Legal History in Southwestern Ontario

This past week I took a trip up to Southampton, Ontario on mighty Lake Huron. Up and back, we passed through many small towns – many of which undoubtedly look similar to how they did a century ago, except for the striking cenotaphs raised to memorialize the young men sent abroad during the great wars of the 20^th century. With that in mind, I begin today's blog entry with two such cenotaphs, one in Chesley and the other in Harriston.

(The cenotaphs of Chesley [upper] and Harriston [lower])

The trip had much to see with regard to Canadian legal history as well. My first stop in Chatsworth, now a small bedroom community for Owen Sound, was the birthplace of Nellie McClung, an MLA for Alberta and a famous women’s rights activist. In the late 20s, McClung became part of the ‘Famous Five’ who launched Edwards v Canada (Attorney General) [1928] SCR 276 and [1931] AC 124 better known as the 'Persons Case'.

(Chatsworth, Ontario)

It all started in 1916 when women were asked to leave a prostitution trial. Incensed by this, jurist Emily Murphy asked that the Alberta Attorney-General for a court for women by women and the Attorney-General agreed. This was then challenged by a lawyer who claimed that women were not qualified persons according to the British North America Act, 1867 and the case went to the Alberta Court of Appeal whose judgment held women were indeed qualified persons. Murphy wanted to take this national and submitted her name to be named a Senator in the Parliament of Canada. When this was rejected by Prime Minister Robert Borden, Murphy and her fellow appellants, Henrietta Muir Edwards (Vice-President for the province of Alberta of the National Council of Women for Canada); Nellie L. McClung, Louise C. McKinney and Irene Parlby (all of whom were members of the Alberta Legislative Assembly) petitioned the Governor-General to submit the question to the Supreme Court of Canada. This was done with Edwards v Canada (Attorney-General) [1927] SCR 276 in which the Supreme Court held women were not ‘qualified persons’ for the Senate. This was subsequently appealed to the Privy Council in London (as the Supreme Court of Canada was not yet the court of last resort for Canada) where the judgment was reversed in Edwards v Canada [1931] AC 124. Here the Lords concluded that the word 'persons' in s.24 BNA Act includes both men and women.

Besides the obvious point of holding women as qualified persons, Edwards is also remembered for Lord Sankey’s Living Tree Doctrine which held the constitution was like a 'Living Tree’ and that constitutional interpretation is organic and should be read in a broad and liberal fashion so as to change with the times. This would significantly impact later Canadian constitutional and administrative law.

The second site I stopped was the birthplace of Canada’s 13^th Prime Minister, John George Diefenbaker in Neustadt, Ontario. Diefenbaker, the son of a school teacher and the descendant of German immigrants, moved to the Northwest Territories (Saskatchewan) in 1903 where he was later educated at the University of Saskatchewan. He was called to the bar in 1919 after a short time in Europe, and started work as a small town lawyer. Elected to the Canadian parliament in 1940, Diefenbaker would become leader of the Opposition in 1957 and later that year Prime Minister of a minority government. After three decades of Liberal governance there was little front bench strength for the Tories, but this did not stop a massive Diefenbaker majority in 1958. His government would be moved back to minority status in 1962 and was eventually sent across the aisle in 1963.

(The Diefenbaker home)

In 1960 the Parliament of Canada passed the Canadian Bill of Rights. Bills of rights are a longstanding tradition in the Anglo-American legal world, going back to Magna Carta and Diefenbaker, having been influenced by the Saskatchewan Bill of Rights and numerous cases regarding government power, sought to give Canada one of its own. This Bill of Rights was not entrenched however, and as the product of a supreme parliament could be changed at any time. This is one of the reasons why many in the legal community see it as a failure, while supporters of a supreme (sovereign) parliament see it as a true inheritance of Canada's parliamentary tradition. But that is a subject for another day.

So with that, I concluded my little trip of parts of south western Ontario. It was a great little summer adventure and brought us a little closer to Canada’s rich legal history. We hope you enjoyed the trip!

(Lake Huron)