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Issues Involved:
1. Interpretation of the term "qualified persons" in Section 24 of the British North America Act, 1867. 2. Eligibility of women to be summoned to the Senate of Canada. Issue-wise Detailed Analysis: 1. Interpretation of the term "qualified persons" in Section 24 of the British North America Act, 1867: External Evidence Derived from Extraneous Circumstances: The judgment extensively discusses the historical context and legal precedents regarding the exclusion of women from public offices. It highlights that "the exclusion of women from all public offices is a relic of days more barbarous than ours." The judgment traces the legal incapacity of women to hold public office back to Roman law and early English common law, citing authorities such as Ulpian and various cases like Chorlton v. Lings (1869) and In re Viscountess Rhondda's claim (1922). The judgment also explores the legislative history in Canada, noting that "in all the Acts the word 'persons' is used in respect of 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." It further examines the usage of the term "persons" in various Canadian legislative acts and concludes that the term is ambiguous and could include both sexes. Internal Evidence Derived from the Act Itself: The judgment emphasizes that the British North America Act, 1867, should be interpreted as a "living tree capable of growth and expansion within its natural limits." It states that "the word 'persons' in Section 24 does include women and that women are eligible to be summoned to and become members of the Senate of Canada." The judgment argues that the Act's provisions should be given a "large and liberal interpretation" to ensure that the Dominion and its provinces can be "mistresses in their own house." 2. Eligibility of women to be summoned to the Senate of Canada: Analysis of Specific Sections: The judgment scrutinizes Sections 21-36 of the Act, which deal with the creation, constitution, and powers of the Senate. It notes that "the word 'member' is not in ordinary English confined to male persons" and that "the word 'persons' is not confined to members of the male sex." The judgment addresses the qualifications for Senators as outlined in Section 23, stating that these qualifications do not explicitly exclude women. The judgment also considers the provisions of the Interpretation Act, 1889, which states that "words importing the masculine gender shall include females." It argues that the burden is on those who deny that the word "persons" includes women to make out their case. Historical and Legislative Context: The judgment reviews the history of women's suffrage and participation in public office in Canada, noting that from 1916 to 1922, various Dominion and Provincial Acts were passed to admit women to the franchise and the right to sit as members in both Dominion and Provincial Legislative bodies. It concludes that "the word 'persons' in Sections 41 and 84 of the British North America Act has been interpreted as including female persons." Conclusion: The judgment ultimately concludes that "the word 'persons' in Section 24 includes members both of the male and female sex" and that "women are eligible to be summoned to and become members of the Senate of Canada." The judgment advises His Majesty accordingly, overturning the unanimous decision of the Supreme Court of Canada, which had previously held that women were not eligible for appointment to the Senate.
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