Equality and the Charter

Question 1

The Bill of Rights (1960)

Answer 1

• human rights legislation
• meant to limit what kind of law the government could pass
• still exists today but was superseded by the charter

Question 2

Real problem

Answer 2

how to make “difference” a part of equality/equity

Question 3

R. v. Drybones

Answer 3

• most successful rights claim under bill of rights
• intoxication off reserve-yes discrimination
• however did not bow to”parliamentary supremacy” and only removed one part of act

Question 4

Canada v. Lavell

Answer 4

Challenged s. 12(b) of Indian act- women and children lose Indian status if married to white man (erasure tactic)
- SCC disagreed, all treated “equally”, no right to meddle in legislation

Question 5

Black letter law

Answer 5

Written in the books, but not enforced (zombie legislation)

Question 6

Charter

Answer 6

• supreme law of Canada
• only applies to government action
• human rights codes fill the gaps

Question 7

Enforcement 24(1)

Answer 7

• avoids “parliamentary supremacy” issue- greater power to judges
• ensures protection of rights for all, but only as useful as judiciary members

Question 8

Equality (15)

Answer 8

• before and under
• equal protection and benefit
• enumerated grounds
• promotes equality (less reactionary than bill of rights)

Question 9

Multicultural heritage (27)

Answer 9

more than just english and french

Question 10

Equality of male and female (28)

Answer 10

-to avoid argument of “cultural right” to sexual inequality
drawbacks:
-makes sexual equality seem more important
-rarely used

Question 11

Section 1

Answer 11

Reasonable limits clause

Question 12

Section 2

Answer 12

Fundamental freedoms (ex. R. v. Butler- topless dancing, charged with obscenity, sexual equality more important)

Question 13

Section 11 (d)

Answer 13

presumed innocent until proven guilty

-R. v. Seaboyer rape shield law declared unconstitutional- now okay to use evidence of complainant’s sexual history

Question 14

Section 7

Answer 14

Life, liberty and security of person

- R. v. Morgentaler- abortion

Question 15

Andrews v. Law Society of British Columbia

Answer 15

British citizen unable to practice law in Canada- section 15 discrimination on basis of citizenship
- won, about treating likes alike

Question 16

Substantive equality

Answer 16

• emphasis on equality of outcome (equity)

- onus falls to crown to justify differential treatment at outset

Question 17

Analogous grounds

Answer 17

“discrete and insular minority” left out of enumerated grounds (must be a marginalized group)

Question 18

Criticisms of Section 15?

Answer 18

• not good at attacking privilege
• not good at dealing with intersecting oppressions (court confused by “double discrimination” in Native Women Association of Canada v. Canada)

Question 19

$$$

Answer 19

• McKinney vs. University of Guelph (challenged mandatory retirement at 65- SCC says old people less competent)
• Symes v. Canada wanted to claim chidcare as necessary business expenditure (SCC ridiculed, s.15 not meant to protect privileged, equal application of law)
• Egan v. Canada wanted pension allowance for spouse- SCC says no
• M. v. H. sued for spousal support- SCC says yes of course

Question 20

Return to substantive equality?

Answer 20

Edrigde v. British Columbia

• deaf woman claimed s.15 discrimination bc there was no funding for interpreters
• rare example of SCC forcing government to pay for something