UNIT #5 Equality rights
​
What is equality?
●​ What does it mean to be treated equally?
●​ Individual vs. collective approaches to discrimination
Freedom of association (s. 2(d))
●​ Right to join associations
●​ Right to seek out other constitutional rights
●​ Right to come together and negotiate
●​ S. 2(d) protects employees and prevents employers from holding all the cards
●​ Powerful unions are the ones that win negotiations most often
○​ Example: police unions
Equality rights
●​ In section 15, Bill of Rights, Human Rights Code
●​ In laws such as employment, education, etc.
●​ Equality is considered important
●​ Inequality is very potent in Canada's history
●​ What does the right to equality mean?
○​ Equality under the law
○​ Equality in socialization
○​ Equal opportunity, removing formal barriers
○​ Equal compensation
○​ Equal outcomes
Charter is an effects based document
●​ Aristotle said you should treat likes alike - meaning you can treat groups differently
as long as the whole group is treated the same
●​ First Nations women who married white men lost their status but First Nations men who
married white women kept their status
○​ All women treated the same, all men treated the same
○​ Example of Aristotle
○​ Similarly situated
●​ What if treating people differently got the desired outcome?
○​ Equity
How do we approach the question of discrimination?
●​ Approach as individual issue or as a collective issue
●​ Individual:
○​ Only concerned with individuals who are victimized by specific acts of
discrimination can seek out a remedy, remedy is supplied by the person
discriminating
●​ Collective:
○​ Group vs. system
○​ Unintentional systemic issues
●​ No single individual at fault (laws passed by parliament;
capitalism)
○​ Society's goods should be distributed based on merit
●​ Merit is randomly distributed across society
1.​ Every group has those who excel or are
impoverished
●​ If you find one group doing very well, one of two things is
happening
1.​ Good are not being distributed according to merit
2.​ Education is not able to account for merit
Solution
●​ Ameliorative treatment of disadvantaged groups
○​ Affirmative action
○​ How to make up for unlevel playing field
TUESDAY LECTURE
3 criticisms of collective approach
1.​ Under inclusive
○​ Some individuals who are not part of a group targeted for ameliorative
treatment may have similar disadvantages
●​ May be true but you can make adjustments and expend who
you are helping
2.​ Over broad
○​ By focusing on groups, it ignores disparities within the groups
○​ There will be some people in the group who are less disadvantaged than
others in the group
●​ May be true but it won't address situations where it doesn't
matter about economics when that group is the subject of
prejudice (sexism, racism, homophobia, etc.)
3.​ Who bears the burden of the remedy?
○​ The person who does the act of discrimination
○​ Gets harder to identify in affirmative action
●​ These programs may impose burdens on individuals who did
not have anything to do with the discrimination in the first place
○​ Hard to avoid and tailor policy to limit this
S. 15 of Charter - what does it say?
●​ How do we protect equality rights
●​ Seen as having the largest potential for policy impact
○​ Delayed implementation of this part of the charter until 1985 (rather than
1982) so government could proactively change laws
●​ S. 15(1)
○​ Contains 3 declarations and 4 kinds of equality
●​ Every kind of individual is equal before and under the law
(classic rule of law)
●​ Everyone has right to equal protection and equal benefit of the
law without discrimination
●​ Lists prohibited grounds of discrimination:
●​ Race, colour, ethnicity, religion, sex, nationality,
●​ Age, mental and physical disability
○​ What does it mean to have 'equal benefit and protection'?
○​ Says individuals have right to equality 'without discrimination'
●​ Can we make distinctions without being discriminatory?
○​ Are the above grounds the only ones that can be discriminated on?
○​ People on the advantaged side of the groups - can they claim equality
rights/discrimination
●​ Andrews (1989)
○​ Lawyer told that he had to be a Canadian citizen to practice law in
Canada even though he was a permanent resident
○​ First case about section 15
○​ Kapp (2008)
○​ Discrimination = disadvantage
●​ Can be material harm (money, education, job, etc.) or it
reflects prejudice (assumptions of ability, etc.)
●​ That discrimination must be on the basis of a personal
characteristic unrelated to merit/capability
●​ 'Bona fide' - related to merit
●​ Two categories of personal characteristics
●​ 'Enumerated' grounds (written down in
the Charter) - not exclusive
●​ 'Analogous' grounds (like the listed
ones) - analogies
●​ 'Insular (unable to participate
in politics - historically
sidelines) and discrete (easy
to identify if you belong to the
group)' minority (not just
numerically)
●​ Historically disadvantaged
group (not disadvantaged
just by the law being
reviewed)
●​ Personal characteristics,
unrelated to merit, that are
'immutable' (things that
cannot be easily changed
about ourselves or
something that the State has
no business asking us to
change)
●​ Sexual orientation case
(1995) - part of this week's
reading
●​ Recognition of it
in the Charter
meant that
Statutory Humans
Right's Codes had
to reflect what
was put into the
Charter
●​ Who can claim equality rights?
○​ Purpose of s. 15 is to stop government from perpetuating group
disadvantage or prejudices or creating any new disadvantages because
of stereotypes
●​ S. 15(2)
○​ Protection of affirmative action programs
○​ Says, if the distinction mad in law is in line with affirmative action, then it
is not discrimination - it is a measure under affirmative action in order to
address discrimination (can't violate s. 15(1) if it complies with s. 15(2)
○​ Court's position - no such thing as 'reverse discrimination' - not
discrimination if you're trying to fight historic discrimination - defined in law
○​ Fraser (2020) - first case of adverse claim by women accepted (part of
this week's reading)
●​ RCMP policy with part-time job sharing
●​ All women with child-care responsibilities - wanted to fully
contribute to pension even though not working full-time
●​ Other members of RCMP could do this - only one's that
couldn't were these women in this program
Key interpretative questions under s. 15
●​ How literally to read 'equal benefit and protection'?
●​ Distinctions vs. discrimination?
●​ Exclusive grounds?
●​ Advantaged groups?
S. 15(2) vs. 15(1)