National Features Articles de fond

EQUALITY: SOME UNRESOLVED ISSUES
by Susan McCrae Vander Voet

INTRODUCTION

On April 17, 1985, Section 15 of the Charter of Rights and Freedoms will become law. This was the only section of our Constitution on which a- three-year moratorium was placed. This period of time was granted to allow governments to do some housekeeping on existing legislation, to "tidy it up" and make it conform with the Equality Rights section of the Charter. For the most part, governments have cleaned up sexist language in legislation, and modified statutes to make them applicable to both sexes, where previously they may have been relevant to only one.

Some areas of federal law have not, as yet, been modified in order to allow for public discussion and debate before determining legislative directions. To assist in the debate, the Department of Justice Canada has issued a discussion paper entitled, Equality Issues in Federal Law. This paper outlines, the major issues, which the federal government has identified as requiring resolution, under various categories: age, sex, race, citizenship, marital or family status, and sexual orientation.

This article will provide a brief discussion of Section 15, its context, and the federal government's approach to the resolution of equality issues. This discussion will be followed by a summary of the issues raised in Equality Issues in Federal Law, and a brief analysis of different concepts of equality and their usefulness for women in interpreting Section 15.

Equality rights in the Charter are set out as follows:

Section 15 needs to be examined within the context of the whole Charter, and particularly in relation to those clauses and sections which either enhance or limit it. The tremendous battle waged by Canadian women during the Constitution process achieved the inclusion of Clause 28, guaranteeing Charter rights and freedoms equally to male and female persons. Unless the courts rule otherwise, we may assume that the provisions of "28" - our clause - enhance and strengthen those contained in Section 15.

Section 1, on the other hand, subjects the entire Charter to "only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The approach which the Dept. of Justice is taking in promoting discussion of unresolved equality rights issues, is one of determining the "reasonable limits" which may be applied to the provisions for equality under Section 15. The approach of establishing limits is cause for serious concern. An alternative approach which women's organizations and other equality promoting groups will want to take is that of determining the actions, programs and legislation which will develop and achieve equality rights for all citizens.

As Section 15 will presumably be applied in cases of systemic discrimination, research by women's groups will be needed to document those areas where women are "systematically" discriminated against; i.e., where women are adversely affected by a law or practice which is apparently neutral. An example of systemic discrimination might be the exclusion of part-time workers, three-quarters of whom are women, from benefits plans.

The wording of Section 15 will likely leave the prohibited grounds for discrimination open-ended. It may be possible to lay complaints of discrimination based on grounds other than those listed in the clause. Other grounds could include marital status and sexual orientation.