HENRIETTA MUIR EDWARDS Vs. ATTORNEY GENERAL OF CANDA

JUDGEMENT

(1.) By S. 24, 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."

(2.) The question at issue in this appeal is whether the words "qualified persons" in that section include a woman, and consequently whether women are eligible to be summoned to and become members of the Senate of Canada. Of the appellants, Henrietta Muir Edwards is the Vice-President for the Province of Alberta of the National Council of Women for Canada; Nellie L. McClung and Louise C. McKinney were for several years members of the Legislative Assembly of the said province; Emily F. Murphy is a police magistrate in and 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.

(3.) On 29 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 19 October 1927, the Governor-General in Council referred to the Supreme Court the aforesaid question. The case was heard before Anglin, C. J., Duff, J., Mignault, J., Lamont and Smith, JJ., and upon 24 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." The Chief Justice, whose judgment was concurred in by Lamont, J. and Smith, J. and substantially by Mignault, J. 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 Parliament. Duff, J. on the other hand, did not agree with this view. He came to the conclusion that women are not eligible for appointment to the Senate upon the narrower ground that upon a close examination of the British North America Act of 1867 the word " persons " in S. 24 is restricted to members of the male sex. The result therefore of the decision was that the Supreme Court was unanimously of opinion that the word " persons " did not include female persons, and that women are not eligible to be summoned to the Senate.