Doctrine Of Equality In The Canadian Constitution

Application of the Doctrine of Equality in the Charter of Canadian Constitution: A Critical Analysis

Abstract

This paper examines critically the application of the Doctrine of Equality in the charter of Canadian Constitution that how this concept has been accommodated and applied in relation to rule of law, good governance and human rights. In doing so the land mark cases of Canada will be given as reference. The constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government. Fundamental human rights reflecting civil and political rights constitute the conscience of the constitution. Equality right is one of the most significant rights of the human rights and this

prevents the discrimination among people and government actions with respect to age, colour, sex, religion and language etc.
Introduction
The right to Equality is the cornerstone of all fundamental rights. Section 15 of the Cherter of the Canadian Constitution accommodates the principles of equality and non discrimination. It accommodates two principles: ‘Equality before law’ and ‘Equal Protection of Law’ meaning due process of law. It reads:
(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.
Canada is a democratic country and people of it are the owner of the state and all functionaries and members of all services must serve their cause and only in their interest. The law is not a respecter of persons; it does not discriminate between the ordinary citizens and functionaries of the state. The privileges of the functionaries of the state are not allowed because they occupy such an exalted and high position but only so that they can perform their functions better in the interest of the people. The government is an agent and trustee for and on their behalf. The honourable Members of parliament are bound by the laws enacted by themselves just like any common citizens of this country.
Understanding the Right to Equality
The section 15 refers to firstly, ‘equality before law’ and ‘equal protection of law’ and secondly affirmative action programs.

The idea as contained in this section is a combination of the English concept of ‘equality before law’ and the American concept of ‘equal protection of law’. The doctrine of equality is one of the most difficult doctrines to apply to real life situations.

Equality before the law, also known as equality under the law, equality in the eyes of the law, or legal equality, is the principle under which all people are subject to the same laws of justice. The author Anatole France said in 1894, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread."3 Equality before the law is one of the basic principles of liberalism4 .

The courts have therefore evolved some principles on the basis of equality and non discrimination can be tested. These principles are as follows

1. Discrimination, whether under substantive or procedural law, would be

unconstitutional.
2. It is permissible to classify individuals into different groups on the basis of certain criteria which are relevant to the set of facts requiring differentiation. Several decisions of the Supreme Court have judicially enunciated two conditions, namely
1. The classification must be founded on an intelligible differential which distinguishes those that are grouped together from others.
2. The differential must have a rational relation to the object sought to be achieved by the law under challenge.
Age Discrimination Justified
The above principles were applied in Withler v Canada5 justifying age discrimination. The fact of this case is that the plaintiffs widows whose supplemental death benefits were reduced because of the age of their husbands at the time of death, complained of unequal treatment under the law. The Public Service Superannuation (PSSA) and the Canadian Forces Superannuation (CFSA) provide a supplementary death benefit of twice the salary of the participants upon their death, subject to a reduction for age. Under PSSA, public servants’ benefits are reduced by 10 percent for each year of age in excess of 65; under the CFSA, Canadian Forces members’ benefits are reduced 10 percent for each year of age beyond 60. The plaintiffs claimed that those provisions constitute age discrimination under s.15 of the charter. They thus sought a declaration that the provisions are inconsistent with the charter and of no force and effect. The plaintiffs’ class action also claimed judgment for the amount by which benefit payments had been reduced.
The Supreme Court concluded that the approach when addressing equality rights is one that takes account of the full context of the claimant group’s situation, the actual impact of the law on that situation, and whether the impugned law perpetuates disadvantage to or negative stereotypes about that group.
The Court first asked whether the law creates a distinction that is based on an enumerated group. Clearly, the reduction provisions at issue in this case were age –related; they thus constituted an obvious distinction on an enumerated group. But then the Court asked whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping. To answer this question, the focus must be on the nature of the benefit. A contextual assessment revealed that the age-based benefit reduction did not breach dection15 because the scheme was designed to benefit a number of different groups, and the benefit reductions reflected the reality that different groups of survivors have different needs. When the supplementary death benefit is considered in the context of the other pensions and benefits to which the surviving spouses are entitled, it is clear that its purpose corresponds to their needs. For younger employees’ long-term income security is guaranteed by the survivors’ pension coupled with the public service’s health and dental plan, it is intended to assist with the costs of terminal illness and death. Rather than causing disadvantage, the reduction provisions actually furthered the goal of the scheme- to provide for surviving spouses according to their needs. Accordingly, the court challenge to these provisions failed.

Courts Prompt Significant Legislative Changes
Even there is no provisions as to category listed generally in this section , The courts tend to interpret the section 15 broadly. Thus even though there is no reference about sexual preference in section 15, the courts have had no difficulty in concluding that a denial of benefits to same-sex couples is prohibited because it discriminates against applicants on the basis of their sexual orientation. This was held in M v H6 and Halpern v Canada7 cases. In M and H case, Two women cohabited in a same-sex relationship for10 years. When relationship broke down, M. applied for spousal support under Ontario’s Family Law Act. She argued that the opposite-sex definition of spouse was discriminatory and unconstitutional, as it included married persons and heterosexual couples who had cohabited without marrying, but failed to include same-sex couples. The courts found the definition violated section 15(1) of the charter as it formally distinguished between M. and others on the basis of sexual orientation. The lower courts favoured “reading in” a non-discriminatory definition of spouse to the legislation, to enable same-sex couples to claim spousal support. The Supreme Court of Canada, however, dismissed the appeal, and chose to sever the offending section from the legislation. It suspended its declaration for six months to allow the government time to amend the legislation. This would mean that if the government did not create new legislation, the Supreme Court’s decision would result in spousal benefits being available to either heterosexual or homosexual unmarried couples. In response to this case, the Ontario government amended 67 statutes to extend similar benefits to non-married couples, regardless of their sexual orientation.
In the Halpern case, the Ontario Court of appeal took a different approach when asked to review the common law definition of marriage. It declared the definition of marriage as “one man and one women” to be invalid as it offends equality rights. It reformulated the definition to the “voluntary union for life of two people to the exclusion of others” and declared this definition to have immediate effect. Consequently, numerous same-sex couples rushed to secure marriage licences. The federal government responded by referring a proposed bill on same-sex marriage to the Supreme Court of Canada for review.8After the Supreme Court affirmed the validity of the proposed legislation and the authority of the federal parliament to define marriage, Parliament proceeded to redefine marriage to include same-sex couples. 9
Equal protection of Law
The meaning of the Equal Protection Clause has been the subject of much debate, and inspired the well-known phrase "Equal Justice under Law". This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision that helped to dismantle racial segregation, and also the basis for many other decisions rejecting discrimination against people belonging to various groups.10
The Equal Protection Clause itself applies only to state governments. However, the Supreme Court held in Bolling v. Sharpe (1954) that equal protection requirements apply to the federal government through the Due Process Clause of the Fifth Amendment.11 This concept similar to due process of law which derives from the Magna Carta (1215),the great charter of English liberties whereby the nobles limited the king’s authority. Its phrase ‘law of the land’ was transformed over the years to ‘due process of law’, a phrase included in 1692 in a Massachusetts statute.
In Canadian Constitution the central aim of due process doctrine is to assure fair procedure when the government imposes a burden on an individual. The doctrine seeks to prevent arbitrary government, avoid mistaken deprivation, allow persons to know about and response to charges against them and promote a sense of the legitimacy of official behavior. Therefore, the concept of due process has two aspects, namely, procedural due process which refers that government must follow fair and generally accepted legal procedures in its actions against individuals and substantive due process which indicates to a requirement that laws and regulations be related to legitimate government interest and not contains provisions that result in the unfair or arbitrary treatment of an individual.
An accused person who is poor and cannot engage a lawyer where the charge is of an offence punishable with imprisonment for life, he is entitled to be offered legal aid. Our parliament passed law to ensure protection of the peoples’ right which will help fair trial of a weaker and disadvantaged person in our society. Through the help of legal aid a citizen is entitled to equal protection of law.
Affirmative Action
Section 15(2) provides for affirmative programs.

When a provision is intentionally introduced that has the effect of discriminating one group of people, it mat still be allowed if its purpose is to correct an imbalance that has occurred through discrimination in the past. Thus, the government may intentionally set out to hire women or specific ethnic minorities to get a better balance in the civil service. This is permissible even though it will have the effect of preventing people of other groups, such as Caucasian men, from having an equal opportunity to obtain those same jobs. Universities often have similar programs to encourage minorities to enter faculties to correct historical

imbalances.
Conclusion
In short, it is true that the Supreme Court has struggled to provide clear guidance to litigants and courts on the meaning of concepts such as “discrimination” or “disadvantage” in section 15 cases. However, this uncertainty is unavoidable in light of the nature and purpose of the equality guarantee and interests it was meant to protect. In our view, section15 claims can only be decided with a careful attention to context, including a consideration of the needs and circumstances of the persons who are alleging unequal treatment and a consideration of the actual impact of the legislation upon them.