An instrument of change

Section 15 was never meant to be simply a symbol. It was intended as a working tool to ingrain equality in every aspect of Canadian life.

It has been 20 years since the Section 15 equality rights provisions in the Canadian Charter of Rights and Freedoms took effect.

As we mark this milestone in Canada’s evolution as a nation, we can be proud that as a result of this legislation our country has become a better place in which to live. Our elected officials have used Section 15 to guide them in making laws that are just. Judges and others seeking to protect equality rights have employed Section 15 to ensure that everyone in Canada has the right to equality and to be free from discrimination.

The challenge

Former Prime Minister Pierre Elliott Trudeau set out the challenge more than two decades ago, when he said: “We must now establish the basic principles, the basic values and beliefs which hold us together as Canadians so that beyond our regional loyalties, there is a way of life and a system of values which make us proud of the country that has given us such freedom and such immeasurable joy.”

Before Section 15 became law, there was no national constitutional protection of equality rights under the law. A variety of human rights acts were in place or were being adopted by the provinces, but there was no consistent standard from sea to sea to sea. The Canadian Bill of Rights, which had been passed in 1960, declared equality for all. However, the Bill of Rights was not given constitutional status and therefore was generally ineffective for those seeking to use it as a basis for striking down discriminatory federal laws. Moreover, it did not apply to provincial laws.

When the government began discussions to patriate the Canadian Constitution – to bring it home to Canada from England – there was a groundswell of support from both politicians and ordinary people to use the opportunity to ensure that the fundamental rights we treasure were embedded in its provisions.

The government introduced its draft of the Canadian Charter of Rights and Freedoms in the fall of 1980 as part of its constitutional resolution. After vigorous debate in the House of Commons and the Senate, the resolution was put before an all-party Special Joint Committee of members of Parliament (MP’s) and senators. More than 300 people appeared before the committee, representing women, Aboriginal people, ethnic and cultural minorities and persons with disabilities. Some 1,200 written submissions were made.

The Special Joint Committee hearings resulted in 123 recommendations to improve the Charter, of which more than half were included in the final document. The text of Section 15, originally similar to the 1960 Bill of Rights wording on equality, underwent significant rewriting to achieve the powerful presence it now holds at the heart of the Charter.

What it is

The Charter became a mirror of national identity, the document in which we declare the values we share, the rights we all respect and the freedoms we hold dear. Proclaimed as law on April 17, 1982, as part of the patriated Constitution Act, the Charter gives all Canadians protection under the law should their rights ever be threatened. Section 15 came into effect three years later to provide federal, provincial and territorial governments the opportunity to review their legislation for consistency with the equal rights provisions.

Equality Rights

15. (1) 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.

(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 disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

What it means

Section 15 ensures that every person in Canada enjoys the right to equal treatment under the law and equal benefit of the law. It means that a person’s equality rights are deserving of the highest protection the law can give.

Section 15 is not just symbolic: it is a working tool – an instrument of change that has an impact on how our elected officials set about making the laws that govern our lives. The equality rights provisions give our lawmakers clear guidelines to ensure new laws do not detract from an individual’s right to equality.

“It is essential that (those of us in) parliamentary life, which is essentially a debating life, don’t lose track or sight that the nature of the country is enshrined in the dynamics and values of the Charter,” says Senator Serge Joyal, who co-chaired the Joint Special Committee. “My role in the Senate is essentially that: to look into legislation and ask myself, ‘Is this Charter-proof? Does it respect the values and principles of the Charter?' ”

What it has done

Section 15 has been a catalyst for change in the country’s courtrooms. It gave judges the authority and guidance they needed to decide whether a law or a practice is consistent with the constitutionally guaranteed right to equality. Supreme Court of Canada decisions on Section 15 are looked to around the world for the Court’s interpretation of the meaning of equality. The Supreme Court has taken the lead from the wording of Section 15 to produce a rich body of case law that gets to the heart of what is meant by equality and discrimination.

Some of these Supreme Court rulings show the judges’ interpretation of Section 15 has gone beyond the original nine grounds of discrimination listed in the Charter. Successful court challenges have been launched over discrimination on the basis of sexual orientation, marital status and Aboriginal place of residence grounds - all of which were deemed “analogous” to those grounds defined in Section 15. Such expansion of rights protection was the goal the government was striving for in crafting that section of the Charter, says Senator Joyal.

“The Supreme Court saw the ‘remedial and purposive’ nature of the Charter. Those are the words of the Supreme Court. It’s a remedy, an initiative to put people in the situation they are entitled to. To correct something. There is in the Charter a capacity to act more fairly. When we say it’s purposive, it means it gives an orientation, a direction to the Canadian society.”

The Section 15 guarantee that “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” has been interpreted as a guarantee of “substantive equality.” This means courts can look beyond superficiality and examine the effect of a law on an individual or a group. In Brooks v. Canada Safeway Ltd. the denial of employment benefits on the basis of pregnancy was ruled as discrimination on the basis of sex. While not a Section 15 case, the Supreme Court invoked Section 15 to confirm its liberal approach to equality rights protection. The ruling was in direct contrast to the pre-Charter decision in which the Supreme Court ruled a pregnant woman who was denied unemployment insurance benefits was not a victim of sex discrimination.

Into the future

How has Canada changed in the 20 years since Section 15 became law? Women now have a stronger presence in politics and the professions and no longer face as many legal obstacles to their full participation in social and economic life. Canada’s multicultural identity is underpinned by the values of respect, tolerance and understanding. Many older laws have been amended to remove discriminatory provisions, while new provisions have been enacted to address historical discrimination and disadvantage. We are more tolerant of cultural differences, as schools adopt inclusive curriculums and teach children about the concept of equality for all. While there is still room for improvement, government services, workplace and public buildings increasingly reflect Canada’s diversity and accommodate people’s different needs and circumstances. The combined effect is that Canada is a better place to live.

The Charter and Section 15 have sent the message that equality is a right to be enjoyed by everyone and that ensuring that disadvantaged members of society experience fully equal protection and benefit of the law strengthens the social fabric for all Canadians.

Ultimately, Section 15 – like the rest of the Charter – is part of our shared identity. It unites us in defining the society we wish to be.

The work carries on. It takes many forms, whether it be strengthening legal protection of vulnerable groups through criminal law reform, and providing government services and benefits which have an impact on all areas of our lives. Other, still unknown, issues will arise as our society continues to direct the work of Parliament, the courts and government over the years to come.

Equality, clearly, is less a destination than a journey and will continue to guide Canada’s progress toward the goal of achieving a truly just society. As we do so, Section 15 will continue to guide our lawmakers and our courts. It will also continue to provide a reminder to all Canadians of the values of equality and respect that we cherish as a society. Twenty years from now, it will still be guiding us.

“The genius of the Charter is that it has an evolving nature,” says Senator Joyal, “The Charter has a built-in capacity to be interpreted in synchronized evolution with the evolution of Canadian society. That, to me, is probably the fundamental institutional principle that characterized the Canadian Constitution.”