Difference between revisions of "Charter Rights: Equality Rights"

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{{REVIEWEDPLS | reviewer = [https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier|date= July 2018}} {{Dial-A-Law TOC|expanded = rights}}
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The idea that all people should be treated equally is a core value in Canadian society. In fact, equality rights are enshrined in the ''Canadian Charter of Rights and Freedoms''.
  
==The Charter protects several rights and freedoms==
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==What you should know==
The ''Charter of Rights and Freedoms'' is part of Canada’s Constitution. It protects a broad range of rights and freedoms. If a court decides that a law, or part of a law, violates one of those rights or freedoms, and the government cannot justify the violation under section 1, that law is not valid − unless the Canadian Parliament or a provincial legislature says that it operates in spite of (or notwithstanding) the Charter. (Check script [[Charter of Rights and Freedoms: Legal Rights (Script 230)|230]] for details of the “notwithstanding clause”.) Both the Constitution and the Charter are on the Canadian government website at http://laws-lois.justice.gc.ca/eng/const.
 
  
==Equality Rights in the Charter==
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===The Charter guarantees equality rights===
Section 15 guarantees equal benefit and protection of the law to people, saying:
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The [https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html ''Charter of Rights and Freedoms''] is part of Canada’s Constitution and protects a broad range of rights and freedoms. Among the rights guaranteed by the Charter are '''equality rights'''.
#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.
 
#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
 
  
==Section 15 applies to government, not the private sector==
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Section 15 of the Charter says everyone is equal before the law and has the right to equal protection of the law, without discrimination. The section highlights the right to be free of discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
You can’t use section 15 to challenge every inequality in life. The Charter controls laws and other government actions. It doesn’t control private citizens, businesses, or organizations. Before you can claim the protection of section 15, you must show that you are being treated unequally by a law or by the action of a government official or department or some agency very closely connected to government, such as a school board or labour relations board. If a private individual, organization, or company violates your rights, you may be able to complain under the BC ''Human Rights Code'' or the ''Canadian Human Rights Act''. For more information on this, check script [[Human Rights and Discrimination Protection (Script 236)|236]] on “Human Rights and Discrimination Protection”, and script [[Protection Against Job Discrimination (Script 270)|270]] on “Protection Against Job Discrimination”.
 
  
==Section 15 protects people, not companies==
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The wording of section 15 gives equality rights to “every individual." As such, the equality rights under the Charter protect '''people''', not companies or other artificial persons.
Courts have said that section 15 protects people, not companies or other artificial persons, because it gives the right to equality to “every individual”.
 
  
==The Supreme Court of Canada’s approach to equality==
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{| class="wikitable"
Section 15 does not require everyone to be treated the same way regardless of different circumstances. Showing that the government or the law is treating you differently, or showing that a law that appears to treat people the same way actually treats members of a particular group differently, is just one step in showing a violation of section 15 equality rights.
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|align="left"|'''Tip'''
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For more on your rights under the Charter, see our [[Charter Rights: Overview|overview of the Charter]] and our information on [[Charter Rights: Legal Rights|legal rights]].
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|}
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===The Charter applies to government, not the private sector===
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Section 15 of the Charter does not apply to every possible inequality in life. The Charter controls '''laws''' and '''government actions'''. It doesn’t control private citizens, businesses, or organizations. Before you can claim the protection of section 15, you must show you are being treated unequally by a law or by the action of government, or some agency very closely connected to government, such as a school board or labour relations board.
  
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.
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If a private individual, organization, or company violates your rights, you may be able to assert a claim under '''human rights law'''. Depending on the situation, you might be able to rely on the ''BC Human Rights Code'' or the ''Canadian Human Rights Act''. For more, see our information on [[Human Rights and Discrimination Protection|human rights and discrimination protection]], and [https://dialalaw.peopleslawschool.ca/job-discrimination/ protection against job discrimination].
  
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 perpetuating (or indefinitely continuing) prejudice or stereotyping.
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===To show your equality rights are being violated===
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To show your equality rights under section 15 of the Charter are being violated, there are three central issues.
  
Section 15 allows affirmative action programs
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First, you must show that a law or government action treats you differently from others.
Some differences in treatment may not violate section 15. Courts have said that equality may require different treatment for different groups. Section 15(2) protects “affirmative action programs.” It says that laws or government programs designed to improve the conditions of disadvantaged individuals or groups do not violate section 15. So governments can set up programs to help people or groups disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
 
  
==Section 1 allows reasonable limits on Charter Rights==
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Second, you must show that one of the grounds of discrimination in section 15 are the basis for the differential treatment. 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 you can’t change at all, or you can’t change without great personal cost or difficulty — like sexual orientation or citizenship.
Charter rights and freedoms are not absolute. The Charter and the courts recognize that governments make laws in the broader public interest, even if a law harms some groups and violates their right to equality under section 15. In such a case, a court will analyze whether the government can justify the violation under section 1. This section says that Charter rights and freedoms are subject to reasonable limits prescribed by law as can be demonstrably (clearly) justified in a free and democratic society. A court may accept and permit a violation of a Charter right if the government can meet the test under section 1. 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 a very important objective and whether the government chose a proportionate way to meet that objective—a way that interferes as little as possible with constitutional rights. For example, could the government achieve its objective in another way, without violating equality rights? Does the law do more harm than good?
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Third, you must show the law or government action has a purpose or effect that is discriminatory within the meaning of the equality guarantee. The courts have said a central purpose of section 15 is to promote “'''substantive equality'''” by fighting discrimination. So the courts focus on whether the law or government action is discriminatory in creating a disadvantage by prejudice or stereotyping.
  
==Remedies if Charter Rights violated==
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===Equality does not mean identical treatment for everybody===  
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 a lot 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. Check script [[Charter of Rights and Freedoms: Overview (Script 230)|230]] for more on remedies.
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In certain cases, disadvantaged groups may need more services or programs. For example, courts have ruled that to ensure equal access to medical care, someone born deaf should be provided a sign language interpreter to be able to effectively communicate with their doctor.
  
For more information, refer to 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”.
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Section 15 itself protects '''affirmative action programs'''. It says that laws or programs designed to improve the conditions of disadvantaged individuals or groups do not violate section 15. So governments can set up programs to help people or groups disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
  
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===Equality rights under the Charter are not absolute===
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Charter rights are not absolute. The Charter itself recognizes that some laws might violate the Charter yet be justifiable in the broader public interest. Where a law violates a Charter right, a government can try to justify the violation as a '''reasonable limit''' under section 1 of the Charter. Under that section, a reasonable limit needs to be “prescribed by law” and “demonstrably justified in a free and democratic society."
  
[updated July 2014]
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If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at 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?
  
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Section 1 applies only to written laws. It does not apply to '''government actions'''. An example of a government action is a decision by a government official to deny benefits. Where a government action violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional.
  
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==Remedies if a Charter right is violated==
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If you prove your equality rights under the Charter have been violated, and the government cannot justify the violation as a reasonable limit under section 1, the next question is what kind of '''remedy''' is appropriate. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected.
  
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Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers appropriate and just in the circumstances. Different kinds of remedies apply to different types of cases. In some cases, a court may decide to '''declare that a law is unconstitutional'''. This is often referred to as ”striking down a law." For example, if the government passed a law that discriminated based on gender, the court could strike down the law. In this way the remedy helps everyone affected by the law. In such a case, a court may “suspend” its declaration to give the government time to pass a new law that will be valid.
  
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In other cases, the remedy might be to '''"read in" wording''' to a law that violates equality rights, in order to address the inequality. For example, the phrase “same-sex couples” might be read in to the definition of “spouse” in a law, to clarify that the law does not discriminate based on sex.
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Latest revision as of 23:09, 9 November 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Brock Martland, Martland & Saulnier in July 2018.

The idea that all people should be treated equally is a core value in Canadian society. In fact, equality rights are enshrined in the Canadian Charter of Rights and Freedoms.

What you should know[edit]

The Charter guarantees equality rights[edit]

The Charter of Rights and Freedoms is part of Canada’s Constitution and protects a broad range of rights and freedoms. Among the rights guaranteed by the Charter are equality rights.

Section 15 of the Charter says everyone is equal before the law and has the right to equal protection of the law, without discrimination. The section highlights the right to be free of discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

The wording of section 15 gives equality rights to “every individual." As such, the equality rights under the Charter protect people, not companies or other artificial persons.

Tip

For more on your rights under the Charter, see our overview of the Charter and our information on legal rights.

The Charter applies to government, not the private sector[edit]

Section 15 of the Charter does not apply to every possible inequality in life. The Charter controls laws and government actions. It doesn’t control private citizens, businesses, or organizations. Before you can claim the protection of section 15, you must show you are being treated unequally by a law or by the action of government, or some agency very closely connected to government, such as a school board or labour relations board.

If a private individual, organization, or company violates your rights, you may be able to assert a claim under human rights law. Depending on the situation, you might be able to rely on the BC Human Rights Code or the Canadian Human Rights Act. For more, see our information on human rights and discrimination protection, and protection against job discrimination.

To show your equality rights are being violated[edit]

To show your equality rights under section 15 of the Charter are being violated, there are three central issues.

First, you must show that a law or government action treats you differently from others.

Second, you must show that one of the grounds of discrimination in section 15 are the basis for the differential treatment. 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 you can’t change at all, or you can’t change without great personal cost or difficulty — like sexual orientation or citizenship.

Third, you must show the law or government action has a purpose or effect that is discriminatory within the meaning of the equality guarantee. The courts have said a central purpose of section 15 is to promote “substantive equality” by fighting discrimination. So the courts focus on whether the law or government action is discriminatory in creating a disadvantage by prejudice or stereotyping.

Equality does not mean identical treatment for everybody[edit]

In certain cases, disadvantaged groups may need more services or programs. For example, courts have ruled that to ensure equal access to medical care, someone born deaf should be provided a sign language interpreter to be able to effectively communicate with their doctor.

Section 15 itself protects affirmative action programs. It says that laws or programs designed to improve the conditions of disadvantaged individuals or groups do not violate section 15. So governments can set up programs to help people or groups disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Equality rights under the Charter are not absolute[edit]

Charter rights are not absolute. The Charter itself recognizes that some laws might violate the Charter yet be justifiable in the broader public interest. Where a law violates a Charter right, a government can try to justify the violation as a reasonable limit under section 1 of the Charter. Under that section, a reasonable limit needs to be “prescribed by law” and “demonstrably justified in a free and democratic society."

If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at 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 1 applies only to written laws. It does not apply to government actions. An example of a government action is a decision by a government official to deny benefits. Where a government action violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional.

Remedies if a Charter right is violated[edit]

If you prove your equality rights under the Charter have been violated, and the government cannot justify the violation as a reasonable limit under section 1, the next question is what kind of remedy is appropriate. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected.

Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers appropriate and just in the circumstances. Different kinds of remedies apply to different types of cases. In some cases, a court may decide to declare that a law is unconstitutional. This is often referred to as ”striking down a law." For example, if the government passed a law that discriminated based on gender, the court could strike down the law. In this way the remedy helps everyone affected by the law. In such a case, a court may “suspend” its declaration to give the government time to pass a new law that will be valid.

In other cases, the remedy might be to "read in" wording to a law that violates equality rights, in order to address the inequality. For example, the phrase “same-sex couples” might be read in to the definition of “spouse” in a law, to clarify that the law does not discriminate based on sex.

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