Alice Through the Statutes
Marguerite E. Ritchie, Q.C.*
“Definitions should not be too artificial.
For example –
‘dog’ includes a cat
is asking too much of the reader;
‘animal’ means a dog or a cat
would be better.”
Memorandum on the Drafting
of Acts of Parliament and
Subordinate Legislation (1951),
Department of Justice, Ottawa.]
These words were used more than twenty years ago by a Canadian
Government drafter of legislation. On the next page, the same author
adopted without criticism or comment, a number of provisions from
the federal Interpretation Act,2 including the following: “[W]ords
importing male persons include female persons and corporations.”3
Dogs and cats have not objected to the way they are defined, and
in fact have not taken any notice of the dictum with respect to them
But women, demanding to be treated as humans, have protested
constantly about the use of male terms to apply to both sexes. In
* B.A., LL.B.(Alta), LL.M.(McGill), LL.D.(Alta), presently Vice-Chairman,
Anti-dumping Tribunal, Ottawa.
The author expresses appreciation to Lesley Mary M. Forrester of Trent
University, Peterborough, for assistance in reviewing the statutes used in
preparation of this article.
1 At 10. The Memorandum notes that it was prepared by Elmer A. Driedger,
K.C., Parliamentary Counsel, Department of Justice. The Memorandum is
hereinafter referred to as the Justice Drafting Memorandum.
2 R.S.C. 1927, c.1 as am. by S.C. 1947, c.64.
3 Justice Drafting Memorandum, 11, quoting s.31(1)(i) of the Interpretation
Act, ibid. Mr Driedger’s comment on the same page that s2(3) makes de-
finitions subject to their context, deals with a variation of the problem and
will be discussed infra.
4There is no record of them having been consulted. Similarly, there is no
record of women having been consulted. When women have protested, their
protests have been ignored and majority votes have often concealed the fact
of their protest. A recent example is the Anti-dumping Tribunal Rules of
Procedure, made under authority of P.C. 1974-2232 of 8 Oct. 1974, SOR/74-581,
Canada Gazette, Part II, vol.108, no.20, 2738, .1974.
McGILL LAW JOURNAL
[Vol. 21
1970, the distinguished woman Senator from New Brunswick, the
Honourable Muriel McQueen Fergusson, pointed out to the Senate
repeated instances in which both the language used by Senators and
government officials, and the policies discussed, indicated that “the
existence of women seems to be overlooked”. The examples she cited
ranged from the use of the term “Gentlemen” to apply to Senators
of both sexes, to the government statement on Indian policy which
dealt with an “Indian” only as a man, and included speeches which
dealt with prisons and prisoners as if only men were involved.5
Other women have taken up the protest against legislation which
defines the male as including the female, thereby appearing to place
a lower value on the latter. On November 5, 1974, one of the present
women Members of Parliament, Mrs Simma Holt, expressly protested
the government practice of writing legislation by reference to the
male.0 The Minutes of the Parliamentary Committee at which her
protest was made, show immediate reactions by other Members, some
crying “Shame!” and others supporting Mrs Holt. At last the Minister
concerned, the Honourable Alistair Gillespie, called on the General
Solicitor for the Industrial Development Bank. The transcript reveals
the defence which was used for legislating as if only men were in-
volved:
Mr Gillespie:
I wonder if you will accept a legal opinion on this
point as to how well established the principle is that
I tried to enunciate in my own law language.
I know but it is obsolete today.
Mrs Holt:
Mr Gillespie: Mr Urquhart, will you come to a microphone, please?
Mr Urquhart: Section 26(6) of the Interpretation Act says:
Mrs Holt:
Words importing male persons include female persons and
corporations.
That is very simple. Could you tell me why we do not
change the Interpretation Act then?a
The matter did not end there. Mrs Holt prepared a proposal1 to
change the Interpretation Act.,a On June 10, 1975, when the Honour-
able Marc Lalonde, Minister of National Health and Welfare, pre-
5.Debates of the Senate, 1969-70 Sess., vol.2, 1178-1182.
6 Minutes of Proceedings and Evidence of the Standing Committee on
Finance, Trade and Economic Affairs, 1st Sess., 30th Parl., 1974, House of
Commons Issue No.7 (Nov. 5, 1974).
ea Ibid., 34.
7Minutes of Proceedings and Evidence of the Standing Committee on
Health, Welfare and Social Affairs, 1st Sess., 30th Panl., 1974-75, House of
Commons Issue No24 (Jun. 10, 1975), 17.
7a R.S.C. 1970, c.I-23.
19751
ALICE THROUGH THE STATUTES
sented the Commons Standing Committee on Hea th, Welfare and
Social Affairs with Bill C-16, entitled An Act to amend certain
statutes to provide equality of status thereunder for male and female
persons, the drafting was challenged again. The transcript quotes
Mrs Holt as criticizing the unnecessary use of male terms where
they could have been avoided, and proposing neutral terms. As
she put it:
I would say that in a bill that is partly entitled ”
… equality of status
thereunder for male and female persons”, the Interpretation Act should
not be, an excuse for having it written in language that is definitely
discriminatory.8
The end result was that the Minister of National Iealth and Welfare
refused such amendments and relied on the Department of Justice
as the department responsible for drafting federal legislationY
So the protests are growing. Protests against legislation which is
written as if only men exist. Protests against a way of thinking which
regards it as illogical to define “dog” as including “cat” -but logical
to define male humans as including female humans. For increasing
numbers of people, such a way of thinking and legislating is just as
strange as anything in Alice in Wonderland.1″
THE FEDERAL INTERPRETATION ACT
A REAL SOLUTION OR PART OF THE PROBLEM?
As we have seen, women who complain about the way the laws
refer to men and ignore women, are often told that the Interpretation
Act protects them. They are told that the Act defines the male as
including the female. In theory, therefore, women suffer no practical
injustice. In theory they are subject to the same benefits and the
same burdens as the male. If this is correct, the demand by women
is nothing more than the objection to being ignored.
Yet when we look at the actual legislation, we find that this
reassurance is wrong. There has never been any version of the federal
Interpretation Act since Confederation in which male terms are
defined as including the female for all purposes. Every version of the
Interpretation Act from Confederation to the present day has clearly’
8 Supra, f.n.7.
9 Ibid., 18.
lo Alice’s world of the ridiculous was intended for children; see Gardner
(ed.), The Annotated Alice: Alice’s Adventures in Wonderland and Through
the Looking Glass by Lewis Carroll (1965), 21. However, adults will find many
situations which are relevant to law and politics.
McGILL LAW JOURNAL
[Vol. 21
authorized the use of the context to find a different or contrary
meaning.
The first Interpretation Act of the new Dominion of Canada was
passed in 1867. It provided:
In construing this or any Act of the Parliament of Canada, unless it is
otherwise provided, or there be some thing in the context or other
provisions thereof indicating a different meaning or calling for a different
contruction: …
Tenthly. Words importing the singular number of the masculine
gender only, shall include more persons, parties or things of
the same kind than one, and females as well as males, and
the converse; … .11
Far from defining the male as including the female for all purposes,
this wording permitted judges to look at the context in deciding
whether male words should include females or female words should
include males. The power of decision was in the courts, at a time
when women -could be neither lawyers nor judges.
This wording was compressed in 188612 without change in subs-
tance. By 1906 it had been compressed further, to read: “In every
Act, unless the contrary intention appears, … words importing the
masculine gender include females ….
“-13 Apparently the idea of the
female including the male had become too difficult for the egos of
the drafters, because the reverse definition had now disappeared.
The drafting concept had frozen into the formula that males include
females, subject to the finding of a “contrary intention” as before.
This wording was carried forward in the Revised Statutes of Canada
for 1927 and again in the Revised Statutes of Canada for 1952. In
each case the Interpretation Act provision clearly authorized the
finding of a “contrary intention” to the general definition that words
importing the masculine gender include females.14
In 1967, the whole Interpretation Act was consolidated and
revised, and the following wording adopted: “Words importing male
persons include female persons and corporations.’15 It looked as if
women could at last argue that words indicating males included them
for all purposes, because the discriminatory words “unless a contra-
ry intention appears” had been taken out of the provision. In fact,
however, they surfaced in section 3 applying to the whole Act and
reading:
“1 S.C. 1867, c.1, ss.6 and 7 (emphasis added).
12The Interpretation Act, R.S.C. 1886, c.1, s.7(21).
13Interpretation Act, R.S.C. 1906, c.1, s.31(i) (emphasis added).
14Interpretation Act, R.S.C. 1927, c.1, s.31 and R.S.C. 1952, c.158, s.31.
15 S.C. 1967-68, c.7, s.26(6) (emphasis added). Note that this had been proposed
by the Justice Drafting Memorandum, supra, f.n.1, 11, para.17(i).
1975]
ALICE THROUGH THE STATUTES
APPLICATION
Every provision of this Act extends and applies, unless a contrary intention
appears, to every enactment, whether enacted before or after the com-
mencement of this Act.16
The government drafters had given the women no help. All they
had done was to conceal in a different part of the Act the words
permitting a finding of a “contrary intention”. Women were still
subject to the whims of the courts.
That is how the present gender provisions of the Interpretation
Act developed. The 1967 wording has been carried forward un-
changed into the present Interpretation Act in the Revised Statutes of
Canada, 1970.17 Section 26(6) provides, exactly as quoted by the
General Solicitor for the Industrial Development Bank in his answer
to Mrs Holt, that “words importing male persons include female
persons and corporations”.’ 8 But he failed to say that the equality
which section 26(6) purports to give with one hand is still taken
away by the other, because of section 3(1) containing the pitfall
words “unless a contrary intention appears”. The wording of the
Interpretation Act clearly leaves it open for any official or any court
to deny rights to women by finding some “contrary intention” in the
context. Canadian women have no guarantee of any kind that any
provision of any federal Act which grants rights to the male, will
be interpreted to confer the same rights on women.19
So the challenge posed by Senator Fergusson, Simma Holt, M.P.
and other women must be answered. Why is legislation written in
terms of the male? What is the effect of legislating by reference to
the male and defining male terms as including females? This leads
us into the question of the behavior of the judges when women have
come before them in cases involving the application of the Inter-
pretation Act.
The Courts and the Interpretation Act
It is, of course, a matter of complaint by women that the courts
(with a few exceptions at the lower levels) are composed entirely of
1l Interpretation Act, ibid., s.3(1) (emphasis added).
17 Interpretation Act, R.S.C. 1970, c.I-23, s.26(6).
18 Supra, f.n.6, 35.
19 Women thought they had such a guarantee in the Canadian Bill of Rights,
S.C. 1960, c.44 (see R.S.C. 1970, Appendix III). This hope was ended by the
Supreme Court of Canada in Attorney-General of Canada v. Lavell [1974]
S.C.R. 1349, (1973) 38 D.L.R. (3d) 481. Contrast the Supreme Court decision in
R. v. Drybones [1970] S.C.R. 282, (1969) 9 D.L.R. (3d) 473, [1970] 3 C.C.C. 355.
McGILL LAW JOURNAL
[Vol. 21
males. How have these courts reacted in cases which have come
before them involving women and the Interpretation Act?
The European traditions which were brought to Canada were
traditions of discrimination. The basic situation in France was des-
cribed more than two hundred years ago by one authority as follows:
Domat … dit que le sexe qui distingue 1’homme et la femme, fait entr’eux
cette diff6rence, pour ce qui regarde leur 6tat, que les hommes sont ca-
pables de toute sorte d’engagements et de fonctions, si ce n’est que quel-
qu’un en soit exclus par des obstacles particuliers; et que les femmes sont
incapables, par la seule raison du sexe, de plusieurs sortes d’engagements
et de fonctions.20
It is well known that such traditions of discrimination, imported into
Quebec and reflected in the Quebec Civil Code and other legislation,
created barriers to equality at innumerable
levels within that
province.’-
Perhaps less well known is the fact that the English Common Law
suffered from similar barriers to equality. One writer summed it
up as follows:
We have been rapidly diminishing the number of ‘normal persons’, of
free and lawful men. We have yet to speak of half the inhabitants of
England. No text-writer, no statute ever makes any general statements
as to the position of women. This is treated as obvious, and we believe that
it can be defined with some accuracy by one brief phrase: – private law
with few exceptions puts women on a par with men: Public law gives a
woman no rights and exacts from her no duties save that of paying taxes
and performing such services as can be performed by deputy.2 2
Yet the English common law was not a monolithic structure. It was,
instead, a conglomerate of rules and traditions from which the
courts selected those principles which they wished to follow.p
Women, being excluded in law or in fact from the government, from
20 Extract from Dictionaire de Droit et de Pratique by M. Claude-Joseph
de Feriere, Doyen des Docteurs-Regens de la Facult6 des Droits de Parix,
E ancien Avocat en Parlement. (Paris, 1762), vol.1. Avec Approbation E
Privil6ge du Roi (emphasis added).
2 1 E.g., former arts.179, 643 and 1301 C.C.; Pothier, Oeuvres 2d ed. (1861), vol.9,
47-48, paras.121 and 122.
added).
22 Pollock and Maitland, History of English Law (1895), vol.1, 465 (emphasis
23See Black’s Law Dictionary 4th rev.ed. (1968), 345:
“Common Law… [a]s distinguished from law created by the enactment of
legislatures, … comprises the body of those principles and rules of action,
relating to the government and security of persons and property, which
derive their authority solely from usages and customs of immemorial
antiquity, or from the judgments and decrees of the courts recognizing,
affirming, and enforcing such usages and customs; and in this sense particu-
larly the ancient unwritten law of England.”
1975]
ALICE THROUGH THE STATUTES
Parliament and from the courts, had no share in the decisions which
have established the basic law applicable to women in Canada today.
Our primary concern is, of course, the examination of the way
in which the courts have treated laws written in male terms under
which women have sought equal rights. Nonetheless, the pattern
of decisions against women has included many cases where the
language was not sexist. One much quoted case is that of The King
v. Alice Stubbs,24 decided in 1788, in which the appointment of a
woman as an overseer of the poor was challenged despite the fact
that she fulfilled the statutory definition of a “substantial house-
holder”. The arguments against her alleged a basic incapacity at
common law which applied to women, idiots and lunatics; it was
also urged that parts of the duty of the office which would require
her to make inquiries relative to bastards were “inconsistent with
the decency of the sex”. The Court held that:
… where there are a sufficient number of men qualified to serve the
office, they are certainly more proper: but that is not the case here; and
therefore, if there be no absolute incapacity, it is proper in this instance
from the necessity of the case.25
Thus the problem is greater than the language employed. Even
where legislation has had no sex limitations in its wording, and even
where women have admittedly fallen within the statutory qualifica-
tions, and even where the court has admitted that there was no
absolute disqualification of women at common law, Judges in this
leading case nevertheless openly considered that men were to be
preferred for such offices if the men were available.
A significant factor which emerges in the early cases is the
influence of the judges’ personal prejudices in the decisions affecting
women. An important Irish case, The Queen v. Crosthwaite,26 de-
monstrates this clearly.
In the Crosthwaite case, the question was whether a woman was
within the meaning of “persons” in the Towns Improvement (Ireland)
Act, 1 8 5 4,21a for the purpose of voting. Masculine pronouns had been
used twice in the drafting, but there was a provision in the first
section of the Act that “words importing the masculine gender,
except only the word ‘male’, shall, in the construction of the Act,
unless there be something in the subject or context repugnant to
such construction, include females”. The word “male” had not been
used, but the Court nevertheless found that there were sufficient
24 (1788) 2 T.R. 395.
25 Ibid., 406 (emphasis added).
26 (1867) 17 Ir.Com.Law Rep. 463.
26a 1854, 17-18 Vict., c.103 (U.K.).
McGILL LAW JOURNAL
[Vol. 21
indications in the Act (including the male references in the form of
notice of meeting) that the context could be held to exclude women.
The Judges left no doubt about their own attitudes to the place
of women, and felt no need to conceal their views’. Thus Deasy
B. admitted that there was no precise enactment and no positive
rule of law excluding women from Parliamentary elections at least
in modern times, but found that:
[T]he general policy of the law is to exclude them from any such in-
tervention … partly on the supposition that such subjects are beyond
their cognizance, as requiring a judgment superior to that which they
possess, and partly upon the ground that it is inconsistent with the
delicacy and modesty of their sex that they should be mixed up in the
strife and turmoil of a contested election….X
And again:
… I think that the appearance and intervention of females at such
meetings, held under such circumstances, and for such purposes, and
liable to such interruptions, would be inconsistent with the policy of
the law, and a violation of those decent restraints which the custom
and opinion of society impose upon their sex.
I think this a serious political and social innovation, and that before
sanctioning it by our decision, we ought to have some stronger reason
than that which is afforded by a glossary clause in an Act of Parliament.28
No one can read these judgments without being aware of the
extent to which they were tainted by the personal views of the Judges.
Thus Fitzgerald B., to illustrate why women can be excluded from
persons qualified, pointed out that “idiots and lunatics” are excluded
by the reasons and rules of the common law “as being destitute of
the discretion necessary to the performance of the duties of elec-
tors”.- He then proceeded to say:
That the law in recognising the distinction of the sexes assumes a greater
worthiness in the male than the female, is manifest from the law of descent;
that it has regard to the infirmity of bodily strength and ability in the
female, by rendering her incompetent for some offices and privileges, or in-
capacitating her from the discharge of the duties thereto belonging, cannot
be questioned. Again, that she is subject to incapacities, from a presumed
inferiority of discretion and judgment, seems also certain: a woman was
not admitted as a witness in a case of villenage against a man; and the
reason assigned is, because of her ‘frailty’3 0
Despite admitting that in fact there were cases in which women had
been held capable of holding certain offices to which some of these
reasons would apply,3’ Fitzgerald B. went on to state:
27Supra, f.n.26, 472 (emphasis added).
28 Ibid., 473.
29 Ibid., 474.
30Ibid., 475 (emphasis added).
31 Ibid., 476.
19751
ALICE THROUGH THE STATUTES
But, without holding any essential infirmity of women to men in judgment
and discretion, I can have no doubt that in substance the reason of the
Common Law still applies; and that the course of education and mental
training to which women, happily for us and themselves, are subject, does
render them far less fit than men for the administration of public affairs,
and interference in the election to offices concerned in such administration.
Having regard to every one of the reasons of the Common Law, the
subordination of sex, the inferiority of bodily ability, and the mental
inferiority, in the sense explained, as well as to decency and decorum,
I am not sorry that I am able, on the best consideration I have been able
to give the case, to come to the conclusion that this judgment ought to be
reversed 32
Such words expressed prejudices which were decisive to the case.
Their influence is confirmed by the shocked protest of Pigot C.B.,
reviewing the common law and dissenting in the strongest possible
terms:
I am perfectly at a loss to understand the proposition –
I can hardly
embrace it –
that there is a Common Law disability in women to exercise
such functions as are necessary to the election of Town Commissioners.
I cannot do that in a country in which it is part of the Common Law of
the land, that a Queen may reign …. 3
And again:
I cannot hold that, in this realm, in which a female not only may reign, but
does reign, in her own right, there is in women a Common Law disability
arising out of mental incapacity.34
And finally:
I cannot bring my mind to the conclusion that we are at liberty to
construe this Act otherwise than as its words plainly import, or to interpret
the express legislation of the glossary as if these words had a flexibility
that enabled the Court to mould and apply them according to the mere
opinions of Judges, as to the delicacies or proprieties of the female
character, or as to the expediency or inexpediency of conferring functions
of this kind upon women.3 5
But Pigot C.B. failed to carry the day. The prejudices of his
colleagues continue to affect the law in relation to women’s rights
in Canada in the twentieth century.
There is no doubt that the same attitudes also influenced the
decision of the landmark case Chorlton v. Lings.3 6 The circumstances
are important. A woman named Mary Abbott and 5,346 other women
claimed the right to be put upon the list of voters for the township of
Manchester, England. They claimed the right to vote under the
2 Ibid., 479 (emphasis added).
33 Ibid., 481.
34 Ibid., 483.
36 Ibid., 486 (emphasis added).
36 (1868) L.R. 4 C.P. 374.
McGILL LAW JOURNAL
[Vol. 21
Representation of the People Act, 1867,1 which enacted that “every
man” with certain qualifications was entitled to the franchise. They
relied upon Lord Brougham’s Act (the predecessor of the Inter-
pretation Act) passed in 1850, which provided that:
… in all Acts, Words importing the Masculine Gender shall be deemed
and taken to include Females
is expressly
provided… 38
… unless the contrary …
This is the most important case on the subject. Four highly respected
Judges (Bovill C.J., Willes, Byles and Keating JJ.) formed the Court,
All of them reacted with shock to the idea that a mere interpretation
provision could allow women to claim the right to vote as “men”.
It is clear that the Court in Chorlton v. Lings had evidence before
it that in early times women had exercised public functions. Each
Judge however, rejected or explained such evidence away to his own
satisfaction, and then held that women were legally incapacitated
at common law to exercise such a function and were therefore still
excluded as persons “subject to legal incapacity”.3 8 a
The Court disposed of the argument based on Lord Brougham’s
Act by ingenious means. It simply refused to accept the argument
that the legislature would confer on women such an important right
as the right to vote, by a mere interpretation provision. They
supported this conclusion by reference to their previous conclusions
that women were legally incapacitated at common law. Bovill C.J.
actually reversed the interpretation provision and required that
women be expressly mentioned by statute 9 Keating J. similarly
insisted that if the Legislature intended so important a change, one
would expect it to say so plainly and distinctly.40 All four Judges
decided, in spite of the plain provision in Lord Brougham’s Act
that words importing the masculine gender “shall be deemed and
taken to include Females … unless the contrary is expressly pro-
vided”,41 that the male terms in the 1867 Representation of the
People Act could be read as subject to the 1832 Act4la which predated
the interpretation provision and which clearly did not include women
at that time. Byles J. was concerned that even reading the two Acts
3. 1867, 30-31 Vict., c.102 (U.K.).
3sAn act for shortening the Language used in Acts of Parliament, 1850,
13-14 Vict., c.21, s.4 (U.K.).
3as Supra, f.n.36, 382.
39 Ibid., 387.
40 Ibid., 395.
41 Supra, fLn.38 (emphasis added).
41a An Act to amend the Representation of the People in England and Wales,
1832, 2-3 Wm.IV, c.45 (U.K.).
19751
ALICE THROUGH THE STATUTES
together did not dispose of the interpretation provision but he settled
his problem by deciding that the words “expressly provided” in
Lord Brougham’s Act often only meant plainly, clearly or the like,
and that the earlier Act met this watered-down definition 2
Chorlton v. Lings has become the basic case establishing for
England and for Canada the “fact” that the common law excluded
women so rigidly from public functions that the clearest possible
legislation is necessary, designating them by sex, before they can
be admitted to the exercise of any public functions. Yet examination
of the judgments shows how far the Judges were affected by their
prejudices. One even finds the judgment of Willes J. referring to the
“peculiarity” of the Britons that women “had prerogative in deli-
berative sessions touching either peace-government or martial af-
fairs”,4 3 or explaining away the signatures of abbesses at the Saxon
Gemot (as merely watching matters affecting the interests of their
Convents), and the signatures of other women of distinction (whose
names he thought were possibly put in by way of compliment). 4
Considering obiter the question whether a peeress in her own right
was entitled to a seat and vote in the House of Lords, he felt that if
such right had ever existed, time had made it extinct and concluded
that “it may be more correct to say that the right never existed”. 5
Like the decision itself, the comments of Byles J. have passed
into legend. He stated:
No doubt, the word ‘man’, in a scientific treatise on zoology or fossil
organic remains, would include men, women, and children, as constituting
the highest order of vertebrate animals. It is also used in an abstract and
general sense in philosophical or religious disquisitions. But, in almost
every other connection, the word ‘man’ is used in contradistinction to
‘woman’. Certainly this restricted sense is its ordinary and popular sense.40
The extent of the prejudice in this case is emphasized by the
existence of a general rule that words conferring the franchise must
be construed “in their largest ordinary sense” Y” Two years after
his restrictive decision in Chorlton v. Lings, Willes J. applied this
principle to allow a broad definition of counting-houses in a matter
not involving women’s rights, and stated unctuously: “That is the
rule which has been constantly acted upon by this court in construing
statutes which related to the franchise. 48
42 Supra, f.n.36, 393-4.
43 Supra, f.n.36, 389.
44 Ibid., 390 (emphasis added).
45 Ibid., 391.
46 Ibid., 392.
47 Craies on Statute Law 7th ed. (1971), 171.
4sPiercy v. Maclean (1870) L.R. 5 C.P. 252, 261.
McGILL LAW JOURNAL
[Vol. 21
The irony of the boast did not escape Craies on Statute Law
however, in which it was pointed out that the rule “was not applied
so as to give the franchise to ‘persons’ of the feminine gender”.4 9
THE BASIC LAW AFTER CHORLTON v. LINGS
In the century which has elapsed since the Chorlton case, its
statement of the common law as inflicting a total incapacity on
women in public functions has been adopted almost without question.
Its conclusions about the inadequacy of interpretation provisions to
confer rights on women have been followed; its views about male
language not including women for the purpose of granting rights
have been applied. Common law situations which Chorlton v. Lings
erected into a permanent monolithic structure have been extended
by other cases to apply to public functions which were unknown to
the common law, and to occupations which were given the status
of professions by statute law.
Examples are readily available. They include Beresford-Hope v.
Lady Sandhurst in 1889, in which the Court of Appeal set aside the
election of a woman as member of the Brixton County Council. The
grounds? That an interpretation provision which stated that words
importing the masculine gender included females for all purposes
connected with, and having reference to,. the right to vote did not
include the right to be elected.50 They include De Souza v. Cobden in
1891, in which the Court applied the Beresford-Hope case to deny a
single woman the right to be considered as a man for purposes of
election, but treated her as included within the masculine termi-
nology for the purpose of imposing a penalty against her.’ They
include the 1908 case of Nairn v. University of St. Andrews in which
the Chorlton case was one of the cases most strongly urged, and the
House of Lords applied similar reasoning in refusing even to allow
the term “person” to include women in the General Council of the
University and thus in the right to vote at a parliamentary election.”2
They include Bebb v. Law Society in 1913,’ 3 by which women were
shut out of the profession of solicitor in England despite the clear
statement in the statute that “every word importing the masculine
gender only shall extend and be applied to a female as well as a
49 Supra, f.n.47, 171 (f.n.93).
50 (1889) 23 Q.B.D. 79 (C.A.).
51 [1891] 1 Q.B.D. 687 (C.A.).
52 [1909] A.C. 147 (H.L.).
[1914] 1 Ch.D. 286 (C.A.).
1975]
ALICE THROUGH THE STATUTES
male” unless “there be something in the subject or context repugnant
to such construction”.5 3a
The final alienation of women from the courts was carried out by
the House of Lords. In 1919 the United Kingdom Parliament had
finally passed a Sex Disqualification (Removal) Act which (while
expressly approving the reservation of certain types of positions to
men) stated clearly that: “A person shall not be disqualified by sex
or marriage from the exercise of any public function…”. Yet
in 1922 when Margaret Haig, Viscountess Rhondda, a Peeress of the
United Kingdom in her own right, petitioned for the issuance to her
of a writ of summons to Parliament, the House of Lords Committee
for Privileges held that this Act did not entitle her to receive a writ
of summons to Parliament. Chorlton v. Lings was again relied upon;
even the specific legislation contained in the Sex Disqualification
(Removal) Act was held not to be specific enough to remove the
“disability” of a woman55 When one considers the House -of Lords’
decision to keep out Viscountess Rhondda, one has a mental image
of the tea party in Alice in Wonderland, with the March Hare, the
Mad Hatter and the Dormouse crowded together at one corner of
a very large table and shouting out “No room! No room!”, when
they saw Alice.-5
The Situation in Canada
We have seen from our examination of the Interpretation Acts
since Confederation that no federal Interpretation Act has ever
provided that words importing the masculine gender include females
without adding the pitfall phrase “unless the contrary intention
appears”. As we have also seen from our examination of the de-
velopment of the case law in England, courts developed many
techniques for discovering in the words or subject matter of a
statute some intent of the Legislature that public rights were
intended only for males. No law was too clear for the all-male courts
to discover some reasons for denying equality to women.
Under .these circumstances, it was difficult for Canadian cases
to arise on the subject of the right of females to be regarded as males
under a federal statute. However, there are a few reported instances
53a An Act for consolidating and amending several of the Laws relating to
Attornies and Solicitors practising in England and Wales, 1843, 6-7 Vict., c.73,
s.48 (U.K.).
54Sex Disqualification (Removal) Act, 1919, 9-10 Geo.V, c.71, s.1 (U.K.).
55 Viscountess Rhondda’s Claim [1922] 2 A.C. 339 (H.L.).
56Supra, f.n.10, 93.
McGILL LAW JOURNAL
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involving provincial law, which show the situation to have been
similar to that in England. In 1868 in Ontario, one finds the “principal
law officer of the Crown” interpreting the word “pupils” in the
Grammar Schools Act 57 as restricted to boys, in line with the open
prejudice of the Chief Superintendent of Education, Dr Egerton
Ryerson.58 In 1905 in New Brunswick, a young woman named Mabel
P. French, who had been admitted as a student-at-law in 1902 and
admittedly met all the requirements, sought admission as an at-
torney, on the ground that she was included in the expression
“person” despite use of masculine pronouns in the relevant legisla-
tion.29 Despite obvious support for her from the Council of the
Barristers’ Society and from the City of St. John, the Judges reacted
with shock. The report quotes Tuck C.J. as saying:
If this young lady is entitled to be admitted an attorney she will in a year
be entitled to be called to the bar, and, in a few years, will be eligible to
be appointed to the bench.60
Not surprisingly, the Court applied Chorlton v. Lingso’ and Beresford-
Hope v. Lady Sandhurst 2 to exclude her on the grounds of the legal
incapacity of women at common law, and the presumed intent of the
Legislature that the word “person” in the relevant statute applied
only to males. There also appears to have been a strong belief by
the Judges that they were carrying out the will of God, with Barker J.
quoting with obvious approval from a leading United States case:
The paramount destiny and mission of women are to fulfil the noble and
benign offices of wife and mother. This is the law of the Creator. And the
rules of civil society must be adapted to the general constitution of things,
and cannot be based upon exceptional cases.63
Apparently Miss Mabel P. French either did not believe that the
Judges were speaking with the voice of God, or else decided that
there was a higher authority. We know that she obtained special
57 An Act for the further improvement of Grammar Schools in Upper
Canada, S.C. 1865, c.23.
5 See an excellent article by Royce, “Arguments Over the Education of
Girls – Their Admission to Grammar Schools in this Province” in Ontario
History, vol.LXVII, No.1, March 1975, 1. The dispute was reported in the
United States; see Education in Canada, Godeys Magazine, vol.77, no.461,
Nov. 1868, 449450. I am indebted to Dr J. Alex Edmison of Ottawa for con-
tributing these to my archives on this subject.
9 In Re Mabel P. French (1905) 37 N.B.R. 359.
o Ibid., 361
61 Supra, f.n36.
62 Supra, fan.50.
63 Ibid., 366.
(emphasis added).
1975]
ALICE THROUGH THE STATUTES
legislation, 3
1 became a full-fledged barrister, and in 1911 applied to
the Courts in British Columbia seeking a writ of mandamus to force
the Benchers of the Law Society of that Province to accept her
application for enrolment on the books of the Law Society as a
“person” fulfilling the requirements of the statute, including that
of having been duly called and admitted to practice as a barrister-
at-law in another Province of Canada.63b The lower Court decided
against her, as did the Court of Appeal, rejecting the power of the
Interpretation Act to bring about “so radical a change” and holding
a woman barred by the common lawfr1 Similarly, in Quebec in 1915,
in Dame Langstaff v. The Bar of the Province of Quebec 5 the inter-
pretation rule was held inapplicable and women were excluded from
the practice of law on account of their sex.
The right of women to exercise public functions on the same basis
as men was settled in Alberta in 1917 in an entirely different way.
Alberta had obviously accepted the position that specific legislation
was necessary to confer public rights on women. In 1916, therefore,
Alberta passed The Equal Suffrage Statutory Law Amendment Act, 6
which by section 2 provided that:
Notwithstanding any provisions therein contained, women shall be upon
an absolute equality with and have the same rights as men in the following
Acts, Ordinances and Charters:
(1) The Alberta Election Act ….
The Act was a piece of legislation clearly directed towards certain
specific Acts, Ordinances and Charters, and was not of a general
nature such as those which had been interpreted against women in so
many cases. However, the Provincial Government had appointed
two women Police Magistrates and objections were made to them
exercising this public function without a statute expressly authorizing
them to do so. In 1917 the matter came to a head in R. v. Cyr (Alias
Waters)67 which went to the Appellate Division of the Supreme Court
of Alberta in the same year. The Appellate Division upheld the lower
Court judgment, in which the Interpretation Act provision that words
importing masculine gender include females ‘ had been applied, and
found the accused woman to be within the Criminal Code section
63a An Act to remove the Disability of Women so far as relates to the Study
and Practice of the Law, S.N.B. 1906, c.5.
63b In Re Mabel Penery French (1912) 17 B.C.R. 1 (C.A.).
04 Ibid., 8.
65 (1915) 47 C.S. 131, 25 RJ. 11.
66 S.A. 1916, c.5.
6T (1917) 2 W.W.R. 1185 (Chambers).
68 R.S.C. 1906, c.1, s.31(i).
McGILL LAW JOURNAL
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on vagrancy.sa However, one ground of attacking the conviction had
been the incapacity of the female Police Magistrate, and the Court
therefore also proceeded to review the common law with respect to
the right of women to hold public office. The result -was an un-
animous opinion that a woman appointed as Police Magistrate was
not disqualified under the common law in Alberta, in spite of the
absence of any specific statute.6 9
This was the fair, large and liberal opinion which could have
been given by the Court in Chorlton v. Lings10 almost fifty years
earlier. The common law, reviewed in this judgment, appears in a
different light; the instances of women actually occupying public
office are given due weight as events which, even though not frequent,
nevertheless did occur. The Court held that women were not dis-
qualified by the common law of England in 1870 (the date the
common law was introduced into Alberta), and distinguished the
Chorlton case on the ground that its decision as to the position of
women under the common law was obiter dicta not binding in
Alberta. It held that alternatively, only so much of the common law
of England as it stood in July 1870, and as was applicable to Alberta
was introduced, and that the Court was at liberty to take cognizance
of the different conditions in Alberta, the general conditions of public
affairs in that Province, and the general attitude of the community
in regard to the particular matter in question. The provision of the
Interpretation Act was not considered or relied upon with reference
to the right of a woman to hold public office, although it had been
applied to include the accused woman under the vagrancy provision
of the Criminal Code.
The remaining major Canadian case was the famous “Persons”
Reference 71 submitted to the Supreme Court of Canada on October
19, 1927,2 to settle whether women were entitled to be considered
as “persons” within Section 24 of the British North America Act, 73
and therefore eligible for appointment to the Senate. The Govern-
ment of Canada and the Government of Quebec argued that women
were not “persons”; the Government of Alberta supported. the
women’s argument that women ivere “persons”.
6Sa R.S.C. 1906, c.146, s.238(a).
69 R. v. Cyr (Alias Waters) (1917) 3 W.W.R. 849 (S.C.A.D.).
70 Supra, f.n.36.
1 In the matter of a reference as to the meaning of the word “Persons” in
Section 24 of the British North America Act, 1867 [1928] S.C.R. 276.
72 Order in Council P.C. 2034, Oct. 19, 1927, Public Archives of Canada.
7a 1867, 30-31 Vict. (U.K.).
1975]
ALICE THROUGH THE STATUTES
The Supreme Court of Canada decided unanimously against
women. Anglin C.J.C., whose judgment was adopted by the majority,
noted that when standing alone “persons” prima facie includes
women. As he said, “[i]t connotes human beings –
the criminal and
the insane equally with the good and the wise citizen, the minor as
well as the adult”.7 4 However, the majority judgment thereafter
reflects the shock the Supreme Court felt at the idea of women being
included among persons eligible for the Senate. The judgment con-
tains such words as “dangerous to assume” and “so vast a constitu-
tional change affecting Canadian women”Y5 It is hardly surprising
therefore that the majority applied Chorlton v. Lings, holding that
it was
… conclusive against the petitioners alike on the question of the common
law incapacity of women to exercise such public functions as those of a
member of the Senate of Canada and on that of their being expressly
excluded from the class of ‘qualified persons’ within s.24 of the B.N.A.
Act by the terms in which s.23 is couched … YD
Section 23 is, of course, the section setting out qualifications of
Senators, utilizing male pronouns.
This decision was appealed to the Privy Council. Their opinion
was in favour of women. 7 In their statement, they propounded what
has come to be known as the “living tree” doctrine of the Constitu-
tion, resting their view also on the ambiguity of the word “persons”
and the fact that some sections of the Act clearly used “persons” to
include females while other sections used the words “male persons”
to confine other matters to males; the opinion also relied on the
provisions of the Interpretation Act with reference to “persons”.
Although they distinguished Chorlton v. Lings,78 it is clear that they
accepted the view of the common law incapacity of women which
had been formulated in that case and carried forward in the suc-
cessive English cases culminating in Viscountess Rhondda’s Claim.”9
The “Persons” case is clearly limited to the word “persons” or
perhaps other neutral words where the language is ambiguous.
It might be limited to minor statutes” or even to other constitutional
74 Supra., f.n.71, 285.
75 Ibid., 287.
70 Ibid., 290.
77 Henrietta Muir Edwards v. Attorney-General for Canada [1930] A.C. 124
(P.C.).
78 Supra, f.n.36.
79 Supra, f.n.55.
8oFor example, the “Persons” case was applied in Harrison v. The Ocean
Accident and Guarantee Corp. (1947) O.W.N. 959, 960 to permit a woman to
recover damages as a “passenger” under an automobile insurance policy.
McGILL LAW JOURNAL
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documents. It might even be restricted by courts to the precise
section of the British North America Act which was referred to the
Supreme Court for an opinion. No matter how one regards the
“Persons” case, it is clear that it provides women with no protection
whatsoever against the application of the common law disabilities
to women who seek equality with men under statutes drafted in terms
of the male and dealing with rights and privileges.
IN SUMMARY – DEFENDING THE INDEFENSIBLE
We have seen that the practice of legislating in male terms is
under challenge in Parliament. We have seen that the answer to that
challenge has been that the Interpretation Act provides that male
terms include the female. We have seen, on examination of every
federal Interpretation Act since Confederation, that this defence is
simply not true; that all federal Interpretation Acts –
including the
present one –
contain the deceptive provision about dependence on
the “context”. And we have seen that male-constituted courts have
interpreted the “context” in line with the judges’ personal prejudices,
to deny the right of women to vote, to be elected, or to exercise
public functions of any kind, or even to carry on a profession, unless
there is a specific statute which clearly creates the right for women.
We have seen that judges, under the influence of openly prejudiced
opinions about the mental capacity and the place of women, have
deliberately chosen from two possible views of the common law
the one which denies women equality with men. They have, in fact,
deliberately erected into permanent
times the
common law view that the male includes the female for the purposes
of pains and penalties but not for rights and privileges.
law in modern
We have also seen that the exceptions are rare and limited. In
R. v. Cyr”‘ the Appellate Division of the Supreme Court of Alberta
gave a fair, large and liberal opinion on the common law position
of women, but its view has not been followed. We have seen that the
Judicial Committee of the Privy Council in the “Persons” case82
opened a very small door for women to creep through but this door
is not available where a statute is clearly drawn in male terms.
Wherever any statute or regulation is drafted in terms of the male,
a woman has no guarantee that it confers any rights on her at all.
Any official or any court has ample authority for deciding that the
male does include the female for purposes of taxes, penalties or
81 Supra, f.n.69.
82 Supra, f.n.77.
19751
ALICE THROUGH THE STATUTES
criminal law, but does not include the female for the purposes of
rights or privileges. The burden and the expense, the worry and the
waste then fall entirely on the woman to establish whether in fact
she is or is not included. Usually she will find that the tax-supported
institutions and officials are lined up against her.83
The Actual Practice of Drafters
When the practice of drafting in male terms is attacked, three
defences are usually raised:
1. That women suffer no discrimination because the Interpretation
Act provides that words importing male persons include female
persons.
We have seen that this belief is wrong. The Interpretation Act
provides women with the illusion of protection but denies them the
reality. Nor is it likely that many government officials believe it.
One need only mention the refusal of the Department of National
Defence to extend to females the rights and privileges of males in such
tax-supported organizations as Cadets until the word “boys” was
changed by statute recently to “persons”;8 or the continuing refusal
to treat Indian women as “males” for the purposes of rights and
privileges under the Indian Act.85
2. That it is a matter of “convenience” for drafters to draft by
reference to one sex only.
It would undoubtedly be “convenient” also to define “dog” as
including “cat” but the Justice Drafting Memorandum rejected this
as “asking too much of the reader”.”6
It would also be “convenient” to draft statutes in one language
instead of two, without translation and printing in two languages, but
this has also been rejected by the federal governmentoa
83This is one of the major hurdles for women. In the United States, a
number of women’s groups, including the National Organization for Women,
have focused particularly on this problem. Canada has no equivalent group
with the funding and expertise to work continuously on this aspect, although
different groups have been concerned from time to time on a volunteer basis.
4The National Defence Act, R.S.C. 1970, c.N-4, s.43. The change from the
word “boys” to the word “persons” has now been made by the Statute Law
(Status of Women) Amendment Act, 1974, S.C. 1974-75, c.66, s21 (Bill C-16,
assented to July 30, 1975).
85 R.S.C. 1970, c.I-6, ss.ll and 12.
88 Supra, f.n.1, 11.
soa Official Languages Act, R.S.C. 1970, c.O-2.
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Under these circumstances, the argument of convenience becomes
incredible when used as a reply to women’s protests. It becomes all
the more incredible since, as we have seen, any practice of drafting
in terms of the male on the assumption that the male includes the
female is a loaded gun pointed against women.
It is, of course, a peculiar argument in any event, that “con-
venience” is an answer to injustice or discrimination. But when one
examines the Canadian statutes, one discovers that the drafters
themselves have abandoned consistency. They themselves have used
neutral terms or terms relating to both sexes wherever they have
thought it desirable to achieve their own purposes. The Criminal
Code87 contains many examples of legislation by use of neutral
words (“every one” or “persons”). Section 157 of the Criminal Code,
applying to “every one” was adopted deliberately in the 1953-54
Criminal Code88 and the male wording was abandoned to make
certain that females would be included in the prohibition of acts of
gross indecency previously prohibited only with respect to males.
So we find that “convenience” is a flexible word, to be dragged
out of the cupboard whenever the usual way of doing things is under
attack. From the women’s point of view, however, drafting by re-
ference to the male is not convenient; it is also not just.
3. That “established drafting practice” or the “established canons
of drafting” require drafting in terms of the male.
This argument can be restated: “We admit that our drafting pro-
duces injustice, but we are used to drafting this way and we intend to
keep on doing it.” Its morality needs no comment.
But the argument fails when we look at the facts. We have seen
that a reciprocal gender provision was contained in the early
Interpretation Acts of Canada; and in fact this reciprocal gender
definition existed in various parts of Canada and continued in
Alberta until 1958.88 Clearly, therefore, drafting in form of the male
has n6t been universal. Similarly, when one examines the most ecent
amendments to the Canada Pension Plan 9 enacted in response to
criticism of discrimination, one finds that the drafters have found it
possible to introduce the presumptive reciprocal gender definition
87 R.S.C. 1970, c.C-34.
88 S.C. 1953-54, c.51.
88a It was eliminated by The Interpretation Act, 1958, S.A. 1958, c.32, s.18(1)(h).
89 R.S.C. 1970, c.C-5.
1975]
ALICE THROUGH THE STATUTES
into that Act.90 Established drafting practices are easily changed,
therefore, under pressure.
In addition, as we have seen, the drafters themselves have not
hesitated to abandon these drafting practices whenever they have
wished to do so. Examples have been cited from the statutes. One
need only refer again to the Indian Act, where express legislation
framed with reference to female Indians is used to deny them the
rights extended to male IndiansY’ The Lavell case92 makes clear that
this sex-based drafting to deprive Indian women of rights was not
an accident’but deliberate policy.
Other examples are found in other statutes. Sex-based legislation
treats evidence by a woman against a man in sexual cases as less
deserving of belief than evidence by a man and discriminates against
a raped woman in favour of the rapist;53 sex-based ,legislation affects
women’s rights to equal pay,9 4 their right to unemployment in-
surance, 5 their right to family allowances for female children,”
their right to confer citizenship on spouse and children.91
Historically, drafters have never hesitated to abandon the sacred
canon of drafting in the form of the male whenever they themselves
wished to do so –
even if they have had to make sentences so long
and confused that the legislation should have been issued with road
maps. Drafting is flexible if the drafters wish.
CONCLUSIONS
Thus the legal position of women is indeed something out of
Alice in Wonderland,98 or Alice Through the Looking Glass.9 For
over a hundred years it has been clear that legislation drafted in
terms of the male exposes women to denial of rights granted to
men. Even legislation drafted in neutral terms has often been
used to exclude women from rights and privileges. The whole
9 0 Statute Law (Status of Women) Amendment Act, 1974, supra, f.n.84.
91 Supra, f.n.85.
92 Supra, f.n.19.
93 Criminal Code, R.S.C. 1970, c.C-34, s.142.
94AIl equal pay legislation must necessarily be sex-based to deal with the
problem; see e.g., Canada Labour Code, R.S.C. 1970, c.L-1, Division I1 added
by R.S.C. 1970, 2d Supp., c.17, s.9.
95 Unemployment Insurance Act, 1971, S.C. 1970-71-72, c.48, s.30 as am. by
S.C. 1974-75, c.66, s.22.
96Family Allowances Act, R.S.C. 1970, c.F-1.
97 Canadian Citizenship Act, R.S.C. 1970, C-19.
OsSupra, f.n.10, 21.
09 Ibid., 175.
McGILL LAW JOURNAL
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structure of the law with respect to women rests upon judgments
of men who regarded women as inferior. Women who seek even the
smallest hope of equality must demand express legislation, written
in the clearest possible terms. Yet legislation, however clear, has
often failed at the hands of antagonistic male judges.
What is the answer? What should women and those men who
sympathize with them do? Would it be better to ignore the’ Inter-
pretation Act and to concentrate on other statutes which appear to
promise equality? Will the promise of these statutes be any better
than the illusion of the Interpretation Act?
One has only to look at the failure of the courts and governmental
bodies to eliminate discrimination against women in the area of equal
pay, 00 or to look at the sad history of the Canadian Bill of Rights’
so far as women are concerned. Once there was a time when women
believed that they were entitled to equal rights before the law in
areas of federal jurisdiction because of the Canadian Bill of Rights,10 2
but significantly they waited for some other woman to test it before
the highest Court while they themselves endured discrimination and
injustice. When the Supreme Court of Canada issued its declaration
of justice in the Drybones’0 case and found intolerable racial dis-
crimination in the denial to an Indian male of the right to drink off
the reserve, women thought those great declarations of principle also
applied to them. The decisions of the Supreme Court of Canada in
the Lavell104 and Canard’0 5 cases have stripped that illusion from
women. They cannot rely on any statute unless they control the
drafting. Some would add that they must also be the judges of it.
100 The most recent case is the judgment of the Federal Court of Appeal
on Aug. 8, 1975 (not yet reported) against two female employees of Bell
Canada, Patricia Harris and Elizabeth Kennedy, seeking the collectable portion
of moneys they claimed under the Female Employees Equal Pay Act, S.C.
1956, c.38, which had been enacted originally by Parliament nineteen years
previously.
101 Supra, f.n.19.
102 See e.g., Address by Miss Sylva M. Gelber, Director, Women’s Bureau,
Canada Department of Labour, to the Annual Meeting, Ontario Public Health
Association, Toronto, October 19, 1972, 3, referring to equal rights before the
law as
“rights which Canadian women have enjoyed in the federal area of
jurisdiction for a dozen years”
and citing the Canadian Bill of Rights as the authority for this statement.
Shortly. afterwards the Supreme Court ended this belief.
1o3 Supra, f.n.19.
104 Ibid.
1o5 Attorney-General of Canada v. Canard (1975) 52 D.L.R. (3d) 548 (S.C.C.).
1975]
ALICE THROUGH THE STATUTES
What we do know is that words can be made to mean many different
things. It all depends on who is drafting the statutes and who is
deciding upon their meaning.
Lewis Carroll said it all in Alice Through the Looking Glass:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone,
“it means just what I choose it to mean – neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so
many different things.”
“The question is,” said Humpty Dumpty, “which is to be master –
all.”106
that’s
And that is the question. Not for dogs and cats, but for women and
men who are concerned about something called justice.
lo6 Supra, f.n.10, 269.
