It is fair to say that human rights have evolved greatly since the inception of Magna Carta. The Barons who forced King John to place his seal on the Magna Carta in 1215 were attempting to secure certain rights and protections, in areas such as taxation and access to the courts, by enacting law which would apply to all “free men”. However, equality by today’s standards was not achieved , as the Magna Carta only applied to selective rights and selective groups of people.
Today, a constitutional supremacy exists in Canada, meaning that the protections afforded to all people by the Charter of Rights and Freedoms cannot be disregarded by the State or its actors. The Charter is analogized to a living tree which grows and changes over time. As suggested by John Robson, trees have roots, and the roots of the Charter are the Magna Carta.
Section 15(1) of the Charter guarantees “Every individual is equal before and under the law and has the right to the 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.”[1] Additionally, provincial and federal human rights legislation allows individuals who perceive their rights to have been infringed by actors in the private sector to make claims of discrimination, which will then be heard by a human rights tribunal.[2] The courts continue to recognize and develop the concept of equality in light of the Charter and human rights legislation. Specifically, what it means to have equality of opportunity in our society has been addressed by the courts in countless cases.
In Eldridge v British Columbia (Attorney General), the claimants, who were deaf persons, argued that they were not receiving medical services equivalent to those received by hearing persons.[3] The alleged inequality was that the medical plan set out by the province at that time did not provide paid sign language interpreters for medical services. Although both hearing and deaf persons received the exact same health care services under the legislation, deaf persons were disadvantaged by not being able to effectively communicate. The Court found that the government was obligated to ensure effective communication in the delivery of medical services so that all individuals could take advantage of the health care benefits. The Court held that section 15(1) sometimes requires special measures to be taken in order to ensure that disadvantaged groups are able to benefit equally from government services. In this case, equal benefit required provision of sign language interpreters to persons who are deaf.
Eldridge demonstrates that even if a law is compliant with the Charter, any impacts of it which deprive certain groups of equal treatment under it will still infringe the Charter. This is an excellent example of the evolution of our society’s understanding of equality. Back in 1215, no remedy would be afforded to a person who was deaf even if it rendered him unable to access education, the court system, or other services. Equality of opportunity to access services was not on the minds of the Barons when drafting the Magna Carta.
Human rights legislation continues to develop alongside notions of equality. The Alberta Human Rights Act protects individuals from unequal treatment on the grounds of race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.[4] In British Columbia, protections against discrimination in employment extend to prior criminal convictions.[5] In 1982 when the Charter came into force, it is doubtful that society understood the importance of protecting equal access to employment for an individual with a criminal record. Contemplating this evolution reminds us that as a society grows and changes, new rights will need to be protected. We must be open to embracing opportunities to ensure equal treatment of new subsets of society.
[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[2] See for example, Alberta Human Rights Act, RSA 2000, c A-25.5.
[3] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 1997 CarswellBC 1939 headnote [Eldridge].
[4] Alberta Human Rights Act, Supra note 2.
[5] British Columbia Human Rights Code, RSBC 1996, c 210 at s 13.
