Demanding a future for section 28 of the Charter

Shervin Ghiami
JD Candidate 2021

In the history of constitutional litigation in Canada, no section has been as unjustly ignored as s. 28. The section reads:

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

S. 28 was added to the Charter after women lobbied for its inclusion, fearing that s. 15 would be insufficient to protect the equality rights of women. This fear was based on the Supreme Court’s white and male dominated demographic at the time, and the general attitude of legislators towards women in the field of law.

Now we have reached a junction in time where the Supreme Court has elaborated several key principles of the Charter in a string of landmark court cases. Yet s. 28 is ignored by the courts for the purpose of analysis and deeper synthesis. It is acknowledged as an “interpretational” principle, but what is it interpreting? The rights of women are recognized by s. 15. Yet early feminists sought to use s. 28 as a deeper point for the enrichment of women’s status in the law. The purpose was to make it unequivocally clear – that those borne of either sex must have equal status in the law. Given that s. 28 is immune to the notwithstanding clause of s. 33, this section wields potential in litigation going forward, should courts acknowledge the rich history and purpose behind its inclusion.

S. 28 was not included in the Charter so that it could be ignored.

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