Equality Rights

1. S. 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. (1985) Formal equality: treat likes alike Social equality: everyone deserves equal treatment unless there’s a good reason to distinguish Andrews (1989) impugned: Law Soc of BC regulation requiring lawyers to be citizens. Mark Andrews: UK citizen, took law in UK, married a Canadian, wanted to practice in BC. Had to wait 3 yrs for citizenship. Claimed reg. violated S. 15. Andrews lost at trial, won in BC CA and SCC. McIntyre wrote opinion re how Ct would interpret s. 15: Equality Rights

2. Formal equality approach rejected. Formal equality might justify differential treatment on account of race. Broader dn of equality in Charter a signal to adopt a social equality approach: “all … are recognized at law as human beings equally deserving of concern, respect and consideration.” Many laws distinguish, some legitimately. S. 15 prohibits discrimination, which is a distinction that imposes burdens, obligations, or disadvantages on an individual or group, or withholds benefits available to others, based on personal characteristics rather than merit or capacity. Prohibited personal characteristics include the enumerated grounds in S. 15 (race, national or ethnicorigin, colour, religion, sex, age or mental or physical disability) or analogous grounds. Approach recommended by LEAF. Andrews (cont’d)

3. Once “discrimination” established, it’s up to party wishing to discriminate to justify under s.1. Is there discrimination against Andrews? All agree yes, because citizenship is analogous to national origin, and a burden is placed on non-citizens who want to be lawyers Can it be justified under s. 1? Majority (Dickson, Wilson, L’Heureux-Dube, La Forest) No. Objective of citizenship requirement: ensure lawyers have knowledge of Can govt and commitment to it. Passes Part I of Oakes, but not rational connection test. Many citizens don’t have much knowledge of Can govt. McIntyre & Lamer dissented: this is a limit which is reasonable for the legislature to impose; courts should not second-guess legislature too closely. Andrews (3)

4. Impugned: section of Crim Code that allows those charged with murder in Alberta to opt for trial by judge alone, where in other provinces accused must be tried by judge and jury. Sharon Turpin & other accuseds in Ontario: claimed this provision violates S. 15. S. 11(f): right to a trial by jury does not imply a right not to have a jury. Wilson: the section violates equality before the law. However, there’s no discrimination. Accused persons outside Alberta are not members of the enumerated or analogous groups. S. 15 is aimed at minorities that have been disadvantaged because of unequal treatment. Turpin (1989)

5. S. 93: guarantees denominational school rights at Confederation. 1915: Ontario decided to fund RC schools only to Gr 10. Challenged by Tiny Township RC school board. Lost in JCPC in 1928. In 1867, schools only went to Gr 10. Besides, Ont just regulating education, and the regulations didn’t result in undue hardship. 1984-5: Cons gov’t extended funding to Gr 13, supported by Libs and NDP. S. 15 came into effect in 1985. Met Tor Sch Bd: claimed extension violated S. 15. Gov’t sent ref Q to Ont CA. S. 29 of Charter: preserves separate school rights, but Tiny decision said RC rights not violated. SCC (Wilson): JCPC dec in Tiny overruled. As well, the Charter is not superior to other parts of the constitution. S. 93 & S. 15 are equal. “bargain of confederation” Ontario Roman Catholic High School Funding Case (1987)

6. S. 15 issues re S. 32 of Unempl Ins Act: Does availability of paternity leave for adoptive fathers (up to 15 weeks shared) and not birth fathers violate s.15? If yes, is the correct remedy (s.24) to “read in” birth fathers, even if this causes significant new expenditures? Schachter won in Fed Ct (trial div - Strayer J) and Fed Ct (Appeal Div) Clear violation of S. 15; no S. 1 arguments remedy (S. 24): give birth fathers the same benefits as adoptive fathers, even though this would mean significant additional expenditures decision considered by many as too “activist” Schachter v. Canada (1992)

7. SCC decision: Lamer’s (+4) test for remedy in positive rights cases: principle: least interference with leg. violation of Oakes Part I or II a): strike down under s. 52. Violation of Oakes Part II b) or c): reading in, selective severance, or strike down plus suspension. SCCagreed with Fed CA that there’s a Charter violation (still no S. 1 arguments) SCC overturned Fed CA decision on remedy appropriate remedy: declaration of unconstitutionality, and temporary suspension to give Parliament time to amend legislation. Schachter (cont’d)

8. But suspension not necessary in this case, because in 1990, Parl provided equal treatment for fathers, mothers whether adoptive or birth, but cut leave to 10 wks to save money. La Forest & L’Heureux-Dubé dissented: Lamer’s test for appropriate remedy is too rigid. Schachter (cont’d)

9. Symes v. Canada, 1993 • Issue: Does the limit to the child care deduction in ITA constitute discrimination based on sex? • Limit then set at about $10,000 for one child, depending on parent’s income. Real cost: $15,000 to $25,000. • Symes: not allowing the full cost to be deducted discourages women from working; thus, discrimination. • Supreme Court: no convincing evidence that the impact of the limit to child care deduction results in an adverse effect on women, or that it impacts women more than men. Therefore, no convincing evidence of discrimination based on sex. • All 9 judges heard this case.

10. Issue: Income Tax Act forced spouse receiving maintenance payments to pay inc. tax, rather than the income earner. Most custodial spouses are women, and most women earn less than men; therefore this provision left more $$ in hands of divorced couples for child care. But Thibaudeau earned more than her former spouse, and wanted him to pay the tax, like married spouses. Majority (Sopinka, LaForest, Cory, Iacobucci, Gonthier): no viol of s.15. But McLaughlin & L’Heureux-Dubé dissented: violation of s. 15, & can’t be justified under s. 1. Feds expected to lose; amended ITA anyway. Thibaudeau & the Queen (1995)

11. Does failure to include same sex couples in dn of “spouse” in Old Age Security Act violate s. 15? Four js (La Forest): no violation of s. 15. Sopinka: viol of s.15 that can be justified under s. 1. Dissents (L’Heureux-Dube & Cory +2): Old Age Sec Act violates s. 15, and this cannot be justified under s. 1. Oakes test: obj of Act is substantial, but Act fails all 3 parts of Part II. Egan v. Canada (1995)

12. Does failure to include sexual orientation in Alberta Individual Rights Protection Act violate s.15? All 9 judges: yes. Not including sexual orientation is a distinction that denies equal protection. Oakes test: if objective is to prevent disc, pressing. If obj is to deny gays equal treatment, not pressing. Part II: omission fails all 3 tests. Remedy: read sexual orientation into act. Major dissents from remedy. L’Heureux-Dube: would broaden definition of groups claiming discrimination: any group not being treated with equal concern and respect. Vriend (1998)

13. Does failure to include sexual orientation in Alberta Individual Rights Protection Act violate s.15? All 9 judges: yes. Not including sexual orientation is a distinction that denies equal protection. Oakes test: if objective is to prevent disc, pressing. If obj is to deny gays equal treatment, not pressing. Part II: omission fails all 3 tests. Remedy: read sexual orientation into act. Major dissents from remedy. L’Heureux-Dube: would broaden definition of groups claiming discrimination: any group not being treated with equal concern and respect. Vriend (cont’d)

14. Should homosexual couples be able to use Family Law Act to claim support from a former partner? Majority: yes, for reasons similar to Vriend. Remedy: declaration plus suspension for 6 months to give legislature time to act. Gonthier dissents: adopted Egan-type approach. M. v. H. (1999)

15. Does s. 15 require governments to provide interpreters to the deaf in medical situations? Unanimous: yes (La Forest held pen) Failure to provide deaf persons with interp. restricts equal application of benefit. The legislation itself is not unconstitutional. The failure of the gov’t to take action to provide equal benefit is a violation of s. 15 that cannot be justified under s. 1 because rights of deaf not minimally impaired. Eldridge v. AG of BC (1997)

16. Impugned:part of Can Pension Plan that denies survivors benefits to able-bodied spouses without children under 35, and reduces benefits for 35-45. Nancy Law claimed a violation of equality. Questions for SCC: Is there a violation of equality under S. 15? If so, can it be justified under s. 1? The court estabished “guidelines” for interpretation of s. 15. Purposive approach’ purpose of s. 15 is to prevent violation of human dignity & freedom through stereotyping, and promote equal concern and respect. Nancy Law v. Canada (1998)

17. 3 central issues Differential treatment? If so, is it based on an enumerated or analogous ground? Does the law have a discriminatory purpose or effect? (essential question) Equality is a comparative concept. Comparisons must be appropriate. If the impugned law is intended to help a disadvantaged group, balance its impact on that group with claimant’s group. Contextual analysis: subjective (view of claimant) and objective (view of ‘reasonable person’ or from social science evidence) Is there a pre-existing disadvantage, a stereotype, prejudice, or vulnerability exp’d by claimant? Does law take into account claimant’s actual situation? Up to claimant to demonstrate that legislation demeans dignity – open-ended Law (continued)

18. With regard to Nancy Law’s claim: 3 central issues Differential treatment? Yes If so, is it based on an enumerated of analogous ground? Yes, age Does the law have a discriminatory purpose or effect? (essential question) No. Adults under 45 have not been subjected to the kinds of discrimination faced by insular minorities. S. 1 analysis not necessary: no violation of equality. Neither the purpose nor effect of the impugned provisions violates human dignity in a way that constitutes “discrimination” for the purposes of the Charter. The legislation is intended to help older spouses through financial difficulties caused by death of spouse. The legislation does impose a disadvantage on younger spouses, but it takes into account the fact that younger spouses also have an advantage: youth. It is relatively easier for them to recover from losing a spouse and regain financial security. Law (continued)

19. Impugned: Nfld Public Sector Restraint Act (1991) 1988: Nfld gov’t signed a pay equity agreement so that women working for gov’t would be paid same as men, and some of past wage gap would be made up. 1991 legislation postponed the wage increases & extinguished arrears, for a $24 million saving. Some women workers grieved & won. On judicial review, grievance quashed. CA agreed. Union appealed to SCC. SCC: 3 central issues Differential treatment? Yes If so, is it based on an enumerated or analogous ground? Yes, gender Does the law have a discriminatory purpose or effect? (essential question) Yes, effect Newfoundland vs. N.A.P.E. (Nfld & Lab Assoc of Pub & Pte Employees)

20. Section 1 analysis: Objective of impugned legislation: need to address the fiscal crisis. This is pressing & substantial, so Part I of Oakes test passed. II Proportionality test: a) rational connection between 1991 Act and objective? Yes b) Rights limited as little as necessary? Yes. Pay equity merely posponed. Gov’t worked with unions to explore least harmful alternatives. c) overall balance? Yes. The good of resolving the financial crisis outweighted the harm done by postponing pay equity. NAPE

21. Auton and other children suffered from autism. Their parents wanted the B.C. government to fund ABA/IBI (Applied Behavioural Analysis & Intensive Behavioural Intervention) therapy (an emergent treatment, quite expensive) “A person claiming a violation of s. 15(1) of the Charter must establish: (1) differential treatment under the law, (2) on the basis of an enumerated or analogous ground, (3) which constitutes discrimination.” The comparitor group is “a non-disabled person, or a person suffering a disability other than a mental disability, who seeks or receives funding for a non-core therapy that is important for his or her present and future health, is emergent and has only recently began to be recognized as medically required.” No evidence that comparitor groups are getting funding that autistic children are not. Therefore, there’s no “discrimination” for the purposes of the Charter. Auton v. British Columbia (Attorney General) [2004]

22. McLaughlin Lunch Talk, March 10, 12-1:30, 140 McLaughlin College • “Fundamental Freedoms.” Ian Greene has long advocated the use of the media to publicize information about human rights and the impact of court decisions on rights consciousness in Canada. In 2005, SailorJones Media produced a documentary on the Charter for OMNI television, and the documentary will be available in seven languages for an international audience. Prof. Greene was a consultant for the production. Parts of the documentary will be screened at this talk, and Prof. Greene will comment on the impact of the Charter. Barbara Jones, the Producer of the documentary, will also be present. Greene will also present highlights from his new book, Courts, which is about to be released by UBC Press. For more information on the documentary, see: http://www.fundamentalfreedoms.ca/intro.html, and for the book, see: http://www.canadiandemocraticaudit.ca/.

23. Appointment of new Supreme Court of Canada Judge • In 2005, Justice Minister Cotler announced a new selection process to fill the vacancy on the Supreme Court caused by retirement of Justice Major (Alberta), but this process was interrupted by the fall of the Martin government. Cotler invited members of the legal community and the public to help create a short list of up to eight candidates. An ad hoc advisory committee was set up that included an MP from each party, a retired judge, a lawyer, a representative of the provincial Attorneys General, and two lay members. Cotler submitted eight names to the committee. The committee narrowed the short list to three candidates, and Martin decided not to appoint because of the fall of the gov’t. (Short list: Rothstein, Hunt, MacKinnon). • Yesterday, Harper appointed Marshall Rothstein of the Federal Court of Appeal. Rothstein will be subject to questioning in public from an ad hoc committee of MPs (a Harper innovation). • What will Harper do in the future? Will the above process be continued, improve upon, or discontinued? There won’t be another vacancy on the Supreme Court for some years. • Is there another process that’s better than the above? • A key issue: will the Conservatives reform the appointment process for federally-appointed judges? The Conservatives, when in opposition, strongly supported a reformed process more like the Ontario process for provincially-appointed judges. This would create true judicial nominating committees. Will they follow through now that they’re in government?