“Matriating” the Constitution: A Historical Overview of Section 28 of the Charter in the Lead-Up to Bill 21’s Appeal Before the Supreme Court of Canada

Next week, the Supreme Court of Canada (“SCC”) will spend four days on a landmark hearing on the constitutionality of Quebec’s controversial Bill 21.^[1]

Enacted in 2019, Bill 21 — formally known as An Act respecting the laicity of the state^[2] — seeks to enforce secularism in the province by targeting the wearing of religious symbols in the public sphere. The law requires certain civil servants — lawyers, police officers, and public school teachers among them — to remove religious symbols and attire when performing their duties.^[3] It also requires public workers and those accessing public services to uncover their faces.^[4] 

Put into practice, the law disproportionately affects Muslim women and engages section 2(b) (freedom of religion) and section 15 (equality rights) of the Canadian Charter of Rights and Freedoms (“Charter”).^[5] While the National Assembly’s invocation of section 33’s notwithstanding clause has precluded the ability of courts to strike down Bill 21 for violating those rights, another less well known section of the Charter may be available to skirt around the notwithstanding clause and allow the SCC to strike the law down as unconstitutional.

Section 28 of the Charter provides:

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

Challengers to Bill 21 have argued that this section is a separate and stand-alone provision guaranteeing gender equality that, unlike section 15, is not subject to the notwithstanding clause. The argument here is that while there is no question that section 33 insulates a statute from being struck down for unjustifiably violating rights in sections 2 and 7-15 of the Charter, the courts may still be able to declare a statute invalid for infringing section 28.

“May” is, of course, the operative word here. The Quebec Court of Appeal rejected this application of section 28, holding that the provision only informs the interpretation of other Charter rights and does not create a stand-alone equality right in itself.^[6] Nevertheless, this question is set to be put before the SCC on appeal, and the Court may well rule on the legal effect of section 28.

With this decisive moment before us, it is worth examining the history of section 28 and the intention behind its inclusion in the Charter, as it can help inform our understanding of the provision and its possible power as an independent override to the Charter’s (second and more well-known) notwithstanding clause.^[7]

Failures of Gender Equality Prior to Patriation

The drive to include section 28 in the Charter was heavily informed by the historical failures of gender equality in Canadian law prior to patriation, beginning notably with the creation of the country’s first constitutional document. Women were excluded from Confederation and the drafting of the Constitution Act, 1867^[8] (then referred to as the British North America Act, or the “BNA Act”), as at the time they were denied legal personhood and the associated capacity to participate in political, legal, and professional life.[9] In fact, women were not formally recognized as “persons” under the BNA Act until the Persons Case (formally known as Edwards v Canada) in 1929.^[10] But even after the recognition of women’s legal personhood, legal guarantees of equality among the sexes were slow to materialize.[11]

Some progress was made through the introduction of the Canadian Bill of Rights (“Bill of Rights”)^[12] in 1960. A precursor to section 15 of the Charter, section 1 of the Bill of Rights recognizes that “the right of the individual to equality before the law and protection of the law” exists “without discrimination by reasons of … sex.”^[13] This equality guarantee, however, came with limits. As a federal statute, the Bill of Rights did not apply to provincial governments. For rights protection at the provincial level, women would need to rely on provincial human rights statutes, which were introduced in a patchwork fashion across the country largely throughout the 60s and 70s. By the time the 1970 Report by the Canadian Royal Commission on the Status of Women was released, human rights statutes in only two provinces protected against discrimination on the basis of sex (those being BC and Ontario, with the other provinces following suit in the subsequent decade).^[14]

The most glaring failure of the Bill of Rights, however, lay with how the statute’s “equality before the law” guarantee was applied. Jurisprudence around the Bill of Rights understood equality through the lens of procedural or formal equality, rather than substantive equality, or equity. This understanding of equality focused strictly on whether like was treated as like, giving no nuanced recognition of differences or unequal treatment among groups. Perhaps the best encapsulation of the Bill of Rights’ flawed approach to equality can be seen in the 1973 Lavell case, where the SCC held that section 12(1)(b) of the Indian Act — which stripped “Indian” status from women who married non-status husbands but permitted status men to retain status and confer it to non-status wives — respected equality under section 1(b) of the Bill of Rights.^[15] In this decision, the majority of the SCC understood “equality before the law” in the Bill of Rights to mean “equality in the administration or application of the law.”^[16] With this understanding of equality in mind, the majority of the Court reasoned that Section 12(1)(b) of the Indian Act did not violate section 1(b) of the Bill of Rights because it treated all status women who married non-status men the same way^[17] — effectively ignoring the unequal treatment seen when comparing the application of the law to status women against the application of the law to status men.

Another shortcoming of the Bill of Rights was the fact that it was an ordinary statute which could be freely amended or repealed by Parliament, leaving its already limited anti-discrimination protections vulnerable to being erased completely. This drawback led to the growth of interest in the constitutional entrenchment of equality rights in the years following the passage of the Bill of Rights,[18] and the default to formal equality when applying that statute moved women to push for a more robust gender equality guarantee when discussions of patriation began in the late 1960s.[19]

Patriation & Women’s Constitution-Building

As Canada entered its centennial year in 1967, discussion around patriating and amending the Constitution gained momentum.^[20] While the addition of a charter of rights was a top priority for the federal government, provincial governments were divided on whether a charter should be constitutionally entrenched and, if so, whether a non-discrimination provision should be included.^[21] A series of constitutional conferences and First Ministers meetings discussing constitutional revision proceeded from 1968-1980, producing different proposals and drafts for a charter of rights.^[22] These drafts, however, varied in the scope of rights they recognized, with little or no focus on gender equality specifically.^[23] This series of proposals eventually led to a draft resolution for patriation and constitutional amendment that was tabled in October 1980. This resolution included a draft charter with a non-discrimination provision, section 15, which prohibited discrimination on certain listed grounds, including sex.^[24]

But the constitutional renewal project was not happening in the (male-dominated) sphere of executive federalism alone. At the same time that the federal and provincial governments were trying to negotiate a new constitutional package, individual citizens and women’s groups were working to engage in constitution-building.^[25] Specific criticism was leveled against the draft charter’s section 15 non-discrimination clause for being a reproduction of section 1 of the Bill of Rights — the concern being that it would come with the same interpretive failures seen in the Bill of Rights jurisprudence on gender equality.^[26] Concern was also raised against the draft charter’s section 1, which made the guaranteed rights subject to “reasonable limits as are generally accepted in a free and democratic society.”[27]

Building on these criticisms, constitutional experts such as Mary Eberts and Beverley Baines argued that a separate provision be added to the charter to clearly guarantee that men and women be treated equally before the law.^[28] Calls to amend section 15’s drafting and adopt a separate “purpose clause” that protected sex equality were in turn taken up by women’s groups such as the National Action Committee on the Status of Women, the Canadian Advisory Council on the Status of Women (“CACSW”), and the National Association of Women and the Law (“NAWL”) in their submissions to the Special Joint Committee on the Constitution (“Joint Committee”), including in testimony before the Joint Committee’s televised hearings, which ran from November 7, 1980 to February 9, 1981.^[29]

In January 1981, the Trudeau government tabled changes to the draft charter in response to presentations made to the Joint Committee.[30] One change made to the draft was an amendment to the text of section 15 to guarantee equality “before and under the law and … equal protection and equal benefit of the law.”^[31] This amendment responded to the concerns raised about section 15 to avoid the narrow interpretation of equality seen under the Bill of Rights.^[32] Notably, however, no sex equality purpose clause was included in this draft, the implication being that it was unnecessary given the amendments to section 15.^[33] This omission was keenly felt, though, especially as new concerns for gender equality were raised by two other additions to the draft charter. A multiculturalism provision (today’s section 27) and an Aboriginal rights provision (today’s section 25) were introduced in the January amendments,^[34] and advocates raised concerns about how these two interpretive provisions could impact gender equality, highlighting the risk that women’s rights could be subordinated by male-dominated cultural practices or governance/status rules created by Indigenous communities.^[35]

A new phase of mobilization then began following the January 1981 amendments. A CACSW constitutional conference (initially planned for September 1980 but later postponed and rescheduled for February 1981) was cancelled following pressure on the CACSW Board by then-Minster for the Status of Women, Lloyd Axworthy.^[36] Despite the cancellation, women’s groups were determined to continue, and an Ad Hoc Committee of Canadian Women on the Constitution (“Ad Hoc Committee”) was created.^[37] The Ad Hoc Committee set to work, organizing a national conference to review the recent charter amendments and determine what further changes were needed to protect and improve the status of women.^[38] A dedicated resolutions committee was formed to research, compile, and distribute informal draft resolutions that were to be discussed, developed, and approved during the conference, hosted on February 14 and 15, 1981.^[39] One of the main resolutions taken up at the conference advocated for a purpose clause to be inserted into the beginning of the Charter, stating that the rights and freedoms be guaranteed equally to men and women, with no limitations.^[40] This resolution, submitted by NAWL representatives Tamra Thomson and Deborah Acheson, received near unanimous support, passing with only one vote against it.^[41]

Immediately after the Ad Hoc conference, representatives from the Ad Hoc Committee and NAWL began directly lobbying MPs on Parliament Hill, using their connections to share and publicize the conference resolutions in order to highlight (among other priorities) the specific need for a gender equality clause.^[42] On March 18, 1981, a formal meeting to negotiate textual changes was held between Marilou McPhedran, Suzanne Boivin, Tamara Thomson, and Beverley Baines, representing the Ad Hoc Committee and NAWL, and Fred Jordan and Edythe McDonald, lawyers from the Department of Justice.^[43] A memo from the meeting indicates that there were three principal amendments that were discussed, the purpose clause being the most critical. The Ad Hockers brought draft wording that informed the language of the gender equality clause that was agreed upon in that meeting, drawn from NAWL’s submission to the Joint Committee in 1980 and the relevant resolution discussed and passed at the Ad Hoc conference.^[44] Notably, the “notwithstanding” phrasing in the new provision was purposely included as strategic language to allow the provision to overcome both the operation of section 27’s multiculturalism clause and section 1’s rights limitation mechanism.^[45] While the hope was for the gender equality clause to be placed at the beginning of the charter, the Justice lawyers proposed that it be inserted immediately after the multiculturalism clause as section 28, the rationale being that this placement would allow the guarantee to modify section 27 specifically, following the interpretive principle that later provisions modify earlier ones.^[46]

After the wording of the provision was agreed upon in that meeting, more lobbying was done to ensure all federal political parties agreed to an amendment inserting the new clause into the draft charter.^[47] A motion to amend the draft to include section 28 was made by the NDP on April 23, 1981, and it passed unanimously, inserting the gender equality guarantee into the proposed constitutional package.^[48]

Section 28, The Kitchen Accord, and the Second Notwithstanding Clause

Section 28’s position in the Charter appeared settled following the lobbying efforts and negotiations of Spring 1981, but the round of patriation negotiations between the federal and provincial governments in November 1981 proved that a principled commitment to gender equality was anything but certain. The infamous Kitchen Accord of November 5, 1981 established a consensus among nine of the ten First Ministers for a deal that notably added a(nother) notwithstanding clause to the draft charter.[49] The deal was clear that this new clause would override the sections dealing with fundamental freedoms (section 2), legal rights (sections 7-14), and equality rights (section 15), but there arose questions about whether the clause would override section 28’s gender equality provision as well and, if so, to what extent.^[50] 

In the House of Commons on November 6, NDP MP Pauline Jewett asked the Prime Minister if section 28 would “continue to have paramountcy” as intended, and Trudeau affirmed that it was his impression that the clause would continue unaffected.^[51] But after a weekend of further drafting, when asked by the Opposition leader, Joe Clark, to confirm the notwithstanding clause would not apply to the gender equality guarantee, Trudeau replied that the notwithstanding clause would apply to that section.^[52]

A revised charter was tabled on November 20, where section 28 was amended to read:

Notwithstanding anything in this Charter except section 33, the rights and freedoms referred to in it are guaranteed equally to male and female persons.[53]

Section 33, meanwhile, was drafted to read:

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter, or section 28 of this Charter in its application to discrimination based on sex referred to in section 15.[54]

Trudeau maintained that section 33’s override to section 28 was a consequence of the hard bargain that had been set by the provinces.^[55] He made the position clear: the gender equality provision would only revert to its original drafting if the provinces unanimously agreed to withdraw it from section 33’s reach.^[56] With this challenge set, female politicians, journalists, citizens, and women’s organizations began to lobby the provincial premiers yet again, this time to free section 28 from section 33. Phone campaigns, marches on provincial legislatures, and internal caucus negotiations were put into motion to pressure and convince First Ministers to change their positions.^[57] Eventually, Saskatchewan stood as the lone hold-out, with Premier Allan Blakeney asserting that he would only agree to remove the notwithstanding clause from section 28 if Aboriginal rights (which were removed from the constitutional draft by the Kitchen Accord) were renegotiated into the constitutional package.^[58] While some felt that Blakeney was using section 28 as a “bargaining chip,”[59] Blakeney’s position was that removing the application of section 33 to section 28 would be a substantive change to the November agreement (which was intended to be final), and if the accord was going to be reopened to amend the relationship between sections 28 and 33, then he felt it only fair to also change the agreement to renegotiate a section recognizing Aboriginal rights.^[60] After fierce and specific pressure was put on Blakeney — and after even more negotiation among First Ministers to reinstate Aboriginal rights in what we now know as section 35 — all the premiers were moved to modify the agreement, removing section 28 from section 33’s override. On November 23, Justice Minister Jean Chretien announced that all the provinces had come to agree that section 28 should apply without the section 33 override clause,^[61] and in the final version of the Constitution Act adopted on December 2, 1981, we see the text of sections 28 and 33 free of any reference to the other.

Lingering Questions

As we come to the Bill 21 appeal before the SCC, a key question needs to be answered: is section 28 merely interpretive, or not?^[62] That is, does section 28 have independent legal (substantive) force, or (as is the position taken by the Quebec Court of Appeal) does it only inform the rights set out in sections 2-24, meaning it is effectively overridden by derivation when section 33 is invoked? And if it is determined that section 28 is interpretive, the question becomes how it affects the application of section 33: can its position as an interpretive provision constrain section 33?

The most pressing question, though, concerns the role section 28’s history plays in answering these questions. The interpretive principle of “originalism” — which focuses on the original intention of a Constitution’s drafters — has been continually rejected by the SCC in favour of the “living tree” doctrine (which was coincidentally established in the Edwards decision that recognized women as “persons”). When interpreting the Charter, the SCC has insisted repeatedly that courts must take a purposive approach.[63] This requires judges to understand rights contextually, considering the nature and objectives of the Charter itself, the language of the specific provision, its historic origins, and even the meaning and purpose of related rights and freedoms.[64] History, then, certainly has a place in interpretation, but is not the only consideration.

The upshot of this is that the history behind section 28 cannot be overlooked, even if it is not necessarily dispositive of the interpretive questions that need to be addressed. This allows us to appreciate section 28 as a case study of the tireless behind-the-scenes bargaining, compromise, and advocacy that took place at and beyond the margins of the formal negotiations between First Ministers we think of when discussing patriation and the constitution-making process of the 1980s. Such an appreciation not only illuminates the efforts of citizens whose contributions to the making of the Charter have been largely overlooked, if not overtly dismissed; it also underscores the equality interests being championed by those parties, showing us what is really at stake when interpreting and applying Charter rights.

The record is clear that individual women and advocacy groups fought for a gender equality guarantee to be included in the Charter, and were adamant that it be a stand-alone provision insulated from the threat posed by the section 33 override. How the clause came into being, the intention behind it, the details of its drafted language, and its specific relationship with section 33 supports the position that it is a substantive guarantee that cannot, and should not, be derogated from or nullified. To hold otherwise would be to ignore the constitution-building undertaken by the women of Canada.

***

Kira Davidson is the Public Legal Education Coordinator with the Centre for Constitutional Studies at the University of Alberta

[1] The SCC hearing for English Montreal School Board, et al v Attorney General of Quebec, et al, is scheduled for March 23-26. For further case information, see <https://www.scc-csc.ca/cases-dossiers/search-recherche/41231/>.

[2] SQ 2019, c 12.

[3] Ibid, s 6.

[4] Ibid, s 8.

[5] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[6] See World Sikh Organization of Canada v Attorney General of Quebec, 2024 QCCA 254 at paras 429, 505-506.

[7] Special recognition has to go to Kerri Froc, whose PhD dissertation details the history of section 28 and the fierce feminist momentum that enabled it to come into being. See Kerri Anne Froc, “The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms” (PhD Dissertation, Queens University, 2015). Much of the information relied on in writing this blog is taken specifically from Chapter 3, “Matriating the Constitution” — including the title of this post.

[8] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

[9] Froc, supra note 7 at 115-116.

[10] Edwards v Canada (Attorney General), 1929 CanLII 438 (UK JCPC).

[11] Froc, supra note 7 at 117.

[12] SC 1960, c 44 [Bill of Rights].

[13] Ibid, s 1(b).

[14] Froc, supra note 7 at 118, citing Report of the Royal Commission on the Status of Women in Canada (Ottawa: Information Canada, 1970) at 97-98.

[15] Attorney General of Canada v Lavell, 1973 CanLII 175 (SCC), [1974] SCR 1349 [Lavell]; Indian Act, RSC 1985, c I-5, s 12(1)(b).

[16] Lavell, supra note 15 at 1366.

[17] See Froc, supra note 7 at 121.

[18] See Barry L Strayer, “The Evolution of the Charter” in Lois Harder & Steven Patten, eds, Patriation and Its Consequences: Constitution Making in Canada (Vancouver: UBC Press, 2015) 72 at 75-79.

[19] Froc, supra note 7 at 137.

[20] Strayer, supra note 18 at 76.

[21] See Froc, supra note 7 at 123-128; Strayer, supra note 18 at 76-79.

[22] See Froc, supra note 7 at 123-128; Strayer, supra note 18 at 78-81.

[23] Froc, supra note 7 at 123; Strayer, supra note 18 at 79-80.

[24] Froc, supra note 7 at 128-129.

[25] Ibid at 132.

[26] Ibid at 132-133. See notably Mary Eberts, “Women and Constitutional Renewal” in Audrey Doerr and Michelle Carrier, eds, Women and the Constitution (Ottawa: Canadian Advisory Council on the Status of Women, 1981) 1; Beverley Baines, “Women, Human Rights and the Constitution” in Audrey Doerr and Michelle Carrier, eds, Women and the Constitution (Ottawa: Canadian Advisory Council on the Status of Women, 1981) 31.

[27] Froc, supra note 7 at 133.

[28] Ibid at 134-135.

[29] Ibid at 137-141.

[30] Ibid at 141-142.

[31] Ibid at 142.

[32] Ibid.

[33] Ibid at 142-143.

[34] Ibid at 143-150.

[35] Ibid at 148-149; Strayer, supra note 18 at 88.

[36] Froc, supra note 7 at 152.

[37] Ibid at 153.

[38] Ibid at 156.

[39] Ibid at 154-155.

[40] Ibid at 157-158.

[41] Ibid at 158, 169.

[42] See Ibid at 190-192, 198-200.

[43] Ibid at 202.

[44] Ibid at 203.

[45] Ibid at 204-206.

[46] Ibid at 205.

[47] Ibid at 207.

[48] Ibid at 209.

[49] See Strayer, supra note 18 at 89-90.

[50] Marilou McPhedran, Judith Erola & Loren Braul, “‘28 – Helluva Lot to Lose in 27 Days’: The Ad Hoc Committee and Women’s Constitutional Activism in the Era of Patriation” in Lois Harder & Steven Patten, eds, Patriation and Its Consequences: Constitution Making in Canada (Vancouver: UBC Press, 2015) 203 at 206.

[51] Ibid.

[52] Ibid at 207.

[53] Ibid at 214.

[54] Ibid.

[55] Ibid at 210.

[56] Ibid at 211.

[57] Froc, supra note 7 at 215-219. Judith Erola, who was the federal minister for the status of women at the time, provides her perspective of these lobbying efforts in McPhedran, Erola & Braul, supra note 50 at 209-210.

[58] Ibid at 212.

[59] Froc, supra note 7 at 223.

[60] See Howard Leeson, “Patriation and Section 35: The Role of Allan Blakeney in Securing Indigenous Rights” (2023) 32:2 Const Forum Const 1 at 17-18.

[61] McPhedran, Erola & Braul, supra note 50 at 217.

[62] Compare Gerard Kennedy, “They’re All Interpretive: Towards a Consistent Approach to ss 25-31 of the Charter” (2023) 56:3 UBC L Rev 743; Emmett Macfarlane, “Not Merely Interpretive: The Supreme Court’s Application of Section 25 of the Charter of Rights and Freedoms and its Implications for Section 28” (2024) 33:3 Const Forum Const 17.

[63] Hunter v Southam Inc, 1984 CanLII 33 (SCC) at 156-157.

[64] R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC) at para 117.