Sunday October 04, 2015

The unintended consequences of Canada's "Equal Rights Amendment"

(Evan Mitsui/CBC)

Section 28 of the Canadian Charter of Rights and Freedoms was supposed to be a game changer for women. It reads: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons." But lawyer, Trudeau Foundation scholar, and Queen's University PhD candidate Kerri Froc says it has been used to hurt women's rights instead of advance them. 

Froc would like to see Section 28 - which was modelled on the proposed American Equal Rights Amendment - rehabilitated to protect and promote women's rights, as it was intended.  

(The full interview is available in the audio player above. The following portions have been edited for clarity and length.)

When Section 28 was originally drafted, what was the goal? 

The goal was really to transform the way courts understood women's rights. Back in the bad old days, there were a few cases heard under the Bill of Rights. We had one case called "Bliss" where the courts said, 'Well, it's discrimination against pregnant women in unemployment insurance benefits; it's not sex discrimination, it's discrimination against pregnant people.' So it was those kinds of cases that women were getting very concerned about. They knew under the Charter that judges were going to be given an extremely large amount of power and they didn't want to see judges go back to these narrow and technical understandings of equality. They wanted something new, they wanted this new feminist understanding of rights that would cause judges to re-think their ideas about equality and re-think them from men's perspectives and women's perspectives.

What effect has this section actually had on women's rights? 

Right after the Charter was entrenched, there was a flurry of activity with respect to sex discrimination cases but most of it was brought by men, essentially attacking some of the very few legislative provisions that protected women. There was a case concerning social assistance benefits that gave some small protections to single mothers and what the courts said was, 'Section 28 requires absolute equal treatment between men and women, you can't have that.' So it struck down that benefit. 

Why would anyone argue that point of view?

Well, as a lawyer you have tools available to you. Men were quick off the bat constructing this notion of Section 28 as requiring this absolute equal treatment. Obviously they had the resources to litigate these claims and women weren't in that position; they were mainly in defensive mode. So we quickly had an idea of Section 28 that got constructed in the case law that became the story of Section 28. We also had some good case law happening on the general equality provision, Section 15, so I think -- after this initial volley -- I think that women just thought, 'Okay, we're just going to leave Section 28 alone'.

Do you think we'll ever see Section 28 accomplish the kind of transformative change its writers were imagining? 

Well, that's what I'm hoping with my research; that's my raison d'ĂȘtre right now: to put Section 28 back in the game. I think that what is needed is research to tell judges how they can properly use it. What you need to do is to really insist upon courts taking seriously the legislative history of Section 28 and look at gender equality as not meaning absolute equality of treatment because we all know, and the Supreme Court has said as much, that you have to look at discriminatory effects. And not all the time does equal treatment mean equality; sometimes you need deferential treatment to affect equality. 

Click the blue button above to listen to the full interview.