Equality

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 331-383

331

CHAP TER 15

EQUALITY

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

Rights and Freedom s states:

(1) Every indiv idual is equal be fore and under the law and ha s the

right to the equal prote ction and equal benef‌it of t he law without

discri mination and, in pa rticular, wit hout 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 a s its object the ameliorat ion of conditions of disadvan-

taged individua ls or groups including t hose that are d isadvantaged

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

mental or phy sical di sability.

The equality rights jur isprudence under the Charter is complex, and

it def‌ies any attempt at a quick and accurate summar y. This is hardly sur-

prising. Equality is a fundamental va lue in a democratic society, and yet

its precise meaning is elusive in political and legal di scourse. As a legal

concept, it includes the notion that every individua l is entitled to dignity

and respect and that t he law should apply to all in an even-handed man-

ner. 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 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 FREEDOM S

332

enjoy the benef‌it of equality rights? Are aff‌i rmative action measures that

favour disadvantaged indiv iduals and groups acceptable? Some theories

of equality emphasize equal opportunity; others emphasize equality of

outcomes.1 These are value-laden issues t hat cannot be simply resolved

by the mechanical application of any test.

Equality right s claims are challenging because they frequently

present controversial moral, social, or political issues that 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 sec-

tion 15 give same-sex couples the right to mar ry?3 Equality rights ca ses

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 signif‌ic ant policy or budgetary implications, making

them the kinds of ca ses 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-Charte r ori-

gins of equal rights protection in Canada. It next di scusses 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 part icular 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 Charte r’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 b efore 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

interpretation of the equality guarantee was re ached in R v Drybones,4

1 For further di scussion of the debate about equa lity, 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; W Black & L Smith,

“The Equality R ights” in GA Beaudoin & E Mendes, ed s, The Canadian Char-

ter of Rights an d Freedoms, 4th ed.(Markham, ON: Lexi sNexis Butterworths ,

2005) at 14-17 to 14-29.

2 Canadian Founda tion for Children, Youth and the Law v Canada (At torney 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].

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

Equalit y 333

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 becaus e it imposed more onerous constraints on Aborig inal

people than did the general liquor ordina nce of the Northwest Territor-

ies, which merely prohibited drunkenness in a public place.

While Dr ybones was widely applauded as an important aff‌irmation

of the equality principle, the Supreme Court quickly ret reated. In Lavell,5

the Court upheld a provision of the Indian Act depriving of status an

Indian woman who married a non-Indian while not imposing a sim ilar

disability on Indian men who married non-Indian women. Despite the

blatantly discr iminatory n ature of this law, a majority refused to f‌i nd

that it violated the equality guarantee of the Bill of Rights. Similarly, in

Cana rd,6 the Court upheld a provision preventing an Indi an from act-

ing as the admin istrator of the estate of a deceased Indian, 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 t hat dis-

criminat ion on the basis of pregnancy wa s not sex discrim ination and

holding that, since the legisl ation conferred a benef‌it, it could not be

challenged. In these and other cases, the Court used a variety of ration-

ales to uphold legislation — describing the law as de signed to meet a

valid federal objective, characteri zing it as benef‌icial rather than bur-

densome, 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. DR AFTING THE

CHARTER

’S EQUALITY

GUAR A NTE E

In the debates about the appropriate wording of the equality prov ision of

the Canadian Char ter of Rights and Freedoms, there was a signif‌icant lob-

bying effort to strengt hen the guarantee so a s to prevent a repetition of

the experience under the Cana dian Bill of Rights. It is therefore sign if‌icant

that section 15 of the Charter prov ides that “every individual is equal

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

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

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 cla im-

ants, did not have to pro ve they 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.