55.

Equality
55.1 Distribution of powers
The distribution of powers over egalitarian values presents two issues. The first issue is the extent to which each level of government may deny or limit egalitarian values, for example, by the enactment of laws that discriminate on the basis of characteristics such as race, national origin or sex. The second issue is the extent to which each level of government may promote egalitarian values, for example, by the enactment of laws that forbid discrimination in employment, accommodation and facilities open to the public. Before the coming into force of s15, discrimination against aliens and naturalized subjects, and against Indians, was undoubtedly competent to the federal Parliament. The real threat to equality in Canada comes not from legislative and official action, but from discrimination by private persons, such as employers, trade unions, landlords, realtors, restaurateurs and other suppliers of goods or services. The authority to enact legislation of this kind is distributed between the federal Parliament and the provincial Legislatures according to which has jurisdiction over the employment, accommodation, restaurants and other businesses or activities in which discrimination is forbidden. Most of the field is accordingly provincial under property and civil rights in the province (s92(13)). However, there is little doubt that the federal Parliament could if it chose exercise its criminal law power (s91(27)) to outlaw discriminatory practices generally.

55.2 Canadian Bill of Rights

S1(b) Canadian Bill of Rights guarantees equality before the law. This provision, which applies only to the federal Parliament, was on April 17, 1985 superseded by s15 Charter of Rights, which applies to the federal Parliament and to the provincial Legislatures. The SCC held only once that the equality clause in s1(b) Canadian Bill of Rights had the effect of nullifying a statutory provision. That was in the case of R. V. Drybones (1969) in which the Court struck down a provision of the Indian Act that made it an offence for an Indian to be intoxicated off a reserve. Drybones predictably led to challenges to other parts of the Indian Act. These were unsuccessful. P55-4 for cases. He end result was that the validity of the Indian Act (apart from the drunkenness provision) was settled, but the definition of equality in s1(b) was in serious disarray. After the Indian Act cases, the SCC began to develop a consistent definition of equality under s1(b). The definition relied on the cryptic notion of a valid federal objective. If a law pursued a valid federal objective, then it was not in breach of s1(b). P55-5 for cases.

The valid federal objective doctrine was unsatisfactory in two ways. First, the Court never clarified what the term meant, although the Court always accepted that a statute containing a challenged provision did pursue a valid federal objective. Secondly, the Court (at least in Bliss and MacKay) did not relate the valid federal objective to the particular provision that was under challenge; if the Act as a whole pursued a valid federal objective, then every detailed provision was invulnerable to attack on equality grounds. With the coming into force of s15 Charter, s1(b) Canadian Bill of Rights, although still in force, has been rendered irrelevant. Moreover, in applying s15, the SCC has turned over a new leaf. The language of valid federal objective has been banished, and replaced by new doctrine that is less deferential to the legislative will.

55.3 American Bill of Rights

The fourteenth amendment to the Constitution of the United States provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. Although the fourteenth amendment applies only to the states, the guarantee of equal protection has been held to be incorporated in the due process clause of the fifth amendment, which applies to the federal Congress. P55-8 for background.

55.4 Section 15 of Charter

S15 confers its right on an Individual. Equality is expressed in four different ways: equality before the law, equality under the law. Equal protection of the law and equal benefit of the law. The section also guarantees against discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. These are the named or listed grounds of discrimination. (The common practice of referring to them as enumerated grounds is not quite accurate, because the grounds are not numbered.) The section makes clear, by the phrase in particular, that the named grounds are not exhaustive. Subsection (2) of s15 authorizes the creation of affirmative action programmes that have the purpose of ameliorating the conditions of disadvantaged groups. S32(2) Charter delayed the coming into force of s15 for three years after the coming into force of the rest of the Charter. The purpose of the delay was to provide time for the federal government and each province to review its body of laws and make those amendments that were necessary to bring the laws into conformity with s15.

55.5 Application of s15

(a) Individual The benefit of the equality rights in s15 is conferred upon an individual. The word individual has been analyzed earlier in this book, and the conclusion reached that it probably excludes a corporation.

(b) Law in s15 The burden of the equality rights, like all other Charter rights, is imposed by s32 on the Parliament and government of Canada and the Legislature and government of each province. S32 has been analyzed and the conclusion reached that it includes, among other things, all action taken under statutory authority. In R. v. S.(S) (1990) s15 did not apply to an exercise of discretion conferred by law, but only to the enabling law itself. These holdings that s15 has no application to an exercise of discretion conferred by a statute must surely be wrong. It makes no sense to say that Parliament itself lacks the power to abridge equality rights, but Parliament can confer on a delegate the power to abridge equality rights. The better view is that Parliament is unable to delegate a power that Parliament does not possess. Restrictions on the power of Parliament (or a Legislature) must apply to all bodies that draw their powers from the Parliament (or the Legislature). This does seem to be the latest view of the SCC, because six months after the & cases a majority of the Court asserted that the requirement of law in s15 is satisfied by conduct taken under the authority of law, and a majority of the Court held that a collective agreement is law within s15. In these two cases no reference was made to the contrary rulings in the two S. Cases. However, the later expression of opinion is the better one. S15 applies to the same range of governmental action as other Charter rights. The range of governmental action is that defined in s32. (c) Private action There is no doubt that s32 Charter excludes private action from the application of the Charter. This means that s15 does not apply to private acts of discrimination. However, in all Canadian jurisdictions, Human Rights Codes have been enacted that prohibit private acts of discrimination in employment, accommodation and the provision of services. The Codes are typically enforced by human rights commissions through investigation, mediation and, if necessary, adjudication. The Human Rights Codes are simply statutes. However, some of the Codes contain primacy clauses making them superior to other statutes, and even without a primacy clause the SCC has held that a Human Rights Code takes precedence over other statutes. The Human Rights Codes, as statutes, are themselves subject to the Charter of Rights. P55-12 for examples.

55.6 Equality
(a) Four equalities of s15 S15 provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law. The reason for having four formulations of the idea of equality was to reverse the restrictive interpretations placed by the SCC on the phrase

equality before the law, which, as we have already noticed, is the phrase used in s1(b) Canadian Bill of Rights. The words and under were intended to abrogate a suggestion by Ritchie J. In the Lavell case, that judicial review on equality grounds did not extend to the substance of the law but only to the way in which it was administered. S15 also speaks of equal benefit of the law; this phrase was intended to abrogate a suggestion by Ritchie J. In the Bliss case that the legislative provision of benefits was not subject to equality standards. Finally, s15 uses the phrase equal protection ... of the law. This is very similar to the phrase equal protection of the laws, which, is the phrase used in the fourteenth amendment of the Constitution of the United States. (c) Aristotles definition Aristotles conception of equality, persons who are alike (similarly situated) should be treated alike, and persons who are not alike should be treated differently in proportion to the difference. Laws that single out groups for special treatment do not offend the principle of equality if they employ classifications that appropriately distinguish between people who are not alike, and if they provide for appropriately different treatment for those who are not alike. The trouble with Aristotles idea of equality is that the idea is stated at too high a level of generality to be useful. (d) Similarly situated Before the SCC decided the Andrews case, Canadian courts were applying a version of the Aristotelian principle of equality known as the similarly situated test. According to that test, a denial of equality was made out if it could be shown that the law accorded the complainant worse treatment than others who were similarly situated. In Andrews, McIntyre J. said that this test was seriously deficient, and that it could be used to justify laws that discriminated against Jews or blacks. He concluded that the similarly situated test should no longer be used, at least as a fixed rule or formula for the resolution of equality questions. The similarly situated test is not wrong in principle. Its vice is the one identified in the previous paragraph: the test does not supply the crucial criteria that are required to determine who is similarly situated to whom, and what kinds of differences in treatment are appropriate to those who are not similarly situated The test is deficient in the sense that it provides too little guidance to a reviewing court. (e) Formal and substantive equality The most common criticism of the similarly-situated definition of equality (and of the Aristotelian definition of equality) is not that it provides too little guidance to a reviewing court (or is empty), but that it can mask discrimination that occurs indirectly rather than directly. A theory that only covers the direct case is often described as formal equality, and is often attributed to the similarly situated definition (and to Aristotle).

Formal equality is not enough. It is also necessary to guarantee substantive equality, meaning by that term a theory of equality that will capture indirect as well as direct discrimination. What substantive equality requires is that the identification of persons who are similarly situated must take account of contextual factors related to race, sex and disability (for example), that may make a persons situation sufficiently different to require different treatment in order to be treated fairly (with equal respect). (g) Valid federal objective Before the adoption of the Charter of Rights, Canadian courts applied the guarantee of equality in the Canadian Bill of Rights. As we have seen, the approach that became dominant in the SCC was to uphold any distinction in a statute if the statute pursued a valid federal objective. The Court was severely criticized for its timidity in applying the Canadian Bill of Rights, and the legislative history of s15 Charter made abundantly clear that it was not to be given the same minimal effect as the Canadian Bill of Rights. (h) Early applications of s15 Until the Andrews case was decided by the SCC in 1989, most courts followed both approaches, that is, they assumed that every legislative distinction was a proper subject for equality review, but they upheld every distinction. In the Andrews case, the SCC started to develop rules to control the floodgates opened by s15. In that case, the Court held that s15 was a prohibition of discrimination, and that discrimination could only be based on a ground that was listed in s15 or that was analogous to those listed in s15.

55.7 Discrimination
It is now clear that s15 should be read as prohibiting only those violations of equality that amount to discrimination. The winding course of judicial interpretation seems now to have settled itself into the following definition of discrimination: (1) The challenged law imposes (directly or indirectly) on the claimant a disadvantage (in the form of a burden or withheld benefit) in comparison to other comparable persons. (2) The disadvantage is based on a ground listed in or analogous to a ground listed in s15 and (3) The disadvantage also constitutes an impairment of the human dignity of the claimant. The claimant who persuades the Court of these three elements is entitled to a finding of discrimination, which means that the challenged law is in breach of s15. The burden then shifts to government to justify the discriminatory law under s1.

55.8 Listed or analogous grounds

(a) Requirement of a listed or analogous ground The listed grounds, although admittedly not exhaustive, did point to personal characteristics of individuals that cannot easily be changed and which have often been the target of prejudice or stereotyping. The reference in subsection (2) (the affirmative action clause) to disadvantaged individuals or groups suggested that the role of s15 was to correct discrimination against disadvantaged individuals or groups. These features of s15 suggested that the proper role of s15 was not to eliminate all unfairness from, our laws, let alone all classifications that could not be rationally defended, but rather to eliminate discrimination based on immutable personal characteristics. Andrews v. Law Society of British Colombia (989) was the first s15 case to reach the SCC. It was a challenge to the statutory requirement of the province of British Columbia that members of the bar had to be citizens of Canada. The Court held unanimously that this requirement was contrary to s15, and by a majority that it was not saved by s1. Mclntyre J. discussed and rejected the theories advanced by me (that s15 condemned all legislative classifications) and by McLachlin J. (that s15 condemned unreasonable or unfair classifications). He held that there was a middle ground between those two positions, which was to interpret discrimination in s15 as applying to only the grounds listed in s15 and analogous grounds. This enumerated and analogous grounds approach, he said, most closely accords with the purposes of s15, and leaves questions of justification to s1. After Andrews, it was clear that s15 was a prohibition of discrimination, and that discrimination involved the imposition of a disadvantage (the imposition of a burden or the denial of a benefit) on an individual by reason of the individuals possession of a characteristic that was either listed in s15 or was analogous to those listed in s15. Law v. Canada (1995), in which the Court unanimously reaffirmed the restriction of s15 to listed and analogous grounds. The Court in Law also added a new restriction (which turned out to be short-lived), namely, that discrimination involved an impairment of human dignity. (b) Addition of analogous grounds Although the restriction to listed and analogous grounds was a severe reduction in the scope of s15, it did leave room for analogous grounds to be enrolled as bases for findings of discrimination. What are analogous grounds? Obviously, they are grounds that are similar in some important way to the grounds listed in s15, which are race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. These are all personal characteristics of individuals that are unchangeable (or immutable), or at least unchangeable by the individual except with great difficulty or cost. They are not voluntarily chosen by individuals, but are an involuntary inheritance. They describe what a person is rather than what a person does. It is morally wrong to impose a disadvantage on a person by reason of a characteristic that is outside the persons control.

It is true that individuals may claim to be treated unfairly by the law for conditions that are their own responsibility, but this kind of claim even if fully justified does not warrant a constitutional remedy. No doubt with these kinds of considerations in mind, the SCC has held that an analogous ground is one based on a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. The first analogous ground to be recognized was citizenship. That occurred in Andrews itself. This ruling was affirmed in Lavoie v. Canada (2002). The second analogous ground to be recognized was marital status. The recognition started in Miron v. Trudel (1995). In Nova Scotia v. Walsh (2002), the Court was unanimous that marital status was an analogous ground. It is worth interpolating here that neither citizenship nor marital status is immutable in a strong sense. Each is a status that can often be chosen by the individual, although (as the Court has rightly emphasized) that choice is sometimes blocked by legal requirements or (in the case of marital status) by the contrary wish of another person- Indeed, the element of choice in citizenship and marital status has been important in persuading the Court to find ways to uphold legislative distinctions based on citizen ship and marital status. The third analogous ground to be recognized was sexual orientation. In Egan v. Canada (1995), eight of nine judges decided that sexual orientation was an analogous ground. It paved the way for a series of cases that confirmed the ruling and upheld the equality rights of homosexual claimants. P55-24 for examples. So far, these three grounds are the only ones that have been recognized. Place of residence has not been accepted as an analogous ground, except in the special case of residence on an Indian reserve. Nor is occupation. Nor is substance orientation. Where there is no distinction based on a listed or analogous ground, there is no remedy under s15. The Court, which of course created this restriction, has chafed against it in some cases where the Court wanted to grant a remedy. P55-25 for examples. When the Court imports equality values into other Charter rights, it leaves out the restriction to listed and analogous grounds. (And it also leaves out the requirement of an impairment of human dignity or discrimination.)

55.9 Human dignity

(a) Ambiguity in Andrews The simple (and most common) reading of Andrews was that a breach of s15 occurred whenever a disadvantage (a burden or withheld benefit) was imposed on the basis of a listed or analogous ground. That finding would exhaust the role of s15, and issues of the reasonableness

or fairness of the challenged law would be addressed under s1. This simple approach accorded appropriately distinct roles for s15 and s1 in the equality inquiry. This interpretation meant that discrimination in s15 had a very simple meaning. It meant the imposition of a disadvantage on the basis of a listed or analogous ground. However, Mclntyre Js opinion contains hints of a more complicated theory of discrimination. Of the five other judges in Miron and Egan, four held that a disadvantage imposed on the basis of an analogous ground (marital status in Miron, sexual orientation in Egan) was enough to constitute discrimination, and immediately moved on to s1 justification. One judge, LHeureuxDube J., took a different path entirely, rejecting the restriction of s15 to listed and analogous grounds, and investigating discrimination on a broader, more discretionary, case-by-case basis. After Miron and Egan, the SCC was splintered into three camps as to the interpretation of s15. This did not stop the Court from deciding some s15 cases unanimously. In Eaton, Benner, Eldridge and Vriend, decided between 1995 and 1998, the Court reached unanimous decisions, but made no attempt to resolve the differences among the judges. It was not necessary, they claimed, because in each case all three interpretations of s15 would have led to the same result. This fragmentation of the Court lasted only until 1999, when Law v. Canada was decided. That case is described in the next section of the chapter. (b) Impairment of human dignity In Law v. Canada (1999), the SCC provided a new interpretation of s15. The new consensus was as follows: (1) S15 applied only to legislative distinctions based on a listed or analogous ground (contrary to LHeureux Dube J.s earlier view). (2) Discrimination in s15 involved an element additional to a distinction based on a listed or analogous ground (contrary to four judges earlier view.) (3) That additional element was an impairment of human dignity (contrary to all nine judges earlier view). Law did not define human dignity. What he did do was to suggest four contextual factors (which were not to be taken as exhaustive) that were helpful to the inquiry. The factors were; 1. the existence of pre-existing disadvantage, stereotyping, prejudice or vulnerability; 2. the correspondence between the distinction and the claimants characteristics or circumstances; 3. the existence of ameliorative purposes or effects on other groups; and 4. the nature of the interest affected. After 1999, every case followed the Law analysis until R.v. Kapp (2008), when the SCC unexpectedly changed its mind and retracted the requirement of an impairment of human dignity, replacing it with what seems to be the very similar requirement of discrimination. Until the Court is more explicit about the differences if any between the two concepts, it is worth

rehearsing the problems with the element of human dignity. It is vague, confusing and burdensome to equality claimants that it is vague is established by the fact that in the cases following Law, the SCC has often disagreed with lower courts and disagreed among itself on the question whether the challenged law impairs the human dignity of the claimant. It is confusing, because it introduces an evaluative step into s15 which leaves it unclear as to how much work s1 is left to do. And it is burdensome to claimants, because it introduces a new element to s15, and the burden rests on the claimant to establish all the elements of s15. A failure to establish an impairment of human dignity is fatal to the claimants case, which never advances to s1. The inquiry into human dignity is highly unstructured compared with the inquiry into s1 justification. As well as Law itself, in many subsequent equality cases, the claimant has established a disadvantage based on a listed or analogous ground, but has lost the case for failure to also establish an impairment of human dignity. The law has been upheld without the need for the government to establish s1 justification. (c) The factor of correspondence In Law the SCC suggested four contextual factors that were to be taken into account in determining whether or not human dignity is impaired by a law that imposes a disadvantage on the basis of a listed or analogous ground. The factor that was dispositive in that case was the correspondence factor. The Court described the factor in these words: 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. P55-30 for case examples. While judicial discussion of human dignity often ranges far and wide, the correspondence factor seems to have become the key to the impairment of human dignity. It is the Courts evaluation of that factor that normally yields the outcome. Even if the other factors point in the other direction. What does the correspondence factor really mean? It seems to come down to an assessment by the Court of the legitimacy of the statutory purpose and the reasonableness of using a listed or analogous ground to accomplish that purpose. If that is right, the correspondence factor leaves very little work for s1 to do. (d) Discrimination without human dignity The SCC, after introducing human dignity as an essential element of a claim under s15, and after using the concept as the reason for denying many of the equality claims that came before it, has apparently abandoned the concept. The change came in a brief obiter dictum in R. V. Kapp (2008), where McLachlin CJ. And Abella J., writing for a Court that was unanimous on this point unexpectedly revisited the issue of human dignity in the s15 jurisprudence. They did not doubt that human dignity is an essential value underlying the s15 equality guarantee, but they acknowledged that as a legal test`` human dignity was confusing and difficult to apply and was an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be. They held that an impairment of human dignity should no longer be a required element of a s15 claim.

The Kapp opinion assumes that there is still an element of s15 in addition to a disadvantage imposed on a listed and analogous ground. That element is no longer called human dignityit has no name other than discrimination but it is identified by the same four contextual factors that were formerly used to identify an impairment of human dignity. Factors one (pre-existing disadvantage) and four (nature of interest affected) and possibly three (ameliorative purpose) went to perpetuation of disadvantage and prejudice. Factor two (correspondence), which (as argued in the previous section of this book) has normally been the decisive one, went to stereotyping. After Kapp, it is still necessary for an equality claimant to establish something in addition to disadvantage based on a listed or analogous ground. That additional element (discrimination) is no longer an impairment of human dignity; it is now the perpetuation of disadvantage or stereotyping. The definition of discrimination as the perpetuation of disadvantage or stereotyping is almost as vague as human dignity, and it continues to rely on the same contextual factors as were used to identify human dignity. The inquiry into the reasonableness of a distinction that is based on a listed or analogous ground, is not wholly remitted to s1 (as Andrews so wisely insisted), but continues to be divided in a confusing way between the s15 inquiry into discrimination and the s1 inquiry into justification. And, because the inquiry into discrimination is part of s15, it is the equality claimant who bears the burden of establishing that the use of a listed or analogous ground is a perpetuation of disadvantage or stereotyping. Ermineskin Indian Band and Nation v. Canada (2009), was the first equality case to be decided after Kapp. P55-32 for case background. Confirmed the Kapp ruling that it was not enough for an equality claimant to show a disadvantage based on a listed or analogous ground. The equality claimant also had to establish that the challenged law was discriminatory, which involved establishing that the law perpetuates prejudice or stereotyping. A change from Kapp was that Rothstein J. made no reference to the four contextual factors from Law that the Court in Kapp had been so careful to preserve. (Of course, the Courts silence does not necessarily mean that the four factors are now irrelevant.)

55.10 Disadvantage
(a) Selection of comparator group In order to establish discrimination under s15, an individual must show that he or she has suffered a disadvantage by reason of his or her possession of one of the characteristics named in s15 or an analogous characteristic. It is the requirement of disadvantage that involves a comparison with others others who are similarly situated to the complainant except for the presence of a listed or analogous personal characteristic.

The presence of disadvantage (or unequal treatment) requires a comparison between the legal position of the claimant and that of other people to whom the claimant may legitimately invite comparison. This involves two inquiries. The first is whether the group to which the claimant compares herself is the appropriate comparator group. Once the appropriate comparator group has been selected, a second inquiry is presented, which is whether the distinction that the law draws between the claimant and the comparator group is disadvantageous to the claimant. The selection of the appropriate comparator group involves finding the group that shares with the claimant all the characteristics that qualify for the benefit (or burden), except for a personal characteristic that is listed in or analogous to those listed in s15. P55-32.3 to 55-33 for examples. These cases demonstrate that the definition of the comparator group is critical to the outcome of s15 cases. The claimant will compare himself to a group that is better treated, than him (Martin). The responding government will suggest a different comparator group that either receives worse treatment or the same treatment (Hodge) or that does not exist (Auton). In choosing between the competing comparisons, a court works with little guidance, although it may be assisted by its sense of the purpose of the statutory scheme. In a scheme that is supposed to be comprehensive, it is natural to make the comparison between those who are denied benefits and those who are granted benefits. The comparison is less persuasive (and the consequences more costly) where the scheme is not comprehensive and the claimant group is only one of a number of groups from whom benefits are withheld. Only if the claimants choice of comparison is agreed to by the Court will the claim be able to proceed through the various stages of s15 and S1. (b) Requirement of disadvantage Once the appropriate comparator group has been selected, it is necessary to compare the treatment provided by the law to the claimant with the treatment provided to the comparator group. Only if the law treats the claimant less favourably, whether by withholding a benefit that is granted to the comparator group, or by imposing a burden that is not applicable to the comparator group, is the claim of disadvantage or unequal treatment made out. In Thibaudeau v. Canada (1995), the claimant was unable to establish that she had suffered a disadvantage by reason of her marital status. Another way of looking at Thibaudeau is that it calls for any disadvantage imposed on the claimant group to be netted out against any advantage granted to the claimant group. The disadvantage of having to pay income tax on support payments was, if the family-law system worked properly, offset by higher support payments, more faithfully paid. Another case in which there was a finding of no disadvantages Eaton v. Brant County Board of Education (1997). P55-36.

(c) Objective and subjective disadvantage Egan v. Canada (1995). In Egan, none of the judges considered that the economic advantage of the claimants non-recognition as spouses should defeat their s15 claim. Cory J., who dissented, but who on this point attracted the agreement of Sopinka L, as well as Iacobucci and McLachlin JJ, said that the concept of equal benefit of the law should not be restricted to a simple calculation of economic profit or loss. And LHeureux-Dube J. agreed that it would take too narrow a view of the phrase benefit of the law [in s15] to define it strictly in terms of economic interests. Another way of framing the issue in Egan is to ask whether the presence of disadvantage is to be judged from the subjective standard of the individual who makes the claim of discrimination, or from an objective standard determined by the reviewing court. The SCC was implicitly applying a subjective standard in Egan. He same subjective standard seems to have been the (unarticulated) premise of the finding of disadvantage in McKinney v, University of Guelph (1990), in which the SCC held that mandatory retirement at age 65 constituted discrimination on the basis of age. If the subjective standard of disadvantage is the correct approach, then disadvantage will be present in all but the most unusual cases, since plaintiffs do not bring Charter cases (or any other legal proceedings) unless they believe that they have suffered a disadvantage. But Charter decisions do not affect only the parties who believe they are disadvantaged. If mandatory retirement had been struck down in McKinney, then its benefits would have been denied to all employees including those whose unions had voluntarily sought and negotiated mandatory retirement (and pensions) in their collective agreements. This radical result was in fact avoided in McKinney, because the Court held, by a majority, that mandatory retirement was justified under s1. In the end, therefore, the Courts (objective) calculus of costs and benefits, rather than the (subjective) calculus of the plaintiffs, is the one that prevailed. Mandatory retirement was upheld. The subjective standard of disadvantage in s15 (as opposed to s1) was not applied in Thibaudeau. The SCC held that the deduction-inclusion system was, on the whole, beneficial to separated custodial parents. Therefore, the Court did not want to strike the system down. But this reasoning all took place within s15. In contrast to McKinney, the Court did not need to advance to the s1 inquiry. In effect, without saying so, the Court in Thibaudeau applied an objective measure of disadvantage to the s15 equality claim. The claim failed for lack of objective disadvantage, despite the claimant`s subjective sense of disadvantage. The objective approach to disadvantage was also applied in R. V. Swain (1991). P55-39.

The fluctuations between objective and subjective in the SCCs inquiries into disadvantage may have been resolved in Law v. Canada (1999). That case did not explicitly address the question of disadvantage. However, the case did introduce into the equality jurisprudence a new requirement of human dignity, and it addressed the question whether an impairment of human dignity was to be assessed from a subjective or an objective perspective. The Courts answer was that both perspectives must be employed! The inquiry was to be undertaken from the perspective of the claimant and from no other perspective, but the claimants assertion must be supported by an objective assessment of the situation. This seems to make the objective assessment the decisive one. Later cases have clarified the test as meaning that an impairment of human dignity is to be assessed from the perspective of a reasonable person (objective), but one who shares the attributes and circumstances of the claimant (subjective). Presumably, this test would now be the appropriate one for the assessment of disadvantage as well. (d) Human dignity and disadvantage The element of human dignity that was part of the s15 analysis from 1999 to 2008 often led the Court to omit any explicit analysis of whether the claimant is truly disadvantaged by the challenged law. After all, if there is no impairment of human dignity, then the claimant loses regardless of whether she has suffered any disadvantage. Moreover, the indeterminate concept of human dignity tends to absorb the question of disadvantage, making it hard for the Court to keep the two ideas distinct. Judicial discussion of human dignity inevitably ranges far and wide, and often sounds very much like a discussion of disadvantage. P55-41 for examples. When Kapp removed human dignity from the s15 analysis, it replaced the concept with discrimination, a similarly indeterminate judicially-created element to be established by the equality claimant. The Kapp requirement has the same tendency to absorb the requirement of disadvantage. (e) Group disadvantage In Andrews, Three opinions were written, and all three suggested that disadvantage or powerlessness was characteristic of the groups protected by s15. Non-citizens were a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. In R. v. Turpin (1989), there were three accused who were charged with murder in Ontario. They wished to be tried by judge alone, and they argued that the failure of the CC to accord that right to an accused person in Ontario was discriminatory, because the right was available to an accused person in Alberta. In Turpin, the SCC rejected the s15 argument on the basis that the three accused were not members of a disadvantaged group. Court said that it was not sufficient for the equality claimant to show that he or she was disadvantaged by the impugned law. That, obviously, was necessary, but it was not sufficient.

The claimant had to go further and show that the distinction employed by the statute was one that defined a group that was disadvantaged in other respects. It was impossible to identify indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice. The claim would not, Wilson J. said, advance the purposes of s15 in remedying or preventing discrimination against groups suffering social political and legal disadvantage in our society. The view that systemic disadvantage and political powerlessness are essential characteristics of the groups protected by s15 reflects a theory of equality that finds its origin in the famous footnote 4 of United States v. Carolene Products Co. (1938). The SCC of the United States pointed out that prejudice against discrete and insular minorities could have the effect of distorting those political processes ordinarily to be relied upon to protect minorities. From this perspective, judicial review of discriminatory laws can be viewed as the correction of a failure of the political process. This view of equality casts the judges in the role of servants of democracy even as they strike down the actions of supposedly democratic governments. It is doubtful whether it is appropriate to regard the political powerlessness of a group as an essential ingredient of discrimination under s15. Assuming that general disadvantage could be identified with particular groups, the awkward question arises as to how to deal with an individual who has been discriminated against on a named or analogous ground, although the individual belongs to a group that is in other respects not subject to disadvantage. The implication of Turpin is that an individual member of the advantaged part of a named or analogous group would not invoke s15, even if the individual could establish unjust treatment based on a named or analogous ground. Whatever the theoretical justification for such a stern doctrine, it is hard to square with the unqualified language of s15, and it has in fact been rejected by the SCC. P55-45 for cases. R. v. Hess (1990). Weatherall v. Canada (1993). The question whether a showing of general (or group) disadvantage is a prerequisite to a s15 equality claim has probably been settled by Miron v. Trudel (1995) and Egan v. Canada (1985). The claim of discrimination in each case was made by a member of a group that, the Court held, was generally disadvantaged, (it was common-law couples in Miron and same-sex couples in Egan.) In neither case, therefore, was it necessary to pronounce on the issue whether general disadvantage was a prerequisite to a s15 claim. Nonetheless, in Miron, eight judges said that membership in a disadvantaged group was not a prerequisite, but merely an indicator or indicium of an analogous ground. In Egan, three judges agreed with Cory J, who said that: while historical disadvantage or a groups position as a discrete and insular minority may serve as indicators of an analogous ground, they are not prerequisites for finding an analogous ground.

When the Law case introduced human dignity into the s15 analysis in 1999, Iacobucci J. for the Court made reference to group disadvantage as a contextual factor in determining whether there had been an impairment of the claimants human dignity. He said that the important purpose of protecting individuals or groups who are vulnerable, disadvantaged, or members of discrete and insular minorities` should always be a central consideration. However, the claimants association with a disadvantaged group or groups was not per se determinative of an impairment of human dignity.

55.11 Direct and indirect discrimination

(a) Substantive equality A law may be discriminatory on its face; Direct discrimination. The term formal equality is normally used to indicate a theory of equality that covers only direct discrimination. A law may be discriminatory in its effect. Indirect discrimination. Indirect discrimination is caused by a law that does not expressly employ any of the categories listed in s15 (or analogous to those listed), if the law has a disproportionately adverse effect on persons defined by any of the prohibited categories. Sometimes the terms systemic discrimination or adverse-effect discrimination are used as synonyms for indirect discrimination. The term substantive equality is normally used to indicate a theory of equality that covers indirect as well as direct discrimination. Because s15 includes substantive equality, it leads to the invalidity of a law that is discriminatory in its effect. Finally, a law may be discriminatory in its application. This is another kind of indirect discrimination, and it is also a breach of substantive equality and of s15. Where a law is discriminatory only in its application, s15 will not lead to the invalidity of the law itself. In Andrews, the SCC made clear that s15 required substantive and not merely formal equality. In cases under the statutory human rights codes, the Court had already held that indirect discrimination was covered along with direct discrimination. S15 therefore applies to all of the three kinds of laws identified above; 1. the law that is discriminatory on its face; 2. the law that is discriminatory in its effect; and 3. the law that is discriminatory in its application. It is not necessary to show that the law was passed with the intention of discriminating; the mere fact that the law does have the disproportionately adverse effect is enough. Only two claims of indirect discrimination have been successful. One is Eldridge v. British Columbia (1997), where the challenge was to the failure of British Columbias statutory health care plan to provide publicly-funded sign-language interpretation to deaf persons seeking medical services. The other is Vriend v. Alberta (1998), where the challenge was to the failure

of Alberta`s human rights legislation to include sexual orientation in the list of forbidden grounds of discrimination in employment. (b) Unintended discrimination Indirect discrimination may be unintended. Indirect discrimination may also be intended. However, because intention is not an ingredient of discrimination under s15, it is not necessary to make any judgment about whether a case of indirect discrimination is intended or not. The mere fact that a law has a disproportionately adverse effect on persons defined by a prohibited category (along with an impairment of human dignity) is enough to establish the breach of s15. Even direct discrimination may be unintended. In the Andrews case, for example, it was never seriously suggested that the object of the British Columbia Legislature, in requiring that lawyers must be citizens, was to disadvantage non-citizens. The benign purpose of the law was irrelevant under s15. It was, however, relevant to the s1 inquiry. The SCC has committed itself to the doctrine that it is not necessary to show that the purpose of a challenged law is to impose a disadvantage on a person by reason of a listed or analogous characteristic. It is enough to show that the challenged law has this effect. The rule that discrimination under s15 need not be intentional is consistent with the rule developed by the Court with respect to other Charter rights. A law is in breach of a Charter right if either the purpose or the effect of the law is to abridge a Charter right. Applied to s15, this doctrine leads to the conclusion that either a discriminatory purpose or a discriminatory effect will constitute a breach of s15. The purpose of the law will, however, always be relevant to justification under s1, because a law limiting a Charter right cannot be justified under s1 unless it serves an important purpose that is compatible with the values of a free and democratic society. (c) Reasonable accommodation Another concept that has become established in decisions under the human rights codes, and which will apply under s15 as well, is reasonable accommodation. It is a necessary corollary of the rule that discrimination may be indirect and unintended that a law may have to make reasonable accommodation for those who, by reason of religious affiliation or disability (for example), are discriminated against by otherwise neutral laws. P55-51 for examples. Sometimes there is room for argument as to the form of accommodation that is required by s15. In Eaton v. Brant County Board of Education (1997), the SCC held that a school system was under a s, 15 duty to make a reasonable accommodation to the educational needs of children with mental or physical disabilities. The SCC held that there was no rule or presumption in favour of the regular classroom setting. The school boards duty of reasonable accommodation was to be driven by the best interests of the child, nor the wishes of the parents.

55.12 Justification under s1

S1 applies to laws that infringe s15 no less than to laws that infringe other rights. However, since Law imported human dignity into s15 in 1999, there has been only one case in which s1 has saved a law found to be in breach of s15. Newfoundland v. N.A.P.E. (2004), P55-52 for background. Although the pay equity agreements were mandated by the Charter, their postponement was justified under s1 as part of the response to the fiscal crisis. The N.A.P.E. case is an unusual one. In the great majority of cases, the new element of human dignity in s15 leaves no rote for s1. It is obviously hard to justify a law that imposes a disadvantage on the basis of a listed or analogous ground and also impairs human dignity. When the Court uses the correspondence factor to decide the issue of human dignity, it considers whether the purpose of the law is legitimate and the use of a listed or analogous ground to accomplish the purpose is reasonable. This inquiry is really a loose form of the inquiry into justification under s1. The Courts retraction of human dignity in R. v. Knapp (2008) is unlikely to restore s1 to its intended justificatory role, because the substituted concept of discrimination appears to be very similar to human dignity.

55.13 Affirmative action

Subsection (2) of s15 makes clear that s15 does not preclude affirmative action or equity programmes in favour of disadvantaged individuals or groups. What is not clear is whether s15(2) is an exception to s15(1) or whether it is simply a clarification of s15(1). Regarded as an exception to s15(1), s15(2) insulates from, constitutional challenge those programmes that practise reverse discrimination by requiring that a member of a disadvantaged group be preferred to a person who is equally or better qualified but who is not a member of the favoured (disadvantaged) group. S1 Charter is of course available to sustain a law that uses a racial or sexual classification (for example) for a benign purpose, but s15(2) makes it unnecessary to go to s1. Provided the programme meets the conditions stipulated by s15(2), it cannot be attacked under s15(1). The foregoing explanation of s15(2) as an exception to s15(1), assumes that laws designed to ameliorate the conditions of disadvantaged individuals or groups are prima facie violations of s15(1). That is why they need to be saved by s15 (2). But the SCC has consistently interpreted s15(1) as implementing a substantive rather than a formal definition of equality. Under a substantive definition of equality, different treatment in the service of equity for disadvantaged groups is an expression of equality, not an exception to it. In R. V. Kapp (2008). Rejected the idea that s15(2) was an exception to s15(1). They described the two subsections as confirmatory of each other. The focus of subsection (1) was on preventing governments from discriminating; the focus of subsection (2) was on enabling governments to pro-actively combat discrimination. However, they held that subsection (2) was not merely a clarification or

an aid to the interpretation of subsection (1); subsection (2) had an independent role to play. If an affirmative action program met the criteria of subsection (2), then the program was valid under s15(2) and no s15(1) analysis was necessary. If the program failed to meet the criteria of s15(2), then a s15(1) analysis would have to be undertaken to determine whether the program was discriminatory. P55-55 for Kapp examples. If the program violated some other Charter guarantee, or an aboriginal or treaty right, or a federalists restriction on legislative power, or some other constitutional rule, s15(2) would not save it.

55.14 Discrimination permitted by Constitution

(a) Age in ss. 23,29,99 CA 1867 provides that a person under the age of 30 cannot be appointed to the Senate (s23), and that a senator must retire at the age of 75 (s29); it also provides that a judge must retire at the age of 75 (s99). These provisions impose a burden by reference to a ground of discrimination that is listed in s15, namely, age. Arc the provisions sheltered from Charter attack by reason of their constitutional status? Those particular provisions have never been attacked, but the cases on other constitutional provisions, make clear that the answer to this question is yes. (b) Race in s. 91(24) This issue arose under the equality clause of the Canadian Bill of Rights. In R. V. Drybones (1969), the SCC struck down a provision of the Indian Act that made it an offence for an Indian to be drunk off a reserve. S91(24) CA 1867 confers on the federal Parliament the power to make laws in relation to Indians, and lands reserved for the Indians. Obviously, any law enacted under this power will have to be explicitly restricted to Indians or will have a disproportionate impact on Indians who live on lands reserved for the Indians. Drybones was predictably followed by attacks on other provisions of the Indian Act, and two of the cases went on to the SCC. The Court quickly repented of its boldness in Drybones. The position under s15 of the Charter should be the same as under the Canadian Bill of Rights. Laws enacted under s91(24) that employ the classification Indian (or that have a disproportionate impact on Indians or lands reserved for the Indians) should not be vulnerable to attack under s15. However, in Ermineskin Indian Band and Nation v. Canada (2009), The Court assumed that a s15 challenge was available if the Indian Act imposed a disadvantage on Indians, although it rejected the challenge on the ground that the investment provisions entailed prudent investment practices that were not discriminatory.

(c) Religion in s. 93 The religious education provisions of s93 CA 1867 raise a similar issue to the constitutional provisions for Indians. The point arose in the Ontario Separate School funding case, (1987). The provinces power to enact laws in relation to education came from s93 CA 1867. However, s93 went on to guarantee the rights of Roman Catholic and Protestant school supporters that existed at the time of confederation, and s93(3) made reference to any system of separate schools thereafter established, meaning established after confederation. The SCC held, in the words of Estey J., that this language contemplates that after confederation the Legislature may establish a new system of separate schools or may enlarge an existing system of separate schools. This power, if it was to be exercised, required the Legislature distinguish between school supporters on the basis of religion. Essentially the same issue was relitigated in Adler v. Ontario (1996). The SCC unanimously decided that the comparison with the fully-funded Roman Catholic schools could not be invoked as a breach of equality, because of the special constitutional status of the Roman Catholic schools. The Charter of Rights, although adopted later in time than the CA 1867, is not to be read as impliedly repealing or amending those provisions of the earlier instrument that are inconsistent with the unqualified language of s15 (or any other guarantee). Rather, s15 is to be the unqualified language of the earlier instrument. (d) Province of residence in ss. 91,92 The SCC has in fact held that place of residence is not an analogous ground. Differences between provincial laws cannot amount to discrimination under s15, because that would require a uniformity of provincial laws which would be inconsistent with the distribution of legislative powers in ss91 and 92 CA 1867(and some other sections). The federal system thus operates as a general qualification of s15s guarantee of equality. (e) Citizenship in s. 6 The Charter of Rights itself contains some implicit qualifications of s15s guarantee of equality. Because s6(1) s guarantee of the right to remain in Canada applies only to a citizen, it has been held that the Immigration Act may validly provide for the deportation of non-citizens who have committed criminal offences, or who have been certified as a threat to national security. The imposition of a burden on non-citizens that does not also apply to citizens would normally be a breach of s15, but in the case of the right to remain in Canada a difference in treatment was specifically contemplated by s6(1). Outside the right to remain in Canada under s6(1) laws imposing disabilities on non-citizens have been held to be in breach of s15. P55-60 for examples.

(f) Language in ss16-23 Another qualification of s15 is created by the language rights of ss16 to 23 Charter. These implement a notion of equality of the French and English languages. However, by implication, they accord a special status to French and English in comparison to all other linguistic groups in Canada. The conferral of a benefit on French-speaking citizens that was denied to German-speaking citizens (for example) would normally be a breach of s15, but in the case of the right to minority language education a difference in treatment is specifically contemplated by s23.

55.15 Race
Race, as well as national or ethnic origin and colour, is one of the grounds of discrimination that is expressly prohibited by s15. A racial distinction in a statute would be upheld if the statute established an affirmative action programme within the terms of s15(2), and might be upheld under s1 if the statute fell outside the strict terms of s15(2) but pursued a benign purpose of an affirmative action kind. Otherwise, it is difficult to imagine a situation in which a racial distinction could possibly be upheld. To the extent that racial discrimination occurs in the private sphere, the remedy would be found under the human rights codes, not the Charter, which does not apply to private action. The situation of the aboriginal peoples is a special one. s91(24) CA 1867 empowers the federal Parliament to make laws in relation to Indians, and lands reserved for the Indians. The special status of aboriginal peoples has been reinforced by the adoption of s35 CA 82, which guarantees aboriginal and treaty rights. Such rights are restricted to aboriginal peoples, who are of course defined by their race. This is recognized by s25 Charter, which provides that the Charter should not be construed sc as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada. By reason of these provisions, s15 has only a limited role to play with respect to aboriginal peoples.

55.16 Religion
Religion is another of the grounds of discrimination that is expressly prohibited by s15. To the extent that a denominational school system is protected, or even contemplated, by s93, no s15 challenge is open. S2(a) Charter, guarantees freedom, of conscience and religion. S2(a) has been held to be abridged by Sunday observance laws and by religious exercises in public schools. In Alta. V. Hutterian Brethren of Wilson Colony (2009), the Court rejected the s15 argument, holding that a universal requirement of photo licences did not create a distinction based on religion.

55.17 Sex
(a) Direct discrimination Sex Is another of the grounds of discrimination that is expressly prohibited by s15. The equality guarantee of the Canadian Bill of Rights gave rise to two cases of sexual discrimination. The first case was A.G. Can. V. Lavell (1973), in which a challenge was brought against the provisions of the Indian Act that used to provide for the transmission of Indian status. The discriminatory provisions of the Indian Act were subsequently held by an international tribunal to be in violation of the International Covenant on Civil and Political Rights; and they were repealed in 1985. The second case was Bliss v. A.G. Can, (1979), in which a challenge was brought to a provision of the Unemployment Insurance Act, which denied ordinary unemployment benefits to women whose employment was interrupted by pregnancy. This challenge was rejected by the Court on the basis that the disadvantaged class was defined by pregnancy rather than by sex. Since pregnancy is a condition to which only women are vulnerable, any disadvantage premised on pregnancy should be characterized as discrimination by sex. This criticism has been accepted by the SCC, which in a Human Rights Code decision has overruled Bliss. Although Bliss Itself has been overruled, its line of reasoning has been employed under s15 Charter. In R, v. Hess (1990) a majority of the SCC held that the offence of statutory rape (intercourse with a female person under the age of 14) did not offend s15, although the offence could only be committed by a male person. Since the prohibited act (intercourse) was defined by reference to penetration, it could as a matter of biological fact be committed only by males. Therefore, she concluded, it was not discriminatory to subject only male persons to the offence. In Weatherall v. Canada (1993), a prisoner in a federal penitentiary for men challenged the constitutionality of frisk searches and cell surveillance of male prisoners by female guards. The SCC pointed out (without referring to s28) that equality did not demand that men and women always be treated in the same way, and the effect of cross-gender searching was different and more threatening for women than for men. Even if there was a breach of s15, it was saved by s1. In Brenner v. Canada (1997), a provision of the federal Citizenship Act that distinguished between men and women was struck down tinder s15.

In Trociuk v. British Columbia (2003), a father challenged the provincial law that permitted a mother, on the birth of a child, to leave the fathers name off the birth certificate, and, if she did that, to alone choose the surname of the child. He SCC held that the law distinguished on the basis of sex, since fathers were disadvantaged in comparison with mothers. The Court also held that the exclusion of fathers from the registration and naming process impaired their human dignity. Therefore, the law infringed s15 and (since the Court decided that the law was not justified under s1) the law was invalid. In Newfoundland v. N.A.P.E. (2004), the province of Newfoundland enacted the Public Sector Restraint Act, which delayed for three years the introduction of pay equity for female workers in the hospital sector. (b) Systemic discrimination To the extent that discrimination against women takes place in the private sphere from which the Charter is excluded, any remedy would have to lie under the human rights codes. It has been in proceedings initiated by women under the human rights codes that the SCC has established the expansive rules respecting discrimination which now apply to s15 as weft as to the codes. (c) Section 28 Section 28 provides that the rights and freedoms referred to in the Charter are guaranteed equally to male and female persons. This falls short of a requirement of the equal treatment of male and female persons, presumably because that objective is attained by the general equality clause of s15. All that s28 seems to require is that the other provisions of the Charter be implemented without discrimination between the sexes. Within its narrow sphere of application, s28 is a stronger guarantee than s15 in at least two, and perhaps three, respects; (1) the three-year delay in the coming into force of s15 (by virtue of s32(2)) did not apply to s28; (2) the power of legislative override (under s33) applies to s15, but not to s28; and (3) it is possible that even the limitation clause (s1) does not qualify s28, having regard to s28s opening words, Notwithstanding anything in this Charter.

55.18 Age
Age is another of the grounds of discrimination that is expressly prohibited by S.15. Like the other grounds of discrimination, age is a personal characteristic that is immutable in the sense that it cannot be changed by the choice of the individual. There are, however, two differences between age and the other named grounds of discrimination. First, age is a characteristic shared by everyone. In the course of a normal life

span, each individual passes through the various stages of childhood, youth, adulthood, middle age and old age. A minority defined by age is much less likely to suffer from the prejudice of the majority than is a minority defined by race or religion or any other characteristic that the majority has never possessed and will never possess. A second difference between age and most of the other named characteristics is that there is some correlation between age and ability. In fact, our laws are replete with provisions in which age is employed as the qualification for pursuits that require skill or judgment. Such stereotyping is inevitably inaccurate, because individuals mature at different rates. Age is used as a qualification for no other reason than to avoid or reduce the administrative burden of individualized testing. Disabilities imposed on young people by reference to the attainment of a qualifying age may have to be regarded as discrimination under s15, since a disadvantage is imposed by reference to a named ground of discrimination, but it is to be hoped that the SCC would readily uphold them under human dignity or discrimination or s1, despite the Courts illconsidered claim that administrative expediency does not count towards s1 justification. Consent to medical treatment is one of the areas where legal disabilities are imposed on children. A.C. v. Manitoba (2009) P55-66. The SCC, did not use age 16 as a conclusive determinant of capacity, but merely as the basis for a presumption of capacity. Although a presumption of capacity arose at age 16, this was not a breach of s15 because the treatment of children both under and over 16 was calibrated in accordance with an individualized judgment of their capacity to make decisions in their own best interests, not their age. In Law v. Canada (1999), the SCC upheld a law that denied a benefit to young persons. Although the law imposed a distinction on the listed ground of age, the Court held that it was not discriminatory, because it did not impair human dignity (an element of s15 that the Court in this case introduced into the jurisprudence for the first time). The exclusion of persons under 35 from the benefit scheme did not imply that they were less capable or less worthy, but was simply designed to recognize the reality that older people would be in greater need of support, and to apply limited resources to those in greater need. Gosselin v. Quebec (2002) P55-67 for background. Wynberg v. Onrario (2006) P55-67 for background.

In Canadian Foundation for Children, Youth and the Law v. Canada (2004) he issue was the constitutionality of s43 CC, which made it a defence to a charge of assault for a schoolteacher or parent to use force by way of correction toward a pupil or child provided that the force does not exceed what is reasonable in the circumstances. P55-68 for background. Advancing age also leads to a decline in ability, culminating in death. This is reflected in the widespread adoption in workplaces of mandatory retirement rules, typically requiring an employee to retire at the age of 65. The SCC decided a group of four mandatory requirement cases in 1990. The principal decision was McKinney v. University of Guelph (1990), in which a number of university professors in Ontario challenged the mandatory retirement policies of their universities. The second case involved the same issue in universities in British Columbia. The third case involved the admitting privileges of doctors at a hospital in British Columbia. The fourth case involved professors at a community college in British Columbia. The first three cases were all held to be outside the scope of the Charter, because the universities and the hospital operated outside the control of government. Only the fourth case was within the scope of the Charter, because the community college was more tightly controlled by government than the other institutions. Despite the fact that the Charter did not apply to the universities and the hospital, the Court went on to examine the constitutionality of mandatory retirement in those institutions as if s15 did apply. The Court held unanimously that mandatory retirement was discrimination by age and was therefore in violation of s, 15, but the Court by a majority went on to decide that mandatory retirement was saved by s1. In Tetreault-Gadoury v. Canada (1991), the question arose whether a provision of the Unemployment Insurance Act, which denied benefits to persons over 65, was in breach of s15. The SCC followed McKinney to hold that the provision violated s15. However, the Court departed from McKinney to hold that the age-65 bar could not be justified under s1. The rejection of s1 justification in Tetreault-Gadoury suggests that age distinctions are vulnerable to Charter attack, and even that mandatory retirement in workplaces other than universities (and hospitals) may be unjustified under s1. In Tetreault-Gadoury, however, the Court rejected what seemed to me to be a powerful justification for the age-bar, which was to prevent the doubling up of pension income and unemployment insurance benefits.

55.19 Mental or physical disability

Mental or physical disability is another of the grounds of discrimination that is expressly prohibited by s,15. Like the other grounds of discrimination, mental or physical disability is immutable in the sense that it cannot be changed by the choice of the individual. It is not necessarily immutable in an absolute sense, since the condition may be curable. Unlike the

other grounds of discrimination, mental or physical disability is, by definition, an impairment in ability; and some legal restrictions may properly be predicated on mental or physical disability. Eaton v. Brant County Board of Education (1997), the Court held that the s15 right belonged to the child, not her parents, and the school systems accommodation must be driven by the best interests of the child. The childs placement in a special classroom was an accommodation of her special needs that fully complied with s15. Wynberg v. Ontario (2006). P55-72 for background. This case, like Eaton before it, illustrates the difficulty faced by parents who are dissatisfied with a school program that purports to accommodate the mental or physical disability of a child. The burden of proof is on the claimants to prove discrimination, and it is hard for persons who are outside the school system to muster the kind of evidence that would persuade a court that the school system has not responded appropriately to the needs of the child. Winko v. B.C. (1999) was a challenge to the provisions of the CC that provided for the disposition of the accused following a verdict of not criminally responsible on account of mental disorder. Although the CC created a distinction based on the listed ground of mental disability, the provisions did not impair the human dignity of those who were found not criminally responsible. On the contrary, the provisions recognized that mentally ill offenders should not be punished, but should be provided with rehabilitative treatment. Another case where an accommodation had been made to the special circumstances of a class of disabled persons is Granovsky v. Canada (2000), which was a challenge to the provisions of the Canada Pension Plan that provided for a disability pension for those who had become unable to work by reason of disability. In each of the cases described so far, an accommodation had been made to the special needs of a class of persons with disabilities. The constitutional challenge was to the appropriateness of the accommodation, and in each case the challenge failed. This pattern, of deference was broken in Nova Scotia v, Martin (2003), where the SCC struck down the provisions of Nova Scotias statutory workers compensation scheme that dealt with chronic pain. The Court held that this program was not appropriate as a general answer to chronic pain, which often persisted beyond the four-week period. The restriction on benefits for chronic pain distinguished between workers with chronic pain and workers with other kinds of work-related injuries. The distinction was based on physical disability, even though the members of the comparison group were also disabled. The distinction also impaired the human dignity of

chronic pain sufferers, and therefore counted as discrimination that was prohibited by s15. It could not be justified under s1. The Court was, as usual dismissive of concerns based on cost and administrative expediency. The judicial assumption is that, once a Charter breach has been identified, the province simply has to do whatever is necessary to come into compliance. Eldridge v. British Columbia (1997), In that case, the SCC held that the administrators of British Columbias health service plan had not accommodated the special needs of deaf people seeking medical services. Because communication was a crucial part of the provision of most medical services, it was a denial of equal benefit to deaf people not to provide the assistance that would enable effective communication to occur between a deaf patient and a hospital or doctor. In Rodriguez v. British Columbia (1993), challenged the constitutionality of the CC offence of assisting a person to commit suicide.

55.20 Citizenship
Citizenship is not a ground of discrimination that is expressly mentioned in s15, but we know that it is analogous to those that are expressly mentioned, because the SCC so held in Andrews v. Law Society of British Columbia (1989). Andrews was followed in. Lavoie v. Canada (2002), in which a majority of the SCC .held that a statutory hiring preference for Canadian citizens in the federal public service was a breach of s15 (although the preference was upheld under s1. What has been accepted by the Court is that the statutory power of deportation can be (and indeed must be) limited to non-citizens. This is because s6 Charter guarantees to every citizen of Canada the right to remain in Canada.

55.21 Marital status

Marital status is not a ground of discrimination that is expressly mentioned in s15, but in Miron v. Trudel (1995), the SCC held that it was analogous to those that are expressly mentioned. These conclusions were counterintuitive, considering that s91(26) CA 1867 confers on the Parliament of Canada legislative authority over marriage and divorce, and s. 92(12) confers on the provincial Legislatures legislative authority over the solemnization of marriage . After Miron v. Trudel, the SCC added its new requirement of human dignity to s15. Did that additional barrier to a s15 claim protect some elements of marriage? In Nova Scotia v. Walsh (2002) the Court said yes. P55-77 for background. The Court now accepted unanimously that marital status was an analogous around under s15. But the court moved on to decide that the exclusion of unmarried cohabitants did not impair human dignity.

The law, was premised on the assumption that only those persons who had made the choice to get married had committed themselves to a relationship of such permanence that it would justify imposing on them the obligations to contribute to and share in each others assets .

55.22 Sexual orientation

Sexual orientation is not listed in s15. But it has been held to be a ground of discrimination that is analogous to those listed in s15. In Egan v. Canada (1995), Vriend v. Alberta (1998). Since the statute provided a remedy for discrimination in employment on the basis of a host of grounds, including age, sex, race, religion, disability and marital status, the omission of sexual orientation was a denial of equal benefit of the law based on a ground analogous to those listed in s15. The omission was not saved under s.1 because Alberta failed to adduce evidence of a legitimate legislative goal that would be advanced by the failure to protect homosexual persons from discrimination on the basis of their sexual orientation. In M v, H. (1999) the SCC held by a majority that the exclusion of persons in same-sex relationships from the spousal support obligations in Ontarios family law legislation was unconstitutional. The Parliament of Canada enacted a remedial statute (the Modernization of Benefits and Obligations Act) in 2000, making changes to 68 statutes. In Canada v. Hislop (2007), a class action was commenced by survivors of same-sex relationships challenging the remedial law on the basis of s15 Charter. The Court held that s15 required that eligibility for the survivors pension had to be made retroactive to April 15, 1985, when s15 came into force. The failure to grant eligibility was discrimination on the basis of sexual orientation, and could not be justified under s1. The Court accordingly struck down the restriction on eligibility in the remedial statute. P55-80 more background. Little Sisters Book and Art Emporium v. Canada (2000) he SCC unanimously agreed that the customs officials did indeed target the imports of Little Sisters because of the homosexual content, that this treated the homosexual communities differently than the heterosexual communities, and that the dignity of the persons seeking to import material was diminished by the differential treatment. Therefore, there was a breach of s15. However, the Court did not agree that the discrimination was inherent in the definition of obscenity in the customs legislation; the definition was capable of application to both homosexual and heterosexual material without differentiation. The discrimination occurred at the administrative level in the implementation of the customs legislation. The legislation itself did not offend s15, and the remedy was not to strike down the legislation, but to insist on more even-handed and sensitive administration of the legislation.

In 2003, the courts in British Columbia, Ontario and Quebec all held that the opposite-sex requirement for marriage constituted discrimination on the ground of sexual orientation. His was invalid as a breach of s15, which could not be justified under s1. After losing the cases, the Government introduced legislation defining marriage as the lawful union of two persons to the exclusion of all others. The Government directed a reference to the SCC for an advisory opinion as to whether the new law would be constitutional. In the SameSex Marriage Reference (2004), the Court held that Parliaments power over marriage in s91(26) CA 1867 extended to the legalization of same-sex marriage. The Government did introduce the legislation and it was passed.

55.23 Place of residence

Place of residence is not an analogous ground. It lacks the element of immutability that is common to the listed grounds and is required for the analogous grounds. In R. V. Turpin (1989) a provision of the Criminal Code that was applicable only in Alberta save to a person accused of murder the right to waive trial by jury and elect trial by judge alone. SCC held that province of residence was not an analogous ground. However, the obscure qualification that perhaps in some circumstances a persons province of residence could be a personal characteristic of tine individual or group capable of constituting a ground of discrimination. Did not address the point that province of residence is matter of personal choice, lacking the characteristic of immutability. In Corbiere v. Canada (1999), members of the Batchewana Indian Band who lived off the bands reserve challenged the provision of the Indian Act that made residence on the reserve a requirement for voting in band elections. The SCC unanimously held that Aboriginalityresidence was an analogous ground. And that the voting requirement, being based on that ground, was a breach of s15. However, the Court was at pains to make clear that its decision as confined to off-reserve band member status and did not apply to residence in general. Residence off the reserve was therefore in many cases practically immutable in that the contrary decision would involve unacceptable personal cost. Differences in the treatment of individuals that are caused by federalism must be able to be accommodated by the Charter of Rights. Differences between provincial laws are the inevitable outcome ten provincial Legislatures, each exercising extensive legislative authority, each acting independently, and each accountable to a different local population. Does s15 require that federal laws be uniform across the country? If areas of federal jurisdiction, the federal Parliament has the authority to enact uniform national laws. However, apart from any effect of the equality guarantee, there is no constitutional requirement that federal laws must

apply uniformly across the country, and in fact many federal laws do not do so. In R. V. S.(S.) (1990) the SCC considered the question of whether the Parliament of Canada could make distinctions between different provinces without offending the equality guarantee. A violation of his equality right under s15 was rejected by the Court. After noting that differences between provincial laws could never amount to discrimination because of the federal principle, he pointed out that province-based distinctions in federal laws could also be a legitimate means of forwarding the values of a federal system. This was especially so in the field of criminal justice, where the balancing of national interests and local concerns has been accomplished by a constitutional structure that both permits and encourages federal-provincial co-operation. In Haig v. Canada (1993) an equality challenge was made to the federal referendum that was held to approve the set of constitutional amendments known s the Charlottetown Accord. The SCC, quoted and followed Dickson C.J. s opinion in S. The opinions in S. and Haig do not say that every province-based distinction in a federal law is invulnerable to s15 attack. However, the opinions make clear that differences between the provinces do not disappear in fields of federal jurisdiction. Each province is organized into municipalities, and each municipality has an elected council with extensive by-law making powers delegated to it by the provincial Legislature. The inevitable outcome is that the residents of each municipality are governed by a set of by-laws that regulate their use of land and many other matters somewhat differently from the residents of other municipalities. In this way, each province is like a federal system in miniature. It would be destructive of local self-government to interpret s15 as requiring that municipal by-laws must all be uniform. Siemens v. Manitoba (2003) P55-86 Example

55.24 Occupation
Occupation is not an analogous ground. It lacks the immutability that is common to the listed grounds and is required for the analogous grounds. Workers Compensation Reference (1989) P55-86 for background The ratio decidendi of the case must be that employment status is not an analogous ground. Many laws single out particular occupations for special treatment. These laws cannot be attacked on the basis of s15, since employment status is not an analogous ground. In Delisle v. Canada (1999), the SCC held that the exclusion of members of the Royal Canadian Mounted Police from the federal Public Service Staff Relations Act, which regulates labour relations in the federal public service, was not a breach of s15.