Section 15 – Equality rights

Provision

15. (1) 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.

(2) Subsection (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.

Similar provisions

Equality rights provisions can be found in article 1(b) of the Canadian Bill of Rights as well as the Canadian Human Rights Act and similar provincial and territorial legislation. The Charter section 15 framework for analysis described here is not directly applicable to these provisions, although there is often cross-referencing between Charter and human rights law jurisprudence (see generally: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3).

The following international instruments, which are binding on Canada, include Similar provisions: articles 2 and 26 of the International Covenant on Civil and Political Rights; article 2(2) of the International Covenant on Economic, Social and Cultural Rights; article 2 of the Convention on the Rights of the Child; and article II of the American Declaration of the Rights and Duties of Man; International Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Elimination of All Forms of Discrimination Against Women; article 5 of the Convention on the Rights of Persons with Disabilities.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include Similar provisions: articles 1, 2 and 7 of the Universal Declaration of Human Rights; article 24 of the American Convention on Human Rights; article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; the Fifth and Fourteenth Amendments of the Constitution of the United States of America.

Purpose

As articulated by the Supreme Court in its first section 15 case and recently reaffirmed, “[t]he promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration” (R. v. Kapp, [2008] 2 S.C.R. 483 at paragraph 15 citing Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at 171, per McIntyre J.). See also more recently Quebec (A.G.) v. A, 2013 SCC 5, at paragraph 417, where McLachlin C.J., concurring with the majority on section 15, noted that discrimination perpetuates or promotes “the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.”

Analysis

1. Application

Section 15 applies to government action in the form of legislation, regulations, directions, policies, programs, activities and the actions of government agents carried out under lawful authority. It has been found to apply to:

  • Collective agreements with government (Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570);
  • The common law (R. v. Swain, [1991] 1 S.C.R. 933);
  • Decisions of government-delegated decision-makers (the failure to provide sign language interpretation to deaf patients to ensure effective communication with their physician as an aspect of the public funding of medical services) (Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624);
  • Programs developed in partnership with third parties (Casino Rama project with Ontario First Nations) (Lovelace v. Ontario, [2000] 1 S.C.R. 950);
  • Administrative action (e.g., the implementation of an otherwise non-discriminatory statute in a discriminatory way by government officials) (Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120).

In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, a majority of the Court found that universities are not part of government.

Section 15 does not impose positive obligations on governments to counteract inequalities in Canadian society (Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657). However, if government does act, it must not discriminate (Eldridge, supra; Vriend v. Alberta, [1998] 1 S.C.R. 493). Subsection 15(2) is aimed at enabling government action intended to combat discrimination proactively through affirmative measures (Kapp, supra, at paragraphs 25, 33 and 37; see also Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, at paragraphs 40-1, hereafter Cunningham).

The guarantee in section 15 applies to “[e]very individual”, which the Supreme Court has interpreted to exclude estates of individuals (Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, at paragraphs 72-73 — but note paragraphs 74-77 dealing with timing of the individual’s death relative to bringing the claim). Although no majority of the Court has ruled on corporations’ standing under section 15, the reasoning in Hislop, as well as lower court decisions, suggest that they do not have section 15 rights (Hislop, supra at paragraph 73).

2. Retroactivity

Section 15 of the Charter does not apply to discrete events that were completed before the section came into effect on April 17, 1985 (Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (C.A.)). However, it may apply to government action post-1985 that results in differential treatment based on a continuing status established prior to that date (Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358).

3. General approach

Since its first section 15 case through to its more recent pronouncements, the Supreme Court has consistently characterized the guarantee of equality as substantive. That is, the Court has underscored that “the concept of equality does not necessarily mean identical treatment and that the formal ‘like treatment’ model of discrimination may in fact produce inequality.” (Kapp, supra, at paragraph 15 citing Andrews, supra, at 165; see also Withler v. Canada, [2011] 1 S.C.R. 396 at paragraph 39). This is to be contrasted with the Court’s decontextualized and formal approach to equality under the Canadian Bill of Rights (see for instance Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183 where the Supreme Court cited with approval the statement that “[i]f section 46 treats unemployed pregnant women differently from other unemployed persons, be they male or female, it is…because they are pregnant and not because they are women” — this statement was later expressly disavowed in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219).

In Law v. Canada [1999] 1 S.C.R. 497 (hereafter Law), the Court synthesized its approach into a three-step framework, which it rearticulated in Kapp, supra, as comprising two steps. The test can be stated as:

  1. Does the law create a distinction based on an enumerate or analogous ground?
  2. Is the distinction discriminatory? (Kapp, supra at paragraph 17; see also Withler, supra at paragraph 30; Quebec v. A, supra at paragraphs 324 and 418; and Kahkewistahaw First Nation v. Taypotat, [2015] 2 S.C.R. 548, hereafter Taypotat).

After the claimant has satisfied the first step of the subsection 15(1) analysis, it is open to the defendant (government) to establish that the impugned distinction qualifies under subsection 15(2) as an affirmative action-type measure, designed to ameliorate the conditions of a historically disadvantaged group. If the requirements of subsection 15(2) (elaborated below) are met by the government, this ends the analysis as there is no discrimination within the meaning of subsection 15(1).

  • The focus of subsection 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping.

  • The focus of subsection 15(2) is on enabling governments to pro-actively combat discrimination.

In addition to being purposive and substantive, the section 15 analysis is fact-driven, highly contextual and comparative.

The role of comparison in the section 15 analysis has evolved. Prior to Kapp, supra, a number of Supreme Court decisions paid considerable attention to the specifics of framing the appropriate comparator group. However, in Kapp, the Court noted concerns over a formalistic and “artificial” approach to comparisons (at paragraph 22), and in Withler, supra, the Court rejected the “mirror comparator” group approach used in some earlier decisions (Auton, supra, at paragraphs 48-55; see also Hodge v. Canada, [2004] 3 S.C.R. 357). The “mirror comparator” approach required claimants to identify comparators who are “…like the claimants in all ways save for the characteristics relating to the alleged ground of discrimination” (Auton, supra at paragraph 55). The SCC in Withler explicitly eliminated the “mirror comparator” requirement. At the same time, it confirmed that section 15 is inherently comparative in that claimants have to establish distinctive treatment (which presupposes comparison with others) based on a prohibited ground (paragraph 62).

4. Burden of proof

The burden of proving a limit of section 15 lies with the claimant (Law, supra at paragraphs 76-83). The amount and nature of the evidence required can vary greatly depending on the nature of the claim. Proof of legislative intent to discriminate is not required; the claimant must establish that either the purpose or the effect of the law or action is discriminatory (Law, supra at paragraph 80). In relevant cases, it will be for the government to demonstrate that a measure falls within the scope of subsection 15(2) and is therefore not discriminatory (Kapp, supra at paragraphs 39-41).

While the courts generally require evidentiary support for a claim of discrimination, as a practical matter, the claimant does not have to adduce evidence to prove every element of the analysis (Law, supra at paragraph 82). Nor does the claimant have to adduce data or other sophisticated social science evidence not generally available in order to establish a limit of subsection 15 (1); where appropriate, the courts may rely on judicial notice or logic (Law, supra at paragraph 77).

However, the claimant does have the burden of ensuring that the court is aware of the relevant historical, social, political and legal context of the claim (Law, supra at paragraph 83). An equality rights claim may fail if the court finds that the evidentiary record is inadequate, particularly where the claim is premised on the court’s acceptance of societal patterns not substantiated by statistical or social science evidence (Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429).

Evidentiary challenges for claimants may be heightened in claims of “adverse effect” or “adverse impact” discrimination. In such cases, it is alleged that a particular law or rule, while neutral on its face, has a disproportionate adverse impact on a group characterized by a prohibited (enumerated or analogous) ground of discrimination (Eldridge, supra at paragraphs 60-63). To date, few decisions of the Supreme Court have dealt with adverse effect discrimination, perhaps because of the significant practical difficulties involved in adducing sufficient evidence to demonstrate adverse impacts on particular groups, such as women (Symes v. Canada, [1993] 4 S.C.R. 695). Where adverse impact claims have succeeded under the Charter, they have been based on self-evident societal patterns amenable to judicial notice, such as the disadvantage faced by deaf persons seeking to access medical services without the aid of sign language interpretation (Eldridge, supra). However, where the adverse impact alleged is not apparent and immediate, there must be evidence of a link between the law and the adverse impact on the basis of an enumerated or analogous ground (Taypotat, supra at paragraphs 33-34).

5. Two-part framework for analysis under subsection 15(1)

The subsection 15 (1) framework for analysis involves two steps:

(i) Does the law create a distinction based on an enumerated or analogous ground?

A distinction may be made expressly by a law or government action (e.g., a benefit provided only to persons over 65 years of age) or may arise due to the adverse effect of a law or government action on an individual claimant because of his/her particular personal characteristic(s) (e.g., a rule that requires all employees to work on Saturdays but not on Sundays, which affects individuals differently depending on their religious affiliation). Another way of determining if there has been an adverse distinction is to ask whether the government has failed to take into account the already disadvantaged position of a group within Canadian society resulting in substantively different treatment based on personal characteristics (e.g., failure to provide government documents in alternative formats accessible to persons with visual impairments). The issue of whether the government intended to cause the disadvantageous distinction is not relevant to the inquiry. This part of the analysis focuses on the comparative effect of government action on the claimants and other groups.

The first inquiry (whether the law creates a distinction based on a ground) can be seen as imposing a threshold requirement in that a claim will fail if the claimant cannot demonstrate that a government law or action withholds a benefit that is provided to others or imposes a burden that is not imposed on others, based on an enumerated or analogous ground (Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698; Auton, supra).

With respect to establishing that the distinction is based on a prohibited ground, the list of grounds “enumerated” in subsection 15 (1) (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) is not closed and courts may identify additional prohibited grounds analogous to those listed. Analogous grounds are similar to the enumerated grounds in that they identify a basis for stereotypical decision-making or a group that has historically suffered discrimination. Analogous grounds describe personal characteristics that are either immutable (characteristics that people cannot change) or constructively immutable (characteristics that are changeable only at unacceptable cost to personal identity). Once a ground has been found to be analogous, it will always be a ground in the future (Corbiere, supra, at paragraphs 13-15 and 58-62).

To date, the Supreme Court has held that the following are grounds analogous to those enumerated in subsection 15 (1):

In Cunningham v. Alberta (Aboriginal Affairs and Northern Development),2009 ABCA 239, the Alta. Court of Appeal found that registration as a status Indian is an analogous ground, though the Supreme Court declined to rule on the issue, deciding that there was no discrimination in any event. In Taypotat, supra, without there having been argument or evidence from the parties, the Supreme Court was unprepared to accept that “Aboriginality-residence” encompasses residence on reserve based solely on “a simple mirror inference” from the fact of residence off reserve being protected (paragraph 26). However, this does not preclude a claimant in the future establishing that on-reserve residence constitutes an analogous ground.

It is also important to look to lower court decisions as well as to grounds set out in human rights legislation for other possible analogous grounds, such as family status.

The Supreme Court has held that the following are not analogous grounds:

  • Place or province of residence (Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6; R. v. Turpin, [1989] 1 S.C.R. 1296);
  • Professional status, occupational status or employment by a particular organization has not been recognized as an analogous ground (Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Baier v. Alberta, [2007] 2 S.C.R. 673; Health Services and Support-Facilities Subsector Collective Bargaining Association v. British Columbia, [2007] 2 S.C.R. 391 at paragraph 165). However, both the majority and Deschamps J.’s concurring reasons in Ontario v. Fraser, [2011] 2 SCR 3 seem to open the door slightly wider for claimants to assert that distinctions based on occupational status unjustifiably limit section 15;
  • substance orientation” such as marihuana use as a personal characteristic (R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571).

While there is still no Supreme Court guidance on point, lower courts have generally found that poverty in and of itself is not an analogous ground (see generally: Alcorn v. Canada (Commissioner of Corrections) (1999), 163 F.T.R. 1, aff’d. 2002 FCA 154, as one’s economic condition is not akin to the “immutable characteristics” enumerated in subsection 15(1)). See, however, Falkiner v. Ontario (Director, Income Maintenance Branch, Ministry of Community and Social Services) (2002), 212 D.L.R. (4th) 633 (Ont. C.A.), which found that “receipt of social assistance”, intersecting with grounds of sex and marital status, was an analogous ground. In addition, lower courts have found that prisoner status is not an analogous ground (see:  Alcorn, supra; Sauvé v. Canada, [2000] 2 F.C. 117, affirmed on this point by SCC minority [2002] 3 SCR 519).

The Supreme Court has recognized that some grounds of discrimination are “embedded” in others and that discrimination can be based on multiple or intersecting enumerated and analogous grounds (Law, supra; Gosselin, supra). There can also be discrimination as between members of a group (e.g., among persons with different types of disabilities — see: Nova Scotia Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] 2 S.C.R. 504 (hereafter “ Martin; Laseur”) at paragraphs 76-81).

Pregnancy, which is distinct from but fundamentally interrelated with gender, is an example of a personal characteristic that does not apply to all members of the group in question (women) at any given time, which has been held to be the basis for discrimination under human rights legislation. (See generally: Brooks, supra). Embedded analogous grounds may be necessary to permit meaningful consideration of intra-group discrimination (Corbiere, supra at paragraph 15).

Note that when the government enacts legislation aimed at remedying previous inequality or disadvantage, it may still unjustifiably limit section 15 if it does not fully remediate that inequality, or if it introduces another inequality. The fact that legislation is remedial does not immunize it from Charter review (Hislop, supra at paragraph 39).

Also note that where the government has created an affirmative action or targeted ameliorative program aimed at improving the situation of a particular historically disadvantaged group (e.g., programs targeted at First Nations, Inuit or Métis groups or a subset thereof), the government may argue that the program in question falls within the scope of subsection 15(2). The 15(2) defense is raised at this stage of the analysis without needing to go to step “2” of the subsection 15(1) analysis. (See the detailed discussion of subsection 15(2) below).

(ii) Is the distinction discriminatory

This second stage is generally aimed at determining whether the distinction in question amounts to discrimination in the substantive sense. While in Law, supra, the Supreme Court approached this question by assessing the law’s impact on the claimant’s “essential human dignity”, it acknowledged in Kapp, supra, that “several difficulties have arisen from the attempt…to employ human dignity as a legal test” (paragraph 21). Accordingly, this stage of the analysis was refocused on the guiding concepts from Andrews, supra of “the perpetuation of disadvantage and stereotyping as the primary indicators of discrimination” (Kapp, supra at paragraph 23; Withler, supra at paragraph 30; Quebec v. A., supra at paragraphs 324 and 418). More recently, the Supreme Court has suggested a further shift in emphasis at this stage of the inquiry to now focus on whether a distinction has “the effect of perpetuating arbitrary disadvantage on the claimant” (Taypotat, supra at paragraph 16; Quebec v. A., supra at paragraph 331). These concepts are not themselves a test but rather “useful guides” informing the contextual inquiry into whether there has been discrimination in the substantive sense (Quebec v. A., supra at paragraphs 325-331, and 418).

The Supreme Court has repeatedly underscored the importance of addressing the broader context in the substantive equality analysis (Turpin, supra at 1331; Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222 at paragraph 193; Withler, supra at paragraph 43). In Law, it elaborated four contextual factors which help guide the analysis at this stage: (a) pre-existing disadvantage, if any, of the claimant group; (b) degree of correspondence between the differential treatment and the claimant group’s reality; (c) whether the law or program has an ameliorative purpose or effect (largely, but not wholly subsumed, since Kapp, supra, within the subsection 15(2) analysis); and (d) the nature of the interest affected. While the list of factors is not closed, none have been added since Law. The Court has repeatedly emphasized that not all factors will be relevant in every case and no one factor is determinative (Law, supra at paragraph 62; Lavoie, supra at paragraph 46; Martin; Laseur, supra at paragraph 85; Withler, supra at paragraphs 38 and 66; Quebec v. A., supra at paragraph 331). The factors should not be read literally or mechanically, “but as a way of focusing on the central concern of section 15 — combating discrimination, defined in terms of perpetuating disadvantage and stereotyping” (Kapp, supra at paragraph 24; Quebec v. A., supra at paragraph 331).

The Supreme Court has elaborated on the role played by each factor:

(a) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue

Section 15 has a significant remedial component (Andrews, supra at 171). Therefore, one of the most compelling factors is the impact of the governmental action on individuals or groups who are vulnerable, the object of stereotypes, disadvantaged or members of "discrete and insular minorities" (Law, supra at paragraphs 63-68). A member of a group that historically has been more disadvantaged in Canadian society is less likely to have difficulty in demonstrating discrimination (Law, supra at paragraph 68). When considering intra-group distinctions within a larger disadvantaged group (for example, as between status and non-status Indians, as determined pursuant to the Indian Act), there is no requirement that the claimant group be the more disadvantaged; there is no “race to the bottom” (Lovelace, supra at paragraph 69). Where no such unique disadvantage is established, as distinct from the broader group which provides the basis for comparison, this factor does not play a significant role (Gosselin, supra; Martin; Laseur, supra at paragraph 88).

Once a group has been found to suffer pre-existing disadvantage, this will be “settled law” which can be relied on in subsequent cases no matter what the nature of the impugned law is (Lavoie, supra at paragraph 45).
This factor is not determinative of an unjustifiable limit of subsection 15(1). A member of any group, disadvantaged or not, may successfully bring a subsection 15(1) claim if he or she establishes a distinction on an enumerated or analogous ground that amounts to substantive discrimination. It is not necessary to show historical disadvantage in order to establish discrimination (Law, supra at paragraph 65; Trociuk v. British Columbia (Attorney General), [2003] 1 S.C.R. 835).

(b) The correspondence, or lack thereof, between the grounds on which the claim is based and the actual needs, merits, capacities or circumstances of the claimant or others

In many cases, this is the key contextual factor. The focus is on how closely the government law or action corresponds to the claimants’ particular circumstances in comparison with others who are either receiving the benefit or are not subject to the burden of the impugned measure. However, it is important to not slip into a formalistic “similarly situated” analysis that would uphold a law because it treats all individuals within a group identically, regardless of whether the group as a whole is being disadvantaged, relative to other groups (See the discussion of Bliss, supra, in Andrews, supra at 167-8).

This factor is intended to get at the central question of stereotyping, a hallmark of “substantive discrimination” (Kapp, supra at paragraph 23; Withler, supra at paragraph 38). Government actions or laws that take into account the claimant’s actual needs, merits, capacities or circumstances in a way that respects his or her value as a human being are less likely to limit subsection 15(1), whereas those that reflect stereotypical assumptions and decision-making will be suspect (Lavoie, supra at paragraph 44; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at paragraph 88; Martin; Lasseur, supra at paragraph 93; Canadian Foundation for Children, Youth and the Law v. Canada (A.G.), [2004] 1 S.C.R. 76 at paragraphs 58-62). A law that fails to respond to the actual capacities and needs of the claimant may also have the effect of reinforcing or perpetuating arbitrary disadvantage (Taypotat, supra at paragraph 20). Discrimination will be more easily established where government action fails to take into account the claimant’s actual situation (Law, supra at paragraphs 69-71). At the same time, “[p]erfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required” to avoid a finding of discrimination (Gosselin, supra at paragraph 55; Withler, supra at paragraph 71). “The legislator is entitled to proceed on informed general assumptions without running afoul of section 15, provided these assumptions are not based on arbitrary and demeaning stereotypes” (Gosselin, supra at paragraph 56; Law, supra at paragraph 106).

The fact that the claimant shares a need in common with the comparator group is not in itself sufficient to establish a lack of correspondence (Lovelace, supra at paragraph 75). The Supreme Court distinguishes between universal benefit schemes (such as human rights codes (Vriend, supra)) that are underinclusive (because they exclude certain groups) and targeted programs (designed to benefit specific groups (Lovelace, supra)) that are underinclusive. The exclusion of a particular group from a comprehensive or universal program, one which is aimed at alleviating disadvantage experienced more broadly in society, is more likely to be associated with stereotyping and discrimination. Conversely, a benefit program targeting a particular disadvantaged group is less likely to impart the message that excluded groups are less worthy of respect and recognition (Granovsky v. Canada (Minister of Employment and Immigration) [2000] 1 S.C.R. 703; Lovelace, supra).

The Supreme Court has rendered a number of decisions dealing with the enumerated ground of disability (mental or physical). Failure to accommodate the needs of the disabled, thereby leaving individuals without access to the same level of government service or benefits as others, discriminates on the ground of disability (Eldridge, supra; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Martin; Laseur, supra at paragraph 93). As physical or mental disability affects each individual in a unique manner, laws or policies in respect of the disabled that are responsive to the actual circumstances of the individual (e.g., using some form of individualized assessment of needs, capacities and circumstances as opposed to a generalized rule or standard) are less likely to be found to be discriminatory (Winko, supra at paragraph 88-89; Martin; Laseur, supra at paragraph 99).

(c) The ameliorative (purpose or) effects of the impugned law on a more disadvantaged person or group in society

Prior to Kapp, supra, subsection 15(2) was characterized by the Supreme Court as an “interpretive aid” to subsection 15(1) (Lovelace, supra), and it was this third contextual factor that addressed whether the impugned distinction could be attributed to the amelioration of the circumstances of a group more or differently disadvantaged than the claimant (i.e., to deal with affirmative action-type initiatives). Such a purpose or effect would be consistent the with section 15 protection of substantive equality and accordingly would militate against a finding of discrimination (Lovelace, supra; Granovsky, supra).

While much of this inquiry has, after Kapp, supra, been subsumed by the subsection 15(2) analysis (discussed below), the subsection 15(2) analysis considers only ameliorative purpose, not effect. Accordingly, where a program does not meet the requirements of an ameliorative purpose within the meaning of subsection 15(2), it may be possible to argue that its ameliorative effects militate against a finding of discrimination.

In the context of large and complex government benefit schemes (such as employment insurance or the pension benefit scheme impugned in Withler, supra), the Supreme Court has recently used the language of “ameliorative effect” in a different way. While previously, this factor could be used to carve out a non-discriminatory space for “affirmative action” type programs, in Withler, the Court suggests that this factor may be used where the impugned law seeks to balance a multiplicity of interests and thereby has an ameliorative effect on others (paragraph 38).

(d) The nature and scope of the interest affected by the impugned law

All other things being equal, the more severe and localized the economic, constitutional or social consequences of the government law or action for the affected individual or group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of subsection 15(1) (Egan, supra at paragraphs 63-64; Law, supra at paragraph 74). A guiding question is “whether the distinction restricts access to a fundamental social institution, or affects ‘a basic aspect of full membership in Canadian society’” (Law, supra at paragraph 74, citing Egan, supra at 556). Cases involving a “complete non-recognition of a particular group” will have a greater adverse impact than laws that “recognize or accommodate the group, but…in a manner that is simply more restrictive than some would like” (Lovelace, supra at paragraph 88, citing Egan, supra at paragraph 64)

The Supreme Court has identified a number of interests as significant within the context of section 15: spousal relationships (M. v. H., supra),the right of band members to vote in band elections (Corbiere, supra), access to homosexual erotica for gay and lesbian culture (Little Sisters, supra), work or employment (Lavoie, supra), the meaningful participation by parents in the lives of their children (Trociuk, supra), and physical integrity (Canadian Foundation for Children, Youth and the Law, supra). A subsection 15(1) claim relating to an economic interest should generally be accompanied by an explanation as to how the purpose of section 15 is engaged (Martin; Laseur, supra at paragraph 103; see also Granovsky, supra at paragraphs 58, 69-70). It should, however, be noted that claimants need not rebut a presumption that economic disadvantage is unrelated to interests implicating section 15. In many circumstances, economic deprivation may perpetuate prejudice or disadvantage; in other cases, it may be symptomatic of negative attitudes toward the claimants (Martin; Laseur, supra at paragraph 103).

(iii) Framework of analysis for subsection 15(2)

The basic purpose of subsection 15(2) is to shield ameliorative programs from the charge of “reverse discrimination”. That is, subsection 15(2) enables governments to combat discrimination through programs aimed at helping disadvantaged groups without fear of challenge under subsection 15(1) by groups that don’t share that disadvantage (Kapp, supra at paragraph 16). In addition, subsection 15(2) enables governments to assist one disadvantaged group, or subset thereof, without being paralyzed by the necessity to assist all, including others who may suffer similar or equal disadvantage (Cunningham, supra at paragraph 41).

The Supreme Court has stated that “[s]ections 15(1) and 15(2) work together to promote the vision of substantive equality that underlies s. 15 as a whole” (Kapp, supra at paragraph 16). Affirmative action programs accommodating disadvantage are an expression of equality, not an exception (Kapp, supra at paragraph 37, citing P. W. Hogg, Constitutional Law of Canada (5th ed. Supp. 2007), volume 2, at page. 55-53; see also Andrews, supra at 169.

In Kapp, the Court elaborated an independent role for subsection 15(2), whereas before it had been viewed as an “interpretive aid” to subsection 15(1) (Law, supra; Lovelace, supra). This was likely done with a view to simplifying the analysis for these types of measures and reinforcing the message that, far from constituting a form of “reverse discrimination” against more advantaged individuals, they are consistent with the section 15 equality guarantee. Under the new approach, once the claimant has established a distinction on a prohibited ground (”step (i)” above), it is open to the government to establish that the impugned law, program or activity is ameliorative within the meaning of subsection 15(2) and accordingly, constitutional, obviating the “step (ii)” analysis of whether or not the distinction amounts to discrimination in the substantive sense. To satisfy the requirements of subsection 15(2), the government must establish that:

  1. The program has a genuinely ameliorative or remedial purpose; and
  2. The program targets a disadvantaged group identified by the enumerated or analogous grounds (Kapp, supra at paragraph 41).

If the government fails to meet these requirements, it can still argue that the impugned measure does not have a substantively discriminatory impact within the meaning of subsection 15(1) (Kapp, supra at paragraph 40).

(a) Ameliorative or remedial purpose

Under (i), the government must establish that its goal in creating the program or benefit in question was to “improve the conditions of a group that is disadvantaged” (Kapp, supra at paragraph 48). While adopting an “intent-based analysis”, courts need not adhere slavishly to the government’s own statement of intent and should also consider whether it was “rational for the state to conclude that the means chosen to reach its ameliorative goal would contribute to that purpose”. To be “rational”, “there must be a correlation between the program and the disadvantage suffered by the target group” (Cunningham, supra at paragraph 44; Kapp, supra at paragraph 49). This standard permits “significant deference”. At the same time, it allows judicial review of colourable initiatives, where the impugned program only nominally seeks to serve the disadvantaged and should not be immunized from the full subsection 15(1) analysis (Kapp, supra at paragraph 49).

The impugned program’s ameliorative purpose need not be its exclusive objective. However, where an ameliorative program is part of, or relates to a larger legislative scheme, subsection 15(2) protects only those distinctions “that serve and are necessary to the ameliorative purpose” (Kapp, supra, at paragraph 52). Laws or programs aimed at restricting or punishing the behaviour of a targeted group would not qualify under subsection 15(2) (Kapp, supra at paragraph 54).

(b) Disadvantaged group identified by the enumerated or analogous ground

The types of programs protected under subsection 15(2) are those “targeting the conditions of a specific and identifiable disadvantaged group, as contrasted with broad societal legislation, such as social assistance programs” (Kapp, supra at paragraph 55). “‘Disadvantage’ under section 15 connotes vulnerability, prejudice, and negative social characterization”. The interpretation of “disadvantage” is as explored in key section 15 cases such as Andrews, supra, Miron v. Trudel, supra, and Law, supra. For a program to qualify, not all members of the group targeted need to be disadvantaged, as long as the group as a whole has experienced discrimination (Kapp, supra at paragraph 55).

(iv) Underinclusive ameliorative programs

Until the Supreme Court’s decision in Cunningham, supra, it was unclear how subsection 15(2) would operate where the claimant group shares a history of disadvantage equal and perhaps similar to that of the targeted beneficiary group. Cunningham was an ‘intra-Aboriginal’ discrimination claim brought by status Indians impugning provincial legislation which authorized Métis settlements to exclude status Indians from their membership. The Court drew on its approach in Lovelace, supra, in which a program benefitting only Indian Act bands was found to not discriminate against the claimants, non-Indian Act bands and Métis. Likewise in Cunningham, the exclusion of the claimant status Indians, a group similarly disadvantaged to the Métis, was allowed under subsection 15(2). The Court confirmed that its deferential approach under subsection 15(2) in Kapp prevails even where the claimants share a similar history of disadvantage and marginalization with the targeted beneficiary group (at paragraph 53).

Cunningham involved “a special type of ameliorative program” insofar as the impugned legislation came out of self-government negotiations with the Métis and was designed to “enhance and preserve [their] identity, culture and self-governance” (paragraph 54). It was not a typical ameliorative program that confers benefits on a group. As such, the exclusion of status Indians was seen as necessary to the objective of the program. In this unique factual context, the Court stated that the exclusion of the claimant group must “serve or advance the ameliorative goal” (paragraph 46).

Taken at face value, the “serve or advance” standard appears unusually stringent in light of the generally deferential approach taken by the Court in Cunningham. Outside of cases such as Cunningham that deal with the preservation of cultural identity, it is difficult to see how the exclusion of another disadvantaged group would serve or advance an ameliorative purpose. Accordingly, it is reasonable to expect that outside the unique context of programs designed to preserve specific cultural identities, ameliorative programs will be upheld as long as the exclusion of the claimant group is not an irrational means of pursuing the stated ameliorative goal.

The relationship between section 15 and section 1

The relationship between section 15 and section 1 is difficult to determine on a wholly satisfactory basis, given potential overlap between analysis of the correspondence factor under subsection 15(1) and the analysis under section 1, which assesses the rationality of the impugned distinction relative to the government’s asserted legislative or policy goal. It is important, however, to keep them analytically distinct because of the different attribution of the burden of proof: it is for the claimant to establish discrimination under section 15 and for the government to demonstrate, based potentially on broader policy considerations than those considered at the subsection 15(1) stage, the reasonableness of the distinction and its justification under section 1 (Andrews, supra at 178; Law, supra at paragraph 81). On a number of occasions, the Supreme Court has found that an otherwise discriminatory law or program was justified under section 1 of the Charter (see McKinney, supra; Weatherall v. Canada (Attorney General) [1993] 2 S.C.R. 872; Egan, supra; Lavoie, supra; Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381; and Quebec v. A., supra).

Recently, in Quebec v. A., the majority emphasized the importance of maintaining the analytic distinction between section 15 and section 1. Specifically, the Court’s approach in Walsh, supra, was disavowed insofar as it addressed the broad policy goals of respecting individual autonomy and freedom of choice in the context of the section 15 analysis, rather than in the section 1 justification, where the government bears the onus of proof (see paragraphs 340, 343, 384, and 422). Note, however, that where the impugned law is part of a larger benefit scheme, “the multiplicity of interests” being balanced, a consideration generally dealt with in section 1, is considered under section 15, in the context of the “ameliorative purpose or effect”, as described above (Withler, supra at paragraph 38).

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