Section 28 – Gender equality rights

Provision

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

Similar provisions

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 requires that the rights and freedoms guaranteed in the Charter be implemented 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). 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 (Hak c. Procureur général du Québec, 2021 QCCS 1466).

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Analysis

During the period from 1982 until April 1985, section 28 was the only Charter guarantee of sexual 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 recognized in the Charter apply to men and women. It does not guarantee equality with respect to other rights not mentioned in the Charter (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.).

This section does not take precedence over other provisions of the Charter, notably section 1 (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 section 1 analysis of laws that arguably discriminated on the basis of sex (R. v. Nguyen, [1990] 2 S.C.R. 906; Reference Re Family Benefits Act (N.S.), 75 N.S.R. (2d) 338; Re Shewchuk and Ricard (1986), 1986 CanLII 174 (BC CA), 28 D.L.R. (4th) 429 (B.C.C.A.)).

1. Section 28 and other sections

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), 119 D.L.R. (4th) 224, 1994 3 S.C.R. 627) and in cases involving section 7 (New Brunswick (Minister of Health and Community Services) v. G. (J.), (1999), 177 D.L.R. (4th) 124, [1999] 3 S.C.R. 46).

2. Section 28 and section 33

With respect to section 33, section 28 may mean 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 (Re Boudreau and Lynch, 1984 16 DLR (4th) 610 (NS SC); Syndicat de la fonction publique du Québec inc. c. Québec (Procureur général), 2004 CanLII 76338 (QC SC) but see Hak, supra).

Section 1 considerations particular to this section

Section 1 must not be analysed 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.

In Osolin, the Supreme Court of Canada 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).

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).