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TMI Blog1929 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. On the 29th August, 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 the 19th October, 1927, the Governor-General in Council referred to the Supreme Court the aforesaid question. The case was heard before Chief Justice Anglin, Mr. Justice Duff, Mr. Justice Mignault, Mr. Justice Lamont and Mr. Justice Smith, and upon the 24th April, 1928, the Court answered the question in the negative; the question being understood to be "Are women eligible for appointment to the Senate of Canada." 5. The Chief Justice, whose judgment was concurred in by Mr. Justice Lamount and Mr. Justice Smith, and substantially by Mr. Justice Mignault, came to this conclusion upon broad lines mainly because of the Common Law disability of women to hold public office and from a consideration of various cases which had been decided under different Statutes as to their right to vote for a member of Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Roman jurists, Ulpian (A.D. 211) laying it down. "Feminae ab omnibus officiis civilibus vel publicis remotae sunt": Dig. 1.16. 195. 12. The barbarian tribes who settled in the Roman Empire, and were exposed to constant dangers, naturally preserved and continued the tradition. 13. 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. 14. Various authorities are cited in the recent case of In re Viscountess Rhondda's claim (1922) 2 A.C. 339 : 66 S.J. 630 : 38 T.L.R. 759 where it was held that 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: Coke, 4 Inst., page 5. 15. Chorlton v. Lings (1869) 4 C.P. 374 :38 L.J.C.P. 25 : 19 L.T. 534 : 17 W.R. 284 : 1 Hopw. & C. 1; or of Town Councillor: R. v. Harrold (1872) 7 Q.B. 361; or to be elected members of the County Counci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as whether by virtue of Lord Brougham's Act the words "every man" included women. Chief Justice Bovill, having regard to the subject matter of the Statute and its general scope and language and to the important and striking nature of the departure from the Common Law involved in extending the franchise to women declined to accept the view that Parliament had made that change by using the term "man" and held that the word was intentionally used expressly to designate the male sex. Willes, J., said: "It is not easy to conceive that the framer of that Act when he used the word expressly, meant to suggest that what is necessarily or properly implied by language is not expressed by such language." 21. Great reliance was placed by the respondents to this appeal upon that decision, but in our view it is clearly distinguishable. 22. The case was decided on the language of the Representation of the People Act, 1867, which provided that "every man" with certain qualifications and "not subject to any legal incapacity" should be entitled to be registered as a voter. Legal incapacity was not defined by the Act and consequently reference wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on by the Governor and the Council, composed of four named persons and eight other "persons" to be chosen by the Governor from amongst the most considerable of the inhabitants or of other persons of property in our said Province. 25. The Quebec Act of 17/4 entrusted, the government of the Province to a Governor and Legislative Council of such "persons" resident there, not exceeding 23, nor less than 17, as His Majesty shall be pleased to appoint. 26. The Constitutional Act of 1791 upon the division of the Province of Quebec into two separate provinces to be called the Provinces of Upper and Lower Canada established for each province a Legislature composed of the three estates of Governor, Legislative Council and Assembly empowered to make laws for the peace, order and good government of the provinces. The Legislative Council was to consist of a sufficient number of discreet and proper "persons" not less than 7 for Upper Canada and 15 for Lower Canada. 27. Under the Act of Union, 1840, these two provinces were reunited so as to constitute one province under the name of the Province of Canada and the Legislative Council was to be composed of such &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om amongst the most considerable of the inhabitants of or persons of property" but required to be men of good life and of ability suitable to their employment. 35. In 1832 the Executive Authority was separated and made distinct from the Legislative Council. 36. In the Province of Nova Scotia there was in the early Acts governing the election of members of the General Assembly no express disqualification of women from voting but by the revised Statutes of Nova Scotia (second series) in 1859 the exercise of the franchise was confined to male subjects over 21 years of age and a candidate for election was required to have the qualification which would enable him to vote. 37. In the Province of New Brunswick, by the Provincial Act, 11 Vict. c. 65, Section 17, the Parliamentary franchise was confined to male persons of the full age of 21 years who possessed certain property qualifications. 38. It must, however, be pointed out that a careful examination has been made by the Assistant Keeper of Public Records of Canada of the list containing the names of the executive and Legislative Councils and Houses of Assembly in Quebec (including those of Upper and Lower Canada), of the Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be drawn there from are (exceedingly slight": see Oraies Statute Law, Edition III, page 118. 45. Over and above that, their Lordships do not think it right to apply rigidly to Canada of to-day the decisions and the reasonings therefore 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. Referring, therefore, to the judgment of the Chief Justice and those who agreed with him, their Lordships think that the appeal to Roman Law and to early English decisions is not of itself a secure foundation on which to build the interpretation of the British North America Act of 1867. 46. Their Lordships fully appreciate the learned arguments set out in his judgment but prefer, on this part of the case, to adopt the reasonings of Mr. Justice Duff who did not agree with the other members of the Court, for reasons which appear to their Lordships to be strong and cogent. As he says, "Nor am I convinced that the reasoning based upon the 'extraneous circumstances' we are asked to consider (the disabilities of women under the Common Law and the law and prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts natural limits. The object of the Act was to grant a Constitution to Canada. 52. "Like all written constitutions it has been subject to development through usage and convention." [Canadian Constitutional Studies, Sir Robert Borden (1922), page 55]. 53. Their Lordships do not conceive it to be the duty of this Board--it is certainly not their desire--to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs. 54. "The Privy Council, indeed, has laid down that Courts of Law must treat the provisions of the British North America Act by the same, methods of construction and exposition which they apply to other Statutes. But, there are Statutes and Statutes; and the strict construction deemed proper in the case, for example, of a penal or taxing Statute or one passed to regulate the affairs of an English parish, would be often subversive of Parliament's real intent if applied to an Act pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y include members of both sexes, and to those who ask why the word should, include females, the obvious answer is why should it not. 65. In these circumstances the burden is upon those who deny that the word includes women to make out their case. 66. Head No. 4 (Sections 17-21) deals first with the legislative power. Section 17 provides there shall be one Parliament for Canada consisting of the Queen, an Upper House styled the Senate, and the House of Commons. Sections 21--36 deal with the creation, constitution and powers of the Senate. They are the all important sections to consider in the present case and their Lordships return to them after briefly setting out the remaining sections of the Act. 67. Sections 37--57 deal with the creation, constitution and powers of the House of Commons with special reference to Ontario, Quebec, Nova Scotia and New Brunswick which were the first provinces to come in under the scheme, although power was given under Section 146 for other provinces to come in which other provinces have availed themselves of. 68. Head No. 5 (Sections 58--90) deals with the provincial constitutions, and defines both their executive and legislative powers. 69. Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, uses language apt to cover the case of those who become British subjects by marriage. 80. Their Lordships agree with Mr. Justice Duff when he says "I attach no importance to the use of the masculine personal pronoun in Section 23, and, indeed, very little importance to the provision in Section 23 with regard to nationality" and refer to Section 1 of the Interpretation Act, 1889, which in Section 1(2) provides that words importing the masculine gender shall include females. 81. The reasoning of the Chief Justice would compel their Lordships to hold that the word "persons" as used in Section 11 relating to the constitution of the Privy Council for Canada was limited to "male persons" with the resultant anomaly that a woman might be elected a member of the House of Commons but could not even then be summoned by the Governor-General as a member of the Privy Council. 82. Sub-section 3 of Section 23 provided that the qualification of a Senator shall be that he is legally and equitably seised of a freehold for his own use and benefit of lands and tenements of a certain value. This section gave some trouble to Mr. Justice Duff who says that sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect aged 21 years or upwards being a householder shall have a vote. This section shows a distinction between "persons" and "males." If persons excluded females it would only have been necessary to say every person who is a British subject aged 21 years of upwards shall have a vote. 87. Again in Section 84 referring to, Ontario and Quebec a similar proviso is found stating that every male British subject in contradistinction to "person" shall have a vote. 88. Again in Section 133 it is provided that either the English or the French language may be used by any person or in any pleadings in or issuing from any Court of Canada established under this Act and in or from all or any of the Courts of Quebec. The word "person" there must include females as it can hardly have been supposed that a man might use either the. English or the French language but a woman might not. 89. If Parliament had intended to limit the word "persons" in Section 24 to male persons it would surely have manifested such intention by an express limitation as it has done in Sections 41 and 84. The fact that certain qualifications are set out in Section 23 is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and until the franchise was extended, women have been excluded by express enactment from the right to vote. 97. Neither is it without interest to record that when upon the 20th May, 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 suffrage and the amendment proposed was to leave out the word "man" in order to insert the word "person" instead thereof. See Hansard, 3rd Series, Vol. 187, col. 817. 98. 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 State; (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 cases the word "person" must include females; (4) that in some sections the words "male persons" is expressly used when it is desired to confi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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