Edwards V. Canada (Attorney General) - The Opinion of The Supreme Court of Canada

The Opinion of The Supreme Court of Canada

The Supreme Court of Canada heard the case on March 14, 1928, and issued its decision on April 24, 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

24. 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. For example, the website of Status of Women Canada, a federal government organization, states that "After five weeks of debate and argument the Supreme Court of Canada decided that the word 'person' did not include women."

On the contrary, the majority judgment of the Supreme Court of Canada noted explicitly that "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."

However, the Supreme Court at that time was not the final arbiter of constitutional questions in Canada.