Equality

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 276-320

CHAP TER 15

EQUALITY

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

Rights and Freedoms states:

(1) Every indiv idual is equa l before and under the law and h as the

right to the equal prote ction and equal bene fit of the law without

discri mination and, i n particu lar, without discr iminat ion based on

race, national or ethn ic origin, colour, religion, sex, age or ment al or

physical disability.

(2) Subs ection (1) does not preclude any law, program or activity

that has a s its object the amel ioration of conditions of disadvantaged

individual s or groups including those th at are disadvantaged becau se

of race, national or ethn ic origin, colour, religion, se x, age or mental

or physical disability.

The prevailing test for determining violations of section 15 equal-

ity rights was laid down by the Supreme Court in the 1999 case Law

v. Canada.1 It requires a Charter claimant to prove three things, on a

balance of probabilities: (1) differential treatment under the law (2) on

the basis of a ground of discriminat ion enumerated in section 15(1) or

a ground of discrimination analogous to those t hat are enumerated,

(3) which constitutes di scrimin ation. However, it would be a mistake

to assume that th is test, which can b e stated quickly and easily, is easy

1 [1999] 1 S.C.R. 497 [Law].

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Equality 277

to apply or understand. 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 po-

litical and legal discourse. As a legal concept, it includes the notion

that every indiv idual is entitled to dignity and respect and th at the law

should apply to all in an even-handed manner. Equalit y thus involves

comparisons between individuals or groups but there i s considerable

debate about proper comparisons — who should be equal to whom,

and what constitutes equal t reatment? Should there be absolute equal-

ity, with everyone treated identically? How should differences be taken

into account? Should advantaged groups be able to enjoy the benefit

of equality rights? Are affirmative action measures that favour disad-

vantaged individuals and groups acceptable? Some theories of equality

emphasize equal opportunity; others emphasize e quality of outcomes.2

These are value-laden issues t hat cannot be simply resolved by t he me-

chanical application of any test.

Equality rights cl aims are chal lenging because they f requently pres-

ent controversial moral, socia l, or political issues that many a rgue should

not even be before the courts. For example, can equality rights be in-

voked to protect the rights of children not to be spanked?3 Does section

15 give same-sex couples the right to marry?4 Equality rights cases are

also contentious when used as a vehicle to extend legislative benefits

such as pensions, soc ial assistance, or health care coverage. Such cases

inevit ably have sig nificant policy or budget ary i mplication s, making

them the kinds of ca ses with which cour ts are the least comfort able.

These are complex and difficult issues, and the search for appro-

priate response s continues. This chapter beg ins by tracing the origins

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

Court’s attempts, pre-Law, to come to grips with equal ity rights. Fi-

nally, it discusses how t he courts have dealt with particul ar kinds of

discrim ination under section 15.

2 For further di scussion of the debate about equal ity, see M. Schwarzschild,

“Constitutiona l Law and Equality” i n D. Patterson, ed ., A Companion to Phi-

losophy of Law and Legal Th eory (Cambridge: Blackwell, 1996) at 156; W. Black

& L. Smith, “The Equa lity Rights” in G.A. Beaudoi n & E. Mendes, eds., The

Canadian Char ter of Rights and Freedoms, 4th ed. (Ma rkham, ON: LexisNexis

Butterwort hs, 2005) at 14-17 to 14-29.

3Canadian Found ation for Children, Youth and the Law v. Canada (At torney Gen-

eral), [2004] 1 S.C.R. 76 [Canadian Foundation for Child ren].

4Reference Re Sam e-Sex Marriage, [2004] 3 S.C.R. 698 [Same-Sex Marriage Refe r-

ence].

the

charter of r ights and fr eedoms

278

A. EQUALITY UNDER THE

CANADIAN BILL

OF R IGHTS

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

is useful to consider br iefly the Supreme Court of Canada’s treatment of

equality under sect ion 1(b) of the Canadian Bill of Rights, which guaran-

teed “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 disappointment. The most expansive inter-

pretation of the equality guarantee was reached in R. v. Drybones,5 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 prov ision was held by the Court to deny racial equal-

ity because it imposed more onerous constraints on Aborigin als than

did the general liquor ordinance of the Northwe st Territories, which

merely prohibited drunkenne ss in a public place.

While Drybones was widely applauded as an important affirma-

tion of the equality pr inciple, the Supreme Court quickly retreated. In

Lavell,6 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 di sability on Indian men who ma rried non-Indian women.

Despite the blatantly di scriminatory nature of thi s law, a majority re-

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

Similarly, in Canard,7 the Court upheld a provision preventing an In-

dian from acting a s the administrator of the estate of a decea sed Indian,

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

a form of racial discr imination. In Bliss,8 the Court upheld limitations

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

finding that di scrimin ation on the basis of pregnanc y was not sex dis-

criminat ion and holding that since the legi slation conferred a benefit,

it could not be challenged. In these and other c ases, the Court us ed

a variety of rationales to uphold legislation — describing t he law as

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

cial rather than burdensome, and focusing narrowly on the question of

5 [1970] S.C.R. 282, 9 D.L.R. (3d) 473 [Drybones].

6Canada (A.G.) v. Lavell, [1974] S.C.R. 1349, 38 D.L.R. (3d) 481 [Lavell].

7Canard v. Canada (A.G.), [1976] 1 S.C.R. 170, 52 D.L.R. (3d) 548 [Canard].

8Bliss v. Canada (A.G.), [1979] 1 S.C.R. 183, 92 D.L.R. (3d) 417 [Bliss]. The benefit

lay in the fact t hat pregnant women, unlik e other unemployment-insuranc e

claimant s, did not have to prove they were avail able for work.