When unequal is legal.

• Author: McKay-Panos, Linda
• Position: HUMAN RIGHTS law

"15(1) 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."

Section 15(1) of the Canadian Charter of Rights and Freedoms (Charter) has been the subject of numerous legal decisions since it came into force in 1985. The interpretation of the terms in section 15(1) has evolved in a circuitous way. For example, s. 15(1) provides that every individual has the right to the equal protection and benefit of the law without discrimination based on mental or physical disability. Looking at how this right was interpreted in two cases involving disability shows how complex this section really is.

In Eldridge v. British Columbia (Attorney General), 1997, the Supreme Court of Canada (SCC) interpreted "equal protection and equal benefit" of the law in a very progressive fashion. At issue was the utilization of public funds to provide sign language interpreters for hearing impaired persons when they were using the British Columbia medicare services. Two hearing impaired persons successfully argued that the BC government's failure to pay for interpreters violated Charter s. 15(1) and was not saved by Charter s. 1. The SCC held that this was discrimination based on physical disability, because the existing medicare funding scheme had the adverse effect of denying hearing-impaired people the equal benefit of the law. The SCC said the argument that governments should be allowed to provide benefits to the general population without ensuring that disadvantaged members of society are able to take full advantage of those benefits "bespeaks a thin and impoverished vision of s. 15(1)". The Court went on to say that once the government has provided a benefit, it must do so in a non-discriminatory manner. Scholars touted this decision as progressive because it illustrated a situation where the state was required to take positive steps to ensure that Canadians could enjoy the full benefit of their human rights (see, for example, Martha Jackman, "The Application of the Canadian Charter in the Health Care Context" (2000) 9(2) Health Law Review).

In order to find there was discrimination, the SCC in Eldridge looked at whether the claimant had established that he had been denied equal benefit or equal protection of the law because of a...