The Persons Case: The Day the Supreme Court found women to be unqualified for public duties
Nearly 93 years ago, the Supreme Court of Canada deemed that women were “unqualified persons” to be admitted to the Senate of Canada because the “female sex was found to be too honorable and privileged to have to concern itself with public affairs”.
An ironic and unfortunate statement in many ways especially given the fact that women had the right to vote and run for elections since 1918. In Edwards v. The Attorney-General of Canada (1928). The five justices on the court were asked by the Governor General, through a petition by five Albertan women, whether women could be appointed as senators. Unanimously, the court answered the question in the negative.
For the first time, the Supreme Court was mocked, ridiculed and the justices themselves were caricatured. One might ask, what led the justices to produce a ruling which violated fundamental justice? The answer is found in the tendentious use of irrelevant and obsolete commentary. The justices cited cases and books from the Roman times and from the 19th century which stipulated that “women were not to participate in public affairs because it would be dishonorable and undignified if they did participate”.
One asks, how did women gain admission to the Senate? The answer lies with Lord Sankey, the Lord Chancellor of England. Until 1949, the Supreme Court of Canada was in fact not quite “supreme”. If one was disheartened by a decision delivered by the court, one could appeal the decision to the Judicial Committee of the Privy Council in London. The Judicial Committee was the court of highest resort for all countries in the British Empire. In 1929, the Judicial Committee offered the most scathing and clear rebuke of the Supreme Court one could possibly imagine. In delivering the committee’s ruling, Lord Sankey, stated, “The exclusion of women from all public offices is a relic of days more barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which in later years were not necessary”.
Lord Sankey’s ruling established the fact that women were and are “qualified persons” who are just as eligible as men to be appointed to the Senate of Canada. Lord Sankey’s ruling serves a reminder of the recency of the process whereby women began obtaining rights which in many ways has not reached its final stage. The ruling reinforces the importance of the law and of having recourse to the law as to remedy infelicitous decisions.
As the anniversary of Lord Sankey’s decision, the 14 of March, approaches, one should reflect on the difficulties many subjugated individuals had and still have to overcome. While Lord Sankey and the other justices of the Judicial Committee saved the day, it is almost impossible not to think of what would have happened if the Supreme Court’s decision stood. The thought of such a thing is discouraging, however one points to the fact that the Supreme Court, has had for many years, three to four women sitting on the bench. One also thinks of the numerous cases which have continued to recognize the rights of oppressed peoples. One thinks of the Canadian Charter of Rights and Freedoms.
In the end, a learned judge’s importance is crucial, using both case and statute law open-mindedly is paramount for delivering an informed decision and above all understanding another person’s humanity is indispensable if justice is to be done. Judges should be open-minded and should only form a judgement after having consulted precedent and statutes extensively. For the five justices, their use of Roman texts, of medieval commentaries and of Canon Law indicates that they had a predisposed proclivity in ruling against admitting women to the Senate of Canada.
It is clear, Lord Sankey would agree, that excluding others from public functions and refusing to recognize their rights is barbaric and inhumane.
“One should reflect on the difficulties many subjugated individuals had and still have to overcome.”
By Mario Michas
