Oct 182018
 

The final ruling in Edwards v Canada (AG)—also known as the Persons Case—was handed down on this date in 1929 by the Lord Chancellor for the Judicial Committee of the Privy Council, at the time the final court of appeal for the British Empire. The legal case, presented by a group of women known as the Famous Five, began as a reference case in the Supreme Court of Canada, which ruled that women were not “qualified persons” and thus ineligible to sit in the Senate. The case then went to the Judicial Committee of the Imperial Privy Council. The Judicial Committee overturned the Supreme Court’s decision. Despite the common name, the case was not strictly about whether women were “persons” (although the question came up), but, rather, whether they were “qualified.” The Persons Case 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 adapts to changing times.

In 1916, Emily Murphy, 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 Charles Wilson Cross, the Attorney General of Alberta, arguing, “If the evidence is not fit to be heard in mixed company, then … the government … [must] 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 British North America Act. In 1917, the Supreme Court of Alberta ruled that women were persons. Some time later, Emily Murphy tested the issue in the rest of Canada by allowing her name to be put forward to Prime Minister Robert Borden 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 common law ruling that stated that “women were eligible for pains and penalties, but not rights and privileges”.

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 27th, 1927, the four other women (Irene Marryat Parlby, Nellie Mooney McClung, Louise Crummy McKinney, and Henrietta Muir Edwards) joined her for tea at her house. The five women, later to be known as the Famous Five (or the Valiant Five) all signed the petition, asking the federal government to refer two questions relating to women’s status to the Supreme Court of Canada. The two questions were:

  1. 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?
  2. 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 has the power to refer questions to the Supreme Court of Canada to clarify legal and constitutional issues. Ernest Lapointe, who was Minister of Justice in the government of William Lyon Mackenzie King, reviewed the petition and recommended to the federal Cabinet 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 British North America Act, 1867 (now known as the Constitution Act, 1867).

Lapointe

On October 19, 1927, the Cabinet submitted this question for clarification to the Supreme Court of Canada:

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

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 the single question and refer the original two questions to the Supreme Court, along with a new, third question:

  1. 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 Canada?

After further correspondence with the Deputy Minister and consultation with their lawyer, however, Emily Murphy advised the Deputy Minister that they accepted the single question posed by the Cabinet.

The Supreme Court of Canada heard the case on March 14th, 1928, and issued its decision on April 24th, 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. Anglin C.J.C. began by reviewing the provisions relating to the appointment of Senators under the Constitution Act, 1867. 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.

Section 24 then provides:

Summons of Senator

  1. 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 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 understanding of the intention of the drafters of the Constitution Act, 1867, 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 Court 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 Constitution Act, 1867.

A common misinterpretation of the case is that the Supreme Court held that women are not persons. On the contrary, the majority judgment of the Supreme Court of Canada noted explicitly, “There can be no doubt that the word ‘persons’ when standing alone prima facie includes women.” The Court also made this point clear in its formal judgment. 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 and then answered that re-formulated question:

The formal judgment of the court was as follows:

 Understood to mean ‘Are women eligible for appointment to the Senate of Canada’, the question is answered in the negative.

At that time, however, the Supreme Court was not the final arbiter of constitutional questions in Canada. 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, Henrietta Muir Edwards was listed as the first appellant, leading to the case being entered as Edwards v Canada (Attorney General). However, it is more generally known as the Persons Case, from the subject matter.

The Lord Chancellor, Viscount Sankey, 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 “[t]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 [“person”] should include females, the obvious answer is why should it not”. Finally, he wrote:

    [T]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 accordingly.

Finding a distinctively Canadian dish as a celebration is difficult, and, unfortunately, poutine has routinely won votes searching for the national dish of Canada. Poutine has many varieties, but is basically fried potato chips, curds, and gravy. I am not a big fan of potato chips to begin with, and when they are doused in gravy and cheese I find them even less appealing. The French and Belgians are in the habit of slathering chips in gravy and other sauces, so it is no great surprise that this dish originated in Quebec, although the exact place of origin is contested.

To maintain the texture of the frites, the cheese curd and gravy are added immediately prior to serving the dish. The hot gravy is usually poured over the room-temperature cheese curds, so that the cheese is warmed without completely melting. It is considered important to control the temperature, timing, and the order in which the ingredients are added, so as to obtain the right food textures. There are many variations of poutine. Some restaurants offer poutine with such toppings as sausage, chicken, bacon, brisket, or Montreal-style smoked meat. Some poutineries even boast dozens of variations of poutine. More upscale poutine with three-pepper sauce, merguez sausage, foie gras or even caviar and truffle can be found.

 Posted by at 1:10 pm

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