the enchanter

"Understanding Equality Rights:a study on s. 15 of Charter of Rights and Freedoms" [Submitted By Soohyun Nam/To Don Kendal/On June 11, 2001 BLW 4A]

Did you know that until the 1920’s, no women in Canada were allowed to vote, and that it wasn’t until the 1960’s that all Canadian women could vote? Did you know that Aboriginal children were forced to go to residential schools where they were stripped of their culture and their language? In the 1940’s, Japanese Canadians were put in prison camps in Canada just because they were of Japanese ancestry. Until the 1970’s, there were laws in Canada that allowed governments to sterilize women and men with disabilities without their knowledge or consent (Court Challenges Program).

All of these groups were discriminated based on their sex, ethnic or national background, or their mental or physical disability. They were vulnerably exposed to discrimination, since there was no legal protection to ensure their equality. To provide the legal protection to ensure the equality of everyone within the society is the responsibility of the government. Unfortunately, in Canada, circumstances did not improve for such discriminated groups until recent times, when in 1985, governments recognized the need to protect equality, and passed Section 15 of the Charter of Rights and Freedoms (Court Challenges Program).

Equality Rights are fundamental elements of a democratic society. However, having these rights protected by law is not enough; it is more crucial for its citizens to correctly understand these rights, and be prepared to fight to make sure that their rights are protected according to the law. To serve this purpose, in this essay, we will learn about the definition of Equality and examine and understand Equality Rights as prescribed in the Charter, and find out the significance of the Equality Rights; and eventually, how we can make sure the protection of our rights is carried out accordingly.

1. What is "equality"? - The Concept of Equality

What does equality mean? People’s understanding of this idea has changed and developed over the years. At one time, people believed that only certain people had the right to equality, such as men, adults, or landowners. Until recently, the general conception of equality was getting the exact same treatment as other people (Court Challenges Program).
Section 15 of the Canadian Charter of Rights and Freedoms says:

Every individual is equal before and under the law and
has the right to 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.

This section of the Charter makes it clear that every individual in Canada - regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability - is to be considered equal. This means that governments must not discriminate on any of these grounds in its laws or programs (Canadian Heritage).

The courts have held that section 15 also protects equality on the basis of other characteristics that are not specifically set out in it. For example, this section has been held to prohibit discrimination on the grounds of sexual orientation.

Section 15 of the Charter requires that our laws treat all people fairly and do not discriminate. However, the existence of the Charter should not be misunderstood that everyone always has to be treated in exactly the same way; sometimes, a law that seems to treat everyone exactly the same can still discriminate. For example, assume there was a law that gave benefits to men and women equally, except when women were pregnant; this law would discriminate against women, since only women can get pregnant and would be the only ones to lose their benefits (Court Challenges Program). Such a law would violate the Charter.

In Brooks et al. v. Canada Safeway (1989) three women were denied full benefits under a company medical plan that allowed only partial compensation for their pregnancy leave in 1982. They argued that this was discrimination on the basis of sex…the Court of Appeal ruled that “sex” and “pregnancy” do not mean the same thing and that the women were not protected by the law even though the trial judge agreed that there had been discrimination. The Supreme Court of Canada disagreed. Chief Justice Dickson wrote:

“Pregnancy discrimination is a form of sex discrimination
simply because of the basic biological fact that only women
have the capacity to become pregnant.” (Spetz 1989 , 218)

A personal characteristic based upon which discrimination is prohibited by law, for example, on the grounds of a person’s race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation or sex (New Brunswick Human Rights Commission). The government must create special programs to favour individuals or groups who may be at a disadvantage in society, such as women, visible minorities or the disabled (Department of Justice Canada). A broader view of equality that encompasses such individual characteristics of disadvantaged groups that courts and many equality seekers pursue is called “substantive equality”(Court Challenges Program). The second section of section 15 that was later added to reflect the “substantive equality” view, is as follows:

Subsection (1) does not preclude any law, program or activity
that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.

Therefore, at the same time as it protects equality, the Charter also allows for certain laws or programs that favour disadvantaged individuals or groups. For example, programs aimed at improving employment opportunities for women, Aboriginal peoples, visible minorities, or those with mental or physical disabilities are allowed under section 15(2).

“Substantive equality” can be contrasted with the general notion of equality, which asks whether the law treats all individuals the same (Court Challenges Program). The recent case of Eldridge v. BC, provides an excellent example of the limits of a formal equality approach.

Case Example 1: The Eldridge Case

A number of deaf patients challenged the British Columbia Medicare system for failing to ensure that sign language interpreters would be available for medical appointments and hospital visits.

o A formal equality approach would not be concerned about this problem, because all individuals are getting the same treatment. In this case, the same doctors and the same care.

o The substantive equality approach used by the Supreme Court in this case asked us to assess the impact of this policy on equality seeking groups to make sure they are receiving equivalent treatment to others. If a deaf patient cannot understand or communicate effectively with his or her doctors, he or she is simply not receiving the full and equal benefit of free medical care.
To ensure substantive equality for deaf patients, sign language interpretation must also be funded.