Equality of opportunity means everyone gets a change to do something such as applying for a job this is a concept of equality.
Another concept of equality is the concept of results. If everyone applies for a job but only white men get a job is their a problem with this? Do we focus
on who gets to play or on the results ?
There is not one version better then the other they are both talking about equality. Each concept of equality is different and there is no concept is superior
to the other. People have different ideas of equality and in relation to the charter its important because we want the courts to be consistent to how they
apply the term equality.
The classic article about equality in the legal realm is in 1949 the article Tussman that talks about equal protection of the laws in 1949. You can talk about
equality in any world and social structure because the ideas about it will be the same but how you view the application of it in society is based on different
assumptions. They are talking about how equality can play out with different legislations. They are not applying this generally to any specific situations
but just how it plays out in society. They understand the nuances of equality that there are different arguments we can make about equality depending on
what we ask the state to do.
They also point out that laws don’t apply to everyone and the reason we make laws is to single out certain people that are either deserving of treatment
from the state or punishment from the state. All our laws classify and divide people and pg 43 – “it is clear that the demand for equal protection … the
legislature if it is to act at all must grant benefits to certain individuals..” the state gives benefits and punishments to certain people for certain reasons
not to everyone generally.
10 min. The issues is if the laws are applied to everyone and about classification. Specifically can you get that classification right? Is the classification a
reasonable classification? How do you define reasonable?
On one level it is simple because they say that reasonable classification is one that includes only people that are in similar situations not people
in different situations. Aristotle says equality is treating likes alike and not alikes alike, we are all different and you cant treat everyone the same. The
problem is that this doesn’t allow you to determine whether classifications are reasonable. This concept assumes you know who is alike and who is
The SCC decision regarding aboriginal women who marry nonaboriginal men. The Indian act in he 1970’s said that a status Indian women who marries
a nonstatus Indian man loses her Indian status, a man who is statusindian that marries a nonstatus women remains as a status Indian. This concept is
not equal because we have to treat likes alike and nonalike alike, status Indian and men are alike and are different differently. The SCC said that they
are not like because they are women and men and they are different.
By using the “alikes alike” concept isn’t fair because you can classify different terms for who or what is alike and this raises more differences among
people and creates segregation of many groups.
There is also the issue of natural and artificial classifcations of people. All classifications are artificial and natural in some ways and the reason they are
artificial is because we use them to divide people. We cant rely on the notion of a natural classification because to divide people we need more
information then just natural classifications of them. The question is not classifiying them because they are different its is classifying them going to make
19min. This case purpose is to focus in on what is the specific law trying to accomplish. They say a reasonable classification includes all people who are
similarly situated with respect to a law.
The other importance is that they classify laws and there are two types of laws, and laws generally have one of two purposes. 1. Eliminate mischief or
harm and preventing bad from happening i.e criminal law.
2. Sometimes we want law to achieve a positive good and distribute benefits to society.
Law can give punishment or assign benefits. To look at whether a law is reasonable or not we need to consider these factors. In this article when they are
making this point they talk about the idea of heretiary criminality and criminal behaviour can be inherited, which we now know is not true, they believed in
equality but believed in hereditary criminality.
They look at laws and divide them into 5 categories to classify them. Pg 347
They are looking at … (t) benefits (M) Punishment
The ideal law is that everyone with the trait (T) deserves the benefit or the punishment. This is the perfect law it captures who it is supposed to and
nobody else. The worst law is the one that gives punishment and benefits to people that don’t deserve it.
Most laws are divided into 3 categories.
Under inclusive laws – b/c we are not catching everyone we want to catch.
Over inclusive laws – b/c more people are getting the results that we don’t want them to get.
All laws will be under or over inclusive and we cant say that its wrong that a law is under or over inclusive b/c it depends on what the purpose of the law
For example : if the law gives out benefits to give people tax breaks who buy energy efficient cars. Some of the people who get this tax break don’t need
this tax break but they are getting it anyways. Generally we don’t care about over inclusive benefit programs because nobody is being harmed by this law.
But if this is a punishment and we are trying to jail people that are Japanese decent, then we are punishing more people then we need to and this is
Over inclusive benefits not a huge issue, but over inclusive punishment is a huge issue.
If we are under inclusive and not giving enough benefits to people that need them then it’s a problem, it is also a problem if we are not giving enough
punishment to people that need it.
There is no problem with under and over inclusive laws themselves it depends on what the purpose of the laws is.
The state does not have to provide benefits and the idea of the charter is a negative rights document it tells the state what it can and cant do it doesn’t
have to give benefits. One of the difficulty with benefits is that the state is not required to give them and can decide to give them on their own choice and
can they decide what extent and who to give the benefit to. Equality can mean giving everybody, most people or nobody something. Most of the cases
that we see under s.15 are benefit related cases and not many deal with crime and punishment. Benefits are a tricky area b/c the govt isn’t required to
In Canada the way we talk about equality is set out in s.15 says that every individual is equal before and under the law w/o discrimination base don race,
sex, age, disability etc. This is a large section that includes a lot and it gives people 4 distinct equality rights – everyone is equal before(legal system) and
under the law (laws), equal protection (providing assistance), equal benefits (govt provided). This covers everything that the govt does and everyones
relation to the govt. another important part about the list is
s.15 states what we are equal to and gives a list of examples and is not