The Potential Impact of Charter Section 28 on Quebec's Controversial Secularism Law and the Pursuit of Gender-Equality in Canadian Courts

Authors

Nywani Albert, McGill University Faculty of Law

Keywords

Section 28 of the Charter of Rights and Freedoms, gender equality, Quebec Law 21, secularism, constitutional challenges, constitutional law, women's rights, the notwithstanding clause, freedom of religion, freedom of expression

Abstract

The Western liberal democratic order, anchored in respect for individual rights and constitutional norms, faces a critical challenge as Quebec follows the pattern of several European nations in enacting laws restricting religious attire. While the Quebec Law 21, “An Act Respecting the Laicity of the State,” is ostensibly neutral, it particularly restricts Muslim women's rights. This paper explores an ongoing, novel legal strategy challenging Quebec's secularism law, focusing on Section 28 of Canada's Charter of Rights and Freedoms. While Section 28 mandates gender equality in Charter implementation, its potential remains largely unexplored in the decades since Charter enactment. Drawing on feminist legal scholarship and Critical Race Theory, this paper examines the implications of Section 28's application in gender-equality and intersectional analysis, particularly in combating laws like Quebec's. By contrasting Supreme Court cases that overlook Section 28 with those few recognizing its significance, this paper evaluates its role in challenging discriminatory legislation, including the use of Section 33's notwithstanding clause. Furthermore, it contextualizes Quebec's Law 21 within broader discussions of secularism, citizenship, and gendered Islamophobia. By utilizing Critical Race Theory and intersectional analysis, this paper sheds light on the hidden implications of ostensibly neutral laws, particularly for marginalized groups like Muslim women. Finally, it considers the potential impact of a revitalized Section 28 on the ongoing pursuit of substantive women's equality in Canada. Through an examination of the Hak et al. case and the broader legal landscape, this paper advocates for a reinvigoration of Section 28 to address contemporary challenges to gender equality in Canada.

Recommended Citation

Nywani Albert, "The Potential Impact of Charter Section 28 on Quebec's Controversial Secularism Law and the Pursuit of Gender-Equality in Canadian Courts" (2024) 33: 1 Dal J Leg Stud 1.