Equality Rights

Section 15 of the Charter: “(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”

Many laws create a distinction between groups of people (i.e. age requirement for Old Age Security Pension). This will only violate s. 15(1) if the distinction is based on one of the protected groups and creates a disadvantage to that group. Section 15(1) guarantees the equality rights of people based on the listed characteristics (known as “enumerated grounds”). The words “in particular,” however, allow for the possibility of other grounds to be given protection.  These are called “analogous grounds.” In order to qualify as an analogous ground, the characteristic must be so integral to the individual that changing it would come at an unacceptable cost to his/her identity.

Section 15(1) protects substantive equality, not formal equality. Formal equality is when everyone is treated exactly the same. Substantive equality, however, sees true equality as requiring different treatment at certain times. For example, requiring students to write the same exam in the same format does not provide true equality to a blind student.   In addition, s. 15(1) is infringed if the effects of a particular piece of legislation or government policy are discriminatory, not just if it is, on its face, discriminatory.

Sexual Orientation

Sexual orientation is not one of the enumerated grounds under s. 15(1). Thus when the Charter first came into effect, discrimination based on sexual orientation was not prohibited. The SCC ruled in Egan v. Canada, however, that sexual orientation is an analogous ground, affording it the protection of the Charter. Several later decisions helped to define the scope of this protection.

Egan v. Canada – Supreme Court of Canada, 1995
The appellants were a homosexual couple and had lived together since 1948. Nesbit applied for spousal allowance under the Old Age Security Act but was denied because he did not fall under the definition of “spouse.” The couple challenged the legislation as violating their s. 15(1) equality rights. The majority of the SCC held that while sexual orientation was an analogous ground, in this case there was no violation of s. 15. The goal of Parliament in the challenged legislation was to provide support to a fundamental social unit – the family.  As only heterosexual couples were capable of having children, the distinction made by Parliament between heterosexual and homosexual couples was relevant and therefore constitutional.

Vriend v. Alberta – Supreme Court of Canada, 1998
Vriend was employed by King’s College in Alberta. His employment was terminated after he disclosed he was homosexual and the board of governors adopted a policy on homosexuality. Vriend attempted to file a human rights complaint, but could not because the Individual’s Rights Protection Act (“IRPA”) did not include sexual orientation as a protected ground. He, along with several organizations, challenged this as unconstitutional.  The SCC held that the omission of sexual orientation was a violation of the s. 15(1) equality rights of homosexuals. This omission was not justified under section 1, as excluding homosexuals was in opposition to the goal of the legislation.

M. v. H. – Supreme Court of Canada, 1999
M and H were two women who had been in a long term relationship. When their relationship fell apart, M sought spousal support under the Family Law Act. She challenged the definition of “spouse,” as it did not include same-sex partners. The SCC ruled that the definition of “spouse” violated the s. 15(1) equality rights of same-sex partners and was not justified under section 1. It found that allowing same-sex couples to benefit from the support provisions furthered the legislature’s goals of providing economic fairness at the end of a financially interdependent relationship and alleviating burdens on the public purse.