Equality

• Author: Robert J. Sharpe; Kent Roach
• Pages: 373-428

373

CHAP TER 15

EQUALITY

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

THE CHARTER OF R IGHTS AND FR EEDOMS374

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

comfortable.

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.

A. EQUALITY UNDER THE

CANADIA N BILL

OF R IGHTS

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.