The continual reinvention of section 15 of the Charter.

• Author: Koshan, Jennifer
• Position: Canada

1. INTRODUCTION

   The Supreme Court of Canada has taken three different approaches to section 15 of the Canadian Charter of Rights and Freedoms (1) as exemplified in the 1989 decision in Andrews v Law Society of British Columbia, (2) Law v Canada (Minister of Employment and Immigration) (3) decided ten years later, and R v Kapp, (4) handed down in 2008. Essentially, each decade the Court has tried a new approach to equality claims. In our view, these are not slightly different analytical frameworks; each includes new formulas with new focuses requiring new types of evidence. This continual reinvention justifies Justice McIntyre's claim in Andrews that equality is "an elusive concept," (5) and illustrates the Court's admission in Law that section 15 "is perhaps the Charter's most conceptually difficult provision." (6)

   In this paper, (7) we reflect upon these reinventions and conceptual and analytical difficulties. We began writing together about section 15 as a result of the Kapp decision and have now jointly authored four articles (8) and a number of blogs (9) about developments since 2008. Our writing is informed by our volunteer work with the Women's Legal Education Action Fund (LEAF), where we have both been members of LEAF litigation committees. (10) We have found that it is useful to write about section 15 together because the case law is copious, rather technical and complex, and there is a great deal of secondary literature.

   In our opinion, the continual reinvention of section 15 has led to a marked lack of success for equality-seeking individuals and groups before the Supreme Court, (11) despite its periodic recognition of some of the problems with its previous approaches. (12) Subject to a small number of important exceptions, we believe that the Court's reinvention in Kapp (and Kapp's companion cases) is its worst, and is the least likely to achieve substantive equality and remedy the oppression of disadvantaged groups in Canada. (13) We will support our claim through a brief review of the case law from Andrews to Kapp, and then focus on Kapp and the Court's subsequent decisions in Withler v Canada (Attorney General) (14) and Alberta (Aboriginal Affairs and Northern Development) v Cunningham. (15) We will also review a number of other recent cases where Kapp was applied and section 15 was given short shrift. Through this case review, we will identify a number of ongoing problems with the Supreme Court's approach to section 15, including its narrow definition of discrimination, its difficulties with fully recognizing adverse effects discrimination, its refusal to recognize any positive duty to remedy inequality, its importation of section 1 considerations such as arbitrariness and government policy into section 15, its factoring in of the cost of benefits outside the context of remedies, and its deference to governments in cases involving benefits and targeted programs. These problems indicate that although the Court continually describes its goal as one of substantive equality, it has yet to develop an approach that truly embraces that notion.

   We also include some consideration of the most recent decision of the Supreme Court on section 15, Quebec (Attorney General) v A, (16) a decision rendered while this paper was under review. We will address the implications of that case for our arguments in the conclusion. (17) Our initial response to the question posed by this issue, "The Promise of Equality--Are We There Yet?", was a definite "no." Our answer is still "no", as we will explain.

2. THE PROMISE OF SECTION 15 ITSELF

   The wording of section 15 was broader than any comparable constitutional guarantee of equality in other jurisdictions, largely because of the advocacy of women and other equality-seeking groups during the drafting of the Charter. (18) For example, the first part of section 15(1) speaks of what Andrews described as four basic rights: (19) equality before the law, equality under the law, the right to the equal protection of the law, and the right to equal benefit of the law. The use of the phrase "under the law" was protection against decisions made under the Canadian Bill of Rights, (20) in which the courts had held that discriminatory exclusions from entitlements to benefits were not covered by the guarantee of equality "before the law." (21) The more expansive wording of section 15 was seen at the time as having altered the entire orientation of the guarantee of equality from a negatively oriented guarantee of nondiscrimination to a positively oriented right to equality. (22) As another example of early promise, this time involving the second part of section 15(1) which lists the enumerated grounds of discrimination, we note that Canada was the first democracy to give constitutional status to the equality rights of persons with mental and physical disabilities. (23) And section 15(2) was included in the Charter to silence debate about the constitutionality of affirmative action programs and to protect those programs from charges of reverse discrimination. (24)

   Section 15 was thus seen as full of promise in 1982, when it was entrenched in the Constitution, and in 1985, when it finally came into effect. That promise seemed to be fulfilled in the first few cases before the Supreme Court.

3. ANDREWS / TURPIN (1989)

   The Supreme Court's first opportunity to interpret section 15 arose in two 1989 cases: Andrews and R v Turpin. (25) Andrews involved a successful challenge to the Law Society of British Columbia's requirement that lawyers be Canadian citizens. (26) At the time, the proposed answers to the question of how to analyze claims under section 15(1) lay at two extremes. (27) On the one hand, constitutional law scholar Peter Hogg was of the view that every distinction drawn in law counted as discrimination and the question of whether that discrimination was justifiable or not should be resolved under section 1. (28) The equality guarantee had little work to do under his approach. On the other hand, in her judgment in the British Columbia Court of Appeal decision in Andrews, (29) Justice Beverley McLachlin, as she then was, took the view that only unreasonable or unfair legislative distinctions were prohibited, as assessed within section 15. Her approach left no role for section 1.

   It appears to us that, over the years, Chief Justice McLachlin has brought the Supreme Court's jurisprudence around to her point of view, (30) but her approach was not adopted in Andrews. Justice McIntyre, writing for the majority on the issue of whether there was a violation of section 15(1), rejected both Peter Hogg's and Justice McLachlin's approaches and chose a middle ground: only discrimination based on grounds, both listed and analogous, is prohibited, and questions of justification are left for section 1. (31)

   In Andrews, Justice McIntyre organized his analysis around three questions: 1) Has there been a denial of one of the four basic equality rights? 2) Is there discrimination? 3) Is the discrimination based on enumerated or analogous grounds? (32) The focus on the four equality rights in the first step dissipated in subsequent cases. For the second step, Andrews relied on the concept of discrimination set out by the Court in its interpretation of human rights legislation to define "discrimination": (33)

   I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. The third step ensured that the claim fit within the overall purpose of the equality guarantee, which was said to be "to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society." (34)

   In addition to setting out the enumerated and analogous grounds approach that has prevailed, a three-part analysis and an oft-quoted definition of discrimination, Andrews established a number of important principles. Formal equality--referred to as the "similarly situated test"--was rejected and a commitment to substantive equality was made. (35) Formal equality requires that "likes" be treated alike and "unlikes" be treated differently. (36) Substantive equality is concerned with ensuring that laws or policies do not impose subordinating treatment on groups already suffering social, political or economic disadvantage in Canadian society, and recognizes that some groups may need to be treated differently to achieve equality of results. (37) For example, in the debate about whether the opposite-sex requirement in the legal definition of marriage violated section 15, a formal equality approach focused on whether same sex couples were similarly situated to opposite sex couples in relation to the objectives of the legal definition of marriage, whereas a substantive equality approach focused on whether the exclusion from marriage had the effect of further subordinating gays and lesbians in Canadian society. (38)

   Commentators have noted that the Court's understanding of substantive equality in Andrews amounted to little more than that of contextualized formal equality. (39) Only the narrowest "similarly-situated" analysis was rejected in Andrews; that is, the Court merely rejected an analysis that would have accepted Canadian citizens and non-citizens as different without looking at any context before making that assessment. (40)

   On a more...