Equality and Charter Values

1
Equality and Charter Values

• Seminar for Newly Appointed Judges
• Niagara-on-the-Lake
• October 17, 2005

2
Overview

• What is section 15 about?
• Analytical framework developed by Supreme Court
  of Canada
• Has become intricate
• Covered in more depth at the Charter workshop
• Big picture what have the equality rights meant
  in practice?
• What are the core principles of the analysis?
• What are Charter values and what does it mean
  to take account of them?
• Not limited to s. 15 equality

3
EQUALITY
4
Section 15 Equality Rights

• Newly-minted
• 20th century, not 18th or 19th century
• Seen as so potentially significant that their
  implementation was delayed three years to April
  17, 1985
• Equality now recognized as a foundational
  concept, along with the more traditional rights
  and freedoms
• Secession Reference, 1998 2 S.C.R. 217
• Little Sisters Books v. Canada, 2000 2 S.C.R.
  1120

5
Equality as a Foundational Concept

• Canada has its own approach to equality
• Canada is one of the few countries in the
  world which has from its beginning dealt with the
  issue of minorities and sub-groups by the
  two-pronged mechanism of the nation state and
  respect and tolerance of minorities within the
  nation state.
• Chief Justice McLachlin, The Civilization of
  Difference
• The Canadian approach to equality is different
  from the U.S. approach.

6
Canadian approach to equality

• Called substantive as opposed to formal
  equality
• Formal equality
• The law in its terms must treat likes alike
• E.g. R. v. Drybones, 1970 S.C.R. 282
• Substantive equality
• The law may be required to take into account the
  differing situations of people treating likes
  alike is not sufficient
• E.g. Eldridge v. B.C., 1997 3 S.C.R. 624

7
Text of Section 15

• 15(1) Every individual has the right to equality
  before and under the law and 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.

8
Text of Section 15

• 15(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.

9
Key Aspects of Section 15

• Individual Rights
• 15(1) Every individual has the right to equality
• Every individual probably means that equality
  rights are available only to natural living
  persons, not to corporate persons or other
  artificial entities.
• The equality rights have both an individual and a
  collective dimension

10
Key Aspects of Section 15

• The Four Equalities
• 15(1) Every individual has the right to equality
  before and under the law and the equal protection
  and equal benefit of the law
• This wording was meant to signal a departure from
  the approach the Supreme Court of Canada took
  under the Canadian Bill of Rights.

11
Key Aspects of Section 15

• Prohibited Grounds of Discrimination
• 15(1) Every individual has the right to equality
  without discrimination and, in particular,
  without discrimination based on race, national or
  ethnic origin, colour, religion, sex, age or
  mental or physical disability.
• Equality claims can be brought on any of the
  listed grounds
• And on further grounds analogous to those listed

12
Key Aspects of Section 15

• Restriction to claims based on enumerated or
  analogous grounds was a key constraint imposed by
  the Supreme Court of Canada in its early cases
• Andrews v. Law Society, 1989 1 S.C.R. 143
• R. v. Turpin, 1989 1 S.C.R. 1296
• Claims must be rooted in an infringement of human
  dignity of the nature aimed at by human rights
  legislation

13
Key Aspects of Section 15

• Equality rights are among those that can be
  subject to a constitutional override under s. 33
  of the Charter
• - The override has never been specifically used
  to contradict a judicial decision on equality
  rights
• Gender equality may not be subject to override,
  because of s. 28
• - Notwithstanding anything in this Charter, the
  rights and freedoms referred to in it are
  guaranteed equally to male and female persons.

14
Key Aspects of Section 15

• Affirmative Action
• 15(2) Subsection (1) does not preclude any law,
  program or activity
• Drafters of the Charter wished to ensure that
  affirmative action programs would not be seen as
  discriminatory per se
• Section 15(2) is not an exemption section and
  does not provide a defence
• Section 15(2) determines the scope and the
  contours of s. 15(1) equality rights (Lovelace,
  2000 1 S.C.R. 950)

15
The Analytical Framework

• The Law Test (Law v. Canada, 1999 1 S.C.R. 497)
• Three central inquiries
• Whether a law imposes differential treatment
  between the claimant and others, in purpose or
  effect
• Whether one or more enumerated or analogous
  grounds of discrimination are the basis for the
  differential treatment and
• Whether the law in question has a purpose or
  effect that is discriminatory within the meaning
  of the equality guarantee.

16
Differential Treatment

• Requires choice of comparators
• May arise through purpose or effect of the law

17
Enumerated or Analogous Ground

• Enumerated grounds are those listed in section 15
• Also covered are grounds analogous to those listed

18
Analogous Grounds

• New Analogous Grounds
• Is the personal characteristic similar to the
  enumerated grounds? Is it
• Actually or constructively immutable (cannot be
  changed without high personal cost? Not
  legitimate for government to expect us to
  change?)
• Historically the basis for discrimination or
  animosity against persons with that
  characteristic?
• Important to the claimants identity, personhood
  or belonging?
• Associated with lack of political power,
  disadvantage or vulnerability?
• Included in federal and provincial human rights
  codes?

19
Analogous Grounds

• Analogous Grounds
• Citizenship (Andrews, 1989 1 S.C.R. 143
  Lavoie, 2002 1 S.C.R. 769)
• Marital status (Miron v. Trudel, 1995 2 S.C.R.
  418 Walsh, 2002 4 S.C.R. 325 Hodge, 2004 3
  S.C.R. 357)
• Sexual orientation (Egan, 1995 2 S.C.R. 513
  Vriend, 1998 1 S.C.R. 493 M. v. H., 1999 2
  S.C.R. 3)
• Aboriginality/residence (Corbiere, 1999 2
  S.C.R. 203)
• Receipt of social assistance? (Falkiner (2000),
  189 D.L.R. (4th) 765)

20
Analogous Grounds

• Not Analogous Grounds
• Province of residence (Turpin, 1989 1 S.C.R.
  1296)
• Being a worker covered under workers
  compensation act (Re Workers Compensation Act,
  1989 1 S.C.R. 922)
• Residence in one town rather than another
  (Siemens, 2003 1 S.C.R. 6)
• Criminally sentenced prisoners (Sauvé, 2002 3
  S.C.R. 519)
• Being a marijuana user (Malmo-Levine, 2003 3
  S.C.R. 571)
• Being a member of the RCMP (Delisle, 1999 2
  S.C.R. 989)

21
Discrimination

• The Law test discrimination inquiry
• Does the differential treatment discriminate in a
  substantive sense?
• Does it bring into play the purpose of s. 15(1)
  in remedying prejudice, stereotyping, and
  historical disadvantage?
• Is there a convincing human rights dimension to
  the complaint? (Granovsky, 2000 1 S.C.R. 703)

22
Some Leading Section 15 Cases

• Andrews v. Law Society of B.C., 1989 1 S.C.R.
  143
• requirement of Canadian citizenship to practise
  law struck down
• Eldridge v. B.C., 1997 3 S.C.R. 624
• provincial government ordered to provide funding
  for sign language interpretation for deaf
  patients
• Vriend v. Alberta, 1998 1 S.C.R. 493
• provincial human rights legislation amended to
  include discrimination based on sexual orientation

23
Some Leading Section 15 Cases

• Law v. A.G. Canada, 1999 1 S.C.R. 497
• provision denying CPP survivor benefits to 30
  year old widow upheld
• Nova Scotia (WCB) v. Martin, 2003 2 S.C.R. 504
• WCB policy denying regular benefits to persons
  suffering chronic pain syndrome struck down
• Auton v. B.C., 2004 3 S.C.R. 657
• provincial government refusal to pay for certain
  treatment for autistic children upheld

24
CHARTER VALUES
25
Interpretation of Charter Rights

• Requires consideration of the values underlying
  the rights
• As part of the purposive analysis
• In addition, the values underlying Charter rights
  are relevant in other contexts

26
Use of Charter values

• (1) Interpret Charter rights in the light of
  the values underlying other Charter rights
• See
• Nova Scotia (A.G.) v. Walsh, 2004 4 S.C.R. 325
  at para. 63
• R. v. Keegstra, 1990 3 S.C.R. 697 at 755-758

27
Use of Charter values

• (2) Charter is a guiding instrument in the
  development of Canadian common law
• except where use of Charter would lead to
  fundamental change
• Hill v. Church of Scientology of Toronto, 1995
  2 S.C.R. 1130 at paras. 92 and 96
• RWDSU, Local 558 v. Pepsi-Cola Canada Beverages
  (West) Ltd, 2002 1 S.C.R. 156 at para. 16

28
Use of Charter values

• (3) Where genuine ambiguity in a statute,
  prefer interpretation promoting Charter
  principles
• See
• Bell ExpressVu Limited Partnership v. Rex, 2002
  2 S.C.R. 559 at paras. 28-29
• Application under s. 83.28 of the Criminal Code
  (Re), 2004 2 S.C.R. 248 at paras. 46 and 50.

29
Overarching democratic values

• Democratic values and principles under the
  Charter demand that legislators and the executive
  take these into account and if they fail to do
  so, courts should stand ready to intervene to
  protect these democratic values as
  appropriatejudges are not acting
  undemocratically by intervening when there are
  indications that a legislative or executive
  decision was not reached in accordance with the
  democratic principles mandated by the Charter.
• Iacobucci and Cory JJ. for the majority in
  Vriend v. Alberta, 1998 1 S.C.R. 493 at para.
  142

30
Changing values

• Over ten years have elapsed since the decision
  in Bliss. During that time there have been
  profound changes in womens labour force
  participation. With the benefit of a decade of
  hindsight and ten years of experience with claims
  of human rights discrimination and jurisprudence
  arising therefrom, I am prepared to say that
  Bliss was wrongly decided or, in any event, that
  Bliss would not be decided now as it was decided
  then. Combining paid work with motherhood and
  accommodating the childbearing needs of working
  women are ever-increasing imperatives. That
  those who bear children and benefit society as a
  whole thereby should not be economically or
  socially disadvantaged seems to bespeak the
  obvious.
• Dickson C.J.C. for the court in Brooks v. Canada
  Safeway Ltd., 1989 1 S.C.R. 1219 at 1243

31
Contested Values

• Where the legal determination of Charter rights
  intersects with the selection of social policy
  options, the presence of values and the courts
  role in upholding them is highlighted.
• See
• Chaoulli v. Quebec, 2005 SCC 35.

32
Contested Values

• The courts have a duty to rise above political
  debate. They leave it to the legislatures to
  develop social policy. But when such social
  policies infringe rights that are protected by
  the charters, the courts cannot shy away from
  considering them. The judicial branch plays a
  role that is not played by the legislative
  branch.
• Deschamps J. in Chaoulli on the application of
  the Quebec Charter of Rights and Freedoms at
  para. 89

33
Contested Values

• The trial judge concluded that a private
  health sector fuelled by private insurance would
  frustrate achievement of the objectives of the
  Canada Health Act. She thus found no legal basis
  to intervene, and declined to do so. This raises
  the issue of who it is that should resolve these
  important and contentious issues quote from Roy
  Romanow his premise is that the debate is
  about social values. It is not about
  constitutional law. We agree.
• Binnie and LeBel JJ. in dissent in Chaoulli at
  para. 166.

34
Conclusion Equality Rights

• The equality rights are the site of some of the
  most difficult Charter litigation because the
  cases sometimes involve basic social policy
  issues and large amounts of money
• Remedial options can be challenging
• The analytical framework provided in Law is
  comprehensive but not wholly compulsory
  (guidelines only)
• Substantive equality a central concept

35
Conclusion Charter Values

• All Charter cases involve values, such as
• Importance of a fair trial, presumption of
  innocence
• Privacy -- freedom from unwarranted intrusions by
  the state
• Classic civil rights freedoms of expression,
  association, assembly, religion
• Equality
• Preservation of life, personal security
• Bilingualism, multiculturalism
• Value of electoral democracy

36
Conclusion Charter Values

• New role for the judiciary in interpreting and
  applying the Charter, and in upholding Charter
  values in all aspects of our work
• Rights and freedoms set out in the Charter
  reflect national constitutionalized values
• How do we know what Charter values are?

37
Conclusion Charter Values

• Assistance in discerning the underlying values
• Wording of provisions
• Considerable interpretation by the courts since
  1982
• Guidance to be found in
• Legislation such as Quebec Charter of Rights and
  Freedoms and provincial human rights legislation
• International instruments to which Canada has
  become a signatory and international law
• Academic writing