Transcending Language, Transforming Context:
Reclaiming Charter(ed) Territory

Prepared by:

Norma Won

For:

The Court Challenges Program of Canada
616 - 294 Portage Avenue
Winnipeg, Manitoba R3C 0B9
Phone: (204) 942-0022 Fax: (204) 946-0669


August 1998

Introduction

The year is 1998 and the world is celebrating the 50th anniversary of the Universal Declaration of Human Rights, a document drafted in large part by a Canadian, John Peters Humphrey, which outlines what many consider to be the ultimate expression of fundamental rights and freedoms to which every person in every country is entitled. Has Canada lived up to its promise? Certainly the wording of the equality rights provision of the Canadian Charter of Rights and Freedoms draws heavily from international documents. Section 15 of the Canadian Charter reads:

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex , age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged persons or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex , age or mental or physical disability.

What has the last fifty years and in particular the last 13 years (since the coming into force of section 15) meant for the rights and freedoms of persons living in Canada? Recently, there has been a modest run of victories in the equality arena from both the Supreme Court of Canada and various lower level courts. Although these successes are to be celebrated, there is a conspicuous lack of unanimity from the Supreme Court of Canada with respect to the test for section 15, making it that much more difficult for equality-seeking groups and individuals to present clear and cogent arguments.

This paper will begin with a brief outline of the first ventures into formulating a test for determining whether a violation of section 15 has occurred, including an examination of section 1 considerations. This leads to a discussion of not one, but three distinctly different tests in the trilogy of equality decisions released by the Supreme Court of Canada on May 25, 1995. Following that will be an analysis of recent equality decisions, concluding with some thoughts on emerging issues for future litigation. This is not intended to be an exhaustive review of all of the equality rights cases already decided, but rather an attempt to highlight the various equality principles accepted by the courts in order to create a base on which future equality arguments can be built.

Venturing into un-Charter(ed) territory: Andrews and Turpin

The Supreme Court of Canada first contemplated the scope and content of the equality section in two decisions released in 1989: Andrews v. Law Society of British Columbia and R. v. Turpin. In these cases, the Court outlined a two-step framework for finding a violation of the rights affirmed in section 15(1). The first step is to determine whether the law being challenged makes a distinction, intentional or not, based on the personal characteristics of the individual or group making the allegation, which results in the denial of one or more of the four basic equality guarantees, i.e. equality before and under the law, equal protection and equal benefit of the law. Once this is established, the claimant must then demonstrate that this distinction results in discrimination based on an enumerated ground (i.e. one of the personal characteristics listed in section 15 such as age or sex) or an analogous ground (i.e. additional grounds which are considered by the courts to be protected by the Charter because they are similar to the grounds listed in section 15 such as sexual orientation or citizenship). In addition, the distinction being made must result in either the imposition of burdens, obligations or disadvantages on an individual or group not imposed on others, or in the withholding or limiting of access to benefits, opportunities and advantages available to other persons in society. These two cases also discuss the importance of looking at group-based disadvantage (the "social context") when examining claims of inequality:

...this is a determination which is not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society. While legislatures must inevitably draw distinctions among the governed, such distinctions should not bring about or re-inforce the disadvantage of certain groups and individuals by denying them the rights freely accorded to others.

The contents of the test articulated by the Court, including the contextual analysis, boded well for the advancement of substantive equality over the emptiness of formal equality principles. To further explain, formal equality arguments are based on the notion that people who are alike should be treated in the same manner and that people who are different should be treated in a different manner according to their differences. This idea was used to justify discrimination in Canada (A.G.) v. Lavell, where the Supreme Court of Canada held that there was no discrimination when Aboriginal women who acquired "status" under the Indian Act subsequently lost that status upon marriage to non-status men, even though Aboriginal men in the same circumstances did not lose their status. The Court found that as long as all status Aboriginal women were being treated the same way, there was no discrimination. Instead of comparing status women with status men in the same circumstances, the Court chose to compare status women with other status women. This choice of comparison groups reveals that equality is not a fixed concept with rigid rules, but rather a reflection of certain choices, informed by one's social, political, and cultural values.

Although there are many different visions of substantive equality, they all share the common principle that the context in which distinctions are being made needs to be examined. One definition of substantive equality requires creating conditions in which everyone has the right to "equality of opportunity". For example, a written employment test may discriminate against candidates with learning disabilities. In order to provide an equal opportunity for this potential employee, a different test, eg. an oral test, could be used. Another definition of substantive equality is termed "equality of results". Thus, instead of focusing on the hiring process, substantive equality would require the creation of conditions whereby a certain number of persons with disabilities be hired. Other visions of substantive equality include the "removal of conditions of subordination or disadvantage", the "creation of conditions for self-fulfillment" and the right of persons to "equal concern and respect". These latter concepts reflect a less legalistic and a more contextual approach to equality, focusing more on ensuring that all persons are able to participate in society to their fullest capabilities and potential, with less regard to the specific effects of particular laws.

Justifiable Discrimination ­ Deference and Section 1

The analysis of equality rights does not end with section 15. Even when a violation is found, the government still has recourse to section 1 which allows for discriminatory action where it is established that such action is a reasonable limit which can be "demonstrably justified in a free and democratic society." Although Andrews and Turpin did not discuss section 1 to any great extent, both decisions affirm the principle that the analysis for this provision should remain distinct from the analysis required for section 15.

The two-step test for section 1 was first articulated by the Supreme Court of Canada in R. v. Oakes. In the first step, the government seeking to justify the Charter violation must show that the objective of the legislation is pressing and substantial. The second part of the test requires that the government demonstrate proportionality between the objective and the means employed to achieve it. In order to do so, the government must prove that there is a rational connection between the objective and the means used, minimal impairment of the right and proportionality between the amount of harm and the amount of good created by the law under question.

In McKinney v. University of Guelph, the Supreme Court of Canada watered down the Oakes test in some ways, saying that the court had to respect the government's primary role in making law and policy for our society. They referred to this new approach as "judicial deference". At issue in this case, were the mandatory retirement provisions and the definition of "age" in the Ontario Human Rights Code, which denied protection from discrimination to persons 65 years of age and older. In particular, the Court relaxed the minimal impairment portion of the test opening the door for the government to interfere with equality rights when faced with competing claims and the question of the proper distribution of scarce resources. The Court also introduced the notion of "incremental" change stating that it was not the Court's role to question how quickly the government should proceed in moving towards equality.

This decision stands in contrast to T&aecute;treault-Gadoury v. Canada (Canada Employment and Immigration Commission), where the Court struck down provisions of the Unemployment Insurance Act which denied benefits to persons over the age of 65 on the basis of age discrimination. In this case, the Court found that the government had not met the minimal impairment portion of the Oakes test, i.e. the provisions which completely denied ordinary unemployment benefits to persons 65 years of age were not designed carefully enough for the government to achieve any of its objectives. For example, if one of the government's objectives was to prevent claimants from receiving both pension and unemployment benefits, it could have easily deducted one payment from the other.

And then there were three: Egan, Miron and Thibaudeau

In 1995, the Supreme Court of Canada released three concurrent decisions with respect to section 15: Egan and Nesbit v. Canada, Miron v. Trudel, and Thibaudeau v. Canada. Instead of using this opportunity to arrive at a consensus with respect to the analysis of section 15, the justices of the Supreme Court confused matters by articulating three distinctly different tests.

Egan concerned a same-sex couple challenging the opposite sex definition of "spouse" in the Old Age Security Act as discrimination based on sexual orientation. In a narrow sense, this case was a victory as it clearly affirmed that sexual orientation was a protected analogous ground under section 15. However, four of the justices found that there was no discrimination, arguing also that if they were wrong about that, they would have nevertheless found that the discrimination was justified under section 1. Four justices found that there was discrimination and that it was not saved by section 1. The remaining justice held that although the legislation violated section 15, it was saved by section 1 with the result that the legislation was held to be constitutionally valid.

At issue in the Miron case was the denial of accident benefits to common law spouses that were granted to married persons. The majority of the Supreme Court of Canada held that this constituted discrimination on the basis of marital status that could not be saved by section 1. The minority held that there was no discrimination. And finally, in the Thibaudeau decision, the claimant challenged provisions of the Income Tax Act, which required the custodial parent to include child support payments in her or his income with the non-custodial parent being permitted to deduct such payments.

Interestingly, the Court split along gender lines, with the male justices holding that there was no violation of section 15 and the two women justices finding that there was discrimination that was not saved by section 1.

What emerged from this trilogy were three different approaches to section 15 analysis. Justices La Forest and Gonthier established a three part test, with the first two steps echoing that found in Andrews. However, this duo also introduced a third step in which the distinction is to be assessed to determine whether it is based on an irrelevant personal characteristic that is either enumerated or analogous to the grounds listed in section 15. For these justices, this third arm of the test encompasses two stages: first, a court must determine whether the group to which the claimant belongs is an analogous ground under s. 15(1); and secondly, a court must determine whether the distinction is relevant when one considers the "functional values underlying the legislation." Based on this last stage, these justices find no discrimination in all three cases.

This approach poses significant hurdles to equality rights claimants and narrows the scope of section 15 considerably. In addition to proving the discriminatory impact of the provision on them, the equality seeking person or group must also show that the distinction has no connection to the values underlying the law -- and they cannot even argue that the functional values are in themselves discriminatory although this may well be the case. This is a serious problem when we consider that the assumptions and beliefs of groups with power in our society are more likely to drive our governments' law and policy-making efforts. Thus, in Egan, after finding that the functional value of the Old Age Security Act was to assist elderly married and heterosexual common law spouses, it was easy to conclude that the distinction based on sexual orientation was relevant, without considering that the underlying functional values of the Act were in and of themselves discriminatory. This approach has also been criticized for importing section 1 considerations into the section 15 test, thereby shifting the onus onto the rights claimant and narrowing the scope of section 15 considerably.

Justices McLachlin and Cory, on the other hand, cling more closely to the two-step test first articulated in Andrews. They also tried to keep the analysis under section 15 distinct from that under section 1. Although not completely dismissive of the "relevancy" concept, Justice McLachlin stated that this was only one factor to be considered in an equality analysis and that perhaps the more suitable route would be to examine it under section 1. Although Justice Cory also relied on the Andrews test, the difference in his approach when compared to that of Justice McLachlin is brought out in their separate conclusions in Thibaudeau. Whereas Justice McLachlin held that inequality generally existed where stereotypical assumptions were made based on personal characteristics, Justice Cory focused on whether the distinction imposed a burden or withheld a benefit available to other members of society. In this examination, Justice Cory held that it was possible to consider whether benefits arising from other sources could remove or correct the discriminatory effects of the challenged legislation.

Madame Justice L'Heureux-Dub&aecute; articulated a more ideologically-based approach to the analysis under section 15. In an attempt to widen the scope of section 15(1), she proposes that the focus shift from considering whether a distinction is being made on an enumerated or analogous ground to a focus on whether discrimination exists as viewed within the context of the fundamental purpose of section 15. Her test consists of asking three questions: first, does the legislation create a distinction; second, does this distinction result in a denial of one of the four equality rights on the basis of a claimant's membership in an identifiable group; and third, is this distinction discriminatory within the meaning of section 15. In answering the third question, she looks at the nature of the group affected and the interests involved. Where a group is oppressed or marginalized in our society and the interest is one fundamental to personal dignity and/or full participation in our society, discrimination will result. This approach places less emphasis on trying to fit within an enumerated or analogous ground, potentially making it simpler for claimants who experience multiple layers of discrimination. Arguably, this approach is the one which most completely examines the nature of and the context in which group exists and legislation is created. However, Justice L'Heureux-Dub&aecute;'s test has not been accepted by her colleagues. Although it may prove useful for equality seekers in articulating claims of adverse impact discrimination, it should be acknowledged that this test will not likely become the majority test, at least not in its present form.

The differences in the approach to section 1 are most pronounced in the reasoning of Justice Sopinka and Justice Iacobucci in Egan. Although Justice Sopinka's decision with respect to section 1 ultimately decided the results in this case, his analysis under Oakes is not particularly detailed. Instead, he asserts that the government must be given some flexibility in providing social benefits and recognizing new social relationships. He also referred to scarce funding resources and deferred to the government's right to make choices between disadvantaged groups, adding that the recognition of same-sex couples was a relatively recent phenomenon. Based on this reasoning, Justice Sopinka ruled that the minimal impairment and proportionality requirements of the Oakes test had been met by the government.

Justice Iacobucci, on the other hand, writing for the dissent, does a more complete analysis of the Oakes test. He found that the objective of the Old Age Security Act was to alleviate poverty and that the legislation prohibiting same-sex couples from receiving benefits was not rationally connected to this objective. With respect to minimal impairment, he stated that allowing the government to use the question of costs and the "incremental" approach provided too much deference to the government to discriminate among disadvantaged groups.

The unbelievable winning streak: From Benner to Rosenberg

In the last two years, there has been a series of equality victories, beginning in February 1997 with the Supreme Court of Canada's decision in Benner v. Canada (Secretary of State). In this case, an American citizen born of a Canadian mother and an American father applied for Canadian citizenship and was denied based on the requirements of the Citizenship Act. In this Act, children born abroad prior to February 15, 1977 to Canadian mothers had to undergo a security check and swear an oath whereas those born to Canadian fathers simply had to make an application in order to be granted citizenship. The first issue the Court dealt with was the applicability of the Charter, as section 15 could not be applied to government action which took place before it became law in 1985. The Federal government argued that any discrimination happened at the time of the person's birth, long before the Charter became law. In this case, the Court held that the claimant's status, i.e. that of a person born abroad to a Canadian mother prior to February 15, 1977, was an ongoing condition. The inequality caused by the law came into play in the 1990's when the government used this status to withhold benefits, that is, to deny citizenship to Mr. Benner.

Unfortunately, the Court did not resolve the dilemma of the three approaches to equality analysis, instead holding that the result would have been the same regardless of which test was used. The Court also recognized that the legislation under review made a discriminatory distinction based on sex, even though the applicant was a man, given that access to the benefit of Canadian citizenship was governed by the sex of his Canadian parent. The Court also dismissed the section 1 justification, holding that there was no rational or logical connection between the objectives of ensuring that potential citizens are committed --and pose no security risk-- to Canada and the requirement that only children born of Canadian mothers undergo the more difficult application process.

The next victory although not a direct section 15 case, does reveal the importance of context and the possibilities for advancing equality in the common (judge-made) law. In R. v. R.D.S., a white police officer arrested a black youth who was charged with various crimes, including unlawfully assaulting a police officer. In her oral judgment dismissing the charges, Judge Sparks commented that police officers were known to overreact, particularly with respect to persons of colour. The Federal government appealed Judge Sparks' decision on the basis that her comments would give a "reasonable person" the impression that she had judged the case in a biased way, that is, on the basis of her personal beliefs about police officers and accused persons of colour as opposed to the evidence that was before her. The justices of the Supreme Court of Canada split along many lines. Four of the justices held that the trial judge's comments were completely relevant within the context of the case, and that in fact, by alerting herself to the racial dynamic in the case, she was simply engaging in the appropriate process of contextualized judging. Two other justices held that the trial judge's remarks came very close to the line, but did not cross the line by creating a "reasonable apprehension of bias". Three other justices found that the comments led to a "reasonable apprehension of bias" and were not supported by the evidence presented.

A disturbing factor in this case is the fact that Judge Sparks' was the first black woman judge to be appointed in the Maritimes. Whether consciously or not, an underlying assumption seemed to be at work in this case ­that is, that a person of colour is unable to make an "objective" decision where "race" is an issue. Otherwise, it is difficult to understand why the lower courts seemed to apply a higher standard to Judge Sparks' comments than that used in most other cases of alleged judicial bias. The law on bias has long said that the court must start with the assumption that judges take their responsibility to judge impartially very seriously and almost always succeed in fulfilling this responsibility.

It seems that while the predominantly white, male, heterosexual and able-bodied judiciary may have great confidence ­however ill-founded-- in its ability to judge "objectively", this same confidence may not to be extended to judges from minority communities. And this in a climate where arguably sexist and homophobic language is not uncommon in judgments. One need only look to the Alberta Court of Appeal's reasons in Vriend. The case of R.D.S. has certainly highlighted the importance not only of appointing more judges from equality seeking communities to the bench, but also of convincing those who have traditionally dominated judicial and legal institutions to question many of their own long-held beliefs! In RDS, the Court (or at least a number of the judges) have begun to recognize that judging does not take place in a vacuum, but involves personal choices just like everything in life, choices which will undoubtedly be affected by the judge's own knowledge and perspective.

Eldridge v. British Columbia (Attorney General) was a challenge to a decision of the provincial Medical Services Commission not to fund sign language interpretation. The appellants were three deaf patients who claimed that lack of access to interpreters limited their ability to communicate with their healthcare providers, thereby jeopardizing their health treatment. The applicability of the Charter arose in this case after the government presented arguments that hospitals and the Medical Services Commission were not governmental actors and therefore not subject to the Charter. The Court held that since hospitals were intimately connected to the provision of healthcare, a governmental responsibility, the discretion exercised by the hospital and the Medical Services Commission in not funding sign language interpretation was subject to the Charter. Thus, the Court focused on the nature of the action and not the actor itself, i.e. the Charter will apply to private entities who carry out specific governmental policies or programs, such as healthcare.

The Court begins the section 15 analysis with a historical analysis of the position of persons with disabilities in Canadian society, which includes a history of exclusion, paternalism and social and economic disadvantage. In order to ensure that this history did not continue --at least within the context of this case--, the Court held that effective communication with one's healthcare provider is central to the provision of healthcare services. Therefore, sign language interpretation is not an additional, related service (as was argued by the government), but rather the means by which deaf persons can avail themselves of the same services as that of hearing individuals. The Court once again repeated the principle that when a government chooses to provide a benefit, it cannot do so in a discriminatory manner. Perhaps even more importantly, it stated that section 15 may require governments to take positive steps to ensure meaningful access to such benefits by equality seeking communities.

This stands in contrast to Eaton v. Brant (County) Board of Education, which involved a girl with cerebral palsy challenging a decision to remove her from an integrated classroom to a special class for children with disabilities. In this case, the Supreme Court held that there was no burden imposed on the claimant and therefore no section 15 violation on the basis of a tribunal's finding that the child's needs were not being met in an integrated classroom. The segregated classroom was deemed to be sufficient "fine-tuning" of society's structures to allow for the participation of students with disabilities, i.e. "reasonable accommodation." It is clear that in Eaton, the Court considered "reasonable accommodation" a potential defence to section 15 violations at the initial stages, whereas in Eldridge, the Court held that this defence was more appropriately dealt with under a section 1 analysis. The difference perhaps lies in the government's decision in the Eaton case to provide some measures -- a segregated classroom-- to address discrimination, and the lack of any measures to remedy the discrimination in Eldridge.

With respect to section 1, the Court in Eldridge dismissed the government's defence at the minimal impairment level as the government had not put forward any measures to address the needs of deaf patients. In coming to this conclusion, the Court rejected the arguments that this would open the doors for claims of non-English speaking patients to language interpretation, stating that the possibility of other groups making claims cannot be used to justify the infringement of the Charter rights of the deaf.

In Vriend v. Alberta, an employee was terminated from his position on the basis that he was gay. When he attempted to file a complaint with the Alberta Human Rights Commission, he was informed that the Individual's Rights Protection Act did not protect against discrimination on the basis of sexual orientation. He challenged the omission of sexual orientation from the list of grounds of discrimination covered in the Act as a violation of his section 15 rights. The government argued that the Charter only applies to government action, not to cases where the government has failed to act or left a group out when making the law. The Supreme Court of Canada found that the Charter did apply to legislative omissions and underinclusiveness as it was still the Act itself which had to meet the requirements of the Charter.

Again the Court refused to choose one test for section 15, instead preferring to conclude that under any of the three tests, this omission would constitute discrimination, which was not saved by section 1. In discussing the discriminatory distinction, the Court noted that the exclusion of sexual orientation had a disproportionate impact on gays and lesbians, resulting in substantive inequality by denying gays and lesbians equal benefit and protection of the law. The Court also commented on the many harmful effects of the distinction, including lack of access to mechanisms designed to address human rights violations and the psychological harm resulting from the underlying message that it is permissible and perhaps even acceptable to discriminate against gays and lesbians. As the government had not made any submissions concerning the legislative objective, the Court found that it failed to meet the first stage of the section 1 analysis. Indeed, the Court commented that the exclusion of sexual orientation from the list of enumerated grounds went against the very principles upon which the human rights legislation had been enacted; therefore, it would be highly unlikely that an any objective would be pressing and substantial enough to override the equality rights of lesbians and gays. The Court also found that the tests for rational connection, minimal impairment and proportionality had not been met. In particular, Justice Iacobucci, writing for the majority, explicitly rejected the "incremental" approach with respect to the rational connection requirement:

In my opinion, groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time. If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words.

While Justice L'Heureux-Dub&aecute; agreed with the result in Vriend, she took the opportunity to reiterate her approach to section 15, which involves an analysis of the negative impacts of a legislative distinction on a group or an individual, rather than a determination of whether the distinction is being made on an enumerated or analogous ground.

It is interesting to note that in Vriend, three organizations representing the interests of gay men and lesbians joined Mr. Vriend as parties in their own right. Even more important to highlight, is the fact that all four obtained standing to challenge the complete failure of the Act to protect against discrimination on the basis of sexual orientation ­whether in housing, employment, or the provision of public services-- even though the facts of Mr. Vriend's case dealt solely with discrimination in employment. In defending the appellants' standing to bring this broad challenge, the Court held that it would be unfair and would impose too many burdens on lesbians and gays to have to wait until discrimination arose in each of these cases before challenging the legislation. By broadening its interpretation of the traditional test governing standing, the Court seems to have opened courtroom doors for equality seekers which were tightly closed in the past.

Although Rosenberg v. Canada (Attorney General) is a decision of the Ontario Court of Appeal, it is a significant victory for the equality-seeking community, and in particular, for gays and lesbians, given the federal government's recent decision not to appeal the ruling. This case involves an employer who changed the definition of "spouse" within its pension plan in order to provide same-sex partners with survivor benefits (pension benefits paid to surviving spouses of employees who pass away). After attempting to register this amendment with Revenue Canada in order to benefit from certain tax advantages, the employer was informed that since its definition did not match that found in the Income Tax Act, (i.e. opposite sex spouses), the amendment was refused.

The Ontario Court of Appeal held that the government's decision to admit that there was a section 15 violation was correct as this was a clear example of a discriminatory distinction made on the basis of sexual orientation. Using the Oakes analysis in Vriend, the Court found that the legislation could not be saved by section 1. In examining the legislative objective, the Court held that it was the problem provisions and not the entire statute or section which needed to be considered. Although survivor benefits may originally have been intended to provide dependent women in opposite sex relationships with financial assistance, this benefit was now available to both men and women in heterosexual relationships. The Court held that since aging, retirement and economic insecurity are not the exclusive domain of opposite sex spouses, it was not a pressing and substantial objective to favour only heterosexuals for income protection. The Court also found, in the alternative, that were there a pressing and substantial objective for the limiting provision, the limitation would still not meet the tests for rational connection, minimal impairment and proportionality.

Where do we go from here? Emerging issues and Future Litigation

Although there is reason to celebrate the latest round of victories, there is one area in particular which has not been served well by the developments in equality law and that is in the refusal by the courts to recognize social and economic rights as an equality issue. For example, in Masse v. Ontario (Ministry of Community and Social Services), several claimants challenged the 21.6% cut to social assistance benefits made by the Ontario government. The majority of the trial court held that there was no section 15 discrimination as recipients of social assistance did not constitute a discrete and insular minority based on an enumerated and analogous ground, but rather were made up of many different individuals and groups. One judge dissented in part and found section 15 discrimination for two subsets of social assistance recipients --those that were temporarily disabled and those that were sole-support parents. This discrimination was not justified under section 1. Despite this dissent, applications for permission to appeal the decision were denied by both the Ontario Court of Appeal and the Supreme Court of Canada.

The dissent in Masse is in some ways similar to the majority decision in Dartmouth/ Halifax County Regional Housing Authority v. Sparks (N.S.C.A.), which involved a black single mother with two children who had been a public housing tenant for over ten years. Due to her status as a public housing tenant, she was given only one month's notice to vacate her apartment. If she had been a private sector tenant, she would have been entitled to a longer notice period under the Residential Tenancies Act, but public housing tenants were specifically excluded from the protection of the Act. The Court found that these provisions discriminated, not simply on one basis, but rather on the multiple grounds of race, sex and income, and were not saved by section 1. Not only does this decision recognize that income level can be an analogous ground of discrimination, it also allows for the recognition of the "intersectionality" or overlapping of different grounds of discrimination. There is the possibility that these issues will arise again in the Baker v. Canada (Minister of Citizenship and Immigration case, which received permission to appeal to the Supreme Court of Canada on September 4, 1997. This case involves a Jamaican citizen, Ms Baker, who worked illegally in Canada for eleven years. During that time, she gave birth to four Canadian citizens. After the birth of her last child, she suffered post-partum depression and developed paranoid schizophrenia. She also became a recipient of social assistance and underwent treatment at a mental health facility. Upon discovery of her illegal status, she was ordered deported. She then applied to stay in Canada on "humanitarian and compassionate" grounds as outlined in the Immigration Act, but a government official refused her application and she was ordered deported. On appeal, Ms Baker argued that the International Convention on the Rights of the Child -- an international agreement through which a number of countries have recognized many important rights for children -- required that in determining whether a deportation order against a parent should be stopped or stayed, it is the primary interests of her children that should be considered. The Federal Court of Appeal held that since the Convention had not been formally adopted into Canadian law, it could not be used to interpret the Immigration Act. The Court further states that even if the Convention was found to be Canadian law, its provisions did not require Immigration officials to favour the primary interests of the child when it was the deportation of the parent that was at issue.

Although the right of children to remain with their mother is vital, the lack of focus in the case on the right of the mother to remain in Canada independent of her children's rights is troubling. Also disturbing is the lack of attention to the intersectionality of the different grounds of discrimination at play in this case, such as race, colour, gender, income, disability, and parental status.

Another case that will be considered by the Supreme Court of Canada in the near future is Lovelace v. Ontario. This case involves a challenge to the Ontario government's agreement with Aboriginal bands (i.e. those recognized under the Indian Act) to share in the profits arising from the Casino Rama project. The applicants represent M&aecute;tis, non-status Aboriginal persons and Aboriginal organizations not registered under the Indian Act, who challenged their exclusion from the profit-sharing as a violation of section 15(1). One of the pivotal issues in this case is how to characterize the test under section 15(2) -- that is, the part of section 15 which allows governments to undertake laws, programs and activities meant to improve the conditions of disadvantaged groups. Related to this question is the relationship between the two subsections. To date, the Supreme Court of Canada has not yet ruled on either of these questions. On appeal, the Court gave the government considerable leeway in designing programs that would fall under the ambit of section 15(2). In particular, the Court noted that:

Both the words of s. 15(2) and policy considerations argue for limited judicial scrutiny of these programs. By its terms, s. 15(2) affirms the legitimacy of government laws, programs or activities whose object or purpose is the amelioration of the conditions of disadvantaged groups or individuals. In other words, if the court is satisfied that the target of the government's program is a disadvantaged group and the object or purpose of the program is to ameliorate the conditions of that group, the program fits within s. 15(2). Nothing in s. 15(2) calls on the court, for example, to assess the effectiveness of the program or the means used to achieve the government's ameliorative object or whether a reasonable relationship exists between the cause of the disadvantage and the form of the ameliorative action. If some aspect of the program infringes the equality guarantee, the government's rationale or justification for the infringement should be considered under s. 1 of the Charter.

Given the Court's finding that the purpose of the Casino Rama agreement was to benefit only Ontario bands, there was no discrimination in excluding non-Band entities. With this reasoning, it is possible for governments to narrowly design programs which could exclude significantly disadvantaged groups. For example, this could mean that it would be permissible to design an employment scheme that would benefit only Aboriginal men and not Aboriginal women as long as Aboriginal men are a disadvantaged group and the object of the program is to alleviate their disadvantage.

The balancing of competing Charter claims will be at issue in another case to be heard by the Supreme Court of Canada: R. v. Mills. This case involves a challenge to Bill C-46 which outlines the conditions upon which therapeutic counselors' records may be released to an accused charged with sexual assault. The accused in this case argued that Bill C-46 violated his rights to a fair trial as guaranteed in section 7 and 11(d) of the Charter. The person who claimed she was assaulted (the "complainant") argued that her equality and privacy rights required the Courts to keep Bill C-46 as it is. The trial judge held that this legislation violated the accused's Charter rights by creating conditions which favoured protecting the privacy of a third party's records. Behind this reasoning, is the trial judge's belief that such records will almost always be relevant within the criminal law context. The trial judge also left very little room for a section 1 analysis stating that "almost by definition an impairment of a fundamental right can never be demonstrably justified in a free and democratic society". This case will give the Supreme Court of Canada an opportunity to once again consider the difficulties in balancing competing Charter claims.

Conclusion: Reclaiming Charter(ed) Territory

Future cases will provide the Supreme Court of Canada with an opportunity to examine issues such as the relevance of international treaties to equality rights, the interrelationship between subsections 15(1) and (2), and the balancing of other Charter rights with equality rights. Given the Supreme Court of Canada's reluctance to choose a single test for a section 15 violation, future litigants may have to try and formulate arguments which will respond to all three tests. However, it is suggested that arguments concerning "relevancy" should not be addressed at the section 15 stage, but rather refuted under the section 1 analysis. The reason for raising "irrelevant personal characteristics" in Andrews was to point out that such characteristics should have no bearing on one's right to equality and dignity.

It is encouraging to note that the deference paid to governments in the early 1990s has not become a common tool to justify discriminatory measures under section 1 of the Charter. The Supreme Court of Canada has said that the doctrine of deference begins with a contextual analysis of the nature of the government's policy-making exercise and the rights and objectives involved, viewed in light of the purpose and values underlying the Charter. If this is the standard by which claims are measured, then it should only be in rare cases that the courts would grant the government deference in section 15 cases. More often than not, it is a question of funding resources which is really at the heart of a government's defence under section 1. However, the "costs" issue cannot be the only factor used to justify discriminatory conduct. Governments make choices everyday on how funding is to be spent, but in doing so, they must make fiscal decisions in a manner which respects the equality of all and not just a certain part of society.

The wording of section 15 is in large part a reflection of the contributions of many ordinary Canadians. The challenge for all equality-seeking groups is to make the language of equality accessible and applicable to all persons suffering disadvantage. There must be a continued recognition and acknowledgment of the context in which discrimination occurs -- of the real-life experiences of discrimination and oppression -- so that we can dismantle the systems of advantage and hierarchy instead of simply treating the symptoms. It is time to reclaim this Charter(ed) territory, to make the terrain of equality familiar to all, and not just to those who know the way.

END NOTES

  1. For example, article 7 of the Universal Declaration states that:
    All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
  2. Article 26 of the International Covenant on Civil and Political Rights affirms that:
    All persons are equal before the law and are entitled to without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
  3. [1989] 1 S.C.R. 143 [hereinafter Andrews].
  4. [1989] 1 S.C.R. 1296 [hereinafter Turpin].
  5. [1974] S.C.R. 1349 [hereinafter Lavell].
  6. See William Black and Lynn Smith, "The Equality Rights" in The Canadian Charter of Rights and Freedoms, 3rd ed., ed. G&aecute;rald-A. Beaudoin and Errol Mendes (Scarborough: Carswell, 1996).
  7. [1990] 3 S.C.R. 229 [hereinafter McKinney].
  8. [1991] 2 S.C.R. 22 [hereinafter T&aecute;treault-Gadoury].
  9. [1995], 2 S.C.R. 513 [hereinafter Egan].
  10. [1995] 2 S.C.R. 418 [hereinafter Miron].
  11. [1995] 2 S.C.R. 627 [hereinafter Thibaudeau].
  12. In Thibaudeau, Justice Cory relied on the benefits accorded to the post-divorce family in the Divorce Act to offset any disadvantage present in the Income Tax Act.
  13. [1997] 1 S.C.R. 358 [hereinafter Benner].
  14. [1997] S.C.J. No. 84 [hereinafter R.D.S.].
  15. [1997] S.C.J. No. 86 [hereinafter Eldridge].
  16. [1997] 1 S.C.R. 241 [hereinafter Eaton].
  17. See Dianne Pothier, "Eldridge v. British Columbia (Attorney General): How the Deaf were Heard in the Supreme Court of Canada" (1998), 9 N.J.C.L. 263.
  18. [1998] 1 S.C.R. 493 [hereinafter Vriend].
  19. Ibid. at ¶122.
  20. (1998), 158 D.L.R. (4th) 664 (Ont. C.A.) [hereinafter Rosenberg].
  21. (1996), 134 D.L.R. (4th) 20 (Ont. Ct. Gen. Div.) [hereinafter Masse].
  22. [1993] N.S.J. No. 97 [hereinafter Sparks].
  23. (1996), 142 D.L.R. (4th) 554 (F.C.A.) [hereinafter Baker].
  24. Application for leave to appeal to the Supreme Court of Canada was granted on February 12, 1998.
  25. (1997), 33 O.R. (3d) 735 (C.A.) [hereinafter Lovelace].
  26. Application for leave to appeal to the Supreme Court of Canada granted February 12, 1998. The trial decision consists of two parts: a ruling on preliminary Charter issues was released on September 18, 1997: [1997] A.J. No. 891 and a ruling on section 1 released on October 31, 1997: [1997] A.J. No. 1036.
  27. Ibid. [1997] A.J. No. 1036 at ¶69.
  28. Supra note 5.