THE EQUALITY RIGHTS IN THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Abstract

The three sections of concern here are 15, 27 and 28. Sections 15 and 28 are dealt with together, while section 27 is discussed separately at the end. Similar equality clauses are to be found in nearly all Bills of Rights in the world, whether domestic or international. In considering the reason for the inclusion of the four equality rights in section 15(1), it is necessary to review the history of the "equality before the law" and the "equal protection of the law" clauses as well as the decisions of the Supreme Court of Canada, with respect to the former in the Canadian Bill of Rights. In reaction to these decisions, section 15(1) includes not only the two clauses mentioned, but also two others concerning "equality under the law" and "equal benefit of the law". Section 15(2) is not a substantive provision in the same sense assection 15(1). Although the United States Supreme Court has never held affirmative action programmes to be in contravention of the "equal protection" clause, section 15(2) was inserted for absolute certainty. Section 27 appears to be an "aims" clause, comparable to a clause in a preamble. Because group rights require positive government action, it is difficult to envisage section 27 being used to obtain a court order for a government to spend money. Nevertheless, it can be an important factor in encouraging legislative action.