Edwards V. Canada (Attorney General) - The Reference To The Supreme Court

The Reference To The Supreme Court

In Canada, the federal government has the power to refer questions to the Supreme Court of Canada to clarify legal and constitutional issues. Ernest Lapointe, who was Minister of Justice in the government of William Lyon Mackenzie King, reviewed the petition and recommended to the federal Cabinet that the questions be narrowed down from two to one, relating to the appointment of women to the federal Senate of Canada under section 24 of the British North America Act, 1867 (now known as the Constitution Act, 1867).

On October 19, 1927, the Cabinet submitted this question for clarification to the Supreme Court of Canada:

"Does the word 'Persons' in section 24 of the British North America Act, 1867, include female persons?"

Emily Murphy, speaking for the five petitioners, originally objected to this change in the wording of the question, which she described in a letter to the Deputy Minister of Justice as "...a matter of amazement and perturbation to us." On behalf of the petitioners, she asked that the Government withdraw the single question and refer the original two questions to the Supreme Court, along with a new, third question:

"3. If any statute be necessary to qualify a female to sit in the Senate of Canada, must this statute be enacted by the Imperial Parliament, or does power lie with the Parliament of Canada, or the Senate of Canada?"

However, after further correspondence with the Deputy Minister and consultation with their lawyer, Emily Murphy advised the Deputy Minister that they accepted the single question posed by the Cabinet.