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Shouting into the Constitutional Void: Section 28 and Bill 21
Kerri A Froc*
For several years now, I have been arguing that the November 1981 “Kitchen Accord” to subject section 28 of the Canadian Charter of Rights section 28 to section 33. They drafted amend and Freedoms1 is more than a symbolic flour ments to section 28 and section 33, notionally ish, more than just emphasis for section 15’s sex to “implement” the terms of the Accord (though equality guarantee, and more than an interpre first ministers never discussed section 28). The tive provision. In fact, it has its own independent opening words of Section 28 would have been work to do. This includes blocking attempts by revised to read, “Notwithstanding anything in government to use section 33 to preserve gender this Charter except section 33,” and section 33 inequality. would have been amended to end with, “or sec tion 28 of this Charter in its application to dis crimination based on sex referred to in section I did not make up this interpretation of sec 15.”4 These proposed additions were scrubbed tion 28. Rather, it is part of section 28’s text and from the Charter’s final text through the hard history and is uncontroversial among those who work of feminist advocates, women MPs from have studied the matter. That is why I was not all parties, and, angry women from across the only perplexed, but annoyed, at section 28 seem country who protested outside in the November ingly being ignored in the debate over the con cold, wrote, and phoned their governments. This stitutionality of An Act Respecting the Laicity of history, however, merely confirms that “notwith the State2 (commonly known as Bill 21). Section standing anything” means what it plainly says. 6 of Bill 21 mandates that certain government employees (including school teachers, police, Crown prosecutors and judges) do not wear In Canada… Notwithstanding, Roy Roma religious symbols at work, but in effect (if not in now, John Whyte and Howard Leeson (all mem purpose) infringes the rights mainly of Muslim bers of the November 1981 Saskatchewan consti women. It is in fact reminiscent of the way that tutional delegation) confirmed that the removal women’s rights were ignored in the 1981 consti of the application of section 33 from section 28 tutional negotiations, which galvanized women “in effect…meant that sexual equality in sec to insist upon section 28 in the first place.3 Below, tion 15 could not be overridden.”5 Justice Car I discuss section 28’s interpretation vis a vis sec ole Julien, in a 2004 Charter case involving pay tion 33, and then how it would be pled in a con equity, Syndicat de la fonction publique c Québec stitutional challenge to Bill 21. (PG), had occasion to discuss the legal effect of section 28. She noted that the predominant Section 28's beginning phrase reads: “Not scholarly opinion was that the override did not withstanding anything in this Charter.” This apply to section 28 “due to the historical context means its guarantee of equal rights is not to be of its adoption and its objectives.”6 It is unfortu derogated by other provisions of the Charter. Pro nate that this judgment was merely (and literally) vincial and federal bureaucrats attempted after a passing footnote in the recent Supreme Court
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decision, Centrale des syndicats du Québec v Que- own, preliminary data analysis to provide initial bec (AG).7 support for that point.
How would it potentially play out if litigants Of the groups mentioned, Muslims are in argued section 28 in relation to the Bill 21 con vastly greater numbers in Quebec than both stitutional challenge? There are potentially two Jews and Sikhs (men from these two other Charter claims that could be advanced by women groups have been mentioned as being the others who are adversely affected by section 6. The first affected by the law). For the last year in which is that it discriminates against them on the basis we have data (2011), there were nearly two and of sex, contrary to section 15(1). The second is a half times as many Muslims in Quebec as Jews that section 6 violates their freedom of religion and Sikhs together.8 Approximately 53%, of Mus disproportionately, so that women are unable lim women in Canada wear the hijab.9 Nearly to exercise this freedom on an equal basis with half of Quebec’s workers in the public sector are men. Sex discrimination is contrary to Charter female (among school teachers, one of the larg sections 15(1) and 28; a gender-disproportionate est groups affected by Bill 21, that percentage is violation of religious freedom would be contrary much higher).10 It stands to reason given these to sections 2(a) and 28. Section 28 is involved in statistics that most of those affected are Muslim both claims as section 6 results in unequal rights women. While some judges may not consider afforded to men and women. A section 28 viola these statistics more than a “web of instinct”,11 tion cannot be preserved using section 33. this data could be supplemented by access to information requests and litigation disclosure One could also use an alternative legal argu to obtain numbers of affected employees. Fur ment in relation to section 15. Quebec could ther, one could argue that the state demanding argue that a general sex equality violation, in and women remove clothing has a more threatening of itself, does not implicate section 28 (saying import and communicates a sex-specific devalu that section 28 does not really “add” anything to ation, given the way women’s attire has been reg the section 15 determination). However, if addi ulated and judged by law throughout history.12 tional state action is taken to attempt to preserve Thus one could argue that the qualitative impact a section 15 sex equality violation by invok constitutes a sex-based distinction in itself. ing section 33, section 28 operates to block the effect of that invocation. Taking action to pre Even apart from disparate impact, if the pur serve women’s section 15 rights violation results pose of a law is discriminatory or is to privilege in unequal rights contrary to section 28. This certain religious beliefs, then that would be a vio is quite applicable to Bill 21, in that section 30 lation of sections 15(1) and section 2(a) respec contains a pre-emptive declaration that the Act tively. A good case could be made that Bill 21 operates notwithstanding sections 2 and 7-15 of targets Muslim women based, for instance, on the Charter. the Quebec Minister for the Status of Women’s comments that the hijab is a “sign of oppres Regardless of which argument(s) you accept, sion.”13 Concerning the privileging of religious the validity of section 6 cannot be maintained by beliefs, it is worth noting that symbols of Que the section 33 override because doing so would bec’s “religious cultural heritage” (read: Christi mean section 28 is made subject to the legal anity/Catholicism) were specifically exempted effect of section 33. in a previous version of Bill 21 (section 17 now reads more neutrally but is to the same effect). A question I am sometimes asked is: where is the gender inequality in Bill 21? Many media Of course, there are potentially other ele sources have indicated that the group most ments in relation to a Charter analysis that would affected is Muslim women wearing the head have to be successfully argued, such as showing scarf (hijab), but they do not indicate the sources “disadvantage” for section 15(1) and more than they rely upon for that fact. I’ve done some of my a trivial infringement of religious freedom, for
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section 2(a). However, I do not regard those as 1 Canadian Charter of Rights and Freedoms, s 28, Part posing much of an impediment. I of the Constitution Act, 1982, Being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. In the initial challenge to the law brought by 2 An Act Respecting the Laicity of the State, SQ 2019, the Canadian Civil Liberties Association et al,14 c 12. section 28 and gender equality were relegated to 3 See e.g. Kerri A Froc, The Untapped Power of the supporting role of “context” to claims that Section 28 of the Canadian Charter of Rights and included those based on implied bills of rights, Freedoms (PhD Thesis, Queen’s University Faculty unwritten principles, and constitutional archi of Law, 2015) [unpublished]; Penney Kome, The tecture. Certainly these claims raise serious con Taking of Twenty-Eight: Women Challenge the Constitution (Toronto: Women’s Press, 1983). stitutional issues. But to me (and, I might add, 4 See Anne F Bayefsky, Canada’s Constitution Act the Supreme Court of Canada), the written text 15 1982 & Amendments: A Documentary History of the Charter can and should have primacy. (Toronto: McGraw-Hill Ryerson, 1989) vol 2 at This is especially so when the case so squarely 911-912. raises issues of religious women’s equal rights. I 5 Roy Romanow, John Whyte & Howard Leeson, thought: if not section 28 in this case, then when? Canada…Notwithstanding: The Making of the Constitution 1976-1982 (Toronto: Carswell, 1984) I am gratified that a group led by Comité at 213. Juridique de la Coalition Inclusion Québec 6 Syndicat de la fonction publique c Québec (PG), brought another challenge to the law in which [2004] RJQ 524 at para 1422, 2004 CanLII 656 (Qc section 28 features prominently, and that, in the SC) [translated by author] (“Ainsi selon les auteurs, appeal of CCLA’s unsuccessful application for an en raison du contexte historique de son adoption injunction, the Chief Justice of Quebec recently et des objectifs visés, l’article 28 protégerait de requested submissions on section 28. façon particulière le droit à l’égalité des sexes. Le législateur ne pourrait y déroger par application de Ultimately, I hope that section 28 contributes l’article 33”). to a court decision that Bill 21 cannot be vali 7 Centrale des syndicats du Québec v Quebec (AG), dated through the Quebec government’s invo 2018 SCC 18 at 535, n 1. cation of the section 33 override. I hope that 8 See Statistics Canada, 2011 National Household there is some judicial acknowledgement that the Survey: Data tables, Catalogue No 99-010- equality of Muslim women cannot be sacrificed X2011032 (Ottawa: Statistics Canada, 2013). to feed nationalist campaigns based on projec 9 See Environics Institute for Survey Research, Survey of Muslims in Canada 2016 Final Report tions of Muslim threat to Western European (Toronto: Environics Institute for Survey Research, cultural identity, as well as what one author has 2016) at 18. 16 called “femonationalism.” Finally, I am hopeful 10 See Canada, Canada’s Fifth Report on the United that this case may be the “big bang” needed to Nations’ Convention on the Elimination of All fill the void in Canadian constitutional law with Forms of Discrimination against Women (Ottawa: a more meaningful interpretation of section 28's Government of Canada, 1998) at 136. important equal rights guarantee. 11 See Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at para 34 (referring to the evidence required to demonstrate disparate impact under s.15(1) of the Charter). 12 See e.g. Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes (Cambridge: Cambridge Endnotes University Press, 2013). * Kerri A Froc is an Assistant Professor in the 13 See Philip Authier, “Quebec Minister for Women Faculty of Law, University of New Brunswick. Stands by Belief That Hijabs are Oppressive” The original version of this article was published (6 February 2019), online: Montreal Gazette on the Double Aspect blog (24 June 2019):
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14 See Canadian Civil Liberties Association, which concerns elected representatives of the “Constitutional Challenge and Application for National Assembly being required to exercise their Suspension of the Law” (17 June 2019) at para 138, functions with their faces uncovered. online (pdf):
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