The judgment of the Constitutional Court in the Hugo case[48] serves as an example of how the equality clause operates

on the issue of gender. In this case the President[49] granted remission of sentence to certain mothers who had minor children under the age of 12 years. The respondent, who was a male prisoner with a minor child of 12 years, argued that the Act discriminates against him on the ground of gender and sex and that it was thus in conflict with s 8 of the 1993 Constitution.[50] Goldstone J emphasized the importance of the prohibition against unfair discrimination within our constitutional dispensation and held:[51] The prohibition on unfair discrimination ... seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.[52] The Court held that the Presidential Act prima facie discriminates on one of the listed grounds,[53] and that such discrimination is presumed to be unfair unless the contrary is proved.[54] Goldstone J formulated the test to determine whether the discrimination was fair or not as follows: ... it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination.[55] After careful consideration of the factors and circumstances the majority of the Court came to the conclusion that on the facts of the case the discrimination was fair.[56] The Court found that, although fathers of young children have a disadvantage, their rights or obligations as fathers were not restricted in terms of the Presidential Act. The discrimination did not deny or limit their freedom. Their freedom was curtailed as a result of their conviction and not as a result of the Presidential Act. The latter merely deprived them from an early release to which they had no legal entitlement. Therefore, the impact of the discrimination upon the relevant fathers did not fundamentally impair their rights of dignity or sense of equal worth.[57] In a dissenting judgment Kriegler J[58] was of opinion that the notion to regard women as primary care givers of young children is a root cause of womens inequality in society. He argues that such a notion is ... both a result and a cause of prejudice; a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and a feature of the patriarchy which the Constitution so vehemently condemns.[59] According to him s 8 of the 1993 Constitution, and other provisions regarding gender equality, were designed to undermine and not to maintain patterns of discrimination.[60] As a result the benefits to a few women with young children were outweighed by the serious disadvantage to

gender equality in society as a whole, and consequently the presidential decision resulted in unfair discrimination.[61] In her assenting judgment ORegan J agrees with Goldstone J and Kriegler J that the responsibility borne by mothers for the care of children is a major cause of inequality in society. It is one of the factors that renders her less competitive and less successful in the labour market resulting in the unequal division of labour between men and women, which is a primary source of womens disadvantage in society.[62] However, she disagrees with Kriegler J that affording advantages to mothers of young children would hamper the task of achieving constitutional equality. According to her the fact that mothers generally bear the responsibilities of child rearing is a simple fact of the matter which cannot be ignored in determining the discrimination in casu.[63] Although Mokgoro J concurred in the order proposed by the majority of the Court, she held that the Presidential Act constituted unfair discrimination,[64] but that the discrimination was justified in terms of s 33(1) of the 1993 Constitution.[65] With regard to gender discrimination she observed as follows:[66] Section 8 of our [1993] Constitution gives us the opportunity to move away from gender stereotyping. Society should no longer be bound by the notions that a womans place is in the home (and, conversely, not in the public sphere) ... Those notions have for too long deprived women of a fair opportunity to participate in public life, and deprived society of the valuable contribution women can make. Women have been prevented from gaining economic self-sufficiency, or forging identities for themselves independent of their roles as wives and mothers.[67] At the onset of this paper it was argued that all inequalities between men and women should be addressed before legislative recognition is given to marriages concluded under a system of religious law or to religious legal systems. In light of the South African Law Commissions investigation into Islamic marriages and related matters it is of the utmost importance that we start debating the relevant issues. When the principles of the Hugo case regarding gender equality are applied to the position of Muslim women with respect to inheritance, the following arguments may be raised.

EQUALITY

Rights: Our Equality Rights in the Charter

About

Equality Rights
Important equality rights issues are described below:
What is the Charter?

Funding

Rights

What is "equality"? "Substantive" equality

Your Rights to Equality Equality Rights Language Rights Key Sections

Example: The Eldridge Case How do Courts Decide an Equality case? Enumerated/Listed Grounds Analogous/Similar Grounds Discrimination: Going Against the Purpose of Section 15 Important Factors Section 1 of the Charter: The Government's Defense

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Members

The Oakes Test Equality Seeker's Role under Section 1

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What is the Charter?

The Canadian Charter of Rights and Freedoms is a statement of our basic human rights and freedoms. Some of these are: the right to free expression and freedom of belief, the right to vote, the right to a fair process and trial if you are accused of a crime, the right to educate your children in your mother tongue, if you are from an official language minority community, and the right to equality. The Charter became part of Canada's Constitution in 1982. The Constitution is like a blueprint or road map for how we want to govern ourselves and structure our society. The Constitution --including the Charter-- is the "Supreme Law" which means that governments must respect it whenever they pass a law, make a policy, or have day-to-day dealings with us. Governments must, therefore, respect our right to equality whenever they pass a law, make a policy, or deal with us. The Courts play the very important role of enforcing the Constitution and the Charter. If your rights are violated, you can go to court and ask the court to order the government to stop and to do something about the

problem. In "test cases", the courts develop the principles or tests for deciding whether your rights have been violated. These principles are then applied in later cases.

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What is "equality"?
Section 15 of the Charter states that: Every individual is equal before and under the law and has the rights to 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. What does equality mean? People's understanding of this idea has changed and developed over the years. At one time, people believed that only certain people had the right to equality, such as men, adults, or landowners. Until recently, many people thought that equality meant getting the exact same treatment as other people. We call this approach "formal equality".

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"Substantive" Equality
Now, the courts and many equality seekers have a broader view of equality, one that is often called "substantive equality". A substantive equality approach recognizes that patterns of disadvantage and oppression exist in society and requires that law makers and government officials take this into account in their actions. It

examines the impact of law within its surrounding social context to make sure that laws and policies promote full participation in society by everyone, regardless of personal characteristics or group membership. Substantive equality requires challenging common stereotypes about group characteristics that may underlie law or government action as well as ensuring that important differences in life experience, as viewed by the equality seeker, are taken into account. The Supreme Court of Canada recently affirmed its commitment to a substantive approach to equality in its unanimous decision in Law v. Canada.

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Example: The Eldridge Case

"Substantive equality" can be contrasted with a "formal" notion of equality, which asks whether the law treats all individuals the same. The recent case of Eldridge v. BC, provides an excellent example of the limits of a formal equality approach. In that case, a number of Deaf patients challenged the British Columbia Medicare system for failing to ensure that sign language interpreters would be available for medical appointments and hospital visits. A formal equality approach would not be concerned about this problem, because all individuals are getting the same treatment --in this case, the same doctors and the same care. The substantive equality approach used by the Supreme Court in this case asked us to assess the impact of this policy on equality seeking groups to make sure they are receiving equivalent results to others. If a Deaf patient cannot understand or communicate effectively with his/her doctor s/he is simply not receiving the full and equal benefit of free medical care. To ensure substantive equality for Deaf patients, sign language interpretation must also be funded.

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How do Courts Decide an Equality case?

Generally speaking the courts use a three-step approach when deciding an equality seeker's case against the government. They ask the following questions: Does the law treat or affect you differently due to one or more personal characteristic(s) --or due to your membership in a group identified by personal characteristics? Is the characteristic a "ground" of discrimination which is covered by Section 15 of the Charter? Is the difference in treatment or effect truly discrimination (as meant by Section 15 of the Charter)? Let's look at each of these questions a bit more closely. Please note that this approach is used for not just laws, but also policies or practices of the government. Does the law treat or affect you differently due to one or more personal characteristic(s) -- or due to your membership in a group identified by personal characteristics? To answer the first question you have to show the court that the law (or policy or practice) directly singles you out for different treatment compared to others based on a personal characteristic or a combination of personal characteristics. If the law does not draw a direct difference, you must instead show that the law has a negative ("adverse") impact on you compared to others, based on the characteristic(s). Although the courts do not always say it this way, many equality seekers prefer to think that the difference is due to your membership in a group that is identified by personal characteristics. This way of thinking helps to show that the definition of "difference" comes from one person's or group's point of view, when thinking about other

people in comparison to themselves. In other words, the "personal characteristics" that the courts consider are labels created to talk about what people believe are important differences between individuals and groups. Examples: Direct Differences in Treatment a law which says that an Aboriginal women loses her legal status as an Aboriginal person if she marries someone without this status, but that an Aboriginal man may marry whomever he pleases without affecting his status This law creates a direct difference in treatment on the basis of sex(gender) by singling out Aboriginal women and taking away their rights. a law which says only married and opposite-sex common law couples can get certain tax breaks This law creates a direct difference in treatment on the basis of sexual orientation by singling out people in same-sex relationships and denying them tax breaks. Negative (Adverse) Impact: A law which says you must pay a very high fee to immigrate to Canada This law may seem to treat everyone the same. However, it has a different impact if you think about how it operates within the social and economic environment or context. This law creates different obstacles for people on low-incomes and/or people from countries where the money is worth a lot less once it is converted into Canadian dollars. It has a different impact based on your income and/or your national origin.

Is the characteristic a "ground" of discrimination which is covered by Section 15 of the Charter?

Here you must show that the characteristic or group membership which forms the basis for the difference in treatment or impact is a "ground of discrimination". The ground may be either listed ("enumerated") in section 15 or like ("analogous to") the grounds listed in section 15.

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Enumerated/Listed Grounds
The "grounds of discrimination" listed or enumerated in section 15 describe certain personal characteristics (or groups in which we may be members) which have been linked to oppression or disadvantage in our society, and around the world. Examples: In the above example, the Aboriginal woman who loses her legal status has received different treatment based on the listed ground of "sex". In the above example, the high immigration fee has a different impact on some people based on the listed ground of "national origin".

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Analogous/Similar Grounds
If the difference in treatment or impact is not based on a listed ground of discrimination, you must show that it is based on a similar

(analogous) ground. According to the courts, the basic goal of section 15 is to protect human dignity by making sure that law makers view all people, right from the start, as being of equal worth and value and as equal and full participants in our society. The grounds of discrimination identify bases for different treatment or effect which we think are dangerous because they contribute to a society where some of us are not full participants and where some are seen as more worthy human beings than others. To decide whether a personal characteristic or group membership is an "analogous" or "like" ground of discrimination, the courts will ask some of the following questions. You do not need a "yes" answer to all of them. It is a pretty flexible decision. does the ground describe a group which has experienced and/or is now experiencing social, legal and/or economic disadvantage? does it describe a group which is vulnerable to prejudice, or stereotyping? is this group vulnerable to being mistreated or having its needs/conditions overlooked? is this group being prevented from participating fully in society? Is this group a minority community within broader society?

Examples: In the above example, a lesbian couple denied tax breaks have been treated differently based on their sexual orientation. While "sexual orientation" is nowhere to be found in the words of section 15, the Supreme Court of Canada has said that it is an "analogous" ground of discrimination and can be addressed using section 15. In the above example, a person with a low-income faces a more negative impact of the immigration fee due to his or her economic status, poverty or social condition. The Supreme Court of Canada has not yet recognized economic status or social condition as a ground of

discrimination addressed by section 15 of the Charter. Is the difference in treatment or effect truly discrimination (as meant by Section 15 of the Charter)?

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Discrimination: Going Against the Purpose of Section 15

The final question the courts ask is whether the difference in treatment or impact is truly discrimination. In other words, does this difference in treatment go against the purpose of section 15? According to the Supreme Court of Canada, section 15's goal is: to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. To convince the court that the difference in treatment or impact is truly discrimination, you must show the court how the law or policy goes against this purpose. This is done by discussing various factors in the social environment within which the law operates.

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Important Factors
Below are four factors which the Supreme Court of Canada has set

out. They have said, however, that other factors in the social context or environment which have some bearing on a consideration of the purpose of section 15 may also be important. 1. Whether the group to which the equality seeker belongs already experiences disadvantage in society, quite apart from the difference in treatment or impact brought about by the law or policy This would be true of all of the groups identified in the examples used above. Aboriginal women, same-sex couples, and newcomers to Canada from developing countries already experience disadvantage as groups in society. 2. Whether there is a link between the difference in treatment or impact and the actual needs, capacities or circumstances of the equality seeker As the Supreme Court has said: [L]egislation which takes into account the actual needs, capacity, or circumstances of the claimant and others with similar traits in a manner that respects their value as human beings and members of Canadian society will be less likely to have a negative effect on human dignity. A good example is the case of the Deaf person requiring sign language interpretation for doctor and hospital visits. A hearing person might argue that this is discrimination because different treatment is given to Deaf people based on their disability. The Courts would say that this different treatment does not go against the purpose of section 15, but rather promotes this purpose. For this reason, this policy would not be discrimination. 3. Whether the law or policy has an ameliorative purpose or effect The idea here is that laws or policies which are meant to ameliorate or improve conditions for an equality seeking group do not discriminate against people from the relatively more advantaged group. For instance, it is not discrimination for the government to provide sign language interpretation for people with hearing impairments and not for able-bodied people who do not have difficulty hearing. This policy is meant to improve conditions in health care for people with hearing

impairments. 4. The Nature of the Interest Here the court will look at the economic, social or constitutional importance of the interests affected by the difference in treatment or impact. A court would hopefully view the ability to receive medical care, to maintain one's unique rights as an aboriginal person, to receive important tax benefits, or to immigrate to Canada, as important interests for ensuring that we are all equal participants in Canadian society.

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Section 1 of the Charter: The Government's Defense

After going through these steps, the courts will decide whether you have made out your equality claim. They will try to look at each question from your point of view, as the equality seeker, but will also consider whether your point of view is "reasonable", given the important factors in the social environment affecting your case. If you are successful, the government will then be given a chance to defend its law or policy. It bases its defense on section 1 of the Charter, which states: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In other words, no one's rights are unlimited and the government can take action which affects your rights. However, any limits it sets

through passing laws must be reasonable and the government must be able to justify them taking into account that ours is a free and democratic society.

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The Oakes Test

In a case called Oakes and some later cases, the Courts developed a legal test to decide whether the government can defend its discriminatory law or policy. Very briefly, the government must show the following four things (In brackets is the legal language used for each step by the court.): that the government had an important social goal or good in mind when it made the problematic policy or law (a "pressing and substantial objective") that the violation of your rights actually advances this goal (the "rational connection" between the action which limits your right to equality and the furthering of this important goal) that your rights were not affected more than is reasonable or necessary (the "minimal impairment" of your right to equality) that there is a balance between the good done by the law and the bad effect on your rights (the balance between "salutary" (positive) and "deleterious" (negative) effects of the law)

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Equality Seekers' Role under Section 1

It is very important that we hold governments strictly accountable when they violate our rights. For this reason, equality seekers also have a lot to say about how strictly the courts apply the section 1 test. While the government is responsible for meeting this test, people who go to court using section 15 of the Charter must prepare to answer any of the things the government will say in its own defense under section 1. Equality seekers may also have something to say about the following questions: How much evidence does the government need to prove its points? Can the court just take certain things for granted? What does it mean to "minimally impair" the right to equality? What is acceptable? How should the courts decide what the goal of the problem law is? Do we look at the overall purpose of the legislation? the purpose of the piece or aspect of the law which creates the inequality? both? What is an acceptable balance between positive and negative effects? Does it matter what the social goal is? Does it matter if two different rights seem to be in conflict? (e.g. Laws dealing with "hate propaganda" must balance the right to free expression with the right to be free from discrimination)

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