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BP-402E

Charter Equality Rights: Interpretation of Section 15
in Supreme Court of Canada Decisions

Prepared by:
Mary C. Hurley
Law and Government Division
Revised March 2007

PDF (225.75 Kb, 34 pages)

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Table of Contents


Introduction

This paper contains a summary review of a number of principles relevant to analysis of section 15 and section 1 of the Canadian Charter of Rights and Freedoms (the Charter), as determined by the Supreme Court of Canada (the Court), followed by a chart setting out basic elements of the Court’s decisions in which the equality rights provision has been raised.

Subsection 15(1)

Subsection 15(1) of the Charter, in effect since April 1985, provides that:

Every individual is equal before and under the law and has the right to the equal protection 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.

A.  The Andrews Decision

The Court issued its first section 15 ruling in 1989.  Andrews v. Law Society of British Columbia(1) articulated an initial interpretive framework for the application of subsection 15(1) in future equality rights cases.  Accordingly, subsequent determinations as to whether legislative distinctions or other government action violated section 15 of the Charter required lower courts to apply the Andrews framework.

Andrews involved a successful challenge to the statutory citizenship requirement for entry into the legal profession in British Columbia.  The British Columbia Court of Appeal had applied a formal equality test in its consideration of section 15, according to which persons similarly situated were entitled to similar treatment, and different treatment of persons differently situated was justified.(2)  Although confirming the appellate court’s decision, the Court rejected its formal equality analysis in favour of a substantive equality approach.

Relevant principles set out in Andrews include the following:

Andrews thus determined that a finding of section 15 infringement requires:

B.  The Turpin and Swain Decisions

Through 1995, the Court’s subsequent section 15 decisions expanded upon the basic Andrews framework.  Certain concepts retained particular significance.  In R. v. Turpin,(5) in particular, the Court reinforced the Andrews criterion of disadvantage for purposes of establishing a section 15 violation based on analogous grounds:(6)

The Court’s decision in R. v. Swain(8) contained a useful review of the approach developed in Andrews-Turpin:

[These] cases convey a basic framework within which particular s. 15(1) claims can be analyzed.  The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied … This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics.  Next, the court must determine whether the denial can be said to result in “discrimination.”  This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others.  Furthermore, in determining whether the claimant’s s. 15(1) rights have been infringed, the Court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure the claim fits within the overall purpose of s. 15; namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.

 

C.  The 1995 Trilogy

Although the Andrews-Turpin analytical scheme was applied, essentially unchanged, in subsequent Court rulings,(9) three 1995 decisions revealed a marked three-way division among members of the Court as to the appropriate approach to section 15 interpretation.(10)  These rulings also articulated variations from the original Andrews-Turpin approach advanced in the trilogy that are worth noting.  In Miron, for example,(11) a majority of the court commented that the factors set out in Turpin(12) for determining whether a group was “analogous” to those enumerated in section 15, while they were valid indicators, need not necessarily be present to make such a finding.  In the majority view, analogous grounds could not be restricted to historically disadvantaged groups if the Charter was to retain future relevance.(13)  Nor is it essential for a discrete and insular minority to be targeted by the distinction at issue, as illustrated by the inclusion of sex among section 15’s enumerated grounds for defining analogous grounds.  The “overarching” purpose of section 15 was also restated as being “to prevent the violation of human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstance.”(14)

D.  The Law Decision:  A Second Leading Case

Following the trilogy, it was difficult to gauge how the Court’s division would affect the future evolution of section 15 interpretation, among other reasons because the Andrews framework had served as the authoritative guide in this area.  The issue remained unresolved through 1998 in the Court’s post-trilogy rulings in which section 15 issues were addressed.(15)

The full Court’s unanimous 1999 ruling in Law v. Canada(Minister of Employment and Immigration)(16) marked an apparent attempt to reconcile the Court’s earlier split and to set benchmarks for the following years of section 15 analysis.  The decision therefore represented a significant development.

The case involved an appeal of a ruling against a claim of age-based discrimination arising because Canada Pension Plan survivor benefits are denied to able-bodied surviving spouses under the age of 35 who are without dependent children.(17)  In dismissing the appeal, the Court consolidated and refined previously stated principles concerning the purpose of and approach to section 15, with a view to providing guidelines for lower courts’ future evaluation of discrimination claims under the Charter.  These guidelines, it was stressed, are to serve as points of reference rather than a fixed formula, so as not to detract from the strong remedial purpose of the equality rights provision.

Under Law, central issues raised by and broad inquiries into claims of discrimination reflected issues and inquiries essentially as stated in Andrews.  Thus, a court evaluating a discrimination claim should continue to determine whether:

In other words, courts must find (i) distinction(s) in treatment (ii) on the basis of an enumerated or analogous ground (iii) that amounts to substantive discrimination.

The primary innovation of the Law ruling, which many contend rendered section 15 analysis significantly more complex, lay in its reformulation of the evaluative framework to assist courts in assessing the merits of section 15 claims.  Its basic elements, underscoring a heightened focus on human dignity, may be summarized as follows:

Applying these principles to the case at hand, the Court concluded that, while the challenged provisions of the Canada Pension Plan do create differential treatment based on the enumerated ground of age, they do not impose a substantive long-term disadvantage on younger adults and do not violate the essential human dignity of surviving spouses under the age of 35; thus, they are not discriminatory.

E.  Some Post-Law Observations

As anticipated, the Court’s assessment of the human dignity factor in subsequent decisions to date has continued to play a pivotal role in determining whether a section 15 claim of discrimination will be allowed or dismissed.

The Court has continued to develop guidelines as to how contextual factors are to be weighed and analyzed in individual cases.  Additional explanation can be found, for example, in Trociuk v. British Columbia (Attorney General), in which the Court ruled that legislation excluding some fathers from the birth registration and naming process was discriminatory on the basis of sex.  It noted that absence of historical disadvantage need not necessarily preclude a finding of discrimination, underscoring the point that “neither the presence nor absence of any of the [Law] contextual factors is dispositive of a s. 15(1) claim” or “determines the outcome of the dignity analysis.”(21)

The Court has also maintained its focus in post-Law decisions on the significance of the “comparator group” in section 15 analysis.(22)  It returned to the matter most fully in Hodge v. Canada (Minister of Human Resources Development).(23)  Here the Court observed that because section 15 analysis proceeds throughout on a comparative basis, the choice of comparator group is an ongoing issue in every case and initial misidentification “can doom the outcome” of the section 15 examination.  Hodge reaffirmed the judiciary’s role in scrutinizing the claimant’s choice of comparator, and its duty “to step in and measure the claim to equality rights in the proper context and against the proper standard” when a claimant’s choice is mistaken.(24)  The Court’s rather complex discussion of the comparator group issue asserts that “[t]he appropriate comparator group is the one which mirrors the characteristics of the claimant … relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter.”(25)

F.  Additional Guiding Principles

The Court’s section 15 jurisprudence has stated a number of additional interpretive principles.  Noteworthy examples include the following:

Subsection 15(2)

Subsection 15(2) reads:

Subsection [15(1)] does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The 2000 decision in Lovelace v. Ontario(41) contains the Court’s first relatively extensive discussion of the proper interpretation of subsection 15(2), and of that provision’s relationship with subsection 15(1).  The case concerned the exclusion of certain “non-band” Aboriginal groups in Ontario from the fund that provides Ontario First Nations registered under the Indian Act with shares in the proceeds of the reserve-based Casino Rama, in order to strengthen their economic and social development.  The Ontario appellate court found that the casino project was authorized by subsection 15(2), and could not constitute discrimination under subsection 15(1).  In upholding this conclusion, the Court relied on subsection 15(1) interpretation under its 1999 Law decision rather than on subsection 15(2).

The Court observed that, although its previous section 15 rulings had not given independent scope to subsection 15(2), they had considered the provision to support the interpretation of the equality rights section as substantive in nature.  Having noted competing approaches to subsection 15(2) – under which some judges and academics have regarded it either as an interpretive aid to subsection 15(1), or as an exemption from that provision’s application – the Court found that, at this stage of the evolution of section 15 jurisprudence, the provision should be understood as confirmation of the substantive equality approach to subsection 15(1).

In the Court’s view, its conclusion that subsection 15(2) is “confirmatory and supplementary” to subsection 15(1) is supported by the terms of the two provisions:  the former is referenced to the latter, with no language of exemption, while “on its face” subsection 15(2) describes the content of subsection 15(1).  Further, the Charter’s internal coherence is ensured by treating subsection 15(2) as an interpretive aid to subsection 15(1).  Interpreting subsection 15(2) as an independent right or as an exemption to subsection 15(1) would have a contrary effect, for example by rendering section 1 redundant.  Thus it is preferable to “recognize the interpretive interdependence” of the two provisions.

The Court did not foreclose the possibility that subsection 15(2) might have independent application in some future case, and suggested that it might wish to reconsider the matter of subsection 15(2) interpretation in another context.

Section 1

A.  The Oakes Test

Section 1 reads:

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.

As the terms of the section make clear, no Charter protection is absolute.  In the presence of a section 15 violation, the courts therefore undertake a separate section 1 evaluation to determine whether the infringement nevertheless constitutes a reasonable limit to the equality rights guarantee.

The government bears the burden of establishing that any Charter breach is justified.  The governing approach to section 1 analysis detailed by the Supreme Court of Canada in R. v. Oakes(42) involves a two-step process.  First, the objective of the legislation or government action must be shown to be sufficiently “pressing and substantial” to warrant overriding a Charter right.  Second, the means adopted to attain that objective must be reasonable and demonstrably justified.  This step entails a proportionality test in which the courts are required “to balance the interests of society with those of individuals or groups.”  Three elements must be satisfied:

B.  The Flexible Approach

In the years since Oakes, the application of its “strict” section 1 test has undergone adjustments.  In particular, the Supreme Court of Canada has developed a flexible approach to the Oakes test’s “minimal impairment” requirement resulting in a less stringent section 1 analysis in certain cases.  The approach evolved to a significant extent, and has been applied, in cases in which the interests of vulnerable groups have been central to the Court’s section 1 analysis.  For example, in a number of major cases involving the Charter’s subsection 2(b) freedom of expression provision, legislation violating that guarantee has nevertheless been upheld on the basis that it offered vulnerable groups needed protection from harm of one form or another.(44)

However, the flexible approach to section 1 analysis also allows for greater judicial deference to legislative choice in “socio-economic” cases involving circumstances that require the government to strike a balance between the legitimate claims of competing groups for limited resources.  The reasoning has been that, because neither the government nor the courts can be absolutely certain as to the “best” balance in such cases, the appropriate question is not whether the right in question has been minimally impaired, but rather whether the government had a reasonable basis for so concluding.  Where, on the other hand, the government acts as the claimant’s “singular antagonist,” for example in cases involving legal rights, the courts are in a better position to assess with greater certainty whether the least drastic means have been used.(45)

In some relatively early decisions, a majority of the Court suggested that discriminatory legislation might be justified on the basis of a government’s entitlement to take “incremental measures” in legislating human rights protection(46) or an “incremental approach” in allocating state benefits,(47) or because the ground of discrimination at issue is relatively “novel.”(48)  In these and other cases, the matter of when and how the less stringent Oakes test may appropriately be invoked was a source of disagreement among Court members.(49)  In Egan, for instance, dissenting members of the Court expressed strong criticism of both incremental and novelty approaches to section 1 justification.(50)  In Vriend, Iacobucci J.’s reasons for the majority reiterated the view that “the need for governmental incrementalism [is] an inappropriate justification for Charter violations. … [G]roups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time.”(51)

C.  Separation of Powers

In Newfoundland (Treasury Board) v. N.A.P.E.,(52) the Court had occasion to consider section 1 interpretation under the Oakes test in relation to the constitutional separation of powers, and the extent to which judicial deference is mandated within that constitutional framework.

On the question of whether inadequate deference is paid to legislative and executive choices overall, the Court observed that generalized deference “would largely circumscribe and render superfluous the independent second look imposed on the courts”
by section 1 and “would leave little protection to minorities.”(53)  Furthermore, it noted,

Judicial review of governmental action long predates the adoption of the Charter.  Since Confederation, courts have been required by the Constitution to ensure that state action complies with the Constitution.  The Charter has placed new limits on government power in the area of human rights, but judicial review of those limits involves the courts in the same role in relation to the separation of powers as they have occupied from the beginning, that of the constitutionally mandated referee.  As the Court affirmed in Vriend …, “… it is not the courts which limit the legislatures.  Rather, it is the Constitution, which must be interpreted by the courts, that limits the legislatures.  This is necessarily true of all constitutional democracies.”(54)

In the Court’s view, if the legislature and the executive, the political branches of government, were allowed to be the final arbiters of Charter compliance of their policies, “it would seem the enactment of the Charter affords no real protection at all to the rights holders the Charter, according to its text, was intended to benefit.  Charter rights and freedoms, on this reading, would offer rights without a remedy.”(55)

The Court concluded that the Oakes test incorporates “a healthy respect for legislative choice in areas of economic and social policy,”(56) and need not be modified, adding that “[w]hile … the separation of powers is an important constitutional principle, … the s. 1 test set out in Oakes and the rest of our voluminous s. 1 jurisprudence already provides the proper framework in which to consider what the doctrine of separation of powers requires in particular situations.”(57)

D.  Additional Considerations

Not surprisingly, the specific matter of whether and when financial or budgetary measures may justify Charter violations (the dollars vs. rights question) is among the recurring issues in the Court’s section 1 deliberations, including in section 15 cases.  Its conclusions in Nova Scotia v. Martin and Laseur and N.A.P.E. indicate that “[b]udgetary considerations in and of themselves cannot normally be invoked as a free-standing pressing and substantial objective” for section 1 purposes,(58) but could qualify as sufficiently important in exceptional cases where they are “wrapped up with other public policy considerations.”(59)  The Court has stated its intention to continue to view budgetary justifications for Charter breaches with scepticism, “because there are always budgetary constraints and there are always other pressing government priorities.”(60)  Nevertheless, on the minimal impairment aspect, the Court has noted that in some cases involving difficult choices on resource distribution where there is no obvious solution, “[g]overnments act as they think proper within a range of reasonable alternatives” and have a large margin in doing so.  In the Court’s view, the “scope of that ‘margin’ will be influenced … by the scale of the financial challenge confronting a government and the size of the expenditure required to avoid a Charter infringement in relation to that financial challenge.”(61)

The Vriend decision clarified that, in cases of Charter infringement owing to legislative under-inclusion, the first stage of the Oakes test should be concerned with the legislation as a whole, the impugned provisions, and the omission that infringes the equality right.  The focus of the inquiry should be primarily on the objective of the legislated limitation or omission in question, with consideration given to the purposes of the entire Act and of the challenged provisions in order to provide the necessary broader context.(62)

It is also worth stressing that in some instances, a Charter violation need not be subjected to any section 1 “test.”  For example, in Little Sisters Book and Art Emporium v. Canada (Minister of Justice),(63) the Court found that the section 15 violation was a consequence of Customs officials’ implementation of their governing legislation rather than the legislation itself.  That is, the infringement occurred at the administrative level and was not a “limitation prescribed by law” within the meaning of section 1.  Therefore, it could not be justified.

Section 15 of the Canadian Charter of Rights and Freedoms
Supreme Court of Canada Decisions

Style of Cause
Nature of Challenge
Ground(s) of Discrimination
Result

Andrews v. Law Society of British Columbia
[1989] 1 S.C.R. 143
(unanimous re section 15 violation; 4-2 majority finding violation not justified under section 1)

Barristers and Solicitors Act of B.C.:  eligibility to practise law restricted on basis of citizenship requirement

citizenship (analogous)

Citizenship recognized as
analogous ground; section 15 violation not justified under section 1

Reference Re Workers’ Compensation Act, 1983 (Nfld.)
[1989] 1 S.C.R. 922
(unanimous)

Workers’ Compensation Act, 1983 of Newfoundland: 
restriction of right to seek compensation other than
under Act

employment status
(non-enumerated)

Situation of workers and dependants not analogous to that of enumerated groups;
no section 15 violation

R. v. Turpin
[1989] 1 S.C.R. 1296
(unanimous)

Criminal Code:  restricted eligibility to choose method of trial for certain offences, based on province of prosecution/residence

province of prosecution/
residence – place/mode of trial
(non-enumerated)
(infringement of subsection 11(f) right to waive jury trial also claimed unsuccessfully)

Despite acknowledged inequality of treatment, accused in all provinces but Alberta not disadvantaged group; no section 15 violation

Rudolph Wolff & Co. v. Canada
[1990] 1 S.C.R. 695
(unanimous)

Federal Court Act, Crown Liability Act:  suits of individuals against Crown restricted to
Federal Court jurisdiction

litigants against Crown (non-enumerated)

Crown not an individual for purposes of comparison under section 15; no distinction based on analogous ground,
no section 15 violation

R. v. S. (S.)
[1990] 2 S.C.R. 254
(unanimous)

Young Offenders Act:  alternative measures program unavailable in Ontario on basis of discretionary government decision

province of residence
(non-enumerated)

Discretionary decision not “the law” for section 15 purposes; if law conferring discretion were challenged, province of residence distinction not based on “personal characteristic”; no section 15 violation

R. v. Nguyen; R. v. Hess
[1990] 2 S.C.R. 906 (4-3 on section 15 issue)

Criminal Code:  definition of offence of having intercourse
with person under 14 years of age restricted to male offenders and female victims

sex (enumerated)
(infringement of section 7 right not to be deprived of liberty except in accordance with fundamental justice also
claimed successfully (5-2))

Distinction based on enumerated ground not automatic section 15 violation, section 15 not precluding offence capable of commission by one sex as matter of biological fact;
no section 15 violation

McKinney v. University
of Guelph
[1990] 3 S.C.R. 229
(unanimous re section 15 violation among judges considering issue; 5-2 as
to result)

(1) University policies: 
mandatory retirement;
(2) Ontario Human Rights Code:  restriction of prohibition against age discrimination to persons under 65

age (enumerated)
(Note:  Majority reasons noting case one of adverse effect discrimination)

(1) Charter not applicable to universities:  assuming it were, mandatory retirement policies violating section 15 but justified under less stringent section 1 test; (2) Code provision also in violation of section 15 but entitled to deference under section 1

Stoffman v. Vancouver
General Hospital

[1990] 3 S.C.R. 483
(unanimous re section 15 violation among judges considering issue; 4-3 as
to result)

Medical Staff regulation:  mandatory retirement

age (enumerated)

Charter not applicable to hospitals:  assuming it were, regulation violating section 15 justified under less stringent section 1 analysis

Connell v. University
of British Columbia

[1990] 3 S.C.R. 451 (unanimous re section 15 violation among judges considering issue; 6-1
and 5-2 as to result)

(1) University policies:  mandatory retirement; (2) Human Rights Act of B.C.:  prohibition against discrimination in employment restricted to persons under age 65

age (enumerated)

(1) Charter not applicable to university policies:  assuming it were, policies violating section 15 justified under section 1; (2) Act also violating section 15 but meeting section 1 test

Douglas/Kwantlen Faculty Assn. v. Douglas College
[1990] 3 S.C.R. 570
(unanimous as to result)

Collective agreement: 
mandatory retirement provision

age (enumerated)

Charter applicable to college, collective agreement constituting “law” for section 15 purposes, arbitrator having jurisdiction to consider whether provision in collective agreement in compliance with section 15; N.B.:  no decision on merits of section 15 case

R. v. Swain
[1991] 1 S.C.R. 933 (6-1 as to result)

(1) Criminal Code:  provision
for automatic detention of person found not guilty by reason
of insanity;
(2) Common law criterion enabling Crown to adduce evidence of an accused’s
insanity against the
accused’s wishes

disability (enumerated)
((1) and (2) infringement of section 7 right not to be deprived of liberty except in accordance with fundamental justice also claimed successfully;
(2) infringement of section 9 right not to be arbitrarily detained also claimed successfully)

Owing to section 7
finding with respect to (2), no section 15 discussion or conclusion:  section 15 discussion limited to determination that new common law rule formulated by Court not in violation of that section

Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission)
[1991] 2 S.C.R. 22
(unanimous)

Unemployment Insurance Act:  disentitlement of persons aged 65 to regular unemployment insurance benefits

age (enumerated)
(Note:  Court noting case one of adverse effect discrimination)

Board of referees without jurisdiction to consider Charter issue; provision in violation of section 15 and not justified under section 1

R. v. Généreux
[1992] 1 S.C.R. 259
(unanimous on section 15 issue)

General Court Martial proceedings

membership in military (non-enumerated)
(infringement of
subsection 11(d) right to hearing before independent and impartial tribunal also claimed successfully (8-1))

Military personnel not falling within analogous ground; no section 15 violation

Canada (Minister of Employment and Immigration) v. Chiarelli [1992] 1 S.C.R. 711 (unanimous)

Immigration Act:  provisions requiring deportation of permanent residents convicted of offences subject to certain sentences

permanent residents convicted of relevant offences
(non-enumerated)
(infringement of section 7 right not to be deprived of fundamental justice and of section 12 right
not to be subjected to cruel and unusual treatment or punishment also claimed unsuccessfully)

Charter section 6 providing
for differential treatment of permanent residents and citizens; permanent residents convicted of serious offences not falling within analogous ground, deportation scheme not violating section 15

Weatherall v. Canada
(Attorney General)

[1993] 2 S.C.R. 872
(unanimous)

Frisk searches and cell patrols by female guards in male prisons

sex (enumerated)
(infringement of section 7 right not to be deprived of liberty except in accordance with fundamental justice and of section 8 right to be secure against unreasonable search and seizure also claimed unsuccessfully)

Doubtful that differential treatment in question in violation of section 15:  even if section 15 infringed, such infringement justified under section 1

Haig v. Canada; Haig v. Canada (Chief Electoral Officer)
[1993] 2 S.C.R. 995
(unanimous on section 15 issue)

Referendum Act, Canada Elections Act:  failure to make provision for enumeration of all citizens in “national” referendum

new residents of province
(non-enumerated)
(infringement of subsection 2(b) freedom of expression guarantee and of section 3 right to vote also claimed unsuccessfully)

Persons moving to Quebec
less than six months prior to referendum not falling within analogous ground;
no section 15 violation

Rodriguez v. British Columbia (Attorney General)
[1993] 3 S.C.R. 519
(7-2 on section 15 issue, 5-4
as to result)

Criminal Code:  prohibition against assisting suicide

disability/disabled persons unable to commit suicide without assistance (enumerated) (infringement of section 7 right not to be deprived of security/liberty except in accordance with fundamental justice and of section 12 right not to be subjected to cruel and unusual treatment or punishment also claimed unsuccessfully)

Majority concluding that because any section 15 violation justified under section 1, preferable to
make no section 15 findings:  essentially a section 7 case

Young v. Young
[1993] 4 S.C.R. 3
(unanimous as to result on constitutional issues)

Divorce Act:  Court orders for custody and access based on
best interests of child

unspecified, presumably religion (enumerated)
(infringement of subsections 2(a) freedom of religion,
2(b) freedom of expression
and 2(d) freedom of association guarantees also claimed unsuccessfully)

Assuming Charter applicable to access action under Divorce Act, section 15 guarantee, if applicable, tangential to case based principally on subsections 2(a) and 2(b);
no section 15 discussion,
no section 15 violation

Symes v. Canada
[1993] 4 S.C.R. 695
(7-2 on section 15 issue)

Income Tax Act:  provision limiting child care expense deduction

sex (enumerated)

Evidence not establishing adverse effect discrimination; no section 15 violation

R. v. Finta
[1994] 1 S.C.R. 701
(unanimous as to Charter issues raised on cross-appeal among judges considering them)

Criminal Code:  provisions allowing conviction for crimes against humanity or war crimes committed outside Canada

persons committing relevant crimes outside Canada
(non-enumerated)
(infringement of section 7 right not to be deprived of liberty/ security except in accordance with fundamental justice, and of subsections 11(a) right to be informed of offence charged without unreasonable delay,
11(b) right to be tried within reasonable time, 11(d) right to be presumed innocent,
11(g) right not to be found
guilty of any act not an offence at the time of its commission also claimed unsuccessfully)

Difference in treatment based on location of crime, not personal characteristic; group of persons committing war crime or crime against humanity outside Canada not falling within analogous ground,
no section 15 violation

Native Women’s Assn.
of Canada
v. Canada
[1994] 3 S.C.R. 627 (unanimous as to result)

Exclusion of N.W.A.C. from direct funding and participation
in relation to constitutional discussions

sex (enumerated)
(infringement of subsection 2(b) freedom of expression guarantee, in collaboration with section 28 guarantee of equality between sexes, also claimed unsuccessfully)

Based on facts of case, government under no constitutional obligation to provide funding; all members of Court considering Charter issue finding lack of evidentiary basis to support Charter infringement under either subsection 2(b) in combination with section 28, or section 15; no section 15 violation:  essentially argued as a subsection 2(b) and section 28 case

Thibaudeau v. Canada
[1995] 2 S.C.R. 627
(5-2 on section 15 issue)

Income Tax Act:  provision requiring custodial parent to include child support payments
in income

sex (enumerated), family status – separated custodial parents (non-enumerated)

Inclusion/deduction scheme not creating a “burden” for custodial parents for section 15 purposes;
no section 15 violation

Egan v. Canada
[1995] 2 S.C.R. 513
(5-4 on section 15 issue; 5-4
as to result)

Old Age Security Act:  denial of spousal allowance based
on opposite-sex definition
of “spouse”

sexual orientation (analogous)

Sexual orientation recognized as analogous ground for section 15 purposes; section 15 violation justified under
section 1

Miron v. Trudel
[1995] 2 S.C.R. 418
(5-4 on section 15 issue)

Denial of accident benefits to common law spouses under provincial legislation-based automobile insurance policy

marital status (analogous)

Marital status recognized as analogous ground for section 15 purposes;
section 15 violation not justified under section 1

Adler v. Ontario
[1996] 3 S.C.R. 609
((1) 7-2 on section 15 issue,
8-1 as to result; (2) 7-2 on section 15 issue)

Education Act of Ontario: 
(1) absence of funding to minority religion-based independent schools; (2) absence of school health support services to
children with disabilities
attending such schools

religion (enumerated)
(infringement of subsection 2(a) freedom of religion guarantee also claimed unsuccessfully)

Among justices concurring on section 15 issue for different reasons, five concluding effect of section 93 of Constitution Act, 1867 to insulate both claims from Charter scrutiny, two finding against section 93-based immunity but concluding distinctions alleged not arising under legislation; no section 15 violation

Cooper v. Canada
(Human Rights Commission) Bell
v. Canada (Human Rights Commission)
[1996] 3 S.C.R. 854
(5-2 as to result)

Canadian Human Rights Act:  provision under which termination of employment at normal age of retirement for industry not a discriminatory practice

age (enumerated)

Neither Canadian Human Rights Commission nor tribunal appointed by it mandated to consider questions of law; both therefore without jurisdiction to subject limiting provisions of CHRA to constitutional scrutiny or to determine their constitutional validity;
N.B.:  no discussion or decision on merits
of section 15 case

Eaton v. Brant Co. Board
of Education

[1997] 1 S.C.R. 241
(unanimous)

Decision of the Ontario Special Education Tribunal confirming special education placement
of a disabled child, contrary to parents’ wishes

disability (enumerated)

In this case, placement consistent with child’s educational interests and needs, not imposing burden or withholding benefit;
no section 15 violation

Benner v. Canada
(Secretary of State)

[1997] 1 S.C.R. 358
(unanimous)

Citizenship Act:  provisions distinguishing between access to Canadian citizenship for children born abroad of Canadian mothers and those born of Canadian fathers prior to February 1977, with former subjected to more onerous process and requirements

sex (enumerated)

Ongoing status created by 1977 legislation subject to Charter scrutiny; provisions maintaining stereotype favouring paternal over maternal lineage in violation of section 15 and not justified under section 1

Eldridge v. British Columbia (Attorney General)
[1997] 3 S.C.R. 624
(unanimous)

Hospital Insurance Act and Medical and Health Care Services Act of British Columbia:  failure of hospitals and Medical Services Commission to provide sign language interpretation to hearing-impaired patients as medically required service

disability (enumerated)

Here Charter applicable to hospitals acting as agents for government policy; although neither statute infringing section 15, discretionary refusal of hospitals and Commission acting pursuant
to legislation to provide interpretation where necessary for effective communication in violation of section 15 and not saved by section 1

Vriend v. Alberta
[1998] 1 S.C.R. 493
(unanimous on constitutional issues; 7-1 on remedy issue)

Individual’s Rights Protection Act of Alberta:  exclusion of sexual orientation as a prohibited ground of discrimination

sexual orientation (analogous)

Deliberate exclusion of sexual orientation resulting in serious discriminatory effects, including denial of access to remedial procedures and psychological harm from implicit message that homosexuals not worthy of protection:  legislation in violation of section 15 and not saved by section 1

Vancouver Society
of Immigrant and Visible Minority Women
v. M.N.R.
[1999] 1 S.C.R. 10
(unanimous re section 15 violation among judgesconsidering issue)

Income Tax Act:  denial of registration as a charitable organization

race, sex, national/ethnic origin (enumerated), immigrant status (non-enumerated)

Rejection of Society’s application a consequence of inability to bring itself within established guidelines owing
to its purposes and activities, not of the characteristics of beneficiaries; no section 15 iolation:  constitutional argument raised by
interveners secondary

Law v. Canada (Minister of Employment and Immigration)
[1999] 1 S.C.R. 497
(unanimous)

Canada Pension Plan:  survivor benefit ineligibility of able-bodied surviving spouses under the age of 35 and without dependent children

age (enumerated)

Given CPP aim to provide long-term financial security, and greater ability of relatively advantaged able-bodied younger surviving spouses without dependent children to overcome long-term need, age provisions not imposing substantive disadvantage in long term; no offence to human dignity, no section 15 violation

M. v. H.
[1999] 2 S.C.R. 3
(8-1 on section 15 issue)

Family Law Act of Ontario:  same‑sex partners unable to access Part III spousal support scheme owing to opposite-sex definition
of “spouse”

sexual orientation (analogous)

Definition excluding same-sex partners from benefits of scheme implying their inability to form intimate, economically interdependent relationships, and offending their human dignity:  legislation in violation of section 15 and not saved by section 1

Corbiere v. Canada (Minister of Indian and Northern Affairs)
[1999] 2 S.C.R. 203
(unanimous)

Indian Act:  denial to off-reserve members of right to vote in band elections

aboriginality-residence/
off-reserve band member status (analogous)

Denial of right to participate fully in band governance presuming off-reserve band members less deserving than those living on-reserve, thus engaging dignity aspect of section 15:  legislation in violation of section 15 and not saved by section 1

Winko v. British Columbia (Forensic Psychiatric Institute)
[1999] 2 S.C.R. 625
(unanimous)

Criminal Code:  differential treatment of persons not criminally responsible (NCR) for criminal act owing to mental illness under
Part XX.1

mental disability (enumerated)
(infringement of section 7 right not to be deprived of security/ liberty except in accordance with fundamental justice also claimed unsuccessfully)

Under Part XX.1, every NCR accused treated with regard to particular situation, individualized scheme constituting the essence of equal treatment; no real burden imposed,
no section 15 violation

Orlowski v. British Columbia (Forensic Psychiatric Institute)
[1999] 2 S.C.R. 733

Bese v. British Columbia (Forensic Psychiatric Institute)
[1999] 2 S.C.R. 722

R. v. LePage
[1999] 2 S.C.R. 744
(all unanimous)

see Winko

see Winko

Winko applied

Delisle v. Canada
(Deputy Attorney General)

[1999] 2 S.C.R. 989
(unanimous re section 15 among judges
considering issue)

Public Service Staff Relations Act and Part I of Canada Labour Code:  exclusion of RCMP members from statutory regimes

employment status
(non-enumerated)
(infringement of
subsections 2(b) freedom of expression and 2(d) freedom of association guarantees also claimed unsuccessfully)

In circumstances of case, distinction as to employment not established as analogous ground, exclusion from trade union regime not adversely affecting dignity of RCMP members;
no section 15 violation:  primarily a subsection 2(d) case

Granovsky v. Canada
(Minister of Employment
and Immigration)

[2000] 1 S.C.R. 703
2000 SCC 28
(unanimous)

Canada Pension Plan:  exclusion from “drop-out” provision altering contribution requirement for persons with severe permanent disabilities

disability (enumerated)

Although different treatment under drop-out provision not assisting temporarily disabled, Parliament’s targeting of group to be subsidized an unavoidable feature of contributory benefits plans such as CPP; exclusion not demeaning to appellant’s dignity, no section 15 violation

Lovelace v. Ontario
[2000] 1 S.C.R. 950
2000 SCC 37
(unanimous)

Exclusion of “non-band” Aboriginal groups in Ontario from First Nations Fund providing shares in Casino Rama proceeds to Ontario First Nations under Ontario Casino Corporation Act

grounds claimed: 
(1) race/ethnicity (enumerated); (2) non-registration under
Indian Act (non-enumerated)
N.B.:  Court did not rule on issue of applicable ground

Exclusion from First Nations Fund not established as demeaning to dignity of excluded groups; casino project corresponding to needs of included First Nations and not designed to meet similar needs of excluded groups; recognition of important differences between groups legitimate, no section 15 violation

Little Sisters Book and Art
Emporium
v. Canada
(Minister of Justice)

[2000] 2 S.C.R. 1120
2000 SCC 69
(unanimous on section 15 issue)

Customs Act and Customs Tariff:  adverse effects of incorporated Criminal Code definition of “obscenity” and of related administrative review process on importation of gay
and lesbian material

sexual orientation (analogous) (with the exception of unconstitutional reverse onus provision, infringement of subsection 2(b) freedom of expression guarantee claimed unsuccessfully (6-3))

Although Act and Tariff themselves constitutional, Customs officials’ adverse treatment in application of legislation, targeting appellants at administrative level, prejudicial and demeaning to their dignity:  section 15 violation not capable of section 1 justification as
not “prescribed by law”

Lavoie v. Canada
[2002] 1 S.C.R. 769
2002 SCC 23
(7-2 on section 15 issue)

Public Service Employment Act:  distinction in opportunity to access public service employment

citizenship (analogous)

Although legislation limiting employment options for non‑citizens having marginalizing effect, implicating person’s livelihood and dignity, objectives of distinction sufficiently important to justify limits on equality:  section 15 violation justified under section 1

Nova Scotia
(Attorney General)
v. Walsh
[2002] 4 S.C.R. 325
2002 SCC 83
(8-1 on section 15 issue)

Matrimonial Property Act of Nova Scotia:  exclusion of unmarried cohabiting opposite sex couples from legislative scheme providing for equal division of matrimonial property

marital status (analogous)

Extension of the MPA onlyto married persons reflecting differences between married and unmarried relationships and respecting personal autonomy, no constitutional requirement that protections of the MPA be extended to unmarried cohabitants,
no section 15 violation

Gosselin v. Québec
(Attorney General)

[2002] 4 S.C.R. 429
2002 SCC 84
(5-4 on section 15 issue)

Regulation respecting social aid (1984 Social Aid Act):  distinction in base amount of social assistance paid to recipients under 30 who did not participate in government training programs

age (enumerated) (infringement of section 7 right not to be deprived of security/liberty except in accordance with fundamental justice also claimed unsuccessfully)

Plaintiff failing to provide evidence of discrimination, legislation aimed at averting long-term dependency and providing training, no violation of essential human dignity of welfare recipients under 30, no section 15 violation

Trociuk v. British Columbia
(Attorney General)

[2003] 1 S.C.R. 835
2003 SCC 34
(unanimous)

Vital Statistics Act of B.C.: exclusion of father’s particulars from child’s birth registration and resulting denial of participation in choice of surname

sex (enumerated)

Absolute exclusion from birth registration and process of naming affecting significant interests of concerned fathers in way harmful to dignity:  section 15 violation not justified under section 1

Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur
[2003] 2 S.C.R. 504
2003 SCC 54
(unanimous)

Nova Scotia Workers’ Compensation Act and (Multi-faceted Pain Services) Program Regulations:  exclusion of workers with chronic pain from regular workers’ compensation system

disability (enumerated)

Denial of benefits or of access to system available to other disabled workers without regard to actual needs demeaning to dignity of chronic pain sufferers: 
section 15 violation not justified under section 1

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
[2004] 1 S.C.R. 76
2004 SCC 4
(6-3 on section 15 issue)

Criminal Code:  justification of parents’ or teachers’ use of reasonable corrective force against children

age (enumerated)

Although children vulnerable and their physical integrity
an important interest, decriminalization of minimal corrective force only sensitive to children’s need for safe environment, not arbitrarily demeaning,
no section 15 violation

Hodge v. Canada (Minister
of Human Resources Development)

[2004] 3 S.C.R. 357
2004 SCC 65
(unanimous)

Canada Pension Plan:  lack of entitlement of “separated” common law spouses to survivor pensions

marital status (analogous)

In absence of cohabitation, spousal relationship terminated, CPP providing for disentitlement of former spouses, whether married or common law, no distinction established,
no section 15 violation

Newfoundland (Treasury Board) v. N.A.P.E.
 [2004] 3 S.C.R. 381
2004 SCC 66
(unanimous)

Newfoundland Public Service Restraint Act:  deferral of pay equity wage increases, extinguishment of arrears for female health care sector workers

sex (enumerated)

Despite section 15 violation, exceptional fiscal measures adopted by province in response to exceptional financial crisis justified
under section 1

Auton (Guardian ad litem of) v. British Columbia (Attorney General)
[2004] 3 S.C.R. 657
2004 SCC 78
(unanimous)

British Columbia Medicare Protection Act:  lack of funding for medically required “non-core” ABA/IBI therapy for autistic children

disability (enumerated)
(infringement of section 7 right not to be deprived of security/liberty except in accordance with fundamental justice, not fully argued, also claimed unsuccessfully)

Exclusion of non-core services anticipated feature of partial health plan provided by CHA and MPA, benefit claimed not provided by law, claimants not denied benefit made available to comparator group, no section 15 violation

Canada (Attorney General) v. Hislop
2007 SCC 10
1 March 2007
(unanimous)

Canada Pension Plan:  differential treatment in availability of CPP survivor benefits to same-sex surviving spouses

sexual orientation (analogous)

Statutory distinctions restricting same-sex spouses’ eligibility for and access to arrears of CPP survivor benefits in violation of
section 15 and not saved by section 1;
notwithstanding declaration of nullity, retroactive Charter relief unwarranted in this case


Endnotes

  1. [1989] 1 S.C.R. 143.
  2. Most of the appellate and other lower courts across the country had used this test since the coming into effect of the provision in April 1985.
  3. See text under “Subsection 15(2)” heading for a brief review of the Court’s interpretation of that provision.
  4. The “enumerated or analogous grounds” approach endorsed by the Court in Andrews was taken by the Federal Court of Appeal in Smith, Kline & French Laboratories v. Canada (Attorney General), [1987] 2 F.C. 359.
  5. [1989] 1 S.C.R. 1296.
  6. See text accompanying notes 11 to 14.
  7. This criterion was also the subject of criticism but it, too, remained an important factor routinely referred to in subsequent lower court cases.  Some have favoured a de-emphasis of notions of discreteness and insularity which, if considered determinative, might unduly restrict the scope of section 15.  See text accompanying notes 11 to 14.
  8. [1991] 1 S.C.R. 933.
  9. See for example, Symes v. Canada, [1993] 4 S.C.R. 695, at 753-58.
  10. Thibaudeau v. Canada, [1995] 2 S.C.R. 627; Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418.
  11. Note 10.
  12. Note 5.
  13. This principle was restated in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
  14. Miron, note 10, par. 131.  This statement was taken up in the Court’s subsequent unanimous ruling in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358.  The determining role of the human dignity concept for purposes of section 15 analysis was confirmed in Law v. Canada(Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
  15. In Adler v. Ontario, [1996] 3 S.C.R. 609, only two members of the Court, in dissent, and representing two of the three analyses outlined in the “trilogy,” undertook a full section 15 analysis.  In the Court’s unanimous decision in Eaton v. Brant Co. Board of Education, [1997] 1 S.C.R. 241, at par. 62, Sopinka J. acknowledged that “there has not been unanimity” with respect to section 15 principles, but found the disability issue before the Court could be resolved “on the basis of principles in respect of which there is no disagreement.”  Similarly, Iacobucci J. in Benner, note 14, having noted the three trilogy approaches to section 15, applied a largely traditional approach to the circumstances of the case for a unanimous Court, adding at par. 67 that “the result in this appeal is in my opinion the same no matter which [of the three tests] is applied.”  See also Eldridge, note 13, and Vriend v. Alberta, [1998] 1 S.C.R. 493.
  16. Note 14.
  17. (1996), 135 D.L.R. (4th) 293 (F.C.A.).
  18. In other words, whether the law results in adverse effect discrimination.  See note 29.
  19. See also text accompanying notes 22 to 25.
  20. In Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37, the Court recognized that both the Aboriginal appellants and the First Nations respondents were disadvantaged.  It extended this factor to situations in which the excluded group is also disadvantaged, so as to ensure the analysis remains focused on whether the exclusion infringes subsection 15(1) and to prevent reducing that analysis to a balancing of relative disadvantage.
  21. [2003] 1 S.C.R. 835, 2003 SCC 34, par. 20, 28.
  22. In Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28, par. 45-50, it emphasized that “identification of the group in relation to which [an] appellant can properly claim ‘unequal treatment’ is crucial,” and substituted a different “comparator group” for the group identified by the appellant.  See also Lovelace v. Ontario, note 20, par. 62-64.
  23. [2004] 3 S.C.R. 357, 2004 SCC 65.
  24. In Canada (Attorney General) v. Hislop, 2007 SCC 10, 1 March 2007, par. 37-38 and 59-60, the Court found that it was the government party whose section 15 arguments relied on inappropriate comparator groups.
  25. Hodge, note 23, par. 22-23.  See also Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78.
  26. [1990] 2 S.C.R. 906.
  27. See also Gosselin v. Québec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84, and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4, both of which involved unsuccessful claims of discrimination on the basis of age.  In other cases in which the enumerated ground was age, however, the Court found section 15 infringements on the basis of little analysis:  see McKinney v. University of Guelph, note 28, Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission), [1991] 2 S.C.R. 22.
  28. [1990] 3 S.C.R. 229.
  29. Direct discrimination may arise when the challenged law or other government activity contains an explicit distinction based on an enumerated or analogous ground.  Adverse effect discrimination may occur when an apparently neutral rule nevertheless has a prejudicial impact on a group entitled to the benefit of section 15 protection.
  30. Note 8.
  31. Note 9.
  32. Note 15.  See also Reference re Bill 30, An Act to amend the Education Act, [1987] 1 S.C.R. 1148.
  33. Note 14.
  34. Note 15.
  35. See also Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54.
  36. Note 13.  See also Vriend, note 15.
  37. Note 35.
  38. See also Vriend, note 15; M. v. H., [1999] 2 S.C.R. 3.
  39. Note 25.
  40. Note 24.
  41. Note 20.
  42. [1986] 1 S.C.R. 103.
  43. The “deleterious” vs. “salutary” effects element was articulated in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at 889.
  44. See Irwin Toy Ltd. v. Québec (A.G.), [1989] 1 S.C.R. 927 (provincial regulation limiting advertising directed to children); Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 (adjudicator’s order requiring employer to provide positive letter of reference to wrongfully dismissed employee); R. v. Keegstra, [1990] 3 S.C.R. 697 (Criminal Code provision prohibiting the dissemination of hate propaganda); R. v. Butler, [1992] 1 S.C.R. 452 (Criminal Code provision prohibiting the dissemination of obscenity); Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69 (application of Butler “obscenity” test to gay and lesbian material).  For other contexts in which a similar reasoning has been applied, see R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (freedom of religion:  retail employees); Public Service Alliance of Canada et al. v. The Queen in right of Canada et al., [1987] 1 S.C.R. 424 (freedom of association:  workers not party to a P.S.A.C. challenge); Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 (security of the person:  disabled persons).
  45. The “competing groups”–“singular antagonist” distinction is set out in Irwin Toy and has been relevant to the section 1 findings in a number of subsequent cases, including section 15 decisions such as McKinney.  In the Egan decision, for example, Sopinka J., in his section 1 analysis, commented that the Old Age Security Act issue in that case “represents the kind of socio-economic question in respect of which the government is required to mediate between competing groups rather than being the protagonist of an individual.  In these circumstances, the Court will be more reluctant to second-guess the choice which Parliament has made.”  It is worth noting, however, that flexible application of the minimal impairment branch of the Oakes test has not necessarily been limited to cases in which the protection of vulnerable groups or complex socio-economic policies have been at issue.  Nor has the distinction between “competing groups” cases and “singular antagonist” cases necessarily been determinative for purposes of deciding when to apply the flexible approach.
  46. McKinney, note 28.
  47. Egan, note 10.
  48. Ibid.
  49. See, for example, McKinney, note 28, Egan, note 10, Rodriguez, note 44.
  50. Note 10.
  51. Note 15, par. 122.  See also M. v. H., note 38, par. 128-130.
  52. [2004] 3 S.C.R. 381, 2004 SCC 26.
  53. Ibid., par. 103.
  54. Ibid., par. 105.
  55. Ibid., par. 111.
  56. Ibid., par. 114.
  57. Ibid., par. 116.
  58. Note 35, par. 97.
  59. Note 52, par. 69.
  60. Ibid., par. 72.
  61. Ibid., par. 83-84.  See also Eldridge, note 13, par. 85-87.
  62. Vriend, note 15, par. 109-111.  This refinement of the “pressing and substantial objective” component of the Oakes test was reiterated in M. v. H., note 38, par. 82.
  63. Note 44.
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