OTD: Supreme Court decides women cannot hold public office

On today’s date in 1928, the Supreme Court of Canada made its initial decision—a unanimous decision—in what later became known as the Persons Case.

The case was initiated in 1927 by five prominent Alberta women, four of whom have since been commemorated on stamps issued by Canada Post. The Famous Five, as they’re now known, included Emily Murphy, Henrietta Edwards, Nellie McClung, Louise McKinney and Irene Parlby.

Together, they asked the federal government to refer two questions to Canada’s Supreme Court: “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?” and, “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 1985, Canada Post featured Emily Murphy on this 32-cent stamp (SC #1048) as part of its Canadian Feminists issue.

1927 QUESTION SUBMISSION

The minister of justice under former prime minister William Lyon Mackenzie King reviewed the women’s petition and recommended their questions be narrowed down from two to one. This sole, revised question focused on the appointment of women to the Senate of Canada.

On Oct. 19, 1927, the cabinet submitted this question to the Supreme Court: “Does the word ‘Persons’ in section 24 of the British North America Act, 1867, include female persons?”

On March 14, 1928, the Supreme Court of Canada heard the case.

APRIL 1928 RULING

The court issued its decision on April 24, 1928 but did not respond directly to the question as posed by the federal cabinet, choosing instead to offer its own interpretation of the question.

The formal judgment of the court was this: “Understood to mean ‘Are women eligible for appointment to the Senate of Canada,’ the question is answered in the negative.”

The April 1928 ruling determined the words “qualified persons” in section 24 of the British North America Act did not apply to women. This meant women were legally unable to hold public office.

In 1981, the Post Office Department featured Henrietta Edwards on this 17-cent stamp (SC #882) as part of its Canadian Feminists issue.

A common misconception about this ruling suggests the Supreme Court decided women are not persons; however, the judgment explicitly noted, “There can be no doubt that the word ‘persons’ when standing alone prima facie includes women.”

Nonetheless, and justifiably so, the Famous Five decided to appeal the decision to the Judicial Committee of the Privy Council—the British Empire’s court of last resort.

In 1981, the Post Office Department also featured Louise McKinney on this 17-cent stamp (SC #880) as part of its Canadian Feminists issue.

The ruling was eventually reversed by the British Privy Council on Oct. 18, 1929, when Lord Chancellor Viscount Sankey determined the meaning of “qualified persons” could be read broadly to include women, reversing the decision of the Supreme Court.

Sankey ruled the “exclusion of women from all public offices is a relic of days more barbarous than ours,” and “to those who ask why the word [person] should include females, the obvious answer is why should it not.”

The Persons Case established eligibility for Canadian women to be appointed senators. It also saw the beginning of the “living tree doctrine,” which proposed an adaptive approach to constitutional law, suggesting a constitution should be interpreted broadly and organically to allow it to evolve with the changing times.

“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits,” ruled Sankey.

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