B. The Turpin and Swain Decisions
Through 1995, the Court's subsequent section 15 decisions expanded upon the basic Andrews framework. Certain concepts retained particular significance. In R. v. Turpin,(5) in particular, the Court reinforced the Andrews criterion of disadvantage for purposes of establishing a section 15 violation based on analogous grounds
6)
The Court reiterated the importance of looking “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.” In this light, a finding of discrimination under section 15 of the Charter will, in most cases, entail a search for “disadvantage that exists apart from and independent of the particular legal distinction being challenged.” The criterion of general disadvantage in addition to the particular prejudicial distinction under challenge did not go uncriticized, but generally remained a key consideration for section 15 claims.
The Court also confirmed that deciding whether a group is “analogous” and therefore one that should benefit from section 15 protection requires an examination of the group's place in society. One analytical tool identified for this purpose involved an evaluation of whether the group constitutes a “discrete and insular minority.”(7)
In the same vein, Turpin defined the overall purpose of section 15 as being the remedying or preventing of discrimination against groups suffering social, political and legal disadvantage in Canadian society. Thus, deciding whether a group is protected by section 15 involves “a search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political or social prejudice.” This definition was stated and applied in many subsequent Supreme Court of Canada and lower court cases.
The Court's decision in R. v. Swain( contained a useful review of the approach developed in Andrews-Turpin:
[These] cases convey a basic framework within which particular s. 15(1) claims can be analyzed. The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied ... This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination.” This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant's s. 15(1) rights have been infringed, the Court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure the claim fits within the overall purpose of s. 15; namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.
C. The 1995 Trilogy
Although the Andrews-Turpin analytical scheme was applied, essentially unchanged, in subsequent Court rulings,(9) three 1995 decisions revealed a marked three-way division among members of the Court as to the appropriate approach to section 15 interpretation.(10) These rulings also articulated variations from the original Andrews-Turpin approach advanced in the trilogy that are worth noting. In Miron, for example,(11) a majority of the court commented that the factors set out in Turpin(12) for determining whether a group was “analogous” to those enumerated in section 15, while they were valid indicators, need not necessarily be present to make such a finding. In the majority view, analogous grounds could not be restricted to historically disadvantaged groups if the Charter was to retain future relevance.(13) Nor is it essential for a discrete and insular minority to be targeted by the distinction at issue, as illustrated by the inclusion of sex among section 15's enumerated grounds for defining analogous grounds. The “overarching” purpose of section 15 was also restated 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.”(14)
D. The Law Decision: A Second Leading Case
Following the trilogy, it was difficult to gauge how the Court's division would affect the future evolution of section 15 interpretation, among other reasons because the Andrews framework had served as the authoritative guide in this area. The issue remained unresolved through 1998 in the Court's post-trilogy rulings in which section 15 issues were addressed.(15)
The full Court's unanimous 1999 ruling in Law v. Canada(Minister of Employment and Immigration)(16) marked an apparent attempt to reconcile the Court's earlier split and to set benchmarks for the following years of section 15 analysis. The decision therefore represented a significant development.
The case involved an appeal of a ruling against a claim of age-based discrimination arising because Canada Pension Plan survivor benefits are denied to able-bodied surviving spouses under the age of 35 who are without dependent children.(17) In dismissing the appeal, the Court consolidated and refined previously stated principles concerning the purpose of and approach to section 15, with a view to providing guidelines for lower courts' future evaluation of discrimination claims under the Charter. These guidelines, it was stressed, are to serve as points of reference rather than a fixed formula, so as not to detract from the strong remedial purpose of the equality rights provision.
Under Law, central issues raised by and broad inquiries into claims of discrimination reflected issues and inquiries essentially as stated in Andrews. Thus, a court evaluating a discrimination claim should continue to determine whether:
the law in question either actually distinguishes between the claimant and others on the grounds of one or more personal characteristics, or results in substantively different treatment on the basis of such characteristics by failing to take account of the claimant's already disadvantaged position;(18)
the differential treatment is based on one or more enumerated or analogous grounds protected by section 15; and
the treatment discriminates substantively by imposing a burden or withholding a benefit in a way that reflects stereotyped application of presumed characteristics, or that otherwise has demeaning or devaluing effects on the individual.
In other words, courts must find (i) distinction(s) in treatment (ii) on the basis of an enumerated or analogous ground (iii) that amounts to substantive discrimination.
The primary innovation of the Law ruling, which many contend rendered section 15 analysis significantly more complex, lay in its reformulation of the evaluative framework to assist courts in assessing the merits of section 15 claims. Its basic elements, underscoring a heightened focus on human dignity, may be summarized as follows:
The purpose of section 15 is to prevent the violation of human dignity and freedom by the imposition of disadvantage, stereotyping or prejudice, and to promote equal recognition at law of all persons as equally deserving.
A claim of discrimination is unfounded in the absence of conflict between the purpose or effect of the law under challenge and the purpose of section 15, as determined by analyzing the context of the claim and claimant.
A distinction in treatment is unlikely to constitute discrimination for section 15 purposes if it does not violate human dignity, and particularly if it also helps improve the position of disadvantaged individuals or groups.
Because equality is a comparative concept, relevant “comparators” must be established; within the scope of the ground(s) of alleged discrimination claimed, a court may refine a claimant's comparison, should it be insufficient or inaccurate.(19)
Contextual factors that determine whether the law demeans a claimant's dignity are to be evaluated, first and foremost from the perspective of the claimant and, to ensure that her or his assertion is supported objectively, from the perspective of a reasonable person in circumstances similar to the claimant's, who takes into account those contextual factors.
The list of contextual factors raised by a section 15 claimant to show that a law is demeaning to dignity is not closed.
Noteworthy contextual considerations influencing whether section 15 has been infringed include:
pre-existing disadvantage or vulnerability experienced by the claimant, with the effect of the challenged law always of central significance;
the extent of the link, if any, between the ground(s) raised and the claimant's actual circumstances, with discrimination more difficult to establish to the degree the law takes those circumstances into account in a way that values the claimant;
the ameliorative purpose or effect of the law under challenge for a relatively more disadvantaged group which, if present, is unlikely to violate the dignity of more advantaged claimants;(20) and
the nature and scope of the interest affected by the law, with more severe localized results of the law for those affected more likely to show that the distinctions in treatment responsible are discriminatory under section 15.
The claimant's burden of establishing section 15 infringement does not oblige her or him to adduce evidence of violation of human dignity or freedom; the fact that a distinction in treatment is based on one or more section 15 grounds will often be sufficient to establish such an infringement in that it will be apparent, through judicial notice and logic, that the distinction is discriminatory.
Applying these principles to the case at hand, the Court concluded that, while the challenged provisions of the Canada Pension Plan do create differential treatment based on the enumerated ground of age, they do not impose a substantive long-term disadvantage on younger adults and do not violate the essential human dignity of surviving spouses under the age of 35; thus, they are not discriminatory.
E. Some Post-Law Observations
As anticipated, the Court's assessment of the human dignity factor in subsequent decisions to date has continued to play a pivotal role in determining whether a section 15 claim of discrimination will be allowed or dismissed.
The Court has continued to develop guidelines as to how contextual factors are to be weighed and analyzed in individual cases. Additional explanation can be found, for example, in Trociuk v. British Columbia (Attorney General), in which the Court ruled that legislation excluding some fathers from the birth registration and naming process was discriminatory on the basis of sex. It noted that absence of historical disadvantage need not necessarily preclude a finding of discrimination, underscoring the point that “neither the presence nor absence of any of the [Law] contextual factors is dispositive of a s. 15(1) claim” or “determines the outcome of the dignity analysis.”(21)
The Court has also maintained its focus in post-Law decisions on the significance of the “comparator group” in section 15 analysis.(22) It returned to the matter most fully in Hodge v. Canada (Minister of Human Resources Development).(23) Here the Court observed that because section 15 analysis proceeds throughout on a comparative basis, the choice of comparator group is an ongoing issue in every case and initial misidentification “can doom the outcome” of the section 15 examination. Hodge reaffirmed the judiciary's role in scrutinizing the claimant's choice of comparator, and its duty “to step in and measure the claim to equality rights in the proper context and against the proper standard” when a claimant's choice is mistaken.(24) The Court's rather complex discussion of the comparator group issue asserts that “[t]he appropriate comparator group is the one which mirrors the characteristics of the claimant ... relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter.”(25)
