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The special pleading section of the Charter

Section 15 of the Charter is being used by judges to rule in favour of political correctness.

Grant Brown - April 1, 2008

Section 15 of the Charter of Rights and Freedoms provides as follows:

"15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

"(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

Over the past 20 years, no other section of the Charter has produced an equal volume of convoluted, fractured, ever-changing and inconsistent jurisprudence than this, the “equality” section. No other section has opened the door quite so wide to judicial activism.

This should not surprise anybody. Equality is an essentially contestable concept. There is no “true” meaning of equality, but rather a different concept for every political philosophy. And because of that, it invites courts into the political arena like never before, second-guessing public policy on the basis of the most malleable and subjective of notions.

Our courts have not had a distinguished record adjudicating equality claims. Early jurisprudence latched onto the distinction between “formal” and “substantive” equality, rejecting the former and embracing the latter--as though this cleared up any genuine disputes. Nobody ever advocated “formal equality” in the facile sense critiqued by the Supreme Court of Canada in Andrews, the first s. 15 case in 1989.

More recently, the jurisprudence has evolved into the notion that government is required to treat citizens with equal dignity. This will routinely require (as subsection 2 indicates) giving special consideration to individuals who were allegedly treated with less than equal dignity in the past.

Unfortunately, "dignity" is no more self-evident in its meaning and application than "equality." What the shift in the focus of analysis from equality to dignity signifies in practice is that the courts will require special concessions to be made by government in favour of any group that captures the court's sympathies. Political correctness becomes the defining feature of s. 15 analysis.

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