Section Fifteen of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality right
s. As part of the Constitution
, the section prohibits certain forms of discrimination
perpetrated by the governments of Canada
with the exception of ameliorative programs (affirmative action
) and rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools (religious education
).
Rights under section 15 include racial equality
and sexual equality. In its jurisprudence, it has also been a source of gay rights in Canada
. These rights are guaranteed to "Every individual," that is, every natural person
. This wording excludes "legal persons" such as corporations, contrasting other sections that use the word "everyone," where "legal persons" were meant to be included. Section 15 has been in force since 1985.
of 1960 had guaranteed the "right of the individual to equality before the law and the protection of the law." Equal protection of the law is a right that has been guaranteed by the Equal Protection Clause
in the Fourteenth Amendment
to the United States Constitution
since 1868. Section 15 itself dates back to the earliest draft of the Charter, published in October 1980, but it was worded differently. It read,
During the drafting, the guarantee to "everyone" was dropped in favour of "every individual," with the intent that corporations could not invoke equality rights. In addition, while the original version spoke of equality before the law and equal protection of the law, the section ultimately enacted included guarantees of equality under the law and equal benefit of the law. The reason for these additions was to encourage a generous reading of section 15. In the Bill of Rights cases Attorney General of Canada v. Lavell
(1974) and Bliss v. Canada
(1979), Supreme Court Justice Roland Ritchie
had said only the application, and not the outcome, of the law must be equal, thereby necessitating an explicit guarantee of equality under the law; and that legal benefits need not be equal, thereby necessitating an explicit guarantee of equal benefit of the law.
Though the Charter itself came into effect on April 17, 1982, section 15 was not brought into force
until April 17, 1985, in accordance with section 32(2)
of the Charter. The reason for this was so that provincial and federal governments would have enough time to review their legislation and make the appropriate changes to any discriminatory laws.
To that end, the Charter recognizes four dimensions of equality, including substantive equality.
Unlike formal equality, which overlooks personal differences, substantive equality is concerned with the impact of the law on different groups of individuals. Substantive equality requires that there be an equal impact on the person affected by the law.
(2008), the problems with the dignity analysis were recognized and the dignity analysis was jettisoned. The Court mandated that the test is, as it was before, the one found in Andrews v. Law Society of British Columbia
(1989): (1) Is there differential treatment on an analogous or enumerated ground? (2) Does this ground cause prejudice or stereotyping?
The concept of enumerated or analogous grounds originated in the essential 1989 Andrews case to refer to personal characteristics that, when being the basis of discrimination, show the discrimination is unconstitutional under section 15. There are nine enumerated grounds explicitly mentioned in section 15, although they are not actually numbered. In practice, the enumerated grounds have been given liberal and broad interpretations. For example, discrimination on the basis of pregnancy
has been ruled to be sex discrimination (Brooks v. Canada Safeway Ltd.).
As section 15's words "in particular" hint that the explicitly named grounds do not exhaust the scope of section 15, additional grounds can be considered if it can be shown that the group or individual's equality rights were denied in comparison with another group that shares all of the same characteristics except for the personal characteristic at issue. A personal characteristic is considered analogous to the ones enumerated in section 15 if it is "immutable" or cannot be changed or can only be changed at excessive cost (constructively immutable). Thus far, several analogous grounds have been identified:
As well, the courts have rejected several analogous grounds including:
The selection of the comparator group is integral. They must possess all the qualities of the claimant except for the personal characteristic at issue. (Corbiere v. Canada [1999] 2 S.C.R. 203) In Hodge v. Canada (Minister of Human Resources Development) (2004), it was noted that a court may reject a claimant's choice for a comparator group, and that choosing the wrong comparator group may cause the rights claim to fail.
In Withler v. Canada (Attorney General) (2011), the Supreme Court has jettisoned the comparator group requirement, mandating that instead a contextual analysis is the way to go. They recognized that comparator group analysis was leading to much injustice, something also noted in R. v. Kapp.
Law suggests four "contextual factors" which can help guide a contextual analysis of whether the imputed distinction violates the human dignity of the claimant. None of these are determinative of discrimination, and the Court must not consider all of them in every case. This list is also not exhaustive, although the standard Law analysis has yet to develop any additional factors:
Jurisprudence has shown that each of these factors are weighed differently depending on the context.
Pre-existing disadvantage asks whether there was a pre-existing disadvantage or vulnerability experienced by the claimant. In Corbiere v. Canada McLachlin described this factor to be the most compelling and suggestive of discrimination if proven. However, the absence of a pre-existing disadvantage does not necessarily preclude a claimant from succeeding as seen in Trociuk v. British Columbia.
With correlation between grounds and reality, the claimant must show that there is a link between the grounds raise and the claimant's actual needs, circumstances, and capacities. Discrimination will be more difficult to establish if the law takes the qualities of the claimant into account. In Gosselin v. Quebec (Attorney General)
[2002] the court was sharply divided on this point. The majority said that the law that provided less social assistance to youth was connected to the ability of youth to find employment easily. However, the dissenters insisted that the evidence did not show this to be actual qualities, but were rather stereotypes.
The ameliorative purpose factor asks whether there is a distinction made for the purpose of aiding an even less advantaged group. If this can be shown then it is unlikely that the claimant would be able to show a violation of their dignity. However, Lovelace v. Ontario warned that the analysis should not be reduced to a balancing of relative disadvantages.
The final factor of nature and scope considers the nature and scope of the interest affected by the law. The more severe and localized the results of the law for those affected the more likely to show that the distinctions in treatment responsible are discriminatory.
and 52 of the Constitution Act, 1982
. Such litigation can be very costly.
To overcome this barrier, the federal government expanded the Court Challenges Program of Canada in 1985 to fund test cases challenging federal legislation in relation to the equality rights guaranteed by the Charter. Some funding has been provided to challenge provincial laws under a variety of programs in the past, but its availability has varied considerably from province to province.
In September 2006, the Federal government announced that it would be "trimming the fat and refocusing spending on the priorities of Canadians." This included cutting all funding to the Court Challenges Program.
Social equality
Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
s. As part of the Constitution
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, the section prohibits certain forms of discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
perpetrated by the governments of Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
with the exception of ameliorative programs (affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
) and rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools (religious education
Section Twenty-nine of the Canadian Charter of Rights and Freedoms
Section Twenty-nine of the Canadian Charter of Rights and Freedoms is the section of Charter that most specifically addresses rights regarding denominational schools and separate schools...
).
Rights under section 15 include racial equality
Racial equality
Racial equality means different things in different contexts. It mostly deals with an equal regard to all races.It can refer to a belief in biological equality of all human races....
and sexual equality. In its jurisprudence, it has also been a source of gay rights in Canada
Gay rights in Canada
Lesbian, gay, bisexual, and transgender rights in Canada are the most advanced in the Americas. LGBT Canadians have most of the same legal rights as non-LGBT citizens, and are extended more legal rights than many other nations where homosexuality is legal. Since 2005, Canada has offered civil...
. These rights are guaranteed to "Every individual," that is, every natural person
Natural person
Variously, in jurisprudence, a natural person is a human being, as opposed to an artificial, legal or juristic person, i.e., an organization that the law treats for some purposes as if it were a person distinct from its members or owner...
. This wording excludes "legal persons" such as corporations, contrasting other sections that use the word "everyone," where "legal persons" were meant to be included. Section 15 has been in force since 1985.
Text
Under the heading of "Equality Rights" this section states:Background
The Canadian Bill of RightsCanadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
of 1960 had guaranteed the "right of the individual to equality before the law and the protection of the law." Equal protection of the law is a right that has been guaranteed by the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
in the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
since 1868. Section 15 itself dates back to the earliest draft of the Charter, published in October 1980, but it was worded differently. It read,
During the drafting, the guarantee to "everyone" was dropped in favour of "every individual," with the intent that corporations could not invoke equality rights. In addition, while the original version spoke of equality before the law and equal protection of the law, the section ultimately enacted included guarantees of equality under the law and equal benefit of the law. The reason for these additions was to encourage a generous reading of section 15. In the Bill of Rights cases Attorney General of Canada v. Lavell
Attorney General of Canada v. Lavell
Attorney General of Canada v. Lavell; Isaac v. Bédard, [1973] S.C.R. 1349, was a landmark 5-4 Supreme Court of Canada decision holding that Section 12 of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 of the Canadian Bill of Rights...
(1974) and Bliss v. Canada
Bliss v. Canada (Attorney General)
Bliss v. Canada [1979] 1 S.C.R. 183 is a famous Supreme Court of Canada decision on equality rights for women under the Canadian Bill of Rights. The Court held that women were not entitled to benefits denied to them by the Unemployment Insurance Act during a certain period of pregnancy...
(1979), Supreme Court Justice Roland Ritchie
Roland Ritchie
Roland Almon Ritchie, CC was a Canadian lawyer and Justice of the Supreme Court of Canada.Born in Halifax, Nova Scotia, the son of William Bruce Almon Ritchie and Lillian Stewart, he received a B.A. from the University of King's College in 1930, a B.A. in 1932 from Oxford University, and was...
had said only the application, and not the outcome, of the law must be equal, thereby necessitating an explicit guarantee of equality under the law; and that legal benefits need not be equal, thereby necessitating an explicit guarantee of equal benefit of the law.
Though the Charter itself came into effect on April 17, 1982, section 15 was not brought into force
Coming into force
Coming into force or entry into force refers to the process by which legislation, regulations, treaties and other legal instruments come to have legal force and effect...
until April 17, 1985, in accordance with section 32(2)
Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
of the Charter. The reason for this was so that provincial and federal governments would have enough time to review their legislation and make the appropriate changes to any discriminatory laws.
Meaning and purpose of equality
According to the Supreme Court of Canada's Section 15 jurisprudence, the equality guarantees of section 15 are aimed at preventing the "violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political and social prejudices, 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." (Iacobucci J. in Law v. Canada, [1999])To that end, the Charter recognizes four dimensions of equality, including substantive equality.
- Equality before the law is equality in the administration of justice, where all individuals are subject to the same criminal laws in the same manner by law enforcement and the courts.
- Equality under the law is equality in the substance of the law, where the content of the law is equal and fair to everyone so that everyone experiences the same result.
- Equal benefit of the law ensures that benefits imposed by law will be proportionate.
- Equal protection of the law ensure that the protections imposed by law will be proportionate so that the human dignity of every person is equally safeguarded by the law.
Unlike formal equality, which overlooks personal differences, substantive equality is concerned with the impact of the law on different groups of individuals. Substantive equality requires that there be an equal impact on the person affected by the law.
Application of section fifteen
In any challenge of section 15(1) the burden of proof is always on the claimant. The Supreme Court of Canada has endorsed a purposive interpretation of Section 15.Current interpretation
After Law v. Canada (1999) the question of whether dignity was affected was key to a section 15 analysis. In R. v. KappR. v. Kapp
R. v. Kapp is a 2008 Supreme Court of Canada case dealing with an appeal from a British Columbia Court of Appeal decision that held that a communal fishing license granted exclusively to Aboriginals did not violate section 15 of the Canadian Charter of Rights and Freedoms...
(2008), the problems with the dignity analysis were recognized and the dignity analysis was jettisoned. The Court mandated that the test is, as it was before, the one found in Andrews v. Law Society of British Columbia
Andrews v. Law Society of British Columbia
Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 is the first Supreme Court of Canada case to deal with section 15 of the Canadian Charter of Rights and Freedoms...
(1989): (1) Is there differential treatment on an analogous or enumerated ground? (2) Does this ground cause prejudice or stereotyping?
Enumerated or analogous grounds
Pregnancy
Pregnancy refers to the fertilization and development of one or more offspring, known as a fetus or embryo, in a woman's uterus. In a pregnancy, there can be multiple gestations, as in the case of twins or triplets...
has been ruled to be sex discrimination (Brooks v. Canada Safeway Ltd.).
As section 15's words "in particular" hint that the explicitly named grounds do not exhaust the scope of section 15, additional grounds can be considered if it can be shown that the group or individual's equality rights were denied in comparison with another group that shares all of the same characteristics except for the personal characteristic at issue. A personal characteristic is considered analogous to the ones enumerated in section 15 if it is "immutable" or cannot be changed or can only be changed at excessive cost (constructively immutable). Thus far, several analogous grounds have been identified:
- sexual orientationSexual orientationSexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
(Egan v. CanadaEgan v. CanadaEgan v. Canada, [1995] 2 S.C.R. 513, was one of a trilogy of equality rights cases published by a very divided Supreme Court of Canada in the spring of 1995...
[1995], Vriend v. AlbertaVriend v. AlbertaVriend v. Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation...
[1998], M. v. H.M. v. H.M. v. H. [1999] 2 S.C.R. 3, is a landmark decision of the Supreme Court of Canada on the rights of same-sex couples to equal treatment under the Constitution of Canada....
[1999] Little Sisters Book and Art Emporium v. Canada [2000]) This finding has led provincial courts (the Supreme Court declined in Reference re Same-Sex Marriage to rule on the issue as the government had voiced its intent to legalize them anyway) to find that laws against same-sex marriage in CanadaSame-sex marriage in CanadaOn July 20, 2005, Canada became the fourth country in the world and the first country in the Americas to legalize same-sex marriage nationwide with the enactment of the Civil Marriage Act which provided a gender-neutral marriage definition...
would be unconstitutional. In Halpern v. Canada (Attorney General)Halpern v. Canada (Attorney General)Halpern v. Canada, [2003] O.J. No. 2268 is a notable June 10, 2003 decision of the Court of Appeal for Ontario where the Court found that the common law definition of marriage, which defined marriage as between one man and one woman, violated section 15 of the Canadian Charter of Rights and...
(2003), the Court of Appeal for Ontario used section 15 to legalize same-sex marriage in OntarioSame-sex marriage in OntarioThe first legal same-sex marriages performed in Ontario were of Kevin Bourassa to Joe Varnell, and Elaine Vautour to Anne Vautour, by Rev. Brent Hawkes on January 14, 2001....
. - marital statusMarriageMarriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
(Miron v. TrudelMiron v. TrudelMiron v. Trudel, [1995] 2 S.C.R. 418 is a famous Supreme Court of Canada decision on equality rights under section 15 of the Canadian Charter of Rights and Freedoms where the Court found "marital status" was an analogous ground for discrimination...
, [1995], Nova Scotia v. WalshNova Scotia (Attorney General) v. WalshNova Scotia v. Walsh, [2002] 4 S.C.R. 325 is a leading case decided by the Supreme Court of Canada on section 15 of the Canadian Charter of Rights and Freedoms and matrimonial property...
[2002]), - off-reserve aboriginal status/"Aboriginality-residence" (Corbiere v. Canada).
- citizenship (Lavoie v. CanadaLavoie v. CanadaLavoie v. Canada, [2002] 1 S.C.R. 769, 2002 SCC 23 is a leading decision of the Supreme Court of Canada on whether preference on basis of citizenship infringed equality guarantee under section 15 of the Canadian Charter of Rights and Freedoms...
[2000])
As well, the courts have rejected several analogous grounds including:
- having a "taste for marijuana". (R. v. Malmo-Levine)
- employment status (Reference Re Workers' Compensation Act [1989], Delisle v. Canada [1999])
- litigants against the Crown (Rudolph Wolff v. Canada [1990])
- province of prosecution/residence (R. v. TurpinR. v. TurpinR. v. Turpin, [1989] 1 S.C.R. 1296 is a leading constitutional case of the Supreme Court of Canada. The Court held that the requirement for a murder trial to be conducted in front of a judge and jury did not violate the right to trial by jury under sections 11 or the equality guarantee under...
[1989], R. v. S. (S.) [1990]) - membership in military (R. v. GenereuxR. v. GénéreuxR. v. Genereux, [1992] 1 S.C.R. 259 is a leading Supreme Court of Canada decision where the Court held that the government had the constitutional right to create a military justice system that existed in parallel to the regular court system...
) - new resident of province (Haig v. CanadaHaig v. CanadaHaig v. Canada [1993] 2 S.C.R. 995 is a leading Supreme Court of Canada decision on the protection of the right to vote under section 3 of the Canadian Charter of Rights and Freedoms.-Background:...
) - persons committing crimes outside Canada (R. v. FintaR. v. FintaR. v. Finta, [1994] 1 S.C.R. 701 is a landmark case decided by the Supreme Court of Canada. The Court found that a 45-year delay before charging an individual under the crimes against humanity provisions of the Criminal Code of Canada does not fall within the meaning of "unreasonable delay" under...
)
Past interpretations- the Law test
As first outlined in Law v. Canada, discrimination can be identified through a three-step test.- Did the law, program, or activity impose differential treatment between the claimant and a comparator group? That is, was a distinction created between the groups in purpose or effect?
- If so, was the differential treatment based on enumerated or analogous grounds?
- If so, did the law in question have a purpose or effect that is discriminatory within the meaning of the equality guarantee?
Differential treatment
This step asks whether there is a formal distinction between the claimant and a comparator group based on one or more personal characteristics or else does it fail to take into account the claimant's current disadvantaged position?The selection of the comparator group is integral. They must possess all the qualities of the claimant except for the personal characteristic at issue. (Corbiere v. Canada [1999] 2 S.C.R. 203) In Hodge v. Canada (Minister of Human Resources Development) (2004), it was noted that a court may reject a claimant's choice for a comparator group, and that choosing the wrong comparator group may cause the rights claim to fail.
In Withler v. Canada (Attorney General) (2011), the Supreme Court has jettisoned the comparator group requirement, mandating that instead a contextual analysis is the way to go. They recognized that comparator group analysis was leading to much injustice, something also noted in R. v. Kapp.
Discrimination
For discrimination to be found it must be determined if the burden or denial of benefit harms an individual's human dignity (Law v. Canada). That is, the discrimination will marginalize, ignore, or devalue an individual's sense of self-respect and self-worth.Law suggests four "contextual factors" which can help guide a contextual analysis of whether the imputed distinction violates the human dignity of the claimant. None of these are determinative of discrimination, and the Court must not consider all of them in every case. This list is also not exhaustive, although the standard Law analysis has yet to develop any additional factors:
- pre-existing disadvantage
- correlation between the grounds of the claim and the actual needs, capacities, and circumstances
- ameliorative purpose or effect of the law on more disadvantaged groups
- nature and scope of interest
Jurisprudence has shown that each of these factors are weighed differently depending on the context.
Pre-existing disadvantage asks whether there was a pre-existing disadvantage or vulnerability experienced by the claimant. In Corbiere v. Canada McLachlin described this factor to be the most compelling and suggestive of discrimination if proven. However, the absence of a pre-existing disadvantage does not necessarily preclude a claimant from succeeding as seen in Trociuk v. British Columbia.
With correlation between grounds and reality, the claimant must show that there is a link between the grounds raise and the claimant's actual needs, circumstances, and capacities. Discrimination will be more difficult to establish if the law takes the qualities of the claimant into account. In Gosselin v. Quebec (Attorney General)
Gosselin v. Quebec (Attorney General)
Gosselin v. Quebec [2002] 4 S.C.R. 429, 2002 SCC 84, is a leading Supreme Court of Canada case in which the Court rejected a Charter challenge against a Quebec law excluding citizens under 30 from receiving full social security benefits....
[2002] the court was sharply divided on this point. The majority said that the law that provided less social assistance to youth was connected to the ability of youth to find employment easily. However, the dissenters insisted that the evidence did not show this to be actual qualities, but were rather stereotypes.
The ameliorative purpose factor asks whether there is a distinction made for the purpose of aiding an even less advantaged group. If this can be shown then it is unlikely that the claimant would be able to show a violation of their dignity. However, Lovelace v. Ontario warned that the analysis should not be reduced to a balancing of relative disadvantages.
The final factor of nature and scope considers the nature and scope of the interest affected by the law. The more severe and localized the results of the law for those affected the more likely to show that the distinctions in treatment responsible are discriminatory.
Enforcement
Section 15, like the rest of the Charter, is mainly enforced by the courts through litigation under sections 24Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
and 52 of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
. Such litigation can be very costly.
To overcome this barrier, the federal government expanded the Court Challenges Program of Canada in 1985 to fund test cases challenging federal legislation in relation to the equality rights guaranteed by the Charter. Some funding has been provided to challenge provincial laws under a variety of programs in the past, but its availability has varied considerably from province to province.
In September 2006, the Federal government announced that it would be "trimming the fat and refocusing spending on the priorities of Canadians." This included cutting all funding to the Court Challenges Program.
External links
- CanLII Section 15(1) - Equality before and under law and equal protection and benefit of law
- CanLII Section 15(2) - Affirmative action programs
- Charter Equality Rights - Interpretation of Section 15 in Supreme Court of Canada Decisions, 2007
- 20th Anniversary of Section 15 (Dept. of Justice)
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages