Application of section fifteen Section 15 of the Canadian Charter of Rights and Freedoms

1 application of section fifteen

1.1 current interpretation

1.1.1 enumerated or analogous grounds


1.2 past interpretations- law test

1.2.1 differential treatment
1.2.2 discrimination

application of section fifteen

in challenge of section 15(1) burden of proof on claimant. supreme court of canada has endorsed purposive interpretation of section 15.

current interpretation

after law v. canada (1999) question of whether dignity affected key section 15 analysis. in r. v. kapp (2008), problems dignity analysis recognized , dignity analysis jettisoned. court established two-part test based on 1 found in andrews v. law society of british columbia (1989): (1) law create distinction based on enumerated or analogous ground? (2) distinction create disadvantage perpetuating prejudice or stereotyping?

in quebec (attorney general) v. (2013) majority of court found perpetuating prejudice or stereotyping did not form additional requirement in second part of test. majority split on correct way apply second part of test, leaving present state of law on section 15 unclear.

enumerated or analogous grounds

discrimination based upon sexual orientation analogous ground discrimination, leading 2 provincial courts legalize same-sex marriage in canada.

the concept of enumerated or analogous grounds originated in essential 1989 andrews case refer personal characteristics that, when being basis of discrimination, show discrimination unconstitutional under section 15. there 9 enumerated grounds explicitly mentioned in section 15, although not numbered. in practice, enumerated grounds have been given liberal , broad interpretations. example, discrimination on basis of pregnancy has been ruled sex discrimination (brooks v. canada safeway ltd.).

as section 15 s words in particular hint explicitly named grounds not exhaust scope of section 15, additional grounds can considered if can shown group or individual s equality rights denied in comparison group shares of same characteristics except personal characteristic @ issue. personal characteristic considered analogous ones enumerated in section 15 if immutable or cannot changed or can changed @ excessive cost (constructively immutable). far, several analogous grounds have been identified:

sexual orientation (egan v. canada [1995], vriend v. alberta [1998], m. v. h. [1999] little sisters book , art emporium v. canada [2000]) finding has led provincial courts (the supreme court declined in reference re same-sex marriage rule on issue government had voiced intent legalize them anyway) find laws against same-sex marriage in canada unconstitutional. in halpern v. canada (attorney general) (2003), court of appeal ontario used section 15 legalize same-sex marriage in ontario.
marital status (miron v. trudel, [1995], nova scotia v. walsh [2002]),
off-reserve aboriginal status/ aboriginality-residence (corbiere v. canada).
citizenship (andrews v. law society of british columbia, [1989], lavoie v. canada [2000])

as well, courts have rejected several analogous grounds including:

having taste marijuana . (r. v. malmo-levine)
employment status (reference re workers compensation act [1989], delisle v. canada [1999])
litigants against crown (rudolph wolff v. canada [1990])
province of prosecution/residence (r. v. turpin [1989], r. v. s. (s.) [1990])
membership in military (r. v. genereux)
new resident of province (haig v. canada)
persons committing crimes outside canada (r. v. finta)
begging , extreme poverty (r. v. banks)

past interpretations- law test

as first outlined in law v. canada, discrimination can identified through three-step test.

differential treatment

this step asks whether there formal distinction between claimant , comparator group based on 1 or more personal characteristics or else fail take account claimant s current disadvantaged position?

the selection of comparator group integral. must possess qualities of claimant except personal characteristic @ issue. (corbiere v. canada [1999] 2 s.c.r. 203) in hodge v. canada (minister of human resources development) (2004), noted court may reject claimant s choice comparator group, , choosing wrong comparator group may cause rights claim fail.

in withler v. canada (attorney general) (2011), supreme court has jettisoned comparator group requirement, mandating instead contextual analysis way go. recognized comparator group analysis leading injustice, noted in r. v. kapp.

discrimination

for discrimination found must determined if burden or denial of benefit harms individual s human dignity (law v. canada). is, discrimination marginalize, ignore, or devalue individual s sense of self-respect , self-worth.

law suggests 4 contextual factors can guide contextual analysis of whether imputed distinction violates human dignity of claimant. none of these determinative of discrimination, , court must not consider of them in every case. list not exhaustive, although standard law analysis has yet develop additional factors:

jurisprudence has shown each of these factors weighed differently depending on context.

pre-existing disadvantage asks whether there pre-existing disadvantage or vulnerability experienced claimant. in corbiere v. canada mclachlin described factor compelling , suggestive of discrimination if proven. however, absence of pre-existing disadvantage not preclude claimant succeeding seen in trociuk v. british columbia.

with correlation between grounds , reality, claimant must show there link between grounds raise , claimant s actual needs, circumstances, , capacities. discrimination more difficult establish if law takes qualities of claimant account. in gosselin v. quebec (attorney general) [2002] court sharply divided on point. majority said law provided less social assistance youth connected ability of youth find employment easily. however, dissenters insisted evidence did not show actual qualities, rather stereotypes.

the ameliorative purpose factor asks whether there distinction made purpose of aiding less advantaged group. if can shown unlikely claimant able show violation of dignity. however, lovelace v. ontario warned analysis should not reduced balancing of relative disadvantages.

the final factor of nature , scope considers nature , scope of interest affected law. more severe , localized results of law affected more show distinctions in treatment responsible discriminatory.