Time to regroup: rethinking section 15 of the Charter.

• Jurisdiction: Canada
• Date: 01 December 2003
• Author: Gilbert, Daphne
• Published date: 01 December 2003
• Author: Gilbert, Daphne

Introduction I. L.'Heureux-Dube's Purposive "Human Dignity" Approach in Egan A. Integration of the "Human Dignity: Focus in Law B. Distinguishing Law's "Human Dignity" Step from a Group-Based "Dignity Analysis" II. Limitations of the Law Formulation A. The Fracture in Lavoie B. Divisions in Gosselin C. Trociuk: The Failure of Grounds 1. Critique of the Supreme Court Ruling 2. reflections on the Appellate Judgments III. Remedial Opportunity in Falkiner Conclusion In this article, the author advocates a group-based approach to analysis under section 15 of the Canadian Charter of Rights and Freedoms. Such an approach was fast presented by L'Heureux-Dube J. in Egan v. Canada. There, L'Heureux-Dube J. argued that the emphasis on enumerated and analogous grounds in equality jurisprudence detracts from a more "effects" or "impact"-based assessment of discrimination.

L'Heureux-Dube J. relinquished her position in the later Supreme Court of Canada decision of Law v. Canada (Minister of Employment and Immigration), where the unanimous Court retained the requirement that differential treatment be based on one of the enumerated or analogous grounds in section 15. The Law decision, which at the time represented a compromise to different approaches to section 15, has badly fractured in recent equality decisions (Lavoie v. Canada and Gosselin v. Quebec (A.G.)).

The author argues that reconsideration of L'Heureux-Dube J.'s group-based focus in Egan will address some of the weaknesses in the Law framework that have lead to its demise. Through an examination of both the Supreme Court's decision in Trociuk v. British Columbia (A.G.) and the Ontario Court of Appeal's decision in Falkiner v. Ontario (Ministry of Community and Social Services) (which is slated to be heard by the Supreme Court in 2004), the author supports L'Hettreux-Dube J.'s Egan framework as a more meaningful way to consider equality claims. In particular, the author argues that such a group-based approach allows for a more sophisticated understanding of gender equality challenges and offers the courts an easier methodology for assessing claims of complex discrimination.

Dans cet article, l'auteur plaide en faveur d'une approche fondee sur les groupes darts l'analyse sans l'article 15 de la Charte canadienne des droits et libertes. Une telle approche avait d'abord ete presentee par la juge L'Heureux-Dube darts Egan c. Canada. Darts cette decision, la juge L'Heureux-Dube avait soutenu que l'emphaso sur les motifs enumeres et analogues que l'on retrouve dens la jurisprudence en matiere de droit a l'egalite s'eloignait d'une evahiation de la discrimintabon fondee sur ses effets ou ses impacts.

La juge L'Heuseux-Dube a abandonne cette position darts la decision subsequente de la Cous supreme du Canada de Law c. Canada (Minisire de l'emploi et l'immigration), dens laquelle la Cour a unammement retenu l'exigance salon laquelle un traitement differencie doit etre base sur Fun des motifs enumeres ou analogues de l'article 15. L'arret Law, qui represantait a l'epoque un compromis entre differentes approches relatives a l'article 15, a ete lourdement fracture dans certaines decisious recentes en matiere de droit a l'egalite (Lavoie c. Canada et Gosselin c. Quebec (P.G.)).

L'auteur soutient qu'une reconsideration de l'approche fundee sur les groupos telle que developpee par L'Heureux-Dube dens Egan pourrait permettre d'adresser certaines faiblesses du cadre d'analyse utilise dans l'arret Law ayant mene a son abandon. Par un examen de la decision de la Cour supreme dans Trociuk c. British Columbia (P.G.) et de celle de la Cour d'appel de l'Ontario darts Falkiner v. Ontario (Ministry of Community and Social Services) (laquelle devrait etre entendue par la Cour supreme en 2004), l'auteur considere que le cadre d'analyse de L'Heureux-Dube darts Egan est une maniere plus appropriee de considerer les revendications en matiere de droit a l'egalite. L'auteus affirme en particulier que cette approche fondee star les groupes permet une comprehension plus sophistiquee des defis poses par l'egalite des sexes et qu'elle offre aux tribunaux une methodologie plus facile a appliquer lorsque vient le temps de considerer les plaintes plus complexes de discrimination.

Introduction

In 1999, the Supreme Court delivered a unanimous judgment in Law v. Canada (Minister of Employment and Immigration), (1) setting out guidelines on the appropriate framework for equality analysis under section 15 of the Canadian Charter of Rights and Freedoms. (2) Iacobucci J., writing for the Court, acknowledged prior disagreements in section 15 jurisprudence and crafted a synthesis that tried to weave together the diverse strands. Only four years later, the Law compromise has badly fractured, with a final collapse perhaps indicated in the Court's recent decisions in Lavoie v. Canada (3) and Gosselin v. Quebec (A.G.). (4) Lavoie comprised four sets of reasons while Gosselin required five separate judgments. The many decisions were more than just interpretive differences; instead, each represented significant problems with the Law framework. In this article, I echo those who argue that Law's cohesion was illusory and its test unworkable. (5) In my view, equality rights stand at a precipice as the Supreme Court's section 15 jurisprudence shows the strain of a lack of vision on the meaning and values that are accorded equality in Canada. It is ironic, and disheartening, that the only recent equality decision to garner unanimity is the Court's decision in Trociuk v. British Columbia (A.G.), (6) a case that upheld a male claimant's challenge on the ground of sex discrimination.

This article will argue that the Court should reconsider its section 15 framework, and revisit, in particular, the position advanced by L'Heureux-Dube J. in Egan v. Canada. (7) She advocated a de-emphasis on the enumerated and analogous grounds in favour of a more purposive approach to equality. Dignity was L'Heureux-Dube J.'s touchstone, and she implicated it in her contextual analysis of whether the claimant belonged to a group that had suffered historic disadvantage and whether that disadvantage was exacerbated by the impugned legislation. She was suspicious of claims from members of historically advantaged groups, arguing that section 15 be directed at ameliorating the lives of the oppressed.(8)

L'Heureux-Dube J. was unable to persuade her colleagues in Egan, but Iacobucci J.'s efforts to reach a compromise in Law did incorporate her emphasis on human dignity, fashioning it into a third step in assessing section 15 violations. The Law formulation, however, retained the requirement of differential treatment on the basis of listed or analogous grounds. I have argued elsewhere that this synthesis is unworkable. (9) In this article, I further my claim with an analysis of the splintering of the Law framework in Lavoie and Gosselin and a consideration of the unfortunate result in Trociuk. I conclude that the Supreme Court has a chance to revise its approach in hearing the appeal for Falkiner v. Ontario (Ministry of Community and Social Services). (10) The Ontario Court of Appeal's decision in that case is unanimous and well reasoned, and Laskin J.A.'s sensitive and contextual approach to the claims is reminiscent of L'Heureux-Dube J.'s position in Egan. Falkiner provides an opportunity for the Court to revisit its commitment to the enumerated and analogous grounds and to reconsider how those grounds interact with an analysis focussed on dignity.

1. L'Heureux-Dube's Purposive "Human Dignity" Approach in Egan

   We begin with a brief discussion of L'Heureux-Dube J.'s judgment in Egan. Egan was one-third of the so-called trilogy of section 15 decisions released in 1995. (11) Prior to the trilogy, the Court followed the direction set out in its inaugural section 15 decision of Andrews v. Law Society of British Columbia, (12) which Sheilah Martin has described as a "human rights approach". (13) The Andrews framework focussed attention on group disadvantage and rejected a distinction between reasonable and unreasonable discrimination. (14) In the 1995 trilogy, the Court's approach splintered. McLachlin, Cory, Iacobucci and Sopinka JJ. continued the Andrews approach and emphasized the importance of historic disadvantage in the analysis. Lamer C.J. along with Gonthier, LaForest and Major JJ. took section 15 in a new direction, asking whether the law was based on irrelevant personal characteristics (the "relevance test"). (15)

   L'Heureux-Dube J. developed her own approach, minimizing the role of the enumerated or analogous grounds. She was concerned that the Court was not cohesive in its vision of what equality means and outlined a vision for giving full effect to the ideal of equality: the Court should consider "human dignity" as the definitional objective of equality, as reflected in questions of whether a person is treated with equal concern, respect, and consideration. While not restricting the availability of section 15, she insisted that equality analysis should focus on those individuals who belong to groups that have suffered historic disadvantage.

   The imposition of any such limits or presumptions in section 15 analysis has been controversial in both judicial and academic considerations of equality. For instance, in R. v. Hess, (16) McLachlin J. (as she then was) explicitly rejected the idea that men (a historically advantaged group) could not bring claims of sex discrimination, arguing: "There is no suggestion ... that men should be excluded from protection under s. 15 because they do not constitute a 'discrete and insular minority' disadvantaged independently of the legislation under consideration." (17) Diana Majury notes that the argument that section 15 should apply only to subordinated or disadvantaged groups has not been made explicitly but, "feminists have certainly argued against the symmetrical application of the equality...