Equality Rights
and the Canadian Charter of Rights and Freedoms
Sam Sonshine and Carly Fidler
What is Equality?
o Formal Equality – treating everybody in the same manner
§ i.e. current prostitution law is gender-neutral
o Substantive Equality – leveling the playing field by providing help for the disadvantaged
§ Affirmative Action – hiring provisions in order to create formal equality among the sexes
Canadian Charter of
Rights and Freedoms
- part of Constitution Act 1982
- Prime Minister Pierre Trudeau
- Outlines rights and freedoms for all in Canada
Important Sections
Reasonable Limits
Clause
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Equality Rights
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.
(2) 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.
Enforcement/Remedies
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Possible Remedies and Powers of Courts
1) strike down
2) sever
3) read down
4) reading
5) Injunction
Difference between
Provincial Human Rights Codes and Charter 1982
o Provincial Human Rights Codes - relations between private individuals
o The Charter - deals with the relationship between individuals and government
- S.15 of the Charter - everyone is equal under the law: blanket prohibition of discrimination under the Charter
Oakes Test
§ The objective of the measures responsible for the limit must be sufficiently important to warrant overriding a constitutionally protected right or freedom
o Proportionality: The test balances societal interest with those of the individual and groups.
§ Rational Connection: the measure employed must be rationally connected to the objective being pursued
· They must be carefully designed to achieve the objective, they cannot be arbitrary, unfair or based on irrational considerations
§ The means chosen should impair the right or freedom as little as possible
§ The effects of the infringement on the individual or group must not be disproportionate to the importance of the legislative objective
- First supreme court decision on section 15
- Section 42 of the British Columbia Barristers and Solicitors Act made Canadian citizenship a pre-requisite for being admitted to BC Bar
- Andrews was not a Canadian citizen but had all other qualifications to practice
- He claimed under section 15 that he was being discriminated against on the basis of national origin
New Idea
- Drawing distinctions is not discriminating – some distinctions are objectionable and unobjectionable
- A distinction that is discriminatory is needed to be protected under the Charter
- Discrimination
o Distinction
§ That is based on grounds of personal characteristic of an individual or a group which has the effect of posing burdens on them and not others
§ Based on In association with a group
- Not Discriminatory
o Distinction
§ Based on personal merit
· i.e. If Andrews could not pass the Bar, not allowing him to practice was not discrimination
Conclusion
- Andrews won his case
- There was deemed to be an unjustifiable infringement of his s.15(1) rights