Playing the Indian Card

Sunday, September 26, 2004

The Persons Case

Contrary to the popular belief throughout Canada, women did not become “persons” in law only in 1929. (See for the standard account). Indeed, the claim that “women were not persons under the law!” was just as obviously shocking a statement then as it is now, which is just why the self-named “Famous Five” made the claim. Good propaganda, good spin, good PR. That does not make it true.

The actual question put before the Privy Council, by a government clearly sympathetic with the women—Emily Murphy fully expected it to appoint her to the Senate on a positive judgement--was “Does the word ‘Persons’ in section 24 of the British North America Act, 1867 include female persons?"

Note the question itself really presupposes that woman are persons in law, and asks only if there is some reason to believe differently in this one particular statute.

But this was already spin. What the BNA Act actually said was: “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.”

Note that modifier: not “persons,” but “qualified persons.” This was the real issue, as noted by Lord Esher:

“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. Andrews21)…. Hence the propriety of the restriction placed upon it by the immediately preceding word ‘ualified’in ss. 24 and 26 and the words ‘fit and qualified’ in s. 32…”

It therefore seems deceitful to claim that the law of Canada did not recognize women as “persons” before this decision. Indeed, the BNA Act itself clearly means to include women in other sections of the same act: “(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.”

The real question was therefore not the meaning of “persons,” which was not in dispute, but of “qualified.” Whether among the other listed qualifications for being appointed senator was an implicit or common law qualification that one must be male. To suppose there might be implicit, common law qualifications is not strange: the BNA Act does not specify that lunatics cannot be appointed to the Senate, for example, but it is understood common law (or common sense) that they cannot. And there was indeed a common law tradition that women could not or did not serve in Parliament.

Moreover, the reason the Canadian Supreme Court gave for the exclusion of women from the Senate was not that they were in any way lesser than men; rather, it interpreted public life as a burden from which they were exempt as a privilege, as they were exempt, for example, from military service. “…Chiefly out of respect to women, … they have been excused from taking any share in this department of public affairs.” “…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.”

According to the legal reasoning, men were persons in matters of pains and penalties, but women were persons only in matters of rights and privileges.

Let me just quote that phrase again from Lord Esher: ““There can be no doubt that the word "persons" when standing alone prima facie includes women…”

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