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Mon Apr 9, 2012, 07:08 PM


a little thread about the history of Canadian feminism ...

... and about moi.

I posted this some time ago in the Canada forum at old DU, where nobody here is likely to have seen it, and I thought it might fit here nicely, so I'm just going to copy and paste.

The background is that this is about the Persons Case -- the ruling that held that women in Canada were "persons" within the meaning of the 1867 Constitution for the purpose of appointment to the Senate. (Women already had the vote and could get elected to office, of course, there was just something about the historical meaning of "persons" that precluded them from appointment to the Senate.)

The case went to the Supreme Court of Canada, which ruled against the five women who had brought the action. At that time, it was possible to appeal from the SCC to the Judicial Committee of the Privy Council in Britain, which had been the final arbiter of legal matters in the British colonies (and this appeal route was abolished shortly afterward). The ruling of the Judicial Committee in Edwards v. A.G. Canada is referred to as the Persons Case, and the women involved as the Famous Five.


Fri Jun-29-07 04:54 PM

So this is my thread. It's about me.

Hey, if I knew how, I'd make it a poll.

No, actually, it's about Canadian constitutional history. And me.

Anybody here know Viscount Sankey? Well, be not embarrassed. *I* was, that I didn't recognize the name when I was sent an email about him this week. I should know these things; it's actually kinda my job. I'm enormously embarrassed. And not just because ... but wait, more on that after.

The email I was sent explained how Viscount Sankey was the one who wrote the line about "The Golden Thread that runs through English law" that Rumpole was so fond of quoting at the Bailey -- about the presumption of innocence and the burden of proof and all that.

In articulating the ruling, Viscount Sankey made his famous "Golden thread" speech:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused.

But after getting the email, I googled a bit more, and smacked my forehead and hung my head in shame at my negligent memory.

Several of his judgments in the House of Lords have landmark statements of law. Of particular note are his statements in Edwards v. Canada (Attorney General) in which a case was held about women being allowed in the senate. In the end, women were allowed being senators.

He wrote the decision in the Persons Case -- the Famous Five and all that.

And not only that -- I just don't seem to have realized the extent to which our whole Canadian universe revolves around that case, completely apart from the question of women's equality itself (I hadn't realized that case was the source of the "living tree" doctrine):

Edwards v. Canada (Attorney General) <1930> A.C. 124 – also known as the Persons Case – is a famous Canadian/British constitutional case where it was first decided that women were eligible to sit in the Senate. The case, put forward by the Famous Five, went all the way to the Privy Council and was a landmark case in many respects.

Opinion of the Judicial Committee of the Privy Council

Viscount Sankey, writing for the committee, found that the meaning of "qualified persons" could be read broadly to include women, reversing the decision of the Supreme Court. The landmark ruling was handed down on October 29, 1929.

Living tree doctrine

To arrive that his conclusion, Sankey proposed an entirely new approach to constitutional interpretation that has since become one of the core principles of constitutional law in Canada.

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.

Their Lordships do not conceive it to be the duty of this Board -- it is certainly not their desire -- to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs.

From this the approach became known as the living tree doctrine which requires "large and liberal" interpretation.

Viscount Sankey invented the "living tree", along with the large-and-liberal approach to constitutional interpretation. (All of which I work with daily ...)

And this is why we have, oh, same-sex marriage and minority language rights.

In Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to the changing times.

This is known as the Doctrine of Progressive Interpretation. This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes. If constitutional interpretation adheres to the Framer's Intent and remains rooted in the past, the Constitution would not be reflective of society and eventually fall into disuse.

The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. (from the same-sex marriage reference)

Of course, the right wing in the US hates us for our living tree:

It's almost impossible to read much commentary about the role of the courts without stumbling across arguments for more judge-made law, often couched in fancy rhetoric about "a living Constitution" or the alleged need to read the Constitution "in light of societal needs and evolving legal policy." (U.S. liberals aren't unique: In approving gay marriage, Canada's Supreme Court said, "Our Constitution is a living tree, which, by way of progressive interpretation, accommodates and addresses the realities of modern life."

So ... talk about yer civics lessons, eh?

But no; remember, this thread is about me.

I am the great-great-great-great-great granddaughter of Viscount Sankey's great-grandparents. My greatx4 grandmother and his grandfather were brother and sister.

So he is my second cousin four times removed. (I think.) Different generation, same set of ancestors.

Oh, he was a Labour peer (not hereditary) -- also served as Lord Chancellor under the Labour government 1929-35. And was apparently regarded as a class traitor in some quarters.

Now just exactly how cool is that??

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Reply a little thread about the history of Canadian feminism ... (Original post)
iverglas Apr 2012 OP
snagglepuss Apr 2012 #1
iverglas Apr 2012 #2
boston bean Apr 2012 #3

Response to iverglas (Original post)

Mon Apr 9, 2012, 08:12 PM

1. Very cool indeed. I've never heard about the viscount which is a shame given

the contributions he made. Absolutely fascinating how he interpreted the BNA Act. You have every right to feel proud.

Thanks for posting.

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Response to iverglas (Original post)

Mon Apr 9, 2012, 08:17 PM

2. just read seabeyond's thread about 50 women who changed the world




One of the Famous Five is included in the list:

22. Emily Murphy 1868-1933

Emily Murphy was the first women magistrate in the British Empire. In 1927 she joined forces with 4 other Canadian women who sought to challenge an old Canadian law that said, “women should not be counted as persons”

Too bad they got that so wrong (and it's now been spread all over the danged internet). I think whoever wrote that was thinking of this bit of the US Constitution about counting persons:

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.

The 1867 British North America Act, now the Constitution Act, 1867, actually said:

23. The Qualifications of a Senator shall be 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.

It was practice and then judicial interpretation (eventually overturned) that kept women out of the Senate. There was no law that said women should not be counted as persons.


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Response to iverglas (Original post)

Tue Apr 10, 2012, 08:01 AM

3. That is really cool!

Thanks for the history lesson. I like Viscount. I prefer a living breathing constitution, too!

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