What is Section 28 of the Charter?
Answer
The clause guaranteeing that all Charter rights and freedoms apply equally to male and female persons, immune from override under section 33.
Explanation
Section 28 of the Canadian Charter of Rights and Freedoms is the gender-equality guarantee. The full text reads: 'Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons'. Section 28 is an interpretive provision rather than a stand-alone right: it ensures that every other Charter right is read to apply equally to women and men. The 'notwithstanding' opening language makes section 28 immune to override under section 33's notwithstanding clause.
The wording of section 28 was a hard-won product of the 1981 patriation negotiations. The Famous Five Plus, a coalition of women's organisations led by the National Action Committee on the Status of Women and the Ad Hoc Committee of Canadian Women on the Constitution, organised the February 14, 1981 Constitutional Conference of Women in Ottawa to insist that women's equality be entrenched without subject to section 33 override. Justice Minister Jean Chretien reportedly resisted the immunity but agreed after a national lobbying campaign.
Section 28 has been less litigated than section 15, which is the operative equality-rights provision. The Supreme Court of Canada has cited section 28 in cases including Edwards Books and Art (1986), R. v. Hess; R. v. Nguyen (1990, statutory rape provisions), Trociuk v. British Columbia (2003, fathers' rights to be named on birth registrations), and Quebec (Attorney General) v. A. (2013, common-law spousal support). The recent debate over Quebec's Bill 21 has highlighted section 28's potential application to laws that disproportionately affect women, particularly Muslim women wearing religious head coverings.
Section 28 sits within a broader gender-equality architecture in Canadian law. Section 15 of the Charter prohibits sex-based discrimination. The Canadian Human Rights Act of 1977 and provincial human-rights codes prohibit sex discrimination in employment, housing, and services. The Federal Employment Equity Act of 1995 requires federally regulated employers to remove barriers facing four designated groups including women. The Pay Equity Act of 2018 (in force August 31, 2021) requires proactive pay-equity plans. The criminal Code provisions on sexual assault, intimate-partner violence, and human trafficking provide additional protection.
Why this matters for your test
Section 28 is one of the few Charter rights immune from the notwithstanding clause and the symbolic anchor of women's constitutional equality. Recognising the immunity from section 33 and the 1981 women's lobby that produced it gives candidates two specific anchors.
Source: Canadian Charter of Rights and Freedoms, s. 28
