Equality

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 331-332

Page 331

The guarantee of equality contained in section 15 of the Charter of Rights and Freedoms states:

(1) 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 and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The equality rights jurisprudence under the Charter is complex, and it defies any attempt at a quick and accurate summary. This is hardly surprising. Equality is a fundamental value in a democratic society, and yet its precise meaning is elusive in political and legal discourse. As a legal concept, it includes the notion that every individual is entitled to dignity and respect and that the law should apply to all in an even-handed manner. Equality thus involves comparisons between individuals or groups, but there is considerable debate about proper comparisons - who should be equal to whom, and what constitutes equal treatment? Should there be absolute equality, with everyone treated identically? How should differences be taken into account? Should advantaged groups be able to

Page 332

enjoy the benefit of equality rights? Are affirmative action measures that favour disadvantaged individuals and groups acceptable? Some theories of equality emphasize equal opportunity; others emphasize equality of outcomes.¹These are value-laden issues that cannot be simply resolved by the mechanical application of any test.

Equality rights claims are challenging because they frequently present controversial moral, social, or political issues that many argue should not even be before the courts. For example, can equality rights be invoked to protect the rights of children not to be spanked²Does section 15 give same-sex couples the right to marry³Equality rights cases are also contentious when used as a vehicle to extend legislative benefits such as pensions, social assistance, or health-care coverage. Such cases inevitably have significant policy or budgetary implications, making them the kinds of cases with which courts are the least comfortable.

These are complex...