Appendix B

• Author: Auton (Guardian ad litem of) v. British Columbia (Attorney General)
• Pages: 493-514

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Appendix B

Auton (Guardian ad litem of) v. British

Columbia (Attorney General)

Factum of the Intervener

Women’s Legal Education and Action Fund and

Disabled Women’s Network Canada

PART I  STATEMENT OF FACTS

. e LEAF/DAWN Coa lition defers to the par ties for the facts re-

lated to the particular claima nts.

PART II  QUESTIONS IN ISSUE

. e Coal ition’s position on the questions in issue is that t here is a

violation of s.  of the Charter, which is not saved by s. . e Coalition’s

submissions will not address the s.  issue.

PART III  STATEMENT OF ARGUMENT

Introduction to Section  of the Canadian Charter of Rights and

Freedoms

.  is case concerns the provision of hea lth services benets, and in

particular the exclusion from receipt of state fund ing of services related to

autism. e substantive equality question is whether there are marginalized

segments of the popul ation whose most pressing health serv ices needs are

disproportionately not met. e government’s refusal to include, within its

denition of hea lth benets, services with respect to autism is a denial of

substantive equalit y because f unding is arbitrarily tied to specic service

providers, namely doctors and hospitals.

     

. Section ’s dual purpose is to prevent discrimi nation and to pro-

mote equality. Its purpose is:

to prevent the violation of essential human dignity and freedom th rough

the imposition of disadvantage, stereoty ping, or political or social preju-

dice, a nd to promote a society in which all persons enjoy equal recogni-

tion at law as human bei ngs or as members of Canadian society, equally

capable and equally deser ving of concern, respect and consideration.

Law v. Canada (Minister of E mployment and Immigrati on), []  S.C.R. ,

at para. 

Section  of the Canadian Charte r of Rights and Freedoms, Consti tution Act,

, as enacted by the Canada Act  (UK), , c. 

. es e goals are conjunctive. When the state fails to accord substan-

tive equality based on a prohibited ground(s), this in itself should be suf-

cient to establish a breach of s. . Section  is aimed at preventing and

remedying inequalities, ensuring that the state does not exacerbate existing

inequalities. When government reinforces or ignores existing inequalities,

it simultaneously disadvantages already marginalized groups, while increas-

ing the relative advantage of dominant groups. Inequalities are measured

by unequal eects, identied through a substantive equality analysis. In the

present case, it is the existing inequal ity of the disabled that is exacerbated

by the government policy respecting the denition of health benets.

Sheilah Mart in, “Balancing Ind ividual Rights to Equ ality and Social G oals”

()  e Canadian Bar Review 

Law Society of Br itish Columbia v. Andrews, []  S.C.R. 

. A three step test was a dopted in Law v. Canada for the a nalysis of

s.  claims, but it was emphasized that the test is not a xed and rig id for-

mula. e Law test includes a ‘checklist’ of factors that are oen applied

in a mechanistic fa shion, despite the Court’s direction to the contrary.

e focus on formalistic rules a cts to decontextualize s ystemic inequality

analyses. Moreover, some of the factors from Law can be improperly used

to overemphasize a focus on the purpose rather than the eects of the law

or policy in question.

Law v. Canada (Minister of E mployment and Immigrati on), supra at paras. , 

M. v. H., []  S.C.R. , at para. 

Noa Scotia (Attorne y General) v. Walsh, []  S.C.R . , at para. 

(L’Heureux-Dubé J. in dissent)