Equality and the Charter of Rights

By: Carol Tator

From: Currents Winter 1984/1985 pp. 35-36
© 1984 Urban Alliance on Race Relations

"Held in Toronto, January 31 and February 1&2, a National Symposium on Equality Rights, sponsored by the Canadian Human Rights Reporter, brought together 200 scholars and experts from various fields to assess the implications of Section 15 of the Canadian Charter of Rights."

April 17th, 1985 will signal the beginning of a new era for equality rights in Canada, when Section 15 of the Canadian Charter of Rights and Freedoms comes into effect. The recent symposium provided an important forum for participants to explore for the first time, both the substance and impact of the Charter. As well, the conference provided an opportunity to consider many of the unresolved issues which emerge out of the Charter and especially the Equality Rights Section.

Perhaps the most fundamental and profound issue raised by almost every presenter was the question: What is Equality? Until now, the concept of equality which has shaped much of our thinking and public policy, has been based on the assumption that equality means treating equals the same, i.e. non-discrimination. Our laws have developed out of the commonly-held view that equality is a neutral action which produces the same results for everyone. However, the Charter offers the possibility of an interpretation of equality which is far more open and flexible.

Judge Rosalie Abella as the Symposium's opening speaker gave a passionate and eloquent analysis of the meaning of equality. Her presentation will surely echo in the hearts and minds of all those who were privileged to hear her that evening. I quote from her words: "Equality is a process of constant and flexible examination of vigilant introspection, and of aggressive open mindedness . . . The goal of equality is more than an evolutionary intolerance to adverse discrimination. It is to ensure that the vestiges of arbitrary restrictive assumptions do not continue to play a role in our society. Equality is not a concept that produces the same results for everyone. It is a concept that seeks to identify and remove, barrier by barrier, discriminatory disadvantage."

Systemic Discrimination

Another related and very significant issue raised by the presenters at the conference was the question of remedies within the Charter which address the problem of systemic discrimination. Section 15.2 specifically refers to the rights of the courts to order "any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups . . ." However, while the courts have the authority to order Affirmative Action programmes, presenters emphasized that they will have neither the resources nor the mandate to guide their implementation.

Thus emerges another challenge posed by the Charter which is to create a new partnership between the judicial and political arms of government To achieve real equality will require a new and vigorous collaboration between those who form the laws of the land (the legislators) and those who are given the authority to enforce those laws (the judiciary).

The "Equality-Seeker"

Finally, where are the equality seekers in the delicate balance which is required in order to ensure equality rights? What responsibility rests with the victims of discrimination and their advocates? The answer to these questions is neither simple nor reassuring. In the view of the speakers at the symposium it is unrealistic to assume that from now on, the courts, judges and lawmakers will automatically undertake to remove all the arbitrary barriers which presently exist and prevent women, minorities and other groups from fully participating in society. Each presenter stressed the importance of viewing the Charter as only one critical component in a complex process which still requires the full participation of equality seekers. In other words, the Charter provides us with a motivating principle but it does not negate the importance of further research, of advocacy, education lobbying and monitoring. A clear message communicated by the speakers was that those of us who are committed to the creation of a more equitable and just society must continue to define the problems and engage in the solutions.

Perhaps the most encouraging aspect of this symposium was the number and diversity of people who participated, including members of the legal and judicial systems, senior bureaucrats responsible for equal opportunity programmes, as well as corporate executives in both the private and public sectors. While some were struggling, a few for the first time, with issues such as systemic discrimination and affirmative action, it will certainly not be the last. Together the speakers and the participants represent a new and powerful group of people who are concerned about the achievement of equality rights.

The Charter as a Panacea

Inevitably this Symposium did not provide all the answers. There were many unresolved questions. Potential conflicts and limitations within the Charter were identified by a number of speakers. The question of jurisdiction was raised. While the Charter clearly applies to both federal and provincial governments, it is unclear whether its authority extends to municipal levels of government, crown corporations, universities, etc. Does it apply to the private sector? Another very significant problem is the high cost of using the courts. A third concern is the overlap and potential conflict of mandates between administrative procedures available through Human Rights Commissions and those provided by the Charter. Still another problem falls within the realm of attitudes. There has been a long-standing reluctance on the part of judges to become involved in political matters. Although the politicians have the initial responsibility at creating public policies, it is the courts which must ensure that policy options which secure rights are pursued. There is some question about whether judges will be comfortable with this proactive role. Furthermore, there is little doubt that the judges in this country are an elite group which reflects more the Establishment rather than equality seekers. Will this affect the judges' ability to understand and interpret creatively the principles which underlie the Charter?

Given the above concerns, the Charter does not appear to offer a panacea for all the historic inequalities experienced by minorities in this country. However, it expresses a societal ideal and it provides a signal to the public and its authorities that equality is now a right which is guaranteed to all Canadians. In the final analysis, it appears up to all of us, i.e., legislators, judges, lawyers, public servants, human rights practi- tioners, communities and groups to help translate the vision of the drafters of the Canadian Charter of Rights and Freedoms into reality.

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