{"id":3194,"date":"2019-06-29T03:00:43","date_gmt":"2019-06-29T03:00:43","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3194"},"modified":"2019-06-29T03:04:11","modified_gmt":"2019-06-29T03:04:11","slug":"deconstructing-section-28","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/deconstructing-section-28\/","title":{"rendered":"Deconstructing Section 28"},"content":{"rendered":"\n
Professor Kerri Froc has written a thoughtful guest post for Double Aspect<\/a>, in which she argues that s. 28 of the Charter<\/em> is not merely an interpretive provision, but is rather a substantive and justiciable section in its own right. The implication if she is correct should not be understated.<\/p>\n\n\n\n Section 28 states: Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. <\/strong>Professor Froc argues that the addition of the non obstante <\/em>(notwithstanding) clause in s. 28 means that s. 28 is paramount to all other sections in the Charter<\/em>. She specifically cites s. 33, but the necessary implication of her position is that s. 28 would also supersede, and therefore not be subject to, s. 1. A government could not invoke the notwithstanding clause in the face of a sexually discriminatory law, nor could it argue that the law imposed a “reasonable limit.” Sexual equality, in other words, would hold the unique status of being an absolute right.<\/p>\n\n\n\n In this post, I will tackle Professor Froc’s interpretation of s. 28. I will first argue that while s. 28 is an important interpretive provision, it does not contain an independent and justiciable right. It is certainly plausible to read s. 28 as not being subject to s. 1’s reasonable limits; however, a Charter right guaranteed to one sex but not the other would arguably never constitute a reasonable limit regardless. Following from this, I will argue that, since s. 28 does not contain an independent and justiciable right, and since Charter provisions should be read harmoniously whenever possible, s. 28 does not negate the application of s. 33 to laws that discriminate on the basis of sex. Section 28 concerns the proper interpretation of rights, while s. 33 concerns the operation of laws that violate those rights. Both provisions are therefore capable of coexisting without recourse to s. 28’s non\u00a0obstante <\/em>clause.<\/p>\n\n\n\n Professor Froc is a well-recognized authority on the history of s. 28 of the Charter. Her work has admittedly piqued my interest and I have since taken the liberty of reading many of the Charter debates, which can now be accessed on PrimaryDocuments.ca<\/a> – MP Scott Reid’s outstanding public service achievement. There can be no dispute that many women’s groups fought hard for the inclusion of this section. The fact that it was not only included, but was amended to read “Notwithstanding anything in this Charter” must mean something more than nothing. But it does not follow that simply because the provision has meaning, it must therefore contain an independent and justiciable right.<\/p>\n\n\n\n The history of s. 28’s enactment is certainly interesting in its own right, but great care should be taken in how we utilize that history. Statements made by legislators or interest groups do not form binding interpretations of law. As Lord Sankey said in the famous Persons<\/em> case, “the question is not what may be supposed to have been intended, but what has been said.” The desire of certain lobbyists and legislators to enumerate a blanket right of “sexual equality” cannot supersede the legal meaning of the provision that was ultimately enacted. <\/p>\n\n\n\n Professor Froc is correct that s. 28 begins with the words “Notwithstanding anything in this Charter.” On its face, this means that s. 28 supersedes all other provisions of the Charter to the extent there is any conflict, including s. 1. However, it is a well-established principle of statutory interpretation that non obstante <\/em>clauses do not create <\/em>conflicts; they merely state which provision prevails in the event<\/em> of a conflict (see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts <\/em>(St. Paul, MN: Thomson\/West, 2012) at 126 – 128). Thus, it would be premature to conclude the matter simply by noting the presence of the non obstante<\/em> clause at the outset of s. 28. The question remains: what exactly is it that supersedes the rest of the Charter in the event of a conflict?<\/p>\n\n\n\n Section 28 plainly does not enumerate a separate right. It refers to the rights already enumerated <\/em>in the Charter and states that those rights are “guaranteed” equally to men and women. The wording of s. 28 mirrors that of s. 1. Both speak of the rights and freedoms set out in the Charter as being “guaranteed” (the French words are also the same – garantit\/garantis) and it is reasonable to conclude that the words have the same meaning in each section. Section 1 clearly conveys something akin to a promise or an assurance of possession. Section 28 is therefore properly interpreted to mean that this assured possession rights applies equally to men and women.<\/p>\n\n\n\nThe Text and Context of Section 28<\/h4>\n\n\n\n