Constitutional adjudication and the primacy of section 28
To argue for the primacy of women’s equality rights calls for creating a constructive practice that demands inclusive, reasoned, and meaningful contestation
Among the issues in English Montreal School Board v Quebec (formerly Hak), the case about Quebec’s use of the override to protect its religious face-covering ban, is the question of what adjudicative practice to adopt.
The Supreme Court of Canada outlined an adjudicative practice in 1984 in its first Charter of Rights and Freedoms case. According to the Court in the Law Society of Upper Canada v Skapinker, the Charter “introduces a new dimension, a new criterion for balancing individuals and society and their respective rights.”
In R v Oakes in 1986, balancing rights became the proportionality test the Court applied to balance conflicts between the limits attributable to society and the Charter rights of individuals and groups.
The proportionality-balancing test prevailed as the Court’s adjudicative practice at least in theory if not in practice until 2024, with one significant exception. This exception was Ford v Quebec, where the Court stopped just short of characterizing an override as a limit, finding that it conflicted with the right to freedom of expression claimed by Valerie Ford and others.
Having established a rights and all-but limits conflict, the Court in Ford diverged from Oakes’ adjudicative practice by holding that Quebec’s authority to enact the override obviated the substantive component of proportionality-balancing. If Oakes models a constitutional adjudicative practice, Ford models the practice of elected authoritarianism.
The appellate court in EMSB reached for elected authoritarianism but fell short when the judges denied the Board any Charter rights, whether under section 2(a) (religion), section 15(1) (sex equality), or section 28 (women’s equality). From the standpoint of adjudication, if EMSB could not rely on a section 28 right to equality, was Quebec not left without any basis for responding to the Charter challenge, leaving the override without any judicial protection?
In 2024, clearly something prompted the Dickson v Vuntut Gwitchin First Nation Court to develop a “four-step framework” a month after the EMSB appellate decision. Although three of its four steps were set out by Justice Bastarache concurring in R v Kapp in 2008, all four steps differ from Oakes’ adjudicative practice.
Instead of the rights and limits that establish Oakes’ conflicts, individual and collective rights established Dickson’s conflicts. Then Dickson’s practice further diverged from Oakes by rejecting proportionality-balancing and requiring an irreconcilable conflict, which sustained the Vuntut Gwitchin First Nation’s primacy over Cindy Dickson’s equality rights.
To argue for the primacy of women’s equality rights in section 28, as the Board did in EMSB, calls for creating a constructive constitutional adjudicative practice that demands inclusive, reasoned and meaningful contestation. In other words, it:
- advances section 28 as a substantive right that is collective (the Charter’s General heading signifies collective rights, not interpretive provisions);
- recognizes the override provision as an individual right (the singularity of the legislative declaration in section 33; and
- rejects elected authoritarianism as antithetical to the Charter's purpose because it subscribes to unilateral, arbitrary, and formal contestation.
