Charter of Rights and Freedoms: Equality Rights (Script 232)
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- 1 The Charter protects several rights and freedoms—but there are reasonable limits
- 2 Equality rights in the Charter
- 3 Section 15 applies to government, not the private sector
- 4 Section 15 protects people, not companies
- 5 The Supreme Court of Canada’s approach to equality
- 6 Section 15 allows affirmative action programs
- 7 Section 1 allows reasonable limits on Charter rights
- 8 Section 33, the notwithstanding clause
- 9 Remedies if Charter rights violated
The Charter protects several rights and freedoms—but there are reasonable limits
If a court decides that a law (or part of a law) or a government action (for example, police action) violates the Charter, that law or action is not valid. But Charter rights are not absolute. If it’s a law (not an action) that violates the Charter, the government can try to justify the law as a reasonable limit under section 1. Or the government can use section 33 (the notwithstanding clause) to say that the law operates despite (or notwithstanding) the Charter. (The reasonable limits clause and the notwithstanding clause are explained below.)
Equality rights in the Charter
Section 15 guarantees equal benefit and protection of the law to people, saying:
- 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
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 236 on “Human Rights and Discrimination Protection”, and script 270 on “Protection Against Job Discrimination”.
Section 15 protects people, not companies
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
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 ends up treating members of a particular group differently) is just one step in showing a violation of section 15 equality rights.
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 continuing prejudice or stereotyping.
Section 15 allows affirmative action programs
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
Charter rights and freedoms are not absolute. The Charter and the courts recognize that governments can make laws in the broader public interest, even if a law violates a right to equality under section 15. In such a case, Canada’s Parliament or a provincial legislature can try to justify the violation—under section 1—as a reasonable limit on the right. Section 1 says that a reasonable limit must be prescribed by law and demonstrably (clearly) justified in a free and democratic society. If a government uses section 1, a court can then decide if the government has justified the Charter violation. If so, the court may allow the violation.
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 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
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
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 230 has more on remedies.
[updated July 2018]
The above was last edited by John Blois.
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