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CONSTITUTIONAL LAW

43 EQUALITY RIGHTS II: FURTHER ELABORATIONShigenori Matsui1

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INTRODUCTION Under s. 15, three inquiries must be made

(1)whether there is a distinction and disadvantage

(2)whether the distinction is based upon enumerated or analogous ground, and

(3)whether the distinction is somehow discriminatory

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Several accompanying issues Discrimination in effect The meaning of disadvantage The failure to include The analogous ground What are the comparator group What are the discrimination? What is the relationship between s. 15(2) and

15(1)?3

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I DISCRIMINATION IN EFFECT Distinction between purposeful discrimination

and discrimination in effect

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Eldridge v. British Columbia [1997]

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The only question in this case, then, is whether the appellants have been afforded "equal benefit of the law without discrimination" within the meaning of s. 15(1) of the Charter. On its face, the medicare system in British Columbia applies equally to the deaf and hearing populations. It does not make an explicit "distinction" based on disability by singling out deaf persons for different treatment. Both deaf and hearing persons are entitled to receive certain medical services free of charge. The appellants nevertheless contend that the lack of funding for sign language interpreters renders them unable to benefit from this legislation to the same extent as hearing persons. Their claim, in other words, is one of "adverse effects" discrimination.”

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“This Court has consistently held that s. 15(1) of the Charter protects against this type of discrimination. In Andrews,…McIntyre J. found that facially neutral laws may be discriminatory. "It must be recognized at once", he commented,. “that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality”. Section 15(1), the Court held, was intended to ensure a measure of substantive, and not merely formal equality.”

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“As a corollary to this principle, this Court has also concluded that a discriminatory purpose or intention is not a necessary condition of a s. 15(1) violation... A legal distinction need not be motivated by a desire to disadvantage an individual or group in order to violate s. 15(1). It is sufficient if the effect of the legislation is to deny someone the equal protection or benefit of the law.”

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Yet, generally, the Supreme Court of Canada is reluctant to admit the argument of discrimination in effect.

Symes v. Canada [1993]

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“The s. 15(1) issue is whether s. 63 of the Act has an adverse effect upon women in that it unintentionally creates a distinction on the basis of sex. In my view, in order to establish such an effect, it is not sufficient for the appellant to show that women disproportionately bear the burden of child care in society. Rather, she must show that women disproportionately pay child care expenses. Only if women disproportionately pay such expenses can s. 63 have any effect at all, since s. 63's only effect is to limit the tax deduction with respect to such expenses.” 10

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“In my opinion, the appellant taxpayer has failed to demonstrate an adverse effect created or contributed to by s. 63, although she has overwhelmingly demonstrated how the issue of child care negatively affects women in employment terms. Unfortunately, proof that women pay social costs is not sufficient proof that women pay child care expenses.

I conclude, therefore, that the appellant is unable to demonstrate a violation of s. 15(1) of the Charter with respect to s. 63 of the Act, since she has not proved that s. 63 draws a distinction based upon the personal characteristic of sex.” 11

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Thibaudeau v. Canada [1995]

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In the case at bar, we do not believe that the group of single custodial parents receiving child support payments is placed under a burden by the inclusion/deduction system created by ss. 56(1)(b) and 60(b) of the Income Tax Act, S.C. 1970-71-72, c. 63. Although there may very well be some cases in which the gross-up calculations may shift a portion of the payer's tax liability upon the recipient spouse, we agree… that one cannot necessarily extrapolate from this that a "burden" has been created, at least not for the purposes of s. 15.

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If anything, the legislation in question confers a benefit on the post-divorce "family unit". It is clear that the divorced parents still function as a unit when it comes to providing financial and emotional support to their children and that both parents remain under a legal obligation to provide this support. The fact that one member of the unit might derive a greater benefit from the legislation than the other does not, in and of itself, trigger a s. 15 violation, nor does it lead to a finding that the distinction in any way amounts to a denial of equal benefit or protection of the law.

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In sum, this is not a case in which this Court is called upon to determine whether the distinction that has been created is actually discriminatory. Simply put, there is no burden.

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No entitlement? Auton v. British Columbia [2004]

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In order to succeed, the claimants must show unequal treatment under the law -- more specifically that they failed to receive a benefit that the law provided, or was saddled with a burden the law did not impose on someone else.

In this case, the issue of whether the benefit claimed is one conferred by law does arise, and must be carefully considered. The claim, as discussed, is for funding for a "medically necessary" treatment. The unequal treatment is said to lie in funding medically required treatments for non-disabled Canadian children or adults with mental illness, while refusing to fund medically required ABA/IBI therapy to autistic children

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In summary, the legislative scheme does not promise that any Canadian will receive funding for all medically required treatment. All that is conferred is core funding for services provided by medical practitioners, with funding for non-core services left to the Province's discretion. Thus, the benefit here claimed -- funding for all medically required services -- was not provided for by the law.

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The petitioners rely on Eldridge in arguing for equal provision of medical benefits. ..The decision proceeded on the basis that the law provided the benefits at issue -- physician-delivered consultation and maternity care. However, by failing to provide translation services for the deaf, the Province effectively denied to one group of disabled people the benefit it had granted by law. Eldridge was concerned with unequal access to a benefit that the law conferred and with applying a benefit-granting law in a non-discriminatory fashion. By contrast, this case is concerned with access to a benefit that the law has not conferred. For this reason, Eldridge does not assist the petitioners…

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The legislative scheme in the case at bar… does not have as its purpose the meeting of all medical needs. …its only promise is to provide full funding for core services, defined as physician-delivered services. Beyond this, the provinces may, within their discretion, offer specified non-core services… It follows that exclusion of particular non-core services cannot, without more, be viewed as an adverse distinction based on an enumerated ground….It follows that one cannot infer from the fact of exclusion of ABA/IBI therapy for autistic children from non-core benefits that this amounts to discrimination. There is no discrimination by effect.

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The failure to include Vriend v. Alberta [1998]

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The respondents have argued that because the IRPA merely omits any reference to sexual orientation, this "neutral silence" cannot be understood as creating a distinction. They contend that the IRPA extends full protection on the grounds contained within it to heterosexuals and homosexuals alike, and therefore there is no distinction and hence no discrimination. It is the respondents' position that if any distinction is made on the basis of sexual orientation that distinction exists because it is present in society and not because of the IRPA….These arguments cannot be accepted. They are based on that "thin and impoverished" notion of equality referred to in Eldridge…

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If the mere silence of the legislation was enough to remove it from s. 15(1) scrutiny then any legislature could easily avoid the objects of s. 15(1) simply by drafting laws which omitted reference to excluded groups. Such an approach would ignore the recognition that this Court has given to the principle that discrimination can arise from underinclusive legislation.

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It is clear that the IRPA, by reason of its underinclusiveness, does create a distinction. The distinction is simultaneously drawn along two different lines.

The first is the distinction between homosexuals, on one hand, and other disadvantaged groups which are protected under the Act, on the other. Gays and lesbians do not even have formal equality with reference to other protected groups, since those other groups are explicitly included and they are not.

The second distinction, and, I think, the more fundamental one, is between homosexuals and heterosexuals.

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It is apparent that the omission from the IRPA creates a distinction. That distinction results in a denial of the equal benefit and equal protection of the law. It is the exclusion of sexual orientation from the list of grounds in the IRPA which denies lesbians and gay men the protection and benefit of the Act in two important ways. They are excluded from the government's statement of policy against discrimination, and they are also denied access to the remedial procedures established by the Act.

Therefore, the IRPA, by its omission or underinclusiveness, denies gays and lesbians the equal benefit and protection of the law on the basis of a personal characteristic, namely sexual orientation. 25

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II ENUMERATED AND ANALOGOUD GROUND

Andrews v. Law Society of British Columbia [1989]

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The rights guaranteed in s. 15(1) apply to all persons whether citizens or not. A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group, would, in my view, infringe s. 15 equality rights. Non-citizens, lawfully permanent residents of Canada, are -- in the words of the U.S. Supreme Court in United States v. Carolene Products Co… -- a good example of a "discrete and insular minority" who come within the protection of s. 15.

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Wilson, J Relative to citizens, non-citizens are a group lacking

in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. They are among "those groups in society to whose needs and wishes elected officials have no apparent interest in attending…I would conclude therefore that non-citizens fall into an analogous category to those specifically enumerated in s. 15."

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“While I have emphasized that non-citizens are, in my view, an analogous group to those specifically enumerated in s. 15 and, as such, are entitled to the protection of the section, I agree with my colleague that it is not necessary in this case to determine what limit, if any, there is on the grounds covered by s. 15 and I do not do so.”

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Eagan v. Canada [1995]

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The appellants' claim before this Court is that the Act contravenes s. 15 of the Charter in that it discriminates on the basis of sexual orientation. To establish that claim, it must first be determined that s. 15's protection of equality without discrimination extends to sexual orientation as a ground analogous to those specifically mentioned in the section. This poses no great hurdle for the appellants; the respondent Attorney General of Canada conceded this point.

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…I have no difficulty accepting the appellants' contention that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds.”

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Miron v. Trudel [1995]

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To prove discrimination, the claimant must show that the unequal treatment is based on one of the grounds expressly mentioned in s. 15(1)…or some analogous ground. These grounds serve as a filter to separate trivial inequities from those worthy of constitutional protection. They reflect the overarching purpose of the equality guarantee in the Charter -- to prevent the violation of human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstance. 34

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The grounds of discrimination enumerated in s. 15(1) of the Charter identify group characteristics which often serve as irrelevant grounds of distinction between people. The history of the human rights movement is a history of reaction against persecution and denial of opportunity on the basis of irrelevant stereotypical group classifications like race, sex, and religion. It is not surprising therefore to see these as well as other common markers of irrelevant exclusion enumerated in s. 15(1). But the categories are not closed, as s. 15(1) recognizes. Analogous grounds of discrimination may be recognized. 35

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Logic suggests that in determining whether a particular group characteristic is an analogous ground, the fundamental consideration is whether the characteristic may serve as an irrelevant basis of exclusion and a denial of essential human dignity in the human rights tradition. In other words, may it serve as a basis for unequal treatment based on stereotypical attributes ascribed to the group, rather than on the true worth and ability or circumstances of the individual? An affirmative answer to this question indicates that the characteristic may be used in a manner which is violative of human dignity and freedom.

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One indicator of an analogous ground may be that the targeted group has suffered historical disadvantage, independent of the challenged distinction…Another may be the fact that the group constitutes a "discrete and insular minority”…Another indicator is a distinction made on the basis of a personal characteristic… By extension, it has been suggested that distinctions based on personal and immutable characteristics must be discriminatory within s. 15(1)…

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Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999]

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We agree with L’Heureux‑Dubé J. that Aboriginality-residence (off-reserve band member status) constitutes a ground of discrimination analogous to the enumerated grounds. However, we wish to comment on two matters: (1) the suggestion by some that the same ground may or may not be analogous depending on the circumstances; and (2) the criteria that identify an analogous ground.

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We therefore disagree with the view that a marker of discrimination can change from case to case, depending on the government action challenged. 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.

If it is the intention of L’Heureux‑Dubé J.’s reasons to affirm contextual dependency of the enumerated and analogous grounds, we must respectfully disagree. If “Aboriginality-residence” is to be an analogous ground (and we agree with L’Heureux‑Dubé J. that it should), then it must always stand as a constant marker of potential legislative discrimination… 40

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It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. 41

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To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.

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III APPROPRIATE COMPARATOR GROUP What are the appropriate comparator groups for the

purpose of s. 15 right? Law

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To locate the appropriate comparator, we must consider a variety of factors, including the subject-matter of the legislation….Both the purpose and the effect of the legislation must be considered in determining the appropriate comparison group or groups. Other contextual factors may also be relevant. The biological, historical, and sociological similarities or dissimilarities may be relevant in establishing the relevant comparator in particular, and whether the legislation effects discrimination in a substantive sense more generally…”

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When identifying the relevant comparator, the natural starting point is to consider the claimant’s view. It is the claimant who generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge. However, the claimant’s characterization of the comparison may not always be sufficient.

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Hodge v. Canada [2004]

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The appropriate comparator group is the one which mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter.

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In my view, with respect, the proper comparator group in her case is divorced spouses. Beginning in February 1994, there was both physical separation from her common law partner and an intention on her part to make it permanent. At the time of his death, therefore, she was not a “separated” common law spouse but a “former” common law spouse. Former common law spouses, like divorced spouses, are no longer spouses in any legal sense at common law. In neither case are they eligible for a survivor’s pension under the CPP.”

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Auton v. British Columbia [2004]

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The petitioners suggested that they should be compared with non-disabled children and their parents, as well as adult persons with mental illness…

Applying these criteria, I conclude that the appropriate comparator for the petitioners is a non-disabled person or a person suffering a disability other than a mental disability (here autism) seeking or receiving funding for a non-core therapy important for his or her present and future health, which is emergent and only recently becoming recognized as medically required. 50

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Granovsky v. Canada (Minister of Employment and Immigration) [2000]

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IV DISCRIMINATION What factors should be considered in order to

find out whether the distinction is a discrimination under s. 15?

4 factors under Law

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M. v. H. [1999]

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Gosselin v. Quebec (Attorney General) [2002]

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What would happen under Kapp? Ermineskin Indian Band and nation v.

Canada [2009]

AC v. Manitoba [2009]

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V s. 15(2) and 15(1) Kapp

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