12/17/20141 EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] “The Person’s Case”

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Presentation transcript:

12/17/20141 EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] “The Person’s Case”

12/17/20142 The "Famous 5“: Emily Murphy, Henrietta Muir Edwards, Irene Parlby, Louise McKinney & Nellie McClung

12/17/20143 EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] on appeal from the SCC to the Judicial Committee of Privy Council (PC) Question: Are women “persons” for purposes of BNA Act and appointment to the Senate? Answer: Yes

EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] By sec. 24 of the British North America Act, 1867, it is provided that: By sec. 24 of the British North America Act, 1867, it is provided that: 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. 12/17/20144

5 EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] Original meaning of ‘person’ would undoubtedly embrace members of either sex. But, at common law women were not persons “the common-law disability of women to hold public office” “the common-law disability of women to hold public office” Nevertheless, “there are statutes and statutes.” “...strict construction deemed proper in [tax case] would be...subversive of Parliament’s real intent if applied to [BNA Act].”

12/17/20146 EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] A constitution “should be on all occasions interpreted in a large, liberal and comprehensive spirit...” should be interpreted in light of the fundamental – and evolving?? – values and principles which underlie it

EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] “…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.” “…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.” 12/17/20147

8 EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] “The [BNA] Act planted in Canada a living tree capable of growth and expansion within its natural limits.”

12/17/20149 EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] Other Relevant Facts: 1. “Person” is “ambiguous and may include members of either sex” 2. In some sections, “persons” obviously includes women 3. In some sections “male persons” is expressly used when intent is clearly to “confine the matter in issue to males”

12/17/ EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] Conclusion: Women are persons.

12/17/ EDWARDS V. ATTORNEY GENERAL OF CANADA [1930] Questions: 1. Has PC changed the constitution? 2. Has PC applied an unchanged constitution to new circumstances (and values?)? 3. Has PC rejected Originalism? 4. Has PC rejected textualism re: constitutions (as opposed to tax law)? 5. How would Hart, Dworkin, or a Crit read this case?