Indexed as:
Reference re: British North America Act
1867 (UK) Section 24
IN THE MATTER OF a Reference as to the meaning of the
word
"Persons" in Section 24 of the British North America Act,
1867.
[1928] S.C.R. 276
Supreme Court of Canada
1928: March 14 / 1928: April 24.
Present: Anglin C.J.C. and Duff,
Mignault, Lamont and Smith
JJ.
Constitutional
law — Statute — Senate — Eligibility of women — "Qualified persons" —
Meaning — B.N.A. Act, 1867, ss. 23, 24.
Women
are not "qualified persons" within the meaning of section 24 of the
B.N.A. Act, 1867, and therefore are not eligible for appointment by the
Governor General to the Senate of Canada.
Per
Anglin C.J.C. and Mignault, Lamont and Smith JJ.:-- The authority of Chorlton
v. Lings (L.R. 4 C.P. 374) is conclusive alike on the question of the common
law incapacity of women to exercise such public functions as those of a member
of the Senate of Canada and on that of their being expressly excluded from the
class of "qualified persons" within s. 24 of the B.N.A. Act by the
terms in which s. 23 is couched, so that (if otherwise applicable) Lord
Broughams' Act (which enacts that "words importing the masculine gender
shall be deemed and taken to include females") cannot be invoked to extend
the term "qualified persons" to bring "women" within its
purview.
Per
Anglin C.J.C. and Lamont and Smith JJ.:-- The various provisions of the B.N.A.
Act passed in the year 1867 bear to-day the same construction which the courts
would, if then required to pass upon them, have given to them when they were
enacted. If the phrase "qualified persons" in section 24
includes women to-day, it has so included them since 1867. But it must be
inferred that the Imperial Parliament, in enacting sections 23, 24, 25, 26 and
32 of the B.N.A. Act, when read in the light of other provisions of the statute
and of relevant circumstances proper to be considered, did not give to women
the power to exercise the public functions of a senator, at a time when they
were neither qualified to sit in the House of Commons nor to vote for
candidates for membership in that House.
Per
Duff J.:-- It seems to be a legitimate inference that the B.N.A. Act, in
enacting the sections relating to the "Senate," contemplated a second
Chamber, the constitution of which should, in all respects, be fixed and
determined by the Act itself, a constitution which was to be in principle the
same, though, necessarily, in detail, not identical, with that of the Legislative
Councils established by the earlier statutes of 1791 and 1840; and, under those
statutes, it is hardly susceptible of dispute that women were not eligible for
appointment.
REFERENCE
by His Excellency the Governor General in Council to the Supreme Court of
Canada, under and pursuant to the Supreme Court Act of certain question for
hearing and consideration as to the meaning of the word "persons" in
section 24 of the British North America Act, 1867.
The
Order in Council providing for the reference was dated 19th October, 1927 and
reads as follows:
"The
Committee of the Privy Council have had before "them a Report, dated 18th
October, 1927, from the "Minister of Justice, submitting that he has had
under "consideration a petition to Your Excellency in Council dated
"the 27th August, 1927 (P.C. 1835), signed by Henrietta "Muir
Edwards, Nellie L. McClung, Louise C. McKinney, "Emily F. Murphy and Irene
Parlby, as persons interested "in the admission of women to the Senate of
Canada, "whereby Your Excellency in Council is requested to refer "to
the Supreme Court of Canada for hearing and "consideration certain
questions touching the power of the "Governor General to summon female
persons to the Senate of "Canada.
"The
Minister observes that by section 24 of the 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.' |
|
"In
the opinion of the Minister the question whether "the word 'Persons' in
said section 24 includes female "persons is one of great public
importance.
"The
Minister states that the law officers of the Crown "who have considered
this question on more than one "occasion have expressed the view that male
persons only "may be summoned to the Senate under the provisions of
"the British North America Act in that behalf.
"The
Minister, however, while not disposed to question "that view, considers
that it would be an Act of justice to "the women of Canada to obtain the
opinion of the "Supreme Court of Canada upon the point.
"The
Committee therefore, on the recommendation of "the Minister of Justice,
advise that Your Excellency may "be pleased to refer to the Supreme Court
of Canada for "hearing and consideration the following question:--
"Does
the word 'Persons' in section 24 of the British "North America Act, 1867,
include female persons?"
Pursuant
to an order of the court, notification of the hearing of the reference was sent
to the Attorneys General of Ontario, Quebec, Nova Scotia, New Brunswick,
Manitoba, British Columbia, Prince Edward Island, Alberta and Saskatchewan and
to the above petitioners. The Attorneys General of the provinces of
Quebec and Alberta were represented by counsel at the hearing.
|
|
Hon. Lucien Cannon K.C., Solicitor-General, Eug. Lafleur
K.C. and C.P. Plaxton K.C., for the Attorney General of Canada. |
|
ANGLIN
C.J.C.:— By Order of the 19th of October, 1927, made on a petition of five
ladies, His Excellency the Governor in Council was pleased to refer to this
court "for hearing and consideration" the question:
"Does
the word 'Persons' in section 24 of the British North America Act, 1867,
include female persons?"
Notice
of this reference was published in the Canada Gazette and notice of the hearing
was duly given to the petitioners and to each of the Attorneys General of the
several provinces of Canada. Argument took place on the 14th of
March last when counsel were heard representing the Attorney General of Canada,
the Attorneys General of the provinces of Quebec and Alberta and the
petitioners.
Section
24 is one of a group, or fasciculus of sections in the British North America
Act, 1867, numbered 21 to 36, which provides for the constitution of the Senate
of Canada. This group of sections (omitting three which are irrelevant to the
question before us) reads as follows:
THE
SENATE
|
|
21.
The Senate shall, subject to the Provisions of this Act, consist of
Seventy-two Members, who shall be styled Senators. |
|
* * * *
|
|
23.
The Qualification of a Senator shall be as follows: |
|
|
|
(1)
He shall be of the full age of Thirty Years; |
|
|
|
(2)
He shall be either a Natural-born Subject of the Queen, or a Subject of the
Queen naturalized by an Act of the Parliament of Great Britain, or of the
Parliament of the United Kingdom of Great Britain and Ireland, or of the
Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada,
Nova Scotia, or New Brunswick, before the Union, or of the Parliament of
Canada after the Union; |
|
|
|
(3)
He shall be legally or equitably seised as of Freehold for his own Use and
Benefit of Lands or Tenements held in free and common Socage, or seised or
possessed for his own Use and Benefit of Lands or Tenements held in
Francalleu or in Roture, within the Province for which he is appointed, of
the value of Four thousand Dollars, over and above all Rents, Dues, Debts,
Charges, Mortgages, and Incumbrances due or payable out of or charged on or
affecting the same; |
|
|
|
(4)
His Real and Personal Property shall be together worth Four Thousand Dollars
over and above his Debts and Liabilities; |
|
|
|
(5)
He shall be resident in the Province for which he is appointed; |
|
|
|
(6)
In the case of Quebec he shall have his Real Property Qualification in the
Electoral Division for which he is appointed, or shall be resident in that
Division. |
|
|
|
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. |
|
|
|
25.
Such Persons shall be first summoned to the Senate as the Queen by Warrant
under Her Majesty's Royal Sign Manual thinks fit to approve, and their Names
shall be inserted in the Queen's Proclamation of Union. |
|
|
|
26.
If at any Time on the Recommendation of the Governor General the Queen thinks
fit to direct that Three or Six Members be added to the Senate, the Governor
General may by Summons to Three or Six qualified Persons (as the Case may
be), representing equally the Three Divisions of Canada, add to the Senate
accordingly. |
|
|
|
27.
In case of such Addition being at any Time made the Governor General shall
not summon any Person to the Senate, except on a further like Direction by
the Queen on the like Recommendation, until each of the Three Divisions of
Canada is represented by Twenty-four Senators and no more. |
|
|
|
28.
The Number of Senators shall not at any Time exceed Seventy-eight. |
|
|
|
29.
A Senator shall, subject to the Provisions of this Act, hold his Place in the
Senate for Life. |
|
|
|
30.
A Senator may by Writing under his Hand addressed to the Governor General
resign his Place in the Senate, and thereupon the same shall be vacant. |
|
|
|
31.
The Place of a Senator shall become vacant in any of the following Cases:-- |
|
|
|
(1)
If for Two consecutive Sessions of the Parliament he fails to give his
Attendance in the Senate. |
|
|
|
(2)
If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance,
Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes
a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or
Citizen, of a Foreign Power; |
|
|
|
(3)
If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any
Law relating to Insolvent Debtors, or becomes a public Defaulter; |
|
|
|
(4)
If he is attainted of Treason or convicted of a Felony or any Infamous Crime; |
|
|
|
(5)
If he ceases to be qualified in respect of Property or of Residence; provided
that a Senator shall not be deemed to have ceased to be qualified in respect
of Residence by reason only of his residing at the Seat of the Government of
Canada while holding an Office under that Government requiring his Presence
there. |
|
|
|
32.
When a Vacancy happens in the Senate by Resignation, Death, or otherwise, the
Governor General shall by summons to a fit and qualified Person fill the
Vacancy. |
|
|
|
33.
If any question arises respecting the qualification of a Senator or a Vacancy
in the Senate the same shall be heard and determined by the Senate. |
|
* * *
|
|
35.
Until the Parliament of Canada otherwise provides, the Presence of at least
Fifteen Senators, including the Speaker, shall be necessary to constitute a
Meeting of the Senate for the Exercise of its Powers. |
|
* * *
The
British North America Act, 1867, does not contain provisions in regard to the
Senate corresponding to its sections 41 and 52, which, respectively, empower
the Parliament of Canada from time to time to alter the qualifications or
disqualifications of persons to be elected to the House of Commons and to
determine the number of members of which that House shall consist. Except
in regard to the number of Senators required to constitute a quorum (s. 35),
the provisions affecting the constitution of the Senate are subject to
alteration only by the Imperial Parliament.
Section
33 which empowers the Senate to hear and determine any question that may arise
respecting the qualification of a Senator, applies only after the person whose
qualification is challenged has been appointed or summoned to the
Senate. That section is probably no more than declaratory of a right
inherent in every parliamentary body. (Vide clause 1 of the preamble to the
B.N.A. Act and the quotation of Lord Lyndhurst's language made from MacQueen's
Debates on The Life Peerage Question, at p. 300, by Viscount Haldane in
Viscountess Rhondda's Claim [[1922] 2 A.C. 339, at pp. 384-5.].
It
should be observed that, while the question now submitted by his Excellency to
the court deals with the word "Persons," section 24 of the B.N.A. Act
speaks only of "qualified Persons"; and the other sections empowering
the Governor General to make appointments to the Senate (26 and 32) speak,
respectively, of "qualified Persons" and of "fit and qualified
Persons." The question which we have to consider, therefore, is whether
"female persons" are qualified to be summoned to the Senate by the
Governor General; or, in other words -- Are women eligible for appointment to
the Senate of Canada? That question it is the duty of the court to
"answer" and to "certify to the Governor in Council for his
information ... its opinion ... with the reasons for ... such
answer." Supreme Court Act, R.S.C. [1927] c. 35, s. 55, subs.
2.
In
considering this matter we are, of course, in no wise concerned with the
desirability or the undesirability of the presence of women in the Senate, nor
with any political aspect of the question submitted. Our whole duty
is to construe, to the best of our ability, the relevant provisions of the
B.N.A. Act, 1867, and upon that construction to base our answer.
Passed
in the year 1867, the various provisions of the B.N.A. Act (as is the case with
other statutes, Bank of Toronto v. Lambe) [[1887] 12 A.C. 575, at p. 579.] bear
to-day the same construction which the courts would, if then required to pass
upon them, have given to them when they were first enacted. If the
phrase "qualified persons" in s. 24 includes women to-day, it has so
included them since 1867.
In
a passage from Stradling v. Morgan [1 Plowd. 203, at p. 205.], often quoted,
the Barons of the Exchequer pointed out that:
|
|
The
Sages of the Law heretofore have construed Statutes quite contrary to the
Letter in some appearance, and those Statutes which comprehend all things in
the Letter they have expounded to extend but to some Things, and those which
generally prohibit all people from doing such an Act they have interpreted to
permit some People to do it and those which include every Person in the
Letter they have adjudged to reach to some Persons only, which Expositions
have always been founded upon the Intent of the Legislature, which they have
collected sometimes by considering the cause and Necessity of making the Act,
sometimes by comparing one part of the Act with another, and sometimes by
foreign Circumstances. So that they have been guided by the Intent of the
Legislature, which they have always taken according to the Necessity of the
Matter, and according to that which is consonant with Reason and good
Discretion. |
|
"In
deciding the question before us", said Turner L.J., in Hawkins v.
Gathercole [6 DeG. M. & G., 1, at p. 21.],
|
|
we
have to construe not merely the words of the Act of Parliament but the intent
of the Legislature as collected, from the cause and necessity of the Act
being made, from a comparison of its several parts and from foreign (meaning
extraneous) circumstances so far as they can be justly considered to throw
light upon the subject. |
|
Two
well-known rules in the construction of statutes are that, where a statute is
susceptible of more than one meaning, in the absence of express language an
intention to abrogate the ordinary rules of law is not to be imputed to
Parliament (Wear Commissioners v. Adamson [(1876) 1 Q.B.D. 546 at p. 554.]);
and,
|
|
as
they are framed for the guidance of the people, their language is to be
considered in its ordinary and popular sense, per Byles J., in Chorlton v.
Lings [(1868) L.R. 4 C.P. 374, at p. 398.]. |
|
Two
outstanding facts or circumstances of importance bearing upon the present
reference appear to be
(a)
that the office of Senator was a new office first created by the B.N.A. Act.
|
|
It
is an office, therefore, which no one apart from the enactments of the
statute has an inherent or common law right of holding, and the right of any
one to hold the office must be found within the four corners of the statute
which creates the office, and enacts the conditions upon which it is to be
held, and the persons who are entitled to hold it; (Beresford-Hope v.
Sandhurst [(1889) 23 Q.B.D. 79, at p. 91.], per Lord Coleridge, C.J.); |
|
(b)
that by the common law of England (as also, speaking generally, by the civil
and the canon law: foeminae ab omnibus officiis civilibus vel
publicis remotae sunt) women were under a legal incapacity to hold public
office,
|
|
referable
to the fact (as Willes J., said in Chorlton v. Lings [L.R. 4 C.P. 374, at p.
392.], that in this country in modern times, chiefly out of respect to women,
and a sense of decorum, and not from their want of intellect, or their being
for any other such reason unfit to take part in the government of the
country, they have been excused from taking any share in this department of
public affairs. |
|
The
same very learned judge had said, at p. 388:
|
|
Women
are under a legal incapacity to vote at elections. What was the
cause of it, it is not necessary to go into: but, admitting that
fickleness of judgment and liability to influence have sometimes been
suggested as the ground of exclusion, I must protest against its being
supposed to arise in this country from any underrating of the sex either in
point of intellect or worth. That would be quite inconsistent with
one of the glories of our civilization, the respect and honour in which women
are held. This is not a mere fancy of my own, but will be found in
Selden, de Synedriis Veterum Ebraeorum, in the discussion of the origin of
the exclusion of women from judicial and like public functions, where the
author gives preference to this reason, that the exemption was founded upon
motives of decorum, and was a privilege of the sex (honestatis privilegium):
Selden's Works, vol. 1, pp. 1083-1085. Selden refers to many systems of law
in which this exclusion prevailed, including the civil law and the canon law,
which latter, as we know, excluded women from public functions in some
remarkable instances. With respect to the civil law, I may add a
reference to the learned and original work of Sir Patrick Colquhon (sic) on
the Roman Law, vol. 1, c. 580, where he compares the Roman system with ours,
and states that a woman "cannot vote for members of parliament, or sit
in either the House of Lords or Commons." |
|
As
put by Lord Esher, M.R. (who, however, says he had "a stronger view than
some of (his) brethern") in Beresford-Hope v. Sandhurst [23 Q.B.D. 79, at
p. 95.]
|
|
I
take the first proposition to be that laid down by Willes J., in the case of
Chorlton v. Lings [L.R. 4 C.P. 374.]. I take it that by neither
the common law nor the constitution of this country from the beginning of the
common law until now can a woman be entitled to exercise any public functions. Willes
J., stated so in that case, and a more learned judge never lived. |
|
While
Willes, J., had spoken of "judicial and like public functions" at p.
388, the tenor of his judgment indicates unmistakably that it was his view that
to the legal incapacity of women for public office there were few, if any,
exceptions. See De Sousa v. Cobden [[1891] 1 Q.B. 687, at p. 691.].
The
same idea is expressed by Viscount Birkenhead L.C., in rejecting The
Viscountess Rhondda's Claim to a Writ of Summons to the House of Lords [[1922]
2 A.C. 339, at p. 362.].
|
|
By
her sex she is not -- except in a wholly loose and colloquial sense --
disqualified from the exercise of this right. In respect of her
dignity she is a subject of rights which ex vi termini cannot include this
right. |
|
Viscount
Haldane, who dissented in the Rhondda Case [[1922] 2 A.C. 339, at p. 362.],
said, at p. 386:
|
|
The
reason why peeresses were not entitled to it (the writ of summons) was simply
that as women they could not exercise the public function. That appears to
have been the considered conclusion of James Shaw Willes J., one of the most
learned and accurate exponents of the law of England who ever sat on the
Bench. He says in Chorlton v. Lings [L.R. 4 C.P. 374.] that the
absence of all rights of this kind is referable to the fact that by the
common law women have been excused from taking any part in public affairs. |
|
Reference
may also be had to Brown v. Ingram [(1868) 7 Court of Sess. Cases, 3rd Series,
281.]; Hall v. Incorporated Society of Law Agents [(1901) 38 Scottish Law
Reporter, 776.]; Rex v. Crossthwaite [(1864) 17 Ir. C.L.R. 157, 463, 479.], and
to the judgment of Gray C.J., in Robinson's Case [(1881) 131 Mass., 376, at p.
379.], and also to Pollock & Maitland's History of English Law, vol. 1, pp.
465-8.
Prior
to 1867 the common law legal incapacity of women to sit in Parliament had been
fully recognized in the three provinces -- Canada (Upper and Lower), Nova
Scotia and New Brunswick, which were then confederated as the Dominion of
Canada.
Moreover,
paraphrasing an observation of Lord Coleridge C.J., in Beresford-Hope v.
Sandhurst [23 Q.B.D. 79, at pp. 91, 92.], it is not also perhaps to be entirely
left out of sight, that in the sixty years which have run since 1867, the
questions of the rights and privileges of women have not been, as in former
times they were, asleep. On the contrary, we know as a matter of
fact that the rights of women, and the privileges of women, have been much
discussed, and able and acute minds have been much exercised as to what
privileges ought to be conceded to women. That has been going on,
and surely it is a significant fact, that never from 1867 to the present time
has any woman ever sat in the Senate of Canada, nor has any suggestion of
women's eligibility for appointment to that House until quite recently been
publicly made.
Has
the Imperial Parliament, in sections 23, 24, 25, 26 and 32 of the B.N.A. Act,
read in the light of other provisions of the statute and of relevant
circumstances proper to be considered, given to women the capacity to exercise
the public functions of a Senator? Has it made clear its intent to
effect, so far as the personnel of the Senate of Canada is concerned, the
striking constitutional departure from the common law for which the petitioners
contend, which would have rendered women eligible for appointment to the Senate
at a time when they were neither qualified to sit in the House of Commons nor
to vote for candidates for membership in that House? Has it not
rather by clear implication, if not expressly, excluded them from membership in
the Senate? Such an extraordinary privilege is not conferred
furtively, nor is the purpose to grant it to be gathered from remote
conjectures deduced from a skilful piecing together of expressions in a statute
which are more or less precisely accurate. (Nairn v. University of
St. Andrews [[1909] A.C. 147, at p. 161.]). When Parliament contemplates such a
decided innovation it is never at a loss for language to make its intention
unmistakable. "A judgment", said Lord Robertson in the
case last mentioned, at pp. 165-6
|
|
is
wholesome and of good example which puts forward subject-matter and
fundamental constitutional law as guides of construction never to be
neglected in favour of verbal possibilities. |
|
There
can be no doubt that the word "persons" when standing alone prima
facie includes women. (Per Loreburn L.C., Nairn v. University of St.
Andrews [[1909] A.C. 147, at p. 161.]). It connotes human beings --
the criminal and the insane equally with the good and the wise citizen, the
minor as well as the adult. Hence the propriety of the restriction
placed upon it by the immediately preceding word "qualified" in ss.
24 and 26 and the words "fit and qualified" in s. 32, which exclude
the criminal and the lunatic or imbecile as well as the minor, who is
explicitly disqualified by s. 23 (1). Does this requirement of qualification
also exclude women?
Ex
facie, and apart from their designation as "Senators" (s. 21), the
terms in which the qualifications of members of the Senate are specified in s.
23 (and it is to those terms that reference is made by the word "qualified"
in s. 24) import that men only are eligible for appointment. In
every clause of s. 23 the Senator is referred to by the masculine pronoun --
"he" and "his"; and the like observation applies to ss. 29
and 31. Frost v. The King [[1919] Ir. R. 1 Ch. 81, at p.
91.]. Moreover, clause 2 of section 23 includes only
"natural-born" subjects and those "naturalized" under
statutory authority and not those who become subjects by marriage -- a
provision which one would have looked for had it been intended to include women
as eligible.
Counsel
for the petitioners sought to overcome the difficulty thus presented in two
ways:
(a)
by a comparison of s. 24 with other sections in the B.N.A. Act, in which, he
contended, the word "persons" is obviously used in its more general
signification as including women as well as men, notably ss. 11, 14, and 41.
(b)
by invoking the aid of the statutory interpretation provision in force in
England in 1867 -- 13-14 Vict., c. 21, s. 4, known as Lord Brougham's Act --
which reads as follows:
|
|
Be
it enacted that in all Acts words importing the Masculine Gender shall be
deemed and taken to include Females, and the Singular to include the Plural,
and the Plural the Singular, unless the contrary as to Gender or Number is
expressly provided. |
|
(a)
A short but conclusive answer to the argument based on a comparison of s. 24
with other sections of the B.N.A. Act in which the word "persons"
appears is that in none of them is its connotation restricted, as it is in s.
24, by the adjective "qualified." "Persons" is a
word of equivocal signification, sometimes synonymous with human beings,
sometimes including only men.
|
|
It
is an ambiguous word, says Lord Ashbourne, and must be examined and construed
in the light of surrounding circumstances and constitutional law Nairn v.
University of St. Andrews [[1909] A.C. 147, at p. 162.]. |
|
In
section 41 of the B.N.A. Act, which deals with the qualifications for
membership of the House of Commons and of the voters at elections of such
members, "persons" would seem to be used in its wider signification,
since, while in both these matters the legislation affecting the former Provincial
Houses of Assembly, or Legislative Assemblies, is thereby made applicable to
the new House of Commons, it remains so only "until the Parliament of
Canada otherwise provides." It seems reasonably clear that it
was intended to confer on the Parliament of Canada an untrammelled discretion
as to the personnel of the membership of the House of Commons and as to the
conditions of and qualifications for the franchise of its electorate; and so
the Canadian Parliament has assumed, as witness the Dominion Elections Act,
R.S.C., 1927, c. 53, ss. 29 and 38. It would, therefore, seem
necessary to give to the word "persons" in s. 41 of the B.N.A. Act
the wider signification of which it is susceptible in the absence of adjectival
restriction.
But,
in s. 11, which provides for the constitution of the new Privy Council for
Canada, the word "persons", though unqualified, is probably used in
the more restricted sense of "male persons." For the
public offices thereby created women were, by the common law, ineligible and it
would be dangerous to assume that by the use of the ambiguous term
"persons" the Imperial Parliament meant in 1867 to bring about so
vast a constitutional change affecting Canadian women, as would be involved in
making them eligible for selection as Privy Councillors. A similar
comment may be made upon s. 14, which enables the Governor General to appoint a
Deputy or Deputies.
As
put by Lord Loreburn in Nairn v. University of St. Andrews [[1909] A.C. 147, at
p. 161.]:
|
|
It
would require a convincing demonstration to satisfy me that Parliament
intended to effect a constitutional change so momentous and far-reaching by
so furtive a process. |
|
With
Lord Robertson (ibid. at pp. 165-6), to mere "verbal possibilities"
we prefer "subject-matter and fundamental constitutional law as guides of
construction." When Parliament intends to overcome a
fundamental constitutional incapacity it does not employ such an equivocal
expression as is the word "persons" when used in regard to eligibility
for a newly created public office. Neither from s. 11 or s. 14 nor
from s. 41, therefore, can the petitioners derive support for their contention
as to the construction of the phrase "qualified persons" in s. 24.
Section
63 of the B.N.A. Act, the only other section to which Mr. Rowell referred,
deals with the constitution of the Executive Councils of the provinces of
Ontario and Quebec. But, since, by s. 92 (1), each provincial legislature is
empowered to amend the constitution of the province except as regards the
office of Lieutenant-Governor, the presence of women as members of some
provincial executive councils has no significance in regard to the scope of the
phrase "qualified persons" in s. 24 of the B.N.A. Act.
(b)
"Persons" is not a "word importing the masculine
gender." Therefore, ex facie, Lord Brougham's Act has no
application to it. It is urged, however, that that statute so
affects the word "Senator" and the pronouns "he" and
"his" in s. 23 that they must be "deemed and taken to include
Females", "the contrary" not being "expressly
provided."
The
application and purview of Lord Brougham's Act came up for consideration in
Chorlton v. Lings [(1868) L.R. 4 C.P. 374.], where the Court of Common Pleas
was required to construe a statute (passed like the British North America Act,
in 1867) which conferred the parliamentary franchise on "every man"
possessing certain qualifications and registered as a voter. The
chief question discussed was whether, by virtue of Lord Brougham's Act,
"every man" included "women". Holding that
"women" were "subject to a legal incapacity from voting at the
election of members of Parliament", the court unanimously decided that the
word "man" in the statute did not include a
"woman". 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, Bovill C.J., declined to accept the view that Parliament had made
that change by using the term "man" and held that
|
|
this
word was intentionally used expressly to designate the male sex; and that it
amounts to an express enactment and provision that every man, as
distinguished from women, possessing the qualification, is to have the
franchise. In that view, Lord Brougham's Act does not apply to the
present case, and does not extend the meaning of the word "man" so
as to include "women." (386-7). |
|
|
|
Willes
J., said, at p. 387: |
|
|
|
I
am of the same opinion. The application of the Act, 13-14 Vict.,
c. 21, (Lord Broughman's Act) contended for by the appellant is a strained
one. It is not easy to conceive that the framer of the 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. It is quite clear that whatever the language used
necessarily or even naturally implies, is expressed thereby. Still
less did the framer of the Act intend to exclude the rule alike of good sense
and grammer and law, that general words are to be restrained to the
subject-matter with which the speaker or writer is dealing. |
|
|
|
Byles
J. said, at p. 393: |
|
|
|
The
difficulty, if any, is created by the use of the word "expressly."
But that word does not necessarily mean "expressly excluded by
words" ... The word "expressly" often means no more than
plainly, clearly, or the like; as will appear on reference to any English
dictionary. |
|
|
|
And
he concluded: |
|
|
|
I
trust ... our unanimous decision will forever exorcise and lay this ghost of
a doubt, which ought never to have made its appearance. |
|
|
|
Keating
J., said, at pp. 394-5: |
|
|
|
Considering
that there is no evidence of women ever having voted for members of
parliament in cities or boroughs, and that they have been deemed for
centuries to be legally incapable of so doing, one would have expected that
the legislature, if desirous of making an alteration so important and
extensive as to admit them to the franchise, would have said so plainly and
distinctly: whereas, in the present case, they have used expressions never
before supposed to include women when found in previous Acts of Parliament of
a similar character. ... But it is said that the word "man" in the
present Act must be construed to include "woman" because by 13-14
Vict., c. 21, s. 4, it is enacted that "In all Acts, words importing the
masculine gender shall be deemed and taken to include females, unless the
contrary is expressly provided." Now all that s. 4 of 13 and
14 Vict., c. 21 could have meant by the enactment referred to was, that, in
future Acts, words importing the masculine gender should be taken to include
females, where a contrary intention should not appear. To do more
would be exceeding the competency of Parliament with reference to future
legislation. |
|
The
later Interpretation Act of 1889 (52-53 Vict., c. 63), which (s. 41) repealed
Lord Brougham's Act, substituted by s. 1, under the heading "Re-enactment
of Existing Rules" for its words "unless the contrary as to Gender
and Number is expressly provided" their equivalent, suggested by Mr.
Justice Keating, "unless the contrary intention
appears". Frost v. The King [[1919] Ir. R. 1 Ch. 81, at pp. 89,
95.].
Keating
J. concluded his judgment by saying (p. 396):
|
|
Mr.
Coleridge, who ably argued the case for the appellant, made an eloquent
appeal as to the injustice of excluding females from the exercise of the
franchise. This, however, is not a matter within our province. It
is for the legislature to consider whether the existing incapacity ought to be
removed. But, should Parliament in its wisdom determine to do so,
doubtless it will be done by the use of language very different from anything
that is to be found in the present Act of Parliament. |
|
Similar
views prevailed in The Queen v. Harrald [(1872) L.R. 7 Q.B. 361.], and Bebb v.
The Law Society [[1914] 1 Ch. 286.].
The
decision in Chorlton v. Lings [L.R. 4 C.P. 374.] is of the highest authority,
as was recognized in the House of Lords by Earl Loreburn, L.C., in Nairn v.
University of St. Andrews [[1909] A.C. 147.], and again by Viscount Birkenhead,
L.C., in rejecting the claim of Viscountess Rhondda to sit in the House of
Lords, with the concurrence of Viscount Cave, and Lords Atkinson, Phillimore,
Buckmaster, Sumner and Carson, as well as by Viscount Haldane, who dissented
[[1922] 2 A.C. 339.].
In
his speech, at p. 375, the Lord Chancellor said:--
|
|
It
is sufficient to say that the Legislature in dealing with this matter cannot
be taken to have departed from the usage of centuries or to have employed
such loose and ambiguous words to carry out so momentous a revolution in the
constitution of this House. And I am content to base my judgment
on this alone. |
|
In
our opinion Chorlton v. Lings [L.R. 4 C.P. 374.] is conclusive against the
petitioners alike on the question of the common law incapacity of women to
exercise such public functions as those of a member of the Senate of Canada and
on that of their being expressly excluded from the class of "qualified persons"
within s. 24 of the B.N.A. Act by the terms in which s. 23 is couched (New
South Wales Taxation Commissioners v. Palmer) [[1907] A.C. 179, at p. 184.], so
that Lord Brougham's Act cannot be invoked to extend those terms to bring
"women" within their purview.
We
are, for these reasons, of the opinion that women are not eligible for
appointment by the Governor General to the Senate of Canada under Section 24 of
the British North America Act, 1867, because they are not "qualified
persons" within the meaning of that section. The question
submitted, understood as above indicated, will, accordingly, be answered in the
negative.
DUFF
J.:— The interrogatory submitted is, in effect, this: Is the
word "persons" in section 24 of the B.N.A. Act the equivalent of male
persons? "Persons" in the ordinary sense of the word includes, of
course, natural persons of both sexes. But the sense of words is
often radically affected by the context in which they are found, as well as by
the occasion on which they are used; and in construing a legislative enactment,
considerations, arising not only from the context, but from the nature of the
subject matter and object of the legislation, may require us to ascribe to
general words a scope more restricted than their usual import, in order loyally
to effectuate the intention of the legislature. And for this
purpose, it is sometimes the duty of a court of law to resort, not only to
other provisions of the enactment itself, but to the state of the law at the time
the enactment was passed, and to the history, especially the legislative
history, of the subjects with which the enactment deals. The view
advanced by the Crown is that following this mode of approach, and employing
the legitimate aids to interpretation thus indicated, we are constrained in
construing section 24, to read the word "persons" in the restricted
sense above mentioned, and to construe the section as authorizing the summoning
of male persons only.
The
question for decision is whether this is the right interpretation of that
section.
It
is convenient first to recall the general character and purpose of the B.N.A.
Act. The object of the Act was to create for British North America,
a system of parliamentary government under the British Crown, the executive
authority being vested in the Queen of the United Kingdom. While the
system was to be a federal or quasi federal one, the constitution was,
nevertheless, to be "similar in principle" to that of the United
Kingdom; a cannon involving the acceptance of the doctrine of parliamentary
supremacy in two senses, first that Parliament and the Legislatures, unlike the
legislatures and Congress in the U.S., were, subject to the limitations
necessarily imposed by the division of powers between the local and central
authorities, to possess, within their several spheres, full jurisdiction, free
from control by the courts; and second, in the sense of parliamentary control
over the executive, or executive responsibility to Parliament. In pursuance of
this design, Parliament and the local legislatures were severally invested with
legislative jurisdiction over defined subjects which, with limited exceptions,
embrace the whole field of legislative activity.
More
specifically, the legislative authority of Parliament extends over all matters
concerning the peace, order and good government of Canada; and it may with
confidence be affirmed that, excepting such matters as are assigned to the
provinces, and such as are definitely dealt with by the Act itself, and subject,
moreover, to an exception of undefined scope having relation to the sovereign,
legislative authority throughout its whole range is committed to
Parliament. As regards the executive, the declaration in the
preamble already referred to, involves, as I have said, as a principle of the
system, the responsibility of the executive to Parliament.
The
argument advanced before us in favour of the limited construction is
this: Women, it is said, at the time of the passing of the B.N.A.
Act, were, under the common law, as well as under the civil law, relieved from
the duties of public office or place, by a general rule of law, which affected
them (except in certain ascertained or ascertainable cases) with a personal
incapacity to accept or perform such duties; and, in particular, women were
excluded by the law and practice of parliamentary institutions, both in England
and in Canada, and indeed in the English speaking world, from holding a place
in any legislative or deliberative body, and from voting for the election of a
member of any such body. It must be assumed, it is said, that if the
authors of the B.N.A. Act had intended, in the system established by the Act,
to depart from this law or practice sanctioned by inveterate policy, the intention
would have been expressed in unmistakeable and explicit words. The word
"persons," it is said, when employed in a statute, dealing with the
constitution of a legislative body, and with cognate matters, does not
necessarily include female persons, and in an enactment on such a subject
passed in the year 1867 prima facie excludes them.
In
support of this view, a series of decisions and judgments, from 1868 to 1922,
delivered by English judges of the highest authority, are adduced, in which it
was held that such general words were not in themselves adequate evidence of an
intention to reverse the inveterate usage and policy in respect of the
exclusion of women from the parliamentary franchise, from the legal
professions, from a university Senate, from the House of Lords; and in
particular, two judgments of Lord Loreburn and Lord Birkenhead, which,
pronounced with convincing force, against reading a modern statute in such a
manner as to effect momentous changes in the political constitution of the
country, by, in the one case, admitting women to the parliamentary franchise,
and in the other, to the House of Lords, in the absence of words plainly and
explicitly declaring that such was the intention of Parliament.
Section
24, of course, in applying this principle, must not be treated as an
independent enactment. The Senate is part of a parliamentary system;
and, in order to test the contention, based upon this principle, that women are
excluded from participating in working the Senate or any of the other institutions
set up by the Act, one is bound to consider the Act as a whole, in its bearing
on this subject of the exclusion of women from public office and
place. Obviously, there are three general lines or policy which the
authors of the statute might have pursued in relation to that subject. First,
they might by a constitutional rule embodied in the statute, have perpetuated
the legal rule affecting women with a personal incapacity for undertaking
public duties, thus placing this subject among the limited number of subjects
that are withdrawn from the authority of Parliament and the legislatures;
second, they might, by a constitutional rule, in the opposite sense, embodied
in the Act, have made women eligible for all public places or offices, or any
of them, and thus, or to that extent, also, have withdrawn the subject from the
legislative jurisdiction created by the act. They might, on the
other hand, with respect to all public employments, or with respect to one or
more of them, have recognized the existence of the legal incapacity, but left
it to Parliament and the legislatures to remove that incapacity, or to
perpetuate it as they might see fit. For example, they might have
restricted the Governor in Council, in summoning persons to the Senate under section
24, by requiring him to address his summons to persons only who are under no
such legal incapacity, which would have made women ineligible, but only so long
as such incapacity remained, and at the same time have left it within the power
of the Parliament to obliterate the cause of the disability. The
generality of the word "persons" in section 24 is, in point of law,
susceptible of any qualification necessary to bring it into harmony with any of
those three possible modes of treating the subject.
I
have been unable to accept the argument in support of the limited construction,
in so far as it rests upon the view that in construing the legislative and
executive powers granted by the B.N.A. Act, we must proceed upon a general
presumption against the eligibility of women for public office. I
have come to the conclusion that there is a special ground, which I will state
later, upon which the restricted construction of section 24 must be maintained
but before stating that, I think it is right to explain why it is I think the
general presumption contended for, has not been established.
And
first, one must consider the provisions of the Act themselves, apart from the
"extraneous circumstances", except for such references as may be
necessary to make the enactments of the Act intelligible.
It
would, I think, hardly be disputed that, as a general rule, the legislative
authority of Parliament, and of legislatures enables them, each in their
several fields, to deal fully with this subject of the incapacity of
women. You could not hold otherwise without refusing effect to the
language of secs. 91 and 92; and indeed, one feels constrained to say, without
ignoring the fact that the authors of the Act were engaged in creating a system
of representative government for the people of half a
continent. Counsel did, in the course of argument, suggest the
possibility that Parliament, in extending the Parliamentary franchise to women,
had exceeded its powers, but I do not think that was seriously pressed.
There
can be no doubt that the Act does, in two sections, recognize the authority of
Parliament and of the legislatures, to deal with the disqualification of women
to be elected, or sit or vote as members of the representative body, or to vote
in an election of such members. These sections are 41 and 84.
I
quote section 41 in full,
|
|
Until
the Parliament of Canada otherwise provides, all Laws in force in the several
Provinces at the Union relative to the following Matters or any of them,
namely, -- the Qualifications and Disqualifications of Persons to be elected
or to sit or vote as Members of the House of Assembly or Legislative Assembly
in the several Provinces, the Voters at Elections of such Members, the Oaths
to be taken by Voters, the Returning Officers, their Powers and Duties, the
Proceedings at Elections, the Periods during which Elections may be
continued, the Trial of controverted Elections, and Proceedings incident
thereto, the vacating of Seats of Members, and the Execution of new Writs in
case of Seats vacated otherwise than by Dissolution, -- shall respectively
apply to Elections of Members to serve in the House of Commons for the same
several Provinces. |
|
|
|
Provided
that, until the Parliament of Canada otherwise provides, at any Election for
a Member of the House of Commons for the District of Algoma, in addition to
Persons qualified by the Law of the Province of Canada to vote, every male
British Subject, aged Twenty-one Years or upwards, being a Householder, shall
have a Vote. |
|
To
appreciate the purport of this section, it is necessary to note that in all the
confederated provinces, women were disqualified as voters, that in one of the provinces,
they were excluded, co nomine, from places in the Legislative Assembly, and
that in another, they were expressly excluded, but referentially, by the
disqualification of all persons not qualified to vote; the right to vote having
been confined explicitly to males. The phrase therefore
"disqualification of persons to be elected or to sit or vote as members of
the House of Assembly or Legislative Assembly in the various provinces",
denotes disqualifications, which include inter alia disqualifications of women,
while at the same time, the section recognizes the authority of the Dominion to
legislate upon that subject. Mr. Rowell seemed to suggest that the
legislative authority of Parliament, on the subject of qualification of members
and voters, is derived from this section. I do not think
so. It is given, it seems to me, under the general language of
section 91, which obviously in its terms embraces it; but that does not affect
the substance of the argument founded upon the section, which recognizes in the
clearest manner, and by express reference, the authority of Parliament to deal
with the subject of the disqualification of women in those aspects, women being
demonstrably comprehended under the nomen generale "persons". This
section 41 is taken almost verbatim from section 26 of the Quebec Resolutions,
upon which the B.N.A. Act was mainly founded. It is difficult to
suppose that the members of the Conference, who agreed upon these Resolutions,
were unaware that, in that section, they were dealing with the subject. Section
84 is expressed in the same terms, and there can, I think, be no warrant for
attributing to the phrase quoted (or to the word "persons" which is
part of it), diverse effects in the two sections. Indeed, there can
be no doubt, that the province of Canada had enjoyed full authority under the
Act of Union (and probably the Maritime provinces as well) to legislate upon
the constitution of the Legislative Assembly, and the right to vote in the
election of members to that body. Nor is it, I think, doubtful that, under
section 1 of the Union Act Amendment Act, 1854, the legislature of Canada had
full power to deal with the subject of qualifications of members of the
Legislative Council, and to determine (subject it is true, to any bill upon the
subject being reserved for Her Majesty's pleasure), whether or not women (here
again comprehended in that section under the generic word "persons")
should be eligible for places therein.
The
subject of the qualification and disqualification of women as members of the
House of Commons, being thus recognized as within the jurisdiction of
Parliament, is it quite clear that the construction of the general words of
section 11 dealing with the constitution of the Privy Council, is governed by
the general presumption suggested? Inferentially, in laying down the
"principle" of the British Constitution as the foundation of the new
policy, the preamble recognizes, as stated above, the responsibility of the
Executive to Parliament, or rather to the elective branch of the legislature,
and the right of Parliament to insist that the advisers of the Crown shall be
persons possessing its "confidence", as the phrase is.
The
subject of "responsible government," as the phrase went, had been for
many years the field of a bitter controversy, especially in the province of
Canada. The Colonial office had encountered great difficulties in
reconciling, in practice, the full adoption of this principle with proper
recognization of the position of the Governor as the representative of the
Imperial Government. It was only a few years before 1867 that Sir
John Macdonald's suggestion had been accepted, by which
"Governor-in-Council" in Commissions, Instructions and Statutes was
read as the Governor acting on the advice of his Council, which was thus
enabled to transact business in the Governor's absence. There can be
no doubt that this inter-relation between the executive and the representative
branches of the government was in the view of the framers of the Act, a most
important element in the constitutional principles which they intended to be
the foundation of the new structure.
It
might be suggested, I cannot help thinking, with some plausibility, that there
would be something incongruous in a parliamentary system professedly conceived
and fashioned on this principle, if persons fully qualified to be members of
the House of Commons were by an iron rule of the constitution, a rule beyond
the reach of Parliament, excluded from the Cabinet or the Government; if a
class of persons who might reach any position of political influence, power or
leadership in the House of Commons, were permanently, by an organic rule,
excluded from the Government. In view of the intimate relation
between the House of Commons and the Cabinet, and the rights of initiation and
control, which the Government possesses in relation to legislation and
parliamentary business generally, and which, it cannot be doubted, the authors
of the Act intended and expected would continue, that would not, I think, be a
wholly baseless suggestion.
The
word "persons" is employed in a number of sections of the Act (secs.
41, 83, 84 and 133) as designating members of the House of Commons, and though
the word appears without an adjective, indubitably it is used in the
unrestricted sense as embracing persons of both sexes; while in secs. 41 and
84, where males only are intended, that intention is expressed in appropriate
specific words.
Such
general inferences therefore as may arise from the language of the Act as a
whole cannot be said to support a presumption in favour of the restricted
interpretation.
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 practice of Parliament in respect of
appointment to public place of office -- establishes a rule of interpretation
for the British North America Act, by which the construction of powers,
legislative and executive, bestowed in general terms is controlled by a
presumptive exclusion of women from participation in the working of the
institutions set up by the Act.
When
a statutory enactment expressed in general terms is relied upon as creating or
sanctioning a fundamental legal or political change, the nature of the supposed
change may, in itself, be such as to leave no doubt that it could have been
effected, or authorized, if at all, only after full deliberation, and that the
intention to do so would have been evidenced in apt or unmistakable
enactments. In Cox v. Hakes [15 App. Cas. 506.], Lord Halsbury was
content to rest his judgment on his conviction that, in a matter affecting
vitally the legal securities for personal freedom, the "policy of
centuries" would not be reversed by Parliament, by the use of a single
general phrase; and in the decisions concerning the disabilities of women, from
1868 to 1922, a similar line of reasoning played no insignificant part, as we have
seen. Such reasoning has also been considered to give support to the
view that the prerogative of Her Majesty, in relation to appeals, was left
untouched by the British North America Act; Nadon v. The King [[1926] A.C. 482
at pp. 494, 495.]; and by the (Australian) Commonwealth Constitution Act, Webb
v. Outrim [[1907] A.C. 81 at pp. 91, 92.]; and was applied by the Supreme Court
of the United States in reaching the conclusion that the 14th Amendment of the
United States Constitution did not compel the States to admit women to the
exercise of the legislative franchise. Minor v. Happissett [22
L.C.P. 627 at p. 630.].
But
this mode of approach, though recognized by the courts as legitimate, must
obviously be employed with caution. The "extraneous facts" upon which
the underlying assumption is founded, must be demonstrative. It will
not do to act upon the general resemblances between the questions presented
here, and that presented in the cases cited. Those cases were concerned
with the effect of statutes which might at any time be repealed or amended by a
majority. They had nothing to do with the jurisdiction of Parliament
or with that of His Majesty in Council executing the highest and constitutional
functions under his responsibility to Parliament; and were not intended to lay
down binding rules, for an indefinite future, in the working of a
Constitution. And, above all, they were not concerned with broad
provisions establishing new parliamentary institutions, and defining the spheres
and powers of legislatures and executives, in a system of representative
government. Passages in the judgments, of seemingly general import,
must be read secundum subjectam materiam.
Let
me illustrate this by reference to the Canadian Privy Council and the Provincial
Executives. In 1867, it would have been a revolutionary step to
appoint a woman to the Privy Council or to an Executive Council in Canada --
nobody would have thought of it. But it would also have been a
radical departure to make women eligible for election to the House of Commons,
or to confer the electoral franchise upon them; to make them eligible as
members of a provincial legislature, or for appointment to a provincial
legislative council. And yet it is quite plain that, with respect to
all these last-mentioned matters, the fullest authority was given and given in
general terms to Parliament and the legislatures within their several spheres;
the "policy of centuries" being left in the keeping of the
representative bodies, which with the consent of the people of Canada, were to
exercise legislative authority over them.
In
view of this, I do not think the "extraneous facts" relied upon are
really of decisive importance, especially when the phraseology of the
particular sections already mentioned is considered; and their value becomes
inconsiderable when compared with reasons deriving their force from the
presumption that the Constitution in its executive branch was intended to be
capable of adaptation to whatever changes (permissible under the Act) in the
law and practice relating to the election branch might be progressively
required by changes in public opinion.
Then,
assuming that the considerations relied upon are potent enough to enforce some
degree of restrictive qualification, what should be the extent of that
qualification? Should it go farther than limiting the classes of
persons to be appointed, or summoned, to those not affected for the time being
by a personal incapacity under some general rule of law, leaving it to Parliament
or the legislatures to deal with the rule or rules entailing such disabilities?
For
these reasons I cannot say that I am convinced of the existence of any such
general resumption as that contended for. On the other hand, there
are considerations which I think specially affect, and very profoundly affect,
the question of the construction of sec. 24. It should be observed,
in the first place, that in the economy of the British North America Act, the
Senate bears no such intimate relation to the House of Commons, or to the
Executive, as each of these bears to the other. There is no
consideration, as touching the policy of the Act in relation to the Senate,
having the force of that already discussed, arising from the control vested in
Parliament in respect of the Constitution of the House of Commons, and
affecting the question of the Constitution of the Privy Council. On
the other hand, there is much to point to an intention that the constitution of
the Senate should follow the lines of the Constitution of the old Legislative
Councils under the Acts of 1791 and 1840.
In
1854, in response to an agitation in the province of Canada, the Imperial
Parliament passed an Act amending the Act of Union, (17 and 18 Vic., Cap. 118
already mentioned) which fundamentally altered the status of the Legislative
Council. Before the enactment of this Act, the Constitution of the Legislative
Council had been fixed (by secs. 4 to 10 of the Act of Union) beyond the power
of the legislature of Canada to modify it. By the Statute of 1854,
that constitution was placed within the category of matters with which the
Canadian Legislature had plenary authority to deal. Now, when the
British North America Act was framed, this feature of the parliamentary
constitution of the province of Canada, the power of the legislature of the
province to determine the constitution of the second Chamber, was entirely
abandoned. The authors of the Confederation scheme, in the Quebec Resolutions,
reverted in this matter (the Constitution of the Legislative Council, as it was
therein called) to the plan of the Acts of 1791 (save in one respect not
presently relevant) and of 1840. And the clauses in these
resolutions on the subject of the Council, follow generally in structure and
phraseology the enactments of the earlier statutes.
It
seems to me to be a legitimate inference, that the British North America Act
contemplated a second Chamber, the constitution of which should, in all
respects, be fixed and determined by the Act itself, a constitution which was
to be in principle the same, though, necessarily, in detail, not identical,
with that of the second Chambers established by the earlier
statutes. That under those statutes, women were not eligible for
appointment, is hardly susceptible of controversy.
In
this connection, the language of sections 23 and 31 of the British North
America Act deserve some attention. I attach no importance (in view
of the phraseology of secs. 83 and 128) 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. But it is worthy of notice
that subsection 3 of section 23 points to the exclusion of married women, and
subsection 2 of section 31 would probably have been expressed in a different
way if the presence of married women in the Senate had been contemplated; and
the provisions dealing with the Senate are not easily susceptible of a
construction proceeding upon a distinction between married and unmarried women
in respect of eligibility for appointment to the Senate. These
features of the provisions specially relating to the constitution of the
Senate, in my opinion, lend support to the view that in this, as in other
respects, the authors of the Act directed their attention to the Legislative
Councils of the Acts of 1791 and 1840 for the model on which the Senate was to
be formed.
I
have not overlooked Mr. Rowell's point based upon section 33 of the British
North America Act. Sec. 33 must be supplemented by sec. 1 of the
Confederation Act Amendment Act of 1875, and by section 4 of c. 10, R.S.C., the
combined effect of which is that the Senate enjoys the privileges and powers,
which at the time of the passing of the British North America Act were enjoyed
by the Commons House of Parliament of the United Kingdom. In
particular, by virtue of these enactments, the Senate possesses sole and
exclusive jurisdiction to pass upon the claims of any person to sit and vote as
a member thereof, except in so far as that jurisdiction is affected by
statute. That, I think, is clearly the result of sec. 33, combined
with the Imperial Act of 1875, and the subsequent Canadian
legislation. And the jurisdiction of the Senate is not confined to
the right to pass upon questions arising as to qualification under sec. 33; it
extends, I think, also to the question whether a person summoned is a person
capable of being summoned under sec. 24. In other words, when the jurisdiction
attaches, it embraces the construction of sec. 24, and if the Governor General
were professing, under that section, to summon a woman to the Senate, the
question whether the instrument was a valid instrument would fall within the
scope of that jurisdiction. I do not think it can be assumed that the Senate,
by assenting to the Statute, authorizing the submission of questions to this
Court for advisory opinions, can be deemed thereby to have consented to any
curtailment of its exclusive jurisdiction in respect of such
questions. And therefore I have had some doubt whether such a
question as that now submitted falls within the Statute by which we are
governed. It is true that an affirmative answer to the question might give rise
to a conflict between our opinion and a decision of the Senate in exercise of
its jurisdiction; but strictly that is a matter affecting the advisability of
submitting such questions, and therefore within the province of the Governor in
Council. As yet, no concrete case has arisen to which the
jurisdiction of the Senate could attach. We are asked for advice on
the general question, and that, I think, we are bound to give. It
has, of course, only the force of an advisory opinion.
The
existence of this jurisdiction of the Senate does not, I think, affect the
question of substance. We must assume that the Senate would decide
in accordance with the law.
MIGNAULT
J.:— The real question involved under this reference is whether, on the
proper construction of the British North America Act, 1867, women may be
summoned to the Senate. It is not apparent why we are asked merely
if the word "persons" in section 24 of that Act includes "female
persons". The expression "persons" does not stand
alone in section 24, nor is that section the only one to be considered. It is
"qualified persons" whom the Governor General shall from time to time
summon to the Senate (sec. 24), and when a vacancy happens in the Senate, it is
a "fit and qualified person" whom the Governor General shall summon
to fill the vacancy (sec. 32). On the proper construction of these
words depends the answer we gave to give. It would be idle to
enquire whether women are included within the meaning of an expression which,
in the question as framed, is divorced from its context. The real controversy,
however, is apparent from the statement in the Order in Council that the
petitioners are "interested in the admission of women to the Senate of
Canada," and that His Excellency in Council is requested to refer to this
court "certain questions touching the power of the Governor General to
summon female persons to the Senate of Canada." It is with that
question that we have to deal.
The
contentions which the petitioners advanced at the hearing are not
new. They have been conclusively rejected several times, and by
decisions by which we are bound. Much was said of the interpretation
clause contained in Lord Brougham's Act, but the answer was given sixty years
ago in Chorlton v. Lings [(1868) L.R. 4 C.P. 374.]. It appears
hopeless to contend against the authority of these decisions.
The
word "persons" is obviously a word of uncertain
import. Sometimes it includes corporations as well as natural
persons; sometimes it is restricted to the latter; and sometimes again it
comprises merely certain natural persons determined by sex or
otherwise. The grave constitutional change which is involved in the
contention submitted on behalf of the petitioners is not to be brought about by
inferences drawn from expressions of such doubtful import, but should rest upon
an unequivocal statement of the intention of the Imperial Parliament, since
that Parliament alone can change the provisions of the British North America
Act in relation to the "qualified persons" who may be summoned to the
Senate.
While
concurring generally in the reasoning of my Lord the Chief Justice, I have
ventured to state the grounds on which I base my reply to the question
submitted, as I construe it. This question should be answered in the
negative.
LAMONT
J.:— I concur with the Chief Justice.
SMITH
J.:— I concur with the Chief Justice.
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."