manis@ubc-cs.UUCP (Vince Manis) (04/24/85)
A lot has appeared in this newsgroup on equal rights. As I have some experience in this area (though I'm not a lawyer nor have I legal training) I decided to attempt to explain, to the best of my knowledge exactly what Section 15 of the Charter is supposed to do. Section 15 gives *all* Canadians equal protection, *including* (but not restricted to) protection on a number of specific grounds, including race, sex, age, etc. (There is a separate "Equal Rights Amendment" Sec 27, as I recollect, guaranteeing equal rights to males and females). This equal protection is limited in two very important ways: Section 15 (2) allows affirmative action programs aimed at ameliorating disabilities of groups; and, Section 1 allows any provision of the Charter to be overruled in the name of fundamental justice. As a result, it is unlikely that the BC Motor Vehicle Act will be overturned because it denies drivers' licences to 4 year olds: it would hardly be in the interests of Canadian society to allow tot motorists. Similarly, a challenge to university admission policies on the grounds that they discriminate against mentally handicapped people is not going to go far. Thus, contrary to the theories of the National Citizen's Coalition, we are not going to get ``enforcement of equality'', a massive bureaucracy, or anything of the sort. Depending upon the temper of the Supreme Court, we may get more or less interference with the will of Parliament, but over the next few years you can be certain that jurists will build up some pretty definite theories about the specific meaning of the Charter. The point has been made that the Charter is a radical departure in Canadian jurisprudence. This claim is both true and false, in that we have always had Constitutional law, going back to the days of the Divine Right of Kings, which overrode Parliamentary law. (Richard Nixon was the most recent ruler to invoke the DRoK, which he called ``Executive Privilege''). The Bill of Right (1688) certainly took the active power from the sovereign, but even the King/Byng crisis 60 years ago demonstrated that the monarch retains some power over the govt. What is a radical departure is that we now have a codified power, which can be overridden by any legislature in this country. The above is my understanding of Section 15. What follows is a theory, which lawyer friends of mine assure me has some merit but has not been proved in a court of law. My theory (by A. Elk): Section 15 asserts that all Canadians have the right to be protected against unreasonable discrimination, or, alternatively, that if discrimination can be proven, then the onus is on the discriminator to prove that the action in question can be justified. As an example, if the Canadian Forces can really demonstrate that gay people cannot carry out the duties of a Forces' member at a comparable level of performance, then the Forces are justified in denying gays access. According to this theory, then, the onus is on the Forces to prove the relevance of their discriminatory practices. The essence of this theory is the leap from the statement of ``protection'' in Sec 15 to a guarantee against discrimination in the Canadian Human Rights Act. This theory has yet to be tested: clearly we don't want to find ourselves unable to lock up criminals, but just as clearly we want to ensure that everyone is given a fair shake. Exactly where the courts will draw the line is not yet as known. Finally, let me comment that Sec 15 guarantees all of us equality of opportunity, not equality of achievement. Or, to quote Jefferson, we are supposed to have "life, liberty, and *the pursuit of* happiness".
robinson@ubc-cs.UUCP (Jim Robinson) (04/25/85)
In article <1032@ubc-cs.UUCP> manis@ubc-cs.UUCP (Vince Manis) writes: >Thus, contrary to the theories of the National Citizen's Coalition, we are >not going to get ``enforcement of equality'', a massive bureaucracy, or >anything of the sort. The theories that I have been hearing aren't coming from the NCC, but from the National Action Committee on the Status of Women. It is their stated intention to achieve EPFWOEV, and to do so through Charter suits if necessary. My interpretation of the Charter is much the same as Vince's and I personally like the idea of having my rights written in stone ( yes, I know that the opt-out clause means that they are more written in sand than stone). So I, for one, will be watching with interest as the various Charter challenges work their way thru the courts. J.B. Robinson