|A day to remember 'the famous
David Asper, National Post
Published: Wednesday, October 18, 2006
In case it's not in your calendar, today is Persons Day in Canada. It recognizes the court decision on Oct. 18, 1929, finding that women were to be considered "persons" for all purposes under the British North America Act.
Many Canadians are skeptical about the significance of the many official "days" sprinkled throughout the year, but this one has great importance. Moreover, the Persons Case itself presents a good case study in social justice, one on which critics of so-called "judicial activism" should reflect.
Soon after the end of the First World War, an Alberta magistrate named Emily Murphy took offence at the notion that women were not recognized as "qualified persons" for appointment to the Senate, in the interpretation of the BNA Act (now known as the Constitution Act, 1867). She co-opted four other women's rights activists, including Nellie McClung, to help her work for her own appointment as a Senator.
Caught up in the political turmoil and the instability of coalition governments in the 1920s, Murphy mustered a modicum of popular support, but met with stiff resistance in Ottawa. She beseeched three different prime ministers to consider her appointment. Each gave her lip service, but whenever Senate vacancies came up, a male party loyalist was appointed.
The prevailing view in Ottawa was that since the drafters of the BNA Act had not thought of including women in the definition of "qualified persons" (in accordance with the practice in most areas of society at the time), it would take a constitutional amendment to change the original intention of the law. Others took the view that the prime minister could appoint a woman; if the Senate then disagreed, then its Privileges Committee could take a challenge to Westminster.
One Member of Parliament noted that it was utterly incongruous to recognize that women were persons for the purposes of elections to the House of Commons, yet deny them the right to be appointed to the Senate.
With no political resolution on the horizon, Murphy and her four colleagues, who are now known as "the famous five," petitioned the Supreme Court of Canada for a hearing on the matter. They were out of luck. In a unanimous decision, Canada's top court adopted the very restrictive interpretation of the words "qualified persons." It held that since in 1867 women did not vote and could not run for office, and since the BNA Act did not mention gender except in using the word "man," the intention of the drafters of the Act was clear. Moreover, the Supreme Court noted that the House of Lords in Britain had no women members either.
Dissatisfied with that result, the five asked for and received the consent of Prime Minister Mackenzie King to appeal the matter to the Judicial Committee of the Privy Council in Britain -- our final court of appeal at the time.
In a judgment delivered on Oct. 18, 1929, Lord Sankey, speaking for a unanimous court, not only opened the doors of the Senate to women, but also articulated principles of constitutional interpretation that are as important today as they were then.
Sankey rejected the notion that the BNA Act was a document locked in time. He and his colleagues held that the constitution is a "living tree" that must be applied in a way that is contemporary; its meaning does not depend on the way things were in 1867. In so doing, these law lords established the idea that constitutional law can and should evolve alongside society at large. And on that basis, they read into the BNA Act the meaning that women were persons qualified for appointment to the Senate.
In other words, the meaning of "qualified persons" in 1929 was different from what it was in 1867, and the constitution should be applied to reflect that fact. No constitutional amendment was necessary.
Without such judicial activism, one can only wonder how long it would have taken to remedy this aspect of the discrimination against women in Canada. The law lords' reasoning drew cries of derision from those who called for a narrow interpretation of the BNA Act and a more passive role for the courts.
Judicial activism is part of the great history and tradition of Canada, and it has provided much justice to our citizens. We may not always agree with our judges' decisions, but on Persons Day we should at least acknowledge that many of the rights we enjoy today exist because five determined women convinced five lords in England to fix a problem in the law. And the judges had the nerve to do it.
Sadly, Emily Murphy never got her Senate seat. Having blazed the trail along with her colleagues, Murphy, a Conservative, was overlooked by Mackenzie King. Canada's first female Senator, Cairine Wilson, was a long-time Liberal party loyalist, appointed in February, 1930.
For more information on this subject, the National Library and Archives Web site (www.collectionscanada.ca) has posted many of the original documents and letters relating to the Persons case. Also, next year the Osgoode Society for Canadian Legal History will be publishing an extensive treatment of the case in a book written by Robert Sharpe and Patricia McMahon.
- David Asper is Chairman of the National Post and a graduate student
at the University of Toronto Faculty of Law.
Persons Case not judicial activism
Re: A Day To Remember 'The Famous Five,' David Asper, Oct. 18.
The 1929 Persons Case was nothing like modern "judicial activism," however progressive its outcome.
The Privy Council took the undefined "persons" reference and applied its meaning in everyday English speech, creating a precedent. It did not overturn a law that explicitly named "men" based on the judges' ideal of progress, and did not restructure the statutory role of the "person." The constitution's drafters had not deemed it necessary to define the legalism "person," masculine supremacy then being an entrenched assumption, leaving the decision open to later courts, using standard common law jurisprudence, to fill in gaps and answer questions as they arise.
Arguably, the 1928 Supreme Court of Canada engaged in judicial activism by actively defining "persons" as "men." Although more explicitly sexist voting and property laws could have prevented it in practice, any government after 1867 that really wanted a female senator could have chosen to understand "person" in plain English, as encompassing both sexes. The 1928 ruling would have judicially barred that move for the first time. Nor was it "original intent" thinking, which fills in gaps by reference to legislative history and period commentary. It was a clumsy attempt to assault a piece of plain language with social science logic.
It is there we find the ancestor of today's judicial activism, challenging the definition of institutions laid out in statute, on the basis of no right described in the constitution ("privacy" or "marriage"), "reading in" ideas that aren't there, while ignoring extra-constitutional rights genuinely rooted in the common law.
Famous Five trailblazers
Mr. Asper refers to the judgment of the Privy Council in Edwards vs. Canada, 1930 A.C. 124, delivered by Lord Sankey, L.C. In that decision, the P.C. held that women could be summoned by the Governor-General-in-Council to serve as senators under section 24 of the BNA Act, 1867. Mr. Asper celebrates this decision as an example of "judicial activism," which he says "is part of the great tradition of Canada, and it has provided much justice to our citizens."
"Judicial activism" is usually regarded as the opposite of judicial conservatism, which is to say that activist judges do not feel obliged to simply interpret the law as enacted by the people's representatives, but to expand the provisions of legislation in order to implement judge-made policies that, arguably, the legislators had no intention of implementing.
I have been collecting materials for quite a long time in the hope of writing a book on the Rule of Law. That ubiquitous phrase is unfortunately of uncertain meaning, but I hope it means that our laws are to be enacted by our elected representatives and not by members of the unelected judiciary. I have concluded that the supporters of "judicial activism" are those and only those who like the results of such activism. I have not come across any written evidence of that proposition until today.
I now have an authority to cite in my book in support of the proposition and for that I am extremely grateful to Mr. Asper. I look forward to hearing or reading the arguments, if any, in favour of judicial activism in principle by those who are not in agreement with the result of its exercise.
Burton H. Kellock, Q.C.,
Famous Five trailblazers
David Asper's endorsement of judicial activism is reminiscent of "Mussolini made the trains run on time." The re-interpretation of our constitution by unelected and non-Canadian judges to allow all men and women wealthy enough to meet the property qualification to be appointed to an unelected legislative chamber (the Senate) is somehow seen as a great triumph of human rights.
Americans have Martin Luther King Day. We have Persons Day.