Justice Duff: the right opinion misunderstood for 87 years?

The famous Sir Lyman Poore Duff, later Chief Justice of the Supreme Court of Canada, was one of the members present when the Supreme Court decided on the Persons Case of 1928. Justice Duff wrote his own opinion and did not join with either of the two majority opinions. His opinion is very interesting and — in my view — was immediately misunderstood. The misunderstanding had the result that the 1928 Persons Case judgment has been characterized as ‘unanimous’ down to today.

I freely admit that this claim is, on the face of it, far fetched. It strains probability to propose that Justice Duff was misunderstood by all his immediate colleagues, jurists who knew him and were at home with legal reasoning, and that I (who lack any legal training) have understood him better 87 years later. Let me at once qualify it and say that I don’t doubt that his colleagues on the court understood him at the time. But I know how to read, and the summaries of Duff’s opinion simply don’t do justice to what he said in that opinion. Here is how it was summarized in the Supreme Court’s report:

Per Duff J.—It seems to be a legitimate inference that the B.N.A. Act, in enacting the sections relating to the “Senate,” contemplated a second Chamber, the constitution of which should, in all respects, be fixed and determined by the Act itself, a constitution which was to be in principle the same, though, necessarily, in detail, not identical, with that of the Legislative Councils established by the earlier statutes of 1791 and 1840; and, under those statutes, it is hardly susceptible of dispute that women were not eligible for appointment.

And here is the Privy Council’s 1929 summary:

Mr. Justice Duff ... came to the conclusion that women are not eligible for appointment to the Senate upon the narrower ground that upon a close examination of the British North America Act of 1867 the word “persons” in sec. 24 is restricted to members of the male sex. The result therefore of the decision was that the Supreme Court was unanimously of opinion that the word “persons” did not include female persons, and that women are not eligible to be summoned to the Senate.

Isn’t it interesting that these two summaries say different things? They both say that Duff thought the BNA Act excluded women from eligibility for the Senate. But they give different grounds for the exclusion: in 1928 they say it is because the Senate was constituted on the same lines as the earlier Legislative Councils; in 1928 they say simply that sec. 24 confines ‘persons’ to the male sex. Perhaps a hint that this is a difficult opinion.

And indeed it is a difficult opinion. It shows nuanced, careful thought, and the structure requires patience. In fact it is not easy to summarize. Justice Duff first considers the different arguments and issues at hand in the case, and lays out several different possible interpretations of the BNA Act. This is a very interesting section:

In order to test the contention ... that women are excluded from participating in working the Senate or any of the other institutions set up by the Act, one is bound to consider the Act as a whole, in its bearing on this subject of the exclusion of women from public office and place. Obviously, there are three general lines or policy which the authors of the statute might have pursued in relation to that subject.

First, they might by a constitutional rule embodied in the statute, have perpetuated the legal rule affecting women with a personal incapacity for undertaking public duties, thus placing this subject among the limited number of subjects that are withdrawn from the authority of Parliament and the legislatures.

Second, they might, by a constitutional rule, in the opposite sense, embodied in the Act, have made women eligible for all public places or offices, or any of them, and thus, or to that extent, also, have withdrawn the subject from the legislative jurisdiction created by the act.

They might, on the other hand, with respect to all public employments, or with respect to one or more of them, have recognized the existence of the legal incapacity, but left it to Parliament and the legislatures to remove that incapacity, or to perpetuate it as they might see fit. For example, they might have restricted the Governor in Council, in summoning persons to the Senate under section 24, by requiring him to address his summons to persons only who are under no such legal incapacity, which would have made women ineligible, but only so long as such incapacity remained, and at the same time have left it within the power of the Parliament to obliterate the cause of the disability. The generality of the word “persons” in section 24 is, in point of law, susceptible of any qualification necessary to bring it into harmony with any of those three possible modes of treating the subject.

He then states that he is “unable to accept the argument [of the Chief Justice] in support of the limited construction, in so far as it rests upon ... a general presumption against the eligibility of women for public office.” He does not accept it because he thinks it self-evident that Parliament has the authority to deal with the incapacity of women for public office by means of legislation. For example in the case of the House of Commons, although women were ineligible in 1867, Parliament has since that time enacted that women can become Members of Parliament, and no claim has been pressed that in doing this Parliament overstepped its authority. No one is prepared to argue that the Constitution established a restrictive principle denying women eligibility for public office, which could only be modified by amending the Constitution — in fact, this eligibility can be modified by normal legislative authority.

Nevertheless he gives two special reasons favouring the restriction of ‘persons’ in sec. 24 to males. These are the reasons cited in the summaries above. The Senate was evidently established along the lines of the older Legislative Councils, for which women were not eligible for appointment. And moreover, the language of section 23 (subsec. 3) “points to the exclusion of married women [because a married woman could not own property in her own name] ... and the provisions dealing with the Senate are not easily susceptible of a construction proceeding upon a distinction between married and unmarried women in respect of eligibility.” It is on these grounds that Justice Duff contends sec. 24 restricts eligibility to males.

However. There is a big however. Justice Duff concludes by moderating the weight and force of the Supreme Court’s opinion on this question. According to the BNA Act:

The Senate possesses sole and exclusive jurisdiction to pass upon the claims of any person to sit and vote as a member thereof, except in so far as that jurisdiction is affected by statute. That, I think, is clearly the result of sec. 33, combined with the Imperial Act of 1875, and the subsequent Canadian legislation. And the jurisdiction of the Senate ... extends, I think, also to the question whether a person summoned is a person capable of being summoned under sec. 24. In other words, ... if the Governor General were professing, under that section, to summon a woman to the Senate, the question whether the instrument was a valid instrument would fall within the scope of that jurisdiction.

I do not think it can be assumed that the Senate, by assenting to the Statute, authorizing the submission of questions to this Court for advisory opinions, can be deemed thereby to have consented to any curtailment of its exclusive jurisdiction in respect of such questions. And therefore I have had some doubt whether such a question as that now submitted falls within the Statute by which we are governed. It is true that an affirmative answer to the question might give rise to a conflict between our opinion and a decision of the Senate in exercise of its jurisdiction; but strictly that is a matter affecting the advisability of submitting such questions, and therefore within the province of the Governor in Council. ... We are asked for advice on the general question, and that, I think, we are bound to give. It has, of course, only the force of an advisory opinion.

If I am understanding him right, all this seems to say that it is really up to the Senate itself to settle any question of eligibility if and when a doubtful case should arise. The Justices have been asked for their opinion, and so he is bound to give it — and his own opinion is that the BNA Act restricts eligibility to men. But this is only an advisory opinion. The real test, and this is the only real legal test, would be for the Governor General to actually appoint a woman to the Senate. At that point, if her eligibility were questioned, it would be for the Senate to decide. “We must,” says Duff, “assume that the Senate would decide in accordance with the law.”

I happen to think Justice Duff’s opinion was the right one. My own judgment ought to have very little weight, of course, since I am not trained as a lawyer and have no acquaintance with constitutional questions. But his criticism of the majority opinion seems sound — the Constitution did not establish an explicit principle excluding women from public office, and therefore it does seem that this principle is subject to the modification of the legislature, and is not sufficient ground for a restrictive interpretation of sec. 24. Consider: let us say the Famous Five never appealed the 1928 decision to the Privy Council (or the Privy Council refused to hear it). Let us then say that Mackenzie King followed through on his promise to amend the BNA Act to permit women’s appointment to the Senate.

How would that amendment have been made? As a matter of text, I mean. Section 24 already reads ‘qualified persons.’ It does not say ‘males.’ The language already potentially includes females — it is impossible to improve upon its ambiguity. If the restriction to males rests upon the general ineligibility of women for public office, and that ineligibility has ceased to operate, then the language of sec. 24 is already prepared to include women.

On the other hand the Privy Council judgment does not do justice to the undoubted truth, that it was not the intention of the legislators in 1867 to include women as eligible for the Senate, and this intention is manifested in the text in sec. 23 subsection 3. The Privy Council also seem innocently unaware that they have been asked for an advisory opinion and nothing more.

Against all these, Justice Duff appears admirably careful and attentive to the text before him. If Duff’s opinion had carried the day then the matter for amendment would have been crystal clear: the problem would not be sec. 24, which is not exclusive of sex, but sec. 23 where the property requirement would exclude married women — but even here, by the Married Women’s Property Act, the legislature had changed the law such that married women could potentially meet the qualifications. 

And I like Duff’s opinion also for his admirable judicial self-restraint. He is not eager to pronounce his own view on the subject, but gives it unwillingly, or rather by compelled will — coactus volui as the Romans would say — and for the benefit of the interested parties he explicitly discounts the force of that opinion. He reminds the world that the question is not, finally, for the Supreme Court to decide, but for the Senate, and the only thing to do is wait until the Governor General appoints a woman. 

Again, if Duff had carried the day, the large-scale misunderstanding of the Persons Case would not have had as smooth a road. Because he made the advisory nature of the judgment more explicit, it would have been less possible to construe it as a great and significant legal victory.