Section Twenty-eight of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Twenty-eight of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada
's Charter of Rights
. 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:
. Instead, section 28 ensures that men and women have equal claim to rights listed in the Charter. Section 28 can be more beneficial to women in that the section 33 notwithstanding clause
can be used to nullify women's section 15 rights, but not to impair the operation of section 28. Constitutional scholar Peter Hogg
has even speculated that section 28 cannot be limited by a section 1 test
, given that section 28 is supposed to operate "notwithstanding" other Charter provisions. Nevertheless, in the judicial decision Blainey v. Ontario Hockey Association et al. (1986), it was found that section 28 should have limits of some sort, or it would threaten "public decency" and affirmative action
meant to aid women.
In the case Native Women's Association of Canada v. Canada
(1994), the Court considered and rejected the argument that section 28 could reinforce section 2
of the Charter (freedom of expression) so that a women's interest group could receive equal benefits as other Aboriginal interest groups in constitutional negotiations, as the other groups had received government money to discuss their concerns. While the Court acknowledged that discussing issues in constitutional negotiations is a matter of expression, there was no evidence that Aboriginal women received lesser rights, as the favoured groups supposedly represented both Aboriginal men and women.
context in which women's claims can be better understood"; it existed to remind judges charged with enforcing the Charter that women had been "recognized as 'persons'" and had gained more equality in marriage
. This would, in turn, hopefully strengthen women's rights in section 15, which feminists felt was needed after having been disappointed by pre-Charter women's rights case law. In fact, in the British Columbia Court of Appeal
case R. v. Red Hot Video (1985), some judges did refer to section 28 to say that laws against allegedly sexist obscenity
could be upheld; section 28 could have a role to play in a section 1 test upholding laws against obscenity. This line of thinking, however, has had little influence since.
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.
, 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.
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
's Charter of Rights
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. 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
Equal Rights Amendment
The Equal Rights Amendment was a proposed amendment to the United States Constitution. The ERA was originally written by Alice Paul and, in 1923, it was introduced in the Congress for the first time...
in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
.
The section reads:
Interpretation
Section 28 is not so much a right because it does not state that men and women are equal; this is done by section 15Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
. Instead, section 28 ensures that men and women have equal claim to rights listed in the Charter. Section 28 can be more beneficial to women in that the section 33 notwithstanding clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
can be used to nullify women's section 15 rights, but not to impair the operation of section 28. Constitutional scholar Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
has even speculated that section 28 cannot be limited by a section 1 test
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
, given that section 28 is supposed to operate "notwithstanding" other Charter provisions. Nevertheless, in the judicial decision Blainey v. Ontario Hockey Association et al. (1986), it was found that section 28 should have limits of some sort, or it would threaten "public decency" and affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
meant to aid women.
In the case Native Women's Association of Canada v. Canada
Native Women's Association of Canada v. Canada
Native Women's Association of Canada v. Canada, [1994] 3 S.C.R. 627, was a decision by the Supreme Court of Canada on section 2, section 15 and section 28 of the Canadian Charter of Rights and Freedoms, in which the Court decided against the claim that the government of Canada had an obligation to...
(1994), the Court considered and rejected the argument that section 28 could reinforce section 2
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Charter (freedom of expression) so that a women's interest group could receive equal benefits as other Aboriginal interest groups in constitutional negotiations, as the other groups had received government money to discuss their concerns. While the Court acknowledged that discussing issues in constitutional negotiations is a matter of expression, there was no evidence that Aboriginal women received lesser rights, as the favoured groups supposedly represented both Aboriginal men and women.
Alternative interpretations
The standard conservative reading of section 28 came as a disappointment to feminists. As the Canadian Advisory Council on the Status of Women noted, many of the feminists who pushed for having section 28 in the Charter hoped that it would not just be read literally but would also "provide a social and historicalHistory
History is the discovery, collection, organization, and presentation of information about past events. History can also mean the period of time after writing was invented. Scholars who write about history are called historians...
context in which women's claims can be better understood"; it existed to remind judges charged with enforcing the Charter that women had been "recognized as 'persons'" and had gained more equality in marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
. This would, in turn, hopefully strengthen women's rights in section 15, which feminists felt was needed after having been disappointed by pre-Charter women's rights case law. In fact, in the British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
case R. v. Red Hot Video (1985), some judges did refer to section 28 to say that laws against allegedly sexist obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
could be upheld; section 28 could have a role to play in a section 1 test upholding laws against obscenity. This line of thinking, however, has had little influence since.
Aboriginal rights
It has been argued that section 28 can ensure that Aboriginal and treaty rights be guaranteed equally to AboriginalAboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
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
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
rather than the Charter (which constitutes sections 1-34
Section Thirty-four of the Canadian Charter of Rights and Freedoms
Section Thirty-four of the Canadian Charter of Rights and Freedoms is the last section of Canada's Charter of Rights, which is entrenched in the Constitution Act, 1982. Section 34 provides guidance for the legal citation of the Charter....
of the Constitution Act, 1982). However, while the Charter does not guarantee Aboriginal rights, section 25
Section Twenty-five of the Canadian Charter of Rights and Freedoms
Section Twenty-five of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter...
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 OttawaOttawa
Ottawa is the capital of Canada, the second largest city in the Province of Ontario, and the fourth largest city in the country. The city is located on the south bank of the Ottawa River in the eastern portion of Southern Ontario...
, leading to Chatelaine magazine
Magazine
Magazines, periodicals, glossies or serials are publications, generally published on a regular schedule, containing a variety of articles. They are generally financed by advertising, by a purchase price, by pre-paid magazine subscriptions, or all three...
editor Doris Anderson
Doris Anderson
Doris Hilda Anderson, was a Canadian author, journalist and women's rights activist.She was born in Calgary, Alberta as Hilda Doris Buck. She attended Crescent Heights High School and received a Bachelor of Arts degree from the University of Alberta in 1945...
resigning from her position in the negotiations. In February and March 1981, 1,300 women came to Ottawa
Ottawa
Ottawa is the capital of Canada, the second largest city in the Province of Ontario, and the fourth largest city in the country. The city is located on the south bank of the Ottawa River in the eastern portion of Southern Ontario...
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
Saskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
premier Allan Blakeney
Allan Blakeney
Allan Emrys Blakeney, PC, OC, SOM, QC, FRSC was the tenth Premier of the Canadian province of Saskatchewan from 1971 to 1982, and leader of the Saskatchewan New Democratic Party .-Life and career:...
. 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
Memoir
A memoir , is a literary genre, forming a subclass of autobiography – although the terms 'memoir' and 'autobiography' are almost interchangeable. Memoir is autobiographical writing, but not all autobiographical writing follows the criteria for memoir set out below...
of Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
, 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.