Presentation Transcript

1. CONSTITUTIONAL LAW42 EQUALITY RIGHTS I: GENRAL FRAMEWORK

   Shigenori Matsui 1
2. 2 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. (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.
3. 3 The meaning of equality The general framework of analysis
4. I THE MEANING OF EQUALITY 4 Formal equality and substantial equality Formal equality and substantive equality
5. 5 Andrews v. Law Society of British Columbia McLachlin J.A. in the Court of Appeal expressed the view, …that:. . . the essential meaning of the constitutional requirement of equal protection and equal benefit is that persons who are "similarly situated be similarly treated" and conversely, that persons who are "differently situated be differently treated" . . . . The similarly situated test is a restatement of the Aristotelian principle of formal equality -- that "things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness”…
6. 6 The test as stated, however, is seriously deficient in that it excludes any consideration of the nature of the law. If it were to be applied literally, it could be used to justify the Nuremberg laws of Adolf Hitler. Similar treatment was contemplated for all Jews. …Thus, mere equality of application to similarly situated groups or individuals does not afford a realistic test for a violation of equality rights. For, as has been said, a bad law will not be saved merely because it operates equally upon those to whom it has application. Nor will a law necessarily be bad because it makes distinctions….”
7. 7 “…the test cannot be accepted as a fixed rule or formula for the resolution of equality questions arising under the Charter. Consideration must be given to the content of the law, to its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application.”
8. II FRAMEWORK OF ANALYSIS 8 Andrews v. Law Society of BC [1989]
9. 9 It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. 15 of the Charter. I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.
10. 10 Three main approaches have been adopted in determining the role of s. 15(1), the meaning of discrimination set out in that section, and the relationship of s. 15(1) and s. 1. The first one, which was advanced by Professor Peter Hogg… would treat every distinction drawn by law as discrimination under s. 15(1). There would then follow a consideration of the distinction under the provisions of s. 1 of the Charter.
11. 11 The second approach put forward by McLachlin J.A. in the Court of Appeal involved a consideration of the reasonableness and fairness of the impugned legislation under s. 15(1)… She assigned a very minor role to s. 1 which would, it appears, be limited to allowing in times of emergency, war, or other crises the passage of discriminatory legislation which would normally be impermissible.
12. 12 A third approach, sometimes described as an "enumerated or analogous grounds" approach, adopts the concept that discrimination is generally expressed by the enumerated grounds. Section 15(1) is designed to prevent discrimination based on these and analogous grounds. ... The analysis of discrimination in this approach must take place within the context of the enumerated grounds and those analogous to them. The words "without discrimination" require more than a mere finding of distinction between the treatment of groups or individuals.
13. 13 I would accept the criticisms of the first approach made by McLachlin J.A. in the Court of Appeal. She noted that the labelling of every legislative distinction as an infringement of s. 15(1) trivializes the fundamental rights guaranteed by the Charter and, secondly, that to interpret "without discrimination" as "without distinction" deprives the notion of discrimination of content. In rejecting the Hogg approach, I would say that it draws a straight line from the finding of a distinction to a determination of its validity under s. 1, but my objection would be that it virtually denies any role for s. 15(1).
14. 14 I would reject, as well, the approach adopted by McLachlin J.A. She seeks to define discrimination under s. 15(1) as an unjustifiable or unreasonable distinction. In so doing she avoids the mere distinction test but also makes a radical departure from the analytical approach to the Charter which has been approved by this Court. In the result, the determination would be made under s. 15(1) and virtually no role would be left for s. 1.
15. 15 The third or "enumerated and analogous grounds" approach most closely accords with the purposes of s. 15 and the definition of discrimination outlined above and leaves questions of justification to s. 1. However, in assessing whether a complainant's rights have been infringed under s. 15(1), it is not enough to focus only on the alleged ground of discrimination and decide whether or not it is an enumerated or analogous ground. The effect of the impugned distinction or classification on the complainant must be considered. Once it is accepted that not all distinctions and differentiations created by law are discriminatory, then a role must be assigned to s. 15(1) which goes beyond the mere recognition of a legal distinction.
16. 16 A complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.
17. II 1995 TRILOGY 17 Miron v. Trudel [1995]
18. 18 Egan v. Canada [1995]
19. 19 Thibaudeau v. Canada [1995]
20. 20 Three different approaches were adopted: Cory, McLachlin and Iacobucci JJ.: The analysis under s. 15(1) of the Charter involves two steps. First, the claimant must show a denial of "equal protection" or "equal benefit" of the law, as compared with some other person. Second, he or she must show that the denial constitutes discrimination. To establish discrimination, the claimant must show that the denial rests on one of the grounds enumerated in s. 15(1) or an analogous ground and that the unequal treatment is based on the stereotypical application of presumed group or personal characteristics, although in rare cases distinctions made on enumerated or analogous grounds may prove to be, upon examination, non-discriminatory. Once a violation of s. 15(1) is established, the onus then shifts to the party seeking to uphold the law, usually the state, to justify the discrimination under s. 1 of the Charter.
21. 21 L'Heureux-Dubé J.: The following factors must be established by a rights claimant before the impugned distinction will be found to be discriminatory: (1) there must be a legislative distinction; (2) this distinction must result in a denial of one of the four equality rights on the basis of the rights claimant's membership in an identifiable group; and (3) this distinction must be "discriminatory" within the meaning of s. 15.
22. 22 Lamer C.J. and La Forest, Gonthier and Major JJ. (dissenting): The s. 15(1) analysis involves three steps. The first looks to whether the law has drawn a distinction between the claimant and others. The second questions whether the distinction results in disadvantage, and examines whether the impugned law imposes a burden, obligation or disadvantage on a group of persons to which the claimant belongs which is not imposed on others, or does not provide them with a benefit which it grants others. It is at this second step that the direct or indirect effect of the legislation is examined.
23. 23 The third step assesses whether the distinction is based on an irrelevant personal characteristic which is either enumerated in s. 15(1) or one analogous thereto. This third step thus comprises two aspects: determining the personal characteristic shared by a group and then assessing its relevancy having regard to the functional values underlying the legislation.
24. III LAW 24 Law v. Canada [1999]
25. 25 It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society.
26. 26 Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.
27. 27 Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries: (A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
28. 28 and (C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting 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?
29. 29 In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
30. 30 Some important contextual factors influencing the determination of whether s. 15(1) has been infringed are, among others: (A) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue… (B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others…
31. 31 (C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society… and (D) The nature and scope of the interest affected by the impugned law.
32. IV KAPP 32 R. v. Kapp [2008]
33. 33 “The template in Andrews, as further developed in a series of cases culminating in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, established in essence a two-part test for showing discrimination under s. 15(1): (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? These were divided, in Law, into three steps, but in our view the test is, in substance, the same.”
34. 34 “Andrews, McIntyre J. viewed discriminatory impact through the lens of two concepts: (1) the perpetuation of prejudice or disadvantage to members of a group on the basis of personal characteristics identified in the enumerated and analogous grounds; and (2) stereotyping on the basis of these grounds that results in a decision that does not correspond to a claimant’s or group’s actual circumstances and characteristics. Additionally, McIntyre J. emphasized that a finding of discrimination might be grounded in the fact that the impact of a particular law or program was to perpetuate the disadvantage of a group defined by enumerated or analogous s. 15 grounds.”
35. 35 “A decade later, in Law, this Court suggested that discrimination should be defined in terms of the impact of the law or program on the “human dignity” of members of the claimant group, having regard to four contextual factors: (1) pre-existing disadvantage, if any, of the claimant group; (2) degree of correspondence between the differential treatment and the claimant group’s reality; (3) whether the law or program has an ameliorative purpose or effect; and (4) the nature of the interest affected ”
36. 36 The achievement of Law was its success in unifying what had become, since Andrews, a division in this Court’s approach to s. 15. Law accomplished this by reiterating and confirming Andrews’ interpretation of s. 15 as a guarantee of substantive, and not just formal, equality. Moreover, Law made an important contribution to our understanding of the conceptual underpinnings of substantive equality. At the same time, several difficulties have arisen from the attempt in Law to employ human dignity as a legal test. There can be no doubt that human dignity is an essential value underlying the s. 15 equality guarantee. In fact, the protection of all of the rights guaranteed by the Charter has as its lodestar the promotion of human dignity. ..
37. 37 But as critics have pointed out, human dignity is an abstract and subjective notion that, even with the guidance of the four contextual factors, cannot only become confusing and difficult to apply; it has also proven to be an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be. Criticism has also accrued for the way Law has allowed the formalism of some of the Court’s post-Andrews jurisprudence to resurface in the form of an artificial comparator analysis focussed on treating likes alike.
38. 38 Viewed in this way, Law does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality under s. 15 set out in Andrews and developed in numerous subsequent decisions. The factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focussing on the central concern of s. 15 identified in Andrews — combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping.”
39. V WHAT IS AN APPROPRIATE FRAMEWORK? 39 Is the formal equality approach an inadequate framework?
40. 40 Three basic criteria: Distinction Listed ground or analogous ground Discrimination
41. 41 Is it necessary to limit the scope of s. 15 to discrimination based only on listed or analogous ground?
42. 42 Is it necessary to consider the violation of human dignity or irrelevancy in the s. 15 analysis?