The marriage of human rights codes and section 15 of the Charter in pursuit of equality: a case for greater separation in both theory and practice.

Author:MacKay, A. Wayne
Position::Canada
 
FREE EXCERPT
  1. INTRODUCTION: FROM ENRICHMENT TO CONTAMINATION II. BACK TO BASICS: DIFFERENT INSTITUTIONAL ROLES AND APPROACHES a. CHALLENGING BENEFIT SCHEMES BLURRING THE LINES III. TESTS FOR DISCRIMINATION: SECTION 15(1) OF THE CHARTER AND O'MALLEY'S PRIMA FACIE CASE a. THE ANDREWS ERA: HAPPY UNION b. THE LAW ERA: STRAINS EMERGE C. CONVERGENCE ON GOVERNMENT BENEFITS d. THE LAW/DIGNITY HANGOVER e. THE KAPP ERA: NEW TESTS? IV. COMPARATOR GROUPS IN THE HUMAN RIGHTS CONTEXT a. ACADEMIC CONCERNS ABOUT COMPARATORS b. THE MOORE CASE c. CHILD WELFARE SERVICES FOR FIRST NATIONS CHILDREN V. AMELIORATIVE PRACTICES AND PROGRAMS UNDER SECTION 15(2) OF THE CHARTER AND UNDER HUMAN RIGHTS CODES a. THE DANGERS OF A TOUGH LOVE APPROACH b. PURPOSES VERSUS EFFECTS c. RATIONAL CONNECTION d. AMELIORATIVE OBJECT e. AMELIORATIVE/SPECIAL PROGRAMS VI. JUSTIFICATIONS FOR DISCRIMINATION: SECTION 1 OF THE CHARTER AND THE BONA FIDE JUSTIFICATIONS a. MEIRORIN/GRISMER ANALYSIS b. PARALLELS BETWEEN REASONABLE ACCOMMODATION AND SECTION 1 CHARTER ANALYSIS c. DEFERENCE IS CRITICAL VII. PRACTICAL IMPLICATIONS FOR EQUALITY SEEKERS: REMEDIES OF LAST RESORT a. ACCESS TO JUSTICE I. INTRODUCTION FROM ENRICHMENT TO CONTAMINATION

    Like many marriages, the equality provisions of the Charter of Rights and Freedoms and Canada's human rights codes began with the hope and expectation that the experiences of each one would enrich the other. Both legal structures pursue a fairer and more egalitarian society, and there was optimism that the two traditions would reinforce each other and make life better for victims of discrimination. In an evolving symbiotic relationship, the concept of substantive equality would be advanced and Commissions, Tribunals and Courts would collaborate in producing a more egalitarian Canadian society. While not stated in these grandiose terms, these were the seeds planted by Justice McIntyre in the first section 15 case of Andrews v BC Law Society. In Andrews, McIntyre J advocates building the Charter's equality jurisprudence on the foundation of Canada's experiences with statutory human rights codes. (1)

    Unfortunately as with too many marriages, the union of Charter equality and human rights codes has not always been a positive one and the Charter has become more of a burden than a benefit to its statutory partner. Indeed, many now argue that the importation of Charter equality concepts into the interpretation of human rights codes has limited the goal of substantive equality and reduced access to justice for front line victims of discrimination. As Professor Leslie Reaume rightly argues, the nature of the Charter should be a source of enrichment for human rights codes and not a source of contamination.

    [B]orrowing from the Charter context to the statutory context is appropriate so long as the exercise enriches the substantive equality analysis, is consistent with the limits of statutory interpretation, and advances the purpose and quasi-constitutional status of the enabling statute. The objection raised in this paper is not to the interplay but to the manner in which Charter principles, specifically those articulated in the decision in the Charter, are imported and then allowed to dominate an analysis which should be driven first by the principles of statutory interpretation, and second by the jurisprudence which has developed specifically in the regulatory context. (2) One of the ways in which the Charter might enrich human rights code jurisprudence would be in respect to theory. Both mechanisms are intended to reduce discrimination in Canadian society and advance the cause of substantive equality. Substantive equality takes account of differences where appropriate and recognizes that formally neutral rules can have adverse and discriminatory effects on vulnerable groups in society. Thus one could expect some overlap in theory and even the legal tests to be applied. However, the marriage of the two systems has its limits in theory as well as practice.

    Theory is about thinking systematically about what we think the ultimate goals are. In this sense there is nothing as practical as good theory. It helps decision-makers understand the value choices that they make. However, theory must be set in a practical and specific context and leave room for flexibility. This is true in all areas of the law but is particularly relevant to the complex pursuit of equality.

    Theories, structures, and tests help to produce predictability and certainty in the law, including laws pertaining to equality. On the other hand, flexibility and context are always important in producing justice and equality in a particular case. The challenge is to strike the correct balance between structure and predictability on the one hand and flexibility and context on the other.

    The case-by-case bottom up approach of the common law has been rejected in respect to discrimination in favour of a more theoretical top down approach to equality. (3) This is an important reality in the consideration of a balanced equality structure in Canada.

    Professor Denise Reaume contrasts two methodologies for the design and development over time of legal norms: the top-down model of the comprehensive code designed to bring to life a grand theory about the norms regulating human interactions, and the bottom-up model of case-by-case analysis, aiming toward the development of a set of principals explaining and justifying individual decisions. The author argues the latter is better suited to creating and changing norms in the discrimination law area. However, the abdication of responsibility by the common law has led to the legislatures intervening in their typical top-down style. Without a grand theory (e.g., definition of discrimination etc.) the statutory rules become arbitrary pigeonholes into which complainants must fit their fact situation or fail. (4) In early Charter section 15 cases such as Egan v Canada, Justice L'Heureux-Dube expresses a similar frustration with an excessive focus on grounds of discrimination into which all claims must be fitted.

    By looking at the grounds for the distinction instead of at the impact of the distinction on particular groups, we risk undertaking an analysis that is distanced and desensitized from real people's real experiences. (5) Because of the limited role played by courts in pursuing equality and the rejection of a common law bottom up approach to equality, human rights codes play an important and continuing role in pursuing equality. There is obviously room for overlap and cross fertilization between the Charter and human rights codes but the tests and theories that properly apply in one context do not necessarily work in the other one. Some marriage of the two structures may well be fruitful, but the distinct and separate identities of the two partners should not be lost. As will be explored in the next section, courts and human rights tribunals play different institutional roles within the Canadian legal structure.

  2. BACK TO BASICS: DIFFERENT INSTITUTIONAL ROLES AND APPROACHES

    AS with many complex legal problems it may be helpful to get back to some basics. Section 15 of the Charter is a constitutional provision that is entrenched and superior to other forms of law. Human rights codes are statutes, and while frequently described as "quasi-constitutional", they are not entrenched and can still be changed by the normal process of a majority vote in the relevant legislature. Thus one would expect that section 15 of the Charter would be a more powerful guardian of equality than statutory human rights codes. Both the Charter and human rights codes are committed to pursuing substantive equality and therefore a critical question arises: when should the two institutional structures converge and diverge?

    Bruce Ryder, Cidalia Faria and Emily Lawrence refer to Eldridge v British Columbia to say that:

    Section 15 has two purposes: ensuring that laws avoid treating individuals according to irrelevant personal characteristics, and ensuring that laws avoid further subordination of already disadvantaged groups. (6)

    The authors also note that section 15 of the Charter raises some fundamental questions about the different roles of the institutional players in a Canadian democracy.

    In a society characterized by persistent inequalities, the judiciary could enlist section 15 in the redistribution of a wide range of legal and material entitlements. Section 15 thus implicates, in a particularly profound manner, the appropriate division of responsibility between courts and legislatures in a constitutional democracy. (7) Courts have been cautious in their approach to section 15. This may be because section 15 deals with such fundamental values, and courts believe these fundamental issues are better suited to the legislative or executive branches. Thus courts have been inclined to be deferential to the other levels of the state at both the violation and section 1 limitation stages.

    This may in part explain the low success rate for section 15 claims, compared to those under most other sections of the Charter. Ryder's study is one of the few empirical studies and it considered more than 350 cases (including some lower court rulings) between 1989-2004.

    Overall, the data suggests that the success rate of section 15 claims has been relatively low, compared to Charter claims generally, throughout the Andrews decade and the first five years under Law. The data does not support the view that the Andrews test operated in a manner more supportive of equality claimants. Nor does it support the view that the courts have been particularly receptive to the claims of equality-seeking groups. For example, examining the record of Supreme Court decisions, it is striking that six of the nine grounds of discrimination listed in section 15 have not given rise to a single successful claim (race, national origin, ethnic origin, colour, religion, mental disability). Since there have been either no claims considered...

To continue reading

FREE SIGN UP