Are You Serious? Litigating Section 28 to Defeat the Notwithstanding Clause

Abstract

It responds to critics of the author's past work theorizing that section 28 of the Canadian Charter of Rights and Freedoms has the power to block the effect of the "notwithstanding clause" where the result of its legislative invocation would be unequal rights as between "male and female persons." The first part of the article summarizes the author's argument about the interaction of sections 28 and 33, as well as the near scholarly consensus supporting her interpretation (until the present criticism). Then, it outlines thematically three interrelated criticisms of this interpretation and demonstrates that they rely on a misinterpretation of section 28 and section 33, as well as a misunderstanding of the argument regarding the role of history in constitutional interpretation. A principled interpretation of section 28 means that legislatures may not validly invoke section 33 to permit the continued operation of laws violating women’s equal rights.

Keywords: constitutional interpretation, women's rights, feminism, purposive interpretation, originalism, constitutional history

JEL Classification: K19, K39