Law State Citizen LAWS 2502 V

Summer Term Paper

Student: Ambika Rana

Student Number: 100916972
Submission Date: Thursday, July 19th, 2014
Professor: Nikola Milanovic

In 1982, Canada, in its Constitution, introduced citizens with the Canadian Charter of
Rights and Freedoms, which outlined the liberty and human rights Canadians were entitled too.

In North America, this establishment has become the means of life for how members have
decided to govern themselves and construct their society. In a small piece of the Charter, few of
these rights include: the right to open expression and independence of faith, the right to a just
procedure and trial if suspected of criminal behaviour, the right to education and the right to
equal opportunity. However, this essay will focus most of its concentration on section 15 of the
Charter, which states that: Every individual is equal before and under the law and has the
rights to equal protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.1 This statement stresses fairness amongst every individual, in
spite of social class and/or circumstance. Though, the Supreme Court, together with the
government have stretched the security granted by section 15 of the Charter to underprivileged
individuals in social hierarchy. Freedoms defined in this Constitution are referred to as the
Supreme Law, which proclaim that governments are obligated by duty to respect it each time
they document a new law, or conduct daily communications with members of society. The
Charter is enforced to keep governments in taking progressive action to assist the requirements
of exposed crowds, to cure systemic discrimination, and to preserve and recover community
agendas on which the gratification of equivalence and additional Charter rights are contingent
upon.
In some time during the 1960s and 70s, the principles of Canadian rights were
meaningfully altered by the civil rights movements occurring in the United States. During these
years, comprehensive anti-discrimination agreements were announced in national and local
human right statutes Canada wide. Substantial coverage was rewarded to developing civil rights

1 Canadian Charter of Rights and Freedoms, s. 15, Part I of the Constitution Act, 1982.
1

jurisprudence from America, however on the other hand, Canadian rights culture captivated a
unique guarantee to social rights, including an evolving structure of human rights securities, in
which Canada was openly involved.2 In 1980, leading over the enterprise to embrace a legitimate
charter of rights, former Prime Minister, Pierre Trudeau associated the suggestion to his model of
an equal society. Working as a law professor in 1962, in a published piece entitled Economic
Rights, Trudeau stated: If this society does not evolve an entirely new set of values it is vain
to hope that Canada will ever reach freedom from fear and freedom from want. Under such
circumstances, any claim by lawyers that they have done their bit by upholding civil liberties will
be dismissed as a hollow mockery.3 In 1976, Canada, contrasting from America, sanctioned the
International Covenant on Economic, Social and Cultural Rights (ICESCR) at the same time as
the International Covenant on Civil and Political Rights (ICCPR). 4 During the years of 19801981, a contemplation was considered by the Special Joint Committee of the Senate, also the
House of Commons on the Constitution of Canada to comprise a clear mention to ICESCR rights
underneath section 36 of the Constitution Act, 1982. 5 As passed, section 36 claims that national
and district supervisions are committed to providing essential public services of reasonable
quality to all Canadians.6 Nonetheless, simply than just insisting for open presence of socioeconomic rights in section 36 of the Charter, many human rights specialists and support crowds
2 B. Porter, Expectations of Equality, Supreme Court Law Review, Vol. 33 (2006), pp. 23-44
3 P. Trudeau, Economic Rights, McGill Law Journal, Vol. 8 (1961-62), pp. 122-125, at 125
4 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS171 (entered into force 23
March 1976).

5 Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada,
Minutes of Proceedings and Evidence, 32nd Parl., No. 49 (30 January 1981), pp. 65-71. Section 36 is set out in Part
III of the Constitution Act, 1982.

6 L. Sossin, Boundaries of Judicial Review: The Law of Justifiability in Canada (Toronto:

Carswell, 1999), pp. 184-191
2

highlighted the significance of framing rights, much like the right to parity, as expansively as
imaginable.
Known in the beginning as non-discrimination rights, section 15 written in the Charter,
was given another name, changing it to equality rights, and expressively prolonged afterwards
an extraordinary consciousness raising movement by various female assemblies, like the Famous
Five, disability rights crowds and others. Section 15 was amended to provide assurance in giving
impartiality both before and under the law and the equivalent protection and benefit of the
law. New during that period of time, the expression was planned to safeguard the equality rights
smeared to public assistance programs, which comprised of welfare and redundancy coverage,
and that the constructive responsibilities of governments in the direction of underprivileged
groups were constitutionally acknowledged and confirmed. As the Canadian Bar Association
stated during that course: It is an equality rights section, not merely an anti-discrimination
section. The difference between an equality purpose and an anti-discrimination purpose is that
the former is broader and more positive than the latter.7
The outcome which was raised from the countless enthusiastic protests and petitioning by
active disability crowds was that Canada had become the first mid constitutional consensuses to
add disability as a constitutionally forbidden ground of discrimination. 8 This motioned the
introduction into Canadian constitutional commandment of a method to fairness that had by now
been established in regional human rights legislation: corrective in its attention, and
distinguishing that discrimination could comprise a disappointment to conduct confident dealings

7 B. Porter, Twenty Years of Equality Rights: Reclaiming Expectations, Windsor Yearbook of Access to Justice,
Vol. 23 (2005), pp. 145-192

8 Y. Peters, From Charity to Equality: Canadians with Disabilities Take Their Rightful Place in Canada's
Constitution, in D. Stienstra, A. Wight-Felske and C. Watters (eds.), Making Equality - History of Advocacy and
Persons with Disabilities in Canada (Concord Ontario: Captus Press, 2003), pp. 119-136

to assess the distinctive requirements of underprivileged groups, also in the nonappearance of

prejudiced intent.9 In its early introduction of section 15 Charter jurisprudence, the Supreme
Court of Canada played a leading role, internationally, in sustaining and emerging a concept of
utilitarian equality, which takes into account imperative scopes of socio-economic rights, also
seating positive commitments on regimes to remedy disadvantage. The Supreme Court has
acknowledged that curriculums like the several community aid programs for lone mothers are
cheered by section 15, and has justified progressive remedies to less than comprehensive profit
curriculums on that foundation.10 During the course of numerous cases, the Court delivered
constructive remedial commands prolonging or increasing parental, communal support and
retirement income remunerations and spreading jurisdictive securities under sanctuary of
occupancy and human rights legislation.11 These pronouncements recommended that the Court
would accomplish its constitutional obligation to safeguard governments were meeting their
duties of ensuring fundamental equality rights. Conversely, even in its utmost liberal equality
constitutional rights judgements, the Supreme Court has asserted on circumventing the subject of
whether, in the non-appearance of an under-inclusive curriculum or welfares arrangement, the
Charter executes an encouraging commitment on governments to deliver assistances or public
programs compulsory to recognise and identify the requirements of disadvantaged individuals.12
Taking a few steps down, the Court had walked back from an obvious confirmation of an
important component of the view of equal opportunity which was advanced by a collection of
9 Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536
10 Schachter v. Canada, [1992] 2 SCR 679, at para. 41
11 M. Buckley, Law v. Meiorin: Exploring the Governmental Responsibility to Promote Equality Under Section 15
of the Charter, in F. Faraday, M. Denike and M.K. Stephenson (eds.), Making Equality Rights
Real: Securing Substantive Equality Under the Charter (Toronto: Irwin Law, 2006), pp. 179-206

12 Vriend v. Alberta, [1998] 1 SCR 493 at para. 64

4

crowds for the duration of the pre-Charter discussions about the phraseology of section 15, and
that is furthermore at the center of Canadas international human rights responsibilities the duty
of governments to defend helpless individuals over applicable legislative processes and to
conduct constructive and supportive steps to remedy socio-economic shortcoming which
happens to be self-governing of the responsibility to guarantee that standing legislation and
assistance structures are neither under-inclusive or inequitable.13
In regards to performing its duty beneath the writings of legislation, it was originally in
the

year

of

1989

that

the

Court

documented

its

first

section

15

judgement.

Andrews v. Law Society of British Columbia enunciated a preliminary interpretative structure for
the presentation of subsection 15(1) in forthcoming trials issuing around equality rights. 14 In
view of that, following fortitudes as to whether legislative dissimilarities or further government
behaviour dishonoured section 15 of the Charter mandated lower courts to approach and practice
the Andrews context. Andrews involved an effective encounter to the constitutional residency
requisite for entrance into the legal vocation in the province of British Columbia. 15 The British
Columbia Court of Appeal had applied an official equality test in its respect of section 15,
rendering to which individuals correspondingly positioned were permitted to comparable
management, and dissimilar handling of individuals contrarily positioned was vindicated.

13 S. Fredman, Providing Equality: Substantive Equality and the Positive Duty to Provide, South African Journal
on Human Rights, Vol. 21 (2005), pp. 163-190; G. Brodsky & S. Day, Beyond the Social
and Economic Rights Debate: Substantive Equality Speaks to Poverty, Canadian Journal of Women and
the Law, Vol. 14 (2002), pp. 185-220

14 Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143 (unanimous re section 15 violation; 4-2
majority finding violation not justified under section 1)

15 Ibid at para 1
5

Though approving the appellate courts conclusion, the Court disallowed its formal equality
scrutiny in support of a substantive equality methodology.16
Many pertinent establishments were recognized in the analysis of the Andrews case. The
assurance of equality, outlined from the section 15 promise is primarily apprehensive with
the influence of the law on the person or crowd disturbed. 17 Impartiality is a proportional notion,
apparent through association with the situation of other individuals surrounded by the applicable
social or administrative background. Section 15 is not, nonetheless, an all-purpose pledge of
equivalence: discrepancy handling does not automatically end in discrimination, while
indistinguishable behaviour may commonly bring forward serious unfairness. Subsection 15(2)
is acquainted with this detail by providing that byelaws, agendas and undertakings having as
their purpose the improvement of circumstances of deprived crowds of individuals are not barred
by subsection 15(1). A regulation will therefore not unavoidably be immoral since it creates
merits. Statutory arrangements are essential for the supremacy of contemporary civilization.
Section 15 was not proposed to eradicate all differences in regulations, but merely those which
have been viewed as prejudiced.
For goals pertaining to section 15, discrimination is well-defined as a difference,
deliberate or otherwise, which is founded on points concerned with the particular attributes of the
human or crowd in question. It carries the weight of striking disadvantages and/or problems not
enforced on other beings, or of concealing access to compensations or reimbursements
obtainable to others. This explanation highlights the private features that drive or may ground a
section 15 assertion are those numbered inside the section itself, as well as convinced nonenumerated features such as, for instance, residency in the state of affairs discussed within
16 Ibid at para 18
17 Ibid at para 16-17
6

the Andrews trial.18 The reckoned grounds reflect the most common and probably the most
socially destructive and historically practised bases of discrimination and must receive
particular attention.19 The purpose of whether a non-enumerated ground fits within the
category of section 15 necessitates evaluation as to whether it is analogous to the enumerated
grounds. The enumerated and analogous grounds method ponders on the individual features of
those appealing to have been behaved with inequitably, and requests, midst other issues, whether
individuals in that specific crowd have been exposed to ancient disadvantage, labelling and
preconception.20
It is not, nonetheless, adequate to emphasis on if the accusation is centred on a numbered
or a non-enumerated, corresponding ground. The consequence of the confronted difference must
also be balanced. A pursuer must institute that not only that he or she is not receiving equal
treatment before and under the law or that the law has a differential impact on him or her in the
protection or benefit accorded by law but, in addition, must show that the legislative impact of
the law is discriminatory.21 Andrews consequently determined that a discovery of section 15
breach entails: dissimilarity, or a distinction grounded on particular features with detail to
management and/or effect in the preparation or submission of commandments; and inequality,
demonstrated by a result of preconception to a deprived or underprivileged being or group, as

18 Ibid at para 1
19 Hurley M. C., 2007. Charter equality rights: Interpretation of section 15 in Supreme Court of Canada decisions.
Parliamentary Information and Research Service. Available at
<http://www.parl.gc.ca/content/lop/researchpublications/bp402-e.pdf>

20 Ibid at para 10
21 Ibid at para 11
7

presented by the enumerated foundations and/or those non-enumerated grounds comparable to

them.22
Over the year 1995, the Courts following section 15 verdicts lengthened upon the
straightforward Andrews context. Firm notions reserved specific implication. In the case of R. v.
Turpin,23 the Court restated the Andrews principle of disadvantage for reasons of launching a
section 15 defilement centred on analogous grounds: The Court repeated the significance of
observing not only at the impugned legislation which has created a distinction that violates the
right to equality but also to the larger social, political and legal context. 24 In this point of view,
a discovery of prejudiced bias falling under section 15 of the Charter will, in a majority of cases,
involve an exploration for disadvantage that exists apart from and independent of the
particular legal distinction being challenged.25 The standard of common disadvantage in
totalling to the specific detrimental distinction in challenge did not go uncriticised, but
commonly persisted a main deliberation for section 15 claims. The Court had, moreover,
established that determining whether a crowd is analogous and consequently one that should
profit from section 15 security necessitates an inspection of the crowds position in the public. 26
One investigative instrument recognized for this objective consisted of an assessment of whether
the collection of crowds institutes a discrete and insular minority. 27 In the similar
manner, Turpin well-defined the general goal of section 15 as being the alleviating or averting of
prejudice against individuals dealing with social, governmental and legitimate disadvantage in
22 Andrews, Supra note 14 at 8
23 R. v. Turpin, [1989] 1 S.C.R. 1296
24 Ibid at para 68
25 Hurley, Supra note 19 at 16
26 Ibid at para 17
27 Ibid at para 17
8

Canadian culture. As a result, determining whether a crowd is secure by section 15 implicates

a search for indicia of discrimination such as stereotyping, historical disadvantage or
vulnerability to political or social prejudice.28 This description was specified and useful in
numerous succeeding Supreme Court of Canada and those trials heard in lower courts.
The trials which take place in these courts transport a simple structure within which
specific section 15(1) appeals can be construed. The court is obligated to primarily govern
whether the applicant has made known that one of the four simple equality rights has been
repudiated. This analysis will emphasis principally on whether regulations have painted a
distinction amongst the plaintiff and others, grounded on individual features. Afterward, the
court must decide whether the disavowal can be thought to end in discrimination. This second
review will pay a great amount of attention on if the discrepancy treatment has the outcome of
forcing an affliction, responsibility or hindrance not enforced upon others or of suppressing or
restraining access to prospects, assistances and compensations obtainable to others. Additionally,
in deciding whether the plaintiffs s. 15(1) rights have been invaded, the Court must deliberate on
whether the particular characteristic in interrogation falls within the grounds itemised in the
section or within a corresponding ground, so as to guarantee the claim fits within the whole aim
of section 15; specifically, to avert discernment alongside crowds subject to labelling, past
disadvantage and governmental and stereotypical preconception in Canada.
While

the Andrews-Turpin reasoned

arrangement

was

functional,

fundamentally

untouched, in following Court declarations, three 1995 verdicts exposed a noticeable three-way
separation midst associates of the Court as to the suitable method to section 15 understanding. 29
These decisions also expressed differences from the unique Andrews-Turpin tactic innovative in
28 Ibid at para 19
29 Ibid at para 20
9

the sequence that are worth mentioning. In Miron,30 for instance, a mainstream proportion of the
court remarked that the elements set out in Turpin for deciding whether a crowd of people was
analogous to those enumerated in section 15, while they were legal pointers, need not
unavoidably be current to brand such a discovery. In the popular interpretation of things,
analogous grounds could not be limited to traditionally disadvantaged crowds if the Charter was
to maintain prospect significance. Nor is it necessary for a separate and narrow minority to be
targeted by the merit at matter, as exemplified by the presence of gender in the midst of section
15s enumerated grounds for describing analogous grounds. The all-encompassing perseverance
of section 15 was also reaffirmed as being 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.31
The verdict held in the case of Lovelace v. Ontario32 from 2000 covers the Courts
original reasonably widespread conversation of the appropriate clarification of subsection 15(2),
and of that deliverys association with subsection 15(1). The trial revolved around the prohibiting
of specific non-band Aboriginal descents in Ontario from the endowment that offers Ontario
First Nations recorded under the Indian Act with stocks in the profits of the reserve-based Casino
Rama, in order to make stronger their financial and social expansion. The Ontario appellate court

30 Miron v. Trudel, [1995] 2 S.C.R. 418

31 Ibid at para 131

32 Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37: The Court acknowledged that the
Aboriginal complainants, along with the First Nations defendants were deprived. It stretched this
issue to circumstances which the omitted crowd is disadvantaged, so as to guarantee the enquiry
remains concerned on whether the segregation invades subsection 15(1) and to stop reducing that
inquiry to a balancing relative disadvantage.
10

believed that the casino assignment was official by subsection 15(2), and could not establish
discrimination under subsection 15(1). In maintaining this final decision, the Court banked on
subsection 15(1) analysis underneath its 1999 Law33 verdict other than on subsection 15(2). The
Court perceived that, even though its earlier section 15 decisions had not provided autonomous
opportunity to subsection 15(2), they had taken to account the provision to upkeep the
clarification of the equality rights section as functional in surrounding. 34 Having distinguished
opposing attitudes to subsection 15(2) below which more or less judges, including scholars,
have considered it either as an revelatory relief to subsection 15(1), or as an immunity from that
provisions application the Court established that, at this period of the development of section
15 jurisprudence, the provision should be assumed to be as a corroboration of the practical
equality tactic to subsection 15(1).35
In approximately rather premature judgements, a widely held portion of the Court
advocated that discriminatory legislation may be defensible on the foundation of a governments
prerogative to take incremental measures in constituting human rights security, or an
incremental approach in assigning public reimbursements, or for the reason that the source of
discrimination at subject is somewhat novel. 36 In such cases where this subject is of concern,
the trouble of when and how the less severe Oakes37 test may suitably be appealed was a basis of
disagreement midst Court associates. In Egan,38 for example, disagreeing affiliates of the Court
33 Law v. Canada (Minister of Employment and Immigration), [1991] 1 S.C.R. 497: The shaping role of the human
self-worth conception for goals of section 15 study was established during this case.

34 Ibid at para 42
35 Ibid at para 43
36 Hurley, Supra note 14 at 61
37 R v. Oakes [1986] 1 S.C.R. 103
38 Egan v. Canada [1995] 2 S.C.R. 513
11

communicated sturdy disapproval of mutually incremental and novelty methods to section 1

explanation. In Vriend,39 Iacobucci J.s explanations for the mainstream restated the
understanding that the need for governmental incrementalism is an inappropriate justification
for Charter violations. Groups that have historically been the target of discrimination cannot
be expected to wait patiently for the protection of their human dignity and equal rights while
governments move toward reform one step at a time.40
To sum up, section 15 of the Charter has been analyzed and interpreted in various ways
to aid groups of a certain class and/or social condition, such as the Aboriginals. It has declared in
writing that every individual is equal before and after the law and no one characteristic can deny
a group of people or person special privilege because of status. There have been many cases
which have argued and attempted to misconstrue section 15, however, in each case, certain
guidelines have been established that does, to an extent, clarify the understanding of the
philosophy. Alongside the courts, the government has revised and put forward section 15 in a
more complex perspective to remain fair, yet more open to the population which requires a little
more assistance from its leader. Through records of civil movements and protests, a boarder light
has been shed upon certain groups of people and has enforced more duties on the government to
manage the needs of these crowds. Section 15 may be lacking in some areas, however, its
purpose has aided and created a bigger sense of a moral obligation on courts to protect
individuals who become victims of discrimination, yet keeping verdicts lawfully binding.

39 Vriend v. Alberta, [1998] 1 S.C.R. 493

40 Ibid at para 121
12

References
LEGISLATION
Canadian Charter of Rights and Freedoms, s. 15, Part I of the Constitution Act, 1982
Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes
of Proceedings and Evidence, 32nd Parl., No. 49 (30 January 1981), pp. 65-71. Section 36 is set out in Part III ofthe
Constitution Act, 1982.
International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS171 (entered into force 23
March 1976).
JURISPRUDENCE
Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143
Egan v. Canada [1995] 2 S.C.R. 513
Law v. Canada (Minister of Employment and Immigration), [1991] 1 S.C.R. 497

13

Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37

Miron v. Trudel, [1995] 2 S.C.R. 418
R. v. Turpin, [1989] 1 S.C.R. 1296
R v. Oakes [1986] 1 S.C.R. 103
Schachter v. Canada, [1992] 2 SCR 679
Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536
Vriend v. Alberta, [1998] 1 SCR 493
SECONDARY MATERIALS: ARTICLES
B. Porter, Expectations of Equality, Supreme Court Law Review, Vol. 33 (2006), pp. 23-44
P. Trudeau, Economic Rights, McGill Law Journal, Vol. 8 (1961-62), pp. 122-125, at 125
S. Fredman, Providing Equality: Substantive Equality and the Positive Duty to Provide, South African Journal on
Human Rights, Vol. 21 (2005), pp. 163-190; G. Brodsky & S. Day, Beyond the Social and Economic Rights
Debate: Substantive Equality Speaks to Poverty, Canadian Journal of Women and the Law, Vol. 14 (2002), pp.185220
SECONDARY MATERIALS: ONLINE SOURCES/BOOKS
Hurley M. C., 2007. Charter equality rights: Interpretation of section 15 in Supreme Court of Canada decisions.
Parliamentary Information and Research Service. Available at
<http://www.parl.gc.ca/content/lop/researchpublications/bp402-e.pdf>
M. Buckley, Law v. Meiorin: Exploring the Governmental Responsibility to Promote Equality Under
Section 15 of the Charter, in F. Faraday, M. Denike and M.K. Stephenson (eds.), Making Equality Rights Real:
Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006), pp. 179-206
Y. Peters, From Charity to Equality: Canadians with Disabilities Take Their Rightful Place in Canada's
Constitution, in D. Stienstra, A. Wight-Felske and C. Watters (eds.), Making Equality - History of Advocacy and
Persons with
Disabilities in Canada (Concord Ontario: Captus Press, 2003), pp. 119-136

14

15