Equality

AuthorRobert J. Sharpe; Kent Roach
Pages354-406
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.

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