Section 28 of the Canadian Charter of Rights and Freedoms

Section 28 of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada. It does not contain a right so much as it provides a guide as to how to interpret rights in the Charter. Specifically, section 28 addresses concerns of sexual equality, and is analogous to (and was modelled after) the proposed Equal Rights Amendment in the United States.

The section reads:

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

Canada - Women's groups added innovative equality wording to the 1982 Charter of Rights and Freedoms

In 1981, as Canada revised its constitution and included a new Charter of Rights and Freedoms, Canadian women added gender equality wording that other jurisdictions now use as a model.

Canada’s Section 28 reads, “Notwithstanding anything in this Charter, all the rights and freedoms herein are guaranteed equally to male and female persons.” Compare this to the 2001 gender equality guarantee in Section 44 of the UN Declaration on the Rights of Indigenous Persons: “All the rights and freedoms recognized herein are equally guaranteed to male and female Indigenous individuals."

In 1978, Prime Minister Pierre Trudeau announced his intention to re-patriate Canada’s constitution – to make it a document of the Canadian and not the British Parliament – in order to recognize Quebec and French Canada. He was also determined to include a Charter of Rights and Freedoms. Canada already had a Bill of Rights, but it had no constitutional authority. Courts could only recommend legislative change, not strike down laws.

However, the new Charter contained exactly the same wording for equality guarantees as the Bill of Rights, which had consistently failed to advance equality. Thanks the to 1970 report of the Royal Commission on the Status of Women, the government had a set of recommendations it was committed to follow. Also, in 1980, Canada signed the UN Convention on Elimination of All Forms of Discrimination Against Women (CEDAW.) Women's groups argued from strong legal and moral ground.

The government’s arms-length agency, the Canadian Advisory Council on the Status of Women (CACSW), retained renowned legal expert Mary Eberts as Counsel on the constitution file. The CACSW commissioned 13 research papers which generated more than 8000 letters from others in the legal field before being published individually and collected in a book. These papers formed the foundation of ensuing feminist analysis and action on the constitution. Unfortunately, at the beginning, the government resisted any changes to the wording as proposed.

CACSW’s President, Doris Anderson, found herself in conflict with the Minister responsible for women’s issues, who was then Lloyd Axworthy. The CACSW scheduled a national conference for 200 women to discuss the constitution – twice – and cancelled both times. The second time, Doris Anderson resigned, citing government interference.

Women’s groups decided to form an Ad Hoc Committee and hold the conference themselves. At that time, there were 355 women’s groups in Canada with funding to advance gender equality, including the National Association of Women and the Law, and the umbrella coalition group, the National Action Committee on the Status of Women. The government’s arms-length agency, the Canadian Advisory Council on the Status of Women (CACSW), commissioned research into what kind of wording would advance equality and published a book as well as several papers. The book recommended something different from the government.

On February 14, 1981, 1300 women arrived from all across Canada for this spontaneous conference on Parliament Hill. They drew up a list of 13 resolutions. The conference organizers found themselves taking those resolutions to the government and lobbying for implementation. After a demanding month of meetings, on March 18, feminist lawyers found themselves negotiating the wording of Section 28. And it was included when the government introduced the revised constitution in April, a month later.

Also, as a result of public hearings offered at the insistence of the Progressive Conservative party, the Liberal government did accept some of NAC, NAWL and the CACSW’s changes to Section 15, Equality Rights. The result is a Section 15 (1) that guarantees “equal benefit and protection of the law” along with equality “before and under the law.” [With this clause in Sec.15, Canadian courts recognized same sex marriage in 2005.] Announcing the revisions, Justice Minister Jean Chretien publicly thanked NAC, NAWL and the CACSW for their suggestions about the wording.

Mary Eberts noted in 2011, “If we measure women’s accomplishments with respect to the section by how well the final version matched women’s aspirations, we must be disappointed with the result. If we look at how much women accomplished in the face of indifference, resistance, or even hostility on the part of the government, the accomplishment is substantial.”

However, provincial governments had challenged the Prime Minister’s right to create a new constitution without including them. On September 28, 1981, Canada’s Supreme Court ruled that although a new constitution would intrude on provincial powers, the federal government did have the right to go ahead – but a constitutional “convention” suggested provincial consent would be a good idea. Pierre Trudeau convened a Premier’s conference, which resulted in an early morning document called the “Kitchen Accord.” Premiers demanded a new Section 33 with an “override clause” that would allow them to pass legislation that was not in compliance with rights provisions of the Charter, if the legislation began with “Notwithstanding....” Notwithstanding what? The Premiers had not been clear. Their staff started sweeping up all the fundamental rights, naming Section 2, section 7 through 15 – and they added in Section 28.

So in November, women’s groups mobilized again. This time they lobbied all ten provincial Premiers, demanding they clarify that Section 28 was never part of their negotiations. Some premiers were out of town, some provinces were in mid-election, some had their own concerns, such as Indigenous people’s rights, and refused to budge until their other concerns were addressed. Finally, after thousands of telegrams and phone calls, all ten premiers agreed. On November 24, Section 28 was declared free of the override.

Jean Chretien, then the Justice Minister, sent a letter to key organizer Rosemary Billings that said, “The government was most impressed by the Ad Hoc Conference on Women and the Constitution held in February. The proposals for amendments to the Charter were closely examined and it was felt that the above amendment (28) covered virtually all of the legitimate concerns and trust that you will now agree that we have a Charter the women of Canada can proudly support as fully protective to their rights and equality.”

The story of Section 28 marked a milestone in Canadian women’s rights -- the "greatest step forward since the Person's Case of 1929," said the Governor-General's office in awarding the Order of Canada to lawyer Marilou McPhedran. Section 28 also introduced equality wording that other countries since have incorporated in their legislation.

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Legal analysis

Although there has been some controversy among legal scholars about the effectiveness of Sections 15 and 28, most discussion has centred around Charter challenges specifically based on section 15 or 28. However, this approach overlooks two vital factors. First, in May 1982, two dozen women from across Canada met for a weekend workshop at Toronto City Hall that mapped out feminist legal strategies for using the new Sections 15 and 28 to advance women's equality. For example, they formed the Charter of Rights Educational Fund, which audited legislation in Ontario and federal law, and challenged the respective Justice Ministers to change laws that were discriminatory on their face (like the Married Woman's Name Act) before April 17, 1985, when the Charter's equality rights provisions came into effect. Similar committees formed in other provinces. Their research and presentations did lead to legislative changes even before the Charter came into effect.

Second, the same working committee also formed LEAF, the Women's Legal Education and Action Fund, to monitor court cases and act appropriately. LEAF founder Mary Eberts noted that “Women began the Charter era in 1980-1981 with a strong campaign for substantive equality guarantees and continue their quest for substantive equality using the skills and tools they put in place during that formative time...”

Since litigating is expensive – especially before the Supreme Court – LEAF's strategy has always been to act as Intervenors in cases that others bring. LEAF's website "LEAF is best known for its interventions at the Supreme Court of Canada (SCC) in cases regarding the 'substantive' equality rights of women and girls in Canada," explains LEAF's website. "However LEAF’s specialized, legal expertise produces high quality research that has influenced policy reform across health, social and justice systems. In this way, since its founding in 1985, LEAF has stopped discrimination not only through interventions in the courts but also through the production of many key papers and submissions. Each contains research and analysis on a topic, or topics, pertinent to equality rights....Our history includes intervention on hundreds of cases where interpretation of the law promises to increase or decrease the substantive equality of women and girls." For instance, LEAF intervened in the 2016 challenge to Judge Robin Camp's qualifications to sit on the bench, after he asked a sexual assault victim, "Why didn't you keep your knees closed?"

Indigenous women have also found remedy (of sorts) under Sections 15 and 28. NAC started fighting the inequality in the Indian Act’s Section 12 (1) (b) when Mary Two Axe Early came to them in 1975. The federal government revised that section at almost the eleventh hour, just before Equality Rights came into effect in April 1985 – but the compromise revision still left women and their descendants with lesser claim than men to Indian status. In 1989, Indigenous lawyer Sharon McIvor launched a civil suit citing Sections 15 and 28, to regain her son’s Indian status, and in 2016 the government has announced it is discussing a settlement with her. Sharon McIvor. As mentioned, the LGBTQ community in Canada won equal marriage in a fairly short time, under Sec. 15.

When Queen’s University law professor Beverly Baines reviewed court challenges launched specifically under Sec. 15, she found that women had made progress in the first 20 years under the Charter -- especially when men lost cases citing gender equality -- but of course, there is always room for improvement.

Equality jurisprudence under the Sections 15 and 28 may still be very new, in legal terms, but employment, income, and political election statistics show that since 1982, Canadian women have made significant advances in every area of public life -- much greater advances than women in the US, for example.