Concept 9: Equality - Protection from Discrimination

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 (Protection from Discrimination) and in Accommodation of Differences (Concept 8) 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.

The Charter protects the right of individual students to be free of discrimination based on any of the grounds enumerated in s.15. Discrimination in schools is a complex and long standing problem. Schools are required to maintain an atmosphere of non-discrimination, an avoidance of what the Supreme Court in Rossiii (see Case Study) calls a poisoned school environment. As Ross illustrates, educators are able to hold views that may be considered discriminatory. However once those views are acted upon, this becomes discriminatory conduct in violation of human rights legislation and the Charter. These cases reveal the complex interplay of S. 1, s. 2 and s. 15 of the Charter.

Under s. 15 and provincial human rights legislation, harassment based on sex, sexual orientation, race, religion or culture will be considered discriminatory conduct. Those responsible for maintaining a discrimination-free learning environment may enquire whether the discriminatory actions of students against other students are also their responsibility. While there are cases currently before the courts on this point in law, there is no question that, as guardians of students' rights, educators will want to do everything within their ability to remove all discrimination from the classroom, regardless of its origin.

Anti-discrimination legislation and s. 15 of the Charter is premised on respect for the dignity of the individual. Adherence to the spirit and law of non-discrimination will become substantially less complex by evaluating conduct and consequences and asking and answering this question: how does this action impact the individual dignity of the person?

A protection from discrimination direction can be drawn from cases adjudicated by Canadian courts. Discriminatory actions of educators which create a poisoned environment will not be tolerated. Educators who spread hatred against persons of a particular race (see Keegstraiv ), sexual orientation, or religion, whether on or off school grounds will violate both the s.15 and provincial anti-discrimination rights of their students. Similarly, educators who sexually or racially harass students will face justified and severe discipline. While the actions of educators will clearly be scrutinized, less clear are instances where educators do not act.

The school environment is more often poisoned by the discriminatory acts or comments of fellow students than those of educators. At a time in which school bullying is receiving increased public attention, educators must ask themselves: to what extent are they responsible for the actions of their students against other students. Courts that will eventually rule on this question, will decide the answer according to matters of legal liability. While waiting for the courts to answer, educators and others can model a system of justice and create a climate free of discrimination by dealing with inappropriate and discriminatory language in schools, taking all feasible steps to eliminate bullying, listening to the concerns of students who feel discriminated against, and most importantly teaching students about the nature of, and laws with respect to, equality and dignity. A proactive approach is eliminating discrimination is more effective than the more frequent reactive approach.