DCC Final 2119 - Week 9: Equality Rights
Provisions
Section 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
Section 15(2): does not prevent any law or program that combat discriminated or disadvantaged groups proactively through affirmative measures
Objective: To guarantee a minimum level of equality for all citizens under the law, prevent discrimination, and protect the rights of all individuals.
Interpreting Section 15
Objective: To guarantee a minimum level of equality for all under the law, prevent discrimination and government action that puts particular groups or persons at a disadvantage
Complexity: Courts often face challenges in defining equality and discrimination, as these concepts evolve and vary case by case.
Different Treatment: The law may treat individuals differently based on relevant factors without constituting discrimination.
Example: age-based benefits or licensing requirements.
Significance of Section 15
Highlighted in the landmark case Law v. Canada (1999), emphasizing the importance of equality rights in upholding human dignity and worth.
Was important as the court acknowledged that discrimination perpetuates negative perceptions and affects mental health and overall well-being.
Therefore the court found that it is within section 15’s purpose to eliminate barriers faced by marginalized groups and ensure access to opportunities available to all, promoting equity and dignity.
Substantive Equality
The Supreme Court has continuously interpreted this right as protecting substantive equality as legislation should aim to for substantive equality over formal
Substantive equality:laws and government actions must not only treat people the same but also consider their differing circumstances and effects
example: not all disabled people need psychotherapy
Formal equality: the effect of disadvantage or advantage groups are not taken into consideration, rather the law is the same for everyone. so the law is applied in a similar manner to all in similar situations without considering their differences
Difference: Substantive equality contrasts with formal equality, which focuses solely on equal treatment without regard to broader impacts or disparities.
Comparison with Section 10 of the Quebec Charter
Section 10 of the Quebec Charter provides an exhaustive list of prohibited grounds of discrimination and only applies Quebec and has an internal limit. Section
15 of the Canadian Charter is not exhaustive, allowing courts to consider other prohibited grounds beyond those listed.
Important case: Amselem, illustrating the differences in the application of equality rights.
Québec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux
Legal Test: In determining discrimination under Section 15, two elements are considered:
Whether a law or action confers an advantage to certain groups.
Whether it disadvantages certain groups, perpetuating stereotypes or worsening their situation.
Outcome: Discrimination can occur based on sex, age, ethnicity, or other grounds, regardless of intent.
Key Legal Precedents:
Andrews —> Law —> R v Kapp
Andrews v. Law Society of British Columbia (1989):
Rejecting Formal Equality: A British lawyer sought to practice law in Canada but was denied admission to the Bar because he was not a Canadian citizen. He challenged the law preventing non-citizens from practicing, arguing discrimination
Importance: This case marked a shift from formal to substantive equality by adding “human dignity” as an element of consideration. Justice McIntyre rejected the idea that treating everyone the same leads to equality. Instead, he emphasized the impact of discrimination on individuals and society arguing that true equality requires recognizing and addressing differences, granting benefits to those disadvantaged by systemic barriers.
Law v. Canada (Minister of Employment and Immigration):
Facts: Nancy Law, a young widow, was denied survivor benefits under the Canada Pension Plan because she was under 35, able-bodied, and childless. She claimed age discrimination.
Importance: Although Law's claim was unsuccessful, the case established a three-part test for Section 15 claims: guidelines for evaluating discrimination claims
The challenged law imposes a disadvantage on the claimant compared to others.
The disadvantage is based on a ground listed in Section 15.
The disadvantage impairs the human dignity of the claimant.
Evolution: The Law test was later critiqued and eventually modified in the subsequent cases R. v. Kapp as they abonded the impairment of human dignity due the legislation to withdrawal of benefits element
These factors are:
Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group.
Correspondence between the grounds of discrimination and the actual need, capacity, or circumstances of the claimant or others.
The ameliorative purpose or effects of the law on a more disadvantaged person or group.
The nature and scope of the interest affected by the law
R. v. Kapp (2008):
Facts: Non-Indigenous commercial fishers challenged certain licenses under the federal Aboriginal Fisheries Strategy, alleging race-based discrimination.
Importance:
Court deemed it to be constitutional and reaffirmed commitment to substantive equality under Section 15
Court distance itself from the human dignity component of the Law Test
The Court established a much more prominent role for section 15(2), which protects ameliorative programs from claims of discrimination
such as this liscnece program because protected a disadtavged groups (the indigenous people)
Shift in Approach: Moved away from comparator groups, human dignity, and the rigid structure of the Law Test, focusing instead on whether a law perpetuated prejudice or stereotyping and proetcted amerliorative programs from section 15(2) claims
Types of Programs Protected under Section 15:
Programs focused on specific disadvantaged groups.
Majority of participants in the program should be disadvantaged
Section 15 does not impose an obligation on the government to counteract inequality in Canadian society. However, if the government does decide to act, it should not discriminate and ensure that there is no distinction
Section 15(2) allows proactive government actions to combat discrimination through affirmative measures.
Application of Section 15:
Court decisions under Section 15 force legislative accommodation for excluded individuals or groups.
Solutions include extending benefits to the excluded group or reducing governmental benefits.
Plaintiff bears the burden of proof of discrimination showing that the law affected then nativity in a quantifiative way
Respondent (Government) must prove that the program falls under Section 15(2) and is not discriminatory.
Analytical Framework of Article 15(1):
Two questions must be asked:
Does the law create a distinction based on a prohibited ground?
Is the distinction discriminatory?
Distinction can have positive or negative effects
positive: unfavorable impact of a legislative
a law that forces immigrants from a country to prove their degree is valid by certified agencies
nagtive: omission or where the governemnt failed to take into account of the disadvantaged
example: government doesn’t provide proper infursture for a disable person to get around in (ramps or elevator)
Discriminatory grounds enumerated by art. 15 include race, national or ethnic origin, color, religion, sex, age, or mental or physical disabilities.
Analogous Grounds and Section 15(2) Programs:
Once a ground is found analogous or immutable, it applies to all future cases.
Analogous grounds describe unchangeable personal characteristics. The SCC anayliss
Traditionally vulnerable groups such as the idengous people
Immutable characteristics, things that are difficult to change such as pregnant women and their challenges
Government programs benefiting disadvantaged groups, like First Nations, may fall under Section 15(2) if they meet certain criteria.
Pre-existing disadvantage of the claimant group.
Correspondence between treatment and reality.
Ameliorative purpose or effect of the law or program.
Nature of the interest affected
Disadvantaged groups or stereotypes can support claims of discrimination.
Relationship between Section 15 and Section 1:
In the case of section 15, it is up to the plaintiff to prove discrimination but in the case of s. 1, the burden is on the government to establish reasonable grounds and justify under section 15 (2)