Section 15 and the Oakes test: the slippery slope of contextual analysis.

• Author: Truesdale, Claire
• Position: Canada - The Oakes Test: A Historical Perspective

This article explores the relationship between the R v Oakes test and discrimination claims under section 15 of the Canadian Charter of Rights and Freedoms. Building on Ryder et al's "What's Law Good For? An Empirical Overview of Charter Rights Decisions," this paper examines decisions by the Supreme Court of Canada over the last 25 years and appellate courts over the last 10 years that engaged in equality analyses under section 15. The empirical analysis and qualitative analysis of select Supreme Court of Canada cases lends support to the criticism of equality jurisprudence that considerations more familiar to the justification analysis of section 1 are falling into consideration under the contextual factors of section 15. The article explores the implications of the Court's current approach to context under section 15 for rights claimants and social movements more generally. Ultimately, it concludes that unless section 15 and section 1 are kept analytically distinct, and the Oakes test is restored to a place of importance in the adjudication of equality claims, there will likely be significant negative consequences for claims based in deep systemic inequalities. There will also be negative consequences for social justice movements looking to harness the communicative power of the law for political purposes.

Dans cet article, on explore la relation entre le critere elabore dans l'arret R c Oakes et les plaintes pour discrimination en vertu de l'article 15 de la Charte canadienne des droits et libertes. En se fondant en partie sur le texte de Ryder et al's intitule >, l'auteur analyse les decisions rendues par la Cour supreme du Canada au cours des 25 dernieres annees et des cours d'appel durant les 10 dernieres annees l'egard de questions d'equite fondees sur l'article 15. L'analyse empirique et l'analyse qualitative de certaines affaires jugees par la Cour supreme du Canada viennent etayer la critique relative la jurisprudence sur l'egalite selon laquelle des considerations plus couramment explorees en rapport avec l'analyse de la justification de l'article 1 s'inscrivent dans le cadre de l'analyse des facteurs contextuels de l'article 15. Cet article explore les consequences de l'approche actuellement suivie par la Cour vis--vis du contexte fondee sur l'article 15 pour les requerants de droits et les mouvements sociaux en general. En dernier lieu, il conclut que, moins que l'on analyse l'article 15 et l'article 1 de facon distinete et que l'on redonne au critere etabli dans Oakes la place importante qu'il revet dans les decisions relatives aux revendications l'egalite, il y aura sans doute de graves et nefastes consequences pour les revendications fondees sur de profondes inegalites systemiques. Il pourrait egalement y avoir des consequences negatives pour les mouvements de justice sociale desireux de mettre profit le pouvoir communicatif du droit des fins politiques.

Table of Contents I. INTRODUCTION II. CONTEXTUALANALYSIS:THE NEXUS BETWEEN SECTION 15 AND SECTION 1 III. ACADEMIC CRITICISMS OF SECTION 15 AND SECTION 1 CONVERGENCE IV. JUDICIAL DISCORD ON CONTEXTUAL ANALYSIS AND THE SECTION 15-SECTION 1 DIVIDE V. EMPIRICAL ANALYSIS OF THE JURISPRUDENCE A. Methodology B. Determinative Section of the Decision C. The Dominance of the Correspondence Factor VI. IMPLICATIONS: DROWNING OUT THE VOICES OF SYSTEMIC INEQUALITY AND DIMINISHING THE LAW'S COMMUNICATIVE POWER VI. CONCLUSION "The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified." (1)

1. INTRODUCTION

   In its 25 years in existence, the analysis by the Supreme Court of Canada (the Supreme Court or the Court) under the Oakes test has undergone many subtle but important changes. However, as it is inextricably linked to the other provisions of the Canadian Charter of Rights and Freedoms, (2) the Oakes test is just as affected by changes outside of its own logic as it is by changes within. Many commentators have remarked on the weakening of section 1 (3) in equality claim jurisprudence as a result of the increasing use of contextual analysis under section 15. (4) However, it wasn't until 2004 that a wide empirical study of section 15 jurisprudence addressed this issue, among others. (5) As section 15 jurisprudence and the analytical framework for equality claims is constantly evolving, this paper builds on that research by updating it and focusing more specifically on the implications of the section 15 and section 1 overlap. The empirical and qualitative analyses of recent cases bear out the academic criticisms that the boundary between section 15 and section 1 is increasingly permeable, with contextual factors sliding back and forth between them. This trend increases the role of section 15 and weakens the role of section 1 by allowing greater consideration of state objectives and perspectives to take place under the section 15 stage of analysis. Furthermore, it has significant consequences for claims based in deeply rooted systemic inequality and for social movements attempting to engage in human rights discourse through Charter rights litigation. As the influence of section 1 is weakened, the rigorous standard to which governments are to be held in upholding Charter rights is diminished, compromising the integrity of the Charter as a shield against the hegemonic state. The increased use of contextual analysis in section 15 has not led to a greater judicial understanding of systemic inequality. Instead, the potential for progressive and transformative change through the law is fading away under the shadow of state authority, which is present now more than ever in the shaping of the right itself.

2. CONTEXTUAL ANALYSIS: THE NEXUS BETWEEN SECTION 15 AND SECTION 1

   The question of the relationship between section 15 and section 1 is at its core about the role of context in determining equality litigation. It is about the appropriate doctrinal iteration of a contextual approach to identifying and remedying discrimination. Commentators like Colleen Sheppard have identified contextualism as critical to the analysis of discrimination. (6) If a vision of substantive equality is to be pursued, the substantive effects of discrimination and the exclusionary processes that uphold it must be examined. (7) For Sheppard, this requires a systematic contextual approach that assesses the micro-level (personal stories), meso-level (institutional structures) and macro-level (historic, social and systemic patterns) of contextualism. (8)

   Sheppard's taxonomy of levels is meant to assist in naming and identifying effects and processes of inequality and discrimination. The micro-level looks at the social locations and experiential knowledge of individuals without power in society. The meso-level looks at institutional relations of inequality. In other words, the informal norms of workplaces, corporations, educational institutions, families, religious organizations and communities and their relationship with legal norms. The macro-level situates legal questions and controversies in the larger social, economic, political and familial contexts. These contexts may undermine and impede institutional transformation; examination of them is essential to broaden the analysis.

   As discussed in the following paragraphs, the Supreme Court has adopted a broad contextual approach and addresses all three levels (although not explicitly) in the jurisprudence, to varying degrees of success. The Court appears to have struggled with consistently applying a broad contextual approach within the legal doctrine of Charter rights, where the kind of explicit delineation of the levels of inequality that Sheppard outlines is lacking, specifically since Charter rights assessment requires a multi-stage approach. In the Charter context, slotting the right contextual factors into the right stages of analysis can be particularly problematic when one stage of analysis (in this case section 15) has only more recently required explicit "purposive" and "contextual" analysis under a particular framework. (9) The result that many commentators have identified is significant overlap between section 1 and the contextual factors considered under section 15, against the backdrop of the Court struggling to articulate a consistent approach. (10)

   The Oakes test itself is an inherently contextual exercise: it asks the government to demonstrate the context that motivated the rights-infringing legislation in order to justify the infringement. The government must prove that the law: has an objective that is pressing and substantial; is rationally connected to that objective; minimally impairs the right infringed; and is proportional in an overall balancing of salutary and deleterious effects. (11) This necessitates an inquiry into whatever social, economic and political factors might be relevant to the creation and effects of the legislation in question. Furthermore, as the Court stated in Oakes, this inquiry takes place in the shadow of the broader context of "the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society." (12) Some commentators observe that the Court has struggled with undertaking a vigorous contextual analysis under section 1 without second-guessing the legislature as it addresses complex social problems. (13)

   Problems negotiating contextual analyses are not unique to section 1. The roots of a contextual approach to Charter interpretation can be traced to Madame Justice Wilson's judgment in Edmonton Journal v Alberta (Attorney General). (14) She distinguished between a "contextual" and an "abstract" approach to the interpretation of Charter rights, explaining that "a right or freedom can have different meanings...