Shouting into the Constitutional Void

By Kerri A. Froc*

“And if thou gaze long into an abyss, the abyss will also gaze into thee.” (Friedrich Nietzsche, Beyond Good and Evil. Aphorism 146)

For several years now, I have been arguing that section 28 of the Canadian Charter of Rights and Freedoms 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. 

I did not make up this interpretation of section 28.  Rather, it is part of section 28’s text and history and is uncontroversial amongst those who have studied the matter.  That is why I am not only perplexed, but annoyed, at section 28 seemingly being ignored in the debate over the constitutionality of Bill 21’s requirement that certain government employees (including school teachers, police, Crown prosecutors and judges) do not wear religious symbols at work (section 6).  It is in fact reminiscent of the way that women’s rights were ignored in 1981 constitutional negotiations, which galvanized women to insist upon section 28 in the first place.  Below, I discuss section 28’s interpretation vis a vis section 33, and then how it would be pled in a constitutional challenge to Bill 21.

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Section 28 beginning phrase reads: “Notwithstanding anything in this Charter.”  This meant its guarantee of equal rights is not to be derogated by other provisions of the Charter. Provincial and federal bureaucrats attempted after the November 1981 “Kitchen Accord” to subject section 28 to section 33.  They drafted amendments to section 28 and section 33, notionally to “implement” the terms of the Accord (though first ministers never discussed section 28).  The opening words of Section 28 would have been revised to read, “Notwithstanding anything in this Charter except section 33,” and section 33 would have been amended to end with, “or section 28 of this Charter in its application to discrimination based on sex referred to in section 15.”  These proposed additions were scrubbed from the Charter’s final text through the hard work of feminist advocates, women MPs from all parties, and, to put it bluntly, a groundswell of pissed off women from across the country.  This history, however, merely confirms that “notwithstanding anything” means what it plainly says.

In their 1984 book, Canada Notwithstanding, Roy Romanow, John Whyte and Howard Leeson (all members of the November 1981 Saskatchewan constitutional delegation) confirmed that the removal of the application of section 33 from section 28 “in effect…meant that sexual equality in section 15 could not be overridden.”  Justice Carole Julien, in a 2004 Charter case involving pay equity, Syndicat de la fonction publique c. Procureur général du Québec,had occasion to discuss the legal effect of section 28.  She noted that the predominant scholarly opinion was that the override did not apply to section 28 “due to the historical context of its adoption and its objectives” (my translation).  It is unfortunate that this judgment was merely a passing footnote in the recent Supreme Court decision, Centrale des syndicats du Québec v. Quebec (Attorney General).

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How would it potentially play out if litigants argued section 28 in relation to the Bill 21 constitutional challenge?  There are potentially two Charter claims that could be advanced by women who are adversely affected by section 6.  The first is that it discriminates against them on the basis of sex, contrary to section 15(1).  The second is that section 6 violates their freedom of religion disproportionately, so that women are unable to exercise this freedom on an equal basis with men.  Sex discrimination is contrary to Charter section 15(1) and 28; a gender-disproportionate violation of religious freedom would be contrary to sections 2(a) and 28.  Section 28 is involved in both claims as section 6 results in unequal rights afforded to men and women.   A section 28 violation cannot be preserved using section 33.

One could also use an alternative legal argument in relation to section 15.  Quebec could argue that a general sex equality violation, in and of itself, does not implicate section 28 (saying that section 28 does not really “add” anything to the section 15 determination).  However, if additional state action is taken to attempt to preserve a section 15 sex equality violation by invoking section 33, section 28 operates to block the effect of that invocation.  Taking action to preserve women’s section 15 rights violation results in unequal rights contrary to section 28.  This is quite applicable to Bill 21, in that section 30 contains a pre-emptive declaration that the Act operates notwithstanding sections 2 and 7-15 of the Charter. 

Regardless of which argument(s) you accept, the validity of section 6 cannot be maintained by the section 33 override because doing would mean section 28 is made subject to the legal effect of section 33.

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A question I am sometimes asked is: where is the gender inequality in Bill 21?  Many media sources have indicates that the group most affected are Muslim women wearing the head scarf (hijab), but do not indicate the sources they rely upon for that fact.  I’ve done some of my own data crunching to provide initial support for that point. 

Of the groups mentioned, Muslims are in vastly greater numbers in Québec than both Jews and Sikhs (men from these two other groups have been mentioned as being the others affected by the law).  For the last year in which we have data (2011), there were nearly two and a half times as many Muslims in Quebec as Jews and Sikhs together. Approximately 53%, of Muslim women in Canada wear the hijab.  Quebec’s public service is still massively dominated by white francophones; however, nearly half of its workers are female (amongst school teachers, one of the largest groups affected by Bill 21, that percentage is much higher). It stands to reason given these statistics that most of those affected are Muslim women.  While some judges may not consider these statistics more than a “web of instinct”, this data could be supplemented by access to information requests and litigation disclosure to obtain numbers of affected employees.  Further, one could argue that the state demanding women remove clothing has a more threatening import and communicates a sex-specific devaluation, given the way women’ attire has been regulated and judged by law throughout history.  Thus one could argue that the qualitative impact constitutes a sex-based distinction in itself. 

Even apart from disparate impact, if the purpose of a law is discriminatory or is to privilege certain religious beliefs, then that would be a violation of section 15(1) and section 2(a) respectively.  A good case could be made that Bill 21 targets Muslim women based, for instance, on the Quebec Minister for the Status of Women’s comments.  Concerning the privileging of religious beliefs, it is worth noting that symbols of Quebec’s “religious cultural heritage” (read: Christianity/Catholicism) are specifically exempted from all of Bill 21’s provisions by section 16. 

Of course, there are potentially other elements in relation to a Charter analysis that would have to be successfully argued, such as showing “disadvantage” for section 15(1) and more than atrivial infringement of religious freedom, for section 2(a).  However, I do not regard those as posing much of an impediment. 

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Why should we care if civil liberties associations, lawyers, and courts ignore section 28 in the upcoming constitutional battle over Bill 21?  To paraphrase Nietzsche, if we gaze into the Constitution and see only an abyss when it comes to section 28, we should not be surprised if the abyss gazes back in the form of more constitutional provisions courts feel secure in being able to ignore into desuetude.  Simply put, entrenched constitutional text should and does count more than implied bills of rights, unwritten principles, constitutional architecture and the like.  If not section 28 in this case, then when?

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* Kerri A. Froc is an Assistant Professor in the Faculty of Law, University of New Brunswick. Follow her on Twitter!