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Title: Privy Council Appeal No. 121 of 1928 [Item 3 of 7]; Case of the Attorney-General of Canada
Date of first publication: 1928
Author: The Lords of the Judicial Committee of the Privy Council
Date first posted: July 30, 2025
Date last updated: July 30, 2025
Faded Page eBook #20250738

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See Transcriber’s Notes below.

In the Privy Council.
‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒
		No. 121 of 1928.

ON APPEAL FROM THE SUPREME COURT OF CANADA.

‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒

	IN THE MATTER of a Reference as to the meaning of the word
		“Persons” in Section 24 of The British North America Act,
		1867.

‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒

Between

HENRIETTA MUIR EDWARDS, NELLIE L. McCLUNG,
	LOUISE C. McKINNEY, EMILY F. MURPHY and
	IRENE PARLBY	Appellants

and

THE ATTORNEY-GENERAL FOR THE DOMINION
	OF CANADA, THE ATTORNEY-GENERAL
	FOR THE PROVINCE OF QUEBEC and THE
	ATTORNEY-GENERAL FOR THE PROVINCE
	OF ALBERTA	Respondents.


=============================
CASE OF THE ATTORNEY-GENERAL OF CANADA.
=============================

Record.	1. This is an appeal by special leave from the judgment of the
pp. 38, 39.	Supreme Court of Canada pronounced on the 24th April, 1928, upon
pp. 3, 4.	a reference by His Excellency the Governor in Council for hearing and
	consideration by the Court, pursuant to the provisions of section 60 of
	the Supreme Court Act, of the following question relative to the eligibility
	of women to be summoned to a place in the Senate or Upper House of
	of the Parliament of Canada:

		“Does the word ‘Persons’ in section 24 of the British North
		America Act, 1867, include female persons?”

2

Record.	2. The said reference was made upon the petition of the appellants
	as persons interested in the admission of women to the Senate of Canada.

	3. The provisions of the British North America Act, 1867, relating
	to the constitution of the Senate and the qualifications of a Senator, viz.,
	sections 21 to 36 inclusive, are set out with other sections of the said Act
	which have been adverted to in the discussion and consideration of the
	question referred, at pp. 18-33 of the Joint Appendix.

	4. On the hearing of argument of the said reference on the 14th March,
	1928, before the full Court (composed of Anglin, C.J., Duff, Mignault,
	Lamont and Smith, J.J.), counsel for the Attorney-General of Canada		10
	contended that the word “persons” in sec. 24 of the British North
	America Act was limited to male persons, and counsel for the Province
	of Quebec supported this contention. Counsel for the petitioners contended,
	on the other hand, that the word “persons” in that section included female
	persons, and this contention was supported by the counsel for the Attorney-
	General of Alberta. The Attorneys-General for the other provinces of
	Canada, though duly notified, did not appear on the argument of the said
	reference.

	5. On the 24th April, 1928, the Court pronounced its judgment
	unanimously answering the question referred as follows:		20

p. 39.		“The question being understood to be, ‘Are women eligible
		for appointment to the Senate of Canada,’ the Question is answered
		in the negative.”

pp. 39-59.	The reasons for judgment delivered by the several members of the
	Court are reported in (1928) S.C.R., pp. 276-304.

	6. The Chief Justice of Canada, in his reasons for judgment (in which
	Mignault, Lamont and Smith, J.J. concurred), after citing the principles
	of construction which he considered to be applicable as affording guidance
	to the true determination of the question referred, proceeded as follows,
	at pages 282 and 283 of the report:		30

p. 43, l. 15.		“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 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,	40
		at p. 91, per Lord Coleridge, C.J.);’

		“(b) that by the common law of England (as also, speaking
		generally, by the civil and canon law: fœminæ ab omnibus officiis
		civilibus vel publicis remotæ sunt) women were under a legal
		incapacity to hold public office, ‘referable to the fact that (as

3

Record.		Willes, J., said in Chorlton v. Lings, L.R. 4 C.P. 374, at p. 392)
		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 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.’ ”

	And at pp. 284-288 of the report:—

p. 45, l. 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,	10
		which were then confederated as the Dominion of Canada.

		“Moreover, paraphrasing an observation of Lord Coleridge, C.J.,
		in Beresford-Hope v. Sandhurst (1889) 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	20
		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	30
		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)	40
		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.’

4

Record.	“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	10
	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. I Ch. 81, at p. 91.) Moreover, clause 2
	of section 23 includes only ‘natural-born’ subjects and those	20
	‘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:

p. 46, l. 23.	“(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	30
	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	40
	‘qualified.’ ‘Persons’ is a word of equivocal signification, sometimes
	synomymous 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).

5

Record.	“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	10
	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 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 of Canada, the word ‘persons,’ though unqualified,
	is probably used in the more restricted sense of ‘male	20
	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:	30

	‘It would require a convincing demonstration to satisfy me
	that Parliament intended to effect a constitutional change so
	momentuous and far-reaching by so furtive a process.’

	“With Lord Robertson (ibid. at pp. 165-6), to mere ‘verbal
	possibilities’ we refer ‘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,	40
	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

6

Record.		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	10
		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.’ ”	20

	After quoting from the reasons for judgment delivered by the learned
	Judges in that case, the learned Chief Justice (at page 290 of the Report)
	concluded as follows:

p. 49, l. 35.		“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	30
		dissented (1922) 2 A.C. 339.”

		“In his speech, at p. 375, the Lord Chancellor said:—

p. 50, l. 2.		‘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
		evidence against the petitioners alike on the question of the common
		law incapacity of women to exercise such public functions as those	40
		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.

7

Record.		“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.”

	7. Mignault, J., while concurring generally in the reasoning of the
	Chief Justice, stated briefly, in a separate judgment, the grounds on which
	he based his answer to the question submitted, in part, as follows: (at
	pp. 302, 303 of the report).		10

p. 59, l. 1.		“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.... 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 have to give....	20

p. 59, l. 20.		“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	30
		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.”

p. 52, l. 33.	8. Duff, J., after referring to the argument which had been advanced in
	favour of the limited construction of sec. 24 of the British North America		40
	Act, 1867, and the decisions cited in support of it, proceeded to state that
	he was unable to accept that argument, in so far as it rested upon the view
	that in construing the legislative and executive powers granted by the
	British North America Act, they must proceed upon a general presumption
	against the eligibility of women for public office. He had come to the conclusion
	that there was a special ground upon which the restricted construction

8

Record.	of sec. 24 must be maintained, but before stating that he thought it right
	to explain why, in his view, the general presumption contended for had not
	been established. First, one must consider the provisions of the Act themselves,
	apart from “extraneous circumstances.” It would, he thought,
	hardly be disputed that as a general rule the legislative authority of Parliament
	and of the legislatures enabled them, each in their several fields, to
	deal fully with the subject of the incapacity of women. One could not
	hold otherwise without refusing to give effect to the language of secs. 91 and
	92, and, indeed, one felt constrained to say, without ignoring the fact that
	the authors of the Act were engaged in creating a system of representative	10
	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 he did
	not think that was seriously pressed. There could be no doubt that the
	Act did, in two sections, recognise 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 were secs. 41 and 84, and the learned
	judge developed an argument in support of that construction of those
p. 54, l. 23.	sections. The subject of the qualification and disqualification of women as	20
	members of the House of Commons being thus recognized as within the
	jurisdiction of Parliament, was it quite clear that the construction of the
	general words of sec. 11 dealing with the constitution of the Privy Council
	was 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 recognized 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 should
	be persons possessing its “confidence” as the phrase was.

p. 55, l. 1.	It might be suggested, he could not help thinking, with some plausibility,	30
	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	40
	business generally, and which, it cannot be doubted, the authors of the
	Act intended and expected would continue, that would not, he thought, be
	a wholly baseless suggestion.

	The word “persons” was 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 appeared without an adjective, indubitably
	it was used in the unrestricted sense as embracing persons of both

9

Record.	sexes; while in secs. 41 and 84, where males only were intended, that intention
	was expressed in appropriate specific words.

	Such general inferences therefore as may arise from the language of the
	Act as a whole could not be said to support a presumption in favour of the
	restricted interpretation.

	Nor was he convinced that the reasoning based upon the “extraneous
	circumstances” they were 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 or office—established a rule of interpretation
	for the British North America Act, by which the construction of powers,	10
	legislative and executive, bestowed in general terms was controlled by a
	presumptive exclusion of women from participation in the working of the
p. 56, l. 6.	institutions set up by the Act. 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 was
	founded, must be demonstrative. It would 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	20
	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.

p. 56, l. 23.	In 1867, the learned judge proceeded to remark by way of illustration,
	it would have been a revolutionary step to appoint a woman to the Privy	30
	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.	40

	In view of this, he did not think the “extraneous facts” relied upon
	were really of decisive importance, especially when the phraseology of the
	particular sections already mentioned was considered; and their value
	became 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

10

Record.	under the Act) in the law and practice relating to the election branch might
	be progressively required by change in public opinion.

p. 57, l. 5.	For these reasons, the learned judge was not convinced of the existence
Sic.	of any such general resumption such as that contended for.

	On the other hand, there were considerations which he thought specially
	and very profoundly affected the question of the construction of sec. 24,
	and the learned judge, in the following passages of his judgment (at pp. 300
	and 301 of the Report), then proceeded to give his reasons for answering
	the question referred in the negative:

p. 57, l. 8.		“It should be observed, in the first place, that in the economy	10
		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	20
		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,	30
		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.	40

		“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

11

Record.		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 deserves 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	10
		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.”	20

	9. It is submitted on behalf of the Attorney-General of Canada that
	the judgment of the Supreme Court of Canada is right and ought to be
	affirmed and that the appeal therefrom ought to be dismissed for the reasons
	stated in the Reasons for Judgment delivered by the Judges of the Supreme
	Court of Canada, and for the following, amongst other

REASONS.

	1. Because the relevant provisions of the British North America Act,
		1867, ought to be construed to-day according to the intent
		of the Parliament which passed the Act, i.e., by reference
		to the natural and ordinary meaning of the words used at	30
		the date when the statute was passed and so as to import all
		these implied exceptions which arise from a close consideration,
		not only of the object, the subject-matter, and all parts of the
		Act itself, but also of the then existing state of the law, in
		the light of which the Act must be read and interpreted.

	2. Because the terms in which the provisions of the British North
		America Act, 1867, relating to the constitution of the Senate
		are expressed—the constituent title “Senator,” a strictly
		masculine term and the masculine pronouns “he,”
		“him,” and “his” invariably employed throughout in	40
		reference to members of the Senate, the qualifications required
		of a Senator and the specified causes of his disqualification—in
		themselves all point to the soundness of the inference
		that men only were intended to be “qualified persons”

12

		eligible for appointment to the Senate within the meaning
		of sec. 24 of the said Act.

	3. Because the declared object of the British North America Act,
		1867, was to unite the several Provinces therein mentioned
		into one Dominion under the British Crown “with a Constitution
		similar in principle to that of the United Kingdom,”
		and there is no room for inference in the light of the then
		existing state of the common law of England and of the law
		and usages of the British Constitution, that the framers of
		that Act intended, without using language apt to express	10
		such an intention, to render women eligible to be summoned
		to the Upper Chamber of the Canadian Parliament, although
		excluded from the British.

	4. Because by the principles of the common law and settled and
		uniform constitutional practice and principle as well in the
		several provinces united by the British North America Act,
		1867, into the Dominion of Canada, as in England, women
		were under a legal incapacity to sit in Parliament, and if
		the framers of that Act had intended to remove that disability,
		as regards eligibility for appointment to the	20
		Senate of Canada, and effect a constitutional change so fundamental
		and momentous, they would have declared that
		intention in apt and explicit language and not by the
		furtive process of general words or of an indirect implication
		based upon an interpretation clause in a general Act like
		Lord Brougham’s Act, 13 Vict. (1850), c. 21, s. 4.

	5. Because the terms of the treaty of union between the several
		Provinces, embodied in the Quebec Resolutions, 1864, and
		given effect by the British North America Act, 1867, considered
		in the light of the form and character of the legislatures	30
		which had formerly been established in the Canadian
		Provinces, afford strong grounds for the inference that it
		was the intention of the framers of the British North America
		Act, 1867, to make the constitution of the Upper House of the
		Canadian Parliament (designated in those resolutions the
		Legislative Council) in principle the same as, though necessarily
		in detail not identical with, that of the Upper House,
		known as the Legislative Council, under the constitutions
		established by the Constitutional Act, 1791 (31 Geo. III. c. 31),
		for the Provinces of Upper and Lower Canada respectively,	40
		and later by the Act of Union, 1840 (3 & 4 Vict., c. 35), for
		the Province of Canada; and under those statutes it is past
		question that women were not eligible for appointment to
		the Upper House.

	6. Because if the meaning of the term “qualified persons” in
		section 24 of the British North America Act, 1867, be other-

13

		wise ambiguous or obscure, the fact that from 1867 to the
		present time qualified men only have been considered eligible
		for appointment to a place in the Senate of Canada—and
		that this interpretation of the enactment has until quite
		recently remained unchallenged—must be allowed full efficacy
		as unbroken and continuous usage showing that the contemporaneous
		interpretation of the enactment by persons
		of authority has been uniformly consistent with what is
		now claimed on behalf of the Attorney-General of Canada
		to be its true legal interpretation.	10

	7. Because the expression “qualified persons,” in said sec. 24 of
		the British North America Act, 1867, in its context and on
		its true construction, necessarily and properly implies qualified
		male persons only, and that being the intention expressed,
		the general interpretation clause that words importing the
		masculine gender shall include females “unless the contrary
		is expressly provided” (Lord Brougham’s Act, 13 Vict. (1850),
		c. 21, s. 4) or “unless the contrary intention appears” (The
		Interpretation Act, 1889, 52-53 Vict., c. 63, s. 1, ss. 1 (a)),
		does not apply and cannot be invoked to extend by implication	20
		the expression “qualified persons” to female persons.

LUCIEN CANNON.
E. LAFLEUR.
C. P. PLAXTON.

In the Privy Council.
‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒
		No. 121 of 1928.

ON APPEAL FROM THE SUPREME COURT OF CANADA.

‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒

	IN THE MATTER of a Reference as to the meaning of the word
		“Persons” in Section 24 of The British North America Act,
		1867.

‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒

Between

HENRIETTA MUIR EDWARDS, NELLIE L. McCLUNG,
	LOUISE C. McKINNEY, EMILY F. MURPHY and
	IRENE PARLBY	Appellants

and

THE ATTORNEY-GENERAL FOR THE DOMINION
	OF CANADA, THE ATTORNEY-GENERAL
	FOR THE PROVINCE OF QUEBEC and THE
	ATTORNEY-GENERAL FOR THE PROVINCE
	OF ALBERTA	Respondents.


=============================
CASE OF THE ATTORNEY-GENERAL OF CANADA.
=============================

CHARLES RUSSELL & Co.,
               37, Norfolk Street,
                              Strand, W.C.2.
Solicitors for the Attorney-General of Canada.
‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒
EYRE AND SPOTTISWOODE, LTD., EAST HARDING STREET, E.C. 4.

Transcriber’s Notes

This is a legal document and has been treated as such. Every attempt has been made to recreate the structure of the original document. The individual lines of the text and the corresponding line numbers on the right have been retained. In some circumstances individual lines may not fit on the screen and may be wrapped to a new line. Most sidenotes are page references in the Record of Proceedings or the Joint Appendix. These references are given on the left in positions as close to the original as possible. All of the documents in this set were derived from images provided at http://www.bailii.org/uk/cases/UKPC/1929/1929_86.html

All original spelling and punctuation has been retained, with the exception of the following changes:

EMILY P. MURPHY → EMILY F. MURPHY p. 1, l. 10
Colerdige → Coleridge p. 2, l. 41
consitutional → constitutional p. 4, l. 45; p. 5, l. 37
Paliament → Parliament p. 5, l. 8
may → my p. 6, l. 37
no → not p. 7, l. 14

[The end of Case of the Attorney-General of Canada re Privy Council Appeal No. 121 of 1928 [Item 3 of 7], by The Lords of the Judicial Committee of the Privy Council]