AuthorRobert J. Sharpe; Kent Roach
The guarantee of equality conta ined in section 15 of the Charter of Rights
and Freedom s states:
(1) Every i ndividual is eq ual before and under the la w and has the
right to the equa l protection and equal bene f‌it of the law without
discri mination and, in p articula r, without discrim ination based on
race, national or eth nic origin, colour, religion, se x, age or mental or
physical d isability.
(2) Subsection (1) does not preclude any law, program or activ ity
that has as it s object the amelioration of conditions of disadvant aged
individual s or groups including those th at are disadvantaged becau se
of race, national or eth nic origin, colour, religion, sex , age or mental
or physical d isability.
The equality rights jur isprudence under the Charter is complex and
def‌ies any attempt at a quick and accurate summar y. This is hardly
surprising. Equality is a fundamental value in a democratic society, yet
its precise meaning is elusive in political and legal discourse. As a legal
concept, it includes the notion that every individual i s entitled to dignity
and respect and that t he law should apply to all in an even-handed m an-
ner. Equality thus involves comparisons b etween individuals or groups,
but there is considerable debate about proper comparisons. Who should
be equal to whom, and what constitutes equa l treatment? Should there
be absolute equality, with everyone treated identically? How should dif-
ferences be taken into account? Should advantaged groups be able to
enjoy the benef‌it of equality right s? Are arm ative action measures that
favour disadvantaged indiv iduals and groups acceptable? Some theories
of equality emphasi ze equal opportunity; ot hers emphasize equa lity of
outcomes.1 These are value-laden issues that cannot be simply resolved
by the mechanical application of any test.
Equality right s claims are ch allenging because they frequently
present controversial moral, socia l, or political issues t hat many argue
should not even be before the courts. For example, can equality r ights
be invoked to protect the rights of children not to be spanked?2 Does
section 15 give same-sex couples the right to mar ry?3 Equality right s
cases are al so contentious when used as a vehicle to extend legislative
benef‌its such as pensions, soc ial assist ance, or health-care coverage.
Such cases inevit ably have signif‌icant policy or budgetar y implica-
tions, making them the kinds of cases with which courts are the least
These are complex and dicult issues, and the search for appro-
priate responses continues. This chapter begin s by tracing the pre-
Charter origins of equal rights protection in Canada. It then discusses
the Supreme Court of Canada’s eorts to come to grips with a general
framework of the analysis of equa lity rights under the Charter. Finally, it
discusse s how the courts have dealt with particular kinds of di scrimin-
ation under section 15.
In order to understand the scope of the Charter’s equality guarantee, it
is useful to consider brief‌ly t he Supreme Court of Canad a’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
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 Charter of
Rights an d Freedoms, 5th ed (M arkham, ON: LexisNexi s Butterworths, 2013);
S Moreau, Faces of Equality: A Theory of Wrong ful Discrimination (New York:
Oxford Univers ity Press, 2020).
2 Canadian Founda tion for Children, Youth and the Law v Canada (At torney General),
2004 SCC 4, [2004] 1 SCR 76 [Canadian Foundation for Child ren].
3 Reference Re Same-Sex Mar riage, 2004 SCC 79, [2004] 3 SCR 698 [Same-Sex
Marriage Reference].
Equalit y 375
law.” As noted in Chapter 1, the Court’s performance under t he Bill of
Rights was generally regarded as a disappoint ment. The most expans ive
interpretation of the equalit y guarantee was re ached in R v Drybones,4
the 1969 decision where the Court found inoperative a section of the
Indian Act that made it an oence for an Indian to be intoxicated o a
reserve. The Indian Act provision was held by t he Court to deny racial
equality because it imposed more onerous constraints on Indi ans than
did the general liquor ordinance of the Northwest Territories, which
merely prohibited drunkenness i n a public place.5
Although Drybones was widely applauded as an important arm-
ation of the equality principle, the Supreme Court quickly ret reated.
In Canada (Attorney General) v Lavell,6 the Court upheld a provision
of the Indian Act depriving of statu s an Indian woman who married
a non-Indian while not imposing a similar disabilit y on Indian men
who married non-Indian women. Despite the blatantly discr iminatory
nature of this law, a majority refus ed to f‌ind that it violated the equality
guarantee of the Bill of Rights. Similarly, in Attorney Ge neral of Canada
et al v Canard,7 the Court upheld a provision preventing an Indian from
acting as the admi nistrator of the estate of a decea sed Indian, leav ing
that role to a federal ocial. In the Court’s view, this was not a form of
racial discr imination. In Bliss v Canada (Attor ney General),8 the Court
upheld limitations on the rights of pregnant women to unemployment
insurance benef‌its, f‌i nding that discrimination on the basis of preg-
nancy was not sex dis crimination and holding that, since the legi slation
conferred a benef‌it, it could not be challenged. In these a nd other case s,
the Court used a variet y of rationales to uphold legislation — describing
the law as designed to meet a val id federal objective, characteriz ing it
as benef‌icial rather th an burdensome, and focusing nar rowly on the
question of whether the law was equally applied in the courts without
regard to its substantive eect.9
4 R v Drybones, [1970] SCR 282, 9 DLR (3d) 473 [Drybones].
5 We use the word “Indian” in thi s and the next paragraph to c orrespond with
the statutor y language at issue.
6 Canada (Attorney Ge neral) v Lavell, [1974] SCR 1349, 38 DLR (3d) 481.
7 Attorney Ge neral of Canada et al v Canard, [1976] 1 SCR 170, 52 DLR (3d) 548.
8 Bliss v Canada (Attorney Gen eral), [1979] 1 SCR 183, 92 DLR (3d) 417 [Bliss].
The benef‌it lay in the f act that pregnant women, unl ike other unemployment
insuranc e claimants, did not have to prove t hey were available for work.
9 A good overview is found in WS Tar nopolsky, The Canadian Bill of Rights, 2d rev
ed (Toronto: McClelland and Stewart, 1975) ch 8.

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