LAW

A new promise of equality

Robert Miller April 22 1985
LAW

A new promise of equality

Robert Miller April 22 1985

A new promise of equality

LAW

Robert Miller

The language was unequivocal and the overall principle— equality for everyone under the law—was beyond debate among most Canadians. But the legal and social consequences of Section 15 of the Canadian Charter of Rights and Freedoms, which comes into effect this week, remained far from clear. Lawyers and legislators alike expected a spring flood of litigation from pressure groups and individuals impatient to establish their constitutional rights. As well, despite three years’ advance notice, the provinces were unequally prepared to deal legally with equality rights, a concept almost as old as civilized society. And even the federal government appeared uncertain about the wisdom of untrammelled equal rights. Said Justice Minister John Crosbie, whose department is responsible for constitutional matters: “We know that there are many situations of discrimination, or discretion and choice, throughout our legislation and our policy. The question is whether it is proper discrimination, discretion and choice.” Conflict: To try to answer that question, three months ago Crosbie assigned a parliamentary committee to conduct a series of cross-country hearings on “the complex social issues” arising from the Constitution’s guarantee of equal rights. It is not scheduled to report until August, even though Section 15 of the Charter becomes law on Wednesday, April 17—three years after the Constitution and the rest of the 34-section Charter were proclaimed (page 52). In its blanket guarantee of equality rights and its general proscription of discrimination, Section 15 is in apparent conflict with many of the approximately 1,100 existing federal laws. Still, Ottawa and most of the provinces have been extremely cautious about rewriting legislation to make it conform to the Charter.

According to Section 15, every individual in Canada is equal before and under the law—“without discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability.” On the surface, the wording appears to disallow such common-sense provincial legislation as a minimum age for licensing motor vehicle drivers or for consuming alcoholic beverages. It may also outlaw such long-established practices as the

armed forces’ barring women from combat roles and banning homosexuals from service. As well, Section 15 contradicts public sector legislation providing for mandatory retirement based on age, including airline pilots and police officers. And it apparently means that public employees of both sexes should re-

ceive equal pay for work of equal value—a long-sought objective of women’s rights advocates.

The Charter is the supreme law of the land, but the equality rights section is subject to at least some constraints. Section 1 of the Charter says that all rights and freedoms in Canada are subject “to reasonable limits prescribed by law,” consistent with society’s best interests. Although some civil rights activists viewed Section 1 with suspicion —perceiving it as a loophole which

federal and provincial lawmakers could use to deny some equality rights—most legislators consider it to be a necessary safety device to protect society from extreme applications of Section 15. According to Wayne MacKay, a constitutional law professor at Dalhousie University in Halifax, the courts will move cautiously in dealing with challenges under Section 15. Said MacKay: “You would wipe out most legislation if the Charter’s prohibition of discrimination is taken too literally.”

Section 15 is expected to generate a sustained legal debate, particularly before the Supreme Court of Canada. But most legal experts say that the section is not retroactive—that is, it does not apply to actions, however discriminatory, that took place before April 17. And there is general acknowledgment that it only covers actions by governments or government-regulated bodies, leaving the matter of private discrimination—in such areas as accommodation disputes and private sector employment practices—under the jurisdiction of the country’s various human rights commissions.

Uncompromising: Because of the broad sweep and uncompromising wording of Section 15, its implementation was deferred to allow the provinces and Ottawa time to seek out and amend conflicting legislation and to end such discriminatory government practices as mandatory retirement for civil servants at age 65. So far, only Quebec—which did not sign the 1981 federal-provincial constitutional agreement and which protects the rights of its residents through provincial statutes—and Manitoba have dropped that requirement. The federal government has moved to change fewer than 60 laws to make them conform to the Charter. The changes were contained in an omnibus bill—C-27 —and principally involved minor revisions in wording. Of the federal laws revised, only 11 were thought likely to clash with Section 15. For one, unlike their male colleagues, women working on ships owned by the federal government could not have their paycheques sent directly to their homes.

Most provinces have begun to review their statutes, but they—like Ottawa —have been slow to begin rewriting legislation. So far, only Manitoba, Alberta and New Brunswick have begun to make some provincial laws conform with Section 15. And in introducing its

omnibus bill this month, New Brunswick pointedly avoided two key issues: equal pay for work of equal value and mandatory retirement at age 65. For its part, Saskatchewan completed a review of its legislation last year, releasing a white paper identifying 45 laws that violated the Charter, and Justice Minister Gary Lane has said he will introduce an omnibus bill to amend or repeal them during the current legislature session. For his part, James Spur, a provincial justice department lawyer in Nova Scotia, which has identified but not yet moved to amend more than 100 Charterconflicting statutes, said last week, “We are probably not the only province won-

dering whether the floodgates will open after April 17.”

Harsh: Opposition critics and some organizations lobbying for change in Canadian society have harshly criticized Ottawa’s cautious approach to the equality rights section. Declared Liberal critic John Nunziata: “The government could have dealt bigotry and racism a body blow. It could have told the provinces to bring their legislation into line and could have led by example.” Added Sylvia Gold, newly appointed

head of the Canadian Advisory Council on the Status of Women: “Anything which would have saved us lengthy court procedures and the money involved would have been welcome.” Questions: But there were powerful arguments against taking any hasty action—by governments or litigants. At the time he appointed the parliamentary committee, Crosbie published a discussion paper which raised a series of perplexing questions. For one, the paper asked whether abolishing mandatory retirement, which clearly discriminates against people on the basis of age, would be consistent with the government’s goal of creating rewarding employment

for young people entering the work force. For another, it asked whether disenfranchised mentally ill people who are confined to institutions should be allowed to vote.

At the same time, some lawyers advised activist groups not to rush an illchosen case to court and risk a narrow ruling which might cause long-term damage to the cause of equality. Said Andrew Roman, a lawyer and executive director of the Toronto-based Public Interest Advocacy Centre: “These kinds of

cases are sometimes taken by groups largely as a way of publicizing their grievances, and that is an improper use of the courts.”

Still, some organizations have already decided that bringing carefully selected cases to court—and winning —is the best way to guarantee equality for women, native people, the handicapped and the poor. For dedicated activists, the proclamation of Section 15 was a cause for celebration. Said Susan Tanner of Ottawa, a spokesman for the Legal Education and Action Fund (LEAF): “I think Section 15 has marked a big change that has already taken place in Canadian society, and it is going to

stimulate an even greater change.” LEAF is a nationwide women’s group which has raised more than $225,000 to help finance test cases for women seeking their rights under the section.

Equality: To help LEAF’S cause—organizers say they hope to raise as much as $10 million during the next five years —and to celebrate the proclamation of Section 15, no fewer than 800 people paid $50 each for tickets to an April 17 Parliament Hill party billed as “A Date with Equality.” The function was orga-

nized by a steering committee of Ottawa women including Maureen McTeer, wife of External Affairs Minister Joe Clark.

Although LEAF members are reluctant to discuss specific cases, the organization says that it planned to hire a permanent executive director and that it will establish a list of test cases worth taking to court. Among them: single mothers being deprived of family allowance benefits simply because there is a

man living in the home; pension tables based on life expectancy which result in women paying more money to acquire the same pension benefits as men; and inferior prison facilities for women.

Promise: Another group planning legal action to enforce equality rights

promised by Section 15 is Ontario’s Advocacy Resource Centre for the Handicapped. Although ARCH says it is waiting for cases, spokesman Gail Czukar of Toronto declared, “We will litigate any worthy test case.” For the handicapped, Section 15 appears to offer the promise of access to public buildings, public transportation and employment.

When Canada’s Constitution became law in 1982, it translated abstract guarantees —based on English common law and dating back to the signing of the Magna Carta in 1215—into written-in-Canada

guidelines and principles. Since then the Constitution has provoked almost 2,000 court challenges on issues ranging from Sunday shopping hours through whether provinces have the right to censor movies to the legality of roadside breathalyzer tests where a potential defendant has no access to a lawyer. And Section 15 is expected to lead to court challenges on issues as diverse as a woman’s right to have an abortion and a

prisoner’s right to have books and magazines while in solitary confinement. Said Elizabeth Atcheson, a Toronto corporate lawyer: “It is accepted that Section 15 will be the most widely litigated section of the Charter.”

Indeed, the guarantee that every indi-

vidual is equal “before and under the law and has the right to equal protection of the law” has enormous significance, going far beyond the equality provisions in the 1960 Canadian Bill of Rights. They were limited to federal jurisdiction and did not not take precedence over other federal laws, but the Charter theoretically reigns supreme.

In Toronto four lawyers planned to test that dominance immediately by introducing seven cases under Section 15. Among their challenges: one on behalf of 10 injured employees, arguing that they should have the right to choose between

suing their employers or accepting workers’ compensation. And in Regina lawyer Morris Shumiatcher is ready move against therapeutic abortion laws. He will do so on the grounds that they discriminate against the unborn on the basis of age. Said Shumiatcher: “One the protections is that you are not going to be put to death capriciously because you are young.”

Iceberg: Establishing equality under the law will provide a steady source income for lawyers—and place an enormous burden on judges ruling on the cases before them. The Supreme Court of Canada already has agreed to hear Charter-related cases, but Chief Justice Brian Dickson said that those are merely “the tip of an enormous iceberg.” Declared Dickson: “Perhaps no one anticipated the breadth, the diversity the questions which have come to fall upon the judges’ shoulders.”

Canadian Civil Liberties Association general counsel Alan Borovoy, for one, said that making equality more than high-sounding principle is going to cost a good deal of money. Said Dalhousie’s MacKay: “Governments have not thought much about affirmative rights. Equality under the law could require all government buildings to be fully accessible to the handicapped.” The financial issue is now before the parliamentary committee studying Section 15. As discussion paper outlining its responsibilities declared: “Correcting an inequality may result in increased costs a program, which could mean reduced resources for other programs. Since Canada has limited resources, the effects on society as a whole of increased costs must be kept in mind.”

Fighting: Clearly, for all its potential for change, the proclamation of Section 15 only marks the beginning of innumerable debates, court battles and financial decisions. In some cases Section 15 may not be the right instrument for fighting discrimination. For his part, Gordon Fairweather, chief commissioner of the Canadian Human Rights Commission, says he does not want it used to end discrimination against women under the Indian Act. Currently, Indian women, unlike Indian men, lose their status if they marry a non-Indian. But Fairweather says he favors a parliamentary solution to that problem instead of a court decision striking down that section of the act. As a result, Fairweather said that he is waiting to see how Section 15 is used—or misused. Concluded Fairweather: “I have an immense feeling of satisfaction, a great feeling of pleasure about Section 15.” But, he said, “I am not going to be sending up any fireworks.”

Michael Rose