‘The Strange Case of Canadian ‘Legal Equality’

‘Section 15(1)’ of the ‘Charter of Rights and Freedoms’ contains the constitutional guarantee of equality and it states:

‘Equality before and under law, and equal protection and benefit of law’

(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.” 

Then, this Principle is immediately undermined by:

‘Affirmative action programs’

(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.”

The political — and therefore, ‘flexible’ — tool that is subsection (2) means that the Constitutional Principle of Section 15(1) cannot really exist as a ‘Principle’, and merely serves as an inspirational introduction to the court-driven social engineering enabled by subsection (2).

As a result, legal equality of individual Canadian citizens has become a thing of the past. 

Here, in the words of a legal organization, is the ‘logic’ behind the Court’s rationalizations that brought us to this state {with our interspersed remarks}:

“In the past, the courts have acknowledged two primary approaches to the interpretation of ‘s.15’ that they can choose from. The courts can choose to interpret ‘s.15’ as a guarantee of ‘formal equality’ {used in the past} or as a guarantee of ‘substantive equality’ {used in the ‘politically-correct’ present}.

‘Formal Equality’
“Formal equality requires that a law apply equally to all the people to whom it was designed to apply… As long as all those who are “similarly situated” with respect to the law are treated in the same way, the law meets the requirements of formal equality.

“Formal equality does not require an analysis of the purpose of the law {and therefore does not require ongoing Supreme Court “interpretation“}. Further, formal equality may even justify discrimination as long as it discriminates against everyone in a particular group equally. A law that confers a benefit on one gender explicitly on the basis of sex, for example, may meet the test of formal equality as long as all members of that group are given that benefit equally, and as long as a reason for the distinction, independent of discrimination, can be found…” The Supreme Court of Canada justices-the new power in the land-THE CANADIAN PRESS-Adrian WyldWEB‘Substantive Equality’
“The Supreme Court of Canada’s approach to substantive equality requires an investigation into the purpose and impact of law, as well as a consideration of the impact (if any) of ‘historical disadvantage’ {“historical disadvantage” as defined and ‘interpreted’ by the Supreme Court– and it’s not a legal term, but a socio-political one}

“Substantive equality was described by Chief Justice Beverly McLachlin in these terms:

“The belief that if equality is to be realized, we must move beyond formal legalism to measures that will make a practical difference in the lives of members of GROUPS THAT HAVE BEEN TRADITIONALLY SUBJECT TO TACTICS OF SUBORDINATION.” [See: “The ‘Evolution’ {Devolution?’} of Equality” (1996) 54 Advocate 563.] {CAPS added}

{!?!?!!! More political and sociological terminology — NOT legal — as defined by the Supreme Court, of course. Note the focus on “groups” — a term that is not contained in Section 15(1), and is slipped in on the back of “individuals” in the contradictory Section 15(2)…} 

“Substantive equality is defined by Patricia Hughes in her article “Recognizing Substantive Equality as a Foundational Constitutional Principle” (1999), 22 Dalhousie L.J. 5 at note 1. She explains that substantive equality is:

“a ‘form’ of equality which is satisfied only if policy or law is made meaningful for all members of society, including those who have been ‘racialized’ {?} or ‘systemically defined’ by gender, sexuality, or disability or similar characteristics, as well as ‘intersecting identities’ {?}.”

More Left-wing — not legal — terminology…

“It would seem that the very language of the Charter itself requires a substantive approach to equality, as it guarantees not only equality before and under the law, but also equal benefit of the law {Equal benefit for each INDIVIDUAL, NOT social group!}.

“The only approach that ensures that people receive all these guarantees is the ‘substantive equality’ approach, as it – and only it – dictates that the courts must recognize the importance of the overall impact of the law on the equality of individuals AND GROUPS within society.” 

–‘The development of the Canadian equality test: s.15(1) of the Charter’,
Ontario Women’s Justice Network, October, 2008 {CAPS added}

Note how this lawyer included “groups” in that last phrase — “the equality of individuals and groups within society” — much like the Supreme Court has done. Now, let’s look at Section 15(1) again. It reads

Every INDIVIDUAL is equal before and under the law and has the right to the equal protection and equal benefit of the law…”

Do you see the word “groups” there???

Activist lawyers — including our Supreme Court — are DELIBERATELY misinterpreting ‘Section 15(1)’ as collectivist, in order to push our nation in an ideologically-chosen direction [which is, ‘coincidentally’, enormously profitable for the legal profession], and they are enabled in this by their ‘interpretation’ of the contradictory, foolish, and ultimately divisive and dangerous subsection (2), which negates the Principle stated in subsection (1) by turning it into a political — and therefore, malleable — tool, no longer a ‘Principle’ and therefore, unfit for inclusion in a Constitution.

Remove the ideologically-driven ‘Section 15(2)’ from the Constitution and implement fundamental INDIVIDUAL legal equality in Canada…

This is what is subverted by Section 15(2):

‘Equality Rights: Section 15’
–Every citizen is equal before and under the law.
–Every citizen has the right to equal protection and benefit of the law.

“These rights are to be applied equally and without discrimination based on race, nationality, ethnic origin, colour, religion, sex, age or mental or physical disability.

“Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination based on race, nationality, or ethnic origin, color, religion, sex, age or mental or physical disability.”

“It may be surprising to note that this clause was one of the more controversial issues of the constitutional debate. Some provinces did not see the need for equality rights to be written into the Charter, since provincial human rights codes were seen as protection enough.

“The phrase “before and under the law” is significant because it means that not only do people have equal access to the courts and to equal administration of justice (the “before” part) but that the laws that are discriminatory will be struck down by the courts (the “under” part)…

“Section 15 (1) of the Charter gives Canadian citizens equal benefit and protection of the law without being discriminated upon because of race, ethnic origin, colour, religion, sex, age, mental or physical disability. It also protects personal qualities like sexual orientation, marital status and citizenship.

“It only applies to government and laws, and not to personal relationships and private businesses. It does not mean that everyone must be treated the same but rather that everyone benefits equally from the law…”

–‘LESSON 5: Legal and Equality Rights’,
Law Lessons, 2013

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