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Difference between revisions of "Charter Rights: Equality Rights"
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Charter Rights: Equality Rights (view source)
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You also need to show that section 15 applies to the different treatment you received. Section 15 prohibits discrimination because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It also prohibits discrimination on “analogous” grounds—meaning comparable grounds not listed in section 15. The Courts have said that something “analogous” is a personal characteristic that you can’t change at all, or you can’t change without great personal cost or difficulty—like sexual orientation or citizenship. | You also need to show that section 15 applies to the different treatment you received. Section 15 prohibits discrimination because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It also prohibits discrimination on “analogous” grounds—meaning comparable grounds not listed in section 15. The Courts have said that something “analogous” is a personal characteristic that you can’t change at all, or you can’t change without great personal cost or difficulty—like sexual orientation or citizenship. | ||
The Supreme Court has said that the central purpose of section 15 is to promote “substantive equality” by fighting discrimination. So in addition, courts will focus on whether the law or government action is discriminatory in creating a disadvantage by | The Supreme Court has said that the central purpose of section 15 is to promote “substantive equality” by fighting discrimination. So in addition, courts will focus on whether the law or government action is discriminatory in creating a disadvantage by continuing prejudice or stereotyping. | ||
==Section 15 allows affirmative action programs== | ==Section 15 allows affirmative action programs== | ||
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But section 1 applies only to written laws, not to government action, because it requires any limit on a Charter right to be “prescribed by law.” So when government action—not a written law—violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional. | But section 1 applies only to written laws, not to government action, because it requires any limit on a Charter right to be “prescribed by law.” So when government action—not a written law—violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional. | ||
The essential questions courts must decide under section 1 are whether the law has | The essential questions courts must decide under section 1 are whether the law has an important objective and whether the government chose a proportionate way to meet that objective—a way that interferes as little as possible with Charter rights. For example, could the government achieve its objective in another way, without violating equality rights? Does the law do more harm than good? | ||
==Section 33, the notwithstanding clause== | ==Section 33, the notwithstanding clause== | ||
If a law cannot be justified as a reasonable limit on a right or freedom, in some cases, Parliament or a provincial legislature can | If a law cannot be justified as a reasonable limit on a right or freedom, in some cases, Parliament or a provincial legislature can direct—under section 33—that the law operates notwithstanding (despite) section 2 or sections 7 to 15 of the Charter. The Canadian Parliament has never used this notwithstanding clause, but Quebec, Alberta, Saskatchewan, and Yukon have. | ||
==Remedies if Charter rights violated== | ==Remedies if Charter rights violated== | ||
Section 52(1) of the ''Constitution Act'', 1982 says that any law inconsistent with the Constitution is of no force or effect. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a personal remedy the court considers appropriate and just in the circumstances. The law gives courts | Section 52(1) of the ''Constitution Act'', 1982 says that any law inconsistent with the Constitution is of no force or effect. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a personal remedy the court considers appropriate and just in the circumstances. The law gives courts lots of discretion about the kind of remedies they can order if a Charter right is violated. The type of remedies a court orders often depends on the type of Charter right that is violated. Script [[Charter of Rights and Freedoms: Overview (Script 230)|230]] has more on remedies. | ||
For more information, check the [http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38 Charter] itself, script [[Charter of Rights and Freedoms: Legal Rights (Script 200)|200]], called “''Charter of Rights and Freedoms'': Legal Rights,” and script [[Charter of Rights and Freedoms: Overview (Script 230)|230]], called “''Charter of Rights and Freedoms'': Overview.” | For more information, check the [http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38 Charter] itself, script [[Charter of Rights and Freedoms: Legal Rights (Script 200)|200]], called “''Charter of Rights and Freedoms'': Legal Rights,” and script [[Charter of Rights and Freedoms: Overview (Script 230)|230]], called “''Charter of Rights and Freedoms'': Overview.” | ||
[updated | [updated July 2018] | ||
'''The above was last edited by John Blois.''' | |||
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