It is quite remarkable to look back and think there was such a time. But here is evidence of that. I wanted to share this decision. It’s a reminder that progress is always possible. The journey continues.
As quoted from this decision:
Re SECTION 24 OF THE B.N.Α. ACT.
The Appeal:
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. Mc-Kinney 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 Council thereof.
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 Anglin, C.J.C., Duff, Mignault, Lamont and Smith, JJ., and upon April 24, 1928:
the Court answered the question in the negative,
[1928] 4 D.L.R. 98; the question being understood to be:
“Are women eligible for appointment to the Senate of Canada.”
- Duff, J., on the other hand, did not agree with this view.
- …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 B.Ν.Α. Act of 1867 the word “persons” in s. 24 is restricted to members of the male sex.
- 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.
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 0f the early tribes were attended by men under arms, and women did not bear arms.
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.
- 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.
- Women 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.
“Βy the common law of England women are not in general deemed capable of exercising public functions, though there are certain exceptional cases where a well-recognized custom tō the contrary has become established.”
“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, 1850 (Imp.), c. 21, does not appear to have greatly affected the current of authority. Section 4 provided :— “That in all Acts words importing the masculine gender shall be deemed -and taken to include f emales . . . unless the contrary as to gender . . . is expressly provided. . . .
Conclusion:
From Confederation to date both the Dominion Parliament and the provincial legislatures have interpreted the word “persons” in ss. 41 and 84 of the B.N.A. 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 to vote.
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 suif cage and the amendment proposed was to leave out the word “man” in order to insert the word “person” instead thereof. See 187 IIauúard, 3rd series, col. 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 regard
(1) To the object of the Act, viz., to provide a constitution for Canada, a responsible and developing Sta? e ;
(2) That the word “person” is ambiguous and may include members of either sex;
(3) That there are sections in the Act above referred to which show that in some eases the word “person” must include females ;
(4) That in some sections the words “male persons” is expressly used when it is desired to cοnfine the matter in issue to males, and
(5) To the provisions of the Interpretation Act;
their Lordships have come to the conclusion that the word “persons” in s. 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 adνise Majesty accordingly.
Appeal aΙΙοwed.
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