August 30, 2021 – LEAF Staff Lawyer Cee Strauss has written an article on Quebec’s Bill 21 and section 28 of the Charter. You can find the article in the most recent edition of the Canadian Journal of Women and the Law.
The article argues that Quebec’s Bill 21, which bans religious symbols, violates section 28 of the Canadian Charter. It also looks at why section 28 exists, and how it can take down Bill 21. We encourage you to check out the article in the Canadian Journal of Women and the Law here!
Abstract
Hak c Procureure générale du Québec is an action that has combined four distinct challenges to An Act Respecting the Laicity of the State. In this article, I canvass section 28 doctrine and jurisprudence to outline the purpose and role of section 28 in order to understand how it might operate in the challenge undertaken in Hak. To do so, I conduct a purposive analysis of section 28. In my opinion, section 28 has two distinct purposes: first, it acts as a “gender equality interpretive tool” that requires judges to choose constitutional interpretations that favour substantive gender equality and, second, it ensures that substantive gender equality cannot be overridden by anything else in the Canadian Charter of Rights and Freedoms. Within these broad purposes, I also discuss section 28’s status as an interpretive provision that confers the substantive right to substantive equality, and I offer illustrations of the gender equality tool in case law. I conclude with the potential of section 28 to operate as a gender equality tool in Hak, including its potential to do so intersectionally.
