Twenty Years of Equality Rights: Reclaiming Expectations

Abstract

April 17, 2005 marked the twentieth anniversary of section 15 of the Canadian Charter of Rights and Freedoms. In this paper, the author reviews the writings of equality specialists in 1985 and the submissions of equality seeking and other groups before the Parliamentary Sub-Committee on Equality Rights in 1985, to assess what was expected, in 1985, of the new guarantee of equality rights. The author finds that the expansive wording and coverage of section 15 for which equality seeking groups had lobbied, including the words "equal benefit of the law" and a guarantee of equality rights for people with mental and physical disabilities that was unprecedented, was understood as having effected a dramatic shift in the idea of equality. It was believed that successful lobbying had moved the protection of equality beyond a right to freedom from discrimination, even in benefit programs, to a broadly framed guarantee of equality as a positive social right. Section 15 was thus understood by equality seekers to impose obligations on governments to take positive measures to address systemic patterns of socio-economic disadvantage and to incorporate social and economic rights which Canada had affirmed under international law such as the right to housing, to education, to an adequate income and to fulfilling work. These types of positive obligations were expected to be enforced by courts where necessary, but equality seekers also envisioned a new model of participatory and accountable governance in which disadvantaged groups would be newly empowered as rights-holders.

Reviewing developments in courts and in governance in Canada over the last twenty years, the author concludes that these central expectations have remained largely unrealized. Despite some significant victories in Charter litigation with positive remedial implications, the Supreme Court of Canada has ultimately failed to hear or to honour the central claim to equality that was at the core of what rights holders expected of the right to equality in 1985. Similarly, governments have marginalized, rather than mainstreamed, equality rights in governance. Human rights institutions have failed to promote and enforce the broad right to equality envisioned in 1985. Considering whether, in light of these disappointments, Canadians have perhaps expected too much of the right to equality, the author concludes that we ought not to be talked out of our expectations. An expectation that the right to equality can act as a vehicle for the protection not only from discrimination but also as a guarantee of social and economic rights which in other constitutions are enumerated separately was a unique feature of Canada's emerging constitutional democracy which ought not to be lost.