Equality Rights: An Overview

Equality Rights Overview

• Guarantees that unions can advocate for workers, including actions like government intervention in private sector labor disputes.
• Includes section 15 of the Charter, the 1960 Bill of Rights, Human Rights Acts, Human Rights Codes, and various laws.
• Is vital to the legal system.
• Has a history of inequality.
• This history of inequality is visible in movements, such as Black Lives Matter and Indigenous movements.

Understanding Equality

• The right to equality is a frequently litigated issue, with the Supreme Court struggling to interpret its scope.
• Formal equality involves equal treatment and status in law and society.
• Equal opportunity focuses on removing barriers and biases.
• Equality of outcome aims for substantive equality, ensuring similar results.
• Charter focuses on the effect of policies, even if unintended, and whether they lead to unequal outcomes.
• Aristotle argued likes should be treated alike, and different groups should be treated differently.
• Levell and Bedard (1973) challenged the Indian Act revision, arguing that it discriminated against women, resulting in the court emphasizing equity instead of equality.

Individual vs. Collective Approaches to Discrimination

• Rooted in different conceptions of justice.
• These approaches lead to different demands from the government.
• The individual approach focuses on remedies for individuals harmed by specific discriminatory acts.
  • Remedy comes from the perpetrator.
  • System is closed.
  • Overlooks systemic disadvantages.
• Intentional state design, such as the Lord's Day Act, Indian Act, and Head tax, are examples of systemic disadvantage.
• Africville's displacement in the 1960s exemplifies a systemic disadvantage.
• Unintentional policies, like standardized testing (e.g., LSAT), can be discriminatory due to the financial burden.
  • This can create a barrier to poorer applicants.
• Women (single mothers), Indigenous peoples, and Black individuals are disproportionately affected by poverty and disadvantage.
  • Systematically disadvantaged in becoming lawyers.
  • Not everyone suffers equally.
• Policy is made by many state actors over time.
• Becomes institutionalized in capitalism and attitudes.
• Multiple disadvantages can reinforce each other.
• Discrimination is isolated.

Collective Approach

• Originates from:
  • The idea that societal goods should be distributed based on merit.
  • The belief in merit being randomly distributed, with every group possessing excellence
• A society lacking this distribution indicates overall disadvantage.

Addressing Disadvantage

• Involves correcting imbalances caused by bias, nepotism, or preference, that cause skewed distribution of merit.
• It also involves improving accessibility to education, experience, and merit markers.
• "Ameliorative treatment" specifically addresses disadvantaged groups.
• A version of this is Affirmative action.
• Aims to level the playing field by targeting aid to disadvantaged groups.
• Section 15(2) protects affirmative action programs.

Criticisms of the Collective Approach

• Under-inclusion: Some individuals outside the targeted group may face similar disadvantages.
  • One solution is to broaden the scope of assistance.
• Overbreadth: Disparities within the group exist.
  • Some individuals are less disadvantaged than others.
  • It may not remove prejudices.
• Remedy concerns: Questions of who bears the burden.
  • It may impose burdens on individuals without a direct connection to the discrimination.
  • It gets fuzzier.

Section 15 of the Charter

• Has had a substantial policy impact.
• Reshapes the legal landscape.
• Implementation was delayed until 1985.
• Governments did not prepare adequately.

Key Interpretive Questions

• Involves the interpretation of "equal benefit and approach."
• As well as distinctions vs. discrimination.
• Determining whether grounds are exclusive or whether they are grounds you can't discriminate on.
• It also covers whether Advantaged groups can claim equality rights, or if only disadvantaged groups can.
• Court first addresses questions in a 1989 (Andrews from BC) case.
  • The case revolved around requiring lawyers to be Canadian which was challenged under s. 15.
• Kapp (2008) establishes main precedent on s. 15.
  • Discrimination equates to being disadvantaged.
  • Discrimination can cause material harm (money, job) or reflect prejudice.
  • Feds could give indigenous bands in BC exclusive fishing rights for 24 hours which was challenged and rejected by other groups as racism.
  • It prevents the government from perpetuating group disadvantages and stereotypes.
  • Discrimination must be based on merit/capability reasons.
  • Bona fide is related to merit
  • Includes enumerated and analogous grounds that can't be used to discriminate

Analogous grounds

• Like holistic ones that have been addressed by Andrews
• Biggest case was 1995 which revolved around sexual orientation
• Analogous grounds key characteristics:
  • Insular group (unable to participate in politics historically).
  • Discrete group (easy to know if you belong to the group)
  • Not exclusive to one group, so large groups and small groups (e.g women) can be discriminated against.
  • Historically disadvantaged group
• The personal characteristics unrelated to merit, are immutable; one cannot easily change common law (i.e religion, SSM & couples)

Charter Section 15: Subsections 1 and 2

• Section 15(1) includes three declarations and four kinds of equality.
  • Everyone is equal and before the law.
  • Everyone has the right to equal protection and benefit of the law without discrimination.
  • Listed grounds of discrimination include race, color, ethnicity, religion, sex, nationality, age, and mental/physical disability.
• Section 15(2) protects affirmative action programs.
  • If a law aligns with affirmative action it is not discrimination.
  • A measure intended to address discrimination does not violate s. 15(1) if it aligns with s. 15(2).
• Courts do not acknowledge reverse discrimination; only disadvantaged groups can seek equality rights.
• Equality rights are a source of legal disagreement.
  • Systemic adverse claims have been accepted.
  • Charter documents are more influential than true.
• Policy such as RCMP's part-time job sharing for women with child responsibilities being denied, was viewed by people to be discriminatory (but court agreed)

Indigenous Rights

• Acknowledge Indigenous heritage ("O Canada, our home on Native land…").
• The relationship between Indigenous and European settlers is complex and tragic.

Indigenous Rights and Sovereignty

• Laws affecting Indigenous peoples have been based on fiction.
• Doctrine of Discovery:
  • Assumed Indigenous inferiority.
  • Declared terra nullius.
  • Granted sovereignty through "discovery."
• Europeans claimed land through companies like the Hudson Bay Company.
  • Relied on locals for partnership.
  • Sought military alliances with Indigenous peoples.
• Royal Proclamation of 1763 asserted Crown sovereignty.
  • Recognized Indigenous rights.
  • Mandated fair dealings.
  • Required treaties for land transfers.
  • Established Crown's fiduciary duty.
  • Prevented private land grabs.
  • Reserved land acquisition to Crown.
• Treaty of Niagara, 1764, exemplified nation-to-nation approach.
  • Negotiated by 24 nations and the Crown.
  • Embodied mutual agreements in a wampum belt for peace, trade, and alliance.
• Historically, Indigenous treaties involved exchanges of land for money or goods.
• Treaties became less consensual and more about telling over negotiation as Europeans began taking over the Indigenous lands.
• Indigenous-state relations are defined by historic treaties.
  • Including nation-to-nation agreements, mutual benefits, and coexistence, exemplified by the Indian Act of 1876.
• Indian Act of 1876
  • It is an act of parliaments
  • Asserted power over "Indians"
  • Replaced traditional Indigenous leadership with appointed band councils.
  • It deemed Indigenous practices illegal.
  • Determined who was or was not legally "Indian", stripping Indigenous women of status if they married non-Indigenous men.
  • Facilitated residential schooling.
  • Assimilated Indigenous peoples, disregarding past treaty agreements.
  • Imposed top-down control via formalized reservations without consultation or consent
• Indigenous peoples' rights are addressed in Section 91(24), the Constitution Act of 1867, and Section 35, the Constitution Act of 1982

Indigenous Rights and the Constitution

• Indigenous peoples' rights stemmed from traditional land use.
• Treaty rights were specific, based on treaties or land claim agreements.
• Broader Aboriginal rights were often exchanged for treaty rights.
• Section 25 of the Charter shields Aboriginal/Treaty rights.
• It functions as a permanent, comprehensive notwithstanding clause.

Indigenous Rights

• Vary but are not consistently specified.
• Envisioned self-government early on, later diminished.
• They are either group-collective or group-differentiated.
  • Group or collective rights are exercised by a group (e.g., land claims, self-government).
  • Rights that are exercised by individuals within a group are group-differentiated (e.g., treaty rights to hunt).
• Indigenous peoples could not take action to make claims in court until 1951

Sparrow v. The Queen (1990)

• Case offers comprehensive view of s. 35.
  • It recognizes and affirms existing Aboriginal rights.
• The case deals with the meaning of Existing versus Recognized.
  • Extinguished rights stay that way, unextinguished rights will stay protected.
  • Pre existing rights must be explicitly explained, and it could not freeze the original meaning (for tech reasons)
• Adverse impact is the first step in the SCC's limitations clause.
  • Courts need to make sure governments follow unreasonableness and not impose on the other group.
  • Governments need to show that they have compelling legislative objectives.
  • Consultation with the group and fair compensation are important.

Aboriginal Title (Calder, 1973)

• The government did not acknowledge or accept the indigenous peoples owning the land.
• Legal ownership of the land has not been extinguished at any point.
  • SCC reversed.
• The Aboriginal claim can still continue on prompting land claims.
  • These had opposition that lasted til 1990s.
• Delgamuukw v. B.C., 1997 has successfully claimed the title in 2014.

Aboriginal Title Requirements

• Land occupation has to be from contact and it needs to be exclusive + continuous.
• One must be engaging in oral history and consult in order to get a compensation.
• Delgamuukw must be for the inherent right to self-government
• It has been cited in Tsilhqot'in
• VC government has made moves to do first comprehensive treaty, the Nisga'a Treaty from 1998