Shouting into the Constitutional Void: Section 28 and Bill 21

Abstract

For several years now, I have been arguing that section 28 of the Canadian Charter of Rights and Freedoms1 is more than a symbolic flourish, more than just emphasis for section 15’s sex equality guarantee, and more than an interpretive provision. In fact, it has its own independent work to do. This includes blocking attempts by government to use section 33 to preserve gender inequality.

Federalism and the Notwithstanding Clause

“…using it prior to a judicial ruling. 50 A number of additional questions could also be posed, such as the relationship between section 33 and section 28 of the Charter, 51 and how the clause might be formally changed (discussed in section IV, below).…”

The Notwithstanding Clause and the Precedent in Ford

“…33 Does section 28 of the Charter impose substantive limits on the reach of the notwithstanding clause with respect to gender equality rights? 34 Does the Constitution's architecture set substantive limits on legislative power, 35 such that are there some changes to our law that can be secured only by way of a constitutional amendment even if the notwithstanding clause is invoked? Does the notwithstanding clause's five-year sunset provision imply a measure of electoral accountability and some democratic commitments that cannot be displaced by legislation invoking the clause?…”