Concept 8: Equality - Accommodation of Difference

Section 15

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.

The Charter exists to protect the dignity and worth of individuals. No other provision is as intertwined with the notion of human dignity as s.15. Often referred to as the equality provision, it can be divided into two sections, accommodation of difference and protection from discrimination. Sometimes equality issues cannot be divided up in such a simple matter and instead require interrelated school responses. However, for simplicity sake, equality issuesi are presented in this concept (Accommodation of Differences) and in Protection from Discrimination (Concept 9) in these two broad categories.

Equality under the Charter does not mean merely equal treatment; equality in its substantive meaning is aimed at eliminating treatment which, though equal, has a disproportionately negative effect on certain groups of people who have suffered a historic disadvantage. Because groups do not start out on equal footing, equal treatment can serve to maintain and exacerbate existing inequality. This implies that governments who enact rules that discriminate against groups who have had a historical advantage over others who, because of their race, sex or disability, have been unable to participate fully in society, will not offend s.15. Conversely, rules which apply equally to all individuals, but which have a disproportionately adverse effect on a historically disadvantaged group, can be struck down by the court under this provision.

To show a violation of s.15, an individual must first establish that a distinction was made by the law in question. The individual must then demonstrate that, by that distinction, they have been denied the equal protection or benefit of an existing law. A determination of discrimination will focus on the impact of a rule or law on an individual or group with consideration given to the broader historical, economic, and societal context. Second, the individual must show that they are among one of the designated groups and the above denial was a result of their membership in that group. The above groups - race, sex, disability, etc - are not exhaustive, and other grounds of discrimination, such as unequal treatment based on sexual orientation, have been included as analogous.

Provinces and territories also have anti-discrimination lawsii which, like the Charter, protect against discrimination. Unlike the Charter, however, which only applies to government actions, these provincial laws apply to all facilities or services that are available to the public. The actions of schools are therefore subject to both the Charter and provincial laws. Provincial anti-discrimination Acts are so commingled in purpose, law and effect with s.15 of the Charter that much of the following examination and commentary applies to understanding of both types of legislation. For example, the provincial Acts require that persons who suffer in societal disadvantage must be reasonably accommodated in employment and in access to services and facilities. The idea that society must take steps to remove barriers to full participation for all of its members is also an essential component of equality under s.15.

Classrooms frequently require accommodating differences of perspectives, needs, and learning styles. The accommodation of difference from a rights perspective is very similar. Anticipating, adjusting to, and accommodating difference ensures that all students receive an education that meets their requirements while building understanding and tolerance in the school body as a whole. Teachers and parents frequently address the accommodation of students with disabilities as they try to make decisions about a child's education. The Eatoniii case considers the extent of the obligation to accommodate students whose disability demands additional resources, learning approaches, or facilities (See Case Study). The court determined that in some cases, integration in the regular classroom offered a benefit to the student with a disability while in other instances it would constitute burden. The impetus is on the school system to ensure that as accommodation decisions are made, there is no burden placed on the student, nor is a benefit denied. The practical result of this obligation is that the school must use flexibility when considering education choices from the perspective of the best interest of the student. Competing issues of resources, classroom management or additional assistance are certainly important, but are not part of the equation for equality protection.

The accommodation of religious freedom guaranteed under s. 2(a) of the Charter is another aspect of the school's obligation to accommodate students. Freedom of religion is understood as not just the freedom to practice one's religion, but also to be free of any coercion to practice the majority religion. Removing coercion requires more than just an opt-out provision allowing minority religious groups to excuse themselves from majority practices. (See Case Studies in Concepts 3 and 5).

The approaches to accommodation of difference protect students' equality rights in a proactive manner, ensuring that the school is an accessible, safe, and tolerant place to be. These efforts have the additional benefit of exposing all students to the variety of differences between students, as well as the significant similarities. This type of experiential education promotes understanding and tolerance and reduces conflict in the classroom setting.

An accommodation of difference direction can be drawn from cases adjudicated by Canadian courts. Regarding disability, educators must, in any decision, give due regard to the requirement of accommodation. They must consider how a particular rule, policy, or action will affect students with disabilities and try to find a way to reasonably accommodate the individual circumstances of disadvantages students. This analysis can in fact easily apply to race, culture, gender, sexual orientation, etc. as many school decisions will affect members of these groups in different ways. Educators need to create an environment which is in the best interest of the child. An effective way for educators to decide what is in their students' best interest is to ask them. While it is true that sometimes children do not have the capacity to decide exactly what is in their best interests, the role of educator includes discretion to give an appropriate amount of weight to a child's opinion depending on their age and maturity.