Everyone Must Be Treated the Same. Right?

Consider this:

A province funds 40 paid articling positions for recent law graduates with disabilities. The program was created after evidence showed that graduates with disabilities were substantially less likely to secure traditional articling positions and consequently faced greater difficulty entering the profession.

Only applicants with disabilities may apply. A graduate without a disability challenges the program.

His argument seems straightforward: The government is treating applicants differently because of disability.

🤔 Isn’t that exactly what s. 15 of the Charter prohibits?

Read the rest of s. 15

Section 15(1) guarantees equality before and under the law and the equal protection and benefit of the law without discrimination.

But the section does not end there. Section 15(2) expressly provides that s. 15(1) does not preclude laws, programs or activities whose object is improving the conditions of disadvantaged individuals or groups.

That provision matters. Because Canadian constitutional equality has never simply meant that government must treat every person identically.

In R. v. Kapp, the Supreme Court explained that s. 15(2) protects genuinely ameliorative programs directed toward disadvantaged groups identified by enumerated or analogous grounds. The Court connected the provision directly to the Charter’s commitment to substantive equality.

So return to our articling program.

The fact that applicants are being treated differently does not itself resolve the equality question.

That may actually be the point of the program.

Now change one fact

Suppose the province announces another exclusive articling program. Again, only members of a particular group may apply.

But this time there is little evidence that the group faces disadvantage in entering the profession. Government documents simply describe the program as promoting “representation and diversity.”

🤔 Does invoking an ameliorative objective settle the matter?

Not necessarily.

The Supreme Court has made clear that merely declaring a program remedial does not automatically bring it within s. 15(2). The ameliorative purpose must be genuine, the targeted group must be disadvantaged in the relevant constitutional sense, and there must be a relationship between the program and the disadvantage it seeks to address.

That makes the second program a different constitutional problem. The government cannot simply attach the language of equality to preferential treatment and end the inquiry.

But neither can the inquiry begin from the assumption that different treatment is inherently inconsistent with equality.

🧠 That is the point

A surprisingly persistent intuition about equality is that fairness requires government to treat everyone the same.

Canadian constitutional law rejected that idea long ago. Sometimes identical treatment can preserve disadvantage.

Sometimes different treatment can respond to it. And, s. 15(2) does something particularly important: it places that idea inside the constitutional text itself.

So perhaps the interesting question in our hypothetical is not:

🤔 Why is the government allowed to discriminate?

That question already assumes that different treatment and unconstitutional discrimination are the same thing.

They are not.

The harder question is whether the distinction is genuinely directed toward improving the conditions of a disadvantaged group in a manner contemplated by s. 15(2).

That is a very different constitutional inquiry.

🧠 And, it leaves us with a useful thought:

If our understanding of equality requires everyone to be treated identically, what do we do with a Charter that expressly contemplates otherwise?