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

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Froc, Kerri
Legal History , Originalism , Feminist Legal Theory , Canadian Charter of Rights and Freedoms , Women's Rights , Constitutional Law
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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