EQUALITY RIGHTS

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EQUALITY RIGHTS

• A CANADIAN PERSPECTIVE

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ADOPTION IN CHARTER

• MADE PART OF CHARTER
• MUCH LOBBYING ABOUT WORDING BECAUSE OF EARLIER
  NARROW PRECEEDENTS
• NGOs HAD SIGNIFICANT INFLUENCE ON WORDING

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SECTION 15 WORDING

• (1) Every individual is equal before and under
  the law and has the right to the equal protection
  and 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.

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Section 15 wording continued

• (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
  disadvantged because of race, national or ethnic
  origin, colour, religion, sex, age or mental or
  physical disability.

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Relation of s. 15 to anti-discrimination
legislation

• Section 15 covers only conduct of government, not
  private sector.
• But it covers all governmental activity, not just
  employment, housing and services.

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How Should We Measure What is Equality?

• Examples for discussion
• Only men allowed to vote in elections
• All students given three hours to complete
  examination.
• Law school fees 300 higher than arts faculty
  fees.
• Segregated classes for people with disabilities.

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Lessons from these examples

• What is absolute equality from one point of view
  may be absolute inequality from another point of
  view.
• Problem goes beyond where to draw the line.

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Aristotles definition

• Equality consists of treating equals equally and
  unequals unequally in proportion to the
  inequality.
• Problems with this definition.
• How do we decide who is equal? What criteria do
  we use?
• How do we decide whether they are being treated
  equally?

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How to formulate an appropriate definition

• Definition is a policy choice, not just a
  question of applying proper logic.
• Choices may be different for different societies
  depending on what issues of inequality are most
  important in that society.
• Consider what are most important issues in Taiwan.

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Wording of section 15 of the Canadian Charter

• Individual excludes corporations
• Why all the different formulations (before,
  under, protection, benefit)
• Section 15(2), exception or indication how to
  measure equality?

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First Charter case

• Claimed equality violated because only citizens
  could become lawyers and it took 5 years to gain
  citizenship.
• What are the arguments for and against this claim?

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Enumerated or analogous grounds

• What should count as analogous?
• Marital status?
• Sexual orientation?
• Where you live in Canada?
• What should be the test of what is analogous?

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Courts answer to this question

• Unchangeable or changeable only at undue cost.
• Should not have to change characteristics that
  are essential part of ones identity.

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What counts as discrimination

• Medical services do not cover interpreters for
  people who are deaf and cannot communicate with
  doctors in the usual way.
• Anti-discrimination statute covers grounds such
  as race and sex but not sexual orientation.

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What counts as discrimination, continued

• Welding training program only for women.
• Government pension plan if spouse dies. Benefits
  reduced if you are younger.
• There are female prison guards in male prisons
  but no male guards in female prisons.

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How Canadian courts measure what is discriminatory

• Focus on results or outcomes
• Consider outcomes in relation to broader social
  context.
• Consider longer-range outcomes, not just
  immediate ones

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Summary of Canadian approach

• Inequality need not be intentional
• Test not identical treatment but equality of
  results.
• Measure results against broader social context
• Does outcome narrow the gap between disadvantaged
  and advantaged groups..

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Significance of Section 15(2)

• Could view as exception to equality rights.
• But courts have treated as indication of how to
  measure equality.

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Overall Summary

• Equality is a fundamental principle.
• But how to measure equality involves policy
  choices.
• Each society must consider its own situation.