A progress report of disability rights since the Charter.

• Author: Parcasio, Marjun

In 1982, the Charter of Rights and Freedoms formally enshrined equality rights into the Canadian constitution. Section 15 of the Charter reads:

"every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

For advocates of persons with disabilities, the final wording of this clause was the culmination of an extensive lobbying effort, as earlier drafts omitted to explicitly mention disability. With equality rights achieving greater constitutional status, the courts have faced the challenge of interpreting the provision to meet the modern concerns of disabled persons throughout the country.

For advocates of persons with disabilities, the final wording of this clause was the culmination of an extensive lobbying effort, as earlier drafts omitted to explicitly mention disability.

Although the courts have shown to be receptive to the goal of achieving substantive equality since the advent of the Charter in Canadian law, it is argued that the progress of disability rights in s. 15 jurisprudence has been more tempered in recent years, for reasons we shall see below. The issue warrants further attention and will require the conjoint efforts of both the courts and the legislature to improve the legal state of disabled persons in Canada.

Early Litigation: Building Progress

The first decision of the Supreme Court on s. 15 grounds, Andrews v Law Society of British Columbia, [1989] 1 SCR 143, established a foundation upon which later decisions eventually built. The court refused to follow the formal equality approach (through the 'similarly situated-similarly treated test') that had pervaded much of the earlier case law and instead adopted a purposive approach to s. 15. In so doing, the Court placed an emphasis on substantive equality under the Charter, where "consideration must be given to the content of the law, to its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application" (per McIntyre J). This judgment provided a conceptual legal framework necessary for future discussions on equality in subsequent years.

Overall, the early case law on disability rights shows a move away from the inherently less accommodating approach of the pre-Charter towards a social model...