Section 28 of the Charter – the forgotten provision – putting feminism back into gender equality

This last week, lawyer and Ph.D. candidate and Vanier and Trudeau scholar, Kerri Froc, was interviewed by Jim Brown on the CBC program, The 180, about gender equality and the rationale behind s. 28 of the Charter. Section 28 states:

Rights guaranteed equally to both sexes

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Ms. Froc’s interview can be found at The 180 website and is well worth listening to.

Ms. Froc makes the point that s. 28, which applies “notwithstanding anything in [the] Charter, has the potential to fundamentally alter how the Charter is interpreted, especially insofar as the equality provisions are concerned. Notwithstanding s. 28’s express language, the gender equity provisions have largely been interpreted to ensure a more superficial equality between the genders. Ms. Froc takes the position that the Charter’s provisions respecting equality have been used by men to ensure their equality. She stated:

“…the courts struck down a [number of provisions designed to protect against sexual exploitation of underage women] on the basis that there has to be absolute equality of treatment, you can’t take into account women’s inequality in society” and that “men were quick off the bat constructing this notion of section 28 as requiring this absolute equal treatment,.. they were quick off the mark, they had obviously the resources to litigate these claims and women weren’t in that position… so we quickly had an idea of section 28 that got constructed in the case law that became the story of section 28.”

In essence, the feminist origins of s. 28 have been forgotten when the courts have turned to interpret it.

In an earlier paper, Is Originalism Bad for Women? The Curious Case of Canada‟s “Equal Rights Amendment” (2014), 19 Review of Constitutional Studies 237, Ms. Froc makes the argument that, instead of simply rejecting originalism out of hand, in the case of s. 28, it may be appropriate to look at its original feminist roots when construing its provisions. She concludes her article by saying:

[T]he unique circumstances of section 28 of the Canadian Charter of Rights and Freedoms belie the notion that gender equality is always best protected by permitting wide judicial discretion that is not grounded by the textual choices made by the framers to direct the interpretation of the relevant constitutional provisions. Insights from new originalism, and in particular the distinction between interpretation and construction, and original meanings and original intended applications, further demonstrate that originalism does not mean that equality rights are “frozen” in time, or that we must turn away from contemporary understandings of how the evils of inequality manifest. Wholesale discounting of originalist doctrine potentially ignores a rich source of authority for feminist arguments. It also abandons an entire theoretical field to those who are developing doctrine without women‟s best interests at heart. Perhaps by engaging with originalism, inserting out own counter-narratives of constitutional history, and demanding a more rigorous theoretical analysis that blunts originalism‟s political excesses and fuses it with epistemological critiques of positivism (such as a notion of “history as it really was”), we can ensure an originalism that is best for women.

I think that Ms. Froc has an excellent point. Section 28 should not simply be understood as standing for equality between men and women but understanding that it was intended to address a historic power imbalance and to provide an interpretive prism for the rest of the Charter’s provisions. Specifically, it was to provide a “feminist” prism through which the rights and freedoms were to be construed.

As an experiment, I recently asked my fellow legal colleagues what they thought of s. 28 of the Charter. None of them was even remotely aware of s. 28.

Thus, in advancing arguments under the Charter, constitutional lawyers should remember to review s. 28’s directives and ask what nuances it may cast upon their submissions. Maybe we can breathe new life into s. 28.

I remain

Constitutionally yours,

Arthur Grant

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