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The Quebec Court of Appeal’s (“QCCA”) decision in Organisation mondiale sikhe du Canada c. Procureur général du Québec, 2024 QCCA 254 brings forward a constitutional question the Supreme Court of Canada will soon have to address directly: does section 28 of the Charter possess any independent legal force, or can its equality guarantee be displaced entirely through a section 33 declaration?
The result of that decision is stark: the QCCA treats section 28 as having no independent force, no interpretive weight, and no residual function once the rights it echoes are suspended. Section 28 becomes a decorative clause, stripped of operation at precisely the moment it is supposed to matter most. This is not just a doctrinal disagreement. It is a question about whether the Charter’s commitment to gender equality is real, or merely an illusion that disappears whenever a legislature finds it inconvenient.
This conclusion is striking. Section 28 was drafted to ensure that gender equality guides the interpretation of all Charter rights, guaranteeing that they apply equally to male and female persons. Its opening words, “notwithstanding anything in this Charter,” signal that the provision is intended to operate across the entire Charter.
The QCCA’s reasoning reduces it to a decorative provision—visibly important, but functionally inert.
The QCCA’s Formalism
Section 33 permits a legislature to declare that specified Charter rights “do not apply.” If the declaration of the use of section 33 is explicit, and the affected rights are named, the override is legally effective for five years.
The QCCA affirmed that Quebec’s use of section 33 satisfies the bare formal requirements set out in Ford v. Quebec (AG), 1988 CanLII 19 (SCC) [Ford]. The legislation includes an explicit declaration that certain rights do not apply, and those rights are named. That is enough. Courts, in this view, have no authority to scrutinize the purposes behind an override or impose substantive limits on its use.
From there, the BCCA reasoned that section 28 is not a standalone guarantee. It functions only through the rights in sections 2 through 23. Once those rights are overridden, section 28 “loses its foundation” and has no remaining force. The override therefore cancels both the underlying rights and the equality guarantee that applies to them.
The BCCA acknowledged that Muslim women who wear religious dress are disproportionately affected. But under its interpretation, that consequence is legally irrelevant. When section 33 is invoked, courts cannot examine discriminatory effects, read section 28 as a constraint, or use it to resist inequality. Section 28 simply vanishes.
Why This Matters: Section 28 as Structural Guarantee
Section 28 was drafted as a safeguard against exactly this form of erasure. The clause’s opening words, “notwithstanding anything in this Charter,” were meant to ensure that equality would not be overshadowed by other provisions.
While section 33 already draws a structural line between rights that can be overridden and those that cannot, the QCCA’s interpretation deepens that hierarchy. It places equality outside the set of constitutional commitments that survive an override, even where the adverse effects fall squarely within the Charter’s equality guarantee. Some rights, such as democratic and mobility rights, are constitutionally insulated from section 33’s override. Equality is not. The resulting architecture elevates certain constitutional commitments while leaving others vulnerable to legislative suspension.
A counterargument is that section 33 does not selectively suspend women’s rights while preserving the rights of men; it simply enables a facially neutral statute to operate despite its differential impact. However, this framing ignores what is at stake. The adverse effects on Muslim women are not incidental; they are the predictable, legally cognizable inequality that section 28 was designed to prevent from being dismissed simply because the Court limits its analysis to the technical mechanics of the override rather than its real-world consequences.
Does Ford Foreclose a Different Interpretation?
The QCCA treats Ford as resolving the interaction between section 28 and section 33, but Ford did not address section 28. It concerned only the scope of judicial review over the legislature’s reasons for invoking the override. Nothing in Ford requires courts to read other Charter provisions as devoid of independent force once a declaration under section 33 is made.
The QCCA also disregards the history behind the implementation of section 28. Originally, federal and provincial leaders agreed that section 28 would not be limited by the notwithstanding clause.1 As former Prime Minister Charles Joseph Clark recalled during the parliamentary debates, officials later applied section 33 to section 28 without the explicit consent of the first ministers, effectively imposing a limitation on gender equality that was not intended.2
Instead, the QCCA reads section 28 as though it were a descriptive add-on rather than a substantive guarantee and, in doing so, undermines its purpose: a provision specifically introduced to prevent gender inequality is interpreted as permitting it.
A purposive interpretation remains available to the Supreme Court of Canada. Section 28 could be understood as retaining interpretive force even where underlying rights have been suspended. It could guide courts in determining the scope of legislation enacted under an override; require a legislature to articulate the operation of an override more clearly where equality interests are implicated; or preserve a minimal judicial role in examining discriminatory effects that the override intensifies. For example, under Bill 21, section 28 might require courts to read the law down, so that its prohibitions apply only to religious symbols that can be removed without forcing individuals to choose between public participation and compliance with gendered religious obligations. Using this approach, the statute would remain facially neutral and capable of regulating religious symbols generally, while its application would be constrained where it disproportionately excludes women. In effect, the focus would shift from formal neutrality to the scope of the law’s operation, thereby preserving both gender equality and the reasonable exercise of religious freedom.
None of these approaches conflict with Ford. Rather, they reflect the basic premise that the Charter must be read coherently, with its provisions informing one another.
Looking Ahead to the Supreme Court of Canada
When the challenge to Bill 21 reaches the Supreme Court of Canada, the Court will need to determine whether section 28 can be rendered dormant whenever section 33 is invoked. The issue is not a question of judicial activism or restraint, but about the constitutional role of equality: even where a legislature invokes an override, section 28 should retain interpretive force, guiding courts to ensure that gender equality remains meaningfully considered rather than entirely suspended at the discretion of the majority.
Extending Ford to nullify section 28 is not dictated by precedent. It is a choice that collapses the Charter into isolated parts rather than a coherent structure. Even Ford acknowledged that Charter interpretation is purposive. The QCCA’s approach abandons that method entirely.
A more defensible reading would hold that section 28 has some interpretive force even when underlying rights are overridden. The precise scope of that force is debatable. Its total erasure is not.
Rights Without Remedies
A right without a remedy has limited practical effect. By reading section 28 as fully subject to legislative override, the QCCA diminishes the unique force of gender equality guaranteed in the Charter. While section 33 allows legislatures to override other rights, section 28 was intended to ensure that gender equality retains interpretive significance even when an override is invoked, preventing it from being subordinated entirely to legislative expediency.
This is especially concerning where the affected group has limited political power. Muslim women cannot rely on majoritarian politics to protect their interests. Constitutional rights are meant to guard against precisely this vulnerability. The QCCA’s reading denies the courts the tools to fulfill that function.
Conclusion
The Supreme Court of Canada will need to clarify whether section 28 has independent meaning or whether it is merely descriptive. A purely formalist approach renders it a decorative clause. A purposive approach would treat it as an interpretive constraint—not necessarily a hard limit on section 33, but at least a provision that cannot be nullified by implication.
The central question for the Supreme Court of Canada to address is straightforward: is section 28 a meaningful constitutional safeguard, or merely wording that can be displaced whenever a legislature chooses? The answer will shape the future of equality rights in Canada.