Equality?

• Author: McKay-Panos, Linda
• Position: Examines the concept as covered by the Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms (Charter), subsection 15(1) states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. What does this right mean? In the 1989 Andrews v. Law Society of British Columbia case, the Supreme Court of Canada said that equality, is "an elusive concept" and that it "lacks precise definition." In the 1999 Law v. Canada (Minister of Employment and Immigration), 1999, Justice Iacobucci noted that part of the reason that the court has trouble with a precise definition is that equality has a very high status in our society. He said that the quest for equality expresses some of humanity's highest ideals and aspirations, which are abstract and can be stated in different ways. In the same case, the Supreme Court of Canada set out some basic guidelines for analyzing the meaning of the equality rights provided in the Charter. Justice Iacobucci stressed that any equality analysis under the Charter must be "purposive and contextual." In Andrews, the court noted that equality involves comparing one person's condition with the condition of others in the social and political situation where the issue arises. At the same time, the court said that true equality does not result from identical treatment. In fact, the court emphasizes that although it is possible to set out basic principles as guidelines, the results in any case will depend upon the way the various factors apply in that particular case.

To determine whether Charter subsection 15(1) has been violated, the court looks at three elements:

* does the law impose differential treatment between the claimant and others?

* is a ground listed in subsection 15(1) or a similar ground the reason for the differential treatment? Grounds listed include race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

* does the law in question have a discriminatory purpose or effect?

Once the court has determined that subsection 15(1) has been violated, it must look at Charter section 1 to see if the discrimination may be justified in a free and democratic society.

How do these principles apply in real cases? In Eldridge v. British Columbia, 1997, the British Columbia Medicare scheme did not provide funding for sign language interpreters for hearing impaired people. Two hearing impaired patients took the BC government to court to obtain a...