Section 28 of the Canadian Charter of Rights and Freedoms: A Purposive Interpretation

Abstract

Concerned about substantive equality and intersectionality, recently a feminist legal scholar cautioned against calling on section 28 to help reinvigorate section 15 analysis. This article examines her concerns about section 28 by posing three questions: Why was section 28 added to the Charter? What are the traditional features of section 28 analysis? And, what does a purposive interpretation of section 28 reveal? The responses reveal that its feminist framers intended section 28 to be rights-bearing; that traditional analysis has diminished its status to an interpretive provision; and that purposive interpretation suggests section 28 is consistent not only with substantive equality but also with intersectionality. The article concludes by proposing that we treat section 28 as neither independently rights-bearing nor dependently interpretive, but rather as independently rights-enhancing. In reconsidering the interpretation of section 28, it also is important to reflect on the intergenerational tensions that may surface between the feminists who framed section 28 and those whose exposure to it is more contemporary and mediated through section 15 jurisprudence.

Keywords: Equality, Charter, feminist theory