Progress on Equality Stalled
Day, Shelagh, Herizons
When Section 15 of the Canadian Charter of Rights and Freedoms came into force 25 years ago, no one imagined that governments would become major obstructers to the promise of equality enshrined in the Constitution. Yet that is what has happened.
Women were excited and hopeful in the early 1980s when they fought for strong language in the equality provisions in the Charter in Section 15. They argued from the outset for a substantive version of equality, that is, for equality in the substance or content of the law, for a version of equality capable of addressing and transforming the real conditions of inequality that women face, including economic inequality. If the right to equality was given a substantive interpretation, it would help women to us address the deeply rooted social inequalities that affect them because of sex, race, colour and disability.
So when Section 15 came into force in 1985, with its new guarantees of equality before and under the law, and equal benefit and equal protection under the law, women expected, in the words of constitutional scholar Melina Buckley, the development of a governmental "ethos of equality."
However, when we now ask whether Canada's Section 15 has moved governments to design policies and allocate resources in ways that advance substantive equality, the answer has to be no. Basic programs and protections that should be firmly in place in a constitutional democracy committed to women's equality are absent, partial or shaky. These include equal pay for work of equal value, a national child care program, adequate civil legal aid, reliable police protection from male violence, adequate income assistance and housing, and concerted strategies to move Aboriginal women and girls out of entrenched disadvantage. Many essential programs and services have been weakened by years of government restructuring, cuts and privatization.
Turning the equality promise into reality would require deliberate action and spending by governments, not withdrawal and deference to the market. Moving towards a more equal society would require setting goals and allocating resources to achieve them. But this has not happened.
Studies by the Standing Committee on the Status of Women and by Auditor-General Sheila Fraser have said that Canada has no working gender machinery. There have been no plans, or paper plans with no resources behind them. The result is that conditions, particularly for the poorest women, have worsened since 1985.
Cuts to essential programs and services are not the only way that equality has been undermined by governments. Equality rights expert Gwen Brodsky notes in her contribution to the book Poverty: Rights, Social Citizenship and Legal Activism, that in some cases, attorneys general have argued for interpretations of Section 15 that drain it of substantive content and, in particular, of any capacity to deal with women's material conditions.
Provincial and federal governments have argued in Charter cases that the right to equality does not impose any obligations on governments to redress social inequality or to alleviate conditions of poverty. They have also argued that courts cannot review government decisions about the allocation of resources.
The case of Newfoundland (Treasury Board) vs. Newfoundland and Labrador Association of Public Employees (NAPE) provides a good example. The government negotiated a series of payments to compensate female health care workers for long-standing discrimination in their pay. But in 1991, the province said it was experiencing a financial crisis and cancelled the $24 million in pay equity adjustments. NAPE challenged the government on the grounds that the cancellation violated Section 15. In response, the province's attorney general argued that government had no obligation to address sex discrimination in wages and that the repeal of a non-obligatory scheme cannot constitute discrimination.
The attorney general of British Columbia then intervened in support, arguing that the courts have no role in reviewing decisions about public expenditures. …