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The Honourable Gérald-A. Beaudoin, Senator

October 17, 2000

As Mr. Justice Louis-Philippe Pigeon remarked in his writings before his accession to the Supreme Court of Canada, the interpretation of a constitution is just as important as its drafting. How right he was!

In 1928, the Supreme Court of Canada decided women were not "persons" who could hold public office as Canadian Senators.The terms of the Constitution Act, 1867, and the common law disability of women to hold public office barred the suit of Henrietta Muir Edwards and her colleagues.

In 1929, the Judicial Committee of the Privy Council reversed the decision and stated that "The exclusion of women from all public offices is a relic of days more barbarous than ours."

After examining the constitutional state of the law and analysing the various parts of the Constitution Act, 1867, the Privy Council concluded the following:

    "A heavy burden lies on an appellant who seeks to set aside a unanimous judgment of the Supreme Court, and this Board will only set aside such a decision after convincing argument and anxious consideration, but having regard: (1.) To the object of the Act  --  namely, to provide a constitution for Canada, a responsible and developing State; (2.) that the word "person" is ambiguous, and may include members of either sex; (3.) that there are sections in the Act above referred to which show that in some cases the word "person" must include females; (4.) that in some sections the words "male persons" are expressly used when it is desired to confine the matter in issue to males; and (5.) to the provisions of the Interpretation Act; their Lordships have come to the conclusion that the word "persons" in s. 24 includes members both of the male and female sex, and that, therefore, the question propounded by the Governor General should be answered in the affirmative, and that women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly."
The Judicial Committee of the Privy Council reached this decision by interpreting the Constitution Act, 1867, in a broad and generous manner as is shown in the following excerpt that has since been widely used by jurists:
    "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits."
As such, the Constitution Act, 1867, can no longer be interpreted as a simple statute. More than one judgement from the Judicial Committee of the Privy Council made it clear that such could not be the case. In the Henrietta Muir Edwards case, Lord Sankey declared that the goal of the Constitution Act, 1867, was to give Canada a constitution. Citing Sir Robert Borden, he added that, like all written constitutions, this constitution would evolve through its usage and convention. The learned Lord concluded that it was neither the duty nor the desire of the Privy Council to provide a strict interpretation of this Act. Its duty was to provide this Act with a generous interpretation.

Our 20th century has seen the rise of equality between men and women in the professions, the right to vote and work relations, among other things. We experienced a great public debate.

These efforts culminated with section 28 of the Canadian Charter of Rights and Freedoms.

That section reads as follows:

    28.Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
We can already affirm that the rights and freedoms granted to male persons must be granted to female persons.

I know that equality between men and women in everyday lifeis not always a given in practice. We must redouble our efforts so that real equality between men and women can become an everyday reality.

Canada is probably the democracy in which equality between the sexes is the most clearly expressed in the fundamental law of the country. Section 28 of the Charter, 1982, which is at the heart of the Constitution, is the envy of many democracies. Our neighbours to the south have not yet succeeded in writing this equality into their Constitution; the number of states that voted in favour of doing so was not sufficient to meet the requirements of the amending formula of the United States Constitution.

The 1929 decision made history, not only because it established the equality of men and women to be appointed to the Senate, but also because it has become the benchmark decision that states that the Constitution should not be interpreted in the same way as one would interpret a simple statute, but in a manner that will assist in the evolution of this fundamental document that dominates all others, and from which each act takes its constitutionality.

Our principles of law have evolved a great deal over the course of the 20th century. The Civil Code of Quebec has progressed considerably in the 20th century as well, and a profound reform was crowned by the advent of a new Civil Code of Quebec in January 1994.

The Muir Edwards decision was the starting point of an evolution of equality before the law, in accordance with the law and by the law.

The 20th century saw the advent of rights and liberties on a worldwide scale in 1948 with the Universal Declaration of Human Rights and, in the last few decades, in the charters of our democracies. It was about time. We live in the era of constitutional charters, and we are finally making great strides.

These many charters help compensate for the unprecedented violence of the two world wars of the 20th century.

Never in history has a century seen so much progress.

The Constitution is the law of the land. It is not a simple statute.It is the law that governs all the others. It is the supreme law of the land. A constitution shall be interpreted generously and in an evolutionary way.

The Muir Edwards case is historical because it defined the word "persons" in section 24 of the Constitution and also because it declared that the Constitution is not a simple statute.