A. Equality under the Canadian Bill of Rights

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 332-333

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In order to understand the scope of the Charter’s equality guarantee, 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, which guaranteed "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 interpretation of the equality guarantee was reached in R v Drybones,⁴

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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 because it imposed more onerous constraints on Aboriginal people than did the general liquor ordinance 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 the blatantly discriminatory nature of this law, a majority refused to find that it violated the equality guarantee of the Bill of Rights. Similarly, in Canard,⁶the Court upheld a provision preventing an Indian from acting as the administrator 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,⁷the Court upheld limitations on the rights of pregnant women to unemployment-insurance benefits, finding that discrimination on the basis of pregnancy was not sex discrimination and holding that, since the legislation conferred a benefit, it could not be challenged. In these and other cases, the Court used a variety of rationales to uphold legislation - describing the law as designed to meet a valid federal objective, characterizing it as beneficial rather than burdensome, and focusing narrowly on the question of whether the law was equally applied in the courts without regard to its substantive effect.⁸

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

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

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

[7...