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Title: Privy Council Appeal No. 121 of 1928 [Item 4 of 7]; Case of the Attorney-General of the Province of Quebec
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 #20250739

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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	10

	and

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

=============================
CASE OF THE RESPONDENT
THE ATTORNEY-GENERAL OF THE PROVINCE OF QUEBEC.
=============================

Record.
p. 60	1. This is an appeal by special leave granted on the 20th day of
	November 1928, from a judgment or opinion of the Supreme Court of		20
	Canada, dated the 24th day of April 1928, answering a question referred
	to the Court for hearing and consideration by the Governor-General of
	Canada in Council under the provisions of the Supreme Court Act.

	2. Section 24 of the British North America Act 1867, is as follows:—

		“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.”

2
Record.
	3. The question referred with the answer made by the Court is as
	follows:—

p. 38.		Question: Does the word “Persons” in Section 24 of The
		British North America Act 1867 include female persons?

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

	4. Other sections of The British North America Act 1867, which
	appear to be material to the question are set out in the Joint Appendix
	hereto at page 18.		10

	5. The question came before the Supreme Court for hearing on the
	14th day of March 1928, the Court being composed of The Right Honourable
p. 38.	F.A. Anglin, Chief Justice, The Right Honourable Mr. Justice Duff and
	Justices Mignault, Lamont and Smith, and the reference having stood over
	for consideration judgment was pronounced on the 24th day of April 1928.

	6. The judgment of the Court was unanimous, though for somewhat
p. 39.	different reasons as indicated in those delivered by the Chief Justice with
p. 50.	which Lamont and Smith, JJ., concurred and the separate reasons delivered
p. 59.	by Mr. Justice Duff and Mr. Justice Mignault.

	7. Section 33 is:—		20

		“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.”

p. 41, l. 38.	The Chief Justice in his reasons points out—

		That Section 33 only empowers the Senate to hear and determine
		any question respecting the qualification of a Senator after the person
		whose qualification is challenged has been appointed to the Senate.

p. 42, l. 5.		That while the question submitted deals with the word
		“Persons,” Section 24 of The British North America Act speaks
		only of “qualified persons.”	30

p. 42, l. 23.		That the provisions of The British North America Act bear
		to-day the same construction which the Courts would, if required
		to pass upon them, have given to them when they were first enacted.

3
Record.
	The Chief Justice refers to a number of cases decided by the Courts
	in England and notably those of—

		Chorlton v. Lings [1868] L.R. 4 C.P. 374, and

		Nairn v. University of St. Andrews [1909] A.C., 147.

p. 50, l. 7.	And he concludes: “In our opinion Chorlton v. Lings 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 . . .”		10

	Section 23—

		“23. The Qualifications 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,
		of 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;	20

		“(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 Franc-alleu 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	30
		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.”

4
Record.
p. 50, l. 21.	8. Mr. Justice Duff in his reasons for judgment maintains that the
	word “ ‘Persons’ in the ordinary sense of the word includes, of course,
	“natural persons of both sexes” and that the question is whether “we
	“are constrained in construing section 24 to read the word ‘persons’ in a
	restricted sense and to construe the section as authorising the summoning
	“of male persons only.”

p. 52, l. 33.	That he was 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 British North America
	Act, we must proceed upon a general presumption against the eligibility		10
	of women for public office.

p. 53, l. 7.	He had no doubt that The British North America Act did, in
	Sections 41 and 84, recognise the authority of Parliament 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.

p. 53, l. 42.	But that the legislative authority of Parliament on the subject
	of qualification of members and voters was given under the general language
	of Section 91.

	Sections 41 and 84 are:—

		“41. Until the Parliament of Canada otherwise provides, all	20
		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	30
		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.”

		“84. Until the Legislatures of Ontario and Quebec respectively
		otherwise provide, all Laws which at the Union are in force	40
		in those Provinces respectively, relative to the following Matters,

5
Record.
		or any of them, namely,—the Qualifications and Disqualifications
		of Persons to be elected or to sit or vote as Members of the Assembly
		of Canada, the Qualifications or Disqualifications of Voters, the
		Oaths to be taken by Voters, the Returning Officers, their Powers
		and Duties, the Proceedings at Elections, the Periods during which
		such Elections may be continued, and the Trial of controverted
		Elections and the Proceedings incident thereto, the vacating of the
		Seats of Members and the issuing and Execution of new Writs in
		case of Seats vacated otherwise than by Dissolution,—shall respectively
		apply to Elections of Members to serve in the respective	10
		Legislative Assemblies of Ontario and Quebec.

		“Provided that until the Legislature of Ontario otherwise
		provides, at any Election for a Member of the Legislative Assembly
		of Ontario 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.”

	The general powers of the Parliament under Section 91 are:—

		“91. It shall be lawful for the Queen, by and with the Advice
		and Consent of the Senate and House of Commons, to make Laws	20
		for the Peace, Order, and good Government of Canada, in relation
		to all Matters not coming within the Classes of Subjects by this
		Act assigned exclusively to the Legislatures of the Provinces;
		and for greater Certainty, but not so as to restrict the Generality
		of the foregoing Terms of this Section, it is hereby declared that
		(notwithstanding anything in this Act) the exclusive Legislative
		Authority of the Parliament of Canada extends to all Matters
		coming within the Classes of Subjects next hereinafter enumerated,
		that is to say,—
		* * * * * * ”

p. 55, l. 15.	That the word “persons” is employed in a number of sections of the		30
	Act (Sections 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.

p. 55, l. 24.	That the reasoning based on the extraneous circumstances—the
	disabilities of women under the common law, and the law and practice of
	Parliament in respect of appointment to public place or office—was incon-
	siderable 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 in the law and practice
	relating to the election branch might be progressively required by changes		40
	in public opinion.

6
Record.
p. 57, l. 12.	The learned judge was however of opinion that there was no such
	consideration in relation to the Senate 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, and that
	there was 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 (Appendix, p. 6), and 1810 (Appendix, p. 10) as
	amended by the Union Act Amendment Act, 17 and 18 Vic. c. 118,
	(Appendix, p. 16) to which he briefly refers.

p. 58, l. 20.	The learned judge was further of opinion that the Senate possesses		10
	sole and exclusive jurisdiction to pass upon the claims of any person to
	sit and vote as a member thereof, and such jurisdiction is not confined to
	the right to pass upon questions as to qualification under Section 33, but
	extends to the question whether a person summoned is a person capable
	of being summoned under Section 24.

p. 59.	9. Mignault, J., in a concise judgment, gives as his reasons for
	concurring with the answer of the Court:—

l. 5.		That “the expression ‘persons’ does not stand alone in
		section 24, nor is that section the only one to be considered . . .
l. 11.		It would be idle to enquire whether women are included within the	20
		meaning of an expression which, in the question as framed, is
		divorced from its context.”

l. 21.		That the question was concluded by decisions by which the
		Court was bound, notably that in Chorlton v. Lings [1868] L.R.
		4 C.P. 374.

l. 26.		That “the word ‘persons’ is obviously a word of uncertain
l. 29.		import” and that “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	30
		of the intention of the Imperial Parliament . . .”

	10. The Province of Quebec has a special interest in the question
	above that of any other of the Provinces since by Section 73 “the qualifications
	of the Legislative Councillors of Quebec shall be the same as those
	of the Senators for Quebec.”

	Section 73 reads:—

		“73. The Qualifications of the Legislative Councillors of
		Quebec shall be the same as those of the Senators for Quebec.”

7
Record.
	Though not referred to in the reasons of the Judges of the Supreme
	Court this section may well assist in determining the construction to be put
	on Section 24. Inasmuch as it is only “qualified persons” who can be
	summoned to the Senate it would follow, if women are qualified to be
	summoned to the Senate, they would also be qualified for appointment
	to the Legislative Council of Quebec by the Lieutenant-Governor of the
	Province under Sections 72 and 75.

	Sections 72 and 75 are:—

		“72. The Legislative Council of Quebec shall be composed
		of Twenty-four Members, to be appointed by the Lieutenant	10
		Governor, in the Queen’s Name, by Instrument under the Great
		Seal of Quebec, one being appointed to represent each of the Twenty-four
		Electoral Divisions of Lower Canada in this Act referred to,
		and each holding Office for the Term of his Life, unless the Legislature
		of Quebec otherwise provides under the Provisions of this Act.”

		“75. When a Vacancy happens in the Legislative Council of
		Quebec by Resignation, Death, or otherwise, the Lieutenant-Governor,
		in the Queen’s Name, by Instrument under the Great
		Seal of Quebec, shall appoint a fit and qualified Person to fill the
		Vacancy.”	20

	The judgments both of the Chief Justice and of Mr. Justice Duff direct
	particular attention to the fact that the office of Senator was a new office
	first created by The British North America Act, 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 in the
	statute which creates it.

	Notwithstanding this, Mr. Justice Duff considers that The British
	North America Act contemplated a second Chamber which was to be in
	principle the same, though not identical, with that of the second Chambers
	established by the earlier statutes providing the Constitution of the old		30
	Legislative Councils under the Acts of 1791, 31 George III, c. 31 (Appendix,
	p. 6) and 1840, 3 and 4 Vict., c. 35 (Appendix, p. 10).

	If this conclusion is correct it applies with still further force to the case
	of the Province of Quebec for though the second Chamber in the province,
	that is the Legislative Council of Quebec, was created by Section 71 of the
	British North America Act, yet it was not like the Senate an entirely novel
	office, but was in effect, a continuation of the Legislative Councils under
	the Acts of 1791 and 1840. Each of the 24 members to be appointed to the
	Legislative Council was to be appointed for one of the 24 electoral divisions
	of Lower Canada specified in Schedule A to Chapter I of the Consolidated		40
	Statutes of Canada.

8
Record.
	Even if it had been intended to make a new departure as regards the
	Senate, a body created by the Act for the first time, it might well have been
	that a different provision from Section 73 would have been made for the
	Legislative Council of the Province of Quebec.

	11. The Province of Quebec has the further interest which, indeed,
	it shares in common with the other Provinces that the Senate having been
	specially established for the safeguard of the rights of the Provinces, this
	Province is deeply concerned with any changes which might be made in the
	composition of that body.

	12. There are differences in the legal position of men and women other		10
	than those of the incapacity of women for appointment to public place or
	office. The common law of property is in many respects different as regards
	men and women.

	The Attorney-General of Quebec submits that the answer of the
	Supreme Court is right for the following, amongst other

REASONS.

	(1) Because the construction to be put on Section 24 of
		the Act must be governed by the intention of the
		Legislature in 1867, the time of the passing of the Act.

	(2) Because prior to that date women had ever been under		20
		a common law incapacity to perform the duties of public
		office or place and particularly were excluded from holding
		a place in Parliament or voting for the election of a
		member thereof.

	(3) Because Section 24 does not authorise the Governor-General
		to summon any persons to the Senate but only
		“qualified persons” and women were neither qualified
		by the common law or by the statutory provisions for
		the qualifications requisite for a Senator.

	(4) Because there is nothing in the Act which can suggest		30
		that the use of the word “persons” in providing for the
		Constitution could be held to include the appointment of
		women to either executive or legislative office.

	(5) Because the provisions of Section 73, providing that
		the qualifications of the Legislative Councillors of
		Quebec shall be the same as those of Senators for Quebec,
		would not be appropriate for the Legislative Council of
		Quebec if the Lieutenant-Governor could appoint women
		to the Legislative Council of the Province.

9

	(6) Because there are other differences in the legal position
		of men and women than the capacity for appointment
		to public place or office.

	(7) For the reasons appearing in the judgments of the Chief
		Justice concurred in by Lamont and Smith, JJ., and those
		of Duff and Mignault, JJ.

CHARLES LANCTOT.

AIME GEOFFRION.

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	10

	and

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

=============================
CASE OF THE RESPONDENT
The Attorney-General of the Province of Quebec.
=============================

BLAKE & REDDEN,

17 Victoria Street, S.W.1.

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 change:

Legislativ → Legislative p. 7, l. 39

[The end of Case of the Respondent the Attorney-General of the Province of Quebec re Privy Council Appeal No. 121 of 1928 [Item 4 of 7] by The Lords of the Judicial Committee of the Privy Council]