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.

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 mal 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 1979, 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 as the Bill of Rights, which had consistently failed to advance equality.

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.

The Liberal government did accept NAWL’s recommended addition to Section 15, Equality Rights, a clause 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.]

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. 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.

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.

The story of Section 28 marked a breakthrough in women’s rights, and introduced equality wording that other countries since have incorporated in their legislation.

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 onWomen 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.”

References:

Aboriginal rights

It has been argued that section 28 can ensure that Aboriginal and treaty rights be guaranteed equally to Aboriginal men and women. On the one hand, section 28 might be seen as ensuring only rights guaranteed by the Charter are held equally by men and women. In this case section 28 is inapplicable to Aboriginal rights, since Aboriginal rights are protected by section 35 of the Constitution Act, 1982 rather than the Charter (which constitutes sections 1-34 of the Constitution Act, 1982). However, while the Charter does not guarantee Aboriginal rights, section 25 does mention Aboriginal rights. The wording of section 28 mentions "the rights and freedoms referred to" by the Charter, not "rights and freedoms guaranteed" by the Charter. Since Aboriginal rights are referred to by section 25, section 28 may be applicable. While section 25 states that Aboriginal rights should not be limited by the Charter, this may be trumped by section 28's opening words, "Notwithstanding anything in this Charter..."

In 1983, section 35 was amended to add a clause similar to section 28. It states that "Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons." Thus, for consistency it makes sense that section 28 applies to section 25, since a sex equality interpretation explicitly applies to section 35.

History

Earlier efforts by feminist organizations and the Advisory Council on the Status of Women to include more sex equality in the Charter were met with lack of cooperation from Ottawa, leading to Chatelaine magazine editor Doris Anderson resigning from her position in the negotiations. In February and March 1981, 1,300 women came to Ottawa to stage demonstrations in favour of more sexual equality guarantees in the Charter. The content of section 28 thus first appeared in the April 1981 draft of the Charter, but in November it had to be diluted to placate Saskatchewan premier Allan Blakeney. Section 33 could now limit section 28, as Blakeney argued the section would otherwise endanger the traditional supremacy of elected bodies. If Straight from the Heart, the memoir of Jean Chrétien, Attorney General of Canada during the Charter negotiations, is to be believed, Chrétien felt the dilution was not very problematic because he expected women's protests would convince Saskatchewan to drop the issue. This is indeed what happened; one of the most vocal leaders of the protest against Blakeney's move was Anderson.