Equality

• Author: Robert J. Sharpe; Kent Roach
• Pages: 354-406

354

CHAPTER 15

EQUALITY

The guarantee of equality contained in section 15 of the Charter of Rights

and Freedom s 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 d isability.

(2) Subsection (1) does not preclude any law, program or activ-

ity that has as its object the amelioration of conditions of disadvan-

taged individuals or groups including those that are disadvantaged

because of race, nat ional or ethnic origin, colour, religion, sex, age or

mental or physical di sability.

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 so-

ciety, and yet its precise meaning is elusive in political and legal dis-

course. 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 tre at-

ed identically? How should differences be taken into account? Should

Equality 355

advantaged groups be able to enjoy the benef‌it of equality rights? Are

aff‌irmative action measures that favour disadvantaged individuals and

groups acceptable? Some theories of equality emphasize equal oppor-

tunity; others emphasize equality of outcomes.1 These are value-laden

issues that cannot be simply resolved by the mechanical application of

any test.

Equality rights claims are challenging because they frequently pres-

ent controversial moral, social, or political issues that many argue

should not even be before the courts. For example, can equ ality rights be

invoked to protect the rights of children not to be spanked?2 Does sec-

tion 15 give same-sex couples the right to marry?3 Equality 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 court s are the least comfortable.

These are complex and diff‌icult issue s, and the search for appropriate

responses continues. This chapter begins by tracing the pre-Charter ori-

gins of equal rights protection in Canada. It next discusses the Supreme

Court’s efforts to come to grips with a general framework of the analysis

of equality rights under the Charter. Finally, it discusses how the courts

have dealt with particular kinds of discrimination under section 15.

A. EQUALITY UNDER THE

CANADIAN BILL

OF RIGHTS

In order to understand the scope of the Charter’s equality guarantee, it

is useful to consider brief‌ly t he Supreme Court of Canada’s treatment of

equality under section 1(b) of the Canadian Bill of Rights, which guar-

anteed “the right to equality before the law and the protection of the

law.” As noted in Chapter 1, the Court’s performance under the Bill of

Rights was generally regarded as a disappoint ment. The most expansive

1 For further di scussion of the debate about equal ity, see M Schwarzschild, “Con-

stitutional L aw and Equality” in D Patter son, ed, A Companion to Philosophy of

Law and Legal Theory (Cambr idge: Blackwell, 1996) at 156; L Smith, & W Black,

“The Equality R ights” in E Mendes & S Beaulac, ed s, The Canadian Char ter of

Rights and Fre edoms, 5th ed (Markham, ON: Lexi sNexis Butterworth s, 2013) at

952–55.

2 Canadian Founda tion for Children, Youth and the Law v Canada (Att orney Gen-

eral), [2004] 1 SCR 76 [Canadian Foundation for C hildren].

3 Reference Re Same-Sex Mar riage, [2004] 3 SCR 698 [Same-Sex Marriage Reference].

THE

CHARTER OF R IGHTS AND FREEDOMS

356

interpretation of the equality guarantee was reached in Rv Drybones,4

the 1969 decision where the Court found inoperative a section of the

Indian Act that made it an offence for an Indian to be intoxicated off a

reserve. The Indian Act provision was held by the Court to deny racial

equality because it imposed more onerous constraints on Aboriginal

people than did the general liquor ordinance of the Northwest Territo-

ries, which merely prohibited drunkenness in a public place.

While Drybones was widely applauded as an important aff‌irma-

tion of the equality principle, the Supreme Court quickly retreated. In

Lavell,5 the Court upheld a provision of the Indian Act depriving of sta-

tus an Indian woman who married a non-Indian while not imposing

a similar disability on Indian men who married non-Indian women.

Despite the blatantly discriminatory nature of this law, a majority re-

fused to f‌ind that it violated the equality guarantee of the Bill of Rights.

Similarly, in Canard,6 the Court upheld a provision preventing an In-

dian from acting as t he administrator of the estate of a deceased Indi an,

leaving that role to a federal off‌icial. In the Court’s view, this was not

a form of racial discrimination. In Bliss,7 the Court upheld limitations

on the rights of pregnant women to unemployment-insurance benef‌its,

f‌inding that discrimination on the basis of pregnancy was not sex dis-

crimination and holding that, since the legislation conferred a benef‌it,

it could not be challenged. In these and other cases, the Court used

a variety of rationales to uphold legislation — describing the law as

designed to meet a valid federal objective, characterizing it as benef‌i-

cial rather tha n burdensome, and focusing nar rowly on the question of

whether the law was equally applied in the courts without regard to its

substantive effect.8

B. DRAFTING THE

CHARTER

’S EQUALITY

GUAR A NT EE

In the debates about the appropriate wording of the equality provision

of the Canadian Charter of Rights and Freedoms, there was a signif‌icant

4 [1970] SCR 282, 9 DLR (3d) 473 [Drybones].

5 Canada (Attorney General) v Lavell, [1974] SCR 1349, 38 DLR (3d) 481 [Lavell].

6 Canard v Canada (AG), [1976] 1 SCR 170, 52 DLR (3d) 548 [Canard].

7 Bliss v Canad a (AG), [1979] 1 SCR 183, 92 DLR (3d) 417 [Bliss]. The benef‌it lay

in the fact th at pregnant women, unlike other u nemployment-insurance clai m-

ants, did not have to prove t hey were available for work.

8 A good overview is found in WS Tarnopol sky, The Canadi an Bill of Rights, 2d

rev ed (Toronto: McClelland and Stewar t, 1975) c 8.