Script 232 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
The Charter protects several rights and freedoms
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 230 for details of the “notwithstanding clause”.) You can see both the Constitution and the Charter on the Canadian government website at http://laws-lois.justice.gc.ca/eng/const.
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 – “Human Rights and Discrimination Protection”, and script 270 – “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 treats 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 perpetuating (or indefinitely 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 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 if 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 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 the least 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?
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 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 230 for more on remedies.
For more information, refer to the Charter itself (http://laws.justice.gc.ca/en/charter), script 200, called “Charter of Rights and Freedoms: Legal Rights,” and script 230, called “Charter of Rights and Freedoms: Overview.”
[updated June 2012]
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