are eae pL aia lines AOA RRR A a. éidiiranitaiaa! By CHARLES ROACH ection 15 of the Canadian Constitution, the Equal- S ity Rights Clause, provides that every individual is equal before and under the law and has the right to €qual protection and equal benefit of the law without discrimination. As we celebrate the coming into force of this constitu- tional equal protection clause, we also wonder what it holds for the poor, the jobless, the under-housed and the uneducated. And we ask the question, ‘“Can there be equal benefit of the law without economic equality?”’ My prediction is that the Equality Rights Clause will spur significant advancement in the enjoyment of equal rights in the years ahead, not because of governmental initiative, but rather because of increased consciousness and heavy pushing by disadvantaged groups. Remember that in the first place the equality clause was inserted in the Constitution because of the pressure from women and ethnic minorities. This clause could be a 20th cen- tury emancipation proclamation but to reap its benefits we cannot rely on the courts and the powers that be. The idea that all persons are created equal is not so much a scientific statement as much as it is a legal baby should have roughly equal chances to develop natural skills and’talents and to enjoy equal liberty. Equal liberty is the greatest of the fundamental human rights. Each individual must have an equal right to be as The equal rights clause will not become a reality unless members of disadvantaged classes are proportionately represented among legislators, administrators and adjudicators of the law. free as humanly possible to develop as is compatible with equal liberty of others. All other freedoms are attributes of equal liberty and subordinate to it. There can be no peace in society without a fair observance of equal liberty. The Equality Rights as set out in the Canadian Con- stitution may not be as all encompassing as the idea of equal liberty. The difference may be equal rights as opposed to full rights. Nevertheless, the Constitutional anti-discrimination provisions are heart-warming for Minorities. But the idea of equal liberty is a step beyond the concept of equal protection of the law because it includes economic equality. Section 27 provides for the preservation and en- hancement of multiculturalism. Section 28 guarantees €quality between men and women. Section 36 says that the federal and provincial governments are committed to Promoting equal opportunities for the wellbeing of Canadians. This section indicates that the law-makers appreciated the necessity for economic development if €qual rights are to be enjoyed because it speaks of a commitment to reduce disparity in opportunities in the Various provinces by making equalization payments so that provincial governments would be able to provide Teasonable public services. The Equality Clause provides that affirmative action Programs would not violate the law. All of the rights are enforceable by applying to the courts and it appears that human rights commissions would have their jurisdic- tions expanded. But will it be the government which Teathes life into the fine words of Section 15? : To start off, an obstacle lies in the meaning of “‘equali- ty”. When law-makers talk about equality they really mean due process and fair treatment in the administra- tion of the law. They may even have in mind whether girlscan play on boys’ hockey teams or if female soldiers Should be in the front line. Disadvantaged groups think Otherwise — equality means sharing wealth and power; an example — women holding an equal number of public Positions, imperative agreed upon by humankind. Each newborn . Beyond equal rights | Section 15 of the Canadian Constitution, the Equality Rights Clause came into effect Apnil 17. Its enforcement will give rise to a new debate on exactly what is meant by equality. Another damper is that equal rights are set out in broad general terms and it is left to the judges of law-courts to decide what precise limits should circumscribe them. Section 1 of the Constitution says that the right is subject | prefer tokenism to total exclusion and hypocrisy to bigotry. to such reasonable limits demonstrably justified in a free and democratic society. The law is not workable as a written statute unless it is policed and judicially interpreted by persons who hold the same philosophy or general sentiments as the legis- lators. This class of persons is not likely to be com- plainants seeking refuge in the equality clause. They will be the respondents. These institutional power-holders will not share power unless conquest is imminent or where appeasement is: necessary to preserve their own security.. History continually teaches this. The protections theoretically available under the equal rights clause will not become a reality unless mem- bers of disadvantaged classes are proportionately rep- resented among legislators, administrators and ad- judicators of the law. Another formidable obstacle is that you need much money to litigate your rights in the law-courts. Those who need to litigate equality rights are not the monied. If equality rights lawyers are funded from sources other than complainants, a conflict of interest surely arises. Immediately we see that the equality clause is at odds with the rest of the law and indeed Canadian imperatives of free enterprise. There can be no equality before the law unless individuals more or less have equal education and access to resources. There can only be meaning in the equality clause if it is intended to promote economic equality. The idea of equal liberty is an illusion in any society which permits individuals to have economic advantages simply by accident of birth. Yet Section 15 is a progres- sive move if not a magic wand. We must welcome it. It will raise consciousness of equal dignity of each indi- vidual. I am not a maximalist. I prefer tokenism to total exclusion and hypocrisy to bigotry. immediately we see that the equality clause is at odds with the rest of the law and indeed Canadian imperatives of free enterprise. What can we of disadvantaged classes do about Sec- tion 15? A great deal. We can press for universal applica- tion of laws. At this time universal programs of health-care, social security and family benefits are under attack. Universal benefits remove subjective adjudica- tion of individual cases. The biggest obstacle to equal treatment has always been systems which endow admin- istrators and judges with discretionary powers. Fewer discretionary powers would mean greater chances of equal treatment. We can vigilantly oppose theories of racial, cultural and social inferiority and bigotry of all forms. These theories have been the justification of differential treat- ment. We have to keep on pushing for affirmative action programs and legislation. We have to discourage the commercialization of sex because that leads to attitudes which denigrate women. Women must be freer to pursue non-traditional occupations. Violence against. women must be dealt with more assiduously. Men must share more of the housework and matrimonial chores. We can support the struggle of people in other parts of the world who are resisting dehumanizing practices such as apartheid. The struggle for equal rights is also part of the struggle for self-determination of nations. In the same way that individuals have inalienable human rights, nations have fundamental rights such as When law-makers talk about equality they really mean due process and fair treatment in the administration of the law. Disadvantaged groups think otherwise — equality means sharing wealth and power. sovereignty and self-determination. If a nation is not sovereign then its nationals cannot enjoy the funda- mental human rights. I point this out to stress the univer- sal interrelation of the struggles for national self-deter- mination and human rights. Of course it is not easy to see this without a global perspective of human development. Then too, there is a substantial connection between equality rights and the quest for peace and disarmament. Peace is achieved when there is respect for equality rights. The military build-up in the world today is the most male dominated and establishment controlled sphere of human activity. Acceleration in the arms build-up is not only detrimental to the self-determination of weaker na- tions but also the observance of individual human rights. A cutback in the military build-up will enhance women’s and other minority rights. Our concern for equality rights in any given society on this planet must not end at the perimeters of that society. It has to be concern about non-aggression, about inter- vention, about independence for all states, about development of under-developed nations, about the sharing of wealth among mankind, about an end to mili- tarism and nuclear escalation. Indeed once we start considering equal rights no human being can be left out of the equation. People in subjugation have never achieved freedom by using means and methods dictated by the ruling classes. People in subjugation have never achieved freedom by using means and methods dictated by the ruling class. It would be foolish to expect that the establishment would lead the struggle to undo the status quo. It will depend on rank-and-file people to make the dream of equal liberty come true. Charles Roach is a Toronto lawyer and civil rights activist. This speech was delivered to an Alberta Federation of Labor conference. = ; PACIFIC TRIBUNE, MAY 1, 1985 ¢ 21_