The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms By Kerri Anne Froc A thesis submitted to the Graduate Program in Law in conformity with the requirements for the Degree of Doctor of Philosophy Queen’s University Kingston, Ontario, Canada December 2015 Copyright © Kerri Anne Froc, 2015 Abstract 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. ii Acknowledgements I want to thank my supervisor, Beverley Baines, for her guidance and support in making this dissertation possible. She is what every supervisor should be: uncompromisingly rigorous on the work, but gentle on the student. She has been unfailingly generous of her time and intellect and amazingly supportive. Additionally, her equality and section 28 scholarship forms the backbone of many of my arguments and I cannot imagine this project without her contribution. I also must thank the Ad Hoc women and other interviewees who trusted me with their accounts, and gave of their time so generously in interviews and follow up questions. I hope I have done justice to their parts in the section 28 story. I am grateful to Professors Sharryn Aiken and Mark Walters for their invaluable contributions to my project as members of my Supervisory Committee. My dissertation was improved immeasurably by their insightful comments and I personally benefitted from their kind words of encouragement during difficult stretches of writing and theorizing. I also express my appreciation to my examiners, Professor Helen Irving and Professor Will Kymlicka, for taking the time out of their busy schedules to review my dissertation, provide meaningful feedback and ask thought provoking-questions that will help guide my future work on this subject. I thank the Social Sciences and Humanities Council for their financial support through the awarding of a Vanier Scholarship, and the Trudeau Foundation for not only their financial support, which allowed me to travel in Canada and internationally to conduct and present my research, but also providing me with a community within which to develop interdisciplinary scholarship. I also thank the staff at various archives and governmental departments, who iii provided needed access to important documents that often went above and beyond. Special thanks go to the staff at the Archives and Special Collections at the University of Ottawa, with whom I was in touch regularly throughout my project and who provided me with special assistance. I thank my family and friends for their support over this past four and a half years. The act of writing a dissertation is a solitary experience that at turns, is exhilarating, difficult, wondrous and isolating. Their efforts to make sure we stayed connected, to tell me that they cared, and that they believed in me meant more than I can say. Special thanks go to my mom and dad, Myra and Gene Froc; my aunt and uncle, Corinne Shalley and Terry Straker; friends Jackie Lane, Mea Cicansky, Colleen Schmidt, and Rebecca Bromwich; my Ph.D. “cohorts,” Adelina Iftene and Dilton Ribeiro; my Trudeau Mentor, Glenda Yeates; and my mentor at Canadian Bar Association, Tamra Thomson. And of course, to Suzette Froc-Loiselle. And finally, I thank my husband, André Loiselle, from the bottom of my heart. He has been there every step of the way, from theoretical discussions about Lacan and Agamben, to the dark evenings of despair (“when you think you can’t go any further, keep going”), to sharing my joys of discovery. With you, anything is possible. iv TABLE OF CONTENTS ABSTRACT ....................................................................................................................... ii ACKNOWLEDGEMENTS ............................................................................................ iii TABLE OF CONTENTS ................................................................................................. v CHAPTER 1 – INTRODUCTION: THE CONUNDRUM OF WOMEN’S ACCESS TO RIGHTS AND SECTION 28 ................................................................................................................. 1 METHODOLOGY .............................................................................................................. 11 CHAPTER 2 – ORIGINALISM AND SECTION 28: REDEMPTION THROUGH CANADIAN CONSTITUTIONAL THEORY’S “DIRTY WORD”? ............................................................. 22 INTRODUCTION ............................................................................................................... 22 EVALUATING CONSTITUTIONAL INTERPRETATION THEORY AND METHODOLOGY ........ 24 LIVING TREE CONSTITUTIONALISM AND PURPOSIVE INTERPRETATION .......................... 34 Living Tree Doctrine .................................................................................................. 34 Not that Kind of History – Purposive Interpretation ................................................ 46 ORIGINALISM’S ORIGINS ................................................................................................. 60 A CANADIAN ORIGINALISM? .......................................................................................... 70 Community Constitutional Morality .......................................................................... 71 Dialogue Theory ........................................................................................................ 79 HYBRID ORIGINALISM .................................................................................................... 83 Evaluating Hybrid Originalist (New Purposivism) Interpretation ............................ 91 CONCLUSION ................................................................................................................ 100 CHAPTER 3 – MATRIATING THE CONSTITUTION ......................................................... 103 INTRODUCTION – A VIEW OF THE CHARTER’S ENTRENCHMENT FROM A DIFFERENT LOCATION .................................................................................................................... 103 LAWS AS MAKERS OF WOMEN – THE HISTORY OF WOMEN’S LEGAL PERSONHOOD STATUS ......................................................................................................................... 115 PATRIATORS AND THE INVISIBLE WOMEN – EFFORTS TO SECURE EQUAL RIGHTS UP TO 1980 ...................................................................................................... 123 WITHIN THEIR SIGHTS – ATTEMPTING AN EQUAL RIGHTS AMENDMENT AT THE JOINT COMMITTEE ............................................................................................ 137 WOMEN MAKING (CONSTITUTIONAL) LAW – THE AD HOC CONFERENCE ................... 152 THE AD HOC CONFERENCE: CULTURE, INDIGENOUS WOMEN AND MULTIDIMENSIONAL SUBORDINATION.................................................................. 178 v GENDER EQUALITY RISING - LOBBYING IN THE AFTERMATH OF THE CONFERENCE .................................................................................................... 190 THE BUTTERFLY EFFECT – FROM PURPOSE CLAUSE TO SECTION 28 ............................ 200 NOT WITH A BANG, BUT WITH THE BLINK OF AN EYE – SECTION 28 AND THE “OTHER” NOTWITHSTANDING CLAUSE ...................................... 210 ANALYSIS AND CONCLUSION........................................................................................ 228 CHAPTER 4 - USE AND ABUSE OF SECTION 28 BY CANADIAN COURTS ..................... 257 INTRODUCTION – THE THREAT OF THE HYBRID SIGN ................................................... 257 SECTION 28 - NOT OF WOMAN BORN? ........................................................................ 262 Early Section 28 Jurisprudence .............................................................................. 262 Decisions Striking Down Protections for Single Mothers ....................................... 273 Weatherall – Section 28 and the Threat of Working Women ................................. 278 Section 28 as a Sword against Women’s and Girls’ Sexual Integrity ....................................................................................................... 285 Section 28’s Desultory Desuetude............................................................................ 311 1.Cases Ignoring Section 28 ................................................................................ 311 2.Section 28 in Jurisprudential Marginalia ......................................................... 326 3.Section 28 Neutralized ..................................................................................... 333 THREATENED INTO SILENCE? LEAF REACTS TO SECTION 28’S JUDICIAL TREATMENT ............................................................................ 351 CONCLUSION ................................................................................................................ 367 CHAPTER 5 – BUILDING A NEW CONSTRUCTION IN THE CHARTER’S INTERNAL ARCHITECTURE: SECTION 28 DOCTRINE .................................. 375 INTRODUCTION ............................................................................................................. 375 REIMAGINING SECTION 28 THROUGH NEW PURPOSIVISM METHODOLOGY .................. 378 Section 28’s “Notwithstanding Anything” Rule ...................................................... 378 1.Sections 1 and 33 ............................................................................................. 379 2.Other Provisions ............................................................................................... 381 Semantic Meaning of “Persons,” “Guaranteed,” “Rights and Freedoms” – the Section 28 Equal Rights Standard ..................................................................... 386 First Underlying Principle - Section 28’s Gender Equality Lens ........................... 390 Second Underlying Principle - Section 28 as Rights Transformation ..................... 393 A NEW DOCTRINAL APPROACH FOR SECTION 28 ......................................................... 403 Section 28’s Interpretive Function – Gender Equality Lens Doctrine..................... 406 Equal Rights for Men and Women – Framework for Substantive Rights Analysis ............................................................ 415 Women’s Rights in the Balance – Section 28 in Cases of “Conflicting Rights” Between Men and Women ................. 425 1.Reconciling and Balancing Men’s Rights and Women’s Non-Rights/Rights Prior to R v NS ..................................................... 426 2. Equality Rights not in Balance - R v. NS ........................................................ 433 3. Beyond Balancing - A Section 28 Equal Rights Framework for Men’s and Women’s Rights Cases ..................................................................... 446 vi CONCLUSION ................................................................................................................ 464 CHAPTER 6 - CONCLUSION.................................................................................... 466 BIBLIOGRAPHY ......................................................................................................... 485 APPENDICES ............................................................................................................... 556 APPENDIX A: SUCCESSFUL WOMEN’S CHARTER CLAIMS ............................................. 556 APPENDIX B: FAILED WOMEN’S CHARTER CLAIMS .................................................... 558 APPENDIX C: ETHICS CLEARANCE .............................................................................. 562 vii Chapter 1 – Introduction: The Conundrum of Women’s Access to Equality Rights and Section 28 All that s.28 seems to require is that the other provisions of the Charter be implemented without discrimination between the sexes. To the extent that the other provisions of the Charter would apply equally to male and female persons anyway, s.28 has very little work to do. Peter Hogg, Constitutional Law of Canada, 5th ed.1 [W]omen’s interests in the constitution extend beyond equality rights. The whole constitution should be available to women since its various guarantees are meant to be applied not to different groups but to different harms. Bertha Wilson, “Women, the Family, and the Constitutional Protection of Privacy”2 Without a doubt, the Charter3 changed the human rights landscape for Canadian women forever. It gave courts the tools to invalidate abortion provisions in the Criminal Code that infringed women’s psychological integrity and liberty, mandated legal representation for women facing child protection proceedings, prohibited discriminatory prejudice against single mothers from informing social assistance legislation, and ensured all women had access to spousal support and protections in human rights codes.4 Indirectly, it influenced ground-breaking decisions that provided protection for women from discrimination at work, incorporated 1 (Scarborough, Ont.: Carswell, 2007) [looseleaf] at 55-65 [emphasis added]. 2 (1992) 17 Queen’s Law Journal 5 at 12 [emphasis added]. 3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [Charter]. 4 R. v. Morgentaler [1988] 1 SCR 30 (finding criminal prohibition against abortion violated women’s right to security of the person and liberty); New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 SCR 46 (lack of legal aid funding for child protection hearing violated a mother’s right to security of the person) [G.(J.)]; R. v. Rehberg (1994), 127 NSR (2d) 331 (NSSC) and Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 212 DLR (4th) 633, 159 OAC 135, 59 OR (3d) 481 (C.A.). (both striking down “spouse in the house” legislation that disproportionately targeted single mothers); Vriend v. Alberta, [1998] 1 SCR 493 (failure to include sexual orientation in list of prohibited grounds of discrimination in Alberta’s human rights legislation violated section 15); M. v. H., [1999] 2 SCR 3 (failure to include same sex couples in Ontario’s spousal support provisions violated section 15). 1 women’s perspectives into the criminal law standard of the “reasonable person,” gave greater consideration to women’s work within the family and the differential economic impact on women after relationship breakdown in spousal support, and considered gendered impacts in refusing to extend legal protections to fetuses, among others.5 All demonstrate the Charter’s indelible footprint on Canadian law, changing women’s lives for the better. Nevertheless, it would be a mistake to take these milestones as evidence that women have been granted equal access to Charter rights.6 At the Supreme Court of Canada, there have been only a handful of successes involving women as claimants,7 and then only on the basis of the right to equality in section 15 or the right to liberty or security of the person under section 7.8 Men made two successful section 15 sex discrimination claims.9 This has not been for women’s lack of trying, with numerous girls, 5 Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219 (exclusion of pregnant women from employer’s accident and sickness insurance policy found to discriminate on the basis of sex under Manitoba’s human rights legislation, relying in part on the entrenchment of Charter section 15); Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252 (sexual harassment is sex discrimination under Manitoba’s human rights legislation); British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union, [1999] 3 SCR 3 (physical tests for firefighters based on men’s physiology discriminated under British Columbia Human Rights legislation); R. v. Lavallee, [1990] 1 SCR 852 (reasonable person test in self-defence must incorporate the perspective of battered women); Moge v. Moge, [1992] 3 SCR 813 (spousal support must consider the economic disadvantage of women in spousal relationships); Daigle v. Tremblay, [1989] 2 SCR 530 (fetus not a “person” under Québec’s Charter of Human Rights and Freedoms, R.S.Q., c. C-12); Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 SCR 925 (apprehension of fetus would infringe on mother’s Charter rights). 6 Diana Majury, “The Charter, Equality Rights and Women: Equivocation and Celebration” (2002) 40 Osgoode L.J. 297 [“Equivocation and Celebration”] (expressing ambivalence regarding the courts’ record on women’s rights). 7 See Appendix A for successful women’s Charter cases in the Supreme Court of Canada. For the purposes of my analysis, I am eliminating examination of the small number of cases relating to women seeking only s.24(1) or 24(2) remedies in the context of criminal proceedings. I am also excluding cases where women are part of a group of more than one claimant (unless all claimants are women, or an organization representing women’s interests). 8 Beverley Baines, "Using the Canadian Charter of Rights and Freedoms to Constitute Women" in Beverley Baines and Ruth Rubio-Marin, eds., The Gender of Constitutional Jurisprudence (Cambridge: Cambridge University Press, 2005) 48 at 51. I add the subsequent section 2(d) freedom of association case of Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, [2007] 2 SCR 391 (discussed further below), even though the claimants in this instance were unions, and the Supreme Court refused to consider the section 15 claim or conduct any gender-based analysis; and an earlier exception, R. v. Forster, [1992] 1 SCR 339, concerning a s.11(d) violation, though this case contain no hint of the claimant’s gender other than her name. 9 Benner v. Canada (Secretary of State), [1997] 1 SCR 358; Trociuk v. British Columbia (Attorney General), [2003] 1 SCR 835. In Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 SCR 381 [NAPE], the Court found that the Newfoundland government’s reneging on a pay equity agreement discriminated on the basis of sex, but its actions 2 women and organizations representing them bringing their cases before the Court and failing.10 In addition to the vast quantitative disparity between women’s wins and losses, there is also a qualitative difference. Of the numerous losses, many raise gender issues that the Court did not analyze in depth or at all.11 Further, women’s cases ordinarily include a section 15 equality claim, cases that are disproportionately unsuccessful as compared to Charter claims overall.12 In the lower courts women made significant wins infrequently,13 with early studies suggesting men made and won disproportionately more sex discrimination cases in these courts as well.14 were upheld on the basis of section 1; therefore, the claim ultimately failed. The Court rejected six other sex discrimination cases, two brought by men (R. v. Nguyen; R. v. Hess, [1990] 2 SCR 906; Weatherall v. Canada (Attorney General), [1993] 2 SCR 872 [Weatherall]), and four by women or representative organizations (Symes v. Canada, [1993] 4 SCR 695 [Symes]; Native Women’s Assn. of Canada v. Canada, [1994] 3 SCR 627 [NWAC]; Thibaudeau v. Canada [1995] 2 SCR 627; Vancouver Society of Immigrant and Visible Minority Women v. M.N.R. [1999] 1 SCR 10). In Hess and Nguyen, the male claimants were successful in having the legislation declared invalid, although it was on the basis of section 7, not under the section 15 sex discrimination claim. 10Appendix B contains women’s unsuccessful cases in the Supreme Court of Canada (excluding criminal cases involving s. 24(1)/24(2) remedies only, and women who are part of a mixed gender duo/group). 11 For example, the age discrimination benefit cases: Law v. Canada, [1999] 1 SCR 497 [Law]; Gosselin v. Quebec (Attorney General), [2002] 4 SCR 429; Withler v. Canada (Attorney General), [2011] 1 SCR 396; the marital status benefit case of Hodge v. Canada (Minister of Human Resources Development),[2004] 3 SCR 35; the citizenship discrimination case, Lavoie v. Canada, [2002] 1 SCR 769; and the marital status discrimination cases concerning exclusion from spousal property and support regimes, Nova Scotia v. Walsh, [2002] 4 SCR 325 and Quebec (Attorney General) v. A, [2013] 1 SCR 61. See also R. v. N.S., [2012] 3 SCR 726 (freedom of religion in relation to niqab-wearing sexual assault complainant), 12 Bruce Ryder, Cidalia Faria and Emily Lawrence, “What’s Law Good For? An Empirical Overview of Charter Equality Rights Decisions” (2004) 24 Sup Ct Law Rev (2d) 103; Bruce Ryder, “The Strange Double Life of Canadian Equality Rights” (2013), 63 Sup Ct L Rev (2d) 261. 13 Notable exceptions include: Blainey v. Ontario Hockey Association (1986) 26 DLR (4th) 728, 14 OAC 194 (ONCA), leave to appeal to the SCC refused, [1986] 1 SCR xii; R. v. Rehberg, supra note 4; Manitoba Council of Health Care Unions v Bethesda Hospital (1992), 88 D.L.R. (4th) 60 (MBQB); JC v Forensic Psychiatric Service Commissioner, (1992) 65 BCLR (2d) 386 (SC); Sparks v. Dartmouth/Halifax County Regional Housing Authority, (1993) 119 NSR (2d) 91 (NS CA); SEIU, Local 204 v. Ontario (Attorney General) [1997] 151 DLR (4th) 273 (ON Ct – Gen Div); Doe v Metropolitan Toronto (Municipality) Commissioners of Police, (1998), 39 OR (3d) 487, 160 DLR (4th) 697 (ON Ct – Gen Div); Scrimbitt v. Sakimay Indian Band Council, [2000] 1 F.C. 513 (TD); Falkiner v. Ontario (Ministry of Community and Social Services), supra note 5; Syndicat de la fonction publique v Procureur général du Québec [2004] JQ No. 21, [2004] RJQ 524 (QC Sup Ct) [Syndicat de la fonction publique]; and Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309. 14 In a report published in 1989, Gwen Brodsky and Shelagh Day reported that in the first three years of constitutional equality litigation, women had made nine sex equality claims, and men thirty-five. Women’s cases had a marginally higher success rate (receiving a successful outcome in approximately half of their cases). However, men made more successful claims overall, having succeeded in 13 challenges (Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989) at 49 and 56. This data would need to be updated to determine whether that trend continued in subsequent years. 3