Charter equality clause
still uncharted terrain

BY KIRK MAKIN
The Globe and Mail

Two years ago, a legal floodgate in the Charter of
Rights and Freedoms known as the equality-rights
section was thrown open.

The justice system has been poised ever since
waiting for a deluge of cases to pour through, yet a
relatively meagre 200 equality cases have gone to
court,

Legal observers cite two reasons for the slow
trickle: the cost, and the sheer immensity of the
uncharted legal terrain covered by the anti-discrimi-
nation section.

They say a host of litigators may be waiting in the
wings for the Supreme Court of Canada to make an
enormously important decision: what constitutes
discrimination?

“It has got to be the most difficult part of the
Charter," one government lawyer said. ‘‘Just look at
the philosophers in history who have tried to define
equality, There is no one meaning.”

 

Section used ‘to argue
everything under the sun’

 

 

\

Section 15 of the Charter offers specific protection
against discrimination based on race, national or
ethnic origin, color, religion, sex, age and mental or
physical disability.

But it is a little-known fact that the section also
says it is a protection against any form of discrimi-
nation, said James Crossland, an Ottawa consultant
who has done considerable research on the Charter,
“The types of discrimination listed are just exam-
ples,”’ he said.

The court's first stab at the section may come in
the Dr. Henry Morgentaler abortion case, in which
Morris Manning, Dr, Morgentaler’s lawyer, has
argued that Canadian women have unequal access to
abortion services,

Another candidate is a case in which Ontario's
separate school financing bill was accused of dis-
criminating against non-Catholics.

Drawing a line between acceptable and unaccep-
table forms of discrimination promises to be one of
the most difficult tasks under the Charter, Mr. Jus-
tice Antonio Lamer of the Supreme Court of Canada
said in an interview.

“We are talking about inserting equality into life,
which is not equal," he said. "To what extent are we
going to refer to public opinion? Are we going to hold
our own Gallup poll?”

Despite the relatively small number of cases so
far, few social issues have been left untouched, said
Clare Beckton, a Department of Justice lawyer who
specializes in the equality section.

“People are using the section to argue everything
under the sun. The cases run right across the map. If
in doubt, throw in Section 15."

The section has not been an unmitigated success
story. Challengers have won few notable victories
such as the much-publicized Ontario decision that
found it a violation for a Scarborough girl to be kept
off a boys-only hockey team.

About one in four equality challenges are success-
ful, compared with one in three Charter cases over
all, Many of the early cases, such as those involving
mandatory retirement, have failed.

Notable amoung the successful challenges are sev-
eral that have gone against the interests of the very
groups thought to have gained the most under the
Charter.

Organizations such as the Women's Legal Educa-
tion and Action Fund are forced to spend much of
their money defending the status quo from Charter
attacks, said Gwen Brodsky, litigation director of the
group.

She said many long-standing programs that bene-
fit women have been threatened, such as single-
mother benefits and a law shielding rape victims
from being cross-examined on their sexual history
“There is a danger that inequality could be en-
trenched in the legal system."

The issue of finances is very serious, Ms Brodsky
said, ‘Here we are with Section 15 and yet, just like
before, disadvantaged people and their advocacy
groups are starving to deuth for funding and not able

From The Globe and Mail, April
Submitted by Gary Parkinson

 

  

The cuttine.¢

to use the Charter. The Charter will fail if we haven't
got the money to advance our rights,"

Worse still, she said, most advocacy groups do not
even have the money or administrative know-how to
apply for money from the federal Government's
Charter Challenges Program.

LEAF has a §l-million grant from the Ontario
Government. It is apparently the only advocacy
group working on the Charter that gets provincial
financing. The only other reliable source of money is
the federal program.

Luc Martin, legal-policy analyst for the challenges
program, said it has $9-million to dispense to citizens
who wish to challenge federal legislation using the
Charter’s equality-rights section and the languape-
rights sections.

It has a panel in charge of each section that allots
money to challenges it deems sufficiently novel,
important and of widespread application, ‘

The equality section came into force three years
after the bulk of the Charter in order to give govern-
ments an opportunity to root out and rectify injustic-
es in their laws. The federal Government kept sever-
al lawyers working full-time on the problem. At the
other extreme, some provinces did nothing.

The Supreme Court has two important options
before it, Mr. Manning said. It can require citizens to
show that an instance of alleged discrimination is
unfair, or it can simply force governments to justify
every form of differing treatment. So far, the lower
courts are divided.

“The other question is how to prove discrimina-
tion," he said. “What the courts will want is up in the
air, Will we need statistical evidence? Will we need
social-science evidence? How will we get at the re-
cords we need?"

 

Key question involved
is proving discrimination

 

Cases fought under Section 15 could easily become
a blizzard of documents, Mr. Manning said. Appli-
cants are increasingly arriving armed with piles of
studies showing the ill effects of the law. Govern-
ment lawyers respond with reams of transcripts
from legislative debates at the time the law was
passed.

“ Lawrence Greenspon, an Ottawa lawyer, said the
courts may yet ussign different levels of priority to
various types of discrimination, as is the case in the
United States.

There have been several surprises so far. A single
father in Nova Scotia, for example, won the right to
be given welfare benefits that were originally de-
signed for single mothers.

Other cases have been rather imuginative. An
East Coast fisherman alleged boat discrimination,
arguing that fishing quotas should not vary accord-
ing to the size of a boat. A B,C, chicken-lover argued
pet discrimination, saying a local bylaw prohibiting
towl within city boundaries was unfair.

In Ontario, an aluminum company tried to invoke
Section 15 to strike down a law that favors the use of
steel for pop cans. One lawyer even tried to strike
down some narcotics legislation because il treats
heroin offences more harshly than marijuana offenc-
es. All of these were unsuccessful.

The equality section has already begun to alter
subuy the makeup of the country by reducing provin-
cial distinctions, said John Laskin, another lawyer.
In one recent case, an impaired driving law that
varied from province lo province was found discrim-
Inatury.

14, 1987

 

 

 

 

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