Edwards v Canada (Attorney General)

The Famous Five — Emily Murphy, Henrietta Muir Edwards, Nellie McClung, Louise McKinney, and Irene Parlby — referred to the SCC the question whether the word "persons" in s.24 of the British North America Act 1867 included women. The SCC said no. The Privy Council reversed and articulated the living-tree doctrine.

Section 24 of the BNA Act provided for the appointment of "qualified persons" to the Senate. The federal government had refused to appoint Emily Murphy. The Famous Five sought a declaration that women were eligible.

Does the word "persons" in s.24 include women?

Yes. The exclusion of women from public office is a relic of a more barbarous age. The Constitution must grow with the country.

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. Its provisions are not to be cut down by a narrow and technical construction. Statutes are read in their full context, against changing social conditions.

Viscount Sankey LC traced the historical exclusion of women from public office to ancient and unjust customs. Constitutional language is to be interpreted in light of contemporary social context. The narrow common-law meaning of "persons" should not be imported uncritically into constitutional interpretation.

The foundation of the living-tree doctrine of constitutional interpretation. Cited in nearly every modern Charter case on interpretive method. Practical effect: women became eligible for the Senate. The Famous Five are commemorated on Parliament Hill.

Edwards v Canada (AG), [1930] AC 124 (JCPC).

Viscount Sankey LC, Lord Darling, Lord Tomlin, Lord Merrivale, Sir Lancelot Sanderson