Section 28 – Gender equality rights

Provision

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

Similar provisions

Section 35(4) of the Constitution Act, 1982 is a similar provision. It states that “Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons”. At the international level, Article 3 of the International Covenant on Civil and Political Rights and Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women are similar provisions.

Purpose

Section 28 applies “notwithstanding any other provision in the Charter” (Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, at paragraph 173). It requires that the rights and freedoms referred to in the Charter be guaranteed without discrimination between the sexes. Section 28 is often cited as a companion section with section 15 in cases alleged to raise gender discrimination issues (R. v. Park, [1995] 2 S.C.R. 836; Symes v. Canada, [1993] 4 S.C.R. 695; R. v. Brown, 2022 SCC 18, at paragraph 70). It does not, however, create an equality rights regime separate and apart from that contained in section 15 of the Charter. Instead, it serves an interpretive, confirmatory, and adjunctive function (Organisation mondiale sikhe du Canada c. Procureur général du Québec, 2024 QCCA 254).

Analysis

During the period from 1982 until April 1985, section 28 was the only Charter guarantee of sex equality. It has been said that this may be the main effect of that section. There is to date limited jurisprudence on section 28.

Section 28 guarantees that the rights and freedoms referred to in the Charter apply equally to men and women. It does not guarantee equality with respect to other rights not mentioned in the Charter (Organisation mondiale sikhe du Canada, supra at paragraphs 450, 465; R. v. Morgentaler et al., (1984), 1984 CanLII 2051 (ON SC), 12 D.L.R. (4th) 502 (Ont. S.C.); appeal quashed, (1984), 1984 CanLII 55 (ON CA), 16 C.C.C. (3d) 1 (Ont. C.A.)).

1. Section 28 and Charter rights

Section 28 has also been argued along with other sections as a way of amplifying the context of a particular Charter right or freedom. For example, it was argued, in combination with section 15, in cases involving freedom of expression under section 2(b) (Native Women’s Association of Canada v. Canada, 1994 3 S.C.R. 627) and in cases involving section 7 (New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46).

In Osolin, the Supreme Court of Canada referred to section 28 in determining whether limits should be placed on the fair trial rights of an accused under sections 7 and 11(d) of the Charter. The Court recognized that sexual assault is different from all other forms of assault, in that it is in the vast majority of cases gender-based, and it constitutes a denial of any concept of equality for women. Cory J. held: "The provisions of section 15 and section 28 of the Charter guaranteeing equality to men and women, although not determinative, should be taken into account in determining the reasonable limitations that should be placed on the cross-examination of a complainant" in a sexual assault trial (R. v. Osolin, [1993] 4 S.C.R. 595; also cited in R. v. Mills, [1999] 3 S.C.R. 668).

2. Section 28 and section 25

Section 28 is a limit on the operation of section 25 of the Charter. Where there is an irreconcilable conflict between an individual Charter right and an Indigenous collective right, section 25 operates to give primacy to the Indigenous right, except where the Indigenous right “shelters gender-based discrimination” (Dickson v. Vuntut Gwitchin First Nation, supra at paragraph 173; see also paragraphs 110, 182 and 227).

3. Section 28 and section 33

With respect to section 33, it remains unsettled whether section 28 means that, even where a legislature or Parliament passes legislation allowing abrogation or infringement of section 2 or sections 7-15 of the Charter, it will not be able to do so in a way which disproportionately affects people on the basis of gender (Organisation mondiale sikhe du Canada c. Procureur général du Québec, supra at paragraphs 475-504, but see Re Boudreau and Lynch, 1984 16 DLR (4th) 610 (NS SC), at page 615; Syndicat de la fonction publique du Québec inc. c. Québec (Procureur général), 2004 CanLII 76338 (QC SC), at paragraph 1429).

Section 1 considerations particular to this section

Section 28 does not take precedence over section 1 (Organisation mondiale sikhe du Canada, supra at paragraphs 470 and 503; Blainey v. Ontario Hockey Association et al., (1986), 1985 CanLII 2158 (ON SC), 21 D.L.R. (4th) 599 (Ont. S.C.); appeal allowed on other grounds, (1986), 1986 CanLII 145 (ON CA), 26 D.L.R. (4th) 728 (Ont. C.A.); leave to appeal refused (S.C.C., June 26, 1986). Thus, courts have engaged in a section 1 analysis of laws that were found to discriminate on the basis of sex (Fraser v. Canada (Attorney General), 2020 SCC 28; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18; Reference Re Family Benefits Act (N.S.), 75 N.S.R. (2d) 338 (N.S.S.C., Appeal division); Re Shewchuk and Ricard (1986), 1986 CanLII 174 (BC CA), 28 D.L.R. (4th) 429 (B.C.C.A.)).

Section 1 must not be analyzed in a vacuum and must in particular take into account section 28. Section 28 does not prevent the legislature from creating an offence that as a matter of biological fact can only be committed by one sex. But it does mean that it is not open to the legislature to deny an accused who is charged with such an offence rights and freedoms guaranteed to all persons under the Charter. There will, of course, be sex-related factors that may legitimately enter into a proportionality analysis conducted under section 1 of the Charter. However, such factors will have to be linked to the sex of persons other than the accused, e.g., the fact that the victim can become pregnant. Such an analysis would not seek to justify the infringement of a Charter right on the simple basis that the accused was of a given sex. Rather, it would point to considerations independent of the accused's sex that might be relevant to an assessment of the justification for restricting the accused's rights: R. v. Hess ; R. v. Nguyen, [1990] 2 S.C.R. 906.

The rights and interests of women under sections 15 and 28 of the Charter are relevant considerations under section 1 of the Charter in determining the extent to which the Crown can limit the availability of the criminal defence of automatism in sexual assault cases (R. v. Brown, supra, at paragraphs 70, 146-147).

In the analysis of the justification under section 1 of the prohibition of pornography and obscenity in the Criminal Code, consideration must be given to the threat to equality resulting from the exposure of male audiences to material that is violent and that degrades women (R. v. Red Hot Video Ltd., (1985), 18 C.C.C. (3d) 1).

The content is current up until 2024-03-31.