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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part V Rights and Freedoms, B Rights and Freedoms under the Charter, Ch.39 Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15

Sonia Lawrence

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

(p. 815) Chapter 39  Equality and Anti-discrimination

The Relationship between Government Goals and Finding Discrimination in Section 15

What does it mean to guarantee the right to equality but then suggest that this right is subject to limits? In 2001, the Hon. Beverley McLachlin, Chief Justice of the Supreme Court of Canada, labelled the equality section of the Charter, section 15, “the most difficult right”.1 In the years since the provision came into force in 1985,2 disputes over precisely how to identify and rectify violations of equality have often resulted in split decisions and vigorous dissents in the rulings of the Supreme Court. At the core of this confusion lies the critically important commitment made in the very first section 15 case to a substantive understanding of equality-in-context, and the unique, two-step system of constitutional rights adjudication in Canada. Sheila Martin, also writing in 2001, argued that section 15 might present unique questions at the section 1 stage, as the cases, often seeking redistributive rather than corrective justice, raise different kinds of considerations for balancing. Martin also pointed out that since the business of the legislature is the business of categorization, the “distribution of benefits and burdens”, equality cases will be particularly likely to provoke anxiety and conflict over institutional competence.3 In her article, she set out to analyze this balancing of (p. 816) equality rights and social goals, concluding that the cases revealed a poorly justified, overly deferential approach to section 1 review.

In this chapter, I consider the impact on the content of the equality right itself of the presence of section 1 in the Canadian Charter of Rights and Freedoms, a section which allows rights violations when they can be “demonstrably justified” in a “free and democratic society”.4 Fifteen years later, I pick up on some aspects of Martin’s work, considering developments in section 15 and section 1. I trace the evolving test for section 15 violations, focusing on state goals within that analysis. Following this review, I canvass various positions and issues which arise in doctrine and scholarship about the appropriate relationship between sections 1 and 15, concluding that there are unique doctrinal, textual, normative, and institutional competence concerns which may drive a tendency for judges to resolve cases without serious engagement at section 1. Illustrating these themes through three post-2001 cases in which discrimination was justified, I conclude by asking about the role that the unique nature of the relationships between section 15 and section 1—rather than just doctrinal moves—has played in the development of an equality section more suited to providing recognition than redistribution. The work of the Court in this area reveals a preoccupation on the part of judges to avoid institutional competence conflicts with legislatures in order to preserve a broad zone in which governments can do their work. The Court struggles to fulfill its duty to the Charter while respecting institutional competence. I argue here that this anxiety has pushed the Court towards resolving these problems inside section 15, protecting a version of equality that is narrow and formalistic, quite different from that presented in the Court’s expansive statements about equality’s scope, and far from the powerful and transformative interpretations advocates dreamed of for this most complicated right.

1.  Doctrinal Developments

A.  Substantive Equality, Analytic Silos

The text of section 15 reads:

  1. 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. (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 (p. 817) including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.5

It is, like all the rights protections in the Charter, modified by section 1:

  1. 1.  The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.6

The section 15 equality rights provisions first came to the Supreme Court for interpretation in 1987. Mark David Andrews might seem to be an unlikely equality claimant; a white male lawyer who married a Canadian and emigrated from the UK with an Oxford degree under his arm. He sought a call to the Bar in British Columbia so that he could practice law. However, the Law Society of British Columbia, regulator of lawyers in the province, prohibited non-citizens from being called to the bar in the province. Andrews challenged this rule as contrary to section 15.7

The decision in his case set a basic framework for section 15 analysis, a three-stage inquiry. Despite some twists and turns of the intervening decades, this analysis has re-emerged as the core of section 15 analysis, 30 years later. Claimants, who bear the burden of proof at this stage, need to establish that there has been differentiation, related to a recognized ground, with a discriminatory result. The somewhat spare decision was considered a clear victory for equality advocates in Canada, because the Court rejected a formal model of equality (sometimes described as an anti-differentiation approach) in favour of an approach which recognizes “that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality”. Under this approach, differentiation was required, but it could be either direct differentiation or indirect differentiation, in which application of the same rule to everyone produced “adverse effect” or “adverse impact” differentiation. There was no requirement that the state intend to differentiate. At this phase, at least, any reasons that a government might have for the way the law treats people differently seem to be entirely irrelevant—they do not make the claim any stronger or any weaker.

Differentiation must be related to an enumerated or analogous “ground” of discrimination. A key feature of the section 15 text is the open ended language of the section (p. 818) around the prohibited grounds of discrimination.8 This text informs the doctrine of analogous grounds, which holds that grounds similar to the enumerated grounds may also be recognized. In accepting a variety of “analogous” grounds, and rejecting others, the Court has tended to indicate that the purpose of having grounds is “to identify a type of decision making that is suspect because it often leads to discrimination and denial of substantive equality … The enumerated and analogous grounds stand as constant markers of suspect decision making or potential discrimination.”9

The heart of the section 15 analysis is the third and final step, in which the claimant must establish that the differentiation on the enumerated or analogous ground(s) was discriminatory. It is this part of the analysis which has provoked the most disputes and dissents, and for which clear doctrinal resolution remains elusive. From Andrews forward, it is in this part of the analysis that the Court has tried to operationalize an equality often described as substantive as opposed to formal,10 an effort which has occupied most of the many critics of this jurisprudence.

It is only after a finding that section 15 has been violated that section 1 come into play, formally. Justice McIntyre described a bright line between the violation of section 15 and the analysis required at the “saving” provision, section 1:

Where discrimination is found a breach of s. 15(1) has occurred and—where s. 15(2) is not applicable—any justification, any consideration of the reasonableness of the enactment; indeed any consideration of factors that could justify the discrimination and support the constitutionality of the impugned enactment would take place under s. 1.11

In practice, however, this and other pronouncements by the Court have not held up and the bright lines have blurred. Part of the problem, as Peter Hogg notes, is that Andrews did not offer much explanation about how the discrimination inquiry proceeds.12 But the battle over “discrimination” is connected to the question of section 1. As justificatory (p. 819) arguments fit into section 1, they are not part of section 15. That is the simple answer. But in a contextual analysis of inequality, how do we draw the line between context and justification in deciding whether differentiation is discriminatory? Furthermore, does it even matter? If the claimant succeeds in establishing a violation of section 15, the government will be given the opportunity to demonstrate, under section 1, that the limit on the right is reasonable and can be “demonstrably justified in a free and democratic society”. If the state succeeds, the rights violation can continue. Still, there is arguably a real difference between a finding of discrimination which is then found justified under section 1, and a finding that no violation of the equality right occurred at all. This could matter both for policy making going forward, and in terms of maintaining the symbolic importance of violations of the equality right.13 Justice McIntyre, in Andrews, had hoped that a strictly siloed approach would provide a “workable solution”. In hindsight, that was probably overly optimistic.

B.  The Workable Solution Proves Somewhat Unworkable

A very visible rift between members of the Court on this question appeared in Egan v Canada, released in May 1995. Part of a trilogy of section 15 cases (the other two were Miron v Trudel and Thibaudeau v Canada), Egan revealed both disagreement and confusion in the ranks, and the 4-1-4 decision left lower courts acting without clear guidance until 1999.14 Three justices used what they called a “functional relevance” test to dismiss the appeal. Where the claimant challenged the exclusion of same-sex spouses from the Old Age Pension Act, these justices reasoned that the ground alleged was relevant to the Government’s objectives in creating the law. Those objectives were described as:

firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.15

Sexual orientation, the alleged ground, was clearly a ground of differentiation through the operation of this law. However, as the ground was relevant to the government (p. 820) objective, La Forest J concluded that the differentiation was not discriminatory. The dissenting justices took quite a different approach. That difference might be illustrated by the way that the reasons of Justice Cory and Iacobucci, in the section 1 analysis, defined the purpose of the law not as ‘the support of heterosexual couples for the purpose of child rearing’, but rather as an effort towards alleviating poverty in households of the elderly. This definition of the purpose left the Government with no arguments about how excluding same-sex couples served the purpose of the law. Thus section 15 was violated and the same issue—given the purpose of the law, what could the purpose of the exclusion be, other than to discriminate?—would lead to the Government’s failure at section 1.

The divisions revealed in Egan, and the split on the Court, understandably caused real problems for potential litigants and for lower courts, and a great deal of ink was spilled criticizing Justice La Forest’s relevancy test.16 Finally, in 1999, the Court (Sopinka and La Forest JJ. having retired) unanimously rejected Nancy Law’s section 15 claim, and used the opportunity to outline a doctrinal process that looked exhaustive, and created the impression of clarity. In the third stage, the Court embellished their description of discrimination by adding the concept of human dignity:

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?17

This language, of “human dignity” became the lynchpin of the new approach to section 15 discrimination. The Court followed with a non-exhaustive list of four “contextual factors” to be considered as part of the discrimination analysis, or the analysis of human dignity violation:

  1. (A)  Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. …

  2. (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. …

  3. (p. 821) (C)  The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. …

  4. (D)  The nature and scope of the interest affected by the impugned law.18

In Nancy Law’s case, these factors almost all worked against her claim (she was a young widow who, owing to her youth, was not eligible for a survivors pension after her elderly husband passed away).19

If the question that observers wanted answered by Law was about the continued relevance of relevance, the introduction of human dignity as central to the doctrine came as a surprise. It was mercilessly skewered by Peter Hogg who labelled it “vague”, “confusing”, and “burdensome to claimants”.20 The “contextual factors” fared no better, as they were, after all, a non-exhaustive list, and the Court had provided no guidance on how they were to be weighted. The correspondence factor came in for particular critique, with many seeing it as a revival of the much critiqued “relevancy” test from Egan. An empirical analysis of caselaw by Ryder, Lawrence and Faria in the years after Law illustrated how many claims were foundering on this particular factor.21 Hogg described the work of the correspondence factor in Supreme Court cases:

The correspondence factor has become the key to the impairment of human dignity. … Stripped of unnecessary verbiage, I suggest that the correspondence test, as it has been applied by the Court, comes down to an assessment by the Court of the legitimacy of the statutory purpose and the reasonableness of using a listed or analogous ground to accomplish that purpose. If I am right, this leaves very little work for section 1 to do.22

Even the Supreme Court could not produce consistent results with the Law recipe, splitting badly in Gosselin on whether there was “correspondence” and therefore on whether there was a negative impact on human dignity.23

In 2008, the Court continued the section 15 tradition of replacing without overruling in Kapp, a challenge to a federal program that offered special access to a 24-hour fishery on the Fraser River to members of three First Nations bands. Kapp and his supporters, who were not members of these bands, challenged the program as discriminatory on the basis of race.24 A unanimous Court retreated from some of the more problematic (p. 822) aspects of Law, notably pulling back from the articulation of human dignity as the lynchpin of constitutional equality:

… 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.25

The solution was another attempt to describe the core elements of Andrews in ways which would better avoid the formalism and rigidity that seems to keep creeping back into our jurisprudence, to refocus on the purpose of section 15. The Court rather narrowly described that purpose as “combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping”.26 The other significant outcome of Kapp for the purposes of this chapter was with respect to section 15(2). Whereas an earlier case, Lovelace, had suggested that the role of section 15(2) was to provide guidance in the section 15(1) analysis, and the Law contextual factors had included a consideration of “the ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society”(Law para 72, 73), in Kapp the Court moved to describe a more independent role for section 15(2) as a way of enabling governments to develop programs to remedy disadvantage without immediately becoming vulnerable to claims of discrimination.27

The decision to offer “independent force” to section 15(2) means that government objects and intentions figure in the analysis before the turn to section 1. But it also means that these are considered not in section 15(1) (which would contradict the letter of the siloing in Andrews) but in a “distinct and separate” provision.28

The cases after Kapp suggest that the revision of Law, and the return to Andrews, has offered some improvement in the clarity of section 15 judgments. However, this is mainly through clearing away the unhelpful doctrinal embroidery from Law, rather than from providing a new, clearer, analytic model. And the change does not seem to be improving the outcome for claimants. Withler, for instance, found the Court doing away with the much critiqued notion that each claim required a mirror comparator group (a group of people differing on a particular characteristic from the claimant group, illustrating the differential treatment). But unlike the earlier cases which failed without a mirror group, in Withler the mirror comparator group might have supported the claimants. Rejecting mirror comparison as “formalistic”, the Court instead described the focus of the discrimination analysis as:

the object of the measure alleged to be discriminatory in the context of the broader legislative scheme, taking into account the universe of potential beneficiaries. The (p. 823) question is whether, having regard to all relevant factors, the impugned measure perpetuates disadvantage or stereotypes the claimant group.29

This approach requires the Court to consider what the government was trying to do—by looking at the panoply of other age-related financial program and the differential needs amongst plan beneficiaries. Having done so, they concluded that “the package of benefits, viewed as a whole and over time, does not impose or perpetuate discrimination”.30

The thrust of Withler, then, is that the differentiation on the basis of age in the legislation is not discriminatory, because it is designed to meet differential needs which can be broadly construed as related to age. But the Court in Withler does not, as Jennifer Koshan and Jonette Watson Hamilton point out in their very thorough critique of the decision, explain why these arguments are appropriately considered in the section 15 analysis.31 Even a return to the language of relevance is not explained by the Court or integrated into the revival of Andrews which was supposedly heralded by Kapp:

Substantive equality … asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group.32

Readers of Withler will note the striking flexibility of the analysis the Court is using, and the way this is justified by the need for contextual analysis in seeking to protect substantive equality. But this approach cannot assist lower courts, claimants, and litigators in building arguments. With regard to the central question in this analysis, Withler says nothing directly about the appropriate division between items for consideration at section 15 and those to be considered at section 1. Indirectly, it speaks volumes about the Court’s unwillingness to move to section 1 in this kind of case.

There are some cases in which the Court, or some members of the Court, have moved to section 1 following the conclusion that section 15 has been violated. The majority of these cases find the violation unjustified by section 1, and I will not directly address those cases in this analysis.33 However, there are a small number of cases in which section 15 violations are upheld by section 1—either by the majority, or by a significant set of justices. After describing some unique features of section 15 which might warrant attention in the next section, I will turn to three of these post 2001 cases.

(p. 824) 2.  A Right Apart: Unique Features of Section 15

This chapter aims to focus on section 15’s relationship to section 1. Yet the Court often purports to treat the application of section 1 as if it is applied in the same way regardless of the right to which it is being applied. It is always the Oakes test, and the list of features of a law which call for deference to the government in the application of the Oakes test is a standard list.34 Without calling into question the standard features of the application of section 1, I here describe some specific features of section 15 that may give it a unique relationship to section 1: the onerousness of section 15 for claimants, the treatment of government goals in section 15(2), worries about strangling government, and the normative mismatch between what section 15(1) seems to protect and the impact of section 1’s focus on the needs of the larger collective.

Unlike most other Charter rights, most notably section 2(b), the development of s.15 doctrine has made it very difficult to establish a successful claim.35 Scholarly critique tends to focus on cases in which the equality claim fails and there is no section 1 analysis, a significant subset of the existing cases. This leads to a body of work which could be read to argue that the problem is only the placement of attention to government goals, or “justification”.36 It seems, however, unlikely that many of these critics would be content if government goals operated at section 1 to uphold the law, rather than operating at section 15 to support a conclusion that the right had not been violated.

Comparison reveals that indeed some other rights have been interpreted extremely broadly, with no attention to government goals or intention in the analysis.37 The focus is instead on the activity of the claimant and the way in which this is affected by the government law or action. The limitation of these rights, particularly section 2(b) rights, is, at this point in the history of the Charter, relatively commonplace (this is of course quite apart from the question of particular cases in which rights have been limited, which have raised significant controversy). As Sheila Martin has written with respect to section (p. 825) 2(b), “[t]he purpose of the right … informs its limitation but the level of appropriate limitation is entirely a function of section 1”.38 The context of the violation, and the concept of deference (when appropriate) to the legislature then help the “Court to scrutinize the importance of the impugned expression under section 1”.39

Section 15, in contrast and as we have seen, has a complex, multistep analysis, which results in a large number of claims failing at this part of the analysis. In this respect it is more similar to section 7, which also involves a multistage analysis, one directly mandated by the text.40 It is often said of section 7 claims, as it is of section 15 claims, that they will only very rarely be the subject of successful government arguments at section 1.41 But the text of section 7 does seem to require a two-stage analysis in a way that, textually, at least, is quite different from section 15.

The relatively complex and (arguably overly) onerous interpretation that section 15 has been given was not inevitable. Other options were canvassed in the period before Andrews, and before the three steps of grounds, differentiation, and discrimination started to feel cemented into section 15. Discussions at the time and since suggest that there is some important symbolic meaning to the decision to place government goals either in section 15 or in section 1. Would some additional damage to the value of equality accrue if the courts were repeatedly finding violations of the equality right to be “reasonably and demonstrably justified” as state action?42

Leading constitutional scholar Peter Hogg raised a version of this concern when he suggested in the mid-1980s that one way to deal with the complexity of section 15 analysis would be to ask only one question: Is there differentiation?43 There would not even be a grounds inquiry in this approach, and Hogg notes that this simplicity would render the equality provision similar in analytic process to section 2(b), in that in virtually every case, the meat of the inquiry would be in section 1. As we have seen above, (p. 826) Justice McIntyre in the inaugural section 15 case, Andrews, rejected this approach, arguing that it “virtually denies any role for s. 15(1)”.44

In fact, McIntyre J. took a rather deferential approach to the section 1 analysis, differentiating section 15 from other sections also subject to section 1,

given the broad ambit of legislation which must be enacted to cover various aspects of the civil law dealing largely with administrative and regulatory matters and the necessity for the Legislature to make many distinctions between individuals and groups for such purposes.45

However, for the majority on this question, Justice Wilson argued “[g]iven that section 15 is designed to protect those groups who suffer social, political and legal disadvantage in our society, the burden resting on the government to justify the type of discrimination against such groups is appropriately an onerous one”.46 Justice La Forest, who would have accepted a somewhat less “onerous” version of Oakes, found that the Government could not meet even that standard, providing a result that, 4-2, favoured the claimant.47 The lesson of Andrews seemed to be, as Justice Wilson wrote, “cases will be rare where it is found reasonable in a free and democratic society to discriminate”.48 Rare—but not non-existent.

In addition to relative complexity of a section 15 challenge compared to some other Charter rights, Section 15(2) also supports the idea that there is a symbolic significance to the gap between non-discrimination and justified discrimination. From the beginning, s. 15(2) has been understood to protect the government’s ability to remedy inequality through targeted programs which treat people differently based on ascriptive characteristics (gender, race, disability, for instance). Such programs are not a form of justified discrimination—rather they do not violate section 15, according to section 15(2). The existence of this section seems to support a substantive equality approach to section 15(1), but in Lovelace and Law, it was treated as part of the section 15 analysis, a reminder that these state efforts form part of the context that helps determine whether the differentiation at issue is actually discriminatory.49 This interpretation clearly treats public policy goals as a key part of the section 15 analysis, if only in this limited sense. However, the Court’s latest interpretation of this section, in Kapp, holds that s.15(2) shields programs created to try to promote equality from the full operation of section 15, and creates a distinct role for section 15(2):50

Does this add yet another stage to the whole rights and justification analysis, or does it import public policy goals into section 15? On either interpretation, section 15(2) illustrates that government explanations of policy choice are not always doctrinally relegated to section 1. It also, I think, indicates that even in a two-step system such as Canada’s, we have to pay attention to the symbolic importance of precisely how claimants fail.52 The complexity of the section 15 analysis (which might both justify an onerous section 1 analysis and ensure that cases in which discrimination can be established will have features which make a section 1 argument very difficult for the government), along with the existence of section 15(2), might help us understand some of the reasons that applying section 1 to equality cases demands particular attention. Institutional competence concerns fill out this understanding. How can the Court best respect the pragmatics of law-making in its approach to section 15? And how can it cope with the normative mismatch created by the dual role the Court must play—both guarding the rights enshrined in the Charter and respecting institutional competence in determining their reasonable limits?

3.  Law-Making as Line Drawing and the Problem of Normative Mismatch

Early in discussions of section 15, a vision of law-making emerges in which the role of the legislator is understood to be fundamentally engaged with line drawing, differentiation, and categorization. Treating all of these things as violations of section 15 would result in an enormous number of violations, and so early discussions of how to interpret the section included concerns that taking the approach suggested by Hogg would have the effect of distorting the section 1 analysis.53 In Andrews, the idea of a wide open section 15, one more like section 2(b), prompted some anxiety over the Court being forced to produce some kind of section 1 justification, lest the country fall into “anarchy”:

… courts would be obliged to look for and find section 1 justification for most legislation, the alternative being anarchy …54

(p. 828) The idea of being “obliged” to look for justification lest all rules be thwarted points to a kind of pragmatic limit on the transformative powers of section 15—the Charter can only take on so much. If masses of contemporary legislation violate section 15 and are therefore unconstitutional, then it must be the Charter that bends.55 That the Charter must not be used to invalidate massive amounts of legislation might be either counter-intuitive or obvious, depending on one’s political convictions about rights review, but either way it is relatively rare to see judges overtly referencing this aspect of their decision-making, let alone treating it as the main factor in their choice.

Ultimately the Court chose an interpretation of discrimination which eliminated the extremes of this challenge, but similar concerns continue to surface. For instance, section 15(2) has been interpreted with an eye towards allowing government some freedom in developing ameliorative programs. A fear that equality will strangle government if not contained somewhere in the march through sections 15 and 1 has been an overt concern in terms of both the development of section 15 and the application of section 1 to these cases. Beside this pragmatic concern sits another, which takes the location of the containment very seriously, positing a critical if somewhat symbolic importance to the gap between non-discrimination and justified discrimination.

This critical-but-symbolic importance most obviously appears in discussions of section 15(2), often explained as a reaction to U.S. jurisprudence treating “affirmative action” programs as discriminatory.56 These explanations are credible in terms of what the drafters were thinking, but they do not often note that the existence of section 1 already provides a route around such a finding (albeit not a clear textual instruction). Of course, the failure of a claim via section 1 would involve “justified discrimination”, where the failure of a claim at a section 15 finding means non-discrimination. What is the significance of this, whether or not a program discriminates, in a system where that is not the final word on the survival of the law? This could be distinct from concerns about strangling government, or it could hint at the way even a finding of justified discrimination will constrain policy development. Refusing the language of “reverse discrimination”, insisting that there is a category of programs which differentiate but do not discriminate because they are intended to improve equality, must surely suggest something about the power of the claim that a program is discriminatory. This in turn may illuminate why some judges resist the language of discrimination by pointing to government goals, or seem to want to stretch the concept of ameliorative program to include (p. 829) almost any benefit program provided by the state. These approaches avoid the finding that section 15 has been violated.

Finally, we can think about whether the anxiety which seems to attach to the very notion of justified discrimination might be attributed to a kind of what I will call a “normative mismatch” between section 15 and section 1, in the way that section 15 could be seen as an attempt to protect from the “tyranny of the majority” (even when it is an unintentional tyranny, a tyranny of non-attention, for instance), and section 1 brings back the idea that the needs of the whole might, on balance, justify discrimination. As Sheila Martin notes:

[i]f a “commitment to social justice and equality” is a core value of a free and democratic society it may be logically difficult to hold that a breach of equality rights is a reasonable limitation.57

This potential “normative mismatch” may build pressure for judges to resolve cases by finding no violation rather than having to directly engage with the question of when discrimination (which was at one time dramatically defined as an affront to basic human dignity) is justified in a free and democratic society. It is perhaps not surprising that the courts relatively rarely accept the tension such a confrontation would generate.

In outlining these three themes—law-making as line drawing, the symbolic importance of whether there is justified discrimination or no discrimination at all, and “normative mismatch”—I am aiming to unpack some of the challenges that Canadian courts face in trying to work out how to apply section 1 to section 15 cases, and how these challenges shape doctrines and reasons. This unpacking does not, I think, illustrate what the Court should be doing. Rather it is meant to point out how looking at section 15 and section 1 in isolation or looking only at a section 15 win/loss record may obscure the complicated interrelationship between the two—especially as the justices of the Supreme Court have been quite inconsistent in terms of directly addressing this relationship.

4.  Three Cases of “Justified Discrimination”

In this section, in an effort to illustrate the themes and concerns described above, I will consider the only three cases of “justified discrimination” released since 2001, when Martin’s article was published. Two brief notes before turning to these cases. First, I am using a working hypothesis that the low number of cases is due to the symbolic tensions raised by these decisions. However, this has to be read alongside the forces that shape which challenges even make it into the court system, let alone to our (p. 830) country’s court of last resort. Quantitative approaches can be useful in filling out this picture. For instance, Choudhry and Hunter suggest there is empirical support for the hypothesis that the very difficult nature of establishing a section 15 claim means that any violations are usually found unjustifiable at section 1.58 As such, the cases I highlight below must be seen as exceptions. Second, I have not, for reasons of space, considered the companion group of cases—post-2001 section 1 assessments in equality challenges where the government was unsuccessful.59 Although more work on these cases could be useful (for instance, Sheila Martin’s article considers a large number of such cases pre-2001),60 the section 1 analyses in these cases are, in my view, perfunctory and undifferentiated from the kinds of approaches taken in cases involving other Charter rights. Their cursory nature is interesting—the details of it less so. With these caveats, I turn below to the three cases.

A.  Lavoie

The decision in Lavoie is the most unruly of the three I will consider here, with four sets of reasons. The case involves a civil service hiring rule which creates a preference for citizens in open job competitions. The plurality upheld the law. Three justices, dissenting, found a violation of section 15, not justified under section 1, while four justices found a violation of section 15, justified under section 1. Finally, two justices found no violation at all, including Justice Arbour, whose forcefully written judgement demanded that all the others at least consider the relationship between section 15 and section 1. Her approach echoes the anxieties about overly broad approaches to section 15, and the way they either hamper legislatures or involve perverting the section 1 analysis to ensure justification. She took issue with the (then current) human dignity test from Law, arguing that it replicated the path rejected in Andrews, one in which there was a straight line from differentiation to the finding of a section 15 violation.61 Her concern was the creation of a paradox resulting from an overly broad interpretation of section 15.

… only by continually loosening the strictures imposed under the test that s. 1 can discharge the onerous burden that it has been placed under. The problem is that in thus discharging its burden s. 1 effectively denudes the equality rights guaranteed (p. 831) under s. 15(1) of their meaning and content while paying lip service to a broad and generous concept of equality.

In other words, judges who are too generous at section 15 will be forced by institutional competence concerns to reject the appropriate “uncompromising rigour” of section 1 in order to “guard the integrity of the legislative process”.62 This possibility, and the word “anarchy”, is the one that surfaced in Andrews.63 The judges in Lavoie who went the “justified discrimination” discrimination route found the law violated human dignity, a “sacrosanct” right64 and then, in the section 1 analysis, said the impact was a mere “inconvenience”.65 Like Justice McIntyre in Andrews, Justice Arbour wanted to avoid this by tightening the section 15 analysis. In describing a narrower role for section 15 in the name of saving it, she breaches the wall between section 15 and section 1, arguing that our equality rights cannot be understood without attention to the realities of governance:

No longer will keeping the legislatures functional necessitate tolerating violations of Charter rights, the embodiments of our freedom and of this society’s most cherished values, in favour of less valued state objectives such as the one at issue in this case.66

Justice Arbour here offers her articulation of the role of the Court, and the dilemma that the normative mismatch can produce. Her comments may speak to not only the doctrinal significance, but the symbolic significance, of designating a law “discriminatory”. However, she failed to bring any colleagues along with her.

Instead, dissenting Justices McLachlin, L’Heureux-Dubé, and Binnie took the position that there was a violation of section 15 here essentially indistinguishable from Andrews.67 Applying the “onerous” test for section 1 as set out in Andrews, they found that it failed the rational connection requirement:

A law that favours the relatively advantaged group of Canadian citizens over the relatively disadvantaged group of non-citizens serves to undermine, not further, the value of Canadian citizenship, based as it is on principles of inclusion and acceptance.68

(p. 832) They also held that it was “crucial not to elide the distinction between the claimant’s onus to establish a prima facie section 15 violation and the state onus to justify … ”.69 The pragmatics of law-making cannot trump the institutional role of the Court. They are far less concerned about normative mismatch, pointing to the existence of a seemingly slim, but real, slice of cases in which section 15 is violated but section 1 could be invoked:

While there is a point at which granting privileges to citizens may be unjustifiable under s. 1—banning immigrants from social housing, perhaps—that point is not the same as the point at which this Court finds a s. 15(1) violation.70

The other four justices, however, found justified discrimination. That justification was mainly won through the tailoring of the impugned provision to constitute “minimal impairment” of the right. The same factors that Justice Arbour relied upon to find no violation were used by these four justices to find the right had been minimally impaired. These justices held that the relative disadvantage created was “minor”, an “inconvenience”, a situation which left certain individuals to “fall through the cracks”.71 These things are justifiable when there is no less impairing way of meeting the Government’s objective—and the Government had carefully considered a range of options. They took an approach relatively deferential to the legislative process, a standard method of responding to institutional competence concerns, though not prominent in the history of section 15.

In Lavoie, Justice Arbour’s reasons throw the choices being made by all the members of the Court into high relief. I say this despite the fact that I think that, doctrinally and otherwise, the justices of the dissent have the correct answer in the case.72 It is Justice Arbour who illustrates the significance of the choices and articulating the impact on section 15 of different approaches to discrimination and justification—not so much a doctrinal impact, but a symbolic and institutional impact. This analysis is worth considering for the ways that it may provide insight into the kinds of long-range thinking judges are keeping under wraps as they go through the somewhat mechanical steps and stages of the section 15 Law analysis and the section 1 Oakes test.

(p. 833) B.  Newfoundland (Treasury Board) v Newfoundland and Labrador Association of Public and Private Employees

The 2004 Supreme Court docket produced a rare, if somewhat ugly, unicorn—a unanimous case in which all members of the Bench agreed there was a section 15 violation, and all members agreed the violation was justified. In Newfoundland (Treasury Board) v Newfoundland and Labrador Association of Public and Private Employees (N.A.P.E.), the Supreme Court unanimously used section 1 to “save” a decision to eliminate a $24 million pay equity settlement to largely female public sector workers, after finding that section 15 was violated by the government action.73 The critique of the decision was fairly vociferous, focusing on the extreme deference offered upon the invocation by Newfoundland of “fiscal crisis”.74 The Court appears to have tried to fend off some of this criticism, with Justice Binnie’s reasons insisting they would “continue to look with strong scepticism at attempts to justify infringements of Charter rights on the basis of budgetary constraints”.75 But the opening paragraphs of the section 1 analysis signal fairly clearly what is about to happen:

It should be stated at the outset that legislation aimed at perpetuating pay inequity is a very serious matter. Counsel for the respondent acknowledged at the hearing that this is so, but argued that this is one of those “exceedingly rare cases” where the issue is not about “administrative convenience or cost simpliciter or majorit[arian] [p]reference”. It is, he says, about “the province’s ability to deliver on some of its most basic social programs, such as education, health and welfare”.76

This came after a relatively easy conclusion that section 15 had been violated:

The effect of the Public Sector Restraint Act in 1991 was to affirm a policy of gender discrimination which the provincial government had itself denounced three years previously. The Act draws a clear formal distinction. … The adverse impact of the legislation therefore fell disproportionately on women, who were already at a disadvantage relative to male-dominated jobs as they earned less money.77

(p. 834) Compare this to Justice McLachlin’s reasons in the B.C.C.A. decision in Andrews, many years before, where she wrote:

Circumstances may arise where discriminatory measures can be justified. For example, in times of war, the internment of enemy aliens might be argued to be justifiable under s. 1, notwithstanding the fact that this is discriminatory and would not be tolerated in peace time.78

Maybe fiscal crisis is the new war. In rendering the section 1 decision it is apparent that the Court paid scant attention to the section 15 context of the case. If anything, that context was overshadowed by the epic, 231-page 642-paragraph judgment delivered by the Newfoundland Court of Appeal in the case, a gauntlet thrown down defending deference through a proposal to change the Oakes test to more clearly honour the separation of powers.79 In rejecting that proposal, and in mollifying those judges and governments outraged at the prospect of the Supreme Court rearranging the budgetary decisions of the province, the reasons say very little about equality per se. Rather they concentrate on defining the Spring 1991 situation in the province as “exceptional”, and articulating a margin of deference for budgeting.

The specific, violated right was buried in a welter of other concerns brought into the section 1 analysis, one which does not advert to the normative mismatch at all. It focuses solely on the need for legislative room to manoeuver—in this case, in almost purely fiscal terms—and treats it as uncontroversial. Binnie J’s reasons do focus on the precedents in so called “money versus rights” cases, but without attention to section 15. Instead he analogizes the claim of the Association to a s. 2(d) case from 1987 (it also challenged public sector restraint legislation—but only two justices even found a violation), erasing the section 15 context and the reasons that it might raise different issues requiring attention. Then the violated right is placed alongside other implications of the fiscal crisis, in ways which instantly minimize its significance. The Court’s unwillingness to interfere in this process is palpable, but it is not really placed into specific conversation with the right being violated. Rather other rights are brought up to do the work:

The government in 1991 was not just debating rights versus dollars but rights versus hospital beds, rights versus layoffs, rights versus jobs, rights versus education and rights versus social welfare. The requirement to reduce expenditures, and the allocation of the necessary cuts, was undertaken to promote other values of a free and democratic society.80

The women hospital workers were a disadvantaged group, but so in reality were the medical patients who lost access to 360 hospital beds, students of school boards (p. 835) whose transfers were frozen, and those who relied on other government programs that were reduced or eliminated (although it is true that in their case Charter rights were not implicated). As was pointed out in the House, “there was enough misery to go around”.81

The rights claimants, in this analysis, are just another group who lost out in this cataclysm, in which the government had to act to preserve basic social goods. This is an approach that would seem to have many potential applications especially in those many section 15 claims that look to redistribution rather than recognition. Scholars have contested the Court’s analysis of the level of crisis, and of course, the language of crisis as a justification for austerity is a phenomenon of neo-liberal politics writ large, rather than being confined to arcane constitutional balancing exercises.82 But N.A.P.E. illustrates the potency of this language, building a section 1 argument that clearly signposts an institutional competence minefield that judges ought to walk very carefully around. Hester Lessard’s consideration of N.A.P.E. along with the larger group of cases (many argued under section 7) which engage with rights in the context of fiscal restraint leads her to conclude:

The tension between scarcity and justice is an abiding theme in liberal societies. Most of us accept that “money” and the scarcity of other sorts of resources limit justice. The bleakness lies in the failure of the jurisprudence to yield a workable framework for navigating the justice/scarcity tension in a principled way. The history of equality rights provides a particularly disheartening overview of this failure.83

C.  Quebec v A.

The latest case to provide evidence of the treatment of section 15 claims at section 1 is Quebec v A., in which splits on the Court illustrate divergent views of both section 15 and its treatment at section 1. The majority decision, finding a violation of section 15 in the Quebec laws which do not provide access to spousal support or “patrimonial property” to unmarried spouses, was written by Abella J. joined by four other judges.84 Of these, (p. 836) one found both violations justified under section 1, three found the spousal support exclusion unjustified and the property division exclusion justified, and Abella J. herself found both exclusions unjustified. In the result, the appeal was lost, as four other justices found no violation of section 15 had occurred. These latter justices saw “personal autonomy” as one of the important pieces of equality:

The principle of personal autonomy or self-determination, to which self-worth, self-confidence and self-respect are tied, is an integral part of the values of dignity and freedom that underlie the equality guarantee. …85

This concern with autonomy, along with the 2002 case, Walsh (a failed equality claim by an unmarried separated spouse),86 and a narrow view of the mischief that section 15 prevents (“a disadvantage by expressing or perpetuating prejudice or by stereotyping”87) was clearly one of the driving factors towards their conclusion that the provisions—far from violating section 15—were equality supporting. In stark contrast, Justice Abella found all of the impugned provisions violated section 15, and in this she carried the majority of the Court. She then concluded that none of the sections could be saved by section 1, in language which might respond to the claim of those justices in Lavoie who held that the Government’s long engagement with the question of citizenship preferences supported the section 1 case:

… the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny. … Neither the deliberative policy route—nor the popularity of its outcome—is a sufficient answer to the requirement of constitutional compliance.88

Deschamps J. wrote for three justices who found that lack of access to support was an unjustified limit on the equality right,89 but the limitation on property obligations was justified. Like the justices who found no violation, in her justification analysis she focused on the justificatory power of the legislature’s efforts to validate individual “choice to marry”, but was clear that this should function as justification of discrimination rather than an indication of non-discrimination.90 In contrast to Justice Abella, she concluded that the limitation on the right in terms of property obligations was minimally impairing, noting a variety of ways that unmarried people could secure some aspects of property division should they choose to do so, and the way access to support (p. 837) provisions (which her reasons would have created) lessened the urgency of access to the property provisions.91 Here, other legal provisions, somewhat external to the case being argued, are raised at section 1 to illustrate how the claimants can secure some relief from the impact of the violation, an approach we might remember from Withler. Finally, Chief Justice McLachlin provided the swing vote by finding that all of the provisions were justified limits on the equality right, all of it falling into the category of “justified discrimination”. She is categorical in her analysis of where the argument about “choice” belongs, and it is not at section 15:

… [one] difficulty with Quebec’s argument is that it imports public interest considerations—the goal of maximizing choice and autonomy for conjugal partners as a whole—into the s. 15 analysis. Such interests, as I discussed above, should not be considered at the first stage of determining whether a right has been limited, but at the second stage of determining whether the limitation on the right is justified.92

She has chosen the strict siloing of the original Andrews formulation and, as Justice Arbour warned about in Lavoie, she then pairs it with some deferential approaches to section 1. Most tellingly, in her minimal analysis, she continues an approach seen in the Hutterian Brethren of Wilson Colony freedom of religion challenge.93 In denying A’s argument that an “opt out” scheme, whereby unmarried couples could opt out of these regimes, would be a lesser impairment, she set the test as “whether the limit imposed by the law goes too far in relation to the goal the legislature seeks to achieve”.94 She then noted that an opt-out approach would:

require agreement and positive action on the part of de facto spouses. The Quebec scheme, by contrast, allows couples to avoid state-imposed obligations simply by not marrying. The state-free zone created by the Quebec scheme is thus broader than under a presumptive regime.95

Thus although choice does not negate the inequality problem here, the Government’s wish to promote a regime based on choice to avoid potentially “paternalistic” measures “by instead allowing spouses to weigh the consequences of their choices and to make decisions accordingly”96 is strong enough to balance the impact on those in A’s position: “… left unprotected because their partner did not consent to marriage”.97 Looking beyond the approach from Hutterian Brethren we might wonder whether the reason for this approach in this case lies in some margin of extra appreciation allowed to the Quebec government, (p. 838) given the uniqueness of this scheme in Canada, the way in which its legislative history was linked to the period of time in which the population of Quebec moved with remarkable alacrity away from very close associations with the Catholic Church, to the point where Quebec now boasts the highest percentage of unmarried couples in Canada.98

Moving to the final stages of the balancing test, the Chief Justice accepts that the impact of this regime on the equality right as “significant”. Against this, she sets the pragmatics of law-making: “the need to allow legislatures a margin of appreciation on difficult social issues and the need to be sensitive to the constitutional responsibility of each province to legislate for its population.”99 If avoiding the strangulation of governments is a consideration, in this case we might be seeing how some governments are (perceived to be) more sensitive to choking than others.

This is a very different approach from the one that the Chief Justice proposed decades ago from her position on the British Columbia Court of Appeal in Andrews, where she stated that the equality right could be justifiably violated very rarely, for instance, in times of war.100 But the Chief Justice’s moves with regard to the minimal impairment test in Hutterian Brethren,101 her enthusiasm for engaging with concepts such as autonomy and liberty throughout her judicial career, and, I suggest, her pragmatic concern for the potential implications for the national Court of even a partial invalidation of Quebec’s unique regime in the context of Canadian federalism, are all important keys to understanding her decision. As precedent, Quebec v A. is important in terms of section 15 doctrine because of the way that the plurality essentially repudiated 2002’s Walsh, and the treatment in that case of the “choice to marry”.102 With respect to section 1, however, (p. 839) Quebec v A serves to illustrate the way in which successfully arguing that such considerations (“choice”) are not properly part of the section 15 analysis does not change the outcome. The Chief Justice’s swing vote here referenced deliberative work on the part of the legislature, and the need to allow not just room to legislate at all (the anarchy concern) but room in a federal system for provinces to legislate differently—even if in more rights-restricting ways.

These three cases offer a glimpse into the ways that the Supreme Court is making sense of the relationship between section 15 and section 1. They illustrate the scarcity of justified discrimination decisions, and the way that such decisions contain both silences and vigorous argument about the appropriate relationships between differentiation and state goals—as well as between courts and governments. There is only a limited anxiety about normative mismatch in these reasons, raised by dissenters. What these cases do not do, I think, is help us see any particular trajectory. They can, though, help us identify gaps and themes in the way that the Supreme Court is willing to decide that equality rights must be sacrificed to social—or rather state—goals.

5.  Conclusion

The place of government objectives in Charter equality claims is far from the only challenge that burdens our understanding of this right. A short list of other problems include many that I hinted at above—remaining confusion about how intersectional grounds claims will be analysed,103 a tendency to fixate on individual choice where contextual analysis might suggest more caution in using the concept of choice and liberty to dismiss equality claims,104 difficulties around operationalizing equality without letting its comparative aspect over-determine the results,105 and significant access to justice issues related not only to those which arise in almost all rights claims, but specifically to section 15 requirements that look very onerous for individual claimants.106 In spite of these other pressing issues, as the Charter promise of equality is one which is made in (p. 840) relation to the Canadian state, the struggle of the courts to understand the role of state goals and intentions in determining violations of section 15 is a critical area of study. Placing our attention on this question offers insight into the core questions of rights review in a democratic state, and illustrates the significance of constitutional form and text in interpreting the specifically Canadian form of a relatively abstract guarantee such as the equality provision. It reveals the shaky and limited nature of agreement amongst judges as to the content of the guarantee, illustrates the shifting ways in which government goals have repeatedly helped structure the scope of our right to equality itself, and provides insight into how observers of the Canadian experiment might answer the ultimate question about section 15: Has it made our society more equal? We are now asking that question amidst a chorus of warnings about (rising) inequality at every level of analysis. A focus on the significance of state intent may help us identify the doctrinal moves which have helped recognition as a remedy for inequality flourish, even as redistribution, and the kind of equal society it seems to promise, continues to stay largely out of the reach of constitutional law.

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Footnotes:

Associate Professor at Osgoode Hall Law School, York University. With gratitude to Andri Schudlo (Osgoode Hall 2016) for his able assistance with this chapter, and to Andrée Boisselle, Ruth Buchanan, and Dayna N. Scott, for their generous advice and companionship at the writing retreat that set this work in motion. All errors are mine alone.

1  Beverley McLachlin “Equality: The Most Difficult Right” (2001) 14 SCLR 17.

2  Section 15 came into effect three years after the other provisions, in order to allow governments time to bring laws into compliance with the requirements of the Charter. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

3  Sheila Martin, “Balancing Individual Rights to Equality and Social Goals.” (2001) 80 Canadian Bar Rev 301.

4  Canadian Charter of Rights and Freedoms, above (n 2).

5  ibid. The wording of section 15 was influenced by both the Canadian Bill of Rights and the US experience of constitutional equality protection. The former was seen as overly narrow in its conception of equality, whereas the latter had, at the time of the Charter’s drafting, begun to reveal the ways in which it could be used to thwart movement towards meaningful equality through a fixation on formal equality that prevented recognition of or direct action to improve underrepresentation of minority groups. These kinds of concerns carried over into the first interpretation of the section by the Supreme Court of Canada. See Jim Hendry, “The Idea of Equality in Section 15 and Its Development” (2002) 21 Windsor Y.B. Access Just. 153, 184.

6  Canadian Charter of Rights and Freedoms, above (n 2).

7  Andrews v Law Society of British Columbia, [1989] 1 SCR 143.

8  In the words of section 15, “ … in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. Canadian Charter of Rights and Freedoms above (n 2).

9  Corbiere v Canada (Minister of Indian and Northern Affairs) [1999] 2 SCR 203 [7–8].

10  This term was not used in Andrews v Law Society of British Columbia, [1989] 1 SCR 143 by McIntyre J., though he did write: “that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality” (p. 193). The first appearance of the term “substantive equality” in Supreme Court jurisprudence is in L’Heureux-Dubé’s dissenting reasons in Symes v Canada, [1993] 4 SCR 695. It next appears in Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 [61], then in Vriend v Alberta, [1998] 1 SCR 493, and subsequently makes regular repeat appearances in all of the major section 15 Supreme Court decisions (e.g., Lovelace v Ontario, 2000 SCC 37, [4], [5].; Corbiere, above (n 9) [8], [18]. For a thorough consideration of the meaning of the term in the Canadian context, see B. Ryder, E. Lawrence, and C. Faria. “What’s Law Good For? An Empirical Overview of Charter Equality Rights Decisions.” (2004) 24 SCLR (2d) 103.

11  Andrews v Law Society of British Columbia, above (n 7).

12  Peter Hogg, “What Is Equality? The Winding Course of Judicial Interpretation” (2005) 29 SCLR (2d) 39, 56–57.

13  On the issue of government intention and object in the section 1 analysis, see Sheila McIntyre, “Deference and Dominance: Equality without Substance” in S. McIntyre and S. Rodgers (eds), Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (LexisNexis Canada, 2006). On the “communicative power” of a rights violation, even one justified by section 1, see Claire Truesdale, “Section 15 and the Oakes Test: The Slippery Slope of Contextual Analysis (Symposium Issue: Commemorating the 25th Anniversary of R v Oakes [1986] 1 SCR 103)” (2011) 43 Ottawa L Rev 511.

14  Egan v Canada, [1995] 2 SCR 513. Four justices (Lamer C.J. and La Forest, Gonthier, and Major JJ.) found no violation of section 15. Justice Sopinka found a violation that was saved at section 1. Justices L’Heureux-Dubé, Cory, McLachlin, and Iacobucci found a violation of section 15 not saved at section 1.

15  ibid 536 (La Forest J).

16  See for instance, R. Wintemute, “Discrimination against Same-Sex Couples: Sections 15(1) and 1 of the Charter: Egan v. Canada,” (1995) 74 Canadian Bar Rev. 682; R. Wintemute, “Sexual Orientation and the Charter: The Achievement of Formal Legal Equality (1985–2005) and Its Limits.” (2003) 49 McGill LJ 1143; Lori G. Beaman, “Sexual Orientation and Legal Discourse: Legal Constructions of the ‘Normal’ Family” (1999) CJLS 173; B. Cossman, “Lesbians, Gay Men, and the Canadian Charter of Rights and Freedoms” (2002) 40 Osgoode Hall Law Journal 223–250 at 229–231.

17  Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497.

18  ibid [88].

19  ibid.

20  Hogg, “What Is Equality?” (n 12) 56–57; See also Martin above (n 3); Sonia Lawrence, “Harsh, Perhaps Even Misguided: Developments in Law”, (2003) 20 SCLR (2d) 93; Sophia R. Moreau, “The Promise of Law v. Canada” (2007) 57 UTLJ 415. For an effort to support the doctrinal use of human dignity, see Denise G. Réaume, “Discrimination and Dignity” (2003) 63 Louisiana L. Rev. 645.

21  Ryder, Lawrence, and Faria, above (n 10).

22  Hogg, “What Is Equality?” above (n 12) 59.

23  Gosselin v Quebec (Attorney General), [2002] 4 SCR 429, 2002 SCC 84.

24  Unfortunately this chapter does not have room for a discussion of other issues raised by this case. In particular, I would argue that the Supreme Court’s conclusion that there was differentiation on the basis of race was a grave and meaningful mistake, regardless of the fact that Kapp’s challenge ultimately failed.

25  R. v Kapp [2008] 2 SCR 483, 2008 SCC 41 [22], footnotes omitted.

26  ibid [24].

27  ibid [33] [40].

28  ibid [40]

29  Withler v Canada (Attorney General), 2011 SCC 12, [2011] 1 SCR 396 [3].

30  ibid [71].

31  Jennifer Koshan and Jonnette Watson Hamilton, “Meaningless Mantra: Substantive Equality after Withler” (2011) 16 Review of Constitutional Studies 31–62.

32  Withler above (n 28) [39].

33  For pre-2001 cases, see Martin above (n 3) for a very thorough analysis. Post-2001, examples include for instance, Trociuk v British Columbia (Attorney General), [2003] 1 SCR 835, 2003 SCC 34, Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur, [2003] 2 SCR 504, 2003 SCC 54.

34  See, for instance, S. Choudhry, “So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1” (2006) 34 SCLR 501.

35  For some empirical approaches to this question, illustrating the challenges, see: Sujit Choudhry and Claire E. Hunter, “Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) v. NAPE” (2003) 48 McGill LJ. 525 at 549. (Choudhry and Hunter note the complications created by section 1 for empirical testing of win rates and the sampling bias that case reviews create.) See also Ryder, Lawrence, and Faria, above (n 10). Of course, section 7 also has an onerous process, but at least some of this could be heavily attributed to the text of section 7 as opposed to judicial choice about the development of the section.

36  I have written in this vein myself. I should also say that there is far more nuance in this category of work by others than my simplified version here.

37  Generally, Canadian rights analysis proceeds on the basis that rights can be violated by government purpose or by the effect of government action—in other words, government intent is not required for rights violations generally, and that tends to keep these discussions confined to section 1.

38  Martin, above (n 3) 361.

39  ibid.

40  Canadian Charter of Rights and Freedoms above (n 2). “7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

41  New Brunswick (Minister of Health and Community Services) v G. (J.), [1999] 3 SCR 46 [99]; Reference Re BC Motor Vehicle Act, [1985] 2 SCR 486 [85], 24 DLR (4th) 536. No case in which section 1 has “trumped” a section 7 violation yet exists. In cases such as Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, the Attorneys General involved in the case did not even seriously argue that section 1 could uphold the impugned laws if the section 7 challenge was successful [161]. In fact, K. Selick et al., arguing from a very different theoretical perspective, write that “[t]he courts in Canada have defined away a vast portion of the word ‘liberty’ to avoid applying the test contained in section 1 of the Charter”. K. Selick, D. From, and C. Schafer ‘The Evisceration of Liberty in Canadian Courts’ in F. McMahon (ed), Towards a Worldwide Index of Human Freedom (Fraser Institute & Liberales Institut 2012), 250.

42  On equality as a “value” rather than a “right” in constitutional jurisprudence, see Peter Hogg, “Equality as a Charter Value in Constitutional Interpretation” (2003) 20 Sup Ct L Rev (2d) 113 at 117.

43  Peter W. Hogg, Constitutional Law of Canada, 2d ed (Carswell, 1985) at 799–801.

44  Andrews, above (n 8). For a further critique of Hogg’s suggested approach, see R. Moon, “Discrimination and Its Justification: Coping with Equality Rights under the Charter” (1988) 26 Osgoode Hall LJ 673.

45  Andrews above (n 8).

46  ibid 154 (Wilson J).

47  ibid.

48  ibid (Wilson J) 154.

49  Lovelace v Ontario, 2000 SCC 37; Law v Canada (Minister of Employment and Immigration) above (n 17).

50  R. v Kapp [2008] 2 SCR 483, 2008 SCC 41, [40].

51  ibid.

52  For a discussion of the communicative function of a court finding a section 15 violation justified at s. 1 as opposed to no violation at all, see Claire Truesdale, “Section 15 and the Oakes Test: The Slippery Slope of Contextual Analysis: Symposium Issue: Commemorating the 25th Anniversary of R v Oakes, [1986] 1 SCR 103” (2011) 43 Ottawa L Rev 511 at 537–538.

53  See discussion above (n 42), (n 43).

54  McIntyre J. (quoting from the judgment of Hugessen J.A. in Smith, Kline & French Laboratories Ltd. v Canada (Attorney General), [1987] 2 F.C. 359 (C.A.), at pp. 367–368, Andrews, above (n 8) 180). Recall however that under discussion in Andrews was the possibility of a section 15 test which left out both the grounds analysis and the discrimination analysis. Justice Arbour’s concern in Lavoie was, in contrast, that the human dignity test was so subjective that it consumed the whole discrimination analysis, and belied the substantive equality commitment of Andrews.

55  It may seem that the concern raised by McIntyre J. in Andrews is unclear as to whether the problem is too many cases being brought or too many cases being won, but I believe that the words “find section 1 justification” means that the problem is not cases being brought—it is how to confine the number of cases in which the claimants succeed at section 15 and section 1.

56  Hendry above (n 3).

57  Martin above (n 3) 364 (on section 1 and section 15).

58  Choudhry and Hunter, above (n 34).

59  Trociuk v British Columbia (Attorney General), [2003] 1 SCR 835, 2003 SCC 34; Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur, [2003] 2 SCR 504, 2003 SCC 54; Canada (Attorney General) v Hislop, [2007] 1 SCR 429, 2007 SCC 10.

60  Martin above (n 3).

61  Lavoie v Canada, [2002] 1 SCR 769, 2002 SCC 23 [80], [81] (Arbour J, concurring in the result). Most problematically, later in her discussion, without reference to section 15(2), she suggests that distinctions based on race might be treated as presumptive infringements ([83]), whereas others require a more searching analysis.

62  ibid (Arbour J) [91].

63  See the concern about “anarchy” raised in Andrews v Law Society of British Columbia, above (n 8) discussed above (n 54). Recall however that under discussion in Andrews was the possibility of a section 15 test which left out both the grounds analysis and the discrimination analysis. Justice Arbour’s concern in Lavoie was, in contrast, that the human dignity test was so subjective that it consumed the whole discrimination analysis, and belied the substantive equality commitment of Andrews.

64  Lavoie (n 60) (Arbour J) [85].

65  ibid [79].

66  ibid [92] (Arbour J). Although LeBel J. agreed with Justice Arbour on section 15, he felt that some of her comments about Oakes, particularly about minimal impairment, went too far.

67  ibid [1] (McLachlin & L’Heureux-Dubé JJ).

68  ibid [11] (McLachlin and L’Heureux-Dubé JJ). Other section 15 cases which failed the rational connection requirement under Oakes include M. v H., [1999] 2 SCR 3 and Vriend v Alberta, [1998] 1 SCR 493.

69  Lavoie (n 60) [23] [47] (Bastarache J).

70  ibid [59].

71  ibid [69].

72  I thank a reviewer of this chapter for pointing out that I appear to be supportive of Justice Arbour’s disposition of the case. I have made efforts to be clearer that I am not. Instead, I am intrigued, or perhaps unsettled is a better word, by the way that she positions the significance of the choices judges make, and by all claims, including hers, that too open an approach to equality at section 15 is ultimately harmful to the larger cause of equality at section 15, and harmful to the Charter itself, as it renders equality violations less meaningful, and necessitates a loosening of the section 1 analysis. I disagree with this claim, but I wonder about the power it holds over judges picking their way through the thicket of section 15 and section 1.

73  See also those four justices in Lavoie who would have found a section 15 violation saved at section 1. Lavoie, above (n 60) [21–72] (Gonthier, Iacobucci, Major, and Bastarache JJ).

74  See especially H Lessard, “Dollars versus [Equality] Rights: Money and the Limits on Distributive Justice” 2012 SCLR 58 (2d); J Koshan, “Newfoundland (Treasury Board) v N.A.P.E.” (2006) 18 C.J.W.L. 327; Judy Fudge, “Substantive Equality, the Supreme Court of Canada, and the Limits to Redistribution” (2007) 23 S.A.J.H.R. 235.

75  Newfoundland (Treasury Board) v N.A.P.E., 2004 SCC 66 [72].

76  ibid [52].

77  ibid [42] [emphasis added].

78  Andrews v Law Society of British Columbia, (BC CA) 27 DLR (4th) 600; [1986] 4 WWR 242; 2 BCLR (2d) 305; [1986] BCJ No 338; 23 CRR 273 [31].

79  Newfoundland Assn. of Public Employees v R., 2002 NLCA 72. For a full description of the fracas, see Choudhury and Hunter above (n 34) 527–529.

80  Newfoundland (Treasury Board), above (n 74) [75].

81  ibid [93] [emphasis added].

82  See Lessard; Koshan; Fudge above (n 74).

83  Lessard above (n 74) 395 (She notes: “As the record since the first benefit case in 1991 indicates, only inexpensive substantive equality claims or ones in which the budgetary impact is conceded by the Crown to be insignificant—Tétreault-Gadoury, Schachter, Eldridge, Martin and Hislop—succeed.”).

84  In Quebec (Attorney General) v A, 2013 SCC 5, [2013] 1 SCR 61, both the lower courts and the SCC tended to split the challenge to the Civil Code of Québec, S.Q. 1991, c. 64 provisions into two parts, and I have done the same here. First, the challenge to the non inclusion of unmarried spouses in the obligation of spousal support (art. 585) and second, to what is variously described in English as “patrimonial property” ([41] per Lebel J), “rights of ownership” ([400]), “division of assets”([404]) or “patrimonial measures” ([408]) (all per Deschamps J.) which actually has four parts, a compensatory allowance, (arts. 427 et seq.), partnership of acquests (arts. 432 et seq.) protection of family patrimony patrimony (arts. 414 et seq.), and a provision dealing with the family residence (arts. 401 et seq.).

85  ibid [139] (Lebel J).

86  Nova Scotia (Attorney General) v Walsh [2002] 4 SCR 325, 2002 SCC 83.

87  Quebec (Attorney General) v A, above (n 84) [281] (Lebel J).

88  ibid [363] (Abella J).

89  ibid [399] (Deschamps J) “A total exclusion from the right to support benefits only de facto spouses who want to avoid the obligation of support, and it impairs the interests of dependent and vulnerable former spouses to a disproportionate extent”.

90  ibid [384] (Deschamps J).

91  ibid [404] (Deschamps J).

92  ibid [431] (McLachlin CJ).

93  ibid [438] (McLachlin CJ).

94  ibid [442] (McLachlin CJ) [emphasis in original].

95  ibid [443] (McLachlin CJ).

96  ibid [444] (McLachlin CJ).

97  ibid [441] (McLachlin CJ).

98  See the chapters in this Handbook in the Part on federalism.

99  Quebec (Attorney General) v. A above (n 84) [449] (McLachlin CJ).

100  Andrews v. Law Society of British Columbia, (BC CA) 27 DLR (4th) 600; [1986] 4 WWR 242; 2 BCLR (2d) 305; [1986] BCJ No 338 (QL) (McLachlin J.A. as she then was) [31] (“Circumstances may arise where discriminatory measures can be justified. For example, in times of war, the internment of enemy aliens might be argued to be justifiable under s. 1, notwithstanding the fact that this is discriminatory and would not be tolerated in peace time. Viewed thus, s. 1 plays a vital role in the determination of the validity of legislation impugned on the basis of s. 15. The role, while essential, is limited; most cases may not disclose circumstances which can be argued to justify discriminatory legislation. This, in my view, is as it should be.”)

101  Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567 [53–62] (writing for the majority, the Chief Justice held that, in the section 1 analysis, the legislative goal was to be accepted into the analysis without change. In this particular case, that meant the goal was a blanket requirement of pictures on drivers licences. The working of the proportionality analysis then tended to favour the government, as the photographic requirement was what violated the religious right. However all efforts to suggest alternatives which would make space for the religious beliefs were held by the Court to deviate from the actual legislative goal. The majority concluded that, given this goal, the law “minimally impaired” the right).

102  Quebec (Attorney General) v. A above (n 84) [341–347] (Abella J) (majority on this issue; dissenting in the result); Nova Scotia (Attorney General) v Walsh, above (n 85); for critiques of Walsh, see D. Majury, “Women Are Themselves to Blame: Choice as a Justification for Unequal Treatment” in F. Faraday, M. Denike, and M.K. Stephenson (eds), Making Equality Rights Real: Securing Substantive Equality under the Charter (Irwin Law, 2006) 209–244; S. Lawrence, “Choice, Equality and Tales of Racial Discrimination: Reading the Supreme Court on Section 15” in S. McIntyre and S. Rodgers (eds), Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (LexisNexis Butterworths, 2006).

103  See D. Gilbert, “The Silence of Section 15: Searching for Equality at the Supreme Court of Canada in 2007” (2008) 42 SCLR (2d), 2008.

104  S. Lawrence, “Choice, Equality and Tales of Racial Discrimination: Reading the Supreme Court on Section 15” (2006). SCLR, Vol. 33, 2006.

105  See for instance, H. Lessard, “Mothers, Fathers, and Naming: Reflections on the Law Equality Framework and Trociuk v. British Columbia (Attorney General)” (2004) 16 Can. J. Women & L. 165; S.R. Moreau, “Equality Rights and the Relevance of Comparator Groups” (2006) 5 Journal of Law & Equality 81–96.

106  J. Watson Hamilton and J. Koshan. “Kahkewistahaw First Nation v. Taypotat: An Arbitrary Approach to Discrimination” (2016) 76 SCLR (2d) 219; Julie Jai and Joseph Cheng, “The Invisibility of Race in Section 15: Why Section 15 of the Charter Has Not Done More to Promote Racial Equality” (2006) 5 J L & Equality 125.