Section 15 in the New Millennium:
The Recognition of Human Dignity and Substantive Equality

Prepared by:

Norma Won


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


Aussi disponible en français


15 years since Next year will mark the 15th anniversary of section 15 of the Canadian Charter of Rights and Freedoms, otherwise known as the equality provision. Not surprisingly the legal arguments became increasingly complex over the years in response to the growing number of cases which had been decided by the courts. Adding to the confusion were the three different approaches to the analysis of section 15 arguments which had been used by different judges on the Supreme Court of Canada. Equality-seeking groups have understandably found it very difficult to establish a clear and consistent approach to arguing these cases. On March 25, 1999, the Supreme Court of Canada released the unanimous decision of Law v. Canada (Minister of Employment and Immigration). Since this case had not attracted much attention from the equality-seeking community (in fact, there were no intervenors in the case), the Court’ consensus on an approach to section 15 of the Charter came as somewhat of a surprise to many. Although the impact of this "new" approach remains to be seen, several decisions by both the Supreme Court of Canada and lower courts have already begun to test the boundaries of this approach. Community groups now have the perhaps easier task of helping and encouraging the courts to develop this uniform approach in a way that works for equality seekers.

This paper will begin with an outline of the new Law analysis and its application in later cases in both the Supreme Court of Canada and the lower courts (such as the provincial courts, the Federal trial level courts and the courts of appeal) . These decisions have already revealed some of the benefits and disadvantages of the new approach. Some upcoming cases before the Supreme Court of Canada will be analyzed using the Law guidelines. Finally some concluding remarks will be provided concerning the potential for this new framework to help in resolving future equality claims.

The Law Guidelines: Are they helpful?

The Law case involved a woman who had been denied survivors’ benefits under the Canada Pension Plan (CPP). The CPP provides income benefits for able-bodied widows without dependent children, however, these benefits are gradually reduced by a certain percentage for each month that the appellant is younger than 45 years of age. Using this formula, by the age of 35, an able-bodied widow without children will not receive any benefits. At the time of her application, Nancy Law was a 30-year-old woman without dependent children or a disability and was thus denied survivor’s benefits. She appealed that decision, arguing that the application of this Act violated her equality rights on the basis of age. Ultimately, the Supreme Court of Canada held that there was no discrimination on the basis of age, largely because she did not fall within an age group which generally experiences disadvantage in our society and because the benefits are designed to help older women who do experience such disadvantage. While Ms Law was not successful in her individual appeal, the process by which the Court arrived at this result is of tremendous importance to equality-seeking groups who wish to raise section 15 arguments in the future.

Perhaps in response to criticism of the various approaches employed by different justices of the Supreme Court of Canada and perhaps wishing to clarify the framework for the analysis of section 15 arguments, the Court sets out certain guidelines for making such arguments. At several points in the decision, the Court emphasizes that the guidelines are not to be strictly followed and that they are simply points of reference for a court faced with determining whether there is an equality violation. In practice, however, it is difficult to see how lower courts could ignore these guidelines.

The guidelines as summarized by the Supreme Court of Canada in paragraph 88 (for a full summary see Appendix A) seem to focus on the idea of individual dignity. Although this may seem to be an appropriate basis to decide equality claims, it is not clear that this approach will always result in a fair decision. Clearly, the focus of any equality case could be dignity, but courts must ensure that their decisions address the indignity and inequality of being judged differently or accorded less advantageous treatment or benefits because of a personal characteristic or membership in a particular group.

The Supreme Court of Canada summarizes the "new" approach to determining a discrimination claim under section 15 of the Charter as follows:

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?


(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

At first glance, the approach appears to be one which will benefit equality-seeking groups, especially if one considers the emphasis placed on the legal, economic and social environment in which a certain law applies and the insistence on substantive equality (an understanding of equality which looks at the entire context of a situation and determines what conditions are necessary for people to lead lives of dignity and respect). The "relevancy" factor which first appeared in the Egan decision seems to have disappeared (this factor is discussed in more detail further on in this paper). The Court also openly recognizes the idea that intersecting grounds of discrimination (e.g. "women of colour" which raises the two grounds of sex and race discrimination) can also form an analogous ground, that is, an additional ground which is protected by the Charter because it is similar to the grounds listed in section 15.

In addition, the Supreme Court of Canada also reaffirms the idea that laws meant to improve conditions for a certain disadvantaged group cannot leave out others who experience disadvantage without raising equality concerns, i.e. Vriend v. Alberta. This bodes well for cases such as Lovelace v. Ontario where non-Band communities, i.e. Métis, non-status Aboriginal persons and Aboriginal organizations not registered under the Indian Act, are asserting that their exclusion from sharing in the profits from casinos run by Aboriginal people (only Band members have access to these benefits) violates their section 15 rights. The Court also finds that a person may not need to bring evidence of inequality before the courts to be successful, where patterns of social disadvantage are well documented and known by the court already (the idea of "judicial notice") and where the inequality is obvious through logical reasoning. This is a further extension of the comments made in R. v. R.D.S.

There are, however, aspects of the Law approach which should raise concerns for equality seekers. The reliance on the examination of the purpose of the problem law could be seen to bring section 1 considerations into the section 15 test. Courts may start to make moral judgments about the purpose of the law before they examine its impact on the equality group bringing the claim.

As well, although courts may need to "refine" the equality seeker's description of the group which is disadvantaged and the group which gets the benefit of the law (the "comparator" groups), it is hoped that situations such as the Bliss v. Attorney General of Canada and Canada (A.G.) v. Lavell cases do not repeat themselves. In Bliss, the Supreme Court of Canada found that distinctions based on pregnancy did not constitute discrimination based on "sex", but rather between people who became pregnant and those who did not. In Lavell, the court said that Aboriginal women could be treated differently from Aboriginal men, as long as all Aboriginal women were treated the same. In this case, a discrimination claim would have succeeded if the comparison group had been Aboriginal men.

In Ms Law's case, the Supreme Court of Canada found that there was no substantive inequality in the distribution of CCP benefits. Although the law treated people under 45 years of age differently, it did not affect their individual dignity if one took into account the entire picture of why the benefits were put in place and the situation of younger people in Canadian society:

Yes, the law imposes a disadvantage on younger spouses in this class. But it is unlikely to be a substantive disadvantage, viewed in the long term. The law on its face treats such younger people differently, but the differential treatment does not reflect or promote the notion that they are less capable or less deserving of concern, respect, and consideration, when the dual perspectives of long-term security and the greater opportunity of youth are considered. Nor does the differential treatment perpetuate the view that people in this class are less capable or less worthy of recognition or value as human beings or as members of Canadian society. Given the contemporary and historical context of the differential treatment and those affected by it, the legislation does not stereotype, exclude, or devalue adults under 45. The law functions not by the device of stereotype, but by distinctions corresponding to the actual situation of individuals it affects. By being young, the appellant, a fortiori, has greater prospect of long-term income replacement.

Since Law was a unanimous decision, the real test of these guidelines will be in the way they are applied in cases where the judges differ in their reasoning.

Using the Law Guidelines

The Law guidelines were applied in two subsequent decisions of the Supreme Court of Canada: M. v. H. and Corbiere v. Canada (Minister of Indian and Northern Affairs). M. v. H. was a challenge to the definition of opposite sex definition of "spouse" in the Family Law Act of Ontario for the purposes of spousal support (or alimony, as it was once called). This definition was challenged on the basis that it violated the equality rights of lesbians and gay men by not providing a means for same-sex partners to seek support from their ex-partner upon the ending of a relationship in the same manner that was provided to common-law opposite sex couples.

The Supreme Court of Canada split 8-1 with respect to the decision (Mr. Justice Gonthier dissenting), with 2 of the 8 justices writing separate opinions which agreed with the outcome of the case, but reached the decision in slightly different ways. The two-judge decision held that the exclusion of same-sex partners violated section 15 of the Charter and was not justified under section 1. Following the Law guidelines, the 6-member majority decision held that there was a formal distinction being made on the analogous ground of sexual orientation and that the resulting differential treatment constituted discrimination for the purposes of section 15. In particular, the Court stated that four factors led to this conclusion. First, persons in same-sex relationships already experience significant disadvantage and vulnerability because of their sexual orientation, a situation which is only made worse by their exclusion from the Family Law Act. Second, the Act fails to consider this claimant’s actual circumstances, that is, she is a person who has suffered financially as a result of a breakdown of a long-term relationship. Third, simply because the law was put into place to help women who were left financially worse off as a result of a breakdown of a long-term opposite-sex relationship does not lessen the discriminatory impact on persons in similar circumstances in same-sex relationships. And finally, the nature of the interest at the heart of this case is very important since it concerns the ability of a person to survive financially after the breakdown of a long-term relationship. Based on these four factors, the Court found that there was discrimination that could not be saved by section 1, since there was no rational connection between the objectives of the legislation (to provide for the fair resolution of economic disputes between individuals in a relationship when that relationship breaks down and to lessen the use of public monies to provide for dependent partners) and the exclusion of same-sex couples from the Family Law Act.

The danger for equality-seeking groups with respect to this decision lies in the dissenting reasons of Mr. Justice Gonthier, in which he finds that there is no section 15(1) discrimination. In particular, his reasons arise from his differing perspective on the purpose of the legislation in question. Whereas the majority held that the purpose of the legislation was to "provide for the equitable resolution of economic disputes that arise when intimate relationships between individuals who have been financially interdependent break down" (at ¶4), the dissent held that "The primary purpose of the FLA is to recognize the social function specific to opposite-sex couples and their position as a fundamental unit in society, and to address the dynamic of dependence unique to men and women in opposite-sex relationships" (at ¶181). Using this reasoning, Mr. Justice Gonthier concludes that there is no discrimination in this case. Essentially, he states that when the comparison is made between same-sex and opposite-sex relationships, the Family Law Act was correct in responding only to the financial imbalance that resulted between men and women upon the breakdown of an opposite-sex relationship.

In this decision, one justice applied the very same "guidelines" as the others, and yet came up with a completely different result from that of the majority. Although this case resulted in what many equality-seeking groups consider a victory, the next time, the majority of the Court could use the same approach and deny that there is discrimination by examining the purposes of the legislation in question and its relation to the group claiming discrimination. This not only raises concerns about bringing in section 1 arguments, but also allows for consideration of the "relevancy" factor.

In Corbiere, the Supreme Court of Canada considers the issue of race and residence in light of the Law test. In this case, all of the justices agreed that there was a violation of section 15(1), however, they divided 5-4 with respect to the conditions necessary for a finding of an analogous ground as required in Law. The claimants in this case challenged section 77(1) of the Indian Act, which denied off-reserve band members the right to vote in band elections.

The majority decision, written by Justices McLachlin and Bastarache, held that the first stage of the Law approach was satisfied since the legislation specifically made a formal distinction between on and off-reserve band members. This differential treatment is based on a personal characteristic analogous to the grounds enumerated in section 15, namely, Aboriginality-residence. The Court stated that off-reserve band members formed part of a "discrete and insular minority" which was defined by both race and residence. In holding that the distinction is discriminatory, the majority stated that the differential treatment "perpetuates the historic disadvantage experienced by off-reserve band members by denying them the right to vote and participate in their band’s governance…and treats them as less worthy and entitled, not on the merits of situation, but simply because they live off-reserve".

The minority decision, written by Madam Justice L’Heureux-Dubé, disagreed on the criteria required for a ground to be considered analogous under section 15(1), although all of the justices agreed that the Aboriginality-residence was an analogous ground. The minority stated that a ground could be analogous in one context, but not another: "I should also note that if indicia of an analogous ground are not present in general, or among a certain group in Canadian society, they may nevertheless be present in another social or legislative context, within a different group in society, or in a given geographic area…". The majority, on the other hand, stated that once a ground is determined to be analogous, then it is always analogous, but whether it constitutes discrimination will be dependent on the context of the case: "It seems to us that it is not the ground that varies from case to case, but the determination of whether a distinction on the basis of a constitutionally cognizable ground is discriminatory. Sex will always be a ground, although sex-based legislative distinctions may not always by discriminatory".

All of the justices agreed that the s. 15(1) infringement was not justified under s.1 of the Charter as a reasonable limit which can be "demonstrably justified in a free and democratic society." The Court held that there was a pressing and substantial objective in restricting voting rights to those band members ordinarily resident on the reserve since these members were the most directly affected by the decisions of the band council. They found, however, that the minimal impairment requirement was not met since there were reasonable alternatives to a complete denial of the vote to off-reserve band members.

In a series of four cases, the Supreme Court of Canada examined the issue of the rights of people accused of crimes ("the accused") who have mental disabilities and the Charter. At their trials, all four of these appellants were found "not criminally responsible on account of mental disorder" under section 672.54 of the Criminal Code. This means that they were found not to have had the necessary awareness of what they were doing when they committed the crimes. They cannot be found "guilty" for this reason. However, following a verdict of "not criminally responsible," a court or Review Board has the choice of directing that the accused be discharged (allowed to go free) absolutely, discharged subject to conditions or detained in custody ("locked up against their will") in a hospital.

Although the factual circumstances of the appellants varied, all of them challenged the constitutionality of these provisions on the basis that they violated sections 7 and 15 of the Charter. Section 7 of the Charter states that the "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." They were concerned about the fairness of being "locked up" forever, possibly, or at least until they could prove to the Review Board that they were safe to go under the provincial laws governing people with mental disabilities. This is quite a different result from someone found guilty of a crime, who must often serve only part of a determined sentence. The Supreme Court of Canada upheld the provisions of the Criminal Code. Specifically the Court decided that there were sufficient safeguards provided in the legislation such that the principles of fundamental justice were not violated. With respect to section 15, the Court in applying the Law guidelines states (at ¶97):

A reasonable person, fully apprised of all the circumstances and the characteristics of the claimant, would not find these provisions to be discriminatory. They promote, rather than deny, the claimant’s right to be considered as an individual, equally entitled to concern, respect and consideration of the law.

In arriving at this conclusion, the Court states that treating those accused persons who are found "not criminally responsible" differently from other accused persons actually corresponds to ideas of substantial equality. The individual assessment of each accused does not rely on stereotypes of persons with mental disabilities, but rather looks at each of their individual circumstances to determine whether they should be released and on what conditions. With respect to the argument that a person found not criminally responsible may be subjected to "imprisonment" for an indefinite period, the Court looks at the purpose of locking someone up. Persons convicted of criminal charges are held morally responsible for their actions and as punishment, must serve the appropriate sentence determined by society. Since an accused person found not criminally responsible is not morally responsible for his or her actions, punishment is inappropriate. Since the freedom of such persons is not limited for the purposes of punishment, there is no corresponding reason to set a specific period of "imprisonment". Again, by looking at the purpose of the legislation, the Court once again finds that there is no discrimination.

Although not specifically a section 15 case, the recent Supreme Court of Canada decision in Baker v. Canada, reveals the importance of contextual analysis (that is, of taking into consideration important factors in the social, economic and legal environment which show how a law may impact on a group unfairly), a point emphasized several times in the Law decision. This case involves a Jamaican citizen who remained in Canada after her visitor’s visa expired and worked illegally in Canada for eleven years as a live-in domestic. During that time, she gave birth to four children. She suffered post-partum psychosis and developed paranoid schizophrenia after the birth of her last child. She also became a recipient of social assistance and underwent treatment at a mental health facility. After her illegal status was discovered, she was ordered deported. She then applied to stay in Canada on "humanitarian and compassionate" grounds as outlined in the Immigration Act, but her application was refused and she was ordered deported.

One of the arguments put forward by the appellant concerned the International Convention on the Rights of the Child (an international agreement through which a number of countries, including Canada, have recognized many important rights for children). She argued that the Convention 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 Supreme Court of Canada allowed the appeal, which means that the appellant will get a chance for a new hearing before another immigration officer.

In this decision, the Court made many important comments concerning what makes for fair procedures versus biased decision by government officials, discretionary powers of

government officials and the relationship between humanitarian and compassionate grounds and the rights of children. With respect to the issue of bias, the Court examines the circumstances in which decisions about immigration are made and makes the following remarks:

47 …The context here is one where immigration officers must regularly make decisions that have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. They are individualized, rather than decisions of a general nature. They also require special sensitivity. Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference.

In this case, the Court concludes that the immigration officer in this case was biased when he considered Ms Baker’s application. In particular, the Court stated that his conclusion that she should not be allowed to stay in Canada were based on his perceptions of her as "a single mother with several children, …[who] had been diagnosed with a psychiatric illness" (at ¶48).

With respect to the question of discretion, the Court defines it as a concept "which refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries". With respect to this particular case, the Supreme Court of Canada finds that the immigration officer exercised his discretion unreasonably. In particular, the officer should have considered the circumstances of Ms Baker’s children: "children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society" (¶67).

In addition, the majority of the Court stated that although international treaties and conventions were not part of Canadian law unless they were specifically implemented by statute, "the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review" (¶70). Two of the justices, although agreeing with the generally with the reasons of the majority, did not agree with the manner in which international law was considered, stating that since previous Canadian cases had decided that international laws did not form part of Canadian law unless they were specifically included by Parliament, they could not be used to help in understanding Canadian law.

This is an important case for equality-seeking groups since the Supreme Court of Canada has recognized that a deeper understanding of equality rights in Canada can be achieved through reference to international standards and laws. This will allow community organizations to use international thinking on human rights and equality rights, which may in some cases, be more developed than that in Canada, to help in their interventions.

Upcoming Equality Cases

One of the earliest or perhaps even the first lower court decision to consider the Law guidelines is Lavoie v. Canada, a decision of the Federal Court of Appeal. This case involves three women who are landed immigrants in Canada, but are not citizens. They are all working for the federal government and allege that they have been denied referrals to open competition for certain positions in the public service because of their lack of Canadian citizenship. The appellants argue that this is a violation of their equality rights under the Charter. The Court in this case holds, in accordance with the Law guidelines, that the facts in this case do not give rise to a section 15(1) violation. Two of the justices wrote separate but concurring (agreeing) decisions and one judge wrote a dissent (decision with different outcome).

One of the majority justices, Mr. Justice Marceau states that the equality principles do not even apply in cases where there is a different treatment is accorded to citizens than immigrants, since immigration status is determined completely at the political level (however, if there were a law that treated one group of immigrants differently from another group, discrimination could arise). In the alternative, Marceau J. argues that if the equality principles do apply, then there is still no discrimination as envisioned under section 15: "With the greatest respect for the contrary opinion, considering the extent of the citizenship preference and the full context of the claim, I simply cannot accept that it can be seen objectively as demeaning in any way the human dignity of the appellants or not citizens generally" (at ¶ 26).

In a concurring judgement, Mr. Justice Desjardins, holds that there is no section 15(1) violation since a comparison cannot be made between citizens and non-citizens in these circumstances. He states that the disadvantage does not affect the human dignity of the non-citizen since it does not deprive them of work nor are they prevented from being hired in other areas of the public service. In addition, this justice rejects the comparator group, stating that since citizens assume duties which permanent residents do not, then they are not "similarly situated" and cannot be compared for the purpose of section 15(1).

In a strong dissent, Mr. Justice Linden, holds that section 15(1) has been violated with respect to the citizenship preference. Using the Law guidelines, he finds that the citizenship preference worsens the already disadvantageous situation of non-citizens in Canada. Secondly, he finds that the denial of work is a very serious issue since it is one of the primary ways in which people measure their self-image and self-worth. Third, when a government enhances the rights of citizens through the denial of rights to non-citizens, it also denies their dignity and the government must justify its choice. Fourth, the citizenship preference makes no reference to the needs and capacities of the group which is targeted for exclusion, that is, non-citizens: "by virtue of foreign accents, differently coloured skin, foreign educational accreditation, foreign work experience, lack of business networks, and invidious discrimination, Canada's immigrants are frequently disadvantaged when seeking employment" (at ¶164).

The minority also holds that this discriminatory legislation is not saved by section 1: "If Parliament has as its goal the encouragement of non-discriminatory, merit-based hiring, then it seems disproportionate to bar non-citizens, who may be the most meritorious candidates, from competing in virtually all open competitions" (at ¶221). Given the strong dissent, it is likely that this case will be appealed to the Supreme Court of Canada.

A case which will be heard by the Supreme Court of Canada is Little Sisters Book and Art Emporium v. Canada (Minister of Justice). This case involves a lesbian and gay bookstore in British Columbia that has been consistently targeted for discriminatory treatment by Canada Customs officials over the course of several years. Shipments of books were deemed "obscene" solely because of their gay or lesbian content. In other cases, books which were freely available in mainstream bookstores were detained or even destroyed, solely because they had been ordered by a gay or lesbian bookstore.

An appeal was heard on March 23-25, 1998, with a decision released by the British Columbia Court of Appeal on June 24, 1998. In a 2 to 1 ruling, the Court held that although the legislation violated the freedom of expression guarantee in s. 2(b), it was saved by section 1. The Court also held that there was no section 15 violation as there was no discriminatory distinction being made. The majority states that the objective of the Customs legislation is to protect society by preventing the distribution of obscene materials, therefore, if lesbian and gay materials are labeled obscene, it is because they are obscene, not because they contain lesbian or gay content. Since the dissenting judge found that the violation of freedom of expression was not saved by section 1, section 15 arguments were not considered.

In this case, the Supreme Court of Canada granted intervenor status to several organizations, including EGALE, LEAF and PEN Canada, but has also imposed a condition that all the intervenors must pay any additional costs faced by the appellants or respondents as a result of the interventions. There have been complaints of too many interventions in some cases and this is seen as one way in which the Supreme Court of Canada can lessen the number of interventions. It would seem, however, that if the Court wishes to have fewer interventions, then it should simply not grant status to as many intervenors. Decisions to allow interventions should be based on merit, not on the ability of an intervenor to pay for the additional costs of such interventions. By insisting that intervenors bear the burden of the additional expenses of the parties, this will have a severe impact on the ability of community organizations to participate in cases, many of which already experience difficulty in obtaining the necessary funding for their own interventions. Since intervenors are theoretically acting in the public interest, then perhaps it is the public purse that should be used to cover the costs of interventions. There is no doubt, especially in equality cases, that the work of intervenors have had an impact on court decisions. Who should bear the costs of interventions is an important access to justice issue that needs more discussion beyond this paper.

Although Steinhauer-Anderson v. Canada (Minister of Indian Affairs and Northern Development) is a trial level decision, it will have an enormous impact on the many cases that involve challenges to the amendments to the Indian Act, more commonly known as Bill C-31. This case involves an Aboriginal woman who had status under the Indian Act as she was born to two parents who had status. Following her marriage in 1956, her band membership was transferred to that of her husband’s, in accordance with the Indian Act of the time. She later divorced and remarried a non-status man in 1965, thereby losing her status altogether as a result of the Indian Act that was in operation. As a result of Bill C-31, which was put in place to fix the discrimination against Aboriginal women who lost their status when they married a man without status, she was reinstated to her ex-husband’s band. Ms Steinhauer-Anderson wishes to be reinstated to her birth band, however, as that is the one with which she has the closest ties.

In this case, Bill C-31 fixed the situation for women who married non-status persons and lost their status and band membership. However, these women are re-instated to whatever band membership they held just prior to the marrying out. For this particular applicant, her band membership was that of her first husband since the pre-1985 Indian Act forced her to become a member of his Band upon marriage, something that men in the same situation did not have to do. Bill C-31 did not change the forced move to a husband's Band, but did stop the loss of such membership upon marrying someone without status. By contrast, the band membership of men who marry women outside of their bands has always remained with that of their birth bands.

This trial was to take place in two steps. The first stage looked at whether the law in question violated the Charter, namely sections 2(b), 2(d), 7, 15 or 28. The decision concerning this first step was released on February 19, 1999 in favour of the applicant. The second and third stages of the trial were to take place in July 1999, however the government and Ms Steinhauer-Anderson have arrived at an alternative solution to her problem. She will be reinstated to her birth band as a result of another section of Bill C-31 and will no longer need to carry on her case.

However, the decision with respect to the first part of this case is still vitally important for future Bill C-31 claims. With respect to the Charter breach of the pre-1985 Indian Act provisions, the Court found that as a result of her loss of status as well as band membership, she experienced both practical and psychological loss. The Court also found violations of her right to freedom of association and freedom of expression found in section 2 of the Charter. With respect to the section 7 argument, the Court found that there was insufficient evidence to establish such a claim. The Court declined to rule on the section 28 (that Charter rights are guaranteed equally to men and women) arguments as he was not convinced by either party’s viewpoint.

With respect to the second issue, i.e., whether section 11(1)(c) of the Indian Act, 1985 contravenes the Charter, the Court finds violations in the same manner as the pre-1985 Indian Act provisions concerning sections 2, 7, and 28 of the Charter. With respect to the equality claim, the Court finds that there is a discriminatory distinction being made on the basis of sex which denies Aboriginal women, who married status men from other Bands prior to April 17, 1985, access to benefits associated with being a member of the women’s birth bands. The decision in this case was decided prior to the release of the Law guidelines, but it is difficult to see how the facts in this case would not meet the test set out in Law.


Discrimination today is often more subtle and more sophisticated than the blatant bigotry of the past. Thus, equality arguments have to be developed which are increasingly complex and nuanced. Although the "new" approach to determination of equality claims under the Charter is welcome, in particular, its emphasis on the contextual approach and substantive equality, it is hoped that the potential dangers of the guidelines do not reveal themselves in future cases. As we enter a new millennium, it is hoped that these Law guidelines will help to bring about more just decisions for equality-seeking individuals and groups, making Canada a place where all persons and groups can lead lives of dignity and freedom, "equally capable and equally deserving of concern, respect and consideration".

Appendix A

Guidelines from Law v. Canada, [1999] 1 S.C.R. 497 at ¶88


General Approach

(1) It is inappropriate to attempt to confine analysis under s. 15(1) of the Charter to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach.

(2) The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues:

(A) whether a law imposes differential treatment between the claimant and others, in purpose or effect;

(B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and

(C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

The first issue is concerned with the question of whether the law causes differential treatment. The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

(3) Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?


(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?


(4) In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

(5) The existence of a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1) is essential in order to found a discrimination claim. The determination of whether such a conflict exists is to be made through an analysis of the full context surrounding the claim and the claimant.

Comparative Approach

(6) The equality guarantee is a comparative concept, which ultimately requires a court to establish one or more relevant comparators. The claimant generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry. However, where the claimant’s characterization of the comparison is insufficient, a court may, within the scope of the ground or grounds pleaded, refine the comparison presented by the claimant where warranted. Locating the relevant comparison group requires an examination of the subject-matter of the legislation and its effects, as well as a full appreciation of context.


(7) The contextual factors which determine whether legislation has the effect of demeaning a claimant’s dignity must be construed and examined from the perspective of the claimant. The focus of the inquiry is both subjective and objective. The relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim.

(8) There is a variety of factors which may be referred to by a s. 15(1) claimant in order to demonstrate that legislation demeans his or her dignity. The list of factors is not closed. Guidance as to these factors may be found in the jurisprudence of this Court, and by analogy to recognized factors.

(9) Some important contextual factors influencing the determination of whether s. 15(1) has been infringed are, among others:


(A) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of "discrete and insular minorities" should always be a central consideration. Although the claimant’s association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.

(B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. Although the mere fact that the impugned legislation takes into account the claimant’s traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant’s actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant’s actual situation.

(C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.


(D) The nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1).

(10) Although the s. 15(1) claimant bears the onus of establishing an infringement of his or her equality rights in a purposive sense through reference to one or more contextual factors, it is not necessarily the case that the claimant must adduce evidence in order to show a violation of human dignity or freedom. Frequently, where differential treatment is based on one or more enumerated or analogous grounds, this will be sufficient to found an infringement of s. 15(1) in the sense that it will be evident on the basis of judicial notice and logical reasoning that the distinction is discriminatory within the meaning of the provision.