Equality

• Author: Robert J. Sharpe, Kent Roach
• Pages: 307-356

307

CHAPTER 15

EQUALITY

The guarantee of equality contained in sect ion 15 of the Charter of

Rights and Freedoms states:

(1) Ever y individual is equal be fore and under the law and has t he

right to the equal protection and equal benef‌it of the law w ithout

discri mination and, in particul ar, wit hout dis crimin ation b ased on

race, national or et hnic origin, colour, religion, sex, age or mental or

physical disabi lity.

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

that has as it s object the amelioration of condition s of disadvant aged

individual s or groups including those that are disadvantaged because

of race, national or ethnic orig in, colour, religion, sex, age or mental

or physical disabi lity.

The equality rights jurisprudence under the Charter is complex and

it def‌ies any attempt at a quick and accurate sum mary. This is hardly

surprising. Equality is a fundamental value in a democratic society

and yet its precise meaning is elusive in political and legal discourse.

As a legal concept, it includes the notion that every individual is en-

titled to dignity and respect and that the law should apply to all in an

even-handed manner. Equality thus involves comparisons between in-

dividuals or groups but there is considerable debate about proper com-

parisons — who should be equal to whom, and what constitutes equa l

treatment? Should there be absolute equality, with everyone treated

identically? How should differences be t aken into account? Should ad-

THE CHARTER OF R IGHTS AND FR EEDOMS308

vantaged groups be able to enjoy t he benef‌it of equality rights? Are

aff‌irmative act ion measures th at favour disadvantaged i ndividuals and

groups acceptable? Some theories of equality empha size equal oppor-

tunity; others emphasize equality of outcomes.1 These are value-laden

issues that c annot be simply resolved by the mech anical application of

any test.

Equality rights claims are ch allenging because they frequently

present controversial moral, social, or political issues that many argue

should not even be before the court s. For example, can equality rights

be invoked to protect the rights of children not to be spanked?2 Does

section 15 give same-sex couples the right to marry?3 Equality rights

cases are also contentious when used as a vehicle to extend legislative

ben ef‌its such a s pen sions , soci al a ssist ance , or he alth care c overa ge. Suc h

cases i nevitably have signif‌icant policy or budgetar y implications, mak-

ing them the kinds of cases with which courts are the least comfort able.

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

ate responses continues. This chapter begins by tracing the pre-Charter

origins of equal rights protection in Canad a. It next discusses the Su-

preme Court’s attempt s to come to grips with a general framework of

the analysis of equality rights under the Charter. Fin ally, it discuss-

es how the courts have dealt w ith particular kinds of discrimination

under section 15.

A. EQUALITY UNDER THE

CANADIA N BILL

OF RIGHTS

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

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

equality under section 1(b) of the Canadian Bill of Rights, wh ich g uar an-

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-

1 For further di scussion of the debate about equa lity, see M. Schwarzschild,

“Constitutiona l Law and Equality” in D. Patter son, ed., A Companion to Philoso-

phy of Law and Legal Theory (Cambr idge: Blackwell, 1996) at 156; W. Black & L.

Smith, “The Equal ity Rights” in G.A. Beaudoin & E. Me ndes, eds., The Canadian

Charter of Rights and Freed oms, 4th ed. (Markham, ON: Lex isNexis Butter-

worths, 2005) at 14-17 to 14-29.

2 Canadian Founda tion for Children, Youth and the Law v. Canada (Attor ney Gen-

eral), [2004] 1 S.C.R. 76 [Canadian Foundation for Chil dren].

3 Reference Re Same-Sex Ma rriage, [2004] 3 S.C.R. 698 [Same-Sex Marriage Reference].

Equalit y 309

pretation of the equality g uarantee wa s reached i n R. v. 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 equal-

ity because it imposed more onerous con straints on Aborig inals than

did the general liquor ordi nance of the Northwest Territories, which

merely prohibited drunkenness in a public place.

While Drybones was widely applauded as an important aff‌irmation

of the equality principle, the Supreme Court quickly retreated. 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 similar

disability on Indian men who married non-Indian women. Despite t he

blatantly discriminatory nature of this law, a majority refused to f‌ind

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

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

ing as t he admini strator of the estate of a deceased Ind ian, leaving that

role to a federal off‌icial. In the Court’s v iew, this w as not a form of racia l

discr imination. In Bliss,7 t he Court upheld limitations on the rights of

pregnant women to unemployment-insurance benef‌its, f‌inding that dis-

crimination on t he basis of pregnancy wa s not sex discrimination and

hol din g th at si nce the l egi sla tion conf err ed a bene f‌it, i t cou ld no t be cha l-

lenged. In these and other cases, the Court used a va riety of rationales

to uphold legislation — describing the law as designed to meet a va lid

feder al objec tive, ch aracter izing it as be nef‌icial rather t han bu rdensome ,

and focusing narrowly on the question of whether the law was equ ally

applied in the courts without regard to its substantive effect.8

B. DRAFTING THE

CHARTER

’S EQUALITY

GUAR A NTE E

In the debates about the appropriate wording of the equality provision

of the Canadian Charter of Rights and Freedoms, there was a signi f‌icant

lobbying effort to strengthen the guarantee so as to prevent a repetition

4 [1970] S.C.R. 282, 9 D.L.R. (3d) 473 [Drybones].

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

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

7 Bliss 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, unlike ot her unemployment-insurance

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

8 A good overview i s found in W.S. Tarnopolsky, The Canadi an Bill of Rights, 2d

rev. ed. (Toronto: McClelland and Stewart, 1975) c. 8.