The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms By Kerri Anne ...

575 Pages·2012·5.41 MB·English

The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms

By

Kerri Anne Froc

A thesis submitted to the Graduate Program in Law
in conformity with the requirements for the
Degree of Doctor of Philosophy
Queen’s University
Kingston, Ontario, Canada
December 2015

Copyright © Kerri Anne Froc, 2015
Abstract
This dissertation is the first comprehensive examination of the history, interpretation, and
potential application of section 28 of the Canadian Charter of Rights and Freedoms,
guaranteeing rights and freedoms "equally to male and female persons." It seeks to answer two
questions: first, why, despite women being only marginally successful in advancing Charter
claims involving gender equality, courts have so profoundly marginalized section 28; and
second, whether and how section 28 might be transformed into a fully effective constitutional
provision in accordance with its original, feminist meaning.
The dissertation approaches these questions first by examining flaws in the existing
interpretative approach to Charter adjudication, arguing instead for a new approach that
structures consideration of a provision’s original meaning and legislative history. It then
demonstrates the wealth of resources history has to offer in relation to construing the meaning of
section 28. At its core, section 28 was meant to require courts to view rights through a gender
equality lens and channel judicial discretion towards transformative interpretations of rights that
support the eradication of women’s subordination. The dissertation relies on cultural theories
and theories of feminist geography to demonstrate how the liminal spatiotemporal location of
section 28’s feminist framers in the patriation process became embedded in section 28’s
meaning. Ultimately, section 28’s liminality led most courts to construct the provision as a
“threat.” Through a forgetting of the work of its feminist framers, they applied section 28 in a
manner that perverted its meaning and ultimately attempted to consign it to desuetude.
In the end, this dissertation demonstrates that properly interpreted, section 28 could
fundamentally reshape how rights are adjudicated, ensuring the Charter delivers on its promise
of guaranteeing Canadian women’s equal personhood in fact.
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Acknowledgements
I want to thank my supervisor, Beverley Baines, for her guidance and support in making
this dissertation possible. She is what every supervisor should be: uncompromisingly rigorous
on the work, but gentle on the student. She has been unfailingly generous of her time and
intellect and amazingly supportive. Additionally, her equality and section 28 scholarship forms
the backbone of many of my arguments and I cannot imagine this project without her
contribution.
I also must thank the Ad Hoc women and other interviewees who trusted me with their
accounts, and gave of their time so generously in interviews and follow up questions. I hope I
have done justice to their parts in the section 28 story.
I am grateful to Professors Sharryn Aiken and Mark Walters for their invaluable
contributions to my project as members of my Supervisory Committee. My dissertation was
improved immeasurably by their insightful comments and I personally benefitted from their kind
words of encouragement during difficult stretches of writing and theorizing. I also express my
appreciation to my examiners, Professor Helen Irving and Professor Will Kymlicka, for taking
the time out of their busy schedules to review my dissertation, provide meaningful feedback and
ask thought provoking-questions that will help guide my future work on this subject.
I thank the Social Sciences and Humanities Council for their financial support through
the awarding of a Vanier Scholarship, and the Trudeau Foundation for not only their financial
support, which allowed me to travel in Canada and internationally to conduct and present my
research, but also providing me with a community within which to develop interdisciplinary
scholarship. I also thank the staff at various archives and governmental departments, who
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provided needed access to important documents that often went above and beyond. Special
thanks go to the staff at the Archives and Special Collections at the University of Ottawa, with
whom I was in touch regularly throughout my project and who provided me with special
assistance.
I thank my family and friends for their support over this past four and a half years. The
act of writing a dissertation is a solitary experience that at turns, is exhilarating, difficult,
wondrous and isolating. Their efforts to make sure we stayed connected, to tell me that they
cared, and that they believed in me meant more than I can say. Special thanks go to my mom
and dad, Myra and Gene Froc; my aunt and uncle, Corinne Shalley and Terry Straker; friends
Jackie Lane, Mea Cicansky, Colleen Schmidt, and Rebecca Bromwich; my Ph.D. “cohorts,”
Adelina Iftene and Dilton Ribeiro; my Trudeau Mentor, Glenda Yeates; and my mentor at
Canadian Bar Association, Tamra Thomson. And of course, to Suzette Froc-Loiselle.
And finally, I thank my husband, André Loiselle, from the bottom of my heart. He has
been there every step of the way, from theoretical discussions about Lacan and Agamben, to the
dark evenings of despair (“when you think you can’t go any further, keep going”), to sharing my
joys of discovery. With you, anything is possible.
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TABLE OF CONTENTS

ABSTRACT ....................................................................................................................... ii
ACKNOWLEDGEMENTS ............................................................................................ iii
TABLE OF CONTENTS ................................................................................................. v

CHAPTER 1 – INTRODUCTION: THE CONUNDRUM OF WOMEN’S ACCESS TO RIGHTS
AND SECTION 28 ................................................................................................................. 1
METHODOLOGY .............................................................................................................. 11

CHAPTER 2 – ORIGINALISM AND SECTION 28: REDEMPTION THROUGH CANADIAN
CONSTITUTIONAL THEORY’S “DIRTY WORD”? ............................................................. 22
INTRODUCTION ............................................................................................................... 22
EVALUATING CONSTITUTIONAL INTERPRETATION THEORY AND METHODOLOGY ........ 24
LIVING TREE CONSTITUTIONALISM AND PURPOSIVE INTERPRETATION .......................... 34
Living Tree Doctrine .................................................................................................. 34
Not that Kind of History – Purposive Interpretation ................................................ 46
ORIGINALISM’S ORIGINS ................................................................................................. 60
A CANADIAN ORIGINALISM? .......................................................................................... 70
Community Constitutional Morality .......................................................................... 71
Dialogue Theory ........................................................................................................ 79
HYBRID ORIGINALISM .................................................................................................... 83
Evaluating Hybrid Originalist (New Purposivism) Interpretation ............................ 91
CONCLUSION ................................................................................................................ 100

CHAPTER 3 – MATRIATING THE CONSTITUTION ......................................................... 103
INTRODUCTION – A VIEW OF THE CHARTER’S ENTRENCHMENT FROM A DIFFERENT
LOCATION .................................................................................................................... 103
LAWS AS MAKERS OF WOMEN – THE HISTORY OF WOMEN’S LEGAL PERSONHOOD
STATUS ......................................................................................................................... 115
PATRIATORS AND THE INVISIBLE WOMEN – EFFORTS TO SECURE EQUAL
RIGHTS UP TO 1980 ...................................................................................................... 123
WITHIN THEIR SIGHTS – ATTEMPTING AN EQUAL RIGHTS AMENDMENT
AT THE JOINT COMMITTEE ............................................................................................ 137
WOMEN MAKING (CONSTITUTIONAL) LAW – THE AD HOC CONFERENCE ................... 152
THE AD HOC CONFERENCE: CULTURE, INDIGENOUS WOMEN
AND MULTIDIMENSIONAL SUBORDINATION.................................................................. 178

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GENDER EQUALITY RISING - LOBBYING IN THE AFTERMATH
OF THE CONFERENCE .................................................................................................... 190
THE BUTTERFLY EFFECT – FROM PURPOSE CLAUSE TO SECTION 28 ............................ 200
NOT WITH A BANG, BUT WITH THE BLINK OF AN EYE –
SECTION 28 AND THE “OTHER” NOTWITHSTANDING CLAUSE ...................................... 210
ANALYSIS AND CONCLUSION........................................................................................ 228

CHAPTER 4 - USE AND ABUSE OF SECTION 28 BY CANADIAN COURTS ..................... 257
INTRODUCTION – THE THREAT OF THE HYBRID SIGN ................................................... 257
SECTION 28 - NOT OF WOMAN BORN? ........................................................................ 262
Early Section 28 Jurisprudence .............................................................................. 262
Decisions Striking Down Protections for Single Mothers ....................................... 273
Weatherall – Section 28 and the Threat of Working Women ................................. 278
Section 28 as a Sword against Women’s and Girls’
Sexual Integrity ....................................................................................................... 285
Section 28’s Desultory Desuetude............................................................................ 311
1.Cases Ignoring Section 28 ................................................................................ 311
2.Section 28 in Jurisprudential Marginalia ......................................................... 326
3.Section 28 Neutralized ..................................................................................... 333
THREATENED INTO SILENCE? LEAF REACTS TO
SECTION 28’S JUDICIAL TREATMENT ............................................................................ 351
CONCLUSION ................................................................................................................ 367

CHAPTER 5 – BUILDING A NEW CONSTRUCTION IN THE CHARTER’S
INTERNAL ARCHITECTURE: SECTION 28 DOCTRINE .................................. 375
INTRODUCTION ............................................................................................................. 375
REIMAGINING SECTION 28 THROUGH NEW PURPOSIVISM METHODOLOGY .................. 378
Section 28’s “Notwithstanding Anything” Rule ...................................................... 378
1.Sections 1 and 33 ............................................................................................. 379
2.Other Provisions ............................................................................................... 381
Semantic Meaning of “Persons,” “Guaranteed,” “Rights and Freedoms” –
the Section 28 Equal Rights Standard ..................................................................... 386
First Underlying Principle - Section 28’s Gender Equality Lens ........................... 390
Second Underlying Principle - Section 28 as Rights Transformation ..................... 393
A NEW DOCTRINAL APPROACH FOR SECTION 28 ......................................................... 403
Section 28’s Interpretive Function – Gender Equality Lens Doctrine..................... 406
Equal Rights for Men and Women –
Framework for Substantive Rights Analysis ............................................................ 415
Women’s Rights in the Balance –
Section 28 in Cases of “Conflicting Rights” Between Men and Women ................. 425
1.Reconciling and Balancing Men’s Rights and
Women’s Non-Rights/Rights Prior to R v NS ..................................................... 426
2. Equality Rights not in Balance - R v. NS ........................................................ 433
3. Beyond Balancing - A Section 28 Equal Rights Framework for
Men’s and Women’s Rights Cases ..................................................................... 446
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CONCLUSION ................................................................................................................ 464

CHAPTER 6 - CONCLUSION.................................................................................... 466
BIBLIOGRAPHY ......................................................................................................... 485
APPENDICES ............................................................................................................... 556
APPENDIX A: SUCCESSFUL WOMEN’S CHARTER CLAIMS ............................................. 556
APPENDIX B: FAILED WOMEN’S CHARTER CLAIMS .................................................... 558
APPENDIX C: ETHICS CLEARANCE .............................................................................. 562

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Chapter 1 – Introduction: The Conundrum of Women’s Access to Equality Rights and Section 28

All that s.28 seems to require is that the other provisions of the Charter be implemented
without discrimination between the sexes. To the extent that the other provisions of the
Charter would apply equally to male and female persons anyway, s.28 has very little
work to do.
Peter Hogg, Constitutional Law of Canada, 5th ed.1

[W]omen’s interests in the constitution extend beyond equality rights. The whole
constitution should be available to women since its various guarantees are meant to be
applied not to different groups but to different harms.
Bertha Wilson, “Women, the Family, and the Constitutional Protection of
Privacy”2

Without a doubt, the Charter3 changed the human rights landscape for Canadian women
forever. It gave courts the tools to invalidate abortion provisions in the Criminal Code that
infringed women’s psychological integrity and liberty, mandated legal representation for women
facing child protection proceedings, prohibited discriminatory prejudice against single mothers
from informing social assistance legislation, and ensured all women had access to spousal
support and protections in human rights codes.4 Indirectly, it influenced ground-breaking
decisions that provided protection for women from discrimination at work, incorporated

1 (Scarborough, Ont.: Carswell, 2007) [looseleaf] at 55-65 [emphasis added].
2 (1992) 17 Queen’s Law Journal 5 at 12 [emphasis added].
3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c.11 [Charter].
4 R. v. Morgentaler [1988] 1 SCR 30 (finding criminal prohibition against abortion violated women’s right to
security of the person and liberty); New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3
SCR 46 (lack of legal aid funding for child protection hearing violated a mother’s right to security of the person)
[G.(J.)]; R. v. Rehberg (1994), 127 NSR (2d) 331 (NSSC) and Falkiner v. Ontario (Ministry of Community and
Social Services) (2002), 212 DLR (4th) 633, 159 OAC 135, 59 OR (3d) 481 (C.A.). (both striking down “spouse in
the house” legislation that disproportionately targeted single mothers); Vriend v. Alberta, [1998] 1 SCR 493 (failure
to include sexual orientation in list of prohibited grounds of discrimination in Alberta’s human rights legislation
violated section 15); M. v. H., [1999] 2 SCR 3 (failure to include same sex couples in Ontario’s spousal support
provisions violated section 15).
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women’s perspectives into the criminal law standard of the “reasonable person,” gave greater
consideration to women’s work within the family and the differential economic impact on
women after relationship breakdown in spousal support, and considered gendered impacts in
refusing to extend legal protections to fetuses, among others.5 All demonstrate the Charter’s
indelible footprint on Canadian law, changing women’s lives for the better. Nevertheless, it
would be a mistake to take these milestones as evidence that women have been granted equal
access to Charter rights.6
At the Supreme Court of Canada, there have been only a handful of successes involving
women as claimants,7 and then only on the basis of the right to equality in section 15 or the right
to liberty or security of the person under section 7.8 Men made two successful section 15 sex
discrimination claims.9 This has not been for women’s lack of trying, with numerous girls,

5 Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219 (exclusion of pregnant women from employer’s accident and
sickness insurance policy found to discriminate on the basis of sex under Manitoba’s human rights legislation,
relying in part on the entrenchment of Charter section 15); Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252
(sexual harassment is sex discrimination under Manitoba’s human rights legislation); British Columbia (Public
Service Employee Relations Commission) v British Columbia Government Service Employees' Union, [1999] 3 SCR
3 (physical tests for firefighters based on men’s physiology discriminated under British Columbia Human Rights
legislation); R. v. Lavallee, [1990] 1 SCR 852 (reasonable person test in self-defence must incorporate the
perspective of battered women); Moge v. Moge, [1992] 3 SCR 813 (spousal support must consider the economic
disadvantage of women in spousal relationships); Daigle v. Tremblay, [1989] 2 SCR 530 (fetus not a “person” under
Québec’s Charter of Human Rights and Freedoms, R.S.Q., c. C-12); Winnipeg Child and Family Services
(Northwest Area) v. G. (D.F.), [1997] 3 SCR 925 (apprehension of fetus would infringe on mother’s Charter rights).
6 Diana Majury, “The Charter, Equality Rights and Women: Equivocation and Celebration” (2002) 40 Osgoode L.J.
297 [“Equivocation and Celebration”] (expressing ambivalence regarding the courts’ record on women’s rights).
7 See Appendix A for successful women’s Charter cases in the Supreme Court of Canada. For the purposes of my
analysis, I am eliminating examination of the small number of cases relating to women seeking only s.24(1) or 24(2)
remedies in the context of criminal proceedings. I am also excluding cases where women are part of a group of
more than one claimant (unless all claimants are women, or an organization representing women’s interests).
8 Beverley Baines, "Using the Canadian Charter of Rights and Freedoms to Constitute Women" in Beverley Baines
and Ruth Rubio-Marin, eds., The Gender of Constitutional Jurisprudence (Cambridge: Cambridge University Press,
2005) 48 at 51. I add the subsequent section 2(d) freedom of association case of Health Services and Support –
Facilities Subsector Bargaining Association v. British Columbia, [2007] 2 SCR 391 (discussed further below), even
though the claimants in this instance were unions, and the Supreme Court refused to consider the section 15 claim or
conduct any gender-based analysis; and an earlier exception, R. v. Forster, [1992] 1 SCR 339, concerning a s.11(d)
violation, though this case contain no hint of the claimant’s gender other than her name.
9 Benner v. Canada (Secretary of State), [1997] 1 SCR 358; Trociuk v. British Columbia (Attorney General), [2003]
1 SCR 835. In Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 SCR 381 [NAPE], the Court found that the
Newfoundland government’s reneging on a pay equity agreement discriminated on the basis of sex, but its actions
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women and organizations representing them bringing their cases before the Court and failing.10
In addition to the vast quantitative disparity between women’s wins and losses, there is also a
qualitative difference. Of the numerous losses, many raise gender issues that the Court did not
analyze in depth or at all.11 Further, women’s cases ordinarily include a section 15 equality
claim, cases that are disproportionately unsuccessful as compared to Charter claims overall.12 In
the lower courts women made significant wins infrequently,13 with early studies suggesting men
made and won disproportionately more sex discrimination cases in these courts as well.14

were upheld on the basis of section 1; therefore, the claim ultimately failed. The Court rejected six other sex
discrimination cases, two brought by men (R. v. Nguyen; R. v. Hess, [1990] 2 SCR 906; Weatherall v. Canada
(Attorney General), [1993] 2 SCR 872 [Weatherall]), and four by women or representative organizations (Symes v.
Canada, [1993] 4 SCR 695 [Symes]; Native Women’s Assn. of Canada v. Canada, [1994] 3 SCR 627 [NWAC];
Thibaudeau v. Canada [1995] 2 SCR 627; Vancouver Society of Immigrant and Visible Minority Women v. M.N.R.
[1999] 1 SCR 10). In Hess and Nguyen, the male claimants were successful in having the legislation declared
invalid, although it was on the basis of section 7, not under the section 15 sex discrimination claim.
10Appendix B contains women’s unsuccessful cases in the Supreme Court of Canada (excluding criminal cases
involving s. 24(1)/24(2) remedies only, and women who are part of a mixed gender duo/group).
11 For example, the age discrimination benefit cases: Law v. Canada, [1999] 1 SCR 497 [Law]; Gosselin v. Quebec
(Attorney General), [2002] 4 SCR 429; Withler v. Canada (Attorney General), [2011] 1 SCR 396; the marital status
benefit case of Hodge v. Canada (Minister of Human Resources Development),[2004] 3 SCR 35; the citizenship
discrimination case, Lavoie v. Canada, [2002] 1 SCR 769; and the marital status discrimination cases concerning
exclusion from spousal property and support regimes, Nova Scotia v. Walsh, [2002] 4 SCR 325 and
Quebec (Attorney General) v. A, [2013] 1 SCR 61. See also R. v. N.S., [2012] 3 SCR 726 (freedom of religion in
relation to niqab-wearing sexual assault complainant),
12 Bruce Ryder, Cidalia Faria and Emily Lawrence, “What’s Law Good For? An Empirical Overview of Charter
Equality Rights Decisions” (2004) 24 Sup Ct Law Rev (2d) 103; Bruce Ryder, “The Strange Double Life of
Canadian Equality Rights” (2013), 63 Sup Ct L Rev (2d) 261.
13 Notable exceptions include: Blainey v. Ontario Hockey Association (1986) 26 DLR (4th) 728, 14 OAC 194
(ONCA), leave to appeal to the SCC refused, [1986] 1 SCR xii; R. v. Rehberg, supra note 4; Manitoba Council of
Health Care Unions v Bethesda Hospital (1992), 88 D.L.R. (4th) 60 (MBQB); JC v Forensic Psychiatric Service
Commissioner, (1992) 65 BCLR (2d) 386 (SC); Sparks v. Dartmouth/Halifax County Regional Housing Authority,
(1993) 119 NSR (2d) 91 (NS CA); SEIU, Local 204 v. Ontario (Attorney General) [1997] 151 DLR (4th) 273 (ON
Ct – Gen Div); Doe v Metropolitan Toronto (Municipality) Commissioners of Police, (1998), 39 OR (3d) 487, 160
DLR (4th) 697 (ON Ct – Gen Div); Scrimbitt v. Sakimay Indian Band Council, [2000] 1 F.C. 513 (TD); Falkiner v.
Ontario (Ministry of Community and Social Services), supra note 5; Syndicat de la fonction publique v Procureur
général du Québec [2004] JQ No. 21, [2004] RJQ 524 (QC Sup Ct) [Syndicat de la fonction publique]; and Inglis v.
British Columbia (Minister of Public Safety), 2013 BCSC 2309.
14 In a report published in 1989, Gwen Brodsky and Shelagh Day reported that in the first three years of
constitutional equality litigation, women had made nine sex equality claims, and men thirty-five. Women’s cases
had a marginally higher success rate (receiving a successful outcome in approximately half of their cases).
However, men made more successful claims overall, having succeeded in 13 challenges (Canadian Charter Equality
Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of
Women, 1989) at 49 and 56. This data would need to be updated to determine whether that trend continued in
subsequent years.
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