Download EQUALITY RIGHTS

EQUALITY RIGHTS
A CANADIAN PERSPECTIVE
ADOPTION IN CHARTER
• MADE PART OF CHARTER
• MUCH LOBBYING ABOUT WORDING
BECAUSE OF EARLIER NARROW
PRECEEDENTS
• NGOs HAD SIGNIFICANT INFLUENCE
ON WORDING
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.
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.
Relation of s. 15 to antidiscrimination legislation
• Section 15 covers only conduct of
government, not private sector.
• But it covers all governmental activity, not
just employment, housing and services.
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.
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.
Aristotle’s 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?
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.
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?
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?
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?
Court’s answer to this question
• Unchangeable or changeable only at undue
cost.
• Should not have to change characteristics
that are essential part of one’s identity.
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.
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.
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
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..
Significance of Section 15(2)
• Could view as exception to equality rights.
• But courts have treated as indication of how
to measure equality.
Overall Summary
• Equality is a fundamental principle.
• But how to measure equality involves
policy choices.
• Each society must consider its own
situation.