| Section Fifteen Of The Canadian Charter Of Rights And Freedoms |
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| section 15 | |
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Section Fifteen of the Canadian Charter of Rights and Freedoms consist of the Equality Right s guarantee of the Charter against all forms of Discrimination perpetrated by the government with the exception of ameliorative programs ( Affirmative Action ). Under the heading of "Equality Rights" this section states: 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. The use of the word "individual" excludes "legal persons" such as corporations. This is in contrast to other sections that use the word "everyone" where "legal persons" were meant to be included. MEANING AND PURPOSE OF EQUALITY The concept of equality in Canada has its philosophical origins in the works of Albert Venn Dicey who believed in ''substantive equality'' (similar to what Milton Friedman called " Equality Of Outcome "). ''Substantive equality'' acknowledges that people do not all have the same ability and attributes, and are not equal under the law. Instead, by treating people differently everyone will be subject to equal impact of the law. This form of equality developed in response to ''formal equality'' which applies law indiscriminately and does not differentiates between personal characteristics (often called the "similarly-situated" doctrine). This philosophy is reflected in the four types of equalities protected by Section 15(1).
In sum, the equality guarantees of section 15 are aimed at " violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political and social prejudices, 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." (Iacobucci J. in '' Law V. Canada '', [2002 ) APPLICATION OF SECTION FIFTEEN In any challenge of section 15(1) the Burden Of Proof is always on the claimant. When interpreting the section, the purpose of the section should always be kept in mind as well as external factors such as those mentioned in section 15(2). Law test As first outlined in '' Law V. Canada '', discrimination can be identified through a three-step test. # Did the ''law, program, or activity'' impose differential treatment between the claimant and a comparator group? That is, was a distinction created between the groups in purpose or effect? # If so, was the differential treatment based on Enumerated Or Analogous grounds? # If so, did the law in question have a purpose or effect that is discriminatory within the meaning of the equality guarantee? Differential treatment This step asks whether there is a formal distinction between the claimant and a comparator group based on one or more personal characteristics or else does it fail to take into account the claimant's current disadvantaged position? The selection of the ''comparator group'' is integral. They must possess all the qualities of the claimant except for the personal characteristic at issue. ('' Corbiere V. Canada '' {Link without Title} 2 S.C.R. 203) Enumerated or analogous grounds is an analogous ground for discrimination, leading to some provincial courts to legalize Same-sex Marriage In Canada .]] The concept of ''enumerated or analogous grounds'' first originated in the essential 1989 case '' Andrews V. Law Society Of British Columbia '' to refer to personal characteristics that, when being the basis of discrimination, show the discrimination is unconstitutional under section 15. There are nine enumerated grounds explicitely mentioned in section 15, although they are not actually numbered. In practice, the enumerated grounds have been given liberal and broad interpretations. For example, discrimination on the basis of Pregnancy has been ruled to be sex discrimination ('' Brooks V. Canada Safeway Ltd. ''). As section 15's words "in particular" hint that the explicitely-named grounds do not exhaust the scope of section 15, additional grounds can be considered if it can be shown that the group or individual's equality rights were denied in comparison with another group that shares all of the same characteristics except for the personal characteristic at issue. A personal characteristic is considered ''analogous'' to the ones enumerated in section 15 if it is "immutable" or cannot be changed or can only be changed at excessive cost (constructively immutable). Thus far, several analogous grounds have been identified:
As well, the Courts have rejected several analogous grounds including:
Discrimination For discrimination to be found it must be determined if the burden or denial of benefit harms an individual's ''human dignity'' (''Law v. Canada''). That is, the discrimination will marginalize, ignore, or devalue an individual's sense ''self-respect'' and ''self-worth''. With dignity in mind, four '"contextual factors" which must be examined, none of which are determinative of discrimination, but all must be weighed appropriately. # pre-existing disadvantage # correlation between the grounds of the claim and the actual needs, capacities, and circumstances # ameliorative purpose or effect of the law on more disadvantaged groups # nature and scope of interest Jurisprudence has shown that each of these factors are weighed differently depending on the context. =Pre-existing disadvantage This factor asks whether there was a pre-existing disadvantage or vulnerability expericenced by the claimant. In ''Corbiere v. Canada'' McLachlin described this factor to be the most compelling and suggestive of discrimination if proven. However, the absence of a pre-existing disadvantage does not necessarily preclude a claimant from succeeding as seen in ''Trociuk v. British Columbia''. =Correlation between grounds and reality In this factor the claimant must show that there is a link betwen the grounds raise and the claimant's actual needs, circumstances, and capacities. Discrimination will be more difficult to establish if the law takes the qualities of the claimant into account. In '' Gosselin V. Quebec (Attorney General) '' {Link without Title} the court was sharply divided on this point. The majority said that the law that provided less social assistance to youth was connected to the ability of youth to find employment easily. However, the majority insisted that the evidence did not show this to be actual qualities, but were rather stereotypes. =Ameliorative purpose This factor asks whether there is a distinction made for the purpose of aiding an even less advantaged group. If this can be shown then it is unlikely that the claimant would be able to show a violation of their dignity. However, ''Lovelace v. Ontario'' warned that the analysis should not be reduced to a balancing of relative disadvantages. =Nature and scope The final factor considers the nature and scope of the interest affected by the law. The more severe and localized the results of the law for those affected the more likely to show that the distinctions in treatment responsible are dscriminatory. ENFORCEMENT Section 15, like the rest of the Charter, is mainly enforced by the courts through litigation under Sections 24 and 52 of the Constitution Act, 1982 . Such litigation can be very costly. To overcome this barrier, the federal government expanded the Court Challenges Programhttp://www.ccppcj.ca/e/about/about.shtml Court Challenges Program of Canada] URL accessed on March 10, 2006. HISTORY Section 15 dates back to the earliest draft of the Charter, published in October 1980, but was worded differently. It read, (1) Everyone has the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex. (2) This section does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged persons or groups. During the drafting, the guarantee to "everyone" was dropped in favour of "every individual," with the intent that corporations could not invoke equality rights.Hogg, Peter W. ''Constitutional Law of Canada''. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), page 744. Though the Charter itself came into effect on April 17, 1982, section 15 was not brought into force until April 17, 1985, in accordance with Section 32(2) of the Charter. The reason for this was so that provincial and federal governments would have enough time to review their legislation and make the appropriate changes to any discriminatory laws. NOTES EXTERNAL LINKS |
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