in this appeal is whether the words "qualified
persons" in that section include a woman, and consequently whether
women are eligible to be summoned to and become members of the Senate
Of the appellants, Henrietta Muir Edwards is the vice-president for the
province of Alberta of the National Council of Women for Canada; Nellie
L. McClung and Louise C. McKinney were for several years members of the
Legislative Assembly of the said province; Emily F. Murphy is a police
magistrate in and for the said province; and Irene Parlby is a member
of the Legislative Assembly of the said province and a member of the Executive
On August 29, 1927, the appellants petitioned the Governor-General in
Council to refer to the Supreme Court certain questions touching the powers
of the Governor-General to summon female persons to the Senate, and upon
October 19, 1927, the Governor-General in Council referred to the Supreme
Court the aforesaid question. The case was heard before Chief Justice
Anglin, Mr. Justice Duff, Mr. Justice Mignault, Mr. Justice Lamont and
Mr. Justice Smith, and upon April 24, 1928, the Court answered the question
in the negative ( S.C.R. 276); the question being understood to
be "Are women eligible for appointment to the Senate of Canada?"
The Chief Justice, whose judgment was concurred in by Mr. Justice Lamont
and Mr. Justice Smith, and substantially by Mr. Justice Mignault, came
to this conclusion upon broad lines mainly because of the common-law disability
of women to hold public office and from a consideration of various cases
which had been decided under different statutes as to their right to vote
for a member of Parliament.
Mr. Justice Duff, on the other hand, did not agree with this view. He
came to the conclusion that women are not eligible for appointment to
the Senate upon the narrower ground that upon a close examination of the
British North America Act of 1867 the word "persons"
in sec. 24 is restricted to members of the male sex. The result therefore
of the decision was that the Supreme Court was unanimously of opinion
that the word "persons" did not include female persons, and
that women are not eligible to be summoned to the Senate.
Their Lordships are of opinion that the word "persons" in sec.
24 does include women, and that women are eligible to be summoned
to and become members of the Senate of Canada.
It coming to a determination as to the meaning of a particular word in
a particular Act of Parliament it is permissible to consider two points,
viz.: (i) The external evidence derived from extraneous circumstances
such as previous legislation and decided cases; (ii) The internal evidence
derived from the Act itself.
As the learned counsel on both sides have made great researches and invited
their Lordships to consider the legal position of women from the earliest
times, in justice to their argument they propose to do so and accordingly
turn to the first of the above points, viz.: (i) The external evidence
derived from extraneous circumstances.
The exclusion of women from all 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.
Such exclusion is probably due to the fact that the deliberative assemblies
of the early tribes were attended by men under arms, and women did not
bear arms. "Nihil autem neque publicae neque privatae rei, nisi
armati, agunt:" Tacitus Germania, ch. 13. Yet the tribes did
not despise the advice of women: "Inesse quin etiam sanctum et
providum putant, nec aut consilia earum aspernantur aut responsa neglegunt:"
Germania, ch. 8.
The likelihood of attack rendered such a proceeding unavoidable, and
after all what is necessary at any period is a question for the times
upon which opinion grounded on experience may move one way or another
in different circumstances. This exclusion of women found its way into
the opinions of the Roman jurists, Ulpian (A.D. 211) laying it
down: "Feminae ab omnibus officiis civilibus vel publicis remotae
sunt:" Dig. 1.16.195.
The barbarian tribes who settled in the Roman Empire and were exposed
to constant dangers naturally preserved and continued the tradition.
In England no woman under the degree of a Queen or a Regent, married
or unmarried, could take part in the government of the state. A woman
was under a legal incapacity to be elected to serve in Parliament and
even if a peeress in her own right she was not, nor is, entitled as an
incident of peerage to receive a writ of summons to the House of Lords.
Various authorities are cited in the recent case of Viscountess Rhondda's
Claim,  2 A.C. 339, 38 T.L.R. 759, where it was held that a
woman was not entitled to sit in the House of Lords. Women were, moreover,
subject to a legal incapacity to vote at the election of members of parliament:
Coke, 4 Inst., p. 5; Chorlton v. Lings (1868) L.R. 4
C.P. 374, 38 L.J.C.P. 25; or of town councillor: Reg. v. Harrold
(1872) L.R. 7 Q.B. 361, 41 L.J.Q.B. 173; or to be elected members of the
county council: Beresford-Hope v. Sandhurst (Lady) (1889) 23
Q.B.D. 79, 58 L.J.Q.B. 316.
They were excluded by the common law from taking part in the administration
of justice either as Judges or as jurors, with the single exception of
inquiries by a jury of matrons upon a suggestion of pregnancy: Coke,
2 Inst. 119, 3 B1. Comm. 362.
Other instances are referred to in the learned judgment of Mr. Justice
Willes in Chorlton v. Lings, supra.
No doubt in the course of centuries there may be found cases of exceptional
women and exceptional instances, but as Lord Esher said in De Souza
v. Cobden,  1 Q.B. 687, at 691, 60 L.J.Q.B. 533:
By the Common Law of England women are not in general
deemed capable of exercising public functions, although there are certain
exceptional cases where a well-recognized custom to the contrary has become
An instance may be referred to in the case of women being entitled to
act as churchwardens and as sextons, the latter being put upon the ground
that a sexton's duty was in the nature of a private trust: Olive v.
Ingram (1738) 7 Mod. 263, 2 Str. 1114. Also of being appointed as
overseer of the poor: Rex v. Stubbs (1788) 2 Term. R. 395, 1
R.R. 503. The tradition existed till quite modern times: see Bebb
v. Law Society,  1 Ch. 286, 83 L.J. Ch. 363, where it was held
by the Court of Appeal that by inveterate usage women were under a disability
by reason of their sex to become attorneys or solicitors.
The passing of Lord Brougham's Act in 1850 [An Act for shortening
the Language used in Acts of Parliament, 13-14 Vict., ch. 21] does
not appear to have greatly affected the current of authority. Sec. 4 provided
that in all Acts words importing the masculine gender shall be deemed
and taken to include female unless the contrary as to gender is expressly
The application and purview of that Act came up for consideration in
Chorlton v. Lings, supra, where the Court of Common Pleas was
required to construe a statute passed in 1861, which conferred the parliamentary
franchise on every man possessing certain qualifications and registered
as a voter. The chief question discussed was whether by virtue of Lord
Brougham's Act the words "every man" included women. Chief
Justice Bovill, having regard to the subject-matter of the statute and
its general scope and language and to the important and striking nature
of the departure from the common law involved in extending the franchise
to women, declined to accept the view that Parliament had made that change
by using the term "man" and held that the word was intentionally
used expressly to designate the male sex. Willes, J., said:
It is not easy to conceive that the framer of that Act
when he used the word "expressly," meant to suggest that what
is necessarily or properly implied by language is not expressed by such
Great reliance was placed by the respondents to this appeal upon that
decision, but in our view it is clearly distinguishable.
The case was decided on the language of the Representation of the
People Act, 1867, which provided that "every man" with
certain qualifications and "not subject to any legal incapacity"
should be entitled to be registered as a voter. Legal incapacity was not
defined by the Act and consequently reference was necessary to the common-law
disabilities of women.
A similar result was reached in the case of Nairn v. St. Andrews
University,  A.C. 147, 78 L.J.P.C. 54, where it was held under
sec. 27 of the Representation of the People (Scotland) Act, 1868,
31 & 32 Vict., ch. 48, which provided that every person whose name
is for the time being on the register of the general council of such university
shall, being of full age and not subject to any legal incapacity, be entitled
to vote in the election of a member to serve in any future Parliament
for such university, that the word "person" did not include
women, but the Lord Chancellor, Lord Loreburn, referred to the position
of women at common law and pointed out that they were subject to a legal
incapacity. Both in this case and in the case of the Viscountess Rhondda,
supra, the various judgments emphasize the fact that the Legislature
in dealing with the matter cannot be taken to have departed from the usage
of centuries, or to have employed loose and ambiguous words to carry out
a so momentous and fundamental change.
The judgment of the Chief Justice of the Supreme Court of Canada refers
to and relies upon these cases, but their Lordships think that there is
great force in the view taken by Mr. Justice Duff with regard to them,
when he says that sec. 24 of the British North America Act, 1867,
must not be treated as an independent enactment. The Senate, he proceeds,
is part of a parliamentary system, and in order to test the contention
based upon this principle that women are excluded from participating in
working the Senate or any other institution set up by the Act one is bound
to consider the Act as a whole and its bearings on this subject of the
exclusion of women from public office and place.
Their Lordships now turn for a moment to the special history of the development
of Canadian Legislature as bearing upon the matter under discussion.
The province of Canada was formed by the Union under the Act of Union,
1840, of the two provinces of Upper and Lower Canada respectively,
into which the province of Quebec as originally created by the Royal Proclamation
of October 7, 1763, and enlarged by the Quebec Act, 1774, had
been divided under the Constitutional Act of 1791. In the province
of Quebec from its first establishment in 1763 until 1774, the government
was carried on by the Governor and the Council, composed of four named
persons and eight other "persons" to be chosen by the
Governor from amongst the most considerable of the inhabitants or of other
persons of property in our said province.
The Quebec Act of 1774 entrusted the government of the province
to a Governor and Legislative Council of such "persons"
resident there, not exceeding 23, nor less than 17, as His Majesty shall
be pleased to appoint.
The Constitutional Act of 1791 upon the division of the province
of Quebec into two separate provinces to be called the Provinces of Upper
and Lower Canada established for each province a Legislature composed
of the three estates of Governor, Legislative Council and Assembly empowered
to make laws for the peace, order and good government of the provinces.
The Legislative Council was to consist of a sufficient number of discreet
and proper "persons" not less than seven for Upper Canada and
15 for Lower Canada.
Under the Act of Union, 1840, these two provinces were reunited
so as to constitute one province under the name of the Province of Canada
and the Legislative Council was to be composed of such "persons"
being not fewer than 20 as Her Majesty shall think fit.
In 1865 the Canadian Legislature under the authority of the Imperial
Act passed an Act which altered the constitution of the Legislative Council
by rendering the same elective.
The new constitution as thus altered continued till the union of 1867.
It will be noted that in all the Acts the word "persons" is
used in respect to those to be elected members of the Legislative Council,
and there are no adjectival phrases so qualifying the word as to make
it necessarily refer to males only.
In Quebec, just as in England, there can be found cases of exceptional
women and exceptional instances. For example, in certain districts, namely,
at Trois Rivieres in 1820 women apparently voted, while in 1828 the returning
officer in the constituency of the Upper Town of Quebec refused to receive
the votes of women.
In 1834 the Canadian Parliament passed an Act of Parliament excluding
women from the vote, but two years later the Act was disallowed because
the Imperial Government objected to another section in it.
The matter, however, was not left there and in 1849 by a statute of the
Province of Canada, 12 Vict., ch. 27, sec. 46, it was declared and enacted
that no woman is or shall be entitled to vote at any election, whether
for any county or riding, city or town, of members to represent the people
of this province in the Legislative Assembly thereof.
The development of the maritime provinces proceeded on rather different
lines. From 1719 to 1758 the provincial government of Nova Scotia consisted
of a Governor and a Council which was both a legislative and an executive
body composed of such fitting and discreet "persons"
not exceeding 12 in number, as the Governor should nominate. A General
Assembly for the province was called in 1757, and thereafter the Legislature
consisted of a Governor and Council and General Assembly. In 1838 the
Executive Authority was separated from the Legislative Council which became
a distinct legislative branch only.
In 1784 a part of the territory of the province of Nova Scotia was erected
into a separate province to be called New Brunswick, and a separate government
was established for the province consisting of a Governor and Council
composed of certain named persons, and other persons "to be chosen
by you from amongst the most considerable of the inhabitants of or persons
of property" but required to be men of good life and of ability suitable
to their employment.
In 1832 the Executive Authority was separated and made distinct from
the Legislative Council.
In the province of Nova Scotia there was in the early Acts governing
the election of members of the General Assembly no express disqualification
of women from voting, but by the revised statutes of Nova Scotia (second
series) in 1859 the exercise of the franchise was confined to male subjects
over 21 years of age and a candidate for election was required to have
the qualification which would enable him to vote.
In the province of New Brunswick by the Provincial Act, 11 Vict., ch.
65, sec. 17, the parliamentary franchise was confined to male persons
of the full age of 21 years who possessed certain property qualifications.
It must, however, be pointed out that a careful examination has been
made by the assistant keeper of public records of Canada of the list containing
the names of the Executive and Legislative Councils and Houses of Assembly
in Quebec (including those of Upper and Lower Canada), of the province
of Canada, of the province of Nova Scotia and of the province of New Brunswick
down to 1867, and on none of the lists did he find the name of a person
of the female sex.
Such briefly is the history and such are the decisions in reference to
the matter under discussion.
No doubt in any code where women were expressly excluded from public
office the problem would present no difficulty, but where instead of such
exclusion those entitled to be summoned to or placed in public office
are described under the word "person" different considerations
The word is ambiguous and in its original meaning would undoubtedly embrace
members of either sex. On the other hand, supposing in an Act of Parliament
several centuries ago it had been enacted that any person should be entitled
to be elected to a particular office it would have been understood that
the word only referred to males, but the cause of this was not because
the word "person" could not include females but because at common
law a woman was incapable of serving a public office. The fact that no
woman had served or has claimed to serve such an office is not of great
weight when it is remembered that custom would have prevented the claim
being made, or the point being contested.
Customs are apt to develop into traditions which are stronger than law
and remain unchallenged long after the reason for them has disappeared.
The appeal to history therefore in this particular matter is not conclusive.
As far back as Stradling v. Morgan (1560) 1 Plowd. 199, at 209,
75 E.R. 305, it was laid down that extraneous circumstances may be admitted
as an aid to the interpretation of a statute and in Herron v. Rathmines
and Rathgar Improvement Commrs.,  A.C. 498, 67 L.T. 658, Lord
Halsbury said: The subject-matter with which the legislature was dealing,
and the facts existing at the time with respect to which the legislature
was legislating, are legitimate topics to consider in ascertaining what
was the object and purpose of the legislature in passing the Act,
but the argument must not be pushed too far and their Lordships are disposed
to agree with Farwell, L.J., in Rex v. West Riding of Yorkshire County
Council,  2 K.B. 676, "although it may, perhaps, be legitimate
to call history in aid to show what facts existed to bring about a statute
the inferences to be drawn therefrom are exceedingly slight:" see
Craies Statute Law, 3rd ed., p. 118.
Over and above that, their Lordships do not think it right to apply rigidly
to Canada of to-day the decisions and the reasonings therefor which commended
themselves, probably rightly, to those who had to apply the law in different
circumstances, in different centuries to countries in different stages
of development. Referring therefore to the judgment of the Chief Justice
and those who agreed with him, their Lordships think that the appeal to
Roman Law and to early English decisions is not of itself a secure foundation
on which to build the interpretation of the British North America
Act of 1867.
Their Lordships fully appreciate the learned arguments set out in his
judgment, but prefer, on this part of the case, to adopt the reasonings
of Mr. Justice Duff who did not agree with the other members of the Court,
for reasons which appear to their Lordships to be strong and cogent. As
he says: Nor am I convinced that the reasoning based upon the "extraneous
circumstances" we are asked to consider -- the disabilities of women
under the common law, and the law and practice of Parliament in respect
of appointment to public place or office -- establishes a rule of interpretation
for the British North America Act, by which the construction
of powers, legislative and executive, bestowed in general terms is controlled
by a presumptive exclusion of women from participating in the working
of the institutions set up by the Act.
Their Lordships now turn to the second point, namely: (ii) The internal
evidence derived from the Act itself.
Before discussing the various sections they think it necessary to refer
to the circumstances which led up to the passing of the Act.
The communities included within the Britannic system embrace countries
and peoples in every stage of social, political and economic development
and undergoing a continuous process of evolution.
His Majesty the King in Council is the final Court of Appeal from all
these communities and this Board must take great care therefore not to
interpret legislation meant to apply to one community by a rigid adherence
to the customs and traditions of another. Canada had its difficulties
both at home and with the mother country, but soon discovered that union
was strength. Delegates from the three maritime provinces met in Charlottetown
on September 1, 1864, to discuss proposals for a maritime union. A delegation
from the coalition government of that day proceeded to Charlottetown and
placed before the maritime delegates their schemes for a union embracing
the Canadian provinces. As a result the Quebec conference assembled on
October 10, continued in session till October 28 and framed a number of
resolutions. These resolutions as revised by the delegates from the different
provinces in London in 1866 were based upon a consideration of the rights
of others and expressed in a compromise which will remain a lasting monument
to the political genius of Canadian statesmen. Upon those resolutions
the British North America Act of 1867 was framed and passed by
the Imperial Legislature. The Quebec resolutions dealing with the Legislative
Council, viz., Nos. 6-24, even if their Lordships are entitled to look
at them, do not shed any light on the subject under discussion. They refer
generally to the "members" of the Legislative Council.
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. [Canadian
Constitutional Studies, Sir Robert Borden (1922) p. 55.]
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. "The Privy Council, indeed, has laid down that Courts
of law must treat the provisions of the British North America Act
by the same methods of construction and exposition which they apply to
other statutes. But there are statutes and statutes; and the strict construction
deemed proper in the case, for example, of a penal or taxing statute or
one passed to regulate the affairs of an English parish, would be often
subversive of Parliament's real intent if applied to an Act passed to
ensure the peace, order and good government of a British Colony."
See Clement's Canadian Constitution, ed. 3, p. 347.
The learned author of that treatise quotes from the argument of Mr. Mowat
and Mr. Edward Blake before the Privy Council in St. Catherine's Milling
and Lbr. Co. v. Reg. (1888) 14 App. Cas. 46, at 50, 58 L.J.P.C. 54:
The Act should be on all occasions interpreted in a large, liberal and
comprehensive spirit, considering the magnitude of the subjects with which
it purports to deal in very few words.
With that their Lordships agree, but as was said by the Lord Chancellor
in Brophy v. Atty.-Gen. for Man.,  A.C. 202, at 216, 64
L.J.P.C. 70, the question is not what may be supposed to have been intended,
but what has been said.
It must be remembered, too, that their Lordships are not here considering
the question of the legislative competence either of the Dominion or its
provinces which arise under secs. 91 and 92 of the Act providing for the
distribution of legislative powers and assigning to the Dominion and its
provinces their respective spheres of government.
Their Lordships are concerned with the interpretation of an Imperial
Act, but an Imperial Act which creates a constitution for a new country.
Nor are their Lordships deciding any question as to the rights of women
but only a question as to their eligibility for a particular position.
No one either male or female has a right to be summoned to the Senate.
The real point at issue is whether the Governor-General has a right to
summon women to the Senate.
The Act consists of a number of separate heads.
The preamble states that the provinces of Canada, Nova Scotia and New
Brunswick have expressed their desire to be federally united into one
Dominion under the Crown of the United Kingdom of Great Britain and Ireland
with a constitution similar in principle to that of the United Kingdom.
Head No. 2 refers to the Union; Head No. 3, secs. 9 to 16, to the executive
It is in sec. 11 that the word "persons" which is used repeatedly
in the Act, occurs for the first time.
It provides that the persons who are members of the Privy Council shall
be from time to time chosen and summoned by the Governor-General.
The word "person" as above mentioned may include members of
both sexes, and to those who ask why the word should include females,
the obvious answer is why should it not.
In these circumstances the burden is upon those who deny that the word
includes women to make out their case.
Head No. 4 (secs. 17-21) deals first with the legislative power. Sec.
17 provides there shall be one Parliament for Canada consisting of the
Queen, an Upper House styled the Senate, and the House of Commons. Secs.
21-36 deal with the creation, constitution and powers of the Senate. They
are the all-important sections to consider in the present case and their
Lordships return to them after briefly setting out the remaining sections
of the Act.
Secs. 37-57 deal with the creation, constitution and powers of the House
of Commons with special reference to Ontario, Quebec. Nova Scotia and
New Brunswick which were the first provinces to come in under the scheme,
although power was given under sec. 146 for other provinces to come in
which other provinces have availed themselves of.
Head No. 5 (secs. 58-90) deals with the provincial constitutions, and
defines both their executive and legislative powers.
Head No. 6 (secs. 91-95) deals with the distribution of legislative powers.
Head No. 7 (secs. 96-101) deals with the Judicature.
Head No. 8 (secs. 102-126) deals with revenues, debts, assets and taxation.
Head No. 9 (secs. 127-144) deals with miscellaneous provisions.
Head No. 10 (sec. 145) deals with the intercolonial railway, and
Head No. 11 (secs. 146-147) deals with the admission of other colonies.
Such being the general analysis of the Act, their Lordships turn to the
special sections dealing with the Senate.
It will be observed that sec. 21 provides that the Senate shall consist
of 72 members who shall be styled senators. The word "member"
is not in ordinary English confined to male persons. Sec. 24 provides
that the Governor-General shall summon qualified persons to the Senate.
As already pointed out, "persons" is not confined to members
of the male sex, but what effect does the adjective "qualified"
before the word "persons" have?
In their Lordships' view it refers back to the previous section, which
contains the qualifications of a senator. Subsecs. 2 and 3 appear to have
given difficulties to the Supreme Court. Subsec. 2 provides that the qualification
of a senator shall be that he shall be either a natural born subject of
the Queen naturalized by an Act of Parliament of Great Britain or of one
of the provincial Legislatures before the Union or of the Parliament of
Canada after the Union. The Chief Justice in dealing with this says that
it does not include those who become subjects by marriage, a provision
which one would have looked for had it been intended to include women
as being eligible.
The attention of the Chief Justice, however, was not called to the Aliens
Act, 1844 (7 and 8 Vict., ch. 66), sec. 16 of which provides that
any woman married or who shall be married to a natural born subject or
person naturalized shall be deemed and taken to be herself naturalized
and have all the rights and privileges of a natural born subject. The
Chief Justice assumed that by common law a wife took her husband's nationality
on marriage, but by virtue of that section any woman who marries a natural
born or naturalized British subject was deemed and taken to be herself
naturalized. Accordingly, sec. 23, subsec. 2, uses language apt to cover
the case of those who become British subjects by marriage.
Their Lordships agree with Mr. Justice Duff when he says "I attach
no importance ... to the use of the masculine personal pronoun in section
23, and, indeed, very little importance to the provision in section 23
with regard to nationality" and refer to sec. 1 of the Interpretation
Act, 1889, 52-53 Vict., ch. 63, which in sec. 1 (2) provides that
words importing the masculine gender shall include females.
The reasoning of the Chief Justice would compel their Lordships to hold
that the word "persons" as used in sec. 11 relating to the constitution
of the Privy Council for Canada was limited to "male persons"
with the resultant anomaly that a woman might be elected a member of the
House of Commons but could not even then be summoned by the Governor-General
as a member of the Privy Council.
Subsec. 3 of sec. 23 provided that the qualification of a senator shall
be that he is legally and equitably seized of a freehold for his own use
and benefit of lands and tenements of a certain value. This section gave
some trouble to Mr. Justice Duff who says that subsection points to the
exclusion of married women and would have been expressed in a different
way if the presence of married women had been contemplated.
Their Lordships think that this difficulty is removed by a consideration
of the rights of a woman under the Married Women's Property Acts.
A married woman can possess the property qualification required by this
subsection. Apart from statute a married woman could be equitably seized
of free hold property for her own use only and by an Act respecting certain
separate rights of property of married women, Consolidated Statutes of
Upper Canada, ch. 73, sec. 1, it was provided: Every woman who has married
since the 4th May, 1859, or who marries after this Act takes effect, without
any marriage contract or settlement, shall and may, notwithstanding her
coverture, have, hold and enjoy all her real and personal property ...
in as full and ample a manner as if she continued sole and unmarried...
Their Lordships do not think it possible to interpret the word "persons"
by speculating whether the framer of the British North America Act
purposely followed the system of Legislative Councils enacted in the Acts
of 1791 and 1840 rather than that which prevailed in the maritime province
for the model on which the Senate was to be formed, neither do they think
that either of these subsections is sufficient to rebut the presumption
that the word "persons" includes women. Looking at the sections
which deal with the Senate as a whole (secs. 21-36) their Lordships are
unable to say that there is anything in those sections themselves upon
which the Court could come to a definite conclusion that women are to
be excluded from the Senate.
So far with regard to the sections dealing especially with the Senate
-- Are there any other sections in the Act which shed light upon the meaning
of the word "persons"?
Their Lordships think that there are. For example, sec. 41 refers to
the qualifications and disqualifications of persons to be elected or to
sit or vote as members of the House of Assembly or Legislative Assembly
and by a proviso it is said that until the Parliament of Canada otherwise
provides at any election for a member of the House of Commons for the
district of Algoma in addition to persons qualified by the law of the
province of Canada to vote every male British subject aged 21 years or
upwards being a householder shall have a vote. This section shows a distinction
between "persons" and "males." If persons excluded
females it would only have been necessary to say every person who is a
British subject aged 21 years or upwards shall have a vote.
Again in sec. 84 referring to Ontario and Quebec a similar proviso is
found stating that every male British subject in contra-distinction to
"person" shall have a vote.
Again in sec. 133 it is provided that either the English or the French
language may be used by any person or in any pleadings in or issuing from
any Court of Canada established under this Act and in or from all of any
of the Courts of Quebec. The word "person" there must include
females as it can hardly have been supposed that a man might use either
the English or the French language but a woman might not.
If Parliament had intended to limit the word "persons" in sec.
24 to male persons it would surely have manifested such intention by an
express limitation as it has done in secs. 41 and 84. The fact that certain
qualifications are set out in sec. 23 is not an argument in favour of
further limiting the class, but is an argument to the contrary because
it must be presumed that Parliament has set out in sec. 23 all the qualifications
deemed necessary for a senator and it does not state that one of the qualifications
is that he must be a member of the male sex.
Finally with regard to sec. 33, which provides that if any question arises
respecting the qualifications of a senator or a vacancy in the Senate
the same shall be heard and determined by the Senate that section must
be supplemented by sec. 1 of the Parliament of Canada Act, 1875,
and by sec. 4 of ch. 10 of R.S.C., and their Lordships agree with Mr.
Justice Duff when he says: As yet, no concrete case has arisen to which
the jurisdiction of the Senate could attach. We are asked for advice on
the general question, and that, I think, we are bound to give. It has,
of course, only the force of an advisory opinion.
The existence of this jurisdiction of the Senate does not, I think, affect
the question of substance. We must assume that the Senate would decide
in accordance with the law.
The history of these sections and their interpretation in Canada is not
without interest and significance.
From Confederation to date both the Dominion Parliament and the provincial
Legislatures have interpreted the word "persons" in secs. 41
and 84 of the British North America Act as including female persons
and have legislated either for the inclusion or exclusion of women from
the class of persons entitled to vote and to sit in the Parliament and
Legislature respectively, and this interpretation has never been questioned.
From Confederation up to 1916 women were excluded from the class of persons
entitled to vote in both Federal and provincial elections.
From 1916 to 1922 various Dominion and provincial Acts were passed to
admit women to the franchise and to the right to sit as members in both
Dominion and provincial legislative bodies.
At the present time women are entitled to vote and to be candidates:
(1) At all Dominion elections on the same basis as men; (2) At all provincial
elections save in the province of Quebec.
From the date of the enactment of the Interpretation Acts in
the province of Canada, Nova Scotia and New Brunswick prior to Confederation
and in the Dominion of Canada since Confederation and until the franchise
was extended, women have been excluded by express enactment from the right
Neither is it without interest to record that when upon May 20, 1867,
the Representation of the People Bill came before a committee
of the House of Commons, John Stuart Mill moved an amendment to secure
women's suffrage and the amendment proposed was to leave out the word
"man" in order to insert the word "person" instead
thereof. See Hansard, 3rd series, vol. 187, column 817.
A heavy burden lies on an appellant who seeks to set aside a unanimous
judgment of the Supreme Court, and this Board will only set aside such
a decision after convincing argument and anxious consideration, but having
- To the object of the Act, viz., to provide a constitution for Canada,
a responsible and developing state;
- that the word "person" is ambiguous and may include members
of either sex;
- that there are sections in the Act above referred to which show that
in some cases the word "person" must include females;
- that in some sections the words "male persons" is expressly
used when it is desired to confine the matter in issue to males, and
- to the provisions of the Interpretation Act;
their 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, the question propounded by the Governor-General must be answered
in the affirmative and that women are eligible to be summoned to and become
members of the Senate of Canada, and they will humbly advise His Majesty